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Cornelious v. State

Court of Appeals of Missouri, Western District, Special Division

February 7, 2017

OTIS CORNELIOUS, Appellant,
v.
STATE OF MISSOURI, Respondent.

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

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

          Cynthia L. Martin, 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.

         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).

         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.

         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 ...


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