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Muhammad v. State

Court of Appeals of Missouri, Western District, Second Division

July 16, 2019

UMAR MUHAMMAD, Appellant,
v.
STATE OF MISSOURI, Respondent.

          Appeal from the Circuit Court of Jackson County, Missouri The Honorable Bryan Round, Judge

          Before Thomas N. Chapman, P.J., Mark D. Pfeiffer, and Cynthia L. Martin, JJ.

          THOMAS N. CHAPMAN, PRESIDING JUDGE

         Umar Muhammad[1] appeals from the judgment of the Jackson County Circuit Court denying his amended Rule 29.15 motion for post-conviction relief. After an evidentiary hearing, the motion court found that, due to untimely filing of his initial 29.15(b) motion, Muhammad had waived his right to proceed under Rule 29.15; and also found that, were his claims not barred, they nonetheless failed on the merits. On appeal, Muhammad argues that the untimely filing of his initial 29.15(b) motion should have been excused due to third party interference. He further maintains that the motion court erred in denying his claims that his trial counsel was ineffective for failing to fully develop a defense that Muhammad was misidentified as the shooter and for failing to argue that Muhammad acted in self-defense. We affirm.

         Statement of Facts

         Muhammad was tried before a jury in the Jackson County Circuit Court on four separate charges alleging that, on May 19, 2011, he shot and killed Mohamed Hussein, and that he shot at, but did not injure, Anwar Ali, at a park in Kansas City, Missouri. The jury found Muhammad guilty and the trial court imposed concurrent sentences of 30 years for second degree murder, 15 years for assault in the first degree, and five years on each of the two armed criminal action charges. As directed by Rule 29.07[2], after sentencing, the trial court confirmed with Muhammad's trial counsel that Muhammad had been advised of the rights afforded him under Rule 29.15.[3] A signed acknowledgement of defendant's rights under Rule 29.15 was filed on October, 17, 2013.

         On direct appeal, Muhammad was initially represented by appointed counsel. On September 22, 2014, appointed counsel moved to withdraw; and on the next day Muhammad's private counsel (referred to herein as "Attorney J.") filed his entry of appearance, which stated: "Because the appellant is no longer indigent, he consents to the public defender's forthcoming motion for leave to withdraw."[4]

         This Court affirmed Muhammad's convictions in his direct appeal. State v. Muhammad, 478 S.W.3d 468 (Mo. App. W.D. 2015). After Muhammad's request for transfer was denied, our mandate was issued on January 27, 2016. Pursuant to Rule 30.24(b), a copy of the mandate was sent to Department of Corrections; and was also mailed to the Jackson County Circuit Clerk, to counsel for the State, and to Attorney J.

         On July 18, 2016, Muhammad filed his pro se Rule 29.15 motion in the instant action, 174 days after the issuance of our mandate in his direct appeal. The motion court appointed counsel, an amended motion was filed, and the State filed its response.

         In his testimony at the motion hearing, Muhammad indicated that Attorney J. told him that he had up to 180 days after the issuance of the mandate to file his initial motion; that Attorney J. said he would come to the prison to assist Muhammad in filing the motion; and that he relied on Attorney J.'s advice in determining when to file his initial 29.15(b) motion. At the motion hearing, Attorney J. confirmed that he had incorrectly advised Muhammad that he had 180 days from the issuance of the mandate to file his Form 40 post-conviction motion. Attorney J. testified that he told Muhammad that he would "help in any way [he could]" to get his initial 29.15(b) motion filed; and "even told [Muhammad] that [he] would make arrangements to meet with him at the prison to do so."

         The motion court issued Findings of Fact, Conclusions of Law, and a Judgment denying relief. This timely appeal followed.

         Standard of Review

         Our review of a motion court's denial of post-conviction relief is limited to establishing whether the findings and conclusions of law are clearly erroneous. Fields v. State, 541 S.W.3d 45, 48 (Mo. App. W.D. 2018). "A motion court's findings and conclusions are clearly erroneous if this Court 'is left with the definite and firm impression that a mistake has been made' after a review of the entire record." Id. (quoting Propst v. State, 535 S.W.3d 733, 735 (Mo. banc 2017)).

         Analysis

         In its judgment, the motion court held that "[t]he movant's motion was untimely filed and thus is a complete waiver of his right to proceed." In his first point on appeal, Muhammad claims that the motion court erred in this finding because his failure to timely file his initial Rule 29.15 motion should have been excused due to the active interference of Attorney J.[5]

         Rule 29.15(b) indicates that, where there has been a direct appeal, "the [Rule 29.15] motion shall be filed within 90 days after the date the mandate of the appellate court issues affirming such judgment or sentence." Muhammad filed his initial motion at least 174 days after we issued our mandate in his direct appeal - at least 84 days after the 90-day deadline set out under Rule 29.15(b). Rule 29.15(b) further provides that "[f]ailure to file a motion within the time provided by this Rule 29.15 shall constitute a complete waiver of any right to proceed under this Rule 29.15 and a complete waiver of any claim that could be raised in a motion filed pursuant to this Rule 29.15."

         Individuals convicted of state crimes have "no federal constitutional right to a state post-conviction proceeding[.]" Price v. State, 422 S.W.3d 292, 296 (Mo. banc 2014) (quoting Smith v. State, 887 S.W.2d 601, 602 (Mo. banc 1994)). States provide post-conviction remedies at their discretion. Id. In Missouri, Rule 29.15[6] is the exclusive remedy for an inmate who seeks post-conviction relief after a trial. Id. Under that scheme, the movant is solely responsible for filing an initial motion asserting any claims of error within the time set forth in the rule. Id. at 297; see also Rule 29.15(b), (d). "[C]ounsel will be appointed for all indigent inmates if, but only after, the inmate timely files his initial motion." Price, 422 S.W.3d at 297; Rule 29.15(e). Because there is no constitutional right to post-conviction relief, claims of ineffective assistance of post-conviction counsel are only cognizable where a court finds that the "'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 v. State, 807 S.W.2d 495, 497 (Mo. banc 1991)). Since a movant is only entitled to counsel upon the initial filing of their motion, until this has occurred, claims that post-conviction counsel is incompetent or not diligent are "categorically unreviewable." Id. at 297.

         When filing that initial motion, Missouri Courts have been clear that compliance with the deadlines set forth in Rule 29.15(b) are mandatory. Watson v. State, 520 S.W.3d 423, 434 (Mo. banc 2017) ("The post-conviction filing deadlines are mandatory and failure to adhere to these deadlines imposes a harsh consequence-the complete waiver of the right to seek post-conviction relief and a complete waiver regarding all claims that could be raised in a Rule 29.15 motion.").

         However, late filing may be excused when a movant has shown that "the timely filing of the motion is prevented by the 'active interference' of a third party." Fields, 541 ...


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