) ) IAN WALLACE, Warden, Southeast Correctional ) Center, ) ) Respondent. )

Docket # 13MI-CV-00776

Underlying Criminal Case: St. Charles County Circuit Court Case # CR0199-00253F (Sentenced May 19, 2000)

REPLY TO STATE’S RESPONSE TO ORDER TO SHOW CAUSE Petitioner, CORNEALIOUS MICHAEL ANDERSON, III, by and through undersigned counsel, hereby submits this Reply to the State’s Response to this Court’s Order to Show Cause. 1. In his response, Respondent places the blame on (1) the Clerk of the St. Charles County Circuit Court for allegedly failing to transfer the appellate bond to the Missouri Court of Appeals and the Missouri Supreme Court, and (2) upon Petitioner for having “unclean hands,” asserting that he “took advantage of the situation in the apparent hope that no one would ever bring the bond to the Court’s attention.” (Response, p. 3-4). Respondent faults Petitioner for failing to inform the Missouri Supreme Court that he was out on bond that was supposed to have terminated upon the Court’s decision dated May 28, 2002, denying his direct appeal. (Response, p. 3). 2. Operating on these two factual assumptions, Respondent claims that Petitioner’s petition should be denied, claiming that because he bears at least partial responsibility, he cannot claim the protections of the Due Process guarantees contained within the Missouri Constitution and the United States Constitution. Respondent’s argument fails for several reasons. 3. First, the State consented to Petitioner’s application for bond pending appeal after he was sentenced on May 19, 2000. The Order granting the appeal bond was filed with the trial court


and served upon the State, who signed for the Order on June 6, 2000. (See Exhibit C). The conditions on the bond imposed no duty whatsoever upon Petitioner other than to return to court when ordered to do so, and stay out of trouble. He fully satisfied the conditions of his bond. 4. Thus, the State had actual notice that Petitioner was out on bond pending appeal. It was the State who failed to notify the Missouri Supreme Court that Petitioner was out on bond, and to request a warrant for his arrest in 2002. Contrary to the State’s claims, Petitioner was under no obligation to inform the Court that he was out on bond. Rather, the burden rested upon the State as the prevailing party. 5. Not only did the State fail to notify the Missouri Supreme Court after the May 28, 2002 decision denying Petitioner’s direct appeal, but the State again failed to notify either the Missouri Supreme Court or the St. Charles County Superior Court that Petitioner remained out on bond in September, 2002. 6. When Petitioner filed his pro se petition for a writ of habeas corpus in Case # 02-CV129038 on September 11, 2002, he specifically wrote in the first paragraph on the first page that he was not in custody, signed the petition, and supplied the Court and the State his current home address. (See Exhibit L). At no time during the next two years while that petition was pending did the State ever seek to revoke Petitioner’s bond, inform the Missouri Supreme Court and request a warrant, or direct Petitioner to surrender. 7. The record conclusively establishes by incontrovertible documentary evidence that Cornealious Michael Anderson III never hid the fact that he was out on bail. 8. Having dispensed with the notion that Petitioner somehow bears some responsibility for the alleged failures of the Clerk of the Court, the documented failure of the State, and the


documented failure of the Department of Corrections, Respondent’s argument that enforcement of this judgment does not violate Due Process fails. 9. Petitioner is not asking this Court to reverse the Missouri Supreme Court. Respondent misses the point entirely. Petitioner is asking this Court to declare his continued incarceration unconstitutional based upon the State’s failure to enforce a judgment for 13 years. 10. The Respondent also ignores binding legal precedent in this State: Ex Parte Bugg, 163
Mo.App. 44, 145 S.W. 831 (Mo. Ct. App. 1912). While it is true that it is old case law, it has not been overruled, bears directly on the case at bar, and because it is a decision from a higher court, is therefore binding upon this Court. Respondent instead focuses on Federal cases, which are neither binding nor similar to the specific facts of this case, and are therefore unpersuasive. This Court is therefore bound by Bugg.

11. Contrary to the Respondent's position, equitable estoppel lies against a governmental entity "where right of justice or the prevention of manifest injustice requires its application." Fraternal Order of Police Lodge #2 v. City of St. Joseph, 8 S.W.3d 257, 263 (Mo. Ct. App. 1999). As the Court of Appeals held in that case, public rights yield to private individual rights when the individual possesses greater equitable rights. Id. 12. Here, Petitioner possesses greater equitable rights than the State. It was the State of Missouri through the Prosecutor that failed or refused to execute upon the judgment of conviction and sentence. It was the Missouri Department of Corrections that failed to take any remedial action on a “prisoner” that was not actually incarcerated until 13 years later. Whether the Clerk of the Court shares any responsibility is irrelevant for the purposes of this petition, because one thing is


abundantly clear – Cornealious Michael Anderson III bears no responsibility for the delay.1 13. The Court of Appeals’ decision in Ex Parte Bugg, 163 Mo.App. 44, 145 S.W. 831 (Mo. Ct.
App. 1912) is worth repeating, as it is particularly applicable in this case.

