John C. Duvall v. Missouri Board of Probation and Parole

In the

Missouri Court of Appeals

Western District

JOHN C. DUVALL, )

)

Appellant, ) WD87253

)

V. ) OPINION FILED:

) JANUARY 28, 2025

MISSOURI BOARD OF PROBATION )

AND PAROLE, ET AL., )

)

Respondents. )

Appeal from the Circuit Court of Cole County, Missouri

The Honorable Christopher Kirby Limbaugh, Judge

Before Division Four: Anthony Rex Gabbert Chief Judge, Presiding, Cynthia L. Martin,

Judge and Gary D. Witt, Judge

John C. Duvall ("Duvall") appeals from the trial court's dismissal of his amended

petition for declaratory judgment against the Missouri Board of Probation and Parole and

the warden of the Jefferson City Correctional Center, (collectively the "Board"). Duvall

claims that the trial court's dismissal of his petition for failure to state a claim upon which

relief can be granted was error as his amended petition sufficiently pled cognizable

claims for relief. We affirm.

Factual and Procedural Background

This appeal arises from the trial court's dismissal of Duvall's amended petition

("Amended Petition") for declaratory relief on the basis that Duvall failed to state a claim

on which relief could be granted.1 Duvall's Amended Petition contains factual assertions

and legal claims related to his 2001 convictions and his subsequent attempts to seek post-

conviction and habeas relief.

Duvall was convicted on October 11, 2001, of three counts of statutory sodomy in

the first degree, in violation of section 566.062,2 and sentenced by the trial court on each

count to a fifteen-year term of imprisonment with the terms ordered to run consecutively.

Following his conviction, Duvall filed a Rule 29.153 motion for post-conviction relief.

Finding that he was indigent, the motion court appointed a public defender to represent

Duvall on January 13, 2003. On August 1, 2003, Duvall's family hired private counsel to

represent Duvall replacing appointed counsel. On February 14, 2005, Duvall requested

the motion court appoint him counsel as he claimed his privately retained counsel would

not communicate with him. Duvall fired his retained counsel on May 3, 2005, and filed a

"Notice of Termination of Counsel" the next day. Duvall then filed a "Notice of

Hearing" on May 23, 2005, in an effort to notice up his request to have counsel

appointed.

1

"In reviewing the trial court's dismissal of a petition for failure to state a claim,

we assume that all assertions set forth in the petition are true." Barrett v. Cole Cnty., 687

S.W.3d 685, 692 (Mo. App. W.D. 2024) (quoting Loomis v. Bowers, 645 S.W.3d 633,

635 n.3 (Mo. App. W.D. 2022)). As a result, the facts discussed herein are drawn from

the allegations in Duvall's dismissed Amended Petition. See id.

2

All statutory references are to RSMo 2016 as supplemented through October 3,

2023, unless otherwise indicated.

3

All rule references are to Missouri Court Rules, Volume I -- State, 2023 unless

otherwise indicated.

2

On June 10, 2005, an attorney ("J.L.")4 entered his appearance on Duvall's behalf.

On June 15, 2005, J.L. represented Duvall during his Rule 29.15 hearing. Duvall alleged

that J.L. was unknown to him, that J.L. represented Duvall at the Rule 29.15 hearing

without Duvall's authorization, and that Duvall did not receive any notice that J.L. was

representing him nor that his Rule 29.15 hearing was scheduled on June 15, 2005. On

July 27, 2005, the motion court entered its judgment denying Duvall's claims for post-

conviction relief. The Eastern District affirmed the motion court's judgment on

September 12, 2006.

On November 4, 2016, Duvall participated in a parole hearing via video-

conference with the Board regarding his eligibility for participation in the Missouri Sex

Offender Program ("MOSOP"). Duvall alleges in the Amended Petition that at the start

of the hearing a member of the Board told him the hearing was "merely a formality

because we've reviewed your file and have decided to recommend granting your Parole . .

. all we need to do is hear your version of the offense." When Duvall told the Board that

he was maintaining his innocence, the Board informed him that he would be unable to

participate in MOSOP or be paroled. Despite this warning, Duvall continued to maintain

his innocence. On November 6, 2016, the Board denied Duvall's parole.

