Habeas Corpus in Missouri: A Critical Primer
Ron Ribaudo1The War on Terror initiated after the 9/11 attacks has brought to the fore the federal writ of habeas corpus, the so-called “Great Writ.” Alleged “enemy combatants” held at Guantanamo Bay have sought the Great Writ, resulting in multiple instances of review by the U.S. Supreme Court regarding the availability and scope of habeas review. For state prisoners, though, this debate is of little importance. Federal habeas relief, especially after Congress passed the Anti-Terrorism and Effective Death Penalty Act of 1996, is as common as hen’s teeth: “Less than 1% of state prisoners who file federal habeas petitions ultimately prevail.”
2 The victorious tend to be death row inmates, but even they rarely prevail.
3
By contrast, the availability and scope of state habeas relief has grown in the past 20 years.4 Of the great many doctrines that curtail federal habeas relief – for instance, the “total exhaustion rule,”5 the one-year statute of limitation,6 the “standard of review” limiting relief to cases of “unreasonable” errors,7 the anti-retroactivity principle of Teague v. Lane,8 and the general prohibition on evidentiary hearings9 – none circumscribe state habeas. Moreover, various bases for relief unavailable in federal habeas – for instance, errors of state law10 and actual innocence11 – are available. This article gives a snapshot of the state of habeas law in Missouri, along with some corresponding criticism. Part I addresses the “illegal custody” requirement; Part II identifies the courts that can grant habeas relief; Part III describes the nature of habeas relief; Part IV details the affirmative defenses to habeas relief; Part V adumbrates the Missouri Constitution’s suspension clause; and Part VI discusses a handful of open issues in state habeas.
I. The “Illegal Custody” Requirement
A. What is “Custody”?
The writ of habeas corpus ad subjiciendum is available, according to Missouri Revised Statutes § 532.010, to any “person committed, detained, confined or restrained of his liberty, within this state, for any criminal or supposed criminal matter, or under any pretense whatsoever, except when, according to the provisions of [Chapter 532], such person can be neither discharged nor bailed, or otherwise relieved[.]”12 The phrase “restrained of liberty” is broad enough to include not just physical restraints, but also legal restraints, such as a parole condition requiring a parolee to attend Alcoholics Anonymous meetings. But “restrained of liberty” follows a list of verbs (“committed, detained, confined”) that are physical in nature and a corresponding geographical limitation (“within this state”). Hence, given the canon ejusdem generis, the writ would seem to lie only to challenge physical restraints on liberty. But the case law appears to support a broader reading.13 In Hyde v. Nelson, the Supreme Court of Missouri declared:
It is said that the writ of habeas corpus is intended for the benefit of all persons who may be deprived of their liberty without sufficient cause. An actual restraint is necessary to warrant interference by habeas corpus; but any restraint which precludes freedom of action is sufficient, and actual confinement in jail is not necessary.14
This position was reiterated in State v. Gray.15 Moreover, the scope of the writ of habeas corpus is a substantive question, so a procedural rule such as Rule 91 would seem unable to resolve the issue.16 So a habeas challenge to a condition of parole or probation that requires attendance at Alcoholics Anonymous meetings or prohibits associating with known felons should be cognizable (not that such a challenge would necessarily succeed).
To be sure, release from physical confinement can moot a habeas challenge, but not always. This issue was addressed in State ex rel. D. W. v. Hensley, in which petitioners, who had been institutionalized in a state mental hospital, were released during the pendency of their habeas action.17 The Court ultimately dismissed the case as moot, but only after discussing possible adverse consequences from the challenged commitment orders (e.g., the stigma of being labeled mentally ill).18 If the custody requirement mandates physical restraint, the Court’s discussion of these collateral consequences, which takes up about half of the opinion, would have been meaningless. But the discussion makes sense if a legal restraint on liberty was sufficient to satisfy the custody requirement.
When parole is revoked, there is no question that the parolee can challenge the revocation in a habeas action.19 But what happens when the habeas petitioner is re-paroled during the pendency of his habeas challenge? Is the case moot? The Supreme Court of Missouri addressed this issue in State ex rel. Aziz v. McCondichie.20 Aziz’s parole had been revoked. He filed a habeas petition challenging the revocation. While the habeas action was pending, Aziz was re-paroled, albeit with more onerous conditions (e.g., electronic monitoring) than before. The challenge to the revocation was moot: The board undid the revocation, and a declaration by the court that the parole revocation hearing was marred by error would have no practical effect (damages not being available in habeas).21 But a challenge to the additional parole terms, had it been raised, would appear to be a live issue. (This would be obvious if, instead of mandatory electronic monitoring, the board had ordered Aziz to eat grubs and worship Zarathustra.) Not only do the additional conditions restrain the petitioner’s liberty – all that § 532.010 and Rule 91.01(b) require – the restraint on liberty is greater than before the revocation.
In Aziz, though, the Court held that Aziz’s case was moot. But remember that Aziz did not challenge the additional parole terms. The Court noted that Aziz’s “petition here sought release from prison because of the due process violations in his parole revocation proceeding”;22 and a footnote in the opinion refers to Aziz’s claim (note the singular) as a parole revocation challenge. Nor would one expect Aziz’s petition to have challenged the new parole terms; when it was filed, Aziz was in prison. Still, the Court did spend about half of its opinion addressing the propriety of the board adding new parole conditions without first holding a hearing, indicating that the Court was probably deciding the merits of a challenge to the new parole conditions. Declared the Court:
The offender on parole is under a sentence and is subject to the board’s supervision. If the board determines that additional conditions need to be placed upon an offender, the board is free to do so without the constraints of a hearing. If the board determines that parole supervision is best accomplished through electronic monitoring for a period of time, or residence in a halfway house, the board should be able to make those changes without going through the hearing process.23
Perhaps this was just an advisory opinion, designed to pretermit any later (hopeless) challenge to the new parole conditions, but the Court has repudiated advisory opinions.24 It appears, then, that the Court decided the merits of a challenge to the parole conditions. But that can’t be right either, because the Court dismissed the case as moot.
