Clay v. Dormire

CLAY, Relator, Arthur Scott DORMIRE, Superintendent,

Dave County the Platte Pros

the Office of Attorney, Respondents.

ecuting

No. 82331. SC Missouri,

Supreme Court

En Banc.

Dec. Defender, Appellate L. Hogan,

Susan City, Kansas for relator. Nixon, (Jay) Atty. Gen.,

Jeremiah W. Gen., Spillane, Atty. J. Asst. Michael Jef- City, respondents. ferson LIMBAUGH, Judge.

Relator, Arthur convict- Clay, Scott was rape ed of forcible 1989 and sentenced twenty prison. years He was sen- rather than judge tenced because the found him to be a offender, prior based the erroneous expunged prior of an consideration copy tion. A order light after direct came relator’s post-conviction motion had expunged from the records ‍​​​​‌​‌‌​‌‌​​​‌​​‌‌​‌​‌‌‌​​‌​​​‌​‌​​​​‌‌​‌‌​​‌‌​‍of the petitions for a writ been denied. He now trial and circuit clerk’s office. Because of relator’s corpus ordering a new of habeas offender, judge, rath- directing that all status as a for a writ of mandamus jury, imposed pro- sentence as be ex- er than the conviction references 557.036.2, § Al- vided under RSMo punged from his records. year the 20 sentence was within Ap- though in of originally was filed the Court District, punishment of five statutory range the of peals, and after issuance Western life, apparently the trial court corpus years both habeas opinion granting of an conviction, relief, granted prior expunged considered the and mandamus this Court completion relator’s respondents’ application for transfer and as well as successful Const, offense, V, probation imposing for that in the jurisdiction. Mo. art. assumed Having Rule now deter- sentence. sec. 10. 83.04. unwar- corpus mined that habeas relief is expungement of the order The existence ranted, remanded to the relator is ordered at trial or his by was not raised relator custody Department of the Corrections. post- subsequent direct or his However, petition the for writ of manda- Appeals The Court of conviction motion. peremptory writ of granted, mus is and a post- and denial of affirmed the conviction ordered to issue.'

mandamus is relief, exceрt as to a minor cleri- conviction 12, 1974, Clay, cal 1991. State in the Court of on June July On Circuit In Missouri, (Mo.App.1991). pled guilty relator County, Platte the circuit clerk’s distributing hashish and relator contacted to the offense later, and or- requesting “judgments Years af- office the placed probation. was on felonies,” for probation, my rela- ders of convictions successfully completing ter that there was no and he was advised a motion with the tor filed 195.290, under his any felony § record of convictions RSMo 1978 judge pursuant rape conviction. 1989), except name the recent (repealed expunge the conviction. Thus, time, effect, prior conviction required § that the it was in 195.290 While prose- for the the convictions of that the clerk had certified expunge trial courts to ap- rape trial had placed on cutor’s use drug offenders who had been from rela- parently finally expunged probation if was under twen- the оffender not reveal tor’s file. The record does at the time of ty-one years age or how the or how this occurred offense, repeatedly when had not reoffended clerk’s order came to the applied for ex- probation, violated Although date. provided attention at that late The statute also pungement. from expunged had been order shall be to 1974 conviction that “the effect of such records, no of the ex- cоpy the clerk’s person, contemplation restore such order was forwarded occupied prior pungement he to the status Corrections, and the brief- Department of conviction.” Id. On to such arrest and appeal makes clear 2, 1980, evidentiary ing hear- on this following an July still reflect relator’s Department’s an records sentencing judge entered order ing, the conviction, expunged conviction. finding on expunging § 195.290 had been requirements of that his was made aware Once relator satisfied. used should not have been prior conviction he filed for Thereafter, 9, 1989, deny jury sentencing, him relator was May on County, relief in Platte but habeas County jury Platte convicted trial, improper venue was denied for During petition rape. of forcible offense applied Relator then under Rule 91.02. relator was a found that relief, under 28 U.S.C. intro- for habeas prosecutor’s on the offender based (1994), District § States thе United drug copy of relator’s duction Missouri. District of for the conviction, which, had never Court Western inexplicably, request complains only The District Court denied that that manifest August af occurred. and the decision was Ap

