Price v. State, 2014 Mo. LEXIS 12

Price was convicted of first-degree sodomy in 2004 and received a 12-year sentence after new counsel replaced the initial counsel.
The sentencing court explained the Rule 29.15(b) deadlines: 90 days after the appellate mandate if the conviction was affirmed, with a complete waiver for failure to file timely.
The appellate mandate issued July 15, 2005, making the Rule 29.15(b) deadline October 13, 2005; Price did not file until December 31, 2009.
Price alleged abandonment by post-conviction counsel, who claimed he understood a 180-day deadline and did not timely file; counsel’s affidavit asserts this error.
The motion court found abandonment by counsel and granted relief; the state appealed and the Missouri Supreme Court reversed, dismissing Price’s motion with prejudice.
Central issue is whether the abandonment doctrine or third-party interference can excuse untimely initial motions under Rule 29.15(b); the court ultimately held that it cannot.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether abandonment excuses an untimely initial motion	Price relies on abandonment to excuse lateness	Bullard and related precedent disallow abandonment for initial motions	Abandonment cannot excuse untimely initial motions
Scope of McFadden as to initial motions	McFadden supports abandonment to initial motions	McFadden limited to its unique facts and does not extend to initial motions	McFadden does not extend abandonment to initial motions
Applicability of Nicholson/Spells active interference	Third-party interference can excuse tardiness	Nicholson/Spells do not apply to this case	Price’s tardiness due to third-party active interference is not established
Effect of Rule 29.15(b) waiver provisions	Waiver should not bar relief due to counsel failure	Waivers are mandatory and enforceable	Rule 29.15(b) waivers are mandatory and enforceable; relief denied
Whether Bullard controls this case	Bullard should not prevent relief	Bullard bars extending abandonment to initial motions	Bullard controls; abandonment not available to excuse untimely initial motion

Sanders v. State, 807 S.W.2d 493 (Mo. banc 1991) (abandonment limited to amended motions under Rule 29.15(e))
Luleff v. State, 807 S.W.2d 495 (Mo. banc 1991) (abandonment concept to enforce Rule 29.15(e) with appointed counsel)
Bullard v. State, 853 S.W.2d 921 (Mo. banc 1993) (rejects extension of abandonment to initial motions; distinguishes amended vs initial)
McFadden v. State, 256 S.W.3d 103 (Mo. banc 2008) (active interference by counsel can justify abandonment in specific factual scenario)
Nicholson v. State, 151 S.W.3d 369 (Mo. banc 2004) (excuse for tardiness when third-party interference prevents timely filing)
Spells v. State, 213 S.W.3d 700 (Mo. App. 2007) (extension of Nicholson/active interference rationale)
Gehrke v. State, 280 S.W.3d 54 (Mo. banc 2009) (discussion of McFadden and abandonment scope)
Moore v. State, 328 S.W.3d 700 (Mo. banc 2010) (confirms limits on abandonment extensions)
Eastburn v. State, 400 S.W.3d 770 (Mo. banc 2013) (abandonment may occur when post-conviction counsel prevents timely filing)
Reuscher v. State, 887 S.W.2d 588 (Mo. banc 1994) (no federal right to post-conviction counsel; counsel ineffectiveness not reviewable in this context)
Martinez v. Ryan, 132 S. Ct. 1309 (2012) (addressing ineffective assistance in collateral proceedings for federal habeas purposes)
Kerby v. Chadwell, 10 Mo. 392 (1847) (attorney acts binding on client; long-standing agency principle)