B. What Makes Custody Illegal?
1. Lack of Jurisdiction
Traditionally, a criminal judgment was immune from habeas challenge unless the judgment was issued by a court lacking the jurisdiction to do so.25 Lack of jurisdiction remains a valid basis for habeas relief.26 There are only two forms of jurisdiction that a circuit court must have to render a judgment: “subject matter … and personal jurisdiction.”27 (So-called “jurisdictional competence” is not a third type of jurisdiction.)28 The former, which is delineated by art V, § 14 of the Missouri Constitution,29 means “the authority of a court to render judgment in a particular case.”30 In criminal cases, “[c]ircuit courts obviously have subject matter jurisdiction to try crimes” and impose sentence.31 However, when a court purports to “impose[] a sentence … in excess of that authorized by law”32 or is affirmatively prohibited by law (e.g., the Second or Sixth Amendments), the sentence is void for lack of jurisdiction – or so the Court held before its decision in J.C.W.33
In State v. Parkhurst,34 the Supreme Court of Missouri addressed the scope of subject matter jurisdiction in criminal cases. The Court held that the failure of an indictment or information to allege the necessary elements of a crime or an ambiguity in the charging document that prevents the defendant from mounting a defense does not strip the circuit court of subject matter jurisdiction. Overruling prior case law, the Court declared: “Cases stating that jurisdiction is dependent upon the sufficiency of the indictment or information mix separate questions.”35 An insufficient indictment, though a due process violation, does not deprive the court of subject matter jurisdiction.36
To be sure, in State ex rel. Simmons v. White, the Court later stated that “the trial court is not deprived of jurisdiction unless the information failed ‘by any reasonable construction [to] charge the offense of which the defendant was convicted’ or prejudiced the substantial rights of the defendant to defend.”37 But Parkhurst (the case upon which Simmons relies) says no such thing.38 Though Parkhurst did hold that an indictment as described by the Simmons statement is defective, it then went on to hold – immediately after discussing what makes a defective indictment – that a defective indictment doesn’t destroy a court’s jurisdiction.39 “[E]ven the complete absence of formal charging instrument is not a jurisdictional defect” – it would just be a due process violation.40 Simmons did not purport to overrule Parkhurst. Nor did Simmons involve such a due process violation, making the quoted statement dictum – dictum inconsistent with both Parkhurst and J.C.W.
The second jurisdictional defect remediable by habeas corpus is lack of personal jurisdiction.41 Personal jurisdiction “is waived by appearing and defending without objection.”42 As a practical matter, lack of personal jurisdiction should never be a valid claim in a habeas action: Either the defendant challenges the trial court’s personal jurisdiction, thereby waiving the challenge, or the defendant challenges personal jurisdiction and loses, precluding re-litigation of the issue. But perhaps personal jurisdiction could be litigated (or re-litigated) if either good cause or novelty cause (more on that later) would authorize litigation or re-litigation.
Three years before J.C.W., the Supreme Court of Missouri held in State ex rel. Verweire v. Moore that there was a third type of jurisdictional defect, an inadequate factual basis supporting a guilty plea.43 Why this is a jurisdictional defect is unclear. The Court cited McCarthy v. United States44 in support of its holding. Yet McCarthy did not hold that the factual basis requirement (of Rule 11 of the Federal Rules of Criminal Procedure) was jurisdictional; and since McCarthy, the U.S. Supreme Court has made clear that the factual basis requirement “is neither constitutional nor jurisdictional.”45 Rather, the factual basis requirement “is designed to assist the district judge in making the constitutionally required determination that a defendant’s guilty plea is truly voluntary” and in producing “a complete record at the time the plea is entered of the factors relevant to this voluntariness determination.”46 The factual basis rule is a case processing rule, and such rules, even if mandatory, are not jurisdictional.47 After all, the factual basis requirement is neither mandated by the Missouri Constitution nor by statute,48 but by a procedural rule,49 which cannot be substantive.50 Verweire also failed to acknowledge that the Missouri Court of Appeals had held, at least twice, that the factual basis requirement is not jurisdictional.51 (Normally when the court breaks new ground it acknowledges prior conflicting, or apparently conflicting, decisions.) Moreover, if the lack of a factual basis were jurisdictional, it could be raised on direct appeal, but no direct appeal has yielded a published opinion addressing the merits of a factual basis challenge, and, post-Verweire, the Western District has held that such a challenge, not being jurisdictional, is “not cognizable on direct appeal.”52
Verweire also equated an inadequate factual basis with a due process violation (of the requirement that a plea be knowing, voluntary, and intelligent).53 “Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.”54 It is thus nonsense to say, as the Court essentially did, that the jurisdictional defect in Verweire (i.e., that accepting Verweire’s plea and sentencing him despite the lack of a valid factual basis) resulted in a due process violation. Either the plea court had the power to act, in which case it could violate the due process clause, or it lacked the power to act, in which case it could not.
2. Constitutional, Statutory, or Rule Violations
Any constitutional, statutory, or rule violation that is not harmless would seem to render custody illegal and hence form a basis for habeas relief.55 That is presupposed by the case law, in particular the procedural default doctrine, which generally precludes habeas review of claims that could have been, but were not, raised on direct or post-conviction appeal.56
3. Actual Innocence
Traditionally, the innocence of a person afforded a fair trial did not warrant habeas relief – even if the non-issuance of a writ meant death.57 In State ex rel. Amrine v. Roper, though, the Supreme Court of Missouri rejected this tradition.58 Labeling the execution of an innocent person an “intolerable wrong,” a manifest injustice and an “unconstitutional result,” the Court held that it was “incumbent” to craft a remedy should it be presented with “sufficient evidence of innocence to undermine the habeas court’s confidence in the … judgment.”59 The Court then also noted its obligation, under § 565.035, to review the “strength of the evidence.”60 To establish actual innocence under Amrine, “the petitioner [must] make a clear and convincing showing of actual innocence that undermines confidence in the correctness of the judgment. . . . Evidence is clear and convincing when it ‘instantly tilts the scales in the affirmative when weighed against the evidence in opposition, and the fact finder’s mind is left with an abiding conviction that the evidence is true.’”61 The reference to the “fact finder” may mean that it is the jury’s confidence that matters. Given the Court’s disposition, however – the Court granted the writ after twice stating that “our confidence in the correctness of the judgment”62 had been undermined – it appears that it is the habeas court’s confidence. (Question: Why not present the new evidence, poll the original jury to see whether at least one juror would consider the evidence to satisfy the clear and convincing evidence standard, and then allow the habeas court to review that finding for rationality review, on analogy to a sufficiency challenge on direct appeal? That would eliminate the perception of unelected judges acting as a super-jury, while at the same time realizing that jurors in rare cases act irrationally in convicting.) A finding of “actual innocence” is a misnomer: It does not prohibit re-prosecution, should the prosecutor have evidence that it did not use at the original trial (presumably sufficient to rebut the Amrine finding).63 An open issue is whether the state could present new evidence – that is, evidence discovered after trial. Allowing the habeas petitioner, who is presumed guilty, to present new exculpatory evidence, but disallowing the state from doing so, would stack the deck in the petitioner’s favor.