firmed the United States Court of Although Simmons did not de Circuit, peals Eighth for the reason injustice” for fine the term “manifest habe- required request that relator was first same, as essentially it is h Clay suc relief state courts. v. Purk Eighth Circuit observed Duvall ‍​​​​‌​‌‌​‌‌​​​‌​​‌‌​‌​‌‌‌​​‌​​​‌​‌​​​​‌‌​‌‌​​‌‌​‍(8th Cir.1996). Gammon, 89 F.3d Fi Cir.1994), (8th ett, 15 F.3d 747 and n. 3 nally, relаtor filed for writs denied, 1241, 114 rt. ce and mandamus that is the 2753, 129 L.Ed.2d as the term “mis subject opinion. carriage justice” mis “fundamental carriage justice” used federal newly-dis- is based on the Following the lead of the United cases. covered evidence of the or- Supreme habeas States Court’s der. that Relator contends “[abrogating Delo, cases, and recently most Schlup statutory right jury sentencing by [his] to 298, 327, U.S. 115 513 S.Ct. 130 of a use conviction which been (1995), L.Ed.2d 808 this Court holds that duly expunged according to law denied injustice miscarriage manifest rights [him] his to a fair trial due and to justice requires standard cor habeas process of law the Fifth under and Four- pus petitioner “to show that ‘a constitu teenth Amendments to United States probably tional violation in has resulted I, Constitution and Article 10 of Section actually who conviction of one is inno ” the Missouri Constitution.” He con- also cent,’ Camer, id. (quoting Murray v. 477 he tends that was “harmed ... because 478, 496, 106 S.Ct. L.Ed.2d U.S. the trial court considered the (1986)), further, “[t]o establish the tion in assessing punishment ... [his] petitioner requisite probability, must [and] determined sentence on the ba- [his] likely that it is than that no show more not sis of information properly that was not juror him reasonable would have convicted before the court.” light new of inno [of evidence cence],” explained id. in Schlwp As The relief available under a writ compo actual earlier innocence habeas traditionally miscarriage justice nent standard limited, very and courts are required not gateway through is “a which a habeas to extraordinary issue this writ oth where petitioner pass must have his otherwise er remedies are adequate and available. barred constitutional considered on rel. merits, ex Simmons v. any [and] [w]ithout ... new innocence, S.W.2d evidence of even existence Out concededly concern over of a “duplicative unending meritorious constitutional violаtion is not in itself to estab challenges to the sufficient finality judgment,” a ” miscarriage justice.... lish a Id. at person cannot usually utilize a writ of ha- 315-16, 115 (quoting S.Ct. 851 Herrera v. beas procedurally-barred raise Collins, 506 U.S. 113 S.Ct. raised, claims—those that could have been (1993)). 122 L.Ed.2d 203 raised, appeal but were not direct or in post-conviction proceeding. Id. at Ultimately, Supreme Court has con- Very exceptions limited to this are rule “explicitly tying cluded that miscar- recognized where person seeks to use justice riage exception thus innocence jurisdictional the writ “to or in raise issues the systemic accommodates both interests so that exceptional circumstances rare and finality, comity, ju- and conservation of resources, manifest results” if cor overriding and the indi- dicial pus Here, granted. justice relief is not Id. doing relator vidual interest the ‘ex- ” jurisdictional makes no claim of but Id. at traordinary case.’ S.Ct. Carrier, do with his actual inno- Murray nothing at have (citing interests,

