Missouri Court of Appeals

Southern District 

en banc 

Filed October 15, 2014 

IN RE: JERRELL BROOKS, ) 

 ) 

 Petitioner, ) 

 ) 

vs. ) No. SD33306 

 ) 

MICHAEL BOWERSOX, Warden, ) 

South Central Correctional Center, ) 

 ) 

 Respondent. ) 

consolidated with 

IN RE: AARON ROBINSON, ) 

 ) 

 Petitioner, ) 

 ) 

vs. ) No. SD33155 

 ) 

IAN WALLACE, Warden, ) 

Southeast Correctional Center, ) 

 ) 

 Respondent. ) 

ORIGINAL PROCEEDING ON PETITIONS FOR WRITS OF HABEAS CORPUS 

(Before Francis, C.J., Rahmeyer, J., Bates, J., Lynch, J., Burrell, J., Sheffield, J., and 

Richter, Special Judge) 

WRITS DENIED

PER CURIAM. Petitioner Jerrell Brooks and petitioner Aaron Robinson were 

sentenced to life without parole for murders committed when they were seventeen years 
2

old. Both petitioned this Court for writs of habeas corpus claiming that Miller v. 

Alabama, ___ U.S. ___, 132 S.Ct. 2455, 2469 (2012), applies retroactively and they must 

be resentenced with consideration of mitigating facts and circumstances. Because of the 

similarity of their claims, the cases were consolidated for purposes of oral argument and 

are hereby consolidated for purposes of opinion. We determine that petitioners’ initial 

sentencings cannot be disturbed because their claims are procedurally barred, and 

accordingly their petitions are denied. 

Factual and Procedural Background

 A jury found Brooks guilty of first-degree murder occurring on September 21, 

2002, under an accomplice theory, see section 565.020.1

 Brooks was a member of a 

group of four men that decided to kill Curtis Crothers. This group arrived at the home 

where Crothers was staying and Brooks stood guard by the door while all occupants of 

the home were killed. Brooks was seventeen years old at the time of the murders. The 

trial court sentenced Brooks to life without parole. His conviction was affirmed on direct 

appeal. State v. Brooks, 205 S.W.3d 281 (Mo.App. 2006). His Rule 29.152 motion for 

post-conviction relief was denied on June 25, 2009, and that decision was affirmed. 

Brooks v. State, 333 S.W.3d 533 (Mo.App. 2011). 

 

1

 Brooks does not contend that his status as an accomplice prevents him from being sentenced to life 

without parole. See Miller v. Alabama, 132 S.Ct. at 2477 (“[T]he question remains open whether the 

Eighth Amendment prohibits the imposition of life without parole upon a juvenile in [accomplice] 

circumstances.”) (Breyer, J., concurring). Therefore we assume that both petitioners remain eligible for life 

without parole because “Miller does not hold that a juvenile never can receive this sentence for first-degree 

murder. It holds only that life without parole may not be imposed unless the sentencer is given an 

opportunity to consider the individual facts and circumstances that might make such a sentence unjust or 

disproportionate.” State v. Hart, 404 S.W.3d 232, 234-35 (Mo. banc 2013). 

2

 Rule references are to Missouri Court Rules (2014). 
3

A jury found Robinson guilty of first-degree murder, see section 565.020, 

occurring on December 16, 2006. Robinson was involved in a fist fight with Karado 

Peebles. The fighting escalated, Robinson shot Peebles five times, and Peebles died. 

Robinson was also seventeen at the time this murder was committed and sentenced to life 

without parole. His conviction was affirmed on direct appeal. State v. Robinson, 330 

S.W.3d 867 (Mo.App. 2011). Robinson filed a Rule 29.15 motion for post-conviction 

relief that remains pending, but the time for filing an amended motion has expired. 

Both petitioners were found guilty of first-degree murder under section 565.020, 

which provides: 

1. A person commits the crime of murder in the first degree if he 

knowingly causes the death of another person after deliberation upon the 

matter. 

2. Murder in the first degree is a class A felony, and the 

punishment shall be either death or imprisonment for life without 

eligibility for probation or parole, or release except by act of the 

governor; except that, if a person has not reached his sixteenth birthday at 

the time of the commission of the crime, the punishment shall be 

imprisonment for life without eligibility for probation or parole, or release 

except by act of the governor. 