Does a guilty plea bar an actual innocence claim? Must an actual innocence petitioner present new evidence of innocence? Can a non-capital prisoner secure relief under Amrine? The answer to the first question is “no,” to the second question “yes” (unless the record clearly establishes the petitioner’s innocence),64 and to the third question “probably yes.” In Verweire, the Court found the petitioner, who presented no new exculpatory evidence, innocent of a crime to which he pled guilty, thereby answering the first two questions.65 Technically, Verweire only addressed a gateway (not freestanding) claim of innocence.66 But the Court’s strong language – the first sentence of the opinion said the Court was presented with the “rare situation in which a criminal defendant pled guilty to a crime he did not commit”67 – indicates that the Court probably would have granted relief under Amrine. Verweire did raise an Amrine claim, but, given the Court’s finding that the plea record established that Verweire did not commit the crime to which he pled guilty, it was unnecessary to address the issue. Granted, some of Amrine’s reasoning is limited to capital cases, but just as it is a manifest injustice to execute an innocent person – one of the reasons given in Amrine – so it is a manifest injustice, albeit not so grave, to allow an innocent person to languish in prison. Notably, Judge Wolff issued a concurrence in Amrine declaring flatly that “manifest injustice” – a requirement for plain error review in all direct appeal cases68 — “is not limited to death penalty cases[,]”69 noting (in a footnote) the use of exculpatory DNA evidence under §§ 547.035 and 547.037 as an example of a basis for relief to all prisoners.70 No other judge joined Wolff’s concurrence, and to date no majority opinion from the Supreme Court of Missouri has squarely addressed the cognizability of Amrine claims in non-capital cases.
4. Prison Conditions In Violation of the Eighth Amendment
The writ of habeas corpus can be used to challenge prison conditions that constitute “cruel and unusual punishment” under the Eighth Amendment.71
II. Courts That Can Issue the Writ
Any Missouri appellate or circuit court can issue the writ.72 In the absence of “good cause” for filing in a higher court, though, a writ filed by (or on behalf of) a person “held in custody on a charge of a crime” must first be filed from the circuit court in the county of custody.73 (When there is a factual dispute, the petition should generally be filed with the circuit court.74) Death row inmates, however, must file their petitions solely with the Supreme Court of Missouri.75
Normally, review of a habeas court’s denial of the writ is unavailable.76 The denial cannot be appealed.77 The remedy is to reapply for the writ from a higher court.78 There is no rule or statute that dictates whether a habeas petitioner must, after losing at the circuit level, seek relief from the Missouri Court of Appeals before petitioning the Supreme Court of Missouri. (Strategically, it is unwise to skip the Court of Appeals, except where the sentence is soon to expire and the petitioner thinks, correctly or not, that the Supreme Court of Missouri is more likely to grant relief.) Once a “higher court” – the Supreme Court of Missouri or the Missouri Court of Appeals – denies the writ, no lower court can issue the writ challenging the same form of custody unless the denial is without prejudice to proceeding in a lower court.79
III. The Nature of Habeas Relief
Once illegal custody is proven, the habeas remedy is an order from the habeas court to the custodian to discharge the petitioner (or, in Eighth Amendment cases, to cease the cruel and unusual punishment).80 At the federal level, conditional writs – writs that “delay the release . . . in order to provide the State an opportunity to correct the constitutional violation”81 – are often issued. No Supreme Court of Missouri rule or statute prohibits such writs, and the Supreme Court of Missouri has itself issued such writs.82 True, in State ex rel. Mertens v. Brown, the Supreme Court of Missouri invalidated a conditional writ, but it did so because (a) the writ purported to order a sister circuit court (i.e., a non-custodian) to correct an error, arrogating to itself a supervisory power it lacked, and (b) the order was prohibited by law. The Court did not purport to reject all conditional writs.83 When the state can re-prosecute or when the Board of Probation and Parole needs additional time to formulate a home plan for a parolee, a conditional writ seems appropriate.
IV. Affirmative Defenses to Habeas Relief
A. The Procedural Default Doctrine & Exhaustion Requirement
Neither statute84 nor rule specifies whether (or under what circumstances) a habeas court can grant relief based on claims that could have been, but weren’t, and can no longer be raised, in a prior proceeding (e.g., on direct appeal). To avoid “a chaos of [habeas] review unlimited in time, scope, and expense,” the Supreme Court of Missouri has declared that “habeas corpus is not a substitute for appeal or post-conviction proceedings.”85 Thus, the aforementioned claims are procedurally barred (i.e., defaulted).86 Similarly, habeas review of unexhausted claims – claims that are “adequate and available” in a non-habeas action (e.g., a Rule 29.15 action)87 – cannot be heard in a habeas action.88 Whether there must be total exhaustion – that is, the court must dismiss the case if any claim is unexhausted — or whether the habeas court is just forbidden from granting relief based on unexhausted claims, but can adjudicate exhausted claims, is an open issue.
The procedural bar doctrine is not absolute. To begin with, jurisdictional claims are not covered by the doctrine.89 The doctrine is just a type of forfeiture or waiver90 principle, and the lack of “subject matter [though not personal] jurisdiction can [never] be waived” or forfeited (not even by consent).91 Once litigated, though, jurisdictional claims cannot be re-litigated in habeas corpus.92
A second limitation on the procedural bar doctrine is that it does not bar litigation of defaulted claims when the petitioner can mount a successful “gateway” claim of innocence.93 Such a claim generally requires the presentation of new exculpatory evidence that, in light of the evidence in the trial or plea record, proves that it is more likely than not that no reasonable juror would have convicted the petitioner.94 No new evidence is required if, as in Verweire, the plea record by itself establishes the petitioner’s innocence. “With the exception of the penalty phase in capital cases, manifest injustice under the ‘actual innocence’ standard applies only to the issue of guilt or innocence and is of no avail to claims of error committed during the sentencing process.”95
A third limitation is that defaulted claims can be litigated if there is good cause excusing the default and actual prejudice from the resulting claim.96 Cause requires an objective factor external to the defense that impeded compliance with the procedural requirement for raising the claim earlier (e.g., in a post-conviction action).97 Ineffective assistance of post-conviction counsel, not being external to (i.e., beyond the control of) the defense, but rather internal to the defense, cannot excuse a default.98
Why? “Attorney ignorance or inadvertence is not ‘cause,’ because the attorney is the petitioner’s agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must ‘bear the risk of attorney error.’”99 But there is a limit to this imputation principle. To bind the principal, the agent must have actual, implied, inherent, or apparent authority. Such authority is usually present, but not always. Moreover, this agency rationale presupposes the principal’s (here, defendant’s) capability to control the agent directly (e.g., by firing or demoting the agent) or indirectly (e.g., by getting reimbursement), making it fair to bind the principal – or at least creating a mechanism for compensating the principal. When an attorney suffers from a conflict of interest, especially an undisclosed conflict, the ability to control the principal is lacking.100 Plus, a malpractice action against the conflicted or incompetent counsel might not be available. There is no constitutional right to post-conviction or effective post-conviction counsel, and a civil rights action under 42 U.S.C. §1983 would be barred in any event. Though in Missouri, unlike most states, exoneration is not a prerequisite for a legal malpractice action,101 in most cases the defendant or post-conviction movant is represented by a public defender, who might be shielded either by official immunity (except in cases of ministerial duties, such as filing a notice of appeal) or collateral estoppel.102 In any event, most public defenders lack the resources to pay a malpractice judgment, so malpractice victims will have to hope that the public defenders, to the extent they can be sued, have adequate malpractice insurance. Even if damages were available, moreover, money is no cure for wrongful imprisonment – and of little comfort to prisoners given their potential liability for the costs of their incarceration.103 Finally, it should be noted that Missouri recognizes abandonment by post-conviction counsel, which is, in effect, a limited form of ineffectiveness.104
