IN THE CIRCUIT COURT OF MISSISSIPPI COUNTY STATE OF MISSOURI CORNEALIOUS ANDERSON, Petitioner, v. IAN WALLACE, WARDEN. Respondent.

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No.

13MI-CV00776

RESPONSE TO ORDER TO SHOW CAUSE Summary of Exhibits Respondent, Warden Ian Wallace, includes as his Exhibit 1 a packet of documents. The packet includes: 1) docket sheets from

Cornealious Andersons direct appeal in the Missouri Court of Appeals and the Missouri Supreme Court; 2) documents from the Missouri Supreme Court, including, the warrant for Andersons arrest issued by the Chief Justice of Missouri, and the return of that warrant; 3) the appellate bond issued by the trial court, but apparently not transferred by the clerk of that court to the Missouri Court of Appeals or the Missouri Supreme Court; and 4) a page from Andersons Department of Corrections face sheet, showing his dates of receipt and exit and his sentence structure. Warden Wallace includes as his Exhibit 2 the docket sheet in Woodrow Anderson v. Larry Crawford, No. 07AC-CC00867-01 from Cole County, Missouri.

Summary of Facts On May 19, 2000, the Circuit Court of St. Charles County, Missouri sentenced Cornealious Anderson to consecutive terms of ten and three years imprisonment for the crimes of first-degree robbery and armed criminal action (Resp. Ex. 1). The Missouri Department of Corrections received Anderson on May 25, 2000 (Resp. Ex. 1). The Circuit Court of St. Charles County issued an appellate bond on June 8, 2000, and the Department of Corrections released Anderson on that bond (Resp. Ex. 1). Missouri Supreme Court Rule 33.10 requires the clerk of the releasing court to transmit a copy of the release and conditions to the court in which the person on bond is to appear. The docket sheets of the Missouri Court of Appeals and the Missouri Supreme Court do not indicate a clerk of the trial court ever forwarded Andersons bond to the Missouri Court of Appeals and the Missouri Supreme Court (Resp. Ex. 1). The Missouri Supreme Court issued its opinion affirming the judgment of conviction and sentence on May 28, 2002 (Resp. Ex. 1). The appeal bond terminated at that time. See Anderson v. Crawford, 309 S.W.3d 363, 368 (Mo. Ct. App. 2010) (right to release on bond continues only until the appellate court issues an opinion unless the court issues a special order extending the bond during litigation of post-decision motions). But because the clerk of the trial court did not inform the Missouri Supreme Court that Anderson was 2

free on bond, the Missouri Supreme Court did not issue an arrest warrant until July 2013, after it had finally been informed Anderson was free on bond (Resp. Ex. 1).1 The record does not indicate that either Anderson or his appellate or post-conviction counsel ever told the Missouri Supreme Court that Anderson was on an appellate bond that had terminated. Instead Anderson took advantage of the situation in the apparent hope that no one would ever bring the bond to the Courts attention. Summary of Legal Analysis Anderson makes four arguments for granting habeas corpus relief. All are without legal merit. First, Anderson argues that this Court should hold that Missouri waived jurisdiction to incarcerate him based on the substantive Due Process Clause. That argument relies on very old cases. Modern decisions reject or so severely limit that analysis that it is inapplicable to Anderson. Further,

counsel asked the clerk of the Missouri Supreme Court, the Assistant Attorney General who represented Missouri on direct appeal, and the member of the Department of Correctionss legal staff who discovered the error, about what happened. Neither the legal file provided to the Missouri Supreme Court nor that of the attorney for the state on direct appeal contained an indication Anderson was free on an appellate bond. Although the Department of Corrections knew Anderson was on bond, it did not receive a copy of the appellate opinion. It is not relevant to the outcome of the habeas case, but the Missouri Supreme Court did nothing wrong when it did not immediately issue an arrest warrant. The Court did not know Anderson was free on bond. The Court promptly issued an arrest warrant when it learned a bond existed. 3