496, 106 These ex- claims on failure to raise these cence. The course, justify the same cluding comity, of post-conviction direct Indeed, approach in Missouri. the actual procedural is a bar that cannot proceeding component ap- all the more innocence is corpus. through habeas be overcome eases the fact propriate given Missouri afforded, аlready an that defendants are petition for writ of Relator’s post-conviction relief initial habeas-like It matter. quite mandamus another under 29.15 or Rule proceeding Rule the writ purpose “[t]he well-settled (usu- 24.035 in which ‍​​​​‌​‌‌​‌‌​​​‌​​‌‌​‌​‌‌‌​​‌​​​‌​‌​​​​‌‌​‌‌​​‌‌​‍constitutional claims execute, adjudicate,” and to be is to not ally involving of trial ineffective assistance writ, “a to a the relator must have entitled counsel) appear like often those so clear, right to an unequivocal, sрecific have presented. corpus petitions may Missouri performed.” act State ex rel. penal exception With Com’n, Tax Growth Ass’n v. State cases,1 injus ty phase capital manifest In this tice under the “actual innocence” standard clear, case, spe unequivocal, relator has issue of or inno applies guilt cific, right previously-adjudicated no to claims of error cence and is of avail expunged from have his conviction sentencing process. the committed Department of the records of the Correc Whitley, v. Sawyer See U.S. 1980, July of which is tions. The order (1992). 120 L.Ed.2d 269 S.Ct. complies with the by fully mandated and non-capital during sentencing Errors statute, 195.290, § RSMo expungement actionable cases are ORDERED, IT that “... IS states juris had no if it is shown that the court that all ADJUDGED AND DECREED impose question, diction to the sentence records, ar recording [relator’s] official imposes court as in the case where а rest, expunged and be trial and conviction is in of that autho sentence that excess restored, in the movant be that the said law, rel rized State ex Osowski the status he contemplation of the Purkett, and prior to the written arrest occupied 1995), sentencing uti or where the court position is that The state’s conviction....” repealed inapplicable and statute. lized because pointless writ is issuance of the Edwards, has prior conviction the existence of the hand, In the case at throughout the ex widely publicized been no claim that the sentence relator makes case, inju the of this litigation tended by law imposed exceeded that authorized argu .” This relator is “de minimus ry to juris had no sentencing judge the that frivolous. Under ment borders on the Instead, relator’s diction otherwise. and under sentencing court’s order he was denied sentenc claims—that statute, the rec is entitled to have relator judge imрroperly consid ing and that the regardless of expunged conviction ord of imposing prior conviction sen ered the expungement. practical effect court errors that tence—are mere trial cases, eligibility not been had penalty phase capital other condition 1. In the though based on actual extended of manifest the Court claim innocence met.” Id. Even challenge may be raised aggravating the notion of aсtual innocence aggravating that circumstances evidence clear it made in death circumstances penalty. eligible the death made defendant apply analysis does not actual that innocence 345-47, Sawyer Whitley, errors, "addition- such as to other (1992). A defen- S.Ct. dant 120 L.Ed.2d prevented mitigating that was al evidence “ penalty’ may of the death 'innocent aof claimed being as a result from introduced showing allowing to inno- in addition Id. at error.” сonstitutional that there was capital crime itself cence of or that some aggravating no circumstance However, respective Because habeas is unwar- those subsec- relief rules.5 (d) ranted, require relator is ordered remanded to the tion both rules that custody Department movant “shall declare the motion Corrections. However, all for relief for writ manda- movant listed claims granted, acknowledging mus is the writ known to movant is ordered to understanding any his that he waives issue. ground for relief known to the movant that PRICE, C.J., COVINGTON, (emphasis is not add- listed motion.” JJ., BENTON, HOLSTEIN and ed) concur. WHITE, J., opinion in separate dissents It’s from the record that clear filed. trial, Clay’s prior time of the second Mr. had not expunged conviction been re- WOLFF, J., in opinion concurs quired by statute. Court notes that WHITE, J. copy “[a] order came WHITE, Judge, dissenting. light only appeal after relator’s direct postconviction motion had been I. principal opinion denied.” The also ac- I respectfully provides dissent. Rule 91 knowledges year that as late as one that habeas relief is available to after denial Clay’s postconvic- of Mr. any person liberty restrained of his within motion, tion relief the circuit court clerk this state.1 The concludes that incorrectly advising Clay was still Clay since Mr. failed to expunge- raise the expunged. conviction ment issue his direct or his sub- upon Based the circuit сourt’s sequent post-conviction relief motion filed trial judge inappropriately considered the under petition proee- Rule 29.15 that his prior inappropriately ap- conviction and durally However, barred.2 Court this has 557.036.2(2), plied denying section Mr. “[ijnasmuch held as habeas Clay’s to right jury sentencing. a jurisdiction constitution, springs from the Clay’s Mr. lack of of knowledge this it may not be eliminated by statute or procedural claim until after all remedies ‍​​​​‌​‌‌​‌‌​​​‌​​‌‌​‌​‌‌‌​​‌​​​‌​‌​​​​‌‌​‌‌​​‌‌​‍rule.”3 Procedural default in remedies precise were time-barred reason was previously may provide available the basis appeals granted of Clay’s court Mr. for denying corpus, habeas Curiously, majority habeas writ. does may but this limitation be overcome all, not at address this issue and the establishing the grounds relied on were way impute it can so hold to knowledge during postconviction unknown Clay. of the trial court’s error to Mr. proceedings.4