One form of good cause is novelty cause.105 “Where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable state procedures.”106 What makes a claim “not reasonably available” is unclear. No Missouri opinion has thoroughly explained the phrase’s meaning. (Like the U.S. Supreme Court, though, the Supreme Court of Missouri has held that novelty cause exists when a claim rests upon “a new constitutional rule that explicitly overrules a past decision of the Court.”107 A rule is a new rule, for constitutional purposes, if it is not “dictated by precedent existing at the time the defendant’s conviction became final.”108) The federal case law interpreting and applying novelty cause embraces two limitations on novelty cause: (1) the claim must not just have been unavailable, but reasonably unavailable, and (2) that because under established lower court precedent the claim would have been rejected (in effect, “futile” to have raised the claim) does not necessarily make it novel.109 Normally, if the claim had been previously raised in (published opinions from) other jurisdictions (successfully or not), it would be “reasonably available.”110 After all, challenging settled precedent is not unheard of, although it may be tactically unwise.111 “[T]he question is not whether subsequent legal developments have made counsel’s task easier, but whether at the time of default the claim was ‘available’ at all.”112
B. Successive Habeas Petitions
That a claim has been litigated in an earlier habeas action is not an absolute bar on re-litigating that claim in a successive habeas action.113 “But the opportunities for such relief [based on successive claims] are extremely limited. A strong presumption exists . . . against claims that already have once been litigated.”114 The Court has not specified when relief would be available. Perhaps it would be available: (a) when there was no appeal of the claim (direct or post-conviction), but had the claim been raised on appeal it would have been rejected, given settled precedent; and (b) if the prior habeas court’s rejection of the claim were treated as if it were the mandate, grounds for recalling the mandate would exist. Otherwise, the petitioner would be punished for declining to raise a claim on appeal that, at the time, was, as a practical matter, baseless.
C. The Anti-Retroactivity Principle
Can habeas relief be based on a new rule of law (i.e., one not dictated by precedent)? In federal court, the answer is “yes.” Teague v. Lane115 prohibits relief predicated on a new rule (of constitutional law) unless (a) the rule is a “‘watershed rule[ ] of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding” or (b) places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.116 Teague does not, however, bind state courts.117 And Missouri follows an earlier, less restrictive approach to retroactivity – namely the approach of Linkletter v. Walker118 and Stovall v. Denno.119 Whether a new rule applies retroactively is ascertained by weighing “(a) the purpose to be served by the new [rule], (b) the extent of the reliance by law enforcement authorities on the old [rules], and (c) the effect on the administration of justice of a retroactive application of the new [rule].”120
V. The Suspension Clause
Suspension of the writ is prohibited by the Missouri Constitution. Suspension “relates to denial of the substantive right to have judicial inquiry into the cause of and justification for allegedly illegal detention, not to the form and procedure utilized in such proceeding.”121 Procedural restrictions, such as time limitations and forum restrictions, if “reasonable and effective, … do not constitute a suspension,” for “[i]t would be illogical to hold that a particular form of proceeding labeled habeas corpus must be available to a prisoner seeking release . . . to be chosen in preference to another prescribed procedure which has the same objective, protects the same rights and achieves the same results.”122 Consequently, the post-conviction relief under Rules 24.035 and 29.15 likely suffices as a substitute for state habeas under Rule. 91.01.123
VI. Open Issues in Habeas Corpus
A. The Effect of the Habeas Statute
The writ of habeas corpus is a creature of the common law, and ordinarily statutes trump the common law. In fact, Missouri statutes must be interpreted liberally to achieve their ends, an inversion of the derogation canon.124 There is a habeas statute, § 532.430, which states that
such prisoner can only be discharged [by a writ of habeas corpus] in one of the following cases:
(1) Where the jurisdiction of such court or officer has been exceeded, either as to matter, place, sum or person;
(2) Where, though the original imprisonment was lawful, yet, by some act, omission or event, which has taken place afterward, the party has become entitled to be discharged; (3) Where the process is defective in some matter of substance required by law, rendering such process void;
(4) Where the process, though in proper form, has been issued in a case or under circumstances not allowed by law;
(5) Where the process, though in proper form, has been issued or executed by a person who is not authorized by law to issue or execute the same, or where the person having the custody of such prisoner under such process is not the person empowered by law to detain him;
(6) Where the process is not authorized by any judgment, order or decree, nor by any provision of law.
No published opinion has addressed whether § 532.430 limits the scope of the writ of habeas corpus – or is inconsistent with any habeas doctrines developed by the Supreme Court of Missouri. It must be presumed, however, that the Court considered § 532.430 when it developed its habeas jurisprudence. Moreover, § 532.430 provides that “process” resulting in the challenged custody can warrant habeas relief when it is “not authorized . . . by any provision of law” or, generally speaking, where the “process” is prohibited or unauthorized by “law,” a category that includes the common law – namely, law created by the judiciary in an incremental fashion. But wouldn’t that eviscerate the statue’s intent to limit the scope of habeas, as revealed by the prefatory statement that “such prisoner can only be discharged in one of the following cases”? Perhaps the statute is referring to statutory law (or the law, statutory or otherwise, in existence when § 532.430 was passed).
B. The Availability of the Writ to Those Held Outside Missouri
Section 532.010 makes habeas available to those whose liberty is restrained “within [Missouri].”125 Logically, as argued above, this does not necessarily mean that the writ is unavailable to persons physically outside of Missouri. Moreover, the common law (in the absence of a statute to the contrary) controls the scope of the writ – and the common law could evolve to apply outside of Missouri. Of course, the custodian would have to have some minimum contacts with Missouri for a Missouri court to exercise personal jurisdiction over the custodian (which would be present, say, if a mother abducted her daughter from Missouri and traveled to Ohio). In some cases, the ultimate custodian may be located in Missouri, though the proximate custodian is located outside Missouri, as in the case of a Missouri prisoner being held outside Missouri at the behest of the Missouri Department of Corrections. The availability of habeas for such a prisoner would be crucial if, for example, (a) the prisoner had valid state law grounds for securing his release not cognizable in federal habeas (e.g., a state law violation), and (b) habeas relief was unavailable in the state of physical confinement. In such or similar cases, the U.S. or Missouri constitutions or the common law might vest jurisdiction in a Missouri court to entertain the suit.126 After all, the principle “ubi jus, ibi remedium”127 is a “well-recognized axiom of the law[.]”128
C. Abandonment & the Procedural Default Doctrine
Post-conviction relief can be sought by filing with the sentencing court a timely motion for relief under Rules 24.035 (guilty pleas) or 29.15 (not-guilty pleas). An untimely original post-conviction motion fails to invoke the court’s jurisdiction.129 Abandonment by post-conviction counsel excuses the untimely (or non-existent) filing of an amended motion,130 but generally does not apply to the initial post-conviction motion.131 Two important questions arise regarding the intersection between the abandonment doctrine and habeas corpus: (1) Is abandonment “good cause” that can excuse a procedural default? (2) Can a defective abandonment argument be good cause?
