TURNING STUMBLING BLOCKS INTO STEPPING STONES
by Zachary Smith
Learning how to tie my shoes didn't come easy. If no one was
around to help me, my shoes went untied, which often caused
me to trip and fall over the shoestrings, skinning up my hands
and knees. So I developed an unconventional approach to solve
the problem: I started wearing my shoes on the opposite feet
while tucking in the shoestrings. My friend's mother noticed,
and she asked me, "Why are you wearing your shoes on the wrong
feet?" I answered, "Because it makes me run faster." And in
truth it did; my shoes fit tighter and stayed on my feet. I
eventually learned how to tie my own shoes, but my unconventional
approach to solving problems continued.
When I was in the first grade, I had a teacher who had
an aversion to me being a lefty; she wanted to make me a convert.
So when she caught me writing with my left hand, she'd smack
it with a ruler. And even though I developed, quick reflexes,
she still won the game of slaps—refusing to pass me, making
me repeat the first grade. The experience made me feel resentful
toward teachers and distrustful of authoritarian figures,
planting the seeds of rebellion and independent thinking at
an early age. From then on, instead of asking people for help,
I preferred to figure things out on my own, developing an
insatiable curiosity for taking things apart to study how they
worked—toys, bicycles, electronics, locks, etc.
When I was introduced to the Rubik's Cube, I introduced
it to the lighter, heating up the stickers and peeling them
off to match the colors. I also used the lighter method to open,
read, and reseal my parents' mail. And when letters from the
school started coming--stating how many days I'd missed--! threw
them in the trash. But when the school started calling my mother
at work, it was game over.
When I lost my house key I discovered that I could open
the door faster using a butter knife than using the key. And
when my father learned of my neat trick, instead of encouraging
my ingenuity, he balked at it and installed a deadbolt lock,
forcing me to climb in and out of my second floor bedroom window
whenever I snuck out of the house at night.
Finding workarounds appealed to my subversive nature, so
it's not surprising the study of law became not just a necessity
to me but an obsession after being convicted of first degree
murder, an obsession as natural to me as a fish in water. I
ate, slept, and breathed law, night and day, until my conviction
was overturned. (State v. Smith, 966 S.W.2d 1 (Mo.App.WD. 1997))
With promethean optimism, I returned to the county jail
for a third trial. To stay sharp, I put what I had learned into
practice helping other prisoners. I read, their discoveries,
pointed out the strengths and weaknesses in their cases. I
prepared them for trial, coaching them on their body language
and on what to say--and what not to say—when testifying. I
exposed the games played by prosecutors and the lies told by
court-appointed public pretenders, wreaking havoc on the Jackson
As I helped others, the number of acquittals--not to mention
dismissals--piled up over the twenty-four months I waited to
be retried. But all of the successes couldn't compensate me
for tne devastating: defeat I endured when reconvicted and
sentenced to life without the possibility of probation or parole
and ninety-nine years.
When I returned to prison, I went back to work in the law
library. Despite losing again at trial, I felt confident in
securing a new trial on my direct appeal. But I made a fatal
error: I had filed a 1983 civil rights action against two
homicide detectives before winning my direct appeal. (Smith
v. Heimer, 35 Fed.Appx. 293 (C.A.8 2002)) The case was scheduled
for a jury trial in the federal district court around the same
time my criminal appeal was being decided. The appellate court
ruled against me, setting up an affirmative defense of collateral
estoppel for the detectives. (State v. Smith, 90 S.W.3d 132
(Mo.App.WD. 2002)) I was forced to settle the case for a thousand
During my post-conviction proceedings, my trial attorney
effectively dodged my subpoena so I couldn't depose him. He
had been disbarred and moved to California. To make a sad cowboy
song short, the court wrote findings of fact and conclusions
of law, finding that I couldn't establish ineffective assistance
without presenting court's testimony at the evidentiary hearing.
Four months later, I was taken into the back office and
told to make a call home, a phone call no prisoner ever wants
to have to make. I was told my father had passed away on August
28, 2005. It was so unexpected; my father wasn't even sick.
He went to sleep and never woke up. I was inconsolable but held
my emotions in check. My father and I nad been close ever since
I was little.
I received a small inheritance from his estate. Shortly
after, some 1099s arrived in the mailroom stating how much money
I had received. A Missouri Incarceration Reimbursement Act (MIRA)
suit was filed against me. I spanked the State's ass, though,
successfully securing a dismissal of the suit, on a statute
of limitations defense. (State ex rei. Nixon v. Smith, 254 S.W.3d
66 (Mo.App.WD. 2008)) The victory was bittersweet; my
post-conviction appeal had been denied five months earlier.