Section 565.020 (emphasis added). This statute makes it clear that a seventeen-year-old 

offender must be sentenced to “either death or imprisonment for life without eligibility 

for probation or parole[.]” Section 565.020.2. In 2005, after Brooks’ conviction but 

before Robinson’s conviction, the United States Supreme Court held that a seventeenyear-old cannot be sentenced to death because the Eighth Amendment prohibits the death 

penalty for defendants who commit first-degree murder at age seventeen years or 

younger. See Roper v. Simmons, 543 U.S. 551 (2005). Accordingly, life without parole 

became the only statutorily authorized punishment under section 565.020 when a juvenile 

commits first-degree murder. Both petitioners were sentenced to life without parole; 
4

Brooks because the sentencing judge chose that rather than death3 and Robinson because 

it was the only sentence available. 

In 2012, the Supreme Court of the United States held that the Eighth Amendment 

to the United States Constitution prevented a juvenile from being sentenced to life 

without parole without consideration of the mitigating facts and circumstances that might 

make that sentence unjust. Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455, 2469 

(2012). Therefore, a sentencing scheme that provides only death or life without parole 

violates the Eighth Amendment because it does not permit consideration of the mitigating 

factors of youth or the nature of their crimes. Both petitioners argue that Miller applies 

retroactively such that their cases must be remanded for resentencing that considers these 

mitigating factors in the same manner as done in State v. Hart, 404 S.W.3d 232 (Mo. 

banc 2013). The Supreme Court of Missouri applied Miller in Hart, a case on direct 

appeal, because the State conceded that Miller was applicable. Hart, 404 S.W.3d at 235 

n.3. In contrast, the State alleges in these cases that the petitioners are procedurally 

barred from arguing that their sentences are unconstitutional because the argument was 

not made on direct appeal or in their motions for post-conviction relief. 

Discussion

“Any person restrained of liberty within this state may petition for a writ of 

habeas corpus to inquire into the cause of such restraint.” Rule 91.01(b). A petition for 

habeas corpus relief is limited to determining the facial validity of confinement. State ex 

rel. Nixon v. Jaynes, 73 S.W.3d 623, 624 (Mo. banc 2002). A writ of habeas corpus may 

 

3

 The sentencing judge chose life without parole apparently because “the evidence in this case had 

[petitioner], at worse [sic], in the role of assisting the murders by way of being a lookout as opposed to 

carrying through on the actual circumstances of the killings.” 
5

not be utilized to raise a procedurally-barred claim, that is, a claim that could have been 

raised, but was not, on direct appeal or in a post-conviction proceeding. Clay v. Dormire, 

37 S.W.3d 214, 217 (Mo. banc 2000) (citing State ex rel. Simmons v. White, 866 S.W.2d 

443, 446 (Mo. banc 1993)). However, a petitioner may be entitled to relief on a claim not 

raised in a post-conviction motion if the petitioner can assert (1) a claim of actual 

innocence, (2) a sentencing defect,4 or (3) procedural default caused by something 

external to the defense and prejudice from the underlying error that worked to the 

petitioner’s actual and substantial disadvantage. State ex rel. Koster v. Koffman, 290 

S.W.3d 126, 128-29 (Mo.App. 2009) (citing Brown v. State, 66 S.W.3d 721, 731 (Mo. 

banc 2002)). 

Actual Innocence5

In order to avoid the effects of procedural default, “the petitioner must show that 

it is more likely than not that ‘no reasonable juror would have found the defendant guilty’ 

beyond a reasonable doubt” or “evidence of innocence coupled with constitutional error 

at trial.” State ex rel. Nixon v. Jaynes, 63 S.W.3d 210, 216 (Mo. banc 2001) (citing 

Schlup v. Delo, 513 U.S. 298 (1995)). The petitioners contend that under federal law, a 

challenge to a habeas petitioner’s sentence falls within this exception where a “condition 

of eligibility [for the sentence] had not been met,” quoting Sawyer v. Whitley, 505 U.S. 

 

4

 The parties refer to this exception as a “jurisdictional defect.” The term “jurisdiction” is used correctly 

only in reference to a court’s subject matter or personal jurisdiction. State ex rel. Zinna v. Steele, 301 

S.W.3d 510, 517 (Mo. banc 2010). However, it is settled that the imposition of a sentence beyond that

permitted by the applicable statute or rule may be raised by way of a writ of habeas corpus. Id.

5

 Petitioners refer to this as the “manifest injustice” exception. This exception has also been characterized 

as the “miscarriage of justice” exception, Ferguson v. State, 325 S.W.3d 400, 409 (Mo.App. 2010), and a 

“gateway claim of innocence[,]” State ex rel. Koster v. McElwain, 340 S.W.3d 221, 228 (Mo.App. 2011). 

