Otis Cornelious v. State of Missouri

In the
Missouri Court of Appeals
Western District
OTIS CORNELIOUS, )
)
Appellant, ) WD79204
)
v. ) OPINION FILED: February 7, 2017
)
STATE OF MISSOURI, )
)
Respondent. )

Appeal from the Circuit Court of Jackson County, Missouri
The Honorable Jack R. Grate, Judge

Before Special Division: Cynthia L. Martin, Presiding Judge, James E. Welsh, Judge and
Gary D. Witt, Judge

Otis Cornelious ("Cornelious") appeals from the denial of a motion for post-

conviction relief claiming abandonment of counsel. Cornelious argues that the motion

court clearly erred because he was abandoned when retained post-conviction counsel failed

to file an amended Rule 29.15 motion, and because retained post-conviction counsel,

having served as movant's counsel on direct appeal, had a conflict of interest that impaired

the assertion of claims of ineffective assistance of appellate counsel. Because the

abandonment doctrine does not extend to retained post-conviction counsel, we affirm.
 Factual and Procedural History

A jury convicted Cornelious of first-degree murder and armed criminal action on

September 29, 2005. Cornelious retained counsel to represent him on direct appeal

("Retained Counsel"). We affirmed the convictions in State v. Cornelious, 258 S.W.3d

461 (Mo. App. W.D. 2008).

Cornelious used Retained Counsel to pursue post-conviction relief pursuant to Rule

29.15. Retained Counsel filed a timely Rule 29.15 motion and accompanying

memorandum (collectively "Rule 29.15 Motion") which alleged that Cornelious received

ineffective assistance of counsel because trial counsel failed to object timely to comments

regarding Cornelious's post-arrest silence and neglected to investigate fingerprint evidence.

Retained Counsel did not file an amended motion asserting new claims beyond those

asserted in the Rule 29.15 Motion. Following a hearing, the motion court denied

Cornelious's Rule 29.15 Motion. We affirmed in Cornelious v. State, 351 S.W.3d 36 (Mo.

App. W.D. 2011).

Cornelious filed a motion for post-conviction relief due to abandonment

("Abandonment Motion") on July 11, 2014. The Abandonment Motion alleged that

Cornelious was abandoned during his Rule 29.15 post-conviction proceedings because

Retained Counsel failed to file an amended motion as required by Rule 29.15(e), and

because Retained Counsel had a conflict of interest having represented Cornelious on direct

appeal. Following a hearing, the motion court denied the Abandonment Motion on its

merits.

Cornelious appeals.

2
 Standard of Review

Our review of a motion court's denial of a motion to reopen a post-conviction case

due to abandonment by post-conviction counsel is limited to determining whether the

motion court's findings of fact and conclusions of law are clearly erroneous. Gehrke v.

State, 280 S.W.3d 54, 56 (Mo. banc 2009). "A motion court's findings and conclusions are

clearly erroneous only if the Court, after reviewing the entire record, is left with the definite

and firm impression that a mistake has been made." Id. at 56-57.

It is also our duty, however, to enforce post-conviction rules as they are written.

"'[T]he rules of court are binding on courts, litigants, and counsel, and it is the court's duty

to enforce them.'" Dorris v. State, 360 S.W.3d 260, 268 (Mo. banc 2012) (quoting

Sitelines, LLC v. Pentstar Corp., 213 S.W.3d 703, 707 (Mo. App. E.D. 2007)). The State

cannot waive noncompliance with the strict and mandatory provisions of post-conviction

rules. See, e.g., id. (holding that "[t]he State cannot waive . . . the time limits in Rules

29.15 and 24.035" even if the issue is not raised in the motion court). Thus, if a movant is

barred as a matter of law from recovery pursuant to the plain language of Rule 29.15 or

Rule 24.035, then it is our duty to enforce the rules and to deny the movant relief, even

though the basis for doing so was not raised by the State before the motion court, and even

though the motion court did not address the issue. See, e.g., Rinehart v. State, No.

