IN THE SUPREME COURT OF MISSOURI SUGGESTIONS IN OPPOSITION TO THE MOTION FOR STAY OF EXECUTION AND THE PETITION FOR HABEAS CORPUS.

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1 IN THE SUPREME COURT OF MISSOURI In Re MARCELLUS WILLIAMS, ) ) Petitioner, ) ) v. ) No. SC94720 ) TROY STEELE, Warden, ) Potosi Correctional Center, ) ) Respondent. ) SUGGESTIONS IN OPPOSITION TO THE MOTION FOR STAY OF EXECUTION AND THE PETITION FOR HABEAS CORPUS Case Summary Williams asks this Court for a stay of his scheduled January 28, 2015, execution. Williams claims he is entitled to additional DNA testing and to a stay of execution for such testing to be conducted. Williams alleges that the lack of additional DNA testing, to be done in addition to the testing that was done before trial, violates the Due Process Clause. He also argues that it denies him access to clemency proceedings, which he alleges also violates the Due Process Clause. Williams alleges such testing would support a claim of actual innocence. Williams allegations do not entitle him to relief. Williams had a jury trial in 2001 at which the results of DNA testing were available. The United States District Court for the Eastern District of Missouri denied Williams motion for additional DNA testing in connection with his federal habeas corpus litigation in March 2007, finding the evidence

2 had already been tested and this is not a case in which the evidence, if tested, could exculpate the petitioner. Williams ignored the matter until the State moved to set an execution date roughly seven years later in March Then, in March 2014, Williams alleged that this Court should not set an execution date because he planned to file a federal civil rights lawsuit in the near future seeking DNA testing, and he was researching whether to file a suit under Mo. Rev. Stat But he did not file a state or federal suit. Williams did not pursue his DNA testing diligently. On December 17, 2014, this Court set Williams execution date as January 28, The next day Williams filed a motion to vacate his warrant of execution. He criticized this Court for setting an execution date without issuing a show cause order, even though Missouri Supreme Court Rule 30.30(d) provides for a show cause order only in cases in which, unlike this case, the Court sets an execution date on its own motion, rather than on the motion of the State as in this case, Williams had already responded to the motion by the State as contemplated by the rule. Williams argued that he was prejudiced because he planned to use this Court s issuance of a show cause order as a target date within 30 days of which he would file federal and state litigation seeking more DNA testing. But Williams now tells this Court in his current pleading that he would lose in a state action for DNA testing under Mo. Rev. Stat , so he has chosen not to file such an action. 2

3 Williams filed a federal civil rights suit seeking additional DNA testing on January 12, 2015, and requested a stay of execution from the district court. The district court dismissed the case as frivolous and for failing to state a claim on which relief can be granted on January 14, The district court also denied the motion for stay of execution. Williams claims have no merit. His strategic decision to delay presentation of his claims until he could use them as a reason to seek a stay of execution is itself a reason to deny a stay. If Williams believed his claims had any merit, there is no good reason he did not seek relief in Missouri courts in 2007 when the federal district court first denied his motion for additional DNA testing, or in 2013, when the United States Supreme Court denied certiorari in his federal habeas corpus litigation, or in March 2014 when he proclaimed to this Court that it should not set an execution date because of his intention to bring litigation seeking additional DNA testing in the near future. The only reasonable inference from Williams inaction is that additional DNA testing only has value to him as a tool to delay his scheduled execution and that he has no confidence the testing has any value beyond that. If this were not the case it seems incredible that Williams would choose to remain in prison for over a decade for a crime he believes DNA evidence would prove him innocent. Well established precedent indicates this Court should deny a stay under these circumstances. 3

4 There is no federal Due Process Clause right to DNA testing itself. Rather, there is a requirement that if a state has a procedure for DNA testing, which it need not, the state must provide due process during litigation in the proceeding. A litigant must complete the procedure and receive an unsatisfactory result before he can complain that a state has denied his right to due process in litigating a post-conviction DNA testing claim. Williams admits he has not filed a request for DNA testing under Mo. Rev. Stat , Missouri s statute for post-conviction DNA testing. He states that he does not plan to do so because he believes he would lose, making the filing futile. Furthermore, Williams does not have a viable federal civil rights action complaining about the alleged unfairness of Missouri post-conviction DNA procedures because, among other reasons, he chose not to take advantage of those procedures. Williams own analysis, that he would lose in a state suit under , means that he does not, in his view, have a meritorious claim, not necessarily that Missouri procedures themselves violate the Due Process Clause. Similarly, there is no Due Process Clause right to state executive clemency procedures, which are provided as a matter of grace. Petitioners for clemency at most have a minimal due process right to a reasoned decision, as opposed to a procedure akin to a coin flip that is not based on the merits of the case. Williams does not have a right to have the executive consider 4

