Court of Appeals of Missouri, Western District, Special Division
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
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,
and Procedural History
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).
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).
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.
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.
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).
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
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.
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
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