WD78708, 2016 WL 6440421, at *1 (Mo. App. W.D. Nov. 1, 2016) (holding that an

appellate court is bound to deny movant's post-conviction relief if the motion was untimely

even though the State did not raise the issue in the motion court, and the motion court did

not address the issue).

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 Analysis

Cornelious asserts two points on appeal. In his first point, Cornelious argues that

he was abandoned because Retained Counsel did not file an amended Rule 29.15 motion

asserting additional claims of ineffective assistance of counsel beyond those asserted in the

Rule 29.15 Motion, in violation of Rule 29.15(e) and (g).1 In his second point, Cornelious

argues that he was abandoned because Retained Counsel had an actual conflict of interest

having represented him on direct appeal. Cornelious's points on appeal presume that the

abandonment doctrine applies to retained counsel. The State argues that Cornelious's

points on appeal are without merit because the abandonment doctrine does not apply to

retained counsel in post-conviction proceedings. This is an issue of first impression in the

Western District.2

The motion court did not address whether the abandonment doctrine applies to

retained counsel in post-conviction proceedings. Rather, the motion court evaluated the

merits of the Abandonment Motion presuming application of the abandonment doctrine to

retained counsel, and denied the motion on its merits. We are bound, however, to first

determine whether Cornelious's Abandonment Motion asserts a cognizable claim.

1
Retained Counsel filed amended memoranda in support of the Rule 29.15 Motion, asserting additional
facts and circumstances in support of the two claims asserted in the Rule 29.15 Motion, a fact Cornelious concedes.
Cornelious's complaint is not that Retained Counsel filed nothing by way of an amended motion, but instead, that no
additional claims were filed by way of amended motion, including claims that would implicate the effective
assistance of appellate counsel.
2
The Eastern District considered this very issue in Gittemeier v. State, No. ED103189, 2016 WL 5107095
(Mo. App. E.D. Sept. 20, 2016), and concluded that the abandonment doctrine does not apply to retained counsel.
Id. at **3-5. The Eastern District transferred Gittemeier to the Missouri Supreme Court on its own motion pursuant
to Rule 83.02. The case was argued before the Supreme Court on January 12, 2017, but remains pending. See
Gittemeier v. State, SC95953.

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 We conclude that it does not. Because the abandonment doctrine exists solely to

protect the statutory right to counsel afforded to indigent movants by Rules 24.035(e) and

29.15(e), and because there is otherwise no constitutional or statutory right to counsel in

post-conviction proceedings, the abandonment doctrine does not apply to redress the

alleged failure of retained counsel to file, at all or timely, an amended motion in post-

conviction proceedings.

A.

There is no right to counsel in post-conviction proceedings except the right to counsel
created by Supreme Court Rule for indigent movants

While the Sixth Amendment provides that a criminal defendant has a right to the

appointment of counsel when his or her liberty is at stake, both our Supreme Court and the

federal courts have held that the Sixth Amendment right to counsel does not extend to post-

conviction proceedings. Barton v. State, 486 S.W.3d 332, 336 (Mo. banc 2016). Post-

conviction relief "is not part of the criminal proceeding itself, and it is in fact considered

to be civil in nature." Pennsylvania v. Finley, 481 U.S. 551, 557 (1987). Nor do the

Fourteenth Amendment's Due Process or Equal Protection Clauses require a defendant,

indigent or otherwise, to be appointed counsel in post-conviction proceedings. Id. (holding

that if States elect to provide post-conviction relief, neither "the fundamental fairness

mandated by the Due Process Clause" nor the equal protection guarantee "require that the

State supply a lawyer"). Thus, "[s]tates have substantial discretion to develop and

implement programs to aid prisoners seeking to secure postconviction review." Id. at 559.

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This discretion extends to whether to afford movants with the right to assistance of counsel

in post-conviction proceedings. Smith v. State, 887 S.W.2d 601, 602 (Mo. banc 1994).

