IN THE CIRCUIT COURT OF MISSISSIPPI COUNTY

STATE OF MISSOURI

CORNEALIOUS ANDERSON, )

)

Petitioner, )

)

v. ) No. 13MI-CV00776

)

IAN WALLACE, WARDEN. )

)

Respondent. )

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 Anderson’s direct appeal in the Missouri Court of Appeals and

the Missouri Supreme Court; 2) documents from the Missouri Supreme

Court, including, the warrant for Anderson’s 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 Anderson’s 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.

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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

Anderson’s 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

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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 Court’s 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,

1Undersigned 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 Corrections’s 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.

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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 first-

degree robbery and armed criminal action. The United States Supreme Court

has upheld much more severe sentences for much less serious crimes. No

precedent indicates Anderson’s 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 prosecutor’s entrance of a nolle prosequi after the verdict is

an abuse of discretion. State v. Norwood, 691 S.W.2d 238 (Mo. 1985).

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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

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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. Anderson’s arguments for relief all fail as a matter of law.

A. Modern precedents reject Anderson’s 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

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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 Bonebrake’s 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

clerk’s office and prosecutor’s 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 Bonebreak’s case are much more favorable to her than the

facts in Anderson’s 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.

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The United States Court of Appeals for the Eighth Circuit rejected

Bonebrake’s 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).

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Additionally, the Missouri Supreme Court issued the warrant for

Anderson’s arrest (Resp. Ex. 1). A circuit court may not reverse the Missouri

Supreme Court. But that is what Anderson’s 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

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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 Anderson’s 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 prosecutor’s

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

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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. Anderson’s 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

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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).

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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 Anderson’s 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 Court’s 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