We do not think that mere delay in the infliction of the punishment assessed is a sufficient reason for relieving the convicted party from the consequences of a judgment against him, unless the delay has been so great that society could derive no good from its enforcement; but when such delay has occurred without the fault of defendant, although with his consent, we should have no hesitancy in refusing to enforce the judgment. The criminal laws of this state are not based upon any idea of retaliation against the offender for the wrong he has done, but punishments are inflicted solely for the protection of society, and when the execution has, without the fault of defendant, been so long delayed that society can no longer have any interest in its enforcement, there would seem to be no good reason why its enforcement should be insisted upon. Id. at 832-833 (emphasis added). 14. The equities in this case clearly favor Petitioner. For 13 years, the State of Missouri utterly neglected to enforce the judgment of conviction and sentence. As a result of this complete failure, or refusal, Cornealious Michael Anderson was lulled into a false sense of security by the State’s lack of interest. Rather than taking advantage of the situation with sinister intentions, he took advantage of his freedom by living a law-abiding, productive and responsible life. He learned a valuable trade as a carpenter, got married, had children, bought and built a home in St. Louis, coached youth football, and joined a church where he was an active member. Eventually, he started three successful businesses where he employed other people, proving himself to be a valuable member of society that benefitted from his activities and his tax revenue.

There is no evidence that supports Respondent’s theory that the Clerk of the Circuit Court failed to transmit the bond to appellate courts. Even if that were the case, as urged above, it was not the Clerk’s duty to enforce the judgment, nor does that excuse the Department of Corrections carrying a “prisoner” on its rolls for 13 years that was not actually incarcerated.


15. One of the goals of the criminal justice system is to reform individuals to make them productive, contributing members of society. He was able to accomplish by himself what the criminal justice system consistently fails to accomplish for millions of others – to reform them and make them better citizens. It would be absurd to expect that incarcerating this man at this stage in his life, given all of his accomplishments, would reform him. Rather, the reverse is true: we would be taking a good person out of society and making him bad. In short, there is no good reason to incarcerate this man after 13 years other than vindictiveness. 16. The cruel and unusual punishment lies not in the 13-year sentence, but its application 13 years later, that would destroy not only the life that this man has worked so hard to achieve, but ruin the lives of 4 young children and a young wife who depend on this man. Such a scenario is not only illegal, but immoral. As the Bible instructs, "Fathers shall not be put to death for their sons, nor shall sons be put to death for their fathers." Deuteronomy 24:16. 17. Prison is intended to segregate those individuals that pose such a threat that their removal from society is necessary for the protection of the public. Prison is inappropriate for people such as Cornealious Michael Anderson III, who are the pillars of the community. Society loses if this man is incarcerated at this stage in his life after all that he has accomplished. 18. “While the measure of what is conscience shocking is no calibrated yard stick, it does, as Judge Friendly put it, ‘poin[t] the way.’” County of Sacramento v. Lewis, 523 U.S. 833, 847 (1998). As of this writing, approximately 27,000 individuals have signed an online petition at supporting Mr. Anderson’s release. As set forth in Exhibit O and the Supplemental Petition, the victim of the crime has come forward and publicly stated that he believes it would be an injustice to force Mr. Anderson to serve this sentence. The continued


incarceration of Mr. Anderson does, indeed, shock the conscience of tens of thousands of people, and should shock the conscience of this Court as well. 19. The Respondent submits that this matter may disposed of by conversion of this matter to a declaratory action. Counsel for Petitioner has researched the matter, and the law as set forth in Anderson v. Crawford 309 S.W.3e 863 (Mo. Ct. App. 2010). The case clearly sets forth a basic premise of law – a person cannot receive credit for jail time while he was actually out on bond unless he was erroneously released. Here, Petitioner was not erroneously released – he was properly released on bond pending appeal. 20. However, this Court has the inherent power to decide this petition and grant the writ to the extent that he is credited for all of the time spent at liberty as if he were incarcerated nunc pro tunc from either (1) the date of his conviction and sentence, May 19, 2000; (2) the date he was released on bond from the Department of Corrections, June 8, 2000, or (3) from the date that his direct appeal was denied by the Missouri Supreme Court, May 28, 2002. That would be the functional equivalent of the alternate course suggested by Respondent. 21. For the reasons set forth in his Petition, Supplemental Petition, and this Reply, Petitioner respectfully requests that this Court grant the relief requested herein. 22. Counsel further requests that this Court hold a hearing in the matter as soon as practicable to determine the merits of the petition, hear argument, and receive evidence as necessary to substantiate the claims made herein.


Dated: April 17, 2014 Respectfully Submitted, /s/ Patrick Michael Megaro, Esq. Patrick Michael Megaro, Esq. Of Counsel, Brownstone, P.A. Attorneys for Petitioner 33 East Robinson Street, Suite 210 Orlando, Florida 32801 (o) 407-255-2165 (f) 855-224-1671 New York Bar ID # 4094983 New Jersey Bar ID # 3634-2002 Florida Bar ID # 738913 North Carolina Bar ID # 46770 Admitted Pro Hac Vice in Missouri

/s/ Samuel Henderson, Esq. Samuel Henderson, Esq. BROWNSTONE, P.A, of counsel 2015 Bredell Street St. Louis, Missouri 63143 (o) 314-775-9798 Missouri Bar ID # 56330 CERTIFICATE OF SERVICE I hereby certify that on April 17, 2014 I filed the foregoing with the Clerk of the Court via electronic filing, and served a paper copy of the same upon the following parties via the United States Postal Service Assistant Attorney General Michael J. Spillane PO Box 899 Jefferson City, Missouri 65102 /s/ Patrick Michael Megaro, Esq. Patrick Michael Megaro, Esq.