The answer to the second question is “yes,” so long as the abandonment claim is not a veiled claim of ineffective assistance of post-conviction counsel.132 The answer to the first question should be “no.”
In State ex rel. Nixon v. Sheffield, the Southern District assumed that abandonment constitutes good cause.133 But
“[j]udicial assumptions concerning, judicial allusions to, and judicial discussions of issues that are not contested are not holdings.”134 In addition, there are two reasons to believe that habeas would not be available to an inmate with a viable abandonment argument. To begin with, the Supreme Court of Missouri has stated that when other remedies (presumably non-discretionary remedies) are “adequate and available”135 – and when there is a viable abandonment argument, post-conviction relief is available – the claim is not cognizable in habeas. Moreover, the “proper remedy” for abandonment is “to put the movant in the place where the movant would have been if the abandonment had not occurred[,]”136 whereas allowing the abandoned movant to elect whether to proceed in habeas (perhaps in a court more likely to grant relief, if only because the court only has a cold record before it) or in a post-conviction motion (in the sentencing court) overcompensates the movant. So a valid abandonment claim should not be cognizable in state habeas.
D. State Habeas & the Federal Exhaustion Rule
Before a state prisoner can seek federal habeas relief under 28 U.S.C. § 2254, usually the prisoner must first give the state courts a chance to consider all constitutional claims the prisoner would like to raise in federal court.137 “An applicant shall not be deemed to have exhausted the remedies available in the courts of the state, within the meaning of this section, if he has the right under the law of the state to raise, by any available procedure, the question presented.”138 Despite this absolute language, the U.S. Supreme Court has “held that state prisoners do not have to invoke extraordinary remedies when those remedies are alternatives to the standard review process and where the state courts have not provided relief through those remedies in the past.”139
VII. Possible Alternatives to Habeas Corpus
This section discusses the judicial remedies available to Missouri prisoners besides state and federal habeas corpus: namely, declaratory judgment actions under Rule 87, extraordinary writs of prohibition and mandamus, and civil rights actions under 42 U.S.C. § 1983.
A. Declaratory Judgment Actions
The Missouri Court of Appeals has held, and the Supreme Court of Missouri has strongly implied, that circuit courts lack jurisdiction to entertain declaratory judgment actions attacking convictions or sentences.140 This seems inconsistent with the Supreme Court’s treatment of jurisdiction in J.C.W. Moreover, the broad text of the Declaratory Judgment Act – “circuit courts of this state . . . shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed”141 – seems to authorize such actions (though, according to the Western District, res judicata would be a valid affirmative defense.)142 However, a declaratory judgment action does not lie when there is an adequate remedy at law.143 This would explain why an inmate cannot seek relief by way of a declaratory judgment action when relief under Rules 24.035 or 29.15 is available. But what about an inmate who can no longer seek relief under those rules because of the bar on successive actions or expiration of the time limitations for bringing such an action? The answer is that habeas corpus – a civil action144 at law, not in equity145 – should be available. To be sure, doctrines that limit the availability of habeas (e.g., the procedural bar doctrine) don’t apply (not directly, anyway) to declaratory judgment actions, but that doesn’t make habeas inadequate. To the contrary, allowing a declaratory judgment action free of these restrictions would allow the petitioner to evade these legitimate requirements. Given the availability of state and federal habeas and post-conviction actions, Missouri courts will likely interpret the declaratory judgment action as not covering collateral attacks on criminal judgments.
B. Extraordinary Writs – Prohibition & Mandamus
Where relief is available either in state habeas or in an extraordinary writ (e.g., prohibition) action, the petitioner can seek relief by way of either action.146
C. 42 U.S.C. § 1983
The literal language of 42 U.S.C. § 1983 authorizes constitutional challenges to state convictions: “Every person who, under color of any statute . . . of any State . . . subjects, or causes to be subjected, any . . . person within the jurisdiction thereof to the deprivation of any rights . . . secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” Nonetheless, in Heck v. Humphrey,147 the U.S. Supreme Court held that there is no cause of action under 42 U.S.C. § 1983 if the challenge would necessarily invalidate either the state conviction or sentence, in the absence of a prior invalidation, by habeas or otherwise, of the conviction or sentence.148 Otherwise, the exhaustion rule governing actions under 28 U.S.C. § 2254 would be frustrated (since § 1983 does not require exhaustion).
Heck presupposed that the would-be § 1983 petitioner would be imprisoned and hence satisfy the custody requirement of § 2254.149 Neither Heck nor the subsequent U.S. Supreme Court cases have addressed whether state prisoners not in custody, and hence unable to invoke federal habeas relief, can pursue relief in a § 1983 action.150 Suppose, for instance, that a prosecutor’s Brady violation151 and subsequent cover-up prevented the prisoner from discovering the violation until after completing the sentence. Suppose the state (adopting a win-at-all-costs mindset) were to parole an inmate in order to moot a constitutional challenge. Or suppose the sentence was so short that, by the time state remedies were exhausted – perhaps years after the conviction – the inmate no longer could seek federal habeas relief.152
Justice Souter’s concurrence in Heck, joined by three other justices, noting the broad language of § 1983 and the Court’s history of liberally construing remedies under § 1983, would recognize such an action. Later, in Spencer v. Kemna,153 a fifth justice, Justice Ginsburg, joined the concurrence.154 Since Spencer, however, Justice O’Connor (who joined the concurrence) and Justice Rehnquist (who did not) have both left the Court, and the Court has not directly faced this issue, so there is neither holding nor strong evidence whether the Court would authorize a § 1983 by an inmate unable to satisfy the custody requirement of § 2254(a). Only a small number of federal courts follow the concurrence, though.155 Whether Missouri courts would follow the concurrence is unclear.
Footnotes
1 Ron Ribaudo is the founding member of The Ribaudo Law Firm in Lake St. Louis, a former Missouri Assistant Attorney General, and former clerk for the Honorable Judge Harold Lowenstein. He graduated from the University of Missouri-Columbia School of Law and is licensed in Missouri, New York, and Illinois.
