Muhammad v. State, 579 S.W.3d 291 (2019)

July 16, 2019 · Missouri Court of Appeals, Western District · WD 81319
579 S.W.3d 291

Umar MUHAMMAD, Appellant,
v.
STATE of Missouri, Respondent.

WD 81319

Missouri Court of Appeals, Western District.

OPINION FILED: July 16, 2019

Damien De Loyola, Kansas City, MO, Counsel for Appellant.

Gregory Barnes, Jefferson City, MO, Counsel for Respondent.

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

Thomas N. Chapman, Presiding Judge

Umar Muhammad1 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 29.072 , after sentencing, *293the 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."

*294The 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 29.156 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 *295(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 S.W.3d at 48. In Fields we further indicated:

[W]here an inmate writes his initial post-conviction motion and takes every step he reasonably can within the limitations of his confinement to see that the motion is filed on time, a motion court may excuse the inmate's tardiness when the active interference of a third party beyond the inmate's control frustrates those efforts and renders the inmate's motion untimely.

Id. (quoting Price , 422 S.W.3d at 302 ).

Courts have applied this exception in a number of situations where an inmate has shown that they completed the motion and gave it to their appointed counsel prior to the expiration of the deadline but, for a variety of reasons, appointed counsel failed to timely file the prepared motion. Id. at 49. Courts have also applied the exception when another, external factor, intervened to prevent the timely filing. Id. at 49-50.

Muhammad does not contend that he timely prepared his initial 29.15(b) motion. Instead, he asserts that his appellate counsel actively interfered by giving him incorrect advice regarding the time to file his motion. In particular, Muhammad contends that, if counsel had not provided erroneous information regarding the filing deadline, he would have timely prepared and filed his Rule 29.15 motion. Muhammad fails to address (or even acknowledge) that he hired Attorney J.; and entirely fails to address the significance of that choice.

The circumstances leading up to the Muhammad's late filing of his initial 29.15(b) motion are very similar to the circumstances in Price , supra. Muhammad and Attorney J. testified that Attorney J. advised Muhammad regarding the time to file his motion; that Attorney J. had agreed to assist in the preparation of that motion; and that Attorney J. would then make certain that it was timely filed. Both agree that Attorney J. incorrectly advised Muhammad regarding the filing deadline, and, due to that erroneous advice, the motion was not timely filed. In Price , as in the instant case, the movant was convicted in a jury trial; hired private counsel to prosecute his direct appeal; and relied on that same private counsel to assist in the timely filing of his post-conviction motion. Price , 422 S.W.3d at 302. Price, like Muhammad, was erroneously advised that he had 180 days in which to file his initial 29.15(b) motion; and, relying on that advice and assistance, failed to timely file his initial motion. Id. at 295.

Though Muhammad does not explicitly claim abandonment by (or ineffective assistance of) post-conviction counsel, his arguments are difficult to distinguish from those claims. Like the movant in Price , Muhammad claims that his privately retained direct appeal counsel erroneously *296advised him regarding the deadline to file his initial claim; that same retained counsel agreed to assist him in its preparation; that counsel failed in his duties; and that counsel's failings should excuse his untimely filing.7 In Price the Missouri Supreme Court made it clear that, unlike the untimely filing of an amended 29.15(g) motion, the failure to timely file an initial 29.15(b) motion cannot be excused due to abandonment of counsel.8 Id. at 301.

Like the movant in Price , Muhammad also claims that private counsel's bad advice and failure to act constituted active third party interference, excusing his failure to timely file his initial 29.15(b) motion. In rejecting the claim of third party interference, the Price court first noted that when an inmate prepares the motion and does all he can to ensure timely filing, "any tardiness that results solely from the active interference of a third party beyond the inmate's control may be excused and the waivers imposed by Rule 29.15(b) not enforced." Id. The court went on to note that, while the initial motion doesn't require legal expertise, the excuse (for third party interference) exists because the unique circumstances of an inmate's situation means that they have to rely on a third party to some extent to see that their motion gets filed. Id. at 302 ("[I]nmates-unlike nearly every other category of civil litigants-cannot initiate post-conviction proceedings without relying on the assistance of one or more third parties to take the motion from the inmate and deliver it to the circuit clerk for filing."). Because of this "practical reality" when "an inmate writes his initial post-conviction motion and takes every step he reasonably can within the limitations of his confinement to see that the motion is filed on time" an untimely filing may be excused if the active interference of a third party thwarted the inmate's efforts. Id. In finding that the exemption did not apply in Price's case, *297the court found it determinative that, as here, Price had relied upon retained counsel. Id.