(Smith v. State, 207 S.W.3d 135 (Mo.App.WD. 2006))
Unsatisfied with their defeat in the MIRA case, the State
appealed the dismissal, and the circuit court's judgment was
overturned. On remand, the court entered judgment against me.
ordering the Missouri Department of Corrections to collect 90%
of any money deposited into my offender account. I appealed
but the decision was affirmed. Rather than taking a chance on
the State finding the money from my inheritance, I used it to
hire an attorney to litigate my federal habeas corpus petition.
Then I focused my attention on the MIRA case but was getting
nowhere in state court. I started researching the United States
Bankruptcy Code and found--you guessed it--a workaround. On
September 14, 2010, I filed a Chapter 7 bankruptcy petition,
and enjoyed the automatic stay until I was granted a discharge
on March 11, 2011.
The Eighth Circuit Court of Appeals upheld the state court's
decision in my criminal case. (Smith v. Kemna, 309 Fed.Appx.
68 (C.A.8 2009)) And the United States Supreme Court denied
cert, ending all of my appeals. As I stared at the stack of
legal papers, wondering what to do with them, the thought
occurred to me that there weren't any foooks--that I knew
of—specifically written for prisoners, to help them attack
their convictions in the federal courts, so I decided to write
Smith's Guide to Habeas Corpus Relief for State Prisoners Under
28 U.S.C. §2254. I laid out the entire process, step by step,
for attacking a conviction in the federal courts. At the end
of each chapter, I provided example petitions, motions, form
letters, certificates of appealibility, notices of appeal,
motions for leave to proceed in forma pauperis, appellate briefs,
a petition for a writ of certiorari, federal statutes, and
After finishing the habeas book, a guy named Nick approached
me and asked if I could help him. The State found out he had
eighty-five hundred dollars in an outside bank account and filed
a MIRA suit against him. When I decided to take the case, the
court had already entered a judgment against him. So I filed
a motion for reconsideration and within thirty days, the State
had to return the money, depositing the eighty-five hundred
dollars into his inmate account. The money came from SSI checks
Nick received before coming to prison, which SSI money is exempt
from attachments under 42 U.S.C. §407(A).
I started thinking of writing another book after seeing
an increase of MIRA actions being filed against prisoners. I
did some research and was appalled at learning that eleven other
states have similar incarceration reimbursement act statutes.
So I wrote Smith's Guide to Chapter 7 Bankruptcy for Prisoners,
and included example pleadings, detailed instructions, and a
blank set of all the required bankruptcy forms.
I also wrote a letter to Prison Legal News, advising them
about how prisoners can defeat their incarceration reimbursement
cases. The letter was unsealed and most likely read by the
mailroom because not long after, the State seized forty-five
dollars from my account. I filed a motion for contempt with
the bankruptcy court, arguing that the State violated the
discharge injunction. The court ruled that the MIRA judgment
was void with respect to all costs accrued as of the bankruptcy
filing, but held the judgment remained valid as to future
reimbursement costs and that the costs incurred by the State
since my bankruptcy petition were not dischargeable debts.
1 appealed and lost; the Eighth Circuit Court of Appeals
affirmed the lower court's decision in Smith v. Missouri, 530
Fed.Appx. 616 (8th Cir. 2013).
As fate would, have it, the Missouri Court of Appeals handed
down decisions in State ex rel. Roster v. Cowin, 390 S.W.3d
239 (Mo.App.WD. 2013) and State ex rel. Roster v. Wadlow, 398
S.W.Sd 591 (Mo.App.WD. 2013), holding the attorney general's
office could not be reimbursed with assets that were unidentified
and not known at the time of the MIRA hearing—meaning the
attorney general could not impose future costs for incarceration
against a prisoner unless the money was shown to come from a
current stream of income that existed when the MIRA judgment
I filed a motion under Missouri Supreme Court Rule 74.06(b),
citing these two cases. The State conceded, filing a satisfaction
of judgment motion in the Cole County Circuit Court, on October
16, 2013. All liens against my account were removed.
Since filing my petition for clemency in January of 2009,
I had helped a number of other guys file petitions for clemency.
During that time, it was apparent that prisoners needed a^tool
to help them. With some free time on my hands, I began writing
Smith's Guide to Executive Clemency for State and .Federal
Prisoners. I wanted to do something different than the first
two Smith Guides, something with the potential to elevate a
prisoner's understanding of not just the clemency process, but
the psychology of themselves and others. By combining the two
genres, I was able to create an invaluable tool with the
potential to revolutionize the rehabilitation process, helping
prisoners to turn their stumbling blocks into stepping stones.
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