1Undersigned

Anderson is really asking this Court to reverse the Missouri Supreme Court for issuing the warrant for his arrest. This Court may not do that. Second, Anderson alleges the doctrines of estoppel and laches prevent the Director from executing his sentences. Estoppel and laches generally do not apply to government entities in Missouri, particularly when the State is exercising its police power. Anderson also does not meet the elements of either doctrine, and he has unclean hands in the sense that, unlike the Missouri Supreme Court, he knew he was under an appellant bond when the Court issued its opinion and he chose not to tell the Court, or make an inquiry. Third, Anderson alleges the execution of his sentence is cruel and unusual punishment. It is not. The trial court sentenced Anderson for firstdegree robbery and armed criminal action. The United States Supreme Court has upheld much more severe sentences for much less serious crimes. No precedent indicates Andersons circumstances or anything like them are cruel and unusual punishment. Fourth, Anderson argues that this Court should issue an order of nolle prosequi erasing his conviction. But in Missouri only the prosecutor decides whether to issue a nolle prosequi, and judicial review is limited to determining if the prosecutors entrance of a nolle prosequi after the verdict is an abuse of discretion. State v. Norwood, 691 S.W.2d 238 (Mo. 1985). 4

But there is a way this Court may grant Anderson something like the relief he requests. Anderson, 309 S.W.3d at 368, involved a fact pattern in which the Department of Corrections erroneously released an inmate on an appellate bond, after an opinion issued in the direct appeal ended the bond. After he returned to the Department, the inmate filed a declaratory action judgment in Cole County against the Director of the Department of Corrections asking for a declaration that he should receive credit on his sentence for time he was at large after the Department erroneously released him. The court of appeals indicated case law from other jurisdictions took different views on the issue, and the court of appeals itself noted it took no position on the matter, but remanded the case to the trial court to consider the matter based on the record. Id. The trial court ultimately declared the Director should credit the time under the facts of that case. Anderson is in the wrong form of action and the wrong venue for the relief granted in Anderson v. Crawford. Rule 91 habeas corpus actions are generally limited to suits seeking immediate discharge from confinement, and the director of a department may only be sued in Cole County. But if Anderson re-files this matter as a declaratory judgment action and names the Director as the defendant, the Director consents to venue in this Court. If this Court accepts the facts as set out in this pleading, the Director takes no position on whether this Court should declare Anderson entitled to credit on 5

his sentence from the time the opinion issued in his direct appeal. If the Court grants time served from the issuance of the opinion in 2002, Anderson would have served his 11.5-year mandatory-minimum prison term under Mo. Rev. Stat. 558.019 and 571.015 and be immediately eligible for parole consideration. I. Andersons arguments for relief all fail as a matter of law. A. Modern precedents reject Andersons theory of waiver of jurisdiction based on substantive due process principles.

Anderson argues that the State of Missouri has waived jurisdiction over him based on a Due Process Clause theory (Petition at 15-18). Anderson relies on older lines of cases that have their roots before the United States Supreme Court held in County of Sacramento v. Lewis, 523 U.S. 833, 847 (1998) that a threshold question in a substantive due process claim is whether the conduct of a government officer is so egregious to shock the contemporary conscience. Modern case law using the Lewis standard generally rejects claims like that of Anderson in this case. The United States Court of Appeals for the Eighth Circuit rejected a very similar substantive due process waiver claim in Bonebrake v. Norris, 417 F.3d 938 (8th Cir 2005). An Arkansas trial court sentenced Bonebrake to twenty years imprisonment for a drug offense but released her on bond pending the resolution of her appeal on June 22, 1994. Id. at 940. The

