Case Information
*1 SUPREME COURT OF MISSOURI en banc
WALTER BARTON, )
)
Appellant, )
)
vs. ) No. SC95139
)
STATE OF MISSOURI, )
)
Respondent. )
APPEAL FROM THE CASS COUNTY CIRCUIT COURT The Honorable R. Michael Wagner, Judge Opinion issued May 3, 2016
Walter Barton appeals the trial court’s judgment overruling his motion requesting
the court to find that he was abandoned by his post-conviction counsel and denying him
permission to supplement his post-conviction motion. This Court affirms. Since first
recognized by this Court in
Luleff v. State,
I. STATEMENT OF FACTS AND PROCEDURAL HISTORY
On the evening of October 9, 1991, Gladys Kuehler, the manager of an Ozark, Missouri, trailer park, was found lying in a pool of blood on the floor of her trailer. The cause of death was exsanguination as a result of more than 50 stab wounds, an ear-to-ear slitting of her throat that cut the jugular vein, and two X-shaped slash marks on her abdomen deep enough to cause evisceration. Ms. Kuehler’s body was found by her granddaughter, a neighbor, and Mr. Barton. Mr. Barton frequented the mobile home park where Ms. Kuehler kept her trailer and almost immediately became a suspect in part because he admitted being in Ms. Kuehler’s trailer between 2 and 2:30 p.m. the day of the murder. Mr. Barton later changed his story, saying that he had answered Ms. Kuehler’s telephone in her trailer at 3:15 p.m. the day of the murder. Police also found blood on Mr. Barton’s shirt that matched that of Ms. Kuehler. Police arrested Mr. Barton and charged him with Ms. Kuehler’s murder.
Mr. Barton’s first and second trials, held in 1991 and 1992, respectively, resulted
in mistrials. His third and fourth trials resulted in first-degree murder convictions and
death sentences, but both convictions later were set aside or vacated due to trial error or
*3
ineffective assistance of trial counsel. Mr. Barton’s fifth trial took place in March 2006.
The jury again found him guilty of first-degree murder and recommended a sentence of
death, whiсh the trial court imposed. On direct appeal, this Court affirmed his conviction
and death sentence.
State v. Barton,
On April 11, 2008, Mr. Barton filed a
pro se
Rule 29.15 motion for post-
conviction relief. The circuit court appointed a public defender to represent him, and the
Missouri State Public Defender System specially assigned Gary Brotherton and Amy
Bartholow
to represent Mr. Barton during his post-conviction proceedings.
Mr. Brotherton prepared and filed an amended post-conviction motion asserting six broad
grounds for relief,
[2]
within which the motion raised a total of 48 claims of error. In 2012,
Mr. Brotherton was permitted to withdraw as Mr. Barton’s post-conviction motion
counsel. Ms. Bartholow remained as counsel for Mr. Bartоn, and two other public
defenders also entered their appearance as his counsel. Following an evidentiary hearing,
the circuit court overruled his post-conviction motion. Mr. Barton appealed. In 2014,
this Court affirmed the denial of post-conviction relief.
Barton v. State,
One year later, Mr. Barton filed a motion requesting the post-cоnviction court to find he had been abandoned by his post-conviction counsel, Mr. Brotherton, and asking for permission to supplement his amended post-conviction motion with additional claims. In the motion, Mr. Barton alleged that Mr. Brotherton suffered from bipolar disorder and other personal issues at the time he prepared and filed Mr. Bаrton’s amended post- conviction motion and that as a result of this mental illness, Mr. Brotherton did not adequately research and did not artfully draft two claims in the amended motion. Mr. Barton claimed that this inadequacy ultimately led to a finding by this Court on appeal that these two points had been waived because they were not raised in the amended motion . Id. at 756. He also argued that Mr. Brotherton had raised many issues with little to no merit and failed to raise some of the most critical, obvious issues. In support, Mr. Barton filed the affidavit of Ms. Bartholow, who was Mr. Brotherton’s co- counsel at the time of Mr. Barton’s post-conviction proceedings. Ms. Bartholow indicated that, before receiving the case, Mr. Brotherton received a diagnosis of bipolar disorder and had been placed on medication for that condition.