On October 3, 2023, Duvall filed a "Petition for Declaratory Relief" asserting four

counts that all, in some form or another, alleged that the Board's decision to deny him

parole was in retaliation for Duvall exercising his religious beliefs "by refusing to bear

4

We refer to the attorney who represented Duvall in his post-conviction

proceedings by initials as required by section 509.520.

3

false witness by falsely declaring his guilt as a factually innocent person who is

wrongfully incarcerated."5 The Board responded with a motion to dismiss which argued

that Duvall's petition fell outside the statute of limitations for challenging the parole

board and, alternatively, that even if his petition were within the statute of limitations it

should be denied on the basis that Duvall failed to state a claim on which relief could be

granted.

On November 17, 2023, Duvall filed his Amended Petition which was identical to

the initial petition with the exception of adding a fifth count where Duvall requested a

declaration that, among other things, the Board was precluded from "claiming any

benefit" from Duvall's convictions, the denial of post-conviction relief, the subsequent

denials of habeas relief, and failed appeals because the State engaged in fraud during his

post-conviction proceedings that prevented him from establishing that he had been

improperly convicted.

The Board filed a second motion to dismiss on December 1, 2023, which again

sought dismissal of the Amended Petition for failure to state a claim upon which relief

5

We note, as the parties do in their respective briefs, that Duvall filed an earlier

"First Amended Petition for Declaratory Relief" in a separate case on August 29, 2022,

which raised the same four claims as were asserted in the initial petition filed on October

3, 2023. "It has long been the law that courts may (and should) take judicial notice of

their own records in prior proceedings which are (as here) between the same parties on

the same basic facts involving the same general claims for relief." Noble v. L.D.

Enterprises, Inc., 687 S.W.3d 11, 14 n.3 (Mo. App. W.D. 2024) (quoting Ruff v. Bequette

Construction, Inc., 669 S.W.3d 701, 707, n.3 (Mo. App. E.D. 2023)). Duvall's earlier

filed amended petition was dismissed by the trial court without prejudice on October 4,

2022, for "failure to state a claim on which relief can be granted." Duvall appealed the

dismissal to this court. We granted Duvall's voluntary dismissal of his appeal on May 3,

2023.

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can be granted. Specifically, the Board argued that Count One, Duvall's newly asserted

claim of fraud during his post-conviction proceeding, is barred by the doctrine of res

judicata because Duvall is barred from challenging his underlying conviction and

sentences through a declaratory judgment action, and because Duvall has received the

review authorized by every post-conviction process authorized by Missouri law. The

Board's motion alleged that Duvall was seeking to manufacture an unauthorized post-

conviction process beyond the defined boundaries of "Missouri's finely tuned post-

conviction process." Additionally, the Board argued that Counts Two through Five in the

Amended Petition, which allege that the denial of access to MOSOP and to parole

violated Duvall's religious rights, fail to state a claim because Duvall has no liberty

interest in parole.

The trial court entered its "Decision, Judgment, and Order" ("Judgment") using the

Board's proposed form of judgment and dismissed Duvall's Amended Petition for failure

to state a claim upon which relief can be granted. The Judgment included findings and

conclusions that largely mirrored the stated grounds for dismissal set forth in the Board's

motion to dismiss.

Duvall appeals.

5

Appellate Jurisdiction

"Jurisdiction is a threshold matter that we must consider before addressing the

merits of [Duvall's] appeal." Barrett v. Cole Cnty., 687 S.W.3d 685, 695 (Mo. App.

W.D. 2024) (quoting Matthews v. Harley-Davidson, 685 S.W.3d 360, 364-66 (Mo. banc

2024)). Under section 512.020(5), a party may appeal a judgment if it is a "final

judgment" or, in other words, "if it resolves every claim (or, at least, the last unresolved

claim) in a lawsuit." Stratman v. Allstate Fire and Cas. Ins. Co., 695 S.W.3d 96, 100

(Mo. App. W.D. 2024) (quoting Wilson v. City of St. Louis, 600 S.W.3d 763, 767 (Mo.

banc 2020)).

The general rule is that a dismissal without prejudice is not a "final judgment" and,

thus, is not appealable. There is an exception, however, when a trial court dismisses a

petition without prejudice for failure to state a claim and the plaintiff "elects to 'stand on

the petition rather than plead additional facts.'" Barrett, 687 S.W.3d at 695 (quoting

Pride v. Boone Co. Sheriff's Dep't, 667 S.W.3d 210, 211 (Mo. App. W.D. 2023)). In

these cases, "the judgment of dismissal constitutes a final judgment for purposes of

appeal." Id. (citation omitted). Here, Duvall has chosen to stand on his Amended

Petition rather than plead further thereby rendering the Judgment final. See id. As a

result, we have jurisdiction over Duvall's appeal from the Judgment dismissing his

Amended Petition without prejudice.