Arkansas Court of Appeals affirmed the conviction on December 6, 1995, and the trial court clerk received the mandate, which contained a reference to the need for Bonebrake to surrender herself forthwith, on December 29, 1995. Id. The prosecutor also received a copy of the opinion and was aware Bonebrake was free on bond. Id. Neither Bonebrakes lawyer nor any county official ever told her the appeal had been resolved, even though Bonebrake lived near the courthouse, was not in hiding, and at least one person complained to the clerks office and prosecutors office that Bonebrake had not been incarcerated. Id. A drug task force arrested and released Bonebrake the same day in July 2000. Id. Less than a week later Bonebrake read a newspaper article claiming she was in hiding and turned herself into the sheriff. The facts in Bonebreaks case are much more favorable to her than the facts in Andersons case are to him. Bonebreak did not know her appeal had been decided, was told it had not been, and the court responsible for issuing a warrant knew the appeal had been decided and she was on bond, but did not issue a warrant. When she learned her case had been decided, Bonebrake surrendered. On the other hand, Anderson knew he was on bond, that his appeal had been decided, and did not surrender, but the Missouri Supreme Court, the body responsible for issuing a warrant, had not been told he was on bond.

The United States Court of Appeals for the Eighth Circuit rejected Bonebrakes substantive due process waiver argument in light of the standard in Lewis. Id. at 942-43. The court of appeals found that erroneous release and delayed incarceration are widespread and recurring events in the state and federal systems and the seemingly invariable executive response has been to incarcerate; therefore, the incarceration is not shocking to the conscience. Id. Even before the Lewis decision, case law indicated an inmate who, like Anderson, is partially responsible for remaining at large does not have a due process waiver argument. In Camper v. Norris, 36 F.2d 782 (8th Cir. 1994), decided before Lewis, the court of appeals rejected a substantive due process waiver argument by a petitioner who had been released on appellate bond and whose appeal was decided in 1989, but who was not arrested until 1994. The court of appeals found that no due process violation occurred because the inmate knew he was free on appellate bond and knew the court had decided his appeal, but he did not turn himself in. Id. at 784-85 (citing Eleventh Circuit precedent that partial responsibility for remaining at large defeats a due process waiver argument); see also Mathes v. Pierpont, 725 F.2d 77 (8th Cir. 1984) (no due process waiver occurred even though the petitioner lived openly for seven years before the state executed his criminal sentence).

Additionally, the Missouri Supreme Court issued the warrant for Andersons arrest (Resp. Ex. 1). A circuit court may not reverse the Missouri Supreme Court. But that is what Andersons waiver argument necessarily asks this Court to do. B. The doctrines of estoppel and laches do not apply to this case.

Anderson alleges the doctrines of laches and equitable estoppel bar the Department of Corrections from requiring him to serve the remainder of his sentences (Petition at 18-20). Those doctrines do not apply here. Laches and estoppel generally do not apply to government agencies, particularly when applying those doctrines would interfere with the discharge of government duties, curtail the exercise of police power, or thwart public policy. See Fraternal Order of Police Lodge #2 v. City of St. Joseph, 8 S.W.3d 257, 263 (Mo. Ct. App. 1999) (estoppel rarely lies against the government, and requires a showing of affirmative misconduct); State ex rel. City of Monett v. Lawrence County, 407 S.W.3d 635, 639 (Mo. Ct. App. 2013) (laches and estoppel rarely lie against government bodies because public rights generally should not yield to rights of private parties). Further, in this case Anderson knew he was on an appellate bond and that the Missouri Supreme Court had decided his appeal. He does not allege otherwise, nor can he plausibly do so. Anderson or his attorneys in the direct

appeal and post-conviction appeal process could have brought the fact that Anderson was free because of an appellate bond to the attention of the Missouri Supreme Court, the body responsible under Missouri law for issuing a warrant for his arrest after his appeal in the Missouri Supreme Court. But they did not do so. Anderson does not meet the conditions of laches or estoppel because, among other reasons, he took advantage of a situation he could easily have corrected. C. The execution of Andersons sentence is not cruel and unusual punishment.

