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## Missouri Court of Appeals Southern District Division Two DAVID C. MASON, ) ) Movant

- Appellant, ) ) vs. ) No. SD33472 ) STATE OF MISSOURI, ) Filed January 28, 2016 ) Respondent

- Respondent. )
APPEAL FROM THE CIRCUIT COURT OF WRIGHT COUNTY Honorable R. Craig Carter, Circuit Judge
AFFIRMED David Mason (“Movant”) appeals the denial of his Rule 29.15 post

- conviction motion alleging ineffective assistance of counsel. 1 Movant argues that (1) t he m ot ion court clearly erred when it accepted counsel’ s s tatement in lieu of an amended m otion (“Statement”) ; and (2) “ [t]he circuit court erred when it did not make any inquiry into abandonment by post

- conviction counsel.” Finding no merit in Movant’s claims, we affirm. Factual and Procedural Background Following a jury trial, Movant was convicted of first

- degree statutory rape, see section 566.032; first

- degree statutory sodomy, see section 566.062; and first

- degree child molestation,

1 All rule references are to Missouri Court Rules (2015).2 see section 566.067. 2 On direct appeal, this c ourt affirmed Movant’s convictions in State v.
Mason , 420 S.W.3d 632 (Mo.App. 2013). M andate issued August 15, 2013.
Movant timely filed a pro se Rule 29.15 mo tion for post

- convic tion relief on October 21, 2013, seeking to vacate, set aside, or correct the judgments and sentences

. 3 The next day , the motion court “appoint[ed] the Central Appellate Division of the Public Defenders [sic] Office to represent Movant in this matter.” On November 25, 2013, assistant public defender Cinda Eichler (“Eichler”) filed an entry of appearance as appointed counsel and requested an additional thirty days to file an amended motion , which the motion court granted that sam e day. On January 21, 2014, Eichler signed and mailed a copy of her notarized Statement to Movant

. The Statement alleged that, after speaking with Movant and reviewing the record, there were no additional claims or facts in support thereof that had been omitted from Movant’s pro se motion. Eichler subsequently filed the Statement in the motion court on January 27 , 2014. 4 Thereafter, the motion court held an evidentiary hearing on the merits o f Movant’s claims. Eichler represented Movant at the hearing

. T he motion court accepte d a list of thirteen compl aints from Movant , ten of which had not been raised in his pro se motion , and a statement from a witness who Movant claimed should have been called to testify at his trial

. The motion court then heard testimony on the merits of Movant’s pro se motion and the ten additiona l complaints submitted

. Eichler called both Movant and trial counsel, Stuart Huffman , to testify

. Following the hearing, the motion court issued findings of fact and conclusions of law

2 All statutory references are to RSMo Cum.Supp. 2006

. 3 Under Rule 29.15(b), Movant had ninety days in which to file his pro se motion after this court issued its mandate affirming his conviction. Movant’s motion was filed sixty

- seven days after mandate issued. 4 The motion court’s findings o f fact quote a filing date of January 27, 2014; however, the time stamp and docket e ntry indicate a filing date of January 29, 2014. Because Rule 29.15(g)’s ninety

- day filing deadline , which Movant argues applies to Statements, expired on January 21, 2014, prior to either indicated filing date, it is not necessary to resolve this discrepancy.3 addressing all claims listed in th e pro se motion and four of the claims presented for the first time at the hearing; all claims addressed were denied. This appeal followed. Standard of Review This court’s review of the denial of a Rule 29.15 motion for post

- conviction relief is limited t o determining whether the motion court’s findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k); Williams v. State , 168 S.W.3d 433, 439 (Mo. banc 2005). Such findings and conclusions are considered clearly erroneous only if a full r eview of the record leaves us with “ ‘ a definite and firm impression that a mistake has been made. ’ ” Zink v. State , 278 S.W.3d 170, 175 (Mo. banc 2009) ( quoting Worthington v. State , 166 S.W.3d 566, 572 (Mo. banc 2005) ). Discussion 5 In his first point relied on , Movant claims the motion court clearly err ed in accepting the
Statement because : (1) Movant’s pro se motion was deficiently pleaded on its face ; (2)
Mo vant’s Statement was not timely filed ; and (3 ) if counsel had r eviewed the file as claimed in the Statement , she would have noticed a meritorious issue for post

- conviction relief not pleaded in Movant’s pro se motion. Movant claims this was error because he did not receive any chance at post

- conviction relief, may have procedurally defaulted on a meritorious claim, and was denied his rights to due process and effective assista nce of counsel. Movant’s second point claim s that the “ circuit court erred when it did not make any inquiry into abandonment by post

conviction counsel.” Movant argues this was error “because post

- conviction relief counsel in this cause was so deficient that [Movant] was abandoned [] and totally denied access to the cou rts and effective assistance of counsel. ” In substance , M ovant’s allegations claim either that