6

Standard of Review

"We review the trial court's grant of a motion to dismiss for failure to state a claim

de novo." Id. at 695 (quoting Matthews, 685 S.W.3d at 364-66). "In reviewing such a

motion, the 'Court must accept all properly pleaded facts as true, give the pleadings their

broadest intendment, and construe all allegations' in the pleader's favor." Graves v.

Missouri Dep't of Corr., Div. of Prob. & Parole, 630 S.W.3d 769, 772 (Mo. banc 2021)

(quoting Mo. State Conf. of NAACP v. State, 601 S.W.3d 241, 246 (Mo. banc 2020)).

When determining whether the Amended Petition states a claim upon which relief

can be granted, "we review 'the petition in an almost academic manner, to determine if

the facts alleged meet the elements of a recognized cause of action, or of a cause that

might be adopted in that case.'" City of Foley v. Dir., Missouri Dep't of Revenue, 654

S.W.3d 108, 115 (Mo. App. W.D. 2022) (quoting City of Lake Saint Louis v. City of

O'Fallon, 324 S.W.3d 756, 759 (Mo. banc 2010)). Furthermore, "[w]e review all

grounds raised in the motion to dismiss, and we will affirm if the dismissal can be

sustained on any of those grounds." Barrett, 687 S.W.3d at 695 (emphasis added)

(quoting Sullivan v. University City, 677 S.W.3d 844, 848 (Mo. App. E.D. 2023)).

Analysis

Duvall raises three points on appeal which all argue that the trial court committed

error by dismissing his Amended Petition. In his first point, Duvall argues that the trial

court erred because the defense of res judicata "did not appear clearly and without

exception to establish the failure of Duvall's cause of action." In Point Two, Duvall

contends that the trial court erred because he pled ultimate facts which properly state a

7

claim for declaratory judgment. Finally, in Point Three, Duvall claims that the trial court

erred because he sufficiently pled ultimate facts which properly state a cause of action

pursuant to Missouri's Religious Freedom Restoration Act ("RFRA"). Finding no error,

we affirm.

"A motion to dismiss a petition for failure to state a claim is "solely a test of the

petition's adequacy." Barrett, 687 S.W.3d at 695 (quoting Pride, 667 S.W.3d at 212).

Pursuant to Rule 55.05, the rule which delineates what pleadings must include in order to

set forth a claim for relief, Duvall's Amended Petition must contain "(1) a short and plain

statement of the facts showing that the pleader is entitled to relief and (2) a demand for

judgment for the relief to which the pleader claims to be entitled." Id. Specifically, to

state a claim for declaratory judgment the court must be presented with:

(1) a justiciable controversy that presents a real, substantial, presently-

existing controversy admitting of specific relief, as distinguished from an

advisory decree upon a purely hypothetical situation; (2) a plaintiff with a

legally protectable interest at stake, . . .; (3) a controversy ripe for judicial

determination; and (4) an inadequate remedy at law.

Graves, 630 S.W.3d at 772-73 (citation omitted).

The trial court did not err in dismissing Count One of Duvall's Amended Petition for

failure to state a claim on the basis of res judicata. (Point One)

In his first point on appeal, Duvall claims that the trial court erred in dismissing

Count One of his Amended Petition on the basis of res judicata because "the affirmative

defense of res judicata did not appear clearly and without exception to establish the

failure of Duvall's cause of action." Specifically, Duvall insists that the claims in Count

One of his petition establish an exception to the doctrine of res judicata because he was

8

deprived of his right to due process during his Rule 29.15 proceedings due to fraud

committed by J.L. and the Attorney General's Office. Duvall insists that the judgment

which denied his claims for post-conviction relief is thus void destroying its preclusive

effect on the claims asserted in the Amended Petition.

