            IN THE MISSOURI COURT OF APPEALS
                    WESTERN DISTRICT

 ANTHONY C. WASHINGTON,                          )
                                                 )
                                   Appellant,    )
                                                 )    WD78789
 v.                                              )
                                                 )    OPINION FILED:
                                                 )    January 17, 2017
 STATE OF MISSOURI,                              )
                                                 )
                                 Respondent.     )


                Appeal from the Circuit Court of Jackson County, Missouri
                       The Honorable Charles H. McKenzie, Judge

                    Before Division IV: Mark D. Pfeiffer, Chief Judge, and
                         Thomas H. Newton and Gary D. Witt, Judges

       Mr. Anthony C. Washington (“Washington”) appeals from the Judgment of the Circuit

Court of Jackson County, Missouri (“circuit court”), denying his Rule 29.15 amended motion for

post-conviction relief after an evidentiary hearing. We vacate the judgment and remand to the

circuit court with instructions to dismiss Washington’s untimely Rule 29.15 motion.

                                   Procedural Background

       After a jury trial, Washington was convicted of one count of the class C felony of stealing

and one count of the class C felony of forgery. The court sentenced him as a prior and persistent

offender to ten years’ imprisonment on each count, with the sentences to run concurrently. His
convictions and sentences were affirmed on direct appeal in State v. Washington, 397 S.W.3d 458

(Mo. App. W.D. 2013). We issued our mandate on May 29, 2013. Washington’s original pro se

Rule 29.15 motion for post-conviction relief was received and stamped filed by the clerk of the

circuit court on September 4, 2013. Appointed counsel thereafter filed an amended motion

alleging that Washington was denied his right to effective assistance of counsel by trial counsel’s

failure to assert Washington’s right to due process and to a speedy trial.

         On January 16, 2015, an evidentiary hearing was held to consider the merits of the amended

motion. The circuit court entered judgment, denying Washington’s amended motion. The issue

of the timeliness of Washington’s pro se motion was not raised by the parties or addressed by the

circuit court in its judgment.1

         Washington appeals.

                                                      Analysis

         The Missouri Constitution vests the Missouri Supreme Court with the authority to establish

rules relating to practice, procedure, and pleading for all courts. MO. CONST. art. V, § 5. “When

properly adopted, the 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) (internal quotation

omitted). Accordingly, the circuit court has the duty to enforce the mandatory time limits in the

post-conviction rules, even if the State does not raise the timeliness issue before the circuit court.

Id.   “The State cannot waive [a] movant’s noncompliance with the time limits in Rule[ ]

29.15 . . . .” Id.




         1
           On appeal, however, the issue was raised by the State in its appellate briefing to this court, see Roberts v.
State, 407 S.W.3d 89, 92 n.1 (Mo. App. W.D. 2013), and Washington was permitted to respond to the State’s
timeliness argument in subsequent appellate briefing to this court, see Ferguson v. State, 325 S.W.3d 400, 414 (Mo.
App. W.D. 2010).


                                                           2
       Rule 29.15(b)2 provides that if a movant appeals the judgment or sentence sought to be

vacated, set aside, or corrected, the movant’s pro se motion “shall be filed within 90 days after the

date the mandate of the appellate court is issued affirming such judgment or sentence.” Here,

Washington appealed his convictions and sentences for stealing and forgery after a jury trial. This

court handed down its mandate affirming the underlying judgment and sentence on May 29, 2013.

Accordingly, Washington’s Rule 29.15 motion was due on August 27, 2013. See Rule 29.15(b).

Washington’s motion was stamped filed by the clerk of the circuit court on September 4, 2013,

eight days out of time.

       If the movant’s Rule 29.15 pro se motion is not timely filed, “it must be dismissed, as

neither the motion court nor this Court has any authority to address the merits of [movant’s]

post-conviction claims.” Miller v. State, 386 S.W.3d 225, 227 (Mo. App. W.D. 2012) (internal

quotation omitted). The time limit in Rule 29.15 “serve[s] the legitimate end of avoiding delay in

the processing of prisoner’s claims and prevent the litigation of stale claims.” Dorris, 360 S.W.3d

at 269 (internal quotation omitted). If a post-conviction movant was not required to timely file,

“finality would be undermined and scarce public resources will be expended to investigate vague

and often illusory claims, followed by unwarranted courtroom hearings.” Id. (internal quotation

omitted). The “[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 the motion filed pursuant to this Rule 29.15.” See Rule 29.15(b).

       “In a motion filed pursuant to Rule 29.15, the movant must allege facts showing a basis for

relief to entitle the movant to an evidentiary hearing.” Dorris, 360 S.W.3d at 267. “In addition to

proving his substantive claims, the movant must show he filed his motion within the time limits



       2
           All rule references are to I MISSOURI COURT RULES—STATE 2013.


                                                      3
provided in the Rules.” Id. The movant can meet the burden of alleging that he timely filed his

motion by either:

       (1) timely filing the original pro se motion so that the time stamp on the file reflects
       that it is within the time limits proscribed in the Rule; (2) alleging and proving by
       a preponderance of the evidence in his motion that he falls within a recognized
       exception to the time limits; or (3) alleging and proving by a preponderance of the
       evidence in his amended motion that the court misfiled the [original pro se] motion.

Id.

       Washington first argues on appeal that his motion should be considered timely filed under

the second method of proving timeliness. Washington asserts that he mailed his pro se motion

before the ninety-day deadline, pointing to the date of the letters (August 21, 2013) he used to file

his motion with the clerk of the circuit court. However, neither of his filing letters nor his original

pro se Rule 29.15 motion reference any “recognized exception to the time limits” for filing his

motion. Frankly, if we assume, arguendo, that Washington did mail his original pro se motion to

the clerk of the circuit court on August 21, 2013—a motion that was not due until August 27,

2013—at the time of drafting the motion, Washington “could not have been aware of [the] fact

[that his motion was untimely and he needed to allege and prove an exception to the time limits].”