Rule 91’s committee refer Analyzing The postconviction passed. relief had ma- injustice resulted.13 The Court manifest jority point have this other- must conceded the stan- adopts then “actual innocence” dispensed could have with Mr. they wise the by dard articulated States Su- United Clay’s simple application claim with a of preme define what con- narrowly Court 29.15(d) redefining as opposed to the Rule injustice.14 stitutes manifest Under injustice manifest standard. standard, petitioner must show a habeas proba- that “a constitutional violation has by entire issue discussed the Since the addressed, it in the conviction one who is bly not been resulted appeals court (W.D.Mo.1990); Beverly (Mo.App.1995). F.Supp. and v. 489 1348 6. 904 S.W.2d 89-0014-CV-W-9, Armontrout, WL No. 1990 Grandison, 904 v. S.W.2d 7. Merriweather 27, 1990). (W.D.Mo. July 126995 (Mo.App.1995). 489 Id. State, S.W.2d 573 8. White v. 779 S.W.2d rel. Simmons v. 866 13. State ex White, 866 S.W.2d 9. State ex rel. Simmons v. 445-46 478, 496, Carrier, Murray 477 U.S. 14. See Gammon, 440 947 10. Brown Delo, (1986) Schlup and 513 106 S.Ct. (Mo.App.1997). 298, 327, 130 L.Ed.2d 808 U.S. Delo, F.Supp. 11. Walls v. (1995). Armontrout, (E.D.Mo.1991); Fletcher v. actually innocent.”15 “with- Additionally, challenging actual innocence stаndard for innocence, out any “sentencing new even and the evidence convictions excess concededly the jurisdiction” employed existence meritorious standard for er- in sentencing. newly constitutional violation is not itself suffi- its Wearing rors jus- cient to miscarriage spun top establish a cloak of standards on appears tice.” longer by It this Court no Court Clay’s the dismisses prior case defining stating jurisdictional follows law “manifest he no raised issue injustice” or application the current court of improp- and the “mere trial error” 24.035(d) 29.25(d). Rules and erly considering the conviction does not concern his actual The ma- innocence. Immediately majority’s fatal the uti- simply jority cannot combine its discarded lization actual innocence standard juris- actual innocence standard with the regard Clay’s petition with to Mr. their sentencing dictional issue. own observation that it is inapplicable Spеcifically opinion his situation. the opinion principal The to further tries “[wjith exception jurisdiction notes that by mask the issue of stating penalty phase capital manifest judge jurisdic- the trial did not exceed by under the ‘actual stan- levying innocence’ tion the statu- sentence within applies that, event, dard only to the issue of guilt tory range any jurisdic- and can, innocence and is of avail no to claims of was not tion raised. This Court during other, error committed sentencing any jurisdiction can raise sua process.”17 The Court then sponte, jurisdictional identifies the defects cannot be standard for habeas