5 nonexistent additional DNA testing that Williams has, for apparent strategic reasons, not sought diligently to provide in a timely manner. Lastly, Williams does not come close to setting out a viable claim of actual innocence. Williams confessed to two people. Police recovered some of the victim s property from the trunk of the car Williams drove and police recovered the victim s laptop computer from the man to whom Williams sold it. Williams does not deny selling the computer to him. Williams evidence of actual innocence consists mainly of attacks on the character of the witnesses who testified that Williams confessed, and speculation that additional DNA testing will reveal the real killer, although Williams himself did not believe enough in the potential of such testing to seek it before the eve of his execution, even though he has been imprisoned for many years. Statement of Exhibits 1) Respondent s Exhibit 1 contains an from the local CODIS administrator to the St. Louis County prosecutor s office explaining that all DNA tested from the crime scene matched the victim or her husband, that there are no results that can be run through the CODIS database, that it is unlikely further DNA testing would yield useful information, and that the nuclear DNA in some hair samples was likely consumed during previous testing. The exhibit also contains the lab reports from DNA testing that was done. 5

6 2) Respondent s Exhibit 2 contains the March 30, 2007 order from the United States District Court for the Eastern District of Missouri denying Williams motion for DNA testing finding: This is not a case in which biological trace evidence has not been tested, and if tested could exculpate petitioner. 3) Respondent s Exhibit 3 is Williams March 24, 2014 suggestions in opposition to the State s motion to set an execution date. In that pleading Williams asked this Court not to set an execution date because of his professed intention to file a federal civil rights suit seeking additional DNA testing in the near future, and stating he was researching filing a state law suit under Mo. Rev. Stat seeking DNA testing. As a practical matter, a federal suit necessarily fails as there is no federal right to DNA testing, but rather there is a requirement that State created procedures for DNA testing, if they exist, comply with the Due Process Clause. District Attorney s Office v. Osborne, 557 U.S. 52, (2009) (finding that the plaintiff bears the burden of showing the inadequacy of state procedures to vindicate a state created right to DNA testing and it is difficult for the plaintiff to criticize the State s procedures without first invoking them). Emerson v. Thaler, 544 Fed. Appx. 325 (5th Cir. 2013). Where the State has not denied a DNA testing motion under the applicable procedure the plaintiff has nothing he can complain about. Id. at Williams now alleges in his 6

7 current pleading that he has not and will not seek relief under Missouri s DNA testing statute because he thinks he would lose. He is probably correct that he would lose. See State v. Kinder, 123 S.W. 3d 624 (Mo. Ct. App. 2004) (rejecting claim of entitlement to DNA testing by inmate under sentence of death where there had been DNA testing before trial, and inmate failed to show why he had not previously tested the evidence, and failed to show a reasonable probability that but for the lack of additional testing he would not have been convicted). But the fact that Williams does not have a meritorious claim does not make the procedure unfair. 4) Respondent s Exhibit 4 is Williams December 18, 2014 motion to vacate his warrant of execution. In that motion Williams alleges that he has the tools to file state and federal lawsuits seeking additional DNA testing, but that he had not yet filed because he was waiting for an order to show cause why his execution date should not be set, and that he intended to file lawsuits within thirty days of a motion to show cause why an execution date should not be set. A court considering a stay must also apply a strong equitable presumption against granting a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring the entry of a stay. Hill v. McDonough, 547 U.S. 573, 584 (2006). The Unites States District Court for the Eastern District of Missouri denied Williams federal motion for DNA testing in early There is no plausible 7