"In 1988, [our Supreme Court] exercised this discretion by adopting Rule 29.15 as

the single, unified procedure for inmates seeking post-conviction relief after trial." Price

v. State, 422 S.W.3d 292, 296 (Mo. banc 2014); see also Rule 29.16 (setting forth

additional procedural requirements in post-conviction proceedings when a Rule 29.15

motion is filed to set aside a death sentence); Rule 24.035 (setting forth the post-conviction

procedure for those movants who plead guilty). The purpose of these rules is twofold --

"to 'adjudicate claims concerning the validity of the trial court's jurisdiction and the legality

of the conviction or sentence'" while simultaneously "'avoiding delay in the processing of

prisoners' claims and preventing the litigation of stale claims.'" Price, 422 S.W.3d at 296

(quoting State ex rel. Nixon v. Daugherty, 186 S.W.3d 253, 254 (Mo. banc 2006)). In other

words, the rules seek to correct "'post-conviction claims that present a genuine injustice'"

while "'bringing finality to the criminal process.'" Id. (quoting White v. State, 939 S.W.2d

887, 893 (Mo. banc 1997)).

In formulating post-conviction rules, the Supreme Court elected to create a limited

right to counsel for indigent movants. Id. at 297. Rules 24.035 and 29.15 provide, in

addressing "Pro Se Motion[s]," that "[w]hen an indigent movant files a pro se motion, the

court shall cause counsel to be appointed for the movant." Rule 24.035(e); Rule 29.15(e)

(emphasis added). These rules have "the force and effect of law." MO. CONST. art. V,

section 5. Appointed counsel for indigent movants helps to ensure thorough review of

post-conviction claims while limiting delay to the finality of the criminal conviction. Price,

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422 S.W.3d at 297. However, both Rules 24.035(e) and 29.15(e) place the burden on an

indigent movant to timely file a pro se initial motion. In other words, an indigent post-

conviction movant is not entitled to the assistance of counsel to timely initiate a Rule

24.035 or Rule 29.15 proceeding, and the burden to do so rests solely on the movant. Price,

422 S.W.3d at 297 ("Rule 29.15(e) . . . provides that counsel will be appointed for all

indigent inmates if, but only after, the inmate files his initial motion.").

Beyond the limited right to counsel created by Rules 24.035(e) and 29.15(e) for

indigent movants who timely file an initial motion, there is no right to the assistance of

counsel in post-conviction proceedings. Plainly, the limited right to counsel created by

Rules 24.035(e) and 29.15(e) does not extend to non-indigent post-conviction movants.

B.

The abandonment doctrine was created to protect the right to counsel afforded by Rules
24.035(e) and 29.15(e), and in the absence of a right to counsel pursuant to those Rules,
the abandonment doctrine has no application

"The lack of any constitutional right to counsel in post-conviction proceedings . . .

precludes claims based on the diligence or competence of post-conviction counsel

(appointed or retained), and such claims are 'categorically unreviewable.'" Price, 422

S.W.3d at 297 (quoting Eastburn v. State, 400 S.W.3d 770, 774 (Mo. banc 2013)). Here,

it is beyond dispute that Cornelious's complaints involve the diligence or competence of

Retained Counsel. The claims are thus "categorically unreviewable," barring an applicable

exception to this foundational principle of post-conviction review.

As noted, Rules 24.025(e) and 29.15(e) reflect our Supreme Court's policy to

provide appointed counsel to indigent post-conviction movants who have otherwise timely

7
filed a post-conviction motion. Id. "With two such important policies (i.e., the Court's

decision to provide counsel for all indigent inmates and the Court's steadfast refusal to

acknowledge claims based on ineffectiveness of post-conviction counsel), a collision was

bound to occur." Id. "Luleff and Sanders mark the Court's resolution of that conflict." Id.

