Clay v. Dormire

37 S.W.3d 214, 2000 Mo. LEXIS 70, 2000 WL 1779178

• Court: Supreme Court of Missouri
• Decided: December 5, 2000
• Docket: SC 82331
• Status: Published

Opinions

LIMBAUGH, Judge.

Relator, Arthur Scott Clay, was convicted of forcible rape in 1989 and sentenced to twenty years in prison. He was sentenced by the judge rather than by the jury because the judge found him to be a prior offender, based on the erroneous consideration of an expunged prior conviction. A copy of the expungement order came to light only after relator’s direct appeal and post-conviction motion had been denied. He now petitions for a writ of habeas corpus ordering a new trial and for a writ of mandamus directing that all references to the prior conviction be expunged from his records. The petition was filed originally in the Court of Appeals, Western District, and after issuance of an opinion granting both habeas corpus and mandamus relief, this Court granted respondents’ application for transfer and assumed jurisdiction. Mo. Const, art. V, sec. 10. Rule 83.04. Having now determined that habeas corpus relief is unwarranted, relator is ordered remanded to the custody of the Department of Corrections. However, the petition for writ of mandamus is granted, and a peremptory writ of mandamus is ordered to issue.'

On July 12, 1974, in the Circuit Court of Platte County, Missouri, relator pled guilty to the offense of distributing hashish and was placed on probation. Years later, after successfully completing probation, relator filed a motion with the sentencing judge pursuant to § 195.290, RSMo 1978 (repealed 1989), to expunge the conviction. While it was in effect, § 195.290 required trial courts to expunge the convictions of drug offenders who had been placed on probation if the offender was under twenty-one years of age at the time of the offense, had not reoffended or repeatedly violated probation, and had applied for ex-pungement. The statute also provided that “the effect of such order shall be to restore such person, in the contemplation of the law, to the status he occupied prior to such arrest and conviction.” Id. On July 2, 1980, following an evidentiary hearing, the sentencing judge entered an order expunging the conviction, on a finding that the requirements of § 195.290 had been satisfied.

Thereafter, on May 9, 1989, relator was convicted by a Platte County jury of the offense of forcible rape. During the trial, the judge found that relator was a prior offender based on the prosecutor’s introduction of a copy of relator’s 1974 drug conviction, which, inexplicably, had never been expunged from the records of the circuit clerk’s office. Because of relator’s status as a prior offender, the judge, rather than the jury, imposed sentence as provided under § 557.036.2, RSMo 1986. Although the 20 year sentence was within the statutory range of punishment of five years to life, the trial court apparently considered the prior expunged conviction, as well as relator’s successful completion of probation for that offense, in imposing the sentence.

The existence of the expungement order was not raised by relator at trial or in his direct appeal or in his subsequent post-conviction motion. The Court of Appeals affirmed the conviction and denial of post-conviction relief, except as to a minor clerical error, on June 18, 1991. State v. Clay, 812 S.W.2d 872, 873 (Mo.App.1991). In 1992, relator contacted the circuit clerk’s office requesting the “judgments and orders of my convictions for prior felonies,” and he was advised that there was no record of any felony convictions under his name except the recent rape conviction. Thus, by that time, the prior conviction that the clerk had certified for the prosecutor’s use during the rape trial had apparently finally been expunged from relator’s file. The record does not reveal when or how this occurred or how the expungement order came to the clerk’s attention at that late date. Although the 1974 conviction had been expunged from the clerk’s records, no copy of the ex-pungement order was forwarded to the Department of Corrections, and the briefing on this appeal makes clear that the Department’s records still reflect relator’s expunged conviction.

Once relator was made aware that his prior conviction should not have been used to deny him jury sentencing, he filed for habeas corpus relief in Platte County, but his petition was denied for improper venue under Rule 91.02. Relator then applied for habeas corpus relief, under 28 U.S.C. § 2254 (1994), in the United States District Court for the Western District of Missouri. The District Court denied that request on August 29, 1995, and the decision was affirmed by the United States Court of Appeals for the Eighth Circuit, for the reason that relator was first required to request such relief in the state courts. Clay v. Gammon, 89 F.3d 840 (8th Cir.1996). Finally, relator filed the petition for writs of habeas corpus and mandamus that is the subject of this opinion.

The petition is based on the newly-discovered evidence of the expungement order. Relator contends that “[abrogating [his] statutory right to jury sentencing by the use of a conviction which had been duly expunged according to law denied [him] his rights to a fair trial and to due process of law under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Missouri Constitution.” He also contends that he was “harmed ... because the trial court considered the prior conviction in assessing [his] punishment ... [and] determined [his] sentence on the basis of information that was not properly before the court.”

The relief available under a writ of habeas corpus has traditionally been very limited, and courts are not required to issue this extraordinary writ where other remedies are adequate and available. State ex rel. Simmons v. White, 866 S.W.2d 443, 445-46 (Mo. banc 1993). Out of concern over “duplicative and unending challenges to the finality of a judgment,” a person cannot usually utilize a writ of ha-beas corpus to raise procedurally-barred claims — those that could have been raised, but were not raised, on direct appeal or in a post-conviction proceeding. Id. at 4461 Very limited exceptions to this rule are recognized where the person seeks to use the writ “to raise jurisdictional issues or in circumstances so rare and exceptional that a manifest injustice results” if habeas corpus relief is not granted. Id. Here, relator makes no claim of jurisdictional error, but complains only that manifest injustice has occurred.