For clarity, we refer to this as the actual innocence standard, not to assert that petitioners would be actually 

innocent if the exception was met, but rather to best characterize that a habeas challenge appropriately falls 

within the “actual innocence” exception when a claim of actual innocence is raised. 
6

333, 345 (1992). Based on Sawyer, the petitioners would contend that the exception is 

met in this case because the condition of adulthood has not been met in order for the 

petitioners to be sentenced to mandatory life without parole. 

What Sawyer actually held was that a criminal defendant may be “actually 

innocent of death” where the petitioner can show by clear and convincing evidence that 

but for constitutional error at his sentencing hearing, no reasonable juror would have 

found him eligible for the death penalty under the applicable state law. Sawyer, 505 U.S. 

at 336. The Sawyer Court expressly stated that it rejected the “petitioner’s submission 

that the showing should extend beyond these elements of the capital sentence to the 

existence of additional mitigating evidence” because to do so would lower the actual 

innocence standard to that used in the cause-and-prejudice standard. Id. at 345. See also

Schlup, 513 U.S. at 322 (“Explicitly tying the miscarriage of justice exception to 

innocence thus accommodates both the systemic interests in finality, comity, and 

conservation of judicial resources, and the overriding individual interest in doing justice 

in the ‘extraordinary case.’”) and Clay, 37 S.W.3d at 218 (“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.”). Therefore, Sawyer is 

inapplicable outside the context of a death sentence. Because neither petitioner contests 

the validity of their finding of guilt and neither was sentenced to death, this exception is 

not met. 

Sentencing Defect 

Relief by means of a petition for habeas corpus is available where the petitioner 

can show that the court imposed a sentence in excess of that authorized by law. Clay, 37 
7

S.W.3d at 218. When a punishment is reduced or lessened after the time of commission 

of an offense and while a prosecution is “pending,” the accused is entitled to the 

advantage of the less severe punishment or sentence. Merriweather v. Grandison, 904 

S.W.2d 485, 486 (Mo.App. 1995). Where a case is no longer pending, the accused is 

entitled to the lesser sentence only where the sentencing defect is patent. Thomas v. 

Dormire, 923 S.W.2d 533, 533-35 (Mo.App. 1996). 

Here, petitioners argue that discretionary life without parole based upon 

consideration of mitigating circumstances is a lesser sentence than mandatory life without 

parole and thus their mandatory sentences of life without parole were beyond the 

authority of the sentencing court. Assuming without deciding this is correct, this 

sentencing defect, nevertheless, must be patent upon the face of the record because Miller

was decided after petitioners’ cases were no longer pending. A sentencing defect has 

been held to be patent where the reviewing court need only look to the judgment and the 

statute to determine that the court lacked authority. Thomas v. Kemna, 55 S.W.3d 487, 

490 (Mo.App. 2001). In contrast, a defect has been held not to be patent where the 

statutory authority was not authorized simply by court interpretation. Thomas, 923 

S.W.2d at 533-35. Here, petitioners’ claims are most similar to Thomas, in that their 

claims exist solely by subsequent court interpretation of the Eighth Amendment. No 

sentencing defect can be shown simply by reviewing the judgment and the statute 

because the petitioners remain eligible for life without parole. Hart, 404 S.W.3d at 234-

35. Thus, any alleged sentencing defect is not patent on the face of the record. 

Cause and Prejudice 

[T]he petitioner can avoid the procedural default by showing cause for the 

failure to timely raise the claim at an earlier juncture and prejudice 
8

resulting from the error that forms the basis of the claim. The cause of 

procedural default must ordinarily turn on whether the prisoner can show 

that some objective factor external to the defense impeded counsel’s 

efforts to comply with the State’s procedural rule. To establish prejudice, 

the petitioner must show that the error he asserts worked to his actual and 

substantial disadvantage, infecting his entire trial with error of 

constitutional dimensions. 

Brown v. State, 66 S.W.3d 721, 726 (Mo. banc 2002) (internal citations and quotations 

omitted). “[T]he mere fact that counsel failed to recognize the factual or legal basis for a 

claim, or failed to raise the claim despite recognizing it, does not constitute cause for a 

procedural default.” Murray v. Carrier, 477 U.S. 478, 486 (1986). In order to constitute

“cause,” the omitted constitutional claim must be “so novel that its legal basis is not 

reasonably available to counsel.” Reed v. Ross, 468 U.S. 1, 16 (1984). 