8 reason for Williams delay except that the claim has value to him as a tool to delay his execution as opposed to a claim that he believes has merit. See State ex rel. Middleton v. Russell, 435 S.W.3d 83 (Mo. 2014) (capital litigant strategically avoided presenting incompetence claim, rather than merely proclaiming his intention to present it, until nearly the last moment). 5) Respondent s Exhibit 5 contains the March 2010 order of the United States District Court for the Eastern District of Missouri denying federal habeas relief on all Williams federal habeas claims except a claim about counsel s choice of penalty phase defense. The United States Court of Appeals for the Eighth Circuit later reversed the grant of a writ on that claim. Williams v. Roper, 695 F.3d 825 (8th Cir. 2012). 6) Respondent s Exhibit 6 is the January 14, 2015 order of the United States District Court for the Eastern of Missouri dismissing Williams January 12, 2015 federal civil rights suit seeking additional DNA testing as frivolous and failing to state a claim on which relief can be granted. The suit raised claims alleging a due process violation, denial of access to courts, cruel and unusual punishment, denial of access to compulsory process, and interference with executive clemency. 8

9 Statement of Facts In Williams recitation of the facts, he portrays his conviction as relying solely on his confessions to Henry Cole and Laura Asaro, Williams girlfriend. Williams does not mention that the police found property taken in the burglary, specifically a Post-Dispatch ruler and calculator in the trunk of the car that Williams drove. Nor does he mention that he sold the laptop computer that he took from the victim s home to Glenn Roberts, and that the police recovered the laptop from Mr. Roberts as well as the information that Williams sold it to Roberts, which Williams has not denied. Respondent summarizes the facts as this Court found them below. Marcellus Williams drove to a bus stop on August 11, 1998, then took a bus to University City in St. Louis County, Missouri. State v. Williams, 97 S.W. 3d 462, 466 (Mo. 2003). Williams began looking for a house to break into when he came upon the home of Felicia Gayle. Id. Williams broke out a window pane near the door, reached in, unlocked the door, and let himself in to Ms. Gayle s home. Id. Williams went to the second floor of the home where he heard water running in the shower. Id. Williams then went back downstairs to the kitchen, found a large butcher knife, and waited. Id. Ms. Gayle left the shower and called out, asking if anyone was there, then walked downstairs. Id. 9

10 Williams attacked Ms. Gayle with the butcher knife, inflicting fortythree wounds, seven of them fatal. Id. at Williams took the victim s purse, containing a St. Louis Post-Dispatch ruler and calculator, and the victim s husband s laptop computer and carry case. Id. After washing up in the upstairs bathroom, he took a jacket and put it on to conceal the blood on his shirt. Id. at 467. Williams then took a bus back to his car. Id. Williams picked up his girlfriend, Laura Asaro, who noticed he was a wearing a jacket despite the heat, and noticed that Williams shirt was bloody, and he had scratches on his neck. Id. Williams claimed he had been in a fight. Id. Later, he put his bloody clothes in a backpack and threw it in a storm drain. Id. The girlfriend saw the laptop in the car, and Williams sold it a day or two later to Glenn Roberts. Id. The next day, the girlfriend saw the victim s purse and her identification in the trunk of Williams car. Id. When the girlfriend demanded an explanation, Williams confessed the murder, and told her that if she told anyone, he would kill her, her children, and her mother. Id. From April until June 1999, Williams, incarcerated on unrelated charges, shared a cell with Henry Cole in St. Louis City workhouse. Id. In May, Williams confessed the murder to Cole. Id. Over the next few weeks he discussed the murder in detail with Cole. Id. 10

11 In June 1999, after Cole s release from the St. Louis City workhouse, Cole went to the University City Police and told them of Williams confession to the murder. Id. Cole knew details about the crime that had not been publicly reported. Id. University City Police approached Williams girlfriend who told them Williams had confessed to the murder. Id. Police then recovered the laptop computer that Williams had sold to Glenn Roberts from Mr. Roberts. Id. Police found the Post-Dispatch ruler and calculator that Williams had stolen from the victim in the trunk of the car that Williams drove. Id. Argument I. Williams is not entitled to a stay. A. The standard of review for receiving a stay is very difficult to meet. In Hill v. McDonough, 547 U.S. 573 (2006), the United States Supreme Court held that a pending lawsuit does not entitle a condemned inmate to a stay of execution as a matter of course, and that the State and crime victims have an important interest in the timely implementation of a death sentence. Id. at The Court held applicants seeking a stay must meet all the elements of a stay, including showing a significant possibility of success on the merits. Id. at 584. This Court discussed those the four factors considered in a stay application in State ex rel. Director of Revenue v. Gabbert,

