Wallace v. Miller

Filing 11

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Steve Larkins, Warden of Chillicothe Correctional Center, is substituted for Jennifer Miller as proper party respondent. IT IS FURTHER ORDERED that Missouri Attorney General Chris Koster is added to this cause of action as a proper party respondent. IT IS FURTHER ORDERED that petitioner Amanda Sue Wallace's petition for writ of habeas corpus (Doc. #1) is dismissed without further proceedings. IT IS FURTHER ORDERED that no certificate of appealability shall issue in this cause inasmuch as petitioner has failed to make a substantial showing that she has been denied a constitutional right. Signed by Magistrate Judge Frederick R. Buckles on 3/20/2013. (NCL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
AMANDA SUE WALLACE,

)
)
)
)
)
)
)
)
)

Petitioner,
v.
JENNIFER MILLER, et al.,
Respondents.1

No. 4:09CV1908 FRB

MEMORANDUM AND ORDER
This cause is before the Court on Missouri state prisoner
Amanda Sue Wallace’s pro se petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254.

All matters are pending before the

undersigned United States Magistrate Judge, with consent of the
parties, pursuant to 28 U.S.C. § 636(c).
I.

Background

On October 11, 2006, petitioner plead guilty to three of
four criminal charges brought against her in three separate cases.
Specifically, petitioner plead guilty to one count of Possession of
a

Controlled

Substance,

one

count

of

Sale

of

Substance, and one count of Escape from Custody.

1

a

Controlled

Pursuant to a

Petitioner is currently incarcerated at the Chillicothe
Correctional Center (CCC) in Chillicothe, Missouri. Inasmuch as
Steve Larkins is Warden of CCC, he should be substituted for
Jennifer Miller as proper party respondent. In addition,
inasmuch as petitioner is challenging a sentence to be served in
the future, Missouri Attorney General Chris Koster should be
added as a proper party respondent. Rules 2(a), (b), Rules
Governing Section 2254 Cases in the United States District
Courts.

plea agreement, petitioner was to receive a sentence of seven
years’

imprisonment

imprisonment

on

on

the

the

possession

distribution

imprisonment on the escape charge.
the

court

would

execute

the

charge,

charge,

eight

and

years’

four

years’

It was also agreed that while

sentences,

petitioner

would

be

furloughed from the jail and be allowed to self-report on the date
the court set for her to be transported to the Department of
Corrections.

Whether these sentences were to run concurrently or

consecutively was dependent upon whether petitioner complied with
the court's order to appear as directed.

To accomplish this, the

judgment and sentence entered by the trial court ran the sentences
consecutively, but the agreement was that it would be amended to
run the terms concurrently when petitioner appeared as directed.
After

pronouncing

its

sentence,

the

trial

court

ordered

petitioner’s release from custody, gave her the date on which she
was to return for transport, and cautioned her against failing to
appear.

See generally Wallace v. State, 286 S.W.3d 864 (Mo. Ct.

App. 2009).
When

the

date

for

petitioner’s

petitioner did not appear as ordered.

transport

A warrant for her arrest was

issued and no amendment of her sentence was made.
apprehended

in

Arkansas

over

arrived,

thirteen

months

Petitioner was
later

and

was

thereafter delivered to the Missouri Department of Corrections.
Within the time permitted by Missouri Supreme Court Rule 24.035,

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petitioner filed a motion for post-conviction relief, which was
dismissed by the trial court pursuant to Missouri’s “escape rule.”
Petitioner appealed the dismissal of the motion. On June 10, 2009,
the Missouri Court of Appeals likewise dismissed petitioner’s
appeal pursuant to the escape rule.

Wallace, 286 S.W.3d at 867-68.

Petitioner filed the instant petition for writ of habeas corpus in
this Court on November 19, 2009.
Petitioner is currently incarcerated at the Chillicothe
Correctional Center in Chillicothe, Missouri.

In the instant

petition, petitioner raises two claims for relief:
received ineffective

1) that she

assistance of counsel by his failure to

disqualify the prosecuting attorney in her case; and 2) that the
trial court erred in dismissing her motion for post-conviction
relief on the basis of the escape rule.

In response, respondents

contend that the Missouri Court of Appeals’ application of the
escape rule constituted an independent and adequate state ground
upon which to deny petitioner relief, and thus that petitioner is
procedurally barred from bringing her claims in this federal habeas
action. For the following reasons, respondents’ contention is well
taken.
II.

Discussion

A petitioner must exhaust her state law remedies before
the federal court can grant relief on the merits of her claims in
a habeas petition. 28 U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel,

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526 U.S. 838, 842 (1999); Echols v. Kemna, 511 F.3d 783, 785 (8th
Cir. 2007).

The Court must first examine whether the federal

constitutional dimensions of the petitioner's claims have been
fairly presented to the state court.

Smittie v. Lockhart, 843 F.2d

295, 296 (8th Cir. 1988); see also Boerckel, 526 U.S. at 848.

If

not, the petitioner may still meet the exhaustion requirement if
there are no currently available non-futile state remedies by which
she could present her claims to the state court.
at 296.

Smittie, 843 F.2d

When the petitioner's claims are deemed exhausted because

she has no available state court remedy, the federal court still
cannot

reach

the

merits

of

the

claims

unless

the

petitioner

demonstrates adequate cause to excuse her state court default and
actual prejudice resulting from the alleged unconstitutional error,
or that a fundamental miscarriage of justice would occur if the
Court were not to address the claims.