In response, the State argued that far from abandoning Mr. Barton, Mr. Brotherton filed a lengthy amended post-conviction motion that alleged 48 claims and was timely filed. Any deficiencies in the filing, therefore, did not constitute abandonment. If there were deficiencies, they instead constituted possible claims of ineffective assistance of *5 post-conviction counsel and, the State said, claims of ineffectiveness of post-conviction counsel are categorically unreviewable under Missouri law. The motion court overrulеd Mr. Barton’s motion. Mr. Barton now appeals, arguing the motion court clearly erred in finding that his post-conviction counsel did not abandon him. Because Mr. Barton was sentenced to death, this Court has exclusive appellate jurisdiction under article V, section 10 of the Missouri Constitution. See also Standing Order, June 16, 1988 (effective July 1, 1988) (clarifying that pоst-conviction motions involving cases in which the defendant has been sentenced to death fall within this Court’s exclusive jurisdiction under the Missouri Constitution).
II. STANDARD OF REVIEW
Review of an order overruling a motion alleging abandonment of counsel during
post-conviction proceedings is limited to a determination of whether the motion court’s
findings and conclusions are clearly erroneous.
Rule 29.15(k). See Eastburn v. State,
400 S.W.3d 770, 773 (Mo. banc 2013), citing Gehrke v. State, 280 S.W.3d 54, 56 (Mo.
banc 2009)
. “Findings and conclusions are clearly erroneous if, after reviewing the entire
record, this Court is left with the definite and firm impression that a mistake has been
made.”
Eastburn,
III. MR. BARTON’S POST-CONVICTION COUNSEL DID NOT ABANDON HIM
A criminal defendant has a Sixth Amendment right to the appointment of
competent counsel when, as here, his or her liberty is at stake.
State ex rel. Missouri
*6
Public Defender Comm’n v. Waters, 370 S.W.3d 592, 597 (Mo. banc 2012)
;
see also
Gideon v. Wainwright, 372 U.S. 335, 339–40 (1963)
. But neither this Court nor the
federal courts have held that this Sixth Amendment right extends to the post-conviction
process.
See Martinez v. Ryan,
Rules 29.15, 29.16 and 24.035 govern the post-conviction process in Missouri courts. Those rules require the appointment of counsel when a defendant is indigent, but neither they nor any Missouri statute provides a defendant with a right to file a new or amended motion if his or her appointed or retained post-conviction counsel was ineffective. For this reason, this Court repeatedly has held, “The lack of any constitutional right to counsel in post-conviction proceedings … precludes claims based on the diligence or competence of post-conviction counsel ... and such claims are ‘categorically unreviewable.’” Price v. State, 422 S.W.3d 292, 297 (Mo. banc 2014) , *7 citing, Eastburn, 400 S.W.3d at 774; [3] Compare Martinez, 132 S. Ct. at 1320 (federal courts are not barred from considering claims of ineffectiveness of post-conviction counsel when, as is the case with Missouri, a state does not recognize claims of ineffectiveness of post-conviction counsel).
Rule 29.15(e) does require certain actions be undertaken by counsel, howevеr.
Counsel must:
[A]scertain whether sufficient facts supporting the claims are asserted in the [ pro se ] motion and whether the movant has included all claims known to the movant as a basis for attacking the judgment and sentence. If the motion does not assert sufficient facts or include all claims … counsel shall file an amended motion that sufficiently alleges the additiоnal facts and claims. If counsel determines that no amended motion shall be filed, counsel shall file a statement setting out facts demonstrating what actions were taken ….
Rule 29.15(e).
In
Luleff
and
Sanders
, this Court recognized that the failure to file an
amended motion or a statement setting out the facts demonstrating that no motion need be
filed is not merely a claim of inеffective assistance of counsel.
*8 In Luleff , the record reflected that movant’s post-conviction appointed counsel took no action whatsoever on movant’s behalf. 807 S.W.2d at 498 . Not only did appointed counsel not file an amended motion, counsel never entered his appearance in the case and there was no indication that he ever communicated with movant. Id . This Court remanded fоr a determination by the circuit court as to whether appointed counsel failed to meet the requirements of Rule 29.15(e) and, therefore, essentially “abandoned” his client. Id. The Court held, “If the court determines … that counsel has failed to act on behalf of the movant, the court shall appoint new counsel, allowing time to amеnd the pro se motion, if necessary ….” Id .
In
Sanders
– decided the same day as
Luleff
– movant’s appointed counsel
did
take
some action and determined that an amended motion was necessary but failed to timely
file that motion as required by Rule 29.15.
Since this Court recognized the claim in 1991, abandonment has been limited to
the two circumstances found in
Luleff
and
Sanders
: when counsel fails to act in a timely
*9
mаnner or fails to act at all in filing an amended motion.
[4]
Mr. Barton notes that this
Court has held that “[t]he precise circumstances, in which a motion court may find
abandonment, are not fixed ….”