5 Movant do es not contest the motion court’s merit

- based denial of his pro se post

- conviction motion claims or his claims pres ented for the first time at his evidentiary hearing.4 Movant was a bandoned or received ineffective assistan ce of post

- conviction counsel. We first address Movant’s abandonment

- related claims, then turn to his claims that he received ineffective assistance of post

- conviction counsel. Point I: Motion Court’s Acceptance of Statement was not Clearly Erroneous Movant first alleges that the motion court clearly erred “when it accepted” the Statement. He alleges, wi thout citation to any authority , that counsel is required to amend pro se motions in “almost all ci rcumstances .” Further, Movant alleges that Eichler did not comply with Rule 29.15 and requests that this court remand fo r a hearing to determine if her Statement “was properly accepted

. ”
An initial pro se motion must only give the cour t notice that the movant seeks post

conviction relief. Moore v. State , 328 S.W.3d 700, 702 (Mo. banc 2010) (citing Bullard v. State , 853 S.W.2d 921, 922

- 23 (Mo. banc 1993) )

. “ If the motion is filed by an indigent self

represented movant, the court will appoint counsel. ” Moore , 328 S.W.3d at 702 (citing Rule 29.15(e) )

. A ppointed counsel will then have the opportunity to file an amended motion that alleges sufficient facts and all claims for relief. Moore , 328 S.W.3d at 702. “When counsel is appointed under Rule 29.15(e), this rule requires this counsel to investigate the claims raised in the inmate’ s timely initial motion and then file either an amended motion or a statement explaining why no amended motion is needed. ” Price v. State , 422 S.W.3d 292, 297 (Mo. banc 2014)

. “ Performance of these duties is essential because the limited scope of appellate review under Rule 29.15(j) assumes that ‘ the motion court and appointed counsel will comply with all provisions of the rule. ’ ” Id. at 297

- 98 (quoting Lu leff v. State , 807
S.W. 2d 495, 497

- 98 (Mo. banc 1991) )

. In pertinent part, Rule 29.15(e) outlines the requirements of appointed counsel and when an amended motion is required:5 Counsel shall ascertain whether sufficient facts supporting the claims are asserted in the motion and whether the movant has included all claims known to the movant as a basis for attacking the judgment and sentence. If the motion does not assert sufficient facts or include all claims known to the movant, counsel shall file an amended motion that suffici ently alleges the additional facts and claims. If counsel determines that no amended motion shall be filed, counsel shall file a statement setting out facts demonstrating what actions were taken to ensure that (1) all facts supporting the claims are asser ted in the pro se motion and (2) all claims known to the movant are alleged in the pro se motion. The statement shall be presented to the movant prior to filing. The movant may file a reply to the statement not later than ten days after the statement is filed. Where t he record demonstrates that post

- conviction counsel fa iled to comply with Rule 29.15, a presumption of abandonment arises , and we must remand the case to the motion court for a hearing to determine whether this failure constituted abandonment

. See Moore v. State , 458 S.W.3d 822, 824

- 825 (Mo. banc 2015); Riley v. State , 364 S.W.3d 631, 636 (Mo.App. 2012). Our supreme c ourt has recognized a limited number of situations that may constitute abandonment. Stanley v. State , 420 S.W.3d 532, 541 (Mo. banc 2014). Relevant to this ap peal, abandonment may occur where (1) post

- conviction counsel takes no action with respect to filing an amended motion and , as such , the record shows that the movant is deprived of a meaningful review of his claims; or (2) when post

- conviction counsel is aware of the need to file an amended post

- conviction relief motion and fails to do so in a timely manner. Gehrke v. State , 280 S.W.3d 54, 57 (Mo. banc 2009).

“ ‘ [I]f there is no record of any activi ty by the counsel on the movant’ s behalf,’ the motion court shall inquire, sua sponte, into the performances of both movant and counsel. ” Pennell v. State , 467 S.W.3d 367, 372 (Mo.App. E.D. 2015) (quoting Howard v. State , 302 S.W.3d 739 , 742 (Mo.App. 2010 ) )

. “ Counsel who files a statement in lieu of an amended motion is not considered to have abandoned the movant as long as the record demonstrates counsel reviewed the record and investigated all allegations raised by the movant

. ” Pennell , 467 S.W.3d at 372.6 “ When counsel files a proper statement in lieu of an amended motion, the motion court is not required to make a sua sponte inquiry into the parties’ performances

. ” Id. Here, Movant argues that the motion co urt clearly erred in accepting Eichler’s Statement, because Movant’s pro se motion was deficiently pleaded on its face. This ar gument assumes, without citation to relevant authority, that counsel is required to file an amended motion , not on the basis of his or her independent investigation, bu t solely on the strength of the allegations in the pro se motion