relief sen- Clearly, waived.20 the trial exceed- tencing process but apply jurisdiction. refuses to it. ed his “A sentence fixed the court instead of when jury principal opinion explains, As the errors Act applicable Habitual Criminal is not in sentencing in non-capital cases are sub- Although punishment void.”21 as- ject to where a court imposes guidelines fell within sessed sentence excess of authorized fixed, jury could have defendant law18 a sentencing and where court based prejudiced jury was still because might repealed its decision on a inapplicable imposed punishment.22 have lesser statute.19 Instead applying appro- priate identified, standard at- trial judge ignored statutory tempts to use some magic precedential authority by thread to weave denying Mr. standards, together these two the Clay’s right to a trial pronouncing 15. Id. controversy grant determine the the relief prayed. State Tax Commission v. Administra- Commission, Hearing tive (Mo. Collins, 16. Herrera v. 1982), 55.27(g)(3). banc and Rule The (1993). S.Ct. L.Ed.2d 203 pronounce right sentencing a to criminal jurisdiction subject trial falls under matter Sawyer Whitley, 17. 505 U.S. may sponte any stage sua and raised at (1992). L.Ed.2d 269 proceedings. Purkett, 18. State ex rel. Osowskiv. 908 S.W.2d 107, 110(5) Bryant, 375 21. State v. 1995). (Mo. 1964). Bryant Note: The Court refer enced section 556.280 as the Habitual Crimi Edwards, 19. State v. 983 S.W.2d repealed replaced nal Act. This act was and section in 1979. state with 588.016 must plead prove prior and the defendant was a Grandison, 20. Merriweather v. 904 S.W.2d properly offender under section to 588.016 (Mo.App.1995), citing to suspend invoke section 557.036.2 and a de Mitchell, 563 S.W.2d jury right fendant’s to a trial. Subject jurisdiction matter concerns (Mo. sought, Wiley, cause action and the relief 22. State v. only when right exists ‍​​​​‌​‌‌​‌‌​​​‌​​‌‌​‌​‌‌‌​​‌​​​‌​‌​​​​‌‌​‌‌​​‌‌​‍the tribunal has the pri- a a defendant as imprоperly classified is Clay’s Mr. situation himself. sentence sentencing, and purposes of offender for set in State v. or with the standard analogous support is insufficient in this the evidence judge the trial Edwards.23 While statute, to a new trial finding, defendant is entitled apply repealed instance did not inapplicable statute all issues.”24 apply an he did not that he did sentencing power seize punishment was defendant’s Because exceeding clearly possess. With fixed, in his сrim- judgment improperly phase of sentencing jurisdiction his and the cause should be reversed inal case trial, corpus relief Clay’s Mr. trial. For these rea- for a new remanded own standard by this Court’s available respectfully I dissent. sons rejects the if the Court Edwards. Even knowledge lack of previously accepted injustice,” redefining “manifest juris- actions exceeded judge’s