12 S.W.2d 838, (Mo. 1996) (likelihood party seeking stay will prevail on the merits, likelihood of irreparable harm to movant, prospect of harm if court grants a stay, and public interest). A court considering a stay must apply a strong presumption against granting a stay where the claim could have brought soon enough to allow consideration of the merits without a stay. The United States Supreme Court cited Mazvrek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam), for the proposition that a preliminary injunction [is] not granted unless the movant, by a clear showing, carries the burden of persuasion. Hill, 547 U.S. at 584. B. Williams extreme delay in withholding his claim until an execution date was scheduled disqualifies him from receiving a stay of execution. Laboratory Corporation of America, a private laboratory, performed DNA testing of crime scene evidence and produced analysis of the testing in September 1998 and February 2001, before Williams August 2001 trial (Resp. Ex. 1). The testing indicated that all the DNA material that was sufficient to test matched the victim or her husband (Resp. Ex. 1). There are no results that can be uploaded into the CODIS data base for comparison (Resp. Ex. 1). It is unlikely that retesting would provide any useful information, and it is likely that the nuclear DNA in the hair samples that 12

13 were tested was consumed during the testing by Laboratory Corporation of America (Resp. Ex. 1). As part of his federal habeas corpus litigation Williams moved the United States District Court to order additional DNA testing (Resp. Ex. 2). Respondent did not initially respond to the motion for DNA testing before the district court denied the motion (Resp. Ex. 2 at 7). The district court rejected the motion and stated: The biological trace evidence has been tested. This not a case in which the biological trace evidence has not been tested and, if tested, could exculpate petitioner. (Resp. Ex. 2 at 8). After Williams subsequently portrayed Respondent s lack of comment on the initial motion for DNA testing before the district court s ruling as support for overturning the district court s decision against additional DNA testing, Respondent in the federal litigation explicitly opposed further DNA testing and has continued to do so. Williams filed no new litigation seeking additional DNA testing between the district court s March 2007 ruling and his habeas petition filed in this Court on January 9, 2015, less than three weeks before his scheduled execution date on January 28, There is no logical reason for this nearly eight-year delay except that Williams believes the only value of litigation seeking additional DNA testing is a tool to stay an established execution date. It is incredible that Williams allegedly believes he has a DNA claim 13

14 with a significant possibility of success on the merits, but that he chose to spend eight additional years in prison before re-asserting the claim. As discussed below, Williams own pleadings admit that he has strategically withheld the claim. The State moved to set an execution date in March On March 24, 2014, Williams filed suggestions in opposition to setting a date for his execution (Resp. Ex. 3). Williams alleged that this Court should not set a date for his execution because he planned to file a federal civil rights suit seeking DNA testing in the near future. (Resp. Ex. 3 at 6). Williams also alleged he was researching filing a state lawsuit seeking DNA testing under Mo. Rev. Stat But Williams filed nothing before the Missouri Supreme Court, on December 17, 2014, set his execution date for January 28, The day after this Court set Williams execution date Williams moved to vacate his warrant of execution (Resp. Ex. 4). Williams criticized this Court for setting an execution date without issuing a show cause order even though Rule 30.30(d) only calls for a show cause order in cases, unlike this one, in which this Court set an execution date on its own motion rather than in response to a motion to set an execution date as in this case (Resp. Ex. 4). Williams stated he was prejudiced because he had the tools to file a federal civil rights suit seeking additional DNA testing and he planned to file a federal civil rights suit within 30 days of an order from this Court to show 14

15 cause why an execution date should not be set (Resp. Ex. 4 at 7-8). Williams in essence admits what is apparent from the record, that he deliberately chose not to file his DNA claims until he could raise them at a time when they could be used as a tool to delay the setting or carrying out of his execution date. This litigation provides a classic example of a case in which a litigant could have raised his claim in time to fully litigate it without the need for a stay, but intentionally sat on his claims until his execution was imminent for strategic reasons. There is no good reason Williams could not have filed a state suit for DNA testing under and then, if he was dissatisfied with the result and believed a Due Process Clause violation had occurred, he could have filed a federal suit under 42 U.S.C. 1983, years ago. But he did not. Instead, as he admits in his pleadings, he waited for this Court to issue an order to show cause why his execution should not be set so that he could then file suit and use the litigation to delay his execution. That is sufficient reason to deny a stay. See Nelson v. Campbell, 541 U.S. 637, (2004). II. Williams claims are without merit. A. Williams has no entitlement to additional DNA testing. The Due Process Clause does not provide a right to DNA testing. Due process only requires that when a state provides a procedure for DNA testing, which it need not, that procedure must be applied in a manner that affords 15