. Under Rule 29.15(e), whether an amended motion should be filed is not solely dependent upon the contents

— or lack thereof

— in the pro se motion. Counsel must determine whether the pro se mot ion asserts sufficient facts supporting the claims and includes all claims known to the movant as a basis for attacking the judgment and sentence. Rule 29.15(e). Counsel is not required to file an amended motion if he or she determines that no additional facts or claims exist. Id
. S o long as the record demonstrates that counsel’s decision to file a s tatement is based on counsel’s review of the record and investigation of all allegations raised by the movant , no abandonment has occurred

. Pennell , 467 S.W.3d at 372. Eichler ’s Statement, signed and mailed to Movant within the time allowed for filing an amended motion, see Rule 29.15( g ), reflected that she had previously s poke n with Movant on the telephone and reviewed: the transcript of the trial and sentencing proceedings, relevant court documents from M ovant’s criminal case, the files maintained by Movant’s former trial attorney including discovery from the underlying criminal case, the files maintained by Movant’s former appellate attorney incl uding the appellate brief and opinion, and the pro se motion filed by Mo vant in the postconviction case. Based on this review, counsel has determined that she will not file an amended motion in the above

- captioned matter in that there are no potentially m eritorious claims known to counsel, or facts in support thereof, that have been omitted from Movant’s pro se motion. This court has previously found s tatements similar to Eichler’s sufficient to meet the requirements of Rule 29.15(e). See Pennell , 467 S.W.3d at 372

- 73 (holding Rule 29.15(e) was7 satisfied where counsel’s s tatement outlined the exact actions now challenged by the m ovant) ; Howard , 302 S.W.3d at 742 ( finding actions described in a s tatement were adequate where counsel reviewed the under lying criminal case record, including the transcript, legal file, and information, and investigated all allegations in the pro se motion). In accordance with those hold ings, the record here contains evidence that Eichler complied with Rule 29.15(e) by inv estigating all files related to Movant’s underlying conviction, his subseque nt appeal to this court, and the allegations contained in his pro se motion

. T he motion court was therefore not required to make a sua sponte inquiry into the parties’ performance s. Pennell , 467 S.W.3d at
372. Next, Movant argues the motion court cl early erred in accepting Eichler ’s Statement, because it was filed beyond the time limit for filing an amended motion. Movant argues the same time limits that govern the filing of an amend ed motion apply to s tatements. Rule 29.15(g) delineates the timeline for the filing of an amended motion: If an appeal of the judgment sought to be vacated, set aside, or corrected is taken, the amended motion shall be filed within sixty days of the earlier of: (1) the date both the mandate of the appellate court is issued and counsel is appointed or (2) the date both entry of appearance is filed by any counsel that is not appointed but enters an appearance on behalf of movant. The court may extend the time for filing the amended motion for one additional period not to exceed thirty days. The first

- mentioned time limit is relevant here. As previously stated, mandate issued on August 15, 2013 , and Eichler was appointed on October 22, 2013. Eichler f iled and was granted a motion for a thirty

- d ay extension , as allowed by the rule

. Thus, Eichler ’s extended ninety

- day deadline to file an amended motion expired on Tuesday, January 21 , 2014

. 6 On that same day,

6 Monday, January 20, 2014, was the ninetieth day after October 22, 2013 ; however, because the Martin Luther King, Jr. , holiday was observed that date, counsel’s deadline was extended to the immediately succeeding Tuesday

. See Rule 44.01(a) (stating last day of the period so computed is to be included, unless it is a legal holiday). A legal holiday is “established by legal authority and characterized by legal restrictions on work and transaction of official business

. ” Smith v. Dir. of Revenue , 1 79 S.W.3d 310, 312 (Mo.App. 2005) (internal quotation marks and citations omitted).8 Eichler signed and mailed Movant a copy of h er notarized Statement. Eight days later, at the latest, Eichler filed the Statement in the motion court

. If appointed post

- conviction counsel files an amended motion outside the time limits proscribed in Rule 29.15(g), a presumption of abandonment occurs “ because the filing of the amended motion indicates that counsel determined there was a sound basis for amending the initial motion but failed to file the amended motion timely

. ” Moore , 458 S.W.3d at 825 (citations omi tted). However, by its plain language, Rule 29.15(g) ’s time limits do not apply to

s tatements filed in lieu of amended motions

. The rule refers only to amended motions in both mandating a sixty

- day initial deadline and allowing an extension of time to be granted. Pennell , 467 S.W.3d at 373 (holding Rule 29.15(g)’ s time limits apply only to amended motions and not
to statements ) ; see also Scott v. State , 472 S.W.3d 593, 597 n.5 (Mo.App. W.D. 2015) (stating agreement with Pennell holding)

. 7 Accordingly , Eichler ’ s Statement , which was prepared and signed before the deadline for

an amended motion but not filed in the motion court u ntil after that deadline passed , did not

crea te a presumption of abandonment. 8 Because Eichler’s Statement was not untimely und er Rule 29.15(g), there was no presumption of abandonment, and we are not required to remand for a hearing on that issue. Pennell , 467 S.W.3d at 374. Movant’s first point is denied.