Here, petitioners contend that “cause” exists because their claims are “novel” 

under Ross in that there was no basis to argue for resentencing concerning the mitigating 

factors of youth before Miller. “Novel” is given a very limited definition in Ross. When 

the “Court has articulated a constitutional principle that had not been previously 

recognized but which is held to have retroactive application,” that claim will only be so 

novel such that there is cause for failing to raise the issue: (1) when the Court explicitly 

overrules its own precedent; (2) when the decision overturns a longstanding and 

widespread practice to which the Court has not spoken, but which a near-unanimous body 

of lower court authority has expressly approved; and (3) when a decision disapproves a 

practice the Court arguably had sanctioned in prior cases. Ross, 468 U.S. at 17. 

First, petitioners use of Ross fails because the Supreme Court has not yet held that 

Miller has retroactive application.6

 Second, none of the three circumstances set forth in 

 

6

 The petitioners contend that Miller decided the question of its own retroactivity because Jackson, which 

is Miller’s companion case, was before the Supreme Court on habeas review. This assertion is flawed for 
9

Ross apply here. Miller did not overrule prior United States Supreme Court precedent. 

The Supreme Court expressly stated that the Miller “decision flows straightforwardly 

from our precedents: specifically, the principle of Roper, Graham,[7] and our 

individualized sentencing cases that youth matters for purposes of meting out the law’s 

most serious punishments.” Miller, 132 S.Ct. at 2471. Therefore, the first circumstance 

does not apply. 

Regarding the second circumstance, petitioners state, without citation to any 

authority, that the “majority of courts addressing this issue had rejected it.” Although 

Ross does characterize the second circumstance as occurring when a near-unanimous 

body of lower court authority had approved the now unconstitutional practice, the 

caselaw that Ross relied on makes it clear that whether there is a clear break from the past 

is a function of how widespread the practice in general is. Meaning, statutory authority is 

relevant as well. The three circumstances set forth in Ross were originally articulated in 

United States v. Johnson, 457 U.S. 537, 554 (1982). In Johnson, the Court 

contemplated the retroactivity of a prior case, Payton v. New York, 445 U.S. 573, 599 

(1980). The Court found that there was no clear break from the past in Payton because 

only twenty-four states had found the practice to be constitutional. Johnson, 457 U.S. at 

554. Of the jurisdictions in Payton where the practice was not accepted, four states had 

 

two reasons. First, Miller is silent as to retroactivity and “a new rule is not ‘made retroactive to cases on 

collateral review’ unless the Supreme Court holds it to be retroactive.” Tyler v. Cain, 533 U.S. 656, 663 

(2001). Second, because it is not addressed in any manner in Miller, it appears that the State of Arkansas 

did not assert that Jackson was procedurally barred from raising his claim. The State of Arkansas likely 

chose not to pursue such an argument because the applicable state law would not merit the claim. Indeed, 

in Arkansas, a void or illegal sentence, as defined by Arkansas state law, is subject to challenge at any time. 

Thomas v. State, 79 S.W.3d 347, 354 (Ark. 2002). See also Hobbs v. Gordon, 434 S.W.3d 364, 369 (Ark. 

2014) (holding that, based on Thomas, a Miller claim is cognizable in habeas even where it was not raised 

on direct appeal or in a motion for post-conviction relief).

7 Graham v. Florida, 560 U.S. 48 (2010) (holding that a sentence of life imprisonment without parole for a 

non-homicide juvenile offender violates the Eighth Amendment). 
10

prohibited the practice by statute. Payton, 445 U.S. at 599. Similarly, the Miller court 

noted that only twenty-nine jurisdictions made life without parole mandatory for 

juveniles who commit first-degree murder. Miller, 132 S.Ct. at 2473. This is not the 

kind of near-unanimity necessary in order for the petitioners to show that there was no 

reasonable basis for them to challenge their sentences. Therefore, the second 

circumstance does not apply. 

Finally, mandatory life without parole has not been sanctioned by the Supreme 

Court of the United States in the past.8 As stated above, the Miller decision was a direct 

result of prior Supreme Court precedent regarding the procedural rules for sentencing 

juveniles. Therefore, the third circumstance does not apply. Because the petitioners meet 

no exception to the procedural bar, their sentences cannot be disturbed. 

Decision

Petitioners’ petitions seeking writs of habeas corpus are denied. 

 

8

 Petitioners contend that their claim is novel because Missouri had previously found this sentencing 

scheme to be constitutional in State v. Andrews, 329 S.W.3d 369, 377 (Mo. banc 2010). The standard set 

forth in Ross is a function of precedent as determined by the Supreme Court of the United States, not the 

Supreme Court of Missouri, because the Supreme Court of the United States is the highest authority on 

matters of federal law. See Oregon v. Hass, 420 U.S. 714, 719 (1975).