16 the litigant due process. District Attorney s Office v. Osborne, 557 U.S. 52, (2009); Emerson v. Thaler, 544 Fed. Appx. 325 (5th Cir. 2013). William s principle case, Skinner v. Switzer, 562 U.S (2011), does not expand the narrow right defined in Osborne, but rather answers the question left open in Osborne, whether the proper form of action to raise an Osborne claim is in a habeas corpus petition or in a civil rights action. The Osborne Court found the later to be the correct form of action because denial of state created right to DNA testing does not necessarily impact guilt or the validity of the underlying conviction. Federal Courts may upset a State s post-conviction relief procedures only if they are fundamentally inadequate to vindicate the substantive rights provided. Osborne, 557 U.S. at 70. The Alaska procedures upheld in Osborne permitted post-conviction DNA testing only if 1) the conviction rested primarily on eyewitness identification, 2) there was demonstrable doubt about the identification, and 3) if scientific testing would likely conclusively resolve the issue. Id. at 65. Additionally, the Alaska Supreme Court had suggested that there might be a safety valve in a particular case under the Alaska Constitution for an inmate who was not entitled to testing under the three-part test. Id. The Alaska procedures upheld in Osborne, which appear to limit post-conviction DNA testing to cases of conviction relying on 16

17 questionable eyewitness identification, are narrower than Mo. Rev. Stat , the Missouri DNA testing statute. Williams alleges in his current pleading that he will not file a motion for DNA testing under because he would lose, as trial counsel was aware of the biological evidence, and DNA testing was available at the time of trial (Habeas Petition at 25-27). But the fact that Williams thinks, most likely correctly, that his claim for DNA testing has no merit under Missouri law does not make the DNA testing statute violate due process. See State v. Kinder, 122 S.W.3d 624 (Mo. Ct. App. 2004) (affirming the denial of DNA testing to capital defendant where the evidence and technology for testing were available at trial, and the State performed testing). Further, like the plaintiff in Osborne Williams cannot plausibly allege he has been denied due process in Missouri post-conviction DNA procedures when he refuses to invoke those procedures. See Osborne, 557 U.S. at 71 (Osborne can hardly complain that Alaska DNA testing procedures do not work without trying them); Emerson, 544 Fed. Appx. at (upholding dismissal of federal civil rights suit challenging Texas post-conviction DNA testing procedures as frivolous and failing to state a claim on which relief can be granted, in case in which inmate had filed for relief under Texas procedures but not received a result when he filed federal civil rights litigation challenging the procedures). Here, the federal district court denied Williams January 12, 2015 federal 17

18 civil rights suit seeking additional DNA testing as frivolous and failing to state a claim on which relief can be granted on January 14, 2015 (Resp. Ex. 6). That decision is consistent with Osborne and Emerson. This Court has the inherent power to grant DNA testing as part of a habeas case. But this is not the case to exercise that power. The laboratory reports and the explanatory statement from the CODIS administrator indicate it is unlikely further DNA testing would provide useful information (Resp. Ex. 1). Further, Williams was tried in 2001, and the federal district court denied DNA testing in 2007 (Resp. Ex. 2). There is no plausible reason Williams would remain in prison for years and only ask this Court for DNA testing on the eve of his execution if Williams had any real belief that DNA testing would benefit him beyond delaying a scheduled execution date. This course of action is similar to but more egregious than, the conduct of the petitioner in State ex rel. Middleton v. Russell, 435 S.W.3d 83, 86 n.1 (Mo. 2014) in which the habeas petitioner steadfastly refused to assert his competence to be executed claim in this Court but repeatedly used it as a tool to seek stays of execution. This Court should not grant a request for testing that could have been made months or years ago, but was strategically withheld until it would necessarily delay a scheduled execution. 18

