State ex rel. Koster v. McCarver, 376 S.W.3d 46

Gnade was convicted in Lincoln County in May 2008 of sexual assault and felonious restraint; trial counsel was Gary Grunick, unaware of a Lincoln County opt-out jury program at the time.
The Lincoln County opt-out program allowed jurors to perform community service and pay a fee to avoid jury duty; 12 hundred people were summoned, with ten opting out.
Appellate counsel McKerrow did not raise jury-selection issues on appeal; the conviction was affirmed in State v. Gnade, 284 S.W.3d 782 (Mo.App. E.D.2009).
In 2010 Preston v. State held Lincoln County’s opt-out practice deviated from statute, and the court reversed in similar contexts.
Gnade learned of the opt-out issues in 2010–2011; in March 2011 he petitioned for a writ of habeas corpus challenging the jury procedures as due process/structural error.
The circuit court granted the writ in September 2011; the State sought certiorari to quash the writ, which this court reviews to determine if the circuit court exceeded authority or abused discretion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Gnade procedurally defaulted his habeas claim.	Gnade did not default because 494.465 timely preserved grounds.	State says default occurred by not raising on direct appeal or post-conviction.	Gnade default not avoided by 494.465; must show cause and prejudice.
Whether 494.465 can preserve a jury-venire challenge post-conviction.	Brown allows habeas where time-barred Rule 24.035 claims exist.	Brown and Rule 29.15 intend a unitary post-conviction remedy; no double track.	Section 494.465 cannot bypass the unitary post-conviction remedy to attack an already tried conviction.
Whether Gnade showed cause and prejudice to overcome default.	Cause due to lack of knowledge of the faulty procedures; prejudice shown by impact on trial.	Attorney knowledge should count toward cause; McKerrow did not know; e-mail evidence disputed.	Circuit court did not err; Gnade showed cause and prejudice; no abuse of discretion.
Whether the Lincoln County jury procedures prejudiced Gnade.	Preston governs preservation; argument that procedures were prejudicial; State seeks overrule Preston.	Preston was wrongly decided; but court adheres to Preston; no prejudice shown to overrule.	Preston stands; no basis to reverse; no prejudice shown under issue presented.

Brown v. State, 66 S.W.3d 721 (Mo. banc 2002) (time to file Rule 24.035 matters; habeas as alternative for late claims)
Brown v. Gammon, 947 S.W.2d 437 (Mo.App.W.D.1997) (recognizes habeas for time-barred Rule 24.035 claims)
Reynolds v. State, 939 S.W.2d 451 (Mo.App.W.D.1996) (permissible use of habeas for certain late claims)
State ex rel. Nixon v. Jaynes, 63 S.W.3d 210 (Mo. banc 2001) (habeas as remedy to overcome procedural default; single post-conviction remedy)
State ex rel. Engel v. Dormire, 304 S.W.3d 120 (Mo. banc 2010) (cause defined by lack of knowledge of claim)
State ex rel. Koster v. McElwain, 340 S.W.3d 221 (Mo.App. W.D.2011) (standard for abuse of discretion in certiorari review)
Preston v. State, 325 S.W.3d 420 (Mo.App. E.D.2010) (opt-out jury procedures deemed substantial noncompliance)
Jaynes, 63 S.W.3d 210 (Mo. banc 2001) (unitary post-conviction remedy; certiorari review framework)
Gnade v. State, (no citation provided within text) (—) (case at issue in decision interpreting 494.465 and default)