Although Simmons did not define the term “manifest injustice” for habe-as cases, it is essentially the same, as the Eighth Circuit observed in Duvall v. Purkett, 15 F.3d 745, 747 and n. 3 (8th Cir.1994), cert. denied, 512 U.S. 1241, 114 S.Ct. 2753, 129 L.Ed.2d 870, as the term “miscarriage of justice” or “fundamental miscarriage of justice” used in federal habeas cases. Following the lead of the United States Supreme Court’s habeas corpus cases, and most recently Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), this Court holds that the manifest injustice or miscarriage of justice standard requires the habeas corpus petitioner “to show that ‘a constitutional violation has probably resulted in the conviction of one who is actually innocent,’ ” id. (quoting Murray v. Camer, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)), and further, “[t]o establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light [of new evidence of innocence],” id. As explained in Schlwp and earlier cases, the actual innocence component of the miscarriage of justice standard is “a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits, [and] ... [w]ithout any new evidence of innocence, even the existence of a concededly meritorious constitutional violation is not in itself sufficient to establish a miscarriage of justice.... ” Id. at 315-16, 115 S.Ct. 851 (quoting Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993)).

Ultimately, the Supreme Court has concluded that “explicitly tying the miscarriage of justice exception to innocence thus accommodates both the systemic interests in finality, comity, and conservation of judicial resources, and the overriding individual interest in doing justice in the ‘extraordinary case.’ ” Id. at 322, 115 S.Ct. (citing Murray v. Carrier, 477 U.S. at 496, 106 S.Ct. 2639). These interests, excluding comity, of course, justify the same approach in Missouri. Indeed, the actual innocence component is all the more appropriate for Missouri eases given the fact that defendants are already afforded, an initial habeas-like post-conviction relief proceeding under Rule 29.15 or Rule 24.035 in which constitutional claims (usually involving ineffective assistance of trial counsel) like those that so often appear in habeas corpus petitions may be presented.

With the exception of the penalty phase in capital cases,¹ manifest injustice under the “actual innocence” standard applies only to the issue of guilt or innocence and is of no avail to claims of error committed during the sentencing process. See Sawyer v. Whitley, 505 U.S. 333, 340, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). Errors during sentencing in non-capital cases are only actionable in habeas corpus if it is shown that the court had no jurisdiction to impose the sentence in question, as in the case where a court imposes a sentence that is in excess of that authorized by law, State ex rel Osowski v. Purkett, 908 S.W.2d 690, 691 (Mo. banc 1995), or where the sentencing court utilized a repealed and inapplicable statute. State v. Edwards, 983 S.W.2d 520, 522 (Mo. banc 1999). In the case at hand, relator makes no claim that the sentence imposed exceeded that authorized by law or that the sentencing judge had no jurisdiction otherwise. Instead, relator’s claims — that he was denied jury sentencing and that the judge improperly considered the prior conviction in imposing sentence — are mere trial court errors that have nothing to do with his actual innocence. The failure to raise these claims on direct appeal or in a post-conviction relief proceeding is a procedural bar that cannot be overcome through habeas corpus.

Relator’s petition for writ of mandamus is quite another matter. It is well-settled that “[t]he purpose of the writ is to execute, not adjudicate,” and to be entitled to a writ, the relator must have “a clear, unequivocal, specific right to have an act performed.” State ex rel. Missouri Growth Ass’n v. State Tax Com’n, 998 S.W.2d 786, 788 (Mo. banc 1999). In this case, relator has a clear, unequivocal, specific, and previously-adjudicated right to have his prior conviction expunged from the records of the Department of Corrections. The order of July 2, 1980, which is mandated by and fully complies with the expungement statute, § 195.290, RSMo 1978, states that “... IT IS ORDERED, ADJUDGED AND DECREED that all official records, recording [relator’s] arrest, trial and conviction be expunged and that the said movant be restored, in the contemplation of the law, to the status he occupied prior to the written arrest and conviction....” The state’s position is that issuance of the writ is pointless because the existence of the prior conviction has been widely publicized throughout the extended litigation of this case, and the injury to relator is “de minimus .” This argument borders on the frivolous. Under the sentencing court’s order and under the statute, relator is entitled to have the record of conviction expunged regardless of the practical effect of the expungement.

Because habeas corpus relief is unwarranted, relator is ordered remanded to the custody of the Department of Corrections. However, the petition for writ of mandamus is granted, and the writ is ordered to issue.

PRICE, C.J., COVINGTON, HOLSTEIN and BENTON, JJ., concur. WHITE, J., dissents in separate opinion filed. WOLFF, J., concurs in opinion of WHITE, J.

1 . In the penalty phase of capital cases, a claim of manifest injustice based on actual innocence may be raised to challenge the evidence of aggravating circumstances that made defendant eligible for the death penalty. Sawyer v. Whitley, 505 U.S. 333, 345-47, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). A defendant may be “ 'innocent of the death penalty’ by allowing a showing in addition to innocence of the capital crime itself that there was no aggravating circumstance or that some other condition of eligibility had not been met.” Id. Even though the Court extended the notion of actual innocence to aggravating circumstances in death cases, it made clear that actual innocence analysis does not apply to other sentencing errors, such as "additional mitigating evidence that was prevented from being introduced as a result of a claimed constitutional error.” Id. at 347, 112 S.Ct. 2514.