2 John H. Blume, AEDPA: The “Hype” and the “Bite,” 91 Cornell L. Rev. 259, 284 (2006).
3 Id. at 285 (“From 1997 to 2004, only 8% of death-sentenced inmates were successful . . . [A] plausible argument can be made that AEDPA has . . . made it more difficult for death-sentenced inmates to obtain a new trial or sentencing hearing once the case enters federal court.”). Id.
4 See Rule 91.
5 28 U.S.C. § 2254(b)(1)(A).
6 28 U.S.C. § 2244(d)(1).
7 28 U.S.C. § 2254(d).
8 489 U.S. 288 (1989).
9 28 U.S.C. § 2254(e)(2).
10 28 U.S.C. § 2254(a).
11 Herrera v. Collins, 506 U.S. 390 (1993).
12 Section 532.010, RSMo 2000. See also Rule 91.01(b).
13 Compare 28 U.S.C. § 2254(a) (authorizing habeas relief “in behalf of a person in custody pursuant to the judgment of a State court…”).
14 229 S.W. 200, 202 (Mo. 1921). But see State ex rel. Thompson v. Rutledge, 59 S.W.2d 641, 642 (Mo. banc 1933) (dictum: “Any application for such a writ [of habeas corpus] which does not show actual imprisonment must be denied.”).
15 406 S.W.2d 580, 582 (Mo. 1966)
16 State ex rel. K.C. v. Gant, 661 S.W.2d 483 (Mo. 1983).
17 574 S.W.2d 389 (Mo. banc 1978).
18 Id.
19 Id.
20 132 S.W.3d 238 (Mo. banc 2004) (per curiam).
21 Id. at 241. See In re P.L.O., 168 S.W.3d 716, 718 (Mo. App. S.D. 2005).
22 132 S.W.3d at 241.
23 Id. at 240.
24 State v. Self, 155 S.W.3d 756 (Mo. banc 2005) (“[I]t is not this Court’s prerogative to offer advisory opinions on hypothetical issues that are not necessary to the resolution of the case before it.”) Id. at 761.
25 Ex Parte Dixon, 52 S.W.2d 181, 182 (Mo. banc 1932).
26 State ex rel. Simmons v. White, 866 S.W.2d 443, 446 (Mo. banc 1993).
27 J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249, 252 (Mo. banc 2009). The J.C.W. Court did not, however, expressly overrule its prior case law that held that when a statute speaks expressly in terms of “jurisdiction,” such as § 452.450 RSMo (2000), the statute limits the subject matter jurisdiction of a circuit court. See, e.g., Pirisky v. Meyer, 176 S.W.3d 145, 146 (Mo. banc 2005). But these cases appear to be infirm give the Court’s analysis in J.C.W.
28 Id.
29 “The circuit courts shall have original jurisdiction over all cases and matters, civil and criminal. Such courts may issue and determine original remedial writs and shall sit at times and places within the circuit as determined by the circuit court.” Id. at 253-54 (emphasis in original).
30 Id. at 254.
31 State v. Parkhurst, 845 S.W.2d 31, 35 (Mo. banc 1992) (cited by Simmons, 866 S.W.2d at 446).
32 State ex rel. Osowski v. Purkett, 908 S.W.2d 690, 691 (Mo. banc 1995) (per curiam); Merriweather v. Grandison, 904 S.W.2d 485, 489 (Mo. App. W.D. 1995).
33 State v. Whitfield, 107 S.W.3d 253, 272 n.19 (Mo. banc 2003); State ex rel. Green v. Moore, 131 S.W.3d 803 (Mo. banc 2004). This principle is in tension with J.C.W. In J.C.W., the Court held that because the case was a civil case – and thus a subset of “all cases and matters, civil and criminal” (citing Mo. Const. art. V, § 14) – the circuit court had subject matter jurisdiction. Subject matter jurisdiction is not a matter of statutory authority. When a circuit court imposes a sentence, it is likewise presiding over a subset of “all cases and matters, civil and criminal.” That the circuit court imposes a sentence unauthorized by statute doesn’t change that. On the other hand, under the Court’s “general definition” of subject matter jurisdiction, the “authority [of a court] to render … judgment” in a particular case, the purported imposition of a statutorily-unauthorized sentence would appear to be without authority – that is, a source of common or positive law. Id. at 810, n.6. Perhaps the Court is using jurisdiction in two different senses – one for civil cases, another for purposes of criminal cases (or just habeas cases). One problem: In both J.C.W. (civil case) and Parkhurst (criminal case), the Court was interpreting the same constitutional provision, art. V, § 14. Cf. Gen. Dynamics Land Sys.v. Cline, 540 U.S. 581 (2004) (“The tendency to assume that a word [that] appears in two or more legal rules, and so in connection with more than one purpose, has and should have precisely the same scope in all of them, runs all through legal discussions. It has all the tenacity of original sin and must constantly be guarded against.”). Id. at 600, n. 8.
34 845 S.W.2d 31, 35 (Mo. banc 1992).
35 Id. at 35.
36 Id. at 34-35; Rupert v. State, 250 S.W.3d 442, 446-47 (Mo. App. E.D. 2008).
37 866 S.W.2d 443, 446 (Mo. banc 1993).
38 See Rupert v. State, 250 S.W.3d 442, 446-47 (Mo. App. E.D. 2008).
39 Id.
40 State v. Hicks, 221 S.W.3d 497, 502 (Mo. App. W.D. 2007) (interpreting Parkhurst).
41 Parkhurst, 845 S.W.2d at 35.
42 Parkhurst, 845 S.W.2d at 37 n.4.
43 211 S.W.3d 89 (Mo. banc 2006).
44 394 U.S. 459, 466 (1969).
45 United States v. Timmreck, 441 U.S. 780, 783-84 (1979). See also United States v. Cleary, 46 F.3d 307, 310-11 (3rd Cir. 1995) (finding a factual basis violation but declining to grant collateral relief).
46 McCarthy, 394 U.S. at 465.
47 Eberhart v. United States, 546 U.S. 12 (2005) (per curiam).
48 Cf. Bowles v. Russell, 551 U.S. 205 (2007) (treating statutory status of rule as an indication that it is jurisdictional).
49 Rule 24.02(e).
50 See Mo. Const. art. V, § 5. (“The supreme court may establish rules relating to practice, procedure and pleading for all courts and administrative tribunals, which shall have the force and effect of law. The rules shall not change substantive rights.”). Id.
51 State v. Henry, 88 S.W.3d 451, 457 (Mo. App. W.D. 2002); Sales v. State, 700 S.W.2d 131, 133 (Mo. App. S.D. 1985) (citing and quoting Timmreck).