Crenshaw v. State, 266 S.W.3d 257, 259 (Mo. banc
2008)
. In support of this statement,
Crenshaw
noted that in
McFadden v. State, 256
S.W.3d 103 (Mo. banc 2008),
this Court held that the failure by appointed counsel to file
movant’s
initial
post-conviction motion constituted abandonment. While Mr. Barton is
сorrect that
Crenshaw
so held, citing
McFadden
,
McFadden
’s holding later was clarified
and narrowed by this Court’s decision in
Price
.
Price
held that a claim of abandonment
by counsel does not apply to untimely
initial
motions, as those motions are to be filed by
the movant, not by counsel.
Price, 422 S.W.3d at 298
.
Price
said that cases such as
McFadden
, in which the movant took all reasonable actions to file a timely initial motion
but counsel interfered with its filing by telling the movant thаt counsel would file it, are
best understood as cases of third-party interference, not counsel abandonment.
Id. at
303–07
. Such third-party interference can also constitute a basis for allowing the filing
of a new motion for post-conviction relief
by the movant
.
Id.; see also Nicholson v. State,
Mr. Barton alleges that Mr. Brotherton suffered from a mental illness at the time
he represented Mr. Barton in post-conviction proceedings and that this caused
Mr. Brotherton to abandon him. But, assuming the facts alleged by Mr. Barton are true,
they do not constitute abandonment. Unlike counsel in
Luleff, Sanders,
and similar
abandonment cases, Mr. Brotherton filed a timely amended motion on behalf of
Mr. Barton asserting 48 claims and six grounds for relief. Mr. Barton’s allegation is that
this was inadequate because Mr. Brotherton failed to include “vital” issues in his
amended motion that were later deemеd waived on appeal. This in turn, Mr. Barton
argues, deprived him of the fair disposition of his Rule 29.15 proceeding. In other words,
*11
Mr. Barton is claiming that Mr. Brotherton’s illness made him miss claims he otherwise
would have brought. Mr. Barton’s claim is one of ineffective assistance of post-
conviction counsel, which is categorically unreviewable in Missouri state сourts.
Price,
Making this delineation between abandonment and ineffective assistance claims is essential both because it is required by Missouri law and because it clarifies for the federal courts that litigants who received ineffective assistance of post-conviction counsel may not obtain relief in Missouri state courts. Gehrke held that this is important because:
[T]he Court limits the scope of abandonment to preserve potential relief under federal habeas corpus proceedings. Federal habeas corpus proceedings require a movant to exhaust all available state remedies, including appeal and postconviction remedies, before bringing a federal claim. State court remedies are exhausted when they are no longer available, regardless of the reason for their unavailability. If the scope of abandonment were expanded further, it is foreseeable that federal habeas corpus claims could be denied due to a movant’s failure to bring a motion to reopen pоstconviction proceedings. This would frustrate the legitimate goals of a prompt comprehensive review and finality.
Mr. Barton nonetheless did file this claim of abandonment. The motion court did not clearly err in overruling it without an evidentiary hearing. His claim does not fit *12 within Missouri’s definition of “abandonment” and is not cognizable in Missouri courts.
IV. CONCLUSION
Mr. Bartоn’s post-conviction counsel did not abandon him during post-conviction proceedings under Missouri’s narrow definition of “abandonment.” Mr. Barton’s counsel filed an amended motion asserting 48 claims within six broad grounds for relief. By doing so, he did not abandon Mr. Barton. Whether he was ineffective in not raising other claims that Mr. Barton claims were both meritorious аnd should have been raised is not a claim that is cognizable in Missouri courts. The circuit court’s judgment is affirmed.
_________________________________ L AURA D ENVIR S TITH , J UDGE All concur.
Notes
[1] This Court found reversible error during Mr. Barton’s third trial when the circuit court
erroneously sustained the prosecution’s objection to defense counsel’s closing argument.
State v. Barton,
[2] The six grounds asserted were: (1) prosecutorial misconduct; (2) double jeopardy; (3) ineffective assistance of trial counsel; (4) ineffective assistance of appellate counsel; (5) cruel and unusual punishment under the Eighth Amendment; and (6) denial of due process by the passage of time.
[3] See also State v. Ervin, 835 S.W.2d 905, 928–29 (Mo. banc 1992) (holding that “abandonment” is not ineffective assistance of counsel and that allegations of ineffective assistance of counsel are categorically unreviewable), and Reuscher v. State, 887 S.W.2d 588, 591 (Mo. banc 1994) (holding that there is no constitutional right to effective counsel for the purpose of filing an initial motion for post-conviction relief).
[4] For example, in
Vogl v. State,