LOUISIANA JUDICIAL COLLEGE
Criminal Court Training Agenda
Orleans Criminal District Court
POST-CONVICTION RELIEF
Judge Paul A. Bonin
Fourth Circuit Court of Appeal
Maria Hayes
Fifth Circuit Court of Appeal
Serena Vaughn
Fifth Circuit Court of Appeal
Kevin Boshea
Kevin Boshea Law Office
LOUISIANA JUDICIAL COLLEGE
CRIMINAL COURT TRAINING
DECEMBER 16, 2015
POST-CONVICTION BASICS
I.
WHAT IS POST-CONVICTION RELIEF?
 Custody
 Venue
 Items required in an application for post-conviction relief
(“APCR”)
 The right to counsel in an APCR
 Burden of proof (La. C.Cr.P. arts. 928, 929, 930.2)
 The State’s response
 The effect of an appeal on relator’s APCR
 Time Delays for filing an APCR and Exceptions
 Supplementation of an APCR
II.
WHAT ARE THE COMMON ISSUES RAISED IN AN
APPLICATION FOR POST-CONVICTION RELIEF?
 La. C.Cr.P. art. 930.3
 Ineffective assistance of counsel
 Newly discovered evidence
 DNA
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 Actual Innocence
 Miscellaneous issues raised in an APCR
 Sentencing Issues (Motion to Correct an Illegal
Sentence)
III.
RELIEF AFTER AN APCR HAS BEEN DENIED BY THE TRIAL
COURT
IV.
DISCUSSION CONCERNING UPCOMING REVISIONS TO THE
LOUISIANA POST-CONVICTION PROCEDURES
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I. WHAT IS POST-CONVICTION RELIEF?
How is post-conviction relief defined under Louisiana law?
An “application for post conviction relief” means a petition filed by a person
in custody after sentence following conviction for the commission of an offense
seeking to have the conviction and sentence set aside. La. C.Cr.P. art. 924(1)
What is custody for purposes of an APCR?
“Custody” is defined as “detention or confinement, or probation or parole
supervision, after sentence following conviction for the commission of an offense.”
La. C.Cr.P. art. 924(2).
The “offense” for which the petitioner is in custody may be either a felony
or a misdemeanor. La. C.Cr.P. art. 933(1).
La. C.Cr.P. art. 924 defines “custody” for purposes of post-conviction
applications to include specific situations in which the person is subject to some
physical restraint-i.e., “detention or confinement, or probation or parole
supervision.” State v. Smith, 96-1798 (La. 10/21/97), 700 So.2d 493, 495.
There is an exception to the general rule regarding the petitioner’s custody
requirement. As previously indicated, generally, if the “custody requirement of La.
C.Cr.P. art. 924 is lacking, then the courts have concluded that an APCR is barred
from review. See State v. Smith, 96-1798 (La. 10/21/97), 700 So.2d 493, 495-96.
However, a conviction can be challenged if it is later used to enhance a penalty
(e.g., under La. R.S. 15:529.1) or to serve as an element of a crime in a subsequent
criminal prosecution (e.g., La. R.S. 14:95.1). See State v. Smith, 96-1798 (La.
10/21/97), 700 So.2d 493, 495. Furthermore, the fact that one convicted of a crime
has served his sentence does not render a subsequent attack on a constitutionally
invalid conviction moot where the conviction is attacked with collateral
consequences, such as vulnerability to a multiple offender proceeding and a
possible enhanced sentence. State ex rel. Becnel v. Blackburn, 410 So.2d 1015,
1017 (La. 1982).
What is the difference between an Application for Post-Conviction
Relief and Writ of Habeas Corpus
A writ of habeas corpus should not be confused with an application for postconviction relief seeking to set aside the conviction and sentence. La. C.Cr.P. art.
351 states:
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Habeas corpus is a writ commanding a person who has another
in his custody to produce him before the court and to state the
authority for the custody.
“Custody” as used in this Title means detention or confinement
as a result of or incidental to an instituted or anticipated criminal
proceeding.
The provisions of this Title are not available to persons entitled to file an
application for post-conviction relief under Title XXXI-A of the Code of Criminal
Procedure.
Where is the proper venue to file an APCR?
“Applications for post conviction relief shall be filed in the parish in which
the petitioner was convicted.” La. C.Cr.P. art. 925.
What items should be contained in an APCR?
La. C.Cr.P. Article 926 sets out several items that an APCR should contain:
a) copy of the judgment of conviction and sentence
b) a petition that alleges the name of the person in custody, the place of
custody, the name of the custodian, the grounds upon which relief is sought
(“specifying with reasonable particularity the factual basis for such relief”),
a statement of all prior habeas or PCR applications, and all errors known or
discoverable by the exercise of due diligence
c) the petitioner’s signature
d) an affidavit that the allegations are true
Article 926 provides that the petitioner should use the uniform application
for post-conviction relief form that was approved by the Supreme Court.
However, the court may not refuse to consider an APCR simply because it bears an
improper caption. State ex rel. Lindsey v. State, 99-2755 (La. 10/1/99), 748 So.2d
456.
In Jacobs v. Cain, 08-0301 (La. 2/13/09), 999 So.2d 1138, the Supreme
Court determined the trial court erred when it dismissed a counseled APCR with
prejudice based on counsel’s failure to use the uniform application. The court
remanded the matter for the trial court to either address the APCR on the merits or
to allow the relator to file an amended petition using the uniform application.
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Does the defendant have a right to counsel in post-conviction
proceedings?
At the outset, there is no constitutional right to an attorney in state postconviction proceedings. Consequently, a petitioner cannot claim constitutionally
ineffective assistance of counsel in such proceedings. Coleman v. Thompson, 501
U.S. 722, 111 S.Ct. 2546, 2566, 115 L.Ed.2d 640 (1991).
Nevertheless, in some cases, the appointment of counsel is discretionary:
The court “may” appoint counsel to represent an indigent defendant in an
APCR if the APCR alleges a claim that, if established, would entitle the petitioner
to relief. La. C.Cr.P. art. 930.7(A).
The court “may” appoint counsel to represent an indigent defendant in an
APCR when the court orders an evidentiary hearing, authorizes the taking of
depositions, or authorizes requests for admissions of fact or genuineness of
documents, when such evidence is necessary for the disposition of procedural
objections raised by the state. La. C.Cr.P. art. 930.7(B).
There is a mandatory appointment of counsel in some noncapital cases:
The court “shall” appoint counsel to represent an indigent in an APCR when
the court orders an evidentiary hearing on the merits of the claim, or authorizes the
taking of depositions or requests for admissions of fact or genuineness of
documents for use as evidence in ruling upon the merits of the claim. La. C.Cr.P.
art. 930.7(C).
Although a court has discretion to appoint counsel if an APCR alleges a
claim which, if established, would entitle the petitioner to relief, the court is not
required to appoint counsel unless it orders an “evidentiary hearing on the merits of
the claim” or authorizes a deposition, or requests for admissions of fact or
genuineness of documents. La. C.Cr.P. art. 930.7(C).
In capital cases: “In a capital case in which the trial counsel was provided to
an indigent defendant and in which the jury imposed the death penalty, the court,
after imposition of the sentence of death, shall appoint the Louisiana Public
Defender Board, which shall promptly cause to have enrolled counsel to represent
the defendant on direct appeal and in any state post-conviction proceedings, if
appropriate.” La. R.S. 15:178.
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Who bears the burden of proof in a post-conviction pleading?
In an APCR, the petitioner (not the State) has the burden of proving that
relief should be granted. La. C.Cr.P. art. 930.2.
La. C.Cr.P. art. 928 states: “The application may be dismissed without an
answer if the application fails to allege a claim which, if established, would entitle
the petitioner to relief.”
La. C.Cr.P. art. 929(A) states: “If the court determines that the factual and
legal issues can be resolved based upon the application and answer, and supporting
documents, including relevant transcripts, depositions, and other reliable
documents submitted by either party or available to the court, the court may grant
or deny relief without further proceedings.”
However, when an APCR raises questions of fact that cannot properly be
resolved pursuant to a dismissal upon the pleadings under La. C.Cr.P. art. 928, or a
summary disposition under La. C.Cr.P. art. 929, an evidentiary hearing for the
taking of testimony or other evidence shall be ordered. La. C.Cr.P. art. 930(A).