52 See Henry, 88 S.W.3d at 457.
53 Verweire, 211 S.W.3d 89, passim.
54 Ex parte McCardle, 74 U.S. 506, 514 (1868).
55 See generally § 532.430, RSMo 2000.
56 See Section IV, A infra, at 13-14.
57 Herrera v. Collins, 506 U.S. 390 (1993). In Herrera, five justices assumed, for the sake of argument, that a truly persuasive case of actual innocence would warrant habeas relief. But that assumption is not a holding, but rather dictum, for the Court was not addressing such a case.
58 102 S.W.3d 541 (Mo. banc 2003).
59 Id. at 547.
60 Id. This justification is not very persuasive. Section 565.035 addresses the Court’s duties on appeal (and habeas is not an appeal, but an original action). Also, nothing in § 565.035 hints that the duty to review the “strength of the evidence” is “obviously . . . a continuing one.” To the contrary, § 565.035 repeatedly mentions the Court “decision,” in the singular. And § 565.035 only requires the Court to make a plenary review of the strength of the evidence for purposes of deciding whether to overturn the death penalty.
61 Id. at 548.
62 Id. (Emphasis added).
63 See id. at 550.
64 See State ex rel. Verweire v. Moore, 211 S.W.3d 89 (Mo. banc 2006).
65 Id. at 90.
66 See id. at 91.
67 Id. at 90 (emphasis added).
68 Rule 84.13(c).
69 Amrine, 102 S.W.3d at 549.
70 Id. at 550.
71 McIntosh v. Haynes, 545 S.W.2d 647, 652 (Mo. banc 1977).
72 Mo. Const. art. V, §4.1.
73 Rule 91.02(a).
74 Abel v. Wyrick, 574 S.W.2d 411, 416 (Mo. banc 1978).
75 Rule 91.02(b); State ex rel. Nixon v. Daugherty, 186 S.W.3d 253, 254 (Mo. banc 2006).
76 If the Missouri Court of Appeals issues a formal opinion (published or not) explaining the denial of habeas corpus, the petitioner can seek transfer from the Supreme Court of Missouri. See Mo. Const. art. V, § 10.
77 Shanks v. Purkett, 169 S.W.3d 149, 150 (Mo. App. E.D. 2005).
78 E. W. v. K. D. M., 490 S.W.2d 64, 66, 68 (Mo. banc 1973). Cf. State ex rel. Nixon v. Kelly, 58 S.W.3d 513, 516 (Mo. banc 2001) (noting that the Attorney General is entitled to review of the grant of a writ of habeas corpus by way of a writ of certiorari).
79 Rule 91.22.
80 Rule 91.08.
81 Hilton v. Braunskill, 481 U.S. 770, 775 (1987).
82 Amrine, 102 S.W.3d at 549 (requiring prisoner to be discharged unless the state reprosecuted him within 30 days).
83 198 S.W.3d 616, 619 (Mo. banc 2006) (per curiam).
84 Ch. 532, RSMo 2000.
85 Simmons, 866 S.W.2d at 446.
86 Id.
87 Clay v. Dormire, 37 S.W.3d 214, 217 (Mo. banc 2000) (citing Simmons, 866 S.W.2d at 445-46). Cf. State ex rel. White v. Davis, 174 S.W.3d 543, 548 (Mo. App. W.D. 2005) (holding that availability of relief by way of a writ of prohibition does not deprive courts of jurisdiction to grant same relief by way of habeas corpus).
88 The procedural default doctrine is similar to claim preclusion. But claim preclusion requires an identity of parties and of the cause of action, Sotirescu v. Sotirescu, 52 S.W.3d 1 (Mo. App. E.D. 2001), which cannot be satisfied in habeas actions.
89 What if the jurisdictional claim could now be raised in a (timely) Rule 24.035 or Rule 29.15 action or a motion for new trial? The Western District has stated that “[e]ven in a jurisdictional case . . . the present availability of Rule 24.035 or Rule 29.15 relief might be grounds for denying the writ of habeas corpus.” Merriweather v. Grandison, 904 S.W.2d 485, 489 (Mo. App. W.D. 1995).
90 On the distinction, see United States v. Olano, 507 U.S. 725 (1993).
91 Van Dyke v. LVS Bldg. Corp., 174 S.W.3d 689, 694 (Mo. App. W.D. 2005).
92 See Sexton v. Jenkins & Assocs., Inc., 152 S.W.3d 270, 274 (Mo. banc 2005) (“[W]hen the question of subject matter jurisdiction has been fully litigated in the original forum, the issue cannot be retried in a subsequent action between the parties.”).
93 Clay, 37 S.W.3d at 217.
94 Id.
95 Id. at 218.
96 State ex rel. Taylor v. Moore, 136 S.W.3d 799, 801 (Mo. banc 2004).
97 Id. at 801; State ex rel. Nixon v. Sheffield, 272 S.W.3d 277 (Mo. App. S.D. 2008).
98 Sheffield, 272 S.W.3d at 283.
99 Coleman v. Thompson, 501 U.S. 722, 753 (1991).
100 See, e.g., Jamison v. Lockhart, 975 F.2d 1377, 1378-80 (8th Cir. 1992) (recognizing that failure to raise conflict of interest in state habeas action brought pro se can be excused by non-disclosure of conflict of interest by trial counsel).
101 Jepson v. Stubbs, 555 S.W.2d 307, 313-14 (Mo. banc 1977).
102 See Costa v. Allen, 274 S.W.3d 461, 464 n.4 (Mo. banc 2009) (citing Southers v. City of Farmington, 263 S.W.3d 603, 610 (Mo. banc 2008)); State ex rel. O’Blennis v. Adolf, 691 S.W.2d 498, 501-04 (Mo. App. E.D. 1985) (holding that malpractice actions against public defender in case in which the plaintiff had pled guilty is barred by collateral estoppel).
103 Section 217.831, RSMo (2000).
104 Compare McFadden v. State, 256 S.W.3d 103 (Mo. banc 2008) with Bullard v. State, 853 S.W.2d 921, 923 (Mo. banc 1993) and Joseph E. Bredehoft, Vincent McFadden v. State of Missouri, Mo. L. Rev., June 30, 2008, available at http://missourilawreview.blogspot.com/2008/11/vincent-mcfadden-v-state-of-missouri.html (noting apparent inconsistency between Bullard and McFadden regarding ineffective assistance as a form of abandonment). McFadden involved post-conviction counsel who had promised to file an original post-conviction motion, but failed to do so, which the Court characterized as “active interference” by post-conviction counsel in the filing of the original motion. 256 S.W.3d at 109. Perhaps it is tacit in the post-conviction rules that post-conviction counsel will not interfere with the convicted’s filing of the original post-conviction motion. But what is tacit in the rules is not always grounds for abandonment; it is surely tacit in the rules that post-conviction counsel will provide effective (that is, competent, but not necessarily good) assistance. Perhaps abandonment is limited to ineffective assistance of counsel of a ministerial (as opposed to discretionary) nature, such as the obligation to file a timely amended post-conviction motion (should counsel conclude that an amended motion is to be filed), or to take some action (if only to file a statement in lieu of an amended motion). But see Gehrke v. State, 280 S.W.3d 54 (Mo. banc 2009) (holding that non-filing of notice of appeal in post-conviction case did not constitute abandonment and declaring, “When considering the scope of abandonment, this Court must balance the need to protect the rights of post-conviction movants against the need for finality and a reasonable end to post-conviction proceedings.”). Id. at 58. A comparison of Gehrke, with its embrace of cost-benefit analysis, and Judge Teitelman’s dissent in Gehrke, with its focus on what the post-conviction rules require, reveals that the theoretical underpinnings of the abandonment doctrine are in a state of flux. When it comes to the abandonment doctrine, it can be safely said that the Court is (now) minimalist.
