Page:Johnson v. Missouri, Jackson dissent.pdf/3

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over the mandatory second step of the State's conviction–review process and went straight to the third—flouted the plain language of a statute that clearly contemplates that the three required steps will proceed. See §547.031.3 (requiring that the court’s findings and conclusions about a properly filed motion to vacate be based, in part, on “evidence presented at the hearing on the motion”). What is more, the court’s determination that there was not “clear and convincing” evidence to support the motion to vacate of a hearing in which there would have been a chance to produce such evidence, as the statute requires, transgressed core procedural due process principles. See Gagnon v. Scarpelli, 411 U. S. 778, 786 (1978) (noting that the “‘minimum requirements of due process’” include an “‘opportunity to be heard in person and to present witnesses and documentary evidence’”). Indeed, it is unclear how the Missouri Supreme Court could have validly determined whether there was “clear and convincing evidence” of a constitutional error when the mandatory hearing at which evidence relevant to that determination would have been presented did not occur.

In short, a State cannot provide a process for postconviction review (like that outlined in §547.031) and then arbitrarily refuse to follow the prescribed procedures. But that appears to be what happened in this case, insofar as §547.031 was properly invoked through the filing of a motion to vacate but the Missouri Supreme Court determined that the reviewing court did not need to hold the mandatory hearing that allows for the presentation of evidence related to that motion, because, regardless, there was insufficient evidence to sustain the motion. In my view, this reading of §547.031 was so fundamentally flawed, and so at odds with basic due process principles, that Johnson was likely to succeed in establishing that the procedures afforded in connection with the §547.031 motion amounted to a Fourteenth Amendment violation.