Coleman v. Thompson, 501

U.S. 722 (1991); Wainwright v. Sykes, 433 U.S. 72, 87 (1977);
Keithley v. Hopkins, 43 F.3d 1216, 1217 (8th Cir. 1995); Stokes v.
Armontrout, 893 F.2d 152, 155 (8th Cir. 1989).

Before reviewing

any claims raised in a habeas petition, the Court may require that
every ground advanced by the petitioner survive this exhaustion
analysis.

Rhines v. Weber, 544 U.S. 269 (2005).
Federal courts will not entertain a habeas claim if the

state court’s decision on the claim rests on a state law ground
that is independent of the federal question, and adequate to

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support the judgment.

Lee v. Kemna, 534 U.S. 362, 375 (2002); see

also Pollard v. Delo, 28 F.3d 887, 889 (8th Cir. 1994).

For

application of a state procedural rule to be adequate to bar
federal review, the rule must be generally sound and “‘strictly or
regularly followed.’”

Echols, 511 F.3d at 786 (quoting Barr v.

City of Columbia, 378 U.S. 146, 149 (1964)).

“Further, a state

procedural bar is adequate only if state courts have applied the
rule evenhandedly to all similar claims.”

Id. (citing Hathorn v.

Lovorn, 457 U.S. 255, 263 (1982)).
The Missouri escape rule provides that state courts have
the discretion to deny a defendant appellate or post-conviction
relief when the defendant escapes from the control of the state.
Echols, 511 F.3d at 786.

The authority of Missouri state courts to

invoke this rule is triggered by proof that the defendant has, in
fact, escaped, and that the defendant’s escape has impacted the
administration of justice.

Id.

In Echols, the Eighth Circuit

determined that the Missouri escape rule is regularly followed.
Id. at 786-88.

The question thus turns to whether the rule has

been applied evenhandedly to defendants similarly situated to the
petitioner here.
In this cause, petitioner absconded for thirteen months
after her sentencing and after being specifically cautioned by the
court against absconding.

Indeed, petitioner was provided the

opportunity to receive favorable execution of her sentence for a

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voluntary

surrender

for

transport.

In

spite

of

the

court’s

admonition and its favorable consideration, petitioner absconded.
Because of petitioner’s willful failure to appear for transport,
her lack of justification for such failure, and the adverse effect
such conduct had in the administration of justice and on the
criminal justice system, the Missouri Court of Appeals invoked the
escape rule and dismissed petitioner’s appeal. Wallace, 286 S.W.2d
at 867-68.

Missouri courts have consistently applied the escape

rule to similarly situated defendants to deny relief.

See, e.g.,

Dobbs v. State, 229 S.W.3d 651 (Mo. Ct. App. 2007) (affirming
motion

court's

refusal

to

hear

defendant's

motion

for

post-

conviction relief where defendant escaped while awaiting sentencing
and remained at large for several months before being recaptured);
Pradt v. State, 219 S.W.3d 858 (Mo. Ct. App. 2007) (applying rule
where defendant escaped twice and had to be forcefully brought back
before the court); Laws v. State, 183 S.W.3d 629 (Mo. Ct. App.
2006) (affirming motion court's refusal to hear motion for postconviction relief where defendant fled from sentencing and remained
at large for eighteen days before being recaptured); Crawley v.
State, 155 S.W.3d 836 (Mo. Ct. App. 2005) (affirming motion court's
refusal to hear defendant's request for post-conviction relief
where defendant escaped before being sentenced on a probation
violation and remained at large for over eighteen months before
being recaptured); State v. Surritte, 35 S.W.3d 873, 875 (Mo. Ct.

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App. 2001) (applying rule to refuse to hear the defendant's direct
appeal where defendant escaped for four days causing a fourteen-day
delay in sentencing).
In light of the foregoing, the undersigned determines
that the Missouri escape rule is regularly followed and has been
applied

consistently

petitioner

here.

to

As

defendants
such,

the

similarly
Missouri

situated

Court

of

to

the

Appeals’

invocation of the rule to dismiss petitioner’s post-conviction
appeal constituted an independent and adequate state ground upon
which to deny relief.

In addition, petitioner has failed to

demonstrate adequate cause to excuse her state court default and
actual prejudice resulting from the alleged unconstitutional error,
or that a fundamental miscarriage of justice would occur if the
Court were not to address her claims.

Accordingly, petitioner is

barred from pursuing the claims in this federal habeas action.
Coleman v. Thompson, 501 U.S. 722 (1991); Echols, 511 F.3d at 788.

Therefore, for all of the foregoing reasons,
IT

IS HEREBY ORDERED that Steve Larkins, Warden of

Chillicothe Correctional Center, is substituted for Jennifer Miller
as proper party respondent.
IT IS FURTHER ORDERED that Missouri Attorney General
Chris Koster is added to this cause of action as a proper party
respondent.

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IT

IS

FURTHER

ORDERED

that

petitioner

Amanda

Sue

Wallace’s petition for writ of habeas corpus (Doc. #1) is dismissed
without further proceedings.
IT

IS

FURTHER

ORDERED

that

no

certificate

of

appealability shall issue in this cause inasmuch as petitioner has
failed to make a substantial showing that she has been denied a
constitutional right.

UNITED STATES MAGISTRATE JUDGE

Dated this

20th

day of March, 2013.

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