Anderson alleges, without any citations to cases involving a similar fact pattern, that execution of his criminal sentence of thirteen years imprisonment after the delay in arresting him on his appellate bond would be cruel and unusual punishment (Petition at 20-23). The fact pattern in this case does not come close to being an Eighth Amendment violation as the severity of the punishment, including any emotional damage from execution of the punishment after Anderson may have believed he had been forgotten is less than permissible punishments. See Lockyer v. Andrade, 538 U.S. 63 (2003) (reversing decision that consecutive sentences of twenty-five years to life in prison for two petty thefts of videotapes by an offender with two strikes from prior burglaries violated the Eighth Amendment); Ewing v. California, 538 U.S. 11 (2003) (finding a sentence of twenty-five years to life

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in prison for the theft of three golf clubs by an offender with two strikes does not violate the Eighth Amendment); Harmelin v. Michigan, 501 U.S. 957 (1991) (sentence to life imprisonment without the possibility of parole for cocaine possession did not violate the Eighth Amendment). Additionally, what Anderson complains about is not unusual or unacceptable under evolving standards of decency. The United States Court of Appeals found in Bonebrake that erroneous release and delayed execution of sentence are widespread and recurring events in the systems of the state and federal governments and the executive response is invariably

incarceration. Bonebrake, 417 F.3d at 942-43. D. This Court may not order nolle prosequi.

Anderson alleges this Court should issue an order of nolle prosequi removing his criminal conviction and dismissing the underlying case (Petition at 23-25). But this Court may not do that. Nolle prosequi is an entry in the record by the prosecutor that: 1) he will proceed no further, 2) terminates the proceedings; and 3) releases the defendant. State ex rel. Norwood v. Drumm, 691 S.W.2d 238, 239 (Mo. 1985). The prosecutor may enter a nolle prosequi until the court imposes sentence. But if the prosecutor enters a nolle prosequi after the jury verdict of guilty, the trial court reviews the prosecutors decision for abuse of discretion. Id. at 239-41. That is the extent of judicial involvement in nolle prosequi in Missouri. It is not a separate form of action 11

or a remedy a habeas court may impose, or order a prosecutor to impose. See Ewing v. Denney, 360 S.W.3d 325, 329 (Mo. Ct. App. 2012) (circuit court of one circuit correctly found it did not have jurisdiction to resentence a defendant when ordered to do so by a different circuit court in a habeas action, as one circuit court does not have supervisory authority to order correction of errors in another circuit); see also State ex rel. Mertens v. Brown, 198 S.W.3d 616, 618 (Mo. 2006); State ex rel. Deaton v. Sweeney, 716 S.W.2d 21, 22 (Mo. Ct. App. 1986) (circuit judge not subject to correction by a judge who stood on equal judicial footing). If it were the legally correct decision, this Court could order a warden to discharge a prisoner from illegal custody. It cannot order the dismissal of charges in another circuit, which is what Anderson requests. II. If Anderson files a declaratory judgment action and names the Director as the defendant, this Court may then consider whether to direct the Department of Corrections to credit Anderson for time served after his appeal bond expired by operation of law when the Missouri Supreme Court issued its opinion. That could make Anderson eligible for immediate parole consideration. Anderson may not receive relief on the due process, estoppel, laches, Eighth Amendment, and nolle prosequi theories he raises in his petition. But there is a way this Court may grant some relief through declaratory judgment if the Court believes that it is appropriate to do so. The Warden

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and the Director of the Department of Corrections take no position on whether granting relief under this theory would be appropriate. Anderson v. Crawford, 309 S.W.3d 863, 868-70 (Mo. Ct. App. 2010), was the reversal of a grant of judgment on the pleadings in a declaratory judgment action. The Department of Corrections erroneously released an inmate, who had also been incarcerated for another offense, on an appellate bond when the first sentence expired, even though the court of appeals had already decided his appeal for the second offense. Id. The court of appeals found that the bond ended with the appellate decision, making the case about erroneous release. Id. Because the bond ended, the inmate was not on the wrong side of Missouri law barring the award of credit for time spent free on bond. See id. at 867. The court of appeals noted that it had previously held that when the Department erroneously releases an inmate, without any contributing fault by the inmate, the sentence continues to run while he is at liberty. Id. at 869 (relying on the Missouri rule against requiring inmates to serve sentences in installments). The court of appeals noted that jurisdictions differ on whether knowledge that the release is erroneous disqualifies the inmate from credit, whether the inmate must make efforts to notify authorities of the error, and what efforts are required. Id. at 869 n.2. The court of appeals declined to take