In Luleff v. State, 807 S.W.2d 495 (Mo. banc 1991), and Sanders v. State, 807 S.W.2d 493

(Mo. banc 1991), our Supreme Court created the abandonment doctrine. The parameters

of the abandonment doctrine have since been the topic of considerable debate, though Price

went to great lengths to clarify the limited reach of the doctrine.

In Luleff, appointed counsel for an indigent post-conviction movant took no action.

807 S.W.2d at 496. This violated Rule 29.15(e) which requires "counsel [appointed under

Rule 29.15(e)] to investigate the claims raised in the inmate's timely initial motion and then

file either an amended motion or a statement explaining why no amended motion is

needed." Price, 422 S.W.3d at 297. After the motion court denied the indigent movant's

pro se motion, the movant appealed, arguing that his appointed counsel wholly failed to

act on his behalf and requesting that the case be remanded for new appointed counsel to

"provide the 'minimal level of assistance contemplated by the postconviction rules.'"

Luleff, 807 S.W.2d at 496-97. The Court in Luleff agreed, and found "that 'a complete

absence of performance' by appointed counsel is tantamount to a failure of the motion court

to appoint counsel under Rule 29.15(e) in the first instance." Price, 422 S.W.3d at 298

(quoting Luleff, 807 S.W.2d at 498). "Luleff holds that the only way to restore the motion

court and parties to the position Rule 29.15(e) intends for them is for the motion court to

8
appoint new counsel and allow additional time for this counsel to perform the duties

required by Rule 29.15(e)." Id. (interpreting Luleff, 807 S.W.3d at 497-98).

Similarly, in Sanders, decided the same day as Luleff, appointed counsel did not fail

to perform, as he filed an amended motion on behalf of the indigent movant. 807 S.W.2d

at 494-95. However, "appointed counsel . . . failed to file the amended motion in a timely

manner."3 Price, 422 S.W.3d at 298 (citing Sanders, 807 S.W.2d at 494-95). Sanders held

"that the purposes of Rule 29.15(e) are frustrated as much by appointed counsel's failure to

follow through with a timely amendment as by the 'complete absence of performance' in

Luleff." Id. (citing and interpreting Sanders, 807 S.W.2d at 494-95). If the failure to file a

timely amended motion is a result of inattention of appointed counsel, then an indigent

movant shall be permitted to file an amended motion out of time so as to restore the

intended effect of Rule 29.15. Sanders, 870 S.W.2d at 495.

Plainly, "the rationale behind the creation of the abandonment doctrine . . . was not

a newfound willingness to police the performance of postconviction counsel generally."

Price, 422 S.W.3d at 298. "Instead, the doctrine was created to further the Court's

insistence that Rule 29.15(e) be made to work as intended." Id. "Rule 29.15(e) requires

the motion court to appoint counsel to perform certain tasks and, under Luleff and Sanders,

counsel's complete failure to do so leaves everyone (including the appellate courts) in the

same practical position as if the motion court had failed to make the appointment at all."

Id. at 303. As the abandonment doctrine was designed only to protect the rights afforded

3
The timeliness of amended motions is now addressed by Rules 24.035(g) and 29.15(g). At the time of
Luleff and Sanders, that subject was addressed by Rules 24.035(f) and 29.15(f).

9
by Rules 24.035(e) and 29.15(e), Price held that "[e]xtensions of this doctrine that do not

serve this same rationale must not be indulged." Id. at 298 (emphasis added).

[T]he abandonment doctrine adopted in Luleff and Sanders was not a
wholesale repudiation of [the practice not to permit postconviction
proceedings to be used to challenge the effectiveness of postconviction
counsel]. Instead, the Court adopted an exception purposely limited both in
its rationale (i.e., to enforce the requirements and ensure the benefits of Rule
29.15(e)) and in its application (i.e., to amended motions filed by appointed
counsel).

Id.

