Marvin L. Stewart, Movant/Appellant, v. State of Missouri, Respondent/Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Marvin L. Stewart, Movant/Appellant, v. State of Missouri, Respondent/Respondent. Case Number: ED90296 Handdown Date: 07/08/2008 Appeal From: Circuit Court of the City of St. Louis, Hon. Jimmie M. Edwards Counsel for Appellant: Rosalynn Koch Counsel for Respondent: Shaun J. Mackelprang and Jayne T. Woods Opinion Summary: Marvin Stewart appeals the motion court's denial of post-conviction relief after a hearing pursuant to Rule 29.15. Stewart argues the jury foreman was subjected to outside influences when he overheard a comment by Stewart's mother in the courthouse elevator, trial counsel was ineffective for failing to call Stewart's friend Phillip Dotson as a witness, and trial counsel was ineffective for failing to object to the state's negative inference about Dotson's silence. Stewart filed his original pro se motion in 2001. It was delivered October 1 but file-stamped October 4, making it one day late. The motion court dismissed Stewart's motion as untimely. Post-conviction counsel failed to investigate Stewart's claims that the motion was delivered on time. Counsel never filed an amended motion because the court denied her leave to do so out of time. In 2006, in light of postal records - which were available in 2001 but not adduced - suggesting timely delivery of Stewart's original motion, the motion court vacated its earlier orders, held a hearing, and denied relief. DISMISSED.

Division Two holds: This court lacks jurisdiction to review the motion court's judgment because the motion court lacked jurisdiction to reopen Stewart's case. The motion court's order, which implies to the contrary, is vacated. Under Rule 75.01, a motion court retains jurisdiction to vacate, reopen, correct, amend, or modify a judgment within 30 days following its entry. The court has no jurisdiction to reopen a judgment beyond this 30-day limit except to address claims of abandonment by post-conviction counsel. Counsel's actions do not rise to the level of abandonment because she took some action and had some explanation for her failure to file an amendment in that the court denied her request to do so. Though Stewart frames his claim as one of abandonment, he actually argues that counsel was ineffective for failing to investigate the timeliness of his original pro se motion. Claims of ineffective assistance of post-conviction counsel are categorically unreviewable. Citation: Opinion Author: Booker T. Shaw, Judge Opinion Vote: DISMISSED. Mooney, P.J., and Odenwald, J., concur. Opinion: A jury convicted Martin Stewart of first-degree murder, first-degree assault, and two counts of armed criminal action after Stewart fired shots at Robert Alton and DeWayne Geans in 1998. Alton wasn't hit, but Geans was killed in the incident. The court sentenced Stewart as a prior offender to life without parole, 15 years, and two terms of life, respectively. This court affirmed the judgment and sentence in a per curiam order. State v. Stewart, 45 S.W.3d 502 (Mo.App. E.D. 2001). Stewart was convicted February 16, 2000, and the mandate on appeal issued July 5, 2001. His motion for post- conviction relief was due October 3, 2001, but it was filed-stamped October 4. As a result, the trial court initially denied the motion as untimely in an order dated July 2, 2002. Then on October 13, 2006, upon a motion by Stewart, the court implicitly vacated its earlier order, reviewed the merits of Stewart's post-conviction claims, and ultimately denied relief. Stewart seeks this court's review on three claims: (1) that the jury foreman was subjected to outside influences when he overheard a comment by Stewart's mother in the courthouse elevator, (2) that trial counsel was ineffective for failing to call

Movant's friend Phillip Dotson as a witness, and (3) that trial counsel was ineffective for failing to object to the State's negative inference about Dotson's silence. As a threshold matter, the State challenges this court's jurisdiction, asserting that the motion court lacked jurisdiction to entertain Stewart's motion in 2006 after denying it as untimely in 2002. Evidence in the record suggests that the clerk's office actually received Stewart's original pro se motion October 1, 2001, in which case it would have been timely. See Phelps v. State, 21 S.W.3d 832 (Mo.App. E.D. 1999)(motion for post-conviction relief was timely when it was actually received by court clerk's office before deadline, even though motion was stamped as received after deadline). Despite Stewart's insistence and the availability of postal records indicating that the motion was delivered on time, appointed counsel failed to investigate and instead simply requested leave to file out of time. The court denied that request, so counsel terminated representation without ever filing an amended motion. Under Rule 75.01, a motion court retains jurisdiction to vacate, reopen, correct, amend, or modify a judgment within 30 days following its entry. A dismissal is a judgment for purposes of starting the clock. See Wise v. State, 219 S.W.3d 270, 272-273 (Mo.App. S.D. 2007). The court has no jurisdiction to reopen a judgment beyond the 30-day limit except to address claims of abandonment by post-conviction counsel. Robinson v. State, 211 S.W.3d 162, 163 (Mo.App. E.D. 2007). "Only a narrow category of cases will rise to the level of abandonment." Walker v. State 194 S.W.3d 883, 884 (Mo.App. E.D. 2006). "Abandonment occurs when post-conviction counsel fails to timely file an amended motion, fails to amend movant's pro se motion without explanation, or files an amended motion that is so patently defective that it amounts to a nullity." Robinson at 163 (emphasis added). Similarly, abandonment is recognized when post-conviction counsel takes no action on a movant's behalf with respect to filing an amended motion." Walker at 885 (emphasis added). Stewart alleges that his post-conviction counsel abandoned him by failing to investigate the timeliness of his original pro se motion and consequently failing to file an amended motion. But counsel took some action and had some explanation. She requested leave to file out of time, and the court essentially forbade her from filing an amendment based on their shared belief that it was untimely. While Stewart frames the issue as abandonment in order to fit within the

exception to Rule 75.01, he actually asserts a claim of ineffective assistance of post-conviction counsel for her failure to investigate the facts surrounding delivery and receipt of Stewart's pro se motion. That claim, alas, is "categorically unreviewable." Robinson at 163. Because the motion court lacked jurisdiction to consider the merits of the case, we have no jurisdiction to review. Simmons v. State, 190 S.W.3d 558, 560 (Mo.App. E.D. 2006). The motion court's order, which by its ruling on the merits implies to the contrary, is vacated. DISMISSED. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.