Price is entitled to retain counsel.... but, by doing so, he took the same risk that every other civil litigant takes when retaining counsel, i.e., he chose to substitute counsel's performance for his own and bound himself to the former as though it were the latter. This rule is as old as-and even older than-this Court:
The omission of the attorney spoken to in the cause to plead within the time prescribed by law, cannot place the application to set aside the judgment by default upon more favorable grounds than if the omission had been on the part of the defendant himself. The attorney is the agent of the party employing him, and in the court stands in his stead, and any act of the attorney must from necessity be considered as the act of his client, and obligatory on the client. This principle is so well understood and has been so long acted upon as to render it almost useless to refer to it-a different principle could not be tolerated by the courts without immediately leading to endless confusion and difficulty in the administration of justice....
[T]he record in this case clearly suggests a gross breach of counsel's duties to Price. Even assuming such a breach, however, the courts were not responsible for this breach and have no obligation to remedy it.

Id. at 302-03 (quoting Kerby v. Chadwell , 10 Mo. 392, 393-94 (1847) ).

As the movant, Muhammad bore the burden of "alleging and proving by a preponderance of the evidence in his motion that he [fell] within a recognized exception to the time limits." Wadel v. State , 524 S.W.3d 575, 577 (Mo. App. W.D. 2017) (quoting Dorris v. State , 360 S.W.3d 260, 267 (Mo. banc 2012) ). Like the movant in Price , Muhammad failed to present evidence that a third party interfered with his timely filing of his 29.15(b) motion. He cannot claim third party interference of an attorney he himself hired and chose to rely upon, as that attorney was both his agent and counsel.9 Nor can he mask claims of *298ineffective assistance of (or abandonment by) that counsel as third party interference.10

Muhammad's reliance on Watson , supra , is entirely misplaced. In Watson , the trial court inaccurately related the deadlines to a convicted defendant in the 29.07 colloquy. Id. at 434. The Missouri Supreme Court excused the movant's untimely filing of his initial 29.15(b) motion "because the circuit court misinformed him about the appropriate deadlines to file his motion during his sentencing colloquy and he was entitled to rely upon this misinformation when determining the filing deadline." Id. In the present case, there is no evidence that the trial court improperly advised Muhammad. To the contrary, it is clear that Muhammad was informed of the deadline for filing his initial 29.15(b) motion. Upon sentencing, Muhammad filed his signed "Defendant's Acknowledgment of Rights Pursuant to Supreme Court Criminal Rule 29.15" which stated, in pertinent part:

You must understand any motion to vacate, set aside, or correct the judgment or sentence must be filed with the Jackson County Circuit Court:
(1) Within Ninety (90) days after the date the mandate of the appellate court is issued if an appeal of the judgment was taken.

Muhammad nevertheless maintains that the admonition in Criminal Procedure Form 4011 is an inaccurate statement of the law that provides a "stumbling block" to movants, and that this purported interference (presumably by the Supreme Court when it promulgated Form 40 ) would excuse his late filing. The Form 40 admonition indicates: "The movant is required to include in this motion every claim known to him for vacating, setting aside or correcting the conviction and sentence or it will be waived or abandoned. Be sure to include every claim." Muhammad claims that this misstates the law because Missouri Courts have found the initial brief described in Rule 29.15(b) to be "relatively informal" and that a movant meets the requirements of the rule if it provides notice that the movant is seeking relief under Rule 29.15. Bullard v. State , 853 S.W.2d 921, 922-23 (Mo. banc 1993). We need not address whether the admonition in the Form 40 is an accurate statement of the law, because the record is bereft of any testimony or other evidence to suggest that this admonition was even considered by Muhammad in determining when to file his initial 29.15(b) motion.12

*299The trial court did not clearly err in its determination that Muhammad's failure to timely file his initial 29.15(b) motion resulted in a complete waiver of his rights under Rule 29.15.13 Point I is denied. Because our disposition of Point I is dispositive of Muhammad's appeal, we need not address his remaining points on appeal.

Conclusion

The judgment of the motion court is affirmed.

All concur.