19 B. Williams has not made out a viable Due Process Clause Claim about Clemency Proceedings. Executive clemency is a matter of grace by the state executive and at most implicates the Due Process Clause if the state provides an arbitrary procedure such as a coin flip rather than a procedure designed to result in a reasoned decision. Ohio Adult Parole Authority v. Woodward, 523 U.S. 272, (1998) (O Connor J. concurring in decision that Ohio s clemency procedures do not violate the Due Process Clause, but stating that certain minimal due process requirements apply to clemency procedures, and those might be violated by a totally arbitrary scheme such as a coin flip, or a totally arbitrary denial of any access to clemency consideration despite an existing clemency process). In 2000, the United States Court of Appeals for the Eighth Circuit, relying on Justice O Connor s concurrence in Ohio Adult Parole Authority, stayed an execution in a case where an assistant prosecutor from the jurisdiction where the conviction occurred allegedly wished to present an affidavit to the governor supporting clemency, but did not do so and then modified the affidavit, based on an alleged threat of termination of employment by the elected prosecutor. Young v. Hayes, 218 F.3d 850 (8th Cir. 2000). The appellate court dismissed the case and dissolved the stay when the assistant prosecutor obtained new employment and therefore was no 19

20 longer subject to alleged intimidation from the prosecutor. Young v. Hayes, 266 F.3d 791 (8th Cir. 2001). Nothing improper has occurred here. Williams can seek clemency and argue or present what evidence he has to the governor in support of his petition. There are no allegations of witness intimidation or that Missouri s clemency procedures are akin to a coin flip. As the federal district court pointed out in finding Williams claim about clemency is frivolous, Williams has two attorneys representing him in Missouri clemency proceedings and Missouri s clemency process does not guarantee discovery (Resp. Ex. 6 at 6). Williams is using the clemency process as a tool to demand a stay of execution. He has no Due Process Clause or other right to use clemency procedures as a tool stay his execution by raising, at the eleventh hour, DNA claims that he could, and presumably would, have pressed years ago if he believed them to actually have merit. C. Williams has not made out a viable case of actual innocence. In order to set out a freestanding claim of actual innocence Williams must destroy confidence in the verdict through clear and convincing evidence. State ex rel. Amrine v. Roper, 102 S.W.3d 541, 548 (Mo. 2003). Clear and convincing evidence instantly tilts the scales in the affirmative when weighed against the evidence in opposition, and the fact finder s mind is left 20

21 with an abiding conviction that the evidence is true. Id. In order to meet the lesser standard to set out a gateway claim of actual innocence excusing a default Williams must show that it is more likely than not that no reasonable juror would convict in light of newly discovered evidence. Clay v. Dormire, 37 S.W.3d 214, 217 (Mo. 2000). Williams has not met either standard. In this case, Williams claim rests on conjecture. Speculation that perhaps there is some crime scene evidence that could be subjected to useful additional DNA testing over a decade after the crime occurred, and the test results might match someone besides the victim, her husband or Williams, and perchance that some unknown person may have been arrested for or convicted of some offense that will allow Williams to claim that person is the real killer. Williams speculation is not clear and convincing evidence that he is actually innocent of murder. The record reflects ample evidence of Williams guilt. Williams confessed the murder to two people. Police found property taken from the victim s home in the trunk of the car Williams drove. Williams sold the laptop computer taken from the victim s home to a man from whom the police recovered it, and Williams does not deny that he sold the laptop to the man. Moreover, all previous DNA test results of evidence from the crime scene matched the victim or her husband, as opposed to providing evidence of some unknown mystery killer (Resp. Ex. 1). Based on this evidence, Williams does 21

22 not come close to setting out a viable actual innocence claim. This conclusion is reinforced by the fact that if Williams truly believed he was innocent, then there is no plausible reason he would sit in prison from his 2001 trial until December 2014, after his execution date was set, before presenting his DNA claim to this Court, or wait until January 12, 2015, before filing a federal suit, which has now been dismissed as frivolous, seeking DNA testing. Instead, the common link to both those suits is that in each case Williams sought to use the litigation as a tool to stay his execution and delay carrying out his death sentence. Conclusion This Court should deny the petition for habeas corpus and deny the motion for stay of execution. Respectfully submitted, CHRIS KOSTER Attorney General /s/ Michael Spillane MICHAEL SPILLANE Assistant Attorney General Missouri Bar # P.O. Box 899 Jefferson City, MO (573) (573) Fax mike.spillane@ago.mo.gov Attorneys for Respondent 22

23 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was electronically filed using the Missouri e-filing system. This Court s electronic filing system should serve counsel for Petitioner this 15 th day of January, /s/ Michael Spillane MICHAEL SPILLANE Assistant Attorney General 23