the trial standard for habeas meeting

diction sentencing.

relief for errors III. Missouri, Respondent, STATE granted a writ of Clay Mr. Finally, expunge mandamus to that should have occurred tion—an action KAN- OF PLANNED PARENTHOOD years ago. The some sixteen AND MID-MISSOURI SAS clear, unequivo- “a Clay that Mr. finds of the St. Louis Parenthood Planned cal, specific, previously-adjudicated Appellants, Region, expunged prior conviction to have his right Department of records of the from the major- reason the For some Corrections.” Dempsey Director as the Maureen Clay’s supporting trouble ity has no Department the Missouri under section right tо this Health, Appellant. RSMo.1978, at 195.290, repealed; but now No. SC any statutory cannot find time same 557.036.2(2),a current- under section right Missouri, Supreme Court statute, Clay to have for Mr. ly effective En Banc. jury sentencing. received 31, 2001. Jan. constitutionally guaranteed not While jury right preserves right, Missouri 557.036.2(2). under section offender persistent if one is a

Only statutory right. “Such

does he lose found to sentencing has been

right courts right that our a valuable

be such ... a court has held that where long

have 111, Olson, (Mo.App. 520, (Mo. 112-113 806 S.W.2d v. banc 23. 983 S.W.2d 607, Finch, 1991); 746 S.W.2d State v. (Mo. McFall, 866 S.W.2d 24. State v. Meeks, 1988); 734 S.W.2d (Mo.App. State v. Harris, Accord, v. App.1993). State 1987); v. (Mo.App. State 1977); (Mo. Statе banc 475-476 S.W.2d (Mo.App.1986); State 937[4] S.W.2d Blackwell, 459 S.W.2d Tate, (Mo.App. 728-729[2-6] 657 S.W.2d Vermillion, 1970); State v. Wickizer, 1983); S.W.2d State Hill, 1969); State v. 1963); (Mo.App. 852-853[9] notes to case rules postconviction appeals relief motions filed under the court of correctly determined Rules 24.085 and as being postconviction 29.15 exclu- when lack of of a knowledge remedy sive in the situations identified claim rises to the level of manifest 91.01(b). 1. Rule See also 532.010 4. Id. See State section at 572. also ex rel. Simmons v. (RSMo.1994). White, 866 S.W.2d Simmons person, 5. Rule 24.035 allows after upon guilty plea, challenge tion based jurisdictional State, conviction on the basis 3. White v. counsel, assistance constitu- ineffective See Art. also section of the statutory tional and violations. Rule 29.15 Missouri constitution which states "that the privilege allows the same be filed in instances writ habeas will claims V, suspended," never be and Art. section 4. court trial conviction. today’s ruling In is not how will affect grant in order to habeas relief. Merri clear Grandison,6 White, Simmons, court weather v. stated: Merri- the decisions weather, rulings, and Brown. Will those injus- The of “manifest determination portions holding lack of pertinent or their tice,” course, calls for a broader in- knowledge procedurally cannot bar a claim pris- figure the quiry, into which would habeas, be for overruled? or diligence, oner’s own want of an by-passing deliberate available Court, binding not on this While strategy, as a matter which remedy оpportunity federal courts have might constitute of his habeas waiver interpret Rely- this area of Missouri law. corpus remedy.7 language on the v. White and ing standard, Applying ap- this the court of rules, this Court’s the federal courts have peals Clay’s that Mr. claim had determined 29.15 determined Rules 24.035 and do fingered lack diligence, not due to nor operate suspension writ not justifying it a trial strategy was deliberate corpus. Rule 91 remains available remedy. waiver of his hаbeas court .The persons after the confined Missouri appropriately granted him habeas relief. for relief under the other fifing time was not the first case Merriweather passed.11 has issue not known “[A]n rules courts lack of where Missouri addressed reasonably petition- or discoverable bring forth a on direct knowledge er in the he could file period which postconviction relief motion. for relief under Rule 24.035 29.15 can noted, previously As this Court articulated provide under Rule the basis for relief knowledge justify that lack of could 91.”12 v. State8 and Simmons v. relief White dictate, Following Court’s White.9 II. appeals granted court of Missouri’s very in these habeas relief situations.10 only options states Clay’s situation is no different. He to utilize a writ of habeas available had not was unaware that his record jurisdictional or in would to raise issues expunged until after the time-bar for exceptional that circumstances so rare and

Case Details

Case Name: Clay v. Dormire

Court Name: Supreme Court of Missouri

Date Published: Dec 5, 2000

Citation: 37 S.W.3d 214

Docket Number: SC 82331

Court Abbreviation: Mo.