Vogl v. State, 437 S.W.3d 218, 227 (Mo. banc 2014). Simply put, Washington’s original pro se

motion did not allege or purport to establish that Washington was entitled to file his motion outside

the time limits required by Rule 29.15 due to a recognized exception to such time limits.

       Instead, what Washington essentially argues on appeal is that we should adopt the

application of a “mailbox rule,” which would make the filing date of a Rule 29.15 motion the date

the inmate delivers it to prison authorities for mailing, not the date it is actually received in the

circuit clerk’s office. “The appellate courts of this state have historically rejected applying the

mailbox rule to the filing of postconviction relief motions.” Stidham v. State, 963 S.W.2d 351,




                                                  4
353 (Mo. App. W.D. 1998). See also Patterson v. State, 164 S.W.3d 546, 548 (Mo. App. E.D.

2005) (“The only relevant inquiry under Missouri law is when the post-conviction motion was

filed with the clerk of the circuit court, not when it was mailed.”); State v. Collier, 918 S.W.2d

354, 356 (Mo. App. W.D. 1996) (“Collier concedes his [pro se Rule 29.15] motion was late, but

argues he did all he could do to comply and should not be penalized for his lack of control over

the mail. He requests that we apply the ‘mailbox rule’ to the filing of motions for post-conviction

relief. We decline to do so. A post-conviction motion is considered filed when deposited with the

circuit court clerk, not when the motion is mailed.” (Internal quotation and citation omitted.)).

Similarly, here, we decline Washington’s invitation to apply a “mailbox rule” to the filing of his

original pro se motion.

       Here, Washington’s original pro se Rule 29.15 motion: (1) was not stamped filed by the

clerk of the circuit court within the time limits required by Rule 29.15; (2) did not allege or purport

to establish an exception to the time limits; and the amended motion (3) does not allege or point

to any evidence in the record demonstrating that the clerk of the circuit court received the original

pro se motion on or before August 27, 2013, but simply misfiled the motion.

       This brings us to Washington’s next argument: that though he recognizes his appointed

post-conviction counsel did not assert any allegation in the amended motion that the clerk of the

circuit court misfiled his pro se motion (i.e., the third method of alleging and proving timeliness),

his appointed counsel should have investigated the events surrounding the filing of the original

pro se motion, said counsel should have alleged in the amended motion a circuit clerk misfiling of

the original pro se motion (though on appeal he points to nothing but speculation about why the

original pro se motion was not stamped filed until September 4, 2013), and counsel’s failure to do

so constituted abandonment by post-conviction counsel.




                                                  5
        In making this argument, Washington erroneously conflates the concepts of abandonment

with a claim of ineffective assistance of post-conviction counsel.

        In the context of post-conviction counsel, Missouri defines “abandonment” narrowly.

“[A]bandonment is available when (1) post-conviction counsel takes no action on movant’s behalf

with respect to filing an amended motion . . . or (2) when post-conviction counsel is aware of the

need to file an amended post-conviction relief motion and fails to do so in a timely manner.”

Barton v. State, 486 S.W.3d 332, 338 (Mo. banc 2016) (internal quotation omitted). Accordingly,

“[c]laims of abandonment are 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. (internal quotation omitted).

        Here, Washington does not claim either that his post-conviction counsel failed to file an

amended motion on his behalf3 or that the filing of the amended motion itself by post-conviction

counsel was untimely. Instead, Washington argues that the substance of the argument contained

within the amended motion constitutes a failure on the part of post-conviction counsel to provide

him with effective assistance of counsel. As “[Washington’s] claim is one of ineffective assistance

of post-conviction counsel, [it] is categorically unreviewable in Missouri state courts.” Id.

        Because Washington failed to timely file his initial pro se motion, and because his amended

motion failed to allege any facts supporting his qualification for a recognized exception to the

Rule 29.15 filing time limit, Washington has waived both his right to proceed under Rule 29.15

and any claim that could be raised in such a motion. See Rule 29.15(b); Dorris v. State, 360



         3
           This is the reason that Washington’s reliance upon Vogl v. State, 437 S.W.3d 218 (Mo. banc 2014), is
misplaced. In Vogl, the Missouri Supreme Court held that there is a presumption of abandonment by post-conviction
counsel where appointed counsel fails to timely file an amended motion or a statement setting out facts demonstrating
the actions taken by counsel to ensure that no amended motion was necessary. Id. at 230. Here, Washington’s
post-conviction counsel did, in fact, file an amended motion on Washington’s behalf and there is thus no presumption
that Washington’s post-conviction counsel abandoned him.


                                                         6
S.W.3d 260, 268 (Mo. banc 2012).         The circuit court did not have authority to address

Washington’s motion on the merits, and instead was required to dismiss it. Miller v. State, 386

S.W.3d 225, 227 (Mo. App. W.D. 2012). In order to enforce this valid and mandatory court rule,

we vacate the circuit court’s judgment and remand with directions to the circuit court to dismiss

Washington’s pro se motion as untimely. See Dorris, 360 S.W.3d at 270.

                                           Conclusion

       The circuit court’s judgment is vacated, and the cause is remanded to the circuit court with

instructions to dismiss Washington’s untimely Rule 29.15 motion.




                                             Mark D. Pfeiffer, Chief Judge

Thomas H. Newton and Gary D. Witt, Judges, concur.




                                                7