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a position on those matters and remanded the case to the trial court. The trial court eventually granted relief (Resp. Ex. 2). The petition and record in this case make clear that Anderson and his attorneys knew, or should have known, his bond ended, and he does not allege he made any effort to inform the Missouri Supreme Court and terminate his freedom. The question before this Court in a declaratory judgment action therefore, would be whether this Court should direct the Department of Corrections to credit Anderson for time served between the time the Missouri Supreme Court issued its opinion and the time he was rearrested. Andersons ten-year first-degree robbery sentence, a sentence for a dangerous felony, has an 8.5-year parole ineligibility period under Mo. Rev. Stat. 558.019, and his armed criminal action sentence has a three-year ineligibility period under Mo. Rev. Stat. 571.015. Crediting the period after the appellate opinion issued in 2002 would make Anderson immediately eligible for parole consideration, although whether to grant parole is a matter on which the Parole Board has almost unlimited discretion. Neither the Warden, nor the Director of the Department of Corrections, take a position on whether this Court should declare Anderson should receive credit for time between the decision in his direct appeal and his arrest. This Court may not use habeas corpus to make a declaration that Anderson is entitled to earlier release at some future date as opposed to 14

ordering his immediate discharge from current confinement. State ex rel. Nixon v. Pennoyer, 36 S.W.3d 767, 770 (Mo. Ct. App. 2000) (court of appeals quashes writ of habeas corpus, for among other reasons, the petition requests earlier release from confinement in the future rather than immediate discharge). A complaint alleging entitlement to earlier discharge at some future date should be brought in declaratory judgment, or mandamus, which compels performance of a duty. Id. A court may construe a petition for habeas corpus as a petition for mandamus. Id. In this case, it is an open question whether Anderson is entitled to have the time that passed after the opinion was handed down credited to his sentence. Therefore, the form of action is properly declaratory judgment as opposed to mandamus, and the proper defendant is the Department of Corrections or its Director, who has the authority to decide when credit should be awarded on a sentence. See Stinson v. Sharp, 80 S.W.3d 852, 854 (Mo. Ct. App. 2002) (proper method to litigate entitlement to credit for time after release on parole was declaratory judgment action against the Department of Corrections). Absent consent, the only proper venue for suit against an executive department or its head is Cole County. See State ex rel. Nixon v. Clark, 826 S.W.2d 22, 24-25 (Mo. Ct. App. 1996) (quashing writ issued against the Director by Circuit Court of Jackson County because of improper venue). 15

Director George Lombardi would consent to venue in Mississippi County in the interest of a speedy resolution if Anderson were to re-file this case as a declaratory judgment action and name him as the defendant. Conclusion This Court should not grant a writ of habeas corpus. But if Anderson re-files this case as a declaratory judgment action against Director Lombardi, the Director consents to venue in this Court for a determination of whether the Department should award credit for the time that passed between the handing down of the appellate opinion and Andersons arrest. Respectfully submitted, CHRIS KOSTER Attorney General /s/Michael J. Spillane MICHAEL J. SPILLANE Assistant Attorney General Counsel of Record Missouri Bar No. 40704 PO Box 899 Jefferson City MO 65102 Phone: 573.751.0967 Fax: 573.751.3825 mike.spillane@ago.mo.gov ATTORNEYS FOR RESPONDENT

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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was electronically filed on April 15, 2014. This Courts electronic filing system should serve the pleading on counsel for the plaintiffs who are electronic filers. /s/Michael J. Spillane MICHAEL J. SPILLANE Assistant Attorney General

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