Court of Appeals of Missouri, Southern District, Second Division
JAMES C. DUKE, Movant-Appellant,
STATE OF MISSOURI, Respondent-Respondent.
FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Thomas E.
Mountjoy, Circuit Judge
JEFFREY W. BATES, J.
Duke (Duke) appeals from an order denying his amended Rule
29.15 motion to set aside his convictions for first-degree
murder and armed criminal action (ACA) after an evidentiary
hearing. See §§ 565.020,
571.015. Procedurally, Duke questions the
timeliness of the amended motion. Substantively, he contends
the motion court clearly erred in denying the claim that
trial counsel was ineffective for failing to "call an
expert in developmental psychology to aid in his
defense." Because we conclude that the amended motion
was timely filed and that Duke's single point lacks
merit, we affirm.
March 2010, Duke shot and killed Kody Ray (Victim) on
Victim's front porch while his family was celebrating a
child's birthday party inside the home. Duke claimed he
acted in self-defense. He was 18 years old at the time.
charged with first-degree murder and ACA and tried by the
court after waiving his right to a jury trial. The trial
court found Duke guilty as charged and sentenced him to life
without parole for first-degree murder and 30 years'
incarceration for ACA. This Court affirmed Duke's
convictions on direct appeal. See State v. Duke, 427
S.W.3d 336, 337 (Mo. App. 2014). Thereafter, Duke sought
post-conviction relief. After an evidentiary hearing, the
motion court denied relief. This appeal followed.
of Duke's Post-Conviction Motions
we can address the merits of Duke's single point, we
first must determine whether his pro se and amended
motions for post-conviction relief were timely filed. See
Moore v. State, 458 S.W.3d 822, 826-27 (Mo. banc 2015);
Price v. State, 422 S.W.3d 292, 297 (Mo. banc 2014)
("appellate courts have a duty to enforce the mandatory
time limits" for post-conviction claims). The following
facts are relevant to the timeliness issue.
Duke's direct appeal, this Court issued its mandate on
May 7, 2014. Duke filed his pro se Form 40 motion to
vacate, set aside or correct the judgment on August 4, 2014,
which was within the 90-day time period to do so.
See Rule 29.15(b). Therefore, Duke's pro
se motion was timely filed.
February 24, 2015, counsel was appointed to represent Duke
and given 60 days to file an amended motion. When counsel
entered his appearance, he requested an extension of 30 days,
which the motion court granted. Counsel filed the amended
motion on May 26, 2015.
parties disagree about whether the amended motion was timely
filed, relying on their different methods of calculating the
filing deadline. Based upon our independent review of the
record, the amended motion was timely filed. Because neither
party's proposed calculation is correct, we deem it
prudent to provide a detailed explanation of how we
calculated the due date for the amended motion.
29.15(g) governs the time for filing an amended
post-conviction motion. The rule specifies an initial
deadline of 60 days, with one allowable extension of not more
than 30 days:
If an appeal of the judgment sought to be vacated, set aside,
or corrected is taken, the amended motion shall be filed
within sixty days of the earlier of:
(1) the date both the mandate of the appellate court
is issued and counsel is appointed or
(2) the date both the mandate of the appellate court is
issued and an entry of appearance is filed by any counsel
that is not appointed but enters an ...