Cornelious's points on appeal argue that he was abandoned because Retained

Counsel did not file an amended motion to assert claims beyond those asserted in the initial

Rule 29.15 Motion, and could not have adequately done so as Retained Counsel had a

conflict of interest. The essential premise of Cornelious's request is that the abandonment

doctrine's rationale--to ensure that Rule 29.15(e) is made to work as intended--will be

served by extension of the doctrine to Retained Counsel. Price, 422 S.W.3d at 298. We

disagree.

Rule 29.15(e) does not impose duties or obligations on retained counsel. After the

first sentence of Rules 24.035(e) and 29.15(e), which directs that a court "shall cause

counsel to be appointed" for an indigent movant who has filed a pro se motion, Rules

24.035(e) and 29.15(e) continue to describe appointed counsel's obligations:

Counsel shall ascertain 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 [pro se] motion does not assert sufficient facts or include all
claims known to the movant, counsel shall file an amended motion that
sufficiently alleges the additional facts and claims. If counsel determines
that no amended motion shall be filed, counsel shall file a statement setting

10
 out facts demonstrating what actions were taken to ensure that (1) all facts
supporting the claims are asserted in the pro se motion and (2) all claims
known to the movant are alleged in the pro se motion. The statement shall
be presented to the movant prior to filing. The movant may file a reply to
the statement not later than ten days after the statement is filed.

This language applies only to describe the obligations imposed on appointed counsel.

Price, 422 S.W.3d at 303 (holding that "Rule 29.15(e) deals only with appointed counsel

and amended motions"). Rules 24.035(e) and 29.15(e) create no right to counsel for non-

indigent movants, and impose no duty on retained counsel to either file an amended motion

or to file a statement explaining why an amended motion need not be filed.4 As the

abandonment doctrine seeks only to enforce Rules 24.035(e) and 29.15(e), it follows that

a movant cannot claim abandonment based on the actions or inactions of retained counsel

when neither Rule imposes a duty on retained counsel.

On two occasions, our Supreme Court similarly relied on the plain language of

Rules 24.035(e) and 29.15(e) to refuse to extend the abandonment doctrine beyond the

subject of those Rules--amended post-conviction motions. In Bullard v. State, our Supreme

Court refused to extend the abandonment doctrine to an untimely initial motion. 853

S.W.2d 921, 922-23 (Mo. banc 1993). Instead, a claim that counsel failed to timely file an

initial motion is not abandonment and is instead an impermissible claim of ineffective

4
Rules 24.035(g) and 29.15(g), which address when an amended motion must be filed if one is filed, apply
by their plain terms regardless to any amended motion, whether filed by a movant, appointed counsel, or retained
counsel. However, Rules 24.035(g) and 29.15(g) do not address whether an amended motion must be filed, or the
process required to determine whether an amended motion should be filed. Rules 24.035(e) and 29.15(e) address
these subjects, and apply only where counsel is appointed for indigent pro se movants. Thus, the untimely filing of
an amended motion supports a claim of abandonment, but only with respect to appointed counsel because, as noted
in Sanders, the untimely filing of an amended motion by appointed counsel effectively deprives indigent movants of
the assistance of counsel afforded by Rule 24.035(e) and Rule 29.15(e). 870 S.W.2d at 495 (holding that failing to
file an amended motion in a timely manner is indistinguishable from a complete absence of performance as required
of appointed counsel pursuant to Rule 29.15(e)).

11
assistance of post-conviction counsel. Price, 422 S.W.3d at 300 (citing Bullard, 853

S.W.2d at 922-23).

The same result was reached in Price, where the Court was asked to extend the

abandonment doctrine to the tardy filing of an initial motion. Id. at 295. The Price Court

held that the abandonment doctrine is limited to amended motions (the subject of Rule

29.15(e)) because the doctrine "was created to further the Court's insistence that Rule

29.15(e) be made to work as intended" by "excus[ing] the untimely filing of amended

motions by appointed counsel." Id. at 298, 297 (emphasis omitted).