7 Movant relies on Harper v. State , 404 S.W.3d 378, 385 (Mo.App. 2013) , for the proposition that filing a s tatement beyond the time limit established for filing an amended motion under Rule 29.15(g) raises a presumptio n of abandonment. Movant is correct that Harper applied the Rule 29.15(g) tim e limits for filing an amended motion to a s tatement. That decision, however, add ressed , discussed , and analyzed the remedy for failure to timely file the s tatement, not whether the Rule 29.15 time li mits for filing an amended motion apply to s tatements in the first instance

. See Pennell , 467 S.W.3d at 373 n.2. Movant also directs this court to Stanley v. State , 420 S.W.3d 532, 540 (Mo. banc 2014) , and Moore v. State , 934 S.W.2d 289, 292 (Mo. banc 1996) , for the same proposition

. Similar to Harper , neither Stanley nor Moore addressed, analyzed , or determined whe ther the rule’s amended motion time limits apply to s tatements. 8 We do not foreclose the possibility that a presumption of abandonment could arise or that abandonment could occur under other circumstances where a s tatement is filed beyond the t ime for filing an amended motion. See Pennell , 467 S.W.3d at 374 (citing Price , 422 S.W.3d at 297).9 Point II: Ineffective Assistance of Post
- Conviction Counsel Claims are not Cognizable Movant ’s second point relied on alleges the mo tion court clearly erred in not making an inquiry into abandonment “because post

- conviction relief counsel in this cause was so deficient that [Movant] was abandoned [] and totally denied access to the cou rts and effective assistanc e of counsel.” Movant argues that counsel should have amended Movant’s motion to include a meritorious claim that was plain on the record. Movant further argues that Eichler “ acted without the care, diligence, and ski ll of a reasonably c ompetent attorney” in filing a s tatement in circumstances not permitted by Rule 29.15. Collectively, although couched in terms of abandonment, these arguments allege ineffective assistance of post

- conviction counsel

. B ecause there is no constitutional right to counsel in a post

- conviction proceeding , it follows that a post

- conviction movant has no constitutionally guaranteed right to effective representation. Barnett v. State , 103 S.W.3d 765,
773 (Mo. banc 2003)

. C onsequently, claim s based on the diligence or competence of post

conviction counsel are “categorically unreviewable.” Price , 422 S.W.3d at 297

. Therefore, a movant’s right to an attorney is restricted to that provided in the post

- conviction rules. See Rules 29.15(e) and 24.035(e). Having already established that Eichler’s actions complied with Rule 29.15 and did not give rise to a presumption of abandon ment , Movant’s remaining arguments regarding the quality of Eichler’s performance are claims of ineffective assistance o f post

conviction counsel that are not reviewable

. Ultimately, Movant concedes as much in stating , “ Missouri courts have long denied that there is a right to effective assista nce of post

- conviction counsel.” Nevertheless, Movant argues that , “ in a cas e such as this, where post

- conviction proceedings are the first [] and only area that ineffective assistance of counsel can be raised as a matter of right, Missouri should recognize10 ineffective assistance of counsel under the United States’ [sic] Supreme Co urt decision in Martinez v. Ryan , 566 U.S. ___ ,[ 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012) ]

. ” As this court has previously noted, Martinez was “ limited to a determination that in jurisdictions where a claim of ineffective assistance o f counsel must be raised in an ‘ initia l

review collateral proceeding,’ a procedural default will not bar a federal habeas court from hearing those claims

. ” Yarberry v. State , 372 S.W.3d 568, 575 (Mo.App. 2012). “ N othing in Martinez directly affects Missouri’ s longstanding principle that a [movant] does not have a constitutional right to the effective assistance of post

- convictio n counsel and we decline
Movant’ s invitation to substantially alter Missouri law pursuant to his strained reading of the Martinez holding. ” Martin v. State , 386 S.W.3d 179, 185

- 86 (Mo.App. 2012 ). Because such claims are “categorically unreviewable,” we cannot review Movant’s claims alleging ineffective assistance of post

- conviction counsel. Movant’s second point is denied. Decision
Because counsel’s actions under Rules 29.15(e) and (g) do not give rise to a presumption of abandonment, and claims of ineffective assistance of post

- conviction counsel are not cognizable, t he m otion c ourt’s judgment denying Movant’s motion is affirmed.

GARY W. LYNCH, J.

– Opinion author DON E. BURRELL, P.J.

– concurs NANCY STEFFEN RAHMEYER, J.

– concurs