Case Number: WD79204

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

Court: In the Missouri Court of Appeals Western District

Plaintiff's Attorney:

Shaun Mackelprang

Defendant's Attorney:

Kent E. Gipson

Description: 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.
3

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).
4

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.

1Retained 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. 2The 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.
5

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.
6

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,
7

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
8

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
9

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

3The 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).
10

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
11

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

4Rules 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)).
12

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.

13

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.

5The 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, postconviction 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.
14

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

Outcome: