Clay Waller's attorney has until Feb. 7 to file appeal brief

A timeline has been set for Clay Waller's appeal of his five-year federal sentence for his Internet threatening conviction.

Over the next month, the clerk at the federal courthouse in Cape Girardeau will turn over all pertinent files in the case, namely a transcript from the sentencing hearing and the presentence investigation report, to the Missouri Court of Appeals, Eastern District in St. Louis. Waller's attorney, Scott Tilsen, must submit a brief outlining why the sentence is legally erroneous by Feb. 7, according to court documents.

Waller was sentenced to five years in federal prison for threatening Cheryl Brenneke, his sister-in-law and the guardian of his three children, on the online message board Topix after pleading guilty in October.

After hearing emotional testimony from Brenneke and federal prosecutor Larry Ferrell's plea to significantly vary from the suggested six- to 12-month sentence, Judge Stephen Limbaugh imposed the maximum sentence on Clay Waller, who has spent the last five months in custody.

When Tilsen files his brief for the appeal, Ferrell will have 21 days to file his brief supporting Limbaugh's decision. Seven days after Ferrell submits his argument, Tilsen must file a response.

A panel of three judges will examine the arguments, according to the U.S. federal court website. Although some cases are decided on the basis of written briefs alone, many cases are selected for oral arguments before the court, according to the website.

A decision in an appeal typically takes a year to 18 months, according to Attorney General Chris Koster's website.

Tilsen has declined to comment on the appeal.

In addition to sentencing him, Limbaugh said Waller more than likely murdered his wife, Jacque Waller, who has been missing since June 1.

Cape Girardeau County Prosecuting Attorney Morley Swingle has written that the state anticipates filing a murder charge against Clay Waller in connection with her disappearance. Clay Waller has maintained his innocence, saying he had nothing to do with his wife's disappearance.

Ferrell had Brenneke testify in an effort to move the sentencing guidelines up two levels on the basis of Clay Waller targeting a vulnerable victim. Federal guidelines dictate that a victim is vulnerable when their age or physical or mental condition makes them susceptible to the criminal conduct. Brenneke's anguish over her missing sister made her susceptible to the threat, Limbaugh ruled.

Tilsen said at the hearing that his client was unaware of Brenneke's vulnerability and added that the government is trying to punish Waller for a crime he has not been charged with or convicted of.

"We could have a system where we punish people for crimes they're not charged with, but that would not be the system our Founding Fathers implemented," Tilsen said at the hearing.

Clay Waller was being housed in solitary confinement for his protection in the Pemiscot County Jail before his sentencing. Friday afternoon a Federal Bureau of Prisons website indicated that he was in transit to an unidentified federal penitentiary. Limbaugh recommended that Clay Waller be held in a prison near Southeast Missouri.

psullivan@semissourian.com

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