When there is a factual issue of significance to the outcome that is sharply
contested, the trial court will not be able to resolve the factual dispute without a
full evidentiary hearing. La. C.Cr.P. art. 929, official revision comment; State ex
rel. Tassin v. Whitley, 602 So.2d 721, 722-23 (La. 1992).
Can the State file an Answer to a defendant’s allegations in his APCR?
If the APCR alleges a claim which, if established, would entitle the
petitioner to relief, the court shall order the custodian, through the district attorney
in the parish in which the defendant was convicted, to file any procedural
objections he may have, or an answer on the merits if there are no procedural
objections. La. C.Cr.P. art. 927(A).
The court is required to set a specified date, “not in excess of thirty days,” by
which the state’s response should be filed. La. C.Cr. P. art. 927(A).
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What happens when the State files Procedural Objections to the APCR?
If the State timely files procedural objections, the court may not order the
State to file an answer on the merits of the claim until the procedural objections
have been considered and the rulings on the objections have become final. La.
C.Cr.P. art. 927(A).
In some cases, if some, but not all, of the claims allege a claim which, if
established, would entitle the petitioner to relief, the court, in the order requiring a
response from the State, should render specific rulings dismissing those claims
which, if established as alleged, would not entitle the petitioner to relief. The court
should order the state to respond only as to such claim or claims that, if established
as alleged, would entitle the petitioner to relief. La. C.Cr.P. art. 927(B).
What happens if an appeal is pending and a defendant or his counsel
has filed an APCR?
If an appeal is pending, the person in custody may not file an APCR. La.
C.Cr. P. art. 924.1.
La. C.Cr.P. art. 924.1 sets forth: “An application for post conviction relief
shall not be entertained if the petitioner may appeal the conviction and sentence
which he seeks to challenge, or if an appeal is pending.”
“This article reaffirms the post appellate nature of the procedure. Post
conviction relief is not designed to take the place of an appeal. The petitioner must
first exhaust whatever appellate rights he has.” La. C.Cr.P. art. 924.1, official
revision comment.
Is the APCR repetitive and successive under La. C.Cr.P. art. 930.4?
La. C.Cr.P art. 930.4(A) provides that a claim previously raised on appeal
shall not be considered. It states, in pertinent part:
Unless required in the interest of justice, any claim for relief
which was fully litigated in an appeal from the proceedings leading to
the judgment of conviction and sentence shall not be considered.
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It is important to note that effective August 1, 2014, (as amended by 2013
La. Acts, No. 251, § 1), La. C.Cr.P. art. 930.4 now states:
B. If the application alleges a claim of which the petitioner had
knowledge and inexcusably failed to raise in the proceedings leading
to conviction, the court shall deny relief.
C. If the application alleges a claim which the petitioner raised
in the trial court and inexcusably failed to pursue on appeal, the court
shall deny relief.
D. A successive application shall be dismissed if it fails to raise
a new or different claim.
E. A successive application shall be dismissed if it raises a new
or different claim that was inexcusably omitted from a prior
application.
In State v. Gaines, 97-1327 (La. App. 4 Cir. 9/17/97), 701 So.2d 688, 693,
writ denied, 97-2610 (La. 4/24/98), 717 So.2d 1160, the court found:
A defendant is procedurally barred from raising a claim on post
conviction relief if he could have done so on appeal or in prior
applications.
***
Relator’s claim is procedurally barred because it was not raised
on appeal and not raised in the relator’s prior post conviction relief
application.
Most recently, the Louisiana Supreme Court considered the effects of the
amended version of La. C.Cr.P. art. 930.4. In State v. Marshall, 14-2091, 2015 La.
LEXIS 2182 (La. 10/14/15), the court found:
Similar to federal habeas relief, see 28 U.S.C. § 2244,
Louisiana post-conviction procedure envisions the filing of a second
or successive application only under the narrow circumstances
provided in La.C.Cr.P. art. 930.4 and within the limitations period as
set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La.
Acts 251 amended La. C.Cr.P. art. 930.4 to make the procedural bars
against successive filings mandatory. Respondent’s claims have now
been fully litigated in state collateral proceedings in accord with
La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless
8
respondent can show that one of the narrow exceptions authorizing the
filing of a successive application applies, respondent has exhausted
his right to state collateral review.
