Opinion
No. 42063.
October 21, 1980. Motion for Rehearing and/or Transfer to Supreme Court Denied December 12, 1980. Application to Transfer Denied February 9, 1981.
APPEAL FROM THE CAPE GIRARDEAU CIRCUIT COURT, STANLEY A. GRIMM, J.
Gary L. Robbins, Public Defender, Jackson, for appellant.
John Ashcroft, Atty. Gen., Paul Robert Otto, S. Francis Baldwin, Asst. Attys. Gen., Jefferson City, for respondent.
Movant Manuel J. Watson, hereafter "defendant," appeals the summary denial of his Rule 27.26, VAMR motion. He seeks to avoid his plea of guilty to second degree murder.
This is defendant's fourth Rule 27.26 motion; each of the first three was summarily denied and defendant did not appeal. He now repeats his prior allegations of ineffective counsel, refusal to permit him to employ private counsel, and the public defender's failure to discuss the case and interview witnesses.
Rule 27.26(d) bars relief sought on grounds previously asserted and denied. Johnson v. State, 472 S.W.2d 433 (Mo. 1971). This requires denial of defendant's present motion as to the three alleged grounds recited above.
By defendant's present motion he asserts as a new ground that his guilty plea was involuntary "because of the cruel and inhumane conditions to which he was subjected" while in jail awaiting trial.
Johnson and Rule 27.26(d), supra, not only bar relief on grounds previously raised and denied, but also bar relief on newly asserted grounds which "could have been raised in the prior motion". Obviously, the allegedly adverse pre-judgment jail conditions of which defendant now for the first time complains were of necessity known to him when he filed his earlier post-conviction Rule 27.26 motions. Defendant failed to meet his burden "to establish that any new ground raised in a second (subsequent) motion could not have been raised by him in the prior motion". Patterson v. State, 571 S.W.2d 142 (Mo.App. 1978).
Judgment affirmed.
DOWD, P. J., and REINHARD and CRIST, JJ., concur.