105 State v. Whitfield, 107 S.W.3d 253, 272 n.19 (Mo. banc 2003) (citing Reed v. Ross, 468 U.S. 1, 16 (1984)). In federal habeas, novelty cause is still recognized, but pleading novelty cause, if successful, likely “does nothing except plead the [habeas] petitioner out of court,” given Teague v. Lane, 489 U.S. 288 (1989), which generally prohibits habeas relief based on new rules of constitutional law. See Gacy v. Welborn, 994 F.2d 305, 310-11 (7th Cir. 1993).
106 Reed v. Ross, 468 U.S. at 2.
107 Whitfield, 107 S.W.3d at 272 n.19.
108 Teague v. Lane, 489 U.S. 288, 301 (1989) (emphasis in original).
109 Engle v. Isaac, 456 U.S. 107, 130 (1982).
110 Id. at 129; Heffernan v. Norris, 48 F.3d 331, 334 (8th Cir. 1995).
111 See Dugger v. Adams, 489 U.S. 401 (1989).
112 Smith v. Murray, 477 U.S. 527, 537 (1986).
113 State ex rel. Nixon v. Jaynes, 63 S.W.3d 210 (Mo. banc 2001)
114 Id. at 217.
115 489 U.S. 288, 301
116 Saffle v. Parks, 494 U.S. 484, 495 (1990).
117 Danforth v. Minnesota, 128 S. Ct. 1029 (2008).
118 381 U.S. 618 (1965).
119 388 U.S. 293 (1967).
120 Id. at 266.
121 Wiglesworth v. Wyrick, 531 S.W.2d 713, 717 (Mo. banc 1976).
122 Id. at 720.
123 See id. (upholding former Rule 27.26).
124 Section 1.010, RSMo 2000.
125 Section 532.010, RSMo 2000.
126 See J.C.W., 275 S.W.3d 249 (holding jurisdiction of court to be a matter of constitutional law); Williams v. Kaiser, 323 U.S. 471, 484 n.2 (1945) (describing habeas corpus as “a writ antecedent to statute . . . throwing its root deep into the genius of our common law”). Cf. Immigration and Naturalization Serv. v. St. Cyr, 533 U.S. 289 (2001) (“Implications from statutory text or legislative history are not sufficient to repeal habeas jurisdiction; instead, Congress must articulate specific and unambiguous statutory directives to effect a repeal.”). Id. at 299.
127 “Where there is a right, there is a remedy.” Black’s Law Dictionary 1520 (6th ed. 1990)
128 Steggall v. Morris, 258 S.W.2d 577, 578 (Mo. banc 1953).
129 See, e.g., Patterson v. State, 164 S.W.3d 546, 548 (Mo. App. E.D. 2005).
130 Luleff v. State, 807 S.W.2d 495 (Mo. banc 1991); Sanders v. State, 807 S.W.2d 493 (Mo. banc 1991).
131 Bullard v. State, 853 S.W.2d 921, 922-23 (Mo. banc 1993).
132 See Gehrke, 280 S.W.3d at 57.
133 272 S.W.3d 277, 283 (Mo. App. S.D. 2008).
134 United States v. Daniels, 902 F.2d 1238, 1241 (7th Cir. 1990).
135 Clay, 37 S.W.3d at 217.
136 Crenshaw v. State, 266 S.W.3d 257, 259 (Mo. banc 2008).
137 See Rose v. Lundy, 455 U.S. 509 (1982).
138 28 U.S.C. § 2254(c) (emphasis added).
139 O’Sullivan v. Boerkel, 526 U.S. 838, 844 (1999).
140 Charron v. State, 257 S.W.3d 147, 152-54 (Mo. App. W.D. 2008); Cooper v. State, 818 S.W.2d 653, 654 (Mo. App. W.D. 1991); Plant v. Haynes, 568 S.W.2d 585, 588 (Mo. App. W.D. 1978). See also McDermott v. Carnahan, 934 S.W.2d 285, 287 (Mo. banc 1996).
141 Section 527.010, RSMo 2000. See also § 527.050, RSMo 2000 (noting that specific enumeration of disputes that may be addressed by a declaratory judgment is not exclusive; declaratory judgment action is available whenever a “judgment or decree will terminate the controversy or remove an uncertainty”).
142 Kennedy v. Mo. Attorney Gen., 920 S.W.2d 619, 621 (Mo. App. W.D. 1996).
143 Charron, 257 S.W.3d at 151-52.
144 Rule 91.01(c); State v. Keeble, 427 S.W.2d 404, 406 (Mo. 1968).
145 E. W. v. K. D. M., 490 S.W.2d 64, 66-67 (Mo. banc 1973). A habeas court decides whether the law authorizes the restraint on the petitioner’s liberty (usually incarceration); an appeal to the equities of the situation will fall on deaf ears.
146 State ex rel. White v. Davis, 174 S.W.3d at 547-48.
147 512 U.S. 477 (1994).
148 Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005).
149 28 U.S.C. § 2254(a).
150 Perhaps state habeas would be available, though not if § 532.010 is limited to physical custody (e.g., imprisonment).
151 Brady v. Maryland, 373 U.S. 83 (1963).
152 To be sure, perhaps a protective federal habeas petition could be filed, thus preventing the release from custody from mooting the action. See Sibron v. New York, 392 U.S. 40, 57 (1968) (holding that release from custody moots the habeas action “only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction”), combined with a request for the federal court to issue a stay and abeyance of the action (to allow exhaustion of state remedies). To date, though, the U.S. Supreme Court has only authorized such “stay-and-abeyance” orders to avoid the statute of limitations from expiring while the inmate exhausts state remedies. See Rhines v. Weber, 544 U.S. 269 (2005).
153 523 U.S. 1 (1998).
154 See Jenkins v. Haubert, 179 F.3d 19, 26-27 (2nd Cir. 1999); Richard H. Fallon, Jr., Daniel J. Meltzer & David L. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System 1451 (5th ed. 2003).
155 See Dible v. Scholl, 410 F. Supp. 2d 807, 820 (N.D. Iowa 2006) (collecting cases).