In Count One of his Amended Petition, Duvall contends that J.L. impermissibly

entered his appearance to represent Duvall in his Rule 29.15 hearing. Duvall claims that

he did not know J.L. and did not authorize J.L. to serve as his representative during his

post-conviction proceedings. Duvall claims that the Attorney General's Office assisted

J.L. in perpetrating a fraud on the motion court because the Attorney General's Office

failed to notify Duvall about J.L.'s entry of appearance and about the date for Duvall's

postconviction hearing thereby assisting J.L. to "connive[] at preventing [Duvall] from

obtaining any relief." Duvall alleges that as a result of the fraud perpetrated in his post-

conviction proceedings, he was deprived of the ability to prove that his conviction was

wrongful. He thus sought a declaratory judgment, including findings of fact and

conclusions of law, "declaring that [the Board is] precluded and/or estopped from

asserting and/or claiming any benefit of [Duvall's] criminal convictions."

In its motion to dismiss Duvall's Amended Petition, the Board argued that Duvall's

claims were unauthorized attempts to re-litigate his underlying conviction and sentences

that are barred by the doctrine of res judicata. We agree.

Res judicata, otherwise known as "claim preclusion," is a doctrine that "precludes

the relitigation of the same cause of action that has been previously adjudicated by a final

judgment on the merits, or from later raising a claim arising from the same set of facts

9

that should have been raised in the first suit." Edwards v. City of Ellisville, 426 S.W.3d

644, 655 (Mo. App. E.D. 2013) (quoting Unverferth v. City of Florissant, 419 S.W.3d 76,

90 (Mo. App. E.D. 2013)). "Res judicata 'includes within its ambit . . . a prohibition

against collateral attack on a judgment.'" State ex rel. Gen. Credit Acceptance Co., LLC

v. Vincent, 570 S.W.3d 42, 48 (Mo. banc 2019) (quoting Wright v. Bartimus Frickleton

Robertson & Gorny PC, 364 S.W.3d 558, 564 (Mo. App. W.D. 2011)).

Here, Duvall's Count One in his Amended Petition plainly seeks a declaration that

his underlying conviction and sentences should not be given effect because they were

wrongfully entered. While Duvall attempts in his reply brief to narrow the scope of

Count One of his Amended Petition to a claim of fraud perpetrated in securing a

judgment in the Rule 29.15 post-conviction proceedings, Duvall's contention on appeal

conveniently ignores the plain assertions in the Amended Petition. Duvall is procedurally

barred from collaterally attacking his underlying conviction and sentences by the doctrine

of res judicata and Count One of the Amended Petition was properly dismissed. See

Kennedy v. Missouri Atty. Gen., 920 S.W.2d 619, 621 (Mo. App. W.D. 1996) (affirming

the dismissal of a petition for failure to state a claim on the basis that a declaratory

judgment action which challenges a criminal conviction is barred by the doctrine of res

judicata).

Even if we accepted Duvall's assertion that Count One of the Amended Petition

challenges only the judgment entered in the Rule 29.15 proceedings, we would still

affirm the dismissal of Count One of the Amended Petition. The Board also argued in its

motion to dismiss that Count One failed to state a claim because Duvall was attempting

10

to "manufacture another post-conviction process unconstrained by Missouri's finely tuned

post-conviction process and unauthorized under Missouri law and use that assertion of

innocence to attack the requirement that he complete MOSOP before being paroled." We

agree.

"States provide post-conviction remedies at their discretion . . . [and] [i]n

Missouri, Rule 29.15 is the exclusive remedy for an inmate who seeks post-conviction

relief after trial." Escalona v. State, 695 S.W.3d 104, 106 (Mo. App. W.D. 2024)

(emphasis added) (quoting Muhammad v. State, 579 S.W.3d 291, 294 (Mo. App. W.D.

2019)). Duvall alleges that the State, by and through the Attorney General's Office,

deprived him of meaningful post-conviction relief by committing fraud in connection

with J.L.'s "unauthorized" representation of Duvall. Duvall asserts in the Amended

Petition that the State and J.L.'s fraud "prevent[ed] [Duvall] from obtaining any relief . . .

constitut[ing] the ineffective assistance of post-conviction counsel." (Emphasis added).

As our Supreme Court has recently reaffirmed, "ineffective assistance claims against

postconviction relief counsel are not recognized." State ex rel. Dorsey v. Vandergriff,

685 S.W.3d 18, 28 (Mo. banc 2024) (emphasis added) (quoting Barton v. State, 486

S.W.3d 332, 336 (Mo. banc 2016)). Count One of the Amended Petition asserts a claim

that is not cognizable as a matter of law. Id.