Though Price and Bullard were not asked to determine whether the abandonment

doctrine extends to address the performance of retained counsel, the rationale both cases

employed to refuse to extend the abandonment doctrine beyond amended motions is

nonetheless instructive, if not controlling. As Price noted, "[t]he Court's wariness in

Bullard of ineffective assistance claims masquerading as abandonment claims is justified."

422 S.W.3d at 300. "'Claims of abandonment [must be] reviewed carefully to ensure that

the true claim is abandonment and not a substitute for an impermissible claim of ineffective

assistance of post-conviction counsel.'" Id. (quoting Taylor v. State, 254 S.W.3d 856, 858

(Mo. banc 2008)).

Bullard notes that, when properly confined to the filing of amended motions
by appointed counsel, the abandonment doctrine survives such scrutiny
because it seeks only to enforce Rule 29.15(e), and does not purport to
supervise the quality of representation that an inmate receives--but has no
constitutional right to receive--during post-conviction proceedings.

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Id. (emphasis added).5 Bullard and Price both found that this line was crossed by a

movant's claim that counsel failed to timely file an initial post-conviction motion, as Rule

29.15(e) affords a movant no right to the assistance of counsel to file an initial post-

conviction motion. The line is similarly crossed by a movant's claim that retained counsel

failed to file an amended motion, as Rule 29.15(e) applies only to counsel appointed for

indigent movants.

Bullard and Price "refuse[d] to extend the abandonment doctrine--created solely to

enforce the provisions of Rule 29.15(e) regarding appointed counsel and amended

motions" to late-filed initial motions. Price, 422 S.W.3d at 301. We similarly refuse to

extend the abandonment doctrine to address the performance of retained counsel in post-

conviction proceedings as such claims do not implicate the provisions of Rule 24.035(e) or

29.15(e) as a matter of law. Post-conviction movants have no right to the assistance of

counsel unless indigent. And though they may elect to retain counsel to represent their

interests, "by doing so, [non-indigent movants] [take] the same risk that every other civil

litigant takes when retaining counsel, i.e., [they choose] to substitute counsel's performance

for [their] own and [bind themselves] to the former as though it were the latter." Id. at 302.

5
The dissenting opinion in Price disagreed with the majority's conclusion that the abandonment doctrine
does not extend to late-filed initial post-conviction motions. Price, 422 S.W.3d at 308 (Stith, J., dissenting).
However, the basis for the dissent's disagreement centers on interpretation of the Court's holding in McFadden v.
State, 256 S.W.3d 103 (Mo. banc 2008), and not on construction of Rule 29.15(e). Id. In McFadden, post-
conviction relief was afforded where appointed trial counsel told a movant to send his initial motion to her for filing,
then failed to timely file the motion. 256 S.W.3d at 109. The majority in Price held that McFadden "is an
application of the active interference exception, not an expansion of the abandonment doctrine beyond the carefully
circumscribed environs of Luleff and Sanders." 422 S.W.3d at 303. The dissent argued that the rationale in
McFadden had been based on the abandonment doctrine. Id. at 308-12. The dissent in Price did not address the
plain language of Rule 29.15(e), and thus did not address whether Rule 29.15(e) is limited in its scope to the filing
of amended motions by appointed counsel.

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 We therefore conclude that the performance of Retained Counsel, even if deficient

(a determination we do not make here), "[did] not violate [Cornelious's] constitutional

rights and [is] not tantamount to a violation of the motion court's obligations under Rule

29.15(e)." Id. Thus, the abandonment doctrine has no application to retained counsel in

post-conviction proceedings, and Cornelious's Abandonment Motion is not cognizable.

Points One and Two on appeal are denied.6

Conclusion

We affirm the trial court's judgment denying the Abandonment Motion.

__________________________________
Cynthia L. Martin, Judge

All concur

6
Cornelious's Point Two is also without merit because his claim that Retained Counsel had a conflict of
interest is at best invited error as Cornelious chose the same counsel to represent him in his post-conviction
proceedings as represented him on appeal. See Jennings v. State, 406 S.W.3d 52, 59 (Mo. App. S.D. 2013).

14