*Most recently, the Louisiana Supreme Court has denied several writ
applications seeking to challenge the denial of defendant’s post-conviction claims
finding that relator’s case has been fully litigated in state court. Of note, the
Louisiana Supreme Court has issued the following orders:
Relator has now fully litigated his application for postconviction relief in state court. Similar to federal habeas relief, see 28
U.S.C. §2244, Louisiana post-conviction procedure envisions the
filing of a second or successive application only under the narrow
circumstances provided in La. C.Cr.P. art. 930.4 and within the time
limitations period as set out in La. C.Cr.P. art. 930.8. Notably, the
Legislature in 2013 La. Acts 251 amended La. C.Cr.P. art. 930.4 to
make the procedural bars against successive filings mandatory.
Relator’s claims have now been fully litigated in state collateral
proceedings in accord with La. C.Cr.P. art. 930.6, and this denial is
final. Hereafter, unless relator can show that one of the narrow
exceptions authorizing the filing of a successive application applies,
relator has exhausted his right to state collateral review. The District
Court is ordered to record a minute entry consistent with this per
curiam.
Can an appellate court address whether the APCR was repetitive or
successive?
An appellate court may not itself deny relief under the procedural bars of La.
C.Cr.P. art. 930.4(B)-(E), but instead may only review a district court’s actions
under them for an abuse of the district court’s discretion or for the district court’s
compliance with article 930.4(F). Carlin v. Cain, 97-2390 (La. 3/13/98), 706 So.2d
968 (per curiam).
However, an appellate court itself may invoke the mandatory procedural bar
of article 930.4(A) (issue raised on appeal). Carlin v. Cain, 97-2390 (La. 3/13/98),
706 So.2d 968 (per curiam). See also State v. Tsolainos, 07-2443 (La. App. 1 Cir.
10/10/08), 997 So.2d 46, 47 n.1 (per curiam), writ denied, 08-2653 (La. 10/9/09),
19 So.3d 6.
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Is the trial court allowed to reconsider an APCR?
The trial court may not avoid the procedural bars of articles 930.4 and 930.8
by “reconsidering” an APCR on which it has earlier ruled, especially if the
Supreme Court has already considered and rejected the claims. State v. Ford, 962919 (La. 5/30/97), 694 So.2d 917 (per curiam).
A trial court may not avoid statutory procedural bars by “reopening” postconviction proceedings when it previously denied an APCR. State v. Fischer, 980468 (La. 9/18/98), 725 So.2d 485.
The trial court has no authority to grant an extension of the time delays for
filing of an APCR. State ex rel. Lewis v. Nineteenth Judicial District Court, 604
So.2d 1012 (La. App. 1st Cir. 1992), writ denied, 610 So.2d 813 (La. 1993). See
State v. Brumfield, 09-1084 (La. 9/2/09), 16 So. 3d 1161 (per curiam).
In State v. Brumfield, 09-1084 (La. 9/2/09), 16 So.3d 1161 (per curiam), the
trial court granted the petitioner an additional two years in which to file an APCR
because the court several years earlier at the time of the guilty pleas and sentencing
had failed to advise the defendant of the article 930.8 time limit. Noting the
conflict of interest claim was based on facts known to the petitioner at the time of
the guilty pleas, and that the claim did not otherwise fall within any of the
exceptions to the article 930.8 time limit, the Supreme Court concluded the APCR
was time barred under article 930.8.
The next inquiry is to determine when the conviction and sentence has
become final:
When do the time delays commence for filing a timely APCR if the
petitioner did not file an appeal in the underlying matter?
A motion to appeal must be filed no later than 30 days after the rendition of
the judgment or 30 days from the ruling on a motion to reconsider sentence, should
such a motion be filed. La. C.Cr.P. art. 914(B).
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Upon expiration of the time limitations for seeking an appeal, the conviction
and sentence become final. State v. Patterson, 572 So.2d 1144, 1148 (La. App. 1st
Cir. 1990), writ denied, 577 So.2d 11 (La. 1991). See also La. C.Cr.P. arts. 914 and
922.
A defendant’s conviction and sentence become final when the defendant
fails to make a timely motion for appeal or a timely motion to reconsider sentence.
State v. Jupiter, 05-869 (La. App. 5 Cir. 2/3/06), 922 So.2d 1245, 1246-47. See
also State v. Counterman, 475 So.2d 336, 338 (La. 1985).
When do the time delays commence for filing an APCR when an appeal
was taken?
La. C.Cr.P. art. 922 states:
A. Within fourteen days of rendition of the judgment of the supreme court or
any appellate court, in term time or out, a party may apply to the appropriate
court for a rehearing. The court may act upon the application at any time.
B. A judgment rendered by the supreme court or other appellate court
becomes final when the delay for applying for a rehearing has expired and
no application therefor has been made.
C. If an application for a rehearing has been made timely, a judgment of the
appellate court becomes final when the application is denied.
D. If an application for a writ of review is timely filed with the supreme
court, the judgment of the appellate court from which the writ of review
is sought becomes final when the supreme court denies the writ.
In a timely writ filed to the Louisiana Supreme Court, one can consider the
following:
After a decision by the court of appeal on direct appeal, if a “timely”
application for writ of review is filed with the Louisiana Supreme Court, the
judgment of the court of appeal from which the writ of review is sought becomes
final when the Supreme Court denies the writ. La. C.Cr.P. art. 922(D); State ex rel.
Wilson v. State, 01-1464 (La. 3/15/02), 812 So.2d 622; State v. Bennett, 610 So.2d
120 (La. 1992).
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Under this provision, the date of finality is the date the Supreme Court
denies the writ.
However, in State ex rel. Alo v. State, 12-0697 (La. 10/8/12), 98 So.3d 866,
the Supreme Court said the judgment did not become final under La. C.Cr.P. art
.922 until after the delays to file a rehearing with the Louisiana Supreme Court had
expired. One could argue that the decision in Alo, supra, is questionable since
there does not appear to be a right to seek rehearing when the Supreme Court
denies a writ. See La. Sup. Ct. Rule IX, § 6. See also State ex rel. v. Favorite, 061418 (La. 2/2/07), 948 So.2d 186; State ex rel. v. Dyer, 04-1715 (La. 11/19/04),
888 So.2d 185; State ex rel. Wilson v. State, 01-1464 (La. 3/15/02), 812 So.2d 622.
What happens if there is an untimely filed writ to the Louisiana Supreme
Court:
If, after the appeal decision in the court of appeal, the request for review at
the Supreme Court is filed untimely, finality of the appellate court decision does
not start with the denial of writs by the Supreme Court. State v. Dixon, 10- 1905
(La. 3/25/11), 61 So.3d 648; State ex rel. Hall v. State, 99-0326 (La. 9/24/99), 871
So.2d 1071. Instead, use the provisions of La. C.Cr.P. art. 922(B) and (C) to
determine finality.
What happens if the defendant is resentenced? When does the judgment
of conviction and sentence become final?
Although resentencing alone does not restart the prescriptive period for
filing an APCR, the prescriptive period does not initially begin to run until the
judgment of conviction and sentence has become final. State ex rel. Frazier v.
State, 03-0242 (La. 2/6/04), 868 So.2d 9 (conviction and sentence became final
when Supreme Court denied writs).
“Because relator’s ‘judgment of conviction and sentence’ did not become
final under La. C.Cr.P. art. 914 and art. 922 until 30 days following his
resentencing . . ., his amended application and other pleadings . . . arrived timely.”
State v. Brown, 08-0311 (La. 3/13/09), 5 So.3d 107. When this defendant’s appeal
was previously addressed, the court of appeal affirmed the conviction but reversed
the sentence as excessive and remanded for resentencing. The state sought review.
The Supreme Court affirmed the court of appeal and remanded for resentencing.
State v. Brown, 03-2788 (La. 7/6/04), 879 So.2d 1276. Under these circumstances,
the judgment did not become final until after the resentencing.
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It is important to consider that a non-discretionary and ministerial correction
of a sentence under La. C.Cr.P. art. 882, to delete an illegal provision (“without
parole”) is not a resentencing, and is not accompanied by the right to be present in
court, the right to counsel, the right to appeal, or the reinstatement of the two-year
delay from finality of conviction after the correction for filing an APCR. See State
v. Littleton, 43,609 (La. App. 2 Cir. 5/7/08), 982 So.2d 978, writ denied, 08-1408
(La. 3/27/09), 5 So.3d 135.