Point One is denied.

The trial court did not err in dismissing Counts Two through Five of Duvall's

Amended Petition for failure to state a claim because Duvall does not have a legally

protectable interest at stake. (Points Two and Three)

11

In Points Two and Three, Duvall argues that the trial court erred in dismissing

Counts Two through Five of his Amended Petition because he properly pled ultimate

facts that satisfied the requirements for stating a claim for declaratory judgment and for a

violation of the RFRA. The essential premise underlying both points on appeal is that the

Amended Petition properly pled facts demonstrating that Duvall was impermissibly

denied participation in MOSOP, and by extension parole, in violation of his religious

belief to not "bear false witness" against himself by admitting his guilt. We review Point

Two and Point Three collectively.

In his Amended Motion, Duvall argued that the Board: does not have a rule of

general applicability requiring inmates to admit guilt to be paroled; denied Duvall parole

as retaliation for Duvall exercising his religious beliefs; has no compelling government

interest in punishing Duvall by denying his parole in retaliation for his exercise of

religion; and denied Duvall parole in a manner that is unduly restrictive on his religion.

In its motion to dismiss, the Board argued that Duvall has no liberty interest in parole

and, thus, he has no legally protectable interest at stake that would entitle him to relief in

a declaratory judgment action. The trial court dismissed Counts Two through Five of the

Amended Petition on this basis.

"In a declaratory judgment action, 'the plaintiff must have a legally protectable

interest at stake in the outcome of the litigation.'" Sunshine & Gov't Accountability

Project v. Missouri House of Representatives, 688 S.W.3d 704, 714 (Mo. App. W.D.

2024) (quoting LeBeau v. Comm'rs of Franklin Cnty., 422 S.W.3d 284, 288 (Mo. banc

2014)). As a general proposition, "[t]here is no constitutional or inherent right to early

12

release from prison" nor does a prisoner "have a protectable expectation of parole by

virtue of the mere existence of a parole system." Frazier v. State, 581 S.W.3d 118, 125

(Mo. App. S.D. 2019) (internal quotations omitted). There is a narrow "exception" to this

general proposition, but that exception is of no aid to Duvall.

State statutes and regulations governing parole can create a constitutionally

protected liberty interest in parole, however, if they specifically mandate

that parole must be granted when certain criteria are met. Yet, even in such

cases, a liberty interest is not implicated unless and until statutory and

regulatory criteria for release have been satisfied.

Newton v. Missouri Dep't of Corr., 572 S.W.3d 531, 542 (Mo. App. W.D. 2019)

(emphasis added) (quoting Gettings v. Missouri Dep't of Corr., 950 S.W.2d 7, 9 (Mo.

App. W.D. 1997)). Here, Duvall's Amended Petition does not identify a statute or

regulation that mandates parole for his circumstances. And even if he had done so, the

statutory and regulatory criteria for release have not been satisfied by Duvall's own

admission. Pursuant to section 589.040, inmates, like Duvall, who are "imprisoned by

the department of corrections for sexual assault offenses shall be required to successfully

complete the programs developed [by the Director of the Department of Corrections]

prior to being eligible for parole or conditional release." See Frazier, 581 S.W.3d at 126

(holding that MOSOP was developed to comply with section 589.040). As we have

discussed supra, Duvall has no legally protectable interest in parole eligibility simply by

virtue of the MOSOP program's existence. See id. at 125-26 (quoting Miller v. Mo. Dep't

of Corr., 436 S.W.3d 692, 699 (Mo. App. W.D. 2014)). Therefore, Duvall's failure to

complete the steps required by MOSOP, including admitting his guilt, means that Duvall

has no legally protectable interest at stake that would entitle him to declaratory relief.

13

See id. (finding that an inmate has no protectable interest at stake that would allow him to

challenge the requirement that he must admit guilt to participate in MOSOP and be

paroled).

Because a legally protectable interest at stake is an essential requirement for

stating a claim for declaratory relief, Counts Two through Five of Duvall's Amended

Petition failed to state a claim upon which relief could be granted. See Graves, 630

S.W.3d at 772-73. The trial court's dismissal of these counts in Duvall's Amended

Petition was not error.

Points Two and Three are denied.

Conclusion

The trial court's Judgment is affirmed.

__________________________________

Cynthia L. Martin, Judge

All concur

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