There appears to be a discrepancy between La. C.Cr.P. art. 922(B) and
Butler v. Cain:
The time for seeking further review of a Louisiana conviction expires when
the defendant does not, within thirty days of the Louisiana Court of Appeal’s
decision, challenge that decision in the state Supreme Court. Butler v. Cain, 533
F.3d 314 (5th Cir. 2008). (Note: Under article 922(B), finality would be when the
delay for applying for a rehearing in the court of appeal expired, not when the 30day delay for filing a writ with the Supreme Court expired. To this extent, the
federal 5th Circuit’s statement might be inconsistent with article 922. Between
expiration of the time limit for filing a rehearing and expiration of the time limit
for filing a writ, there is a period of uncertainty as to when the judgment will be
final, and that uncertainty is not resolved until the deadline for filing a writ with
the Supreme Court has passed.)
An out-of-time appeal restarts the time limit for applying for post-conviction
relief. See State ex rel. Campbell v. Whitley, 93-0677 (La. 10/27/95), 661 So.2d
1367; State v. Bates, 95-798 (La. App. 3 Cir. 7/1/98), 715 So.2d 1242, 1243-44.
Timeliness Of An APCR:
The defendant has two years from the date his conviction and sentence have
become final to file an APCR. When determining whether an APCR is timely
filed, the first inquiry is found under La. C.Cr.P. art. 930.8 which states, in
pertinent part:
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A. No application for post-conviction relief, including applications which
seek an out-of-time appeal, shall be considered if it is filed more than two
years after the judgment of conviction and sentence has become final
under the provisions of Article 914 or 922, unless any of the following
apply…
(Originally, there was a three-year time limit to file an APCR under La.
C.Cr.P. art. 930.8. The article was amended by 1999 La. Acts No. 1262, §1, to
reduce the time period to two years. The amendment to article 930.8, reducing the
time limit for filing an APCR from three to two years, applies retroactively. State
v. Powell, 00-1729 (La. App. 5 Cir. 3/14/01), 783 So.2d 478, 482).
The “mailbox” rule is applied to determine the timeliness of filing a timely
APCR by a pro se incarcerated inmate.
An APCR is timely filed if it is delivered to the penitentiary authorities for
forwarding to the district court before the filing deadline has passed. See State ex
rel. Johnson v. Whitley, 92-2689 (La. 1/6/95), 648 So.2d 909.
In State v. Cooper, 38,986 (La. App. 2 Cir. 5/20/04), 871 So.2d 1275, the
appellate court said a trial court has authority to grant an “extension” for filing an
APCR if there is a factual finding that the APCR was delivered to prison
authorities in a timely fashion.
After the time delays have expired for filing an APCR, the criminal code of
procedure provides four limited exceptions to filing a delayed APCR. Effective
August 1, 2014, La. C.Cr.P. art. 930.8 states:
(1) The application alleges, and the petitioner proves or the
state admits, that the facts upon which the claim is predicated were
not known to the petitioner or his prior attorneys. Further, the
petitioner shall prove that he exercised diligence in attempting to
discover any post-conviction claims that may exist. “Diligence” for
the purposes of this Article is a subjective inquiry that must
take into account the circumstances of the petitioner. Those
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circumstances shall include but are not limited to the educational
background of the petitioner, the petitioner’s access to formally
trained inmate counsel, the financial resources of the petitioner, the
age of the petitioner, the mental abilities of the petitioner, or whether
the interests of justice will be served by the consideration of new
evidence. New facts discovered pursuant to this exception shall be
submitted to the court within two years of discovery.
(2) The claim asserted in the petition is based upon a final
ruling of an appellate court establishing a theretofore unknown
interpretation of constitutional law and petitioner establishes that this
interpretation is retroactively applicable to his case, and the petition is
filed within one year of the finality of such ruling.
(3) The application would already be barred by the provisions
of this Article, but the application is filed on or before October 1,
2001, and the date on which the application was filed is within three
years after the judgment of conviction and sentence has become final.
(4) The person asserting the claim has been sentenced to death.
Should an APCR be considered on the merits if it is untimely?
If an APCR is untimely under article 930.8, it should not be considered on
the merits. State v. LeBlanc, 06-0169 (La. 9/15/06), 937 So.2d 844 (per curiam).
When filing an application, keep in mind that in cases in which the trial
court addresses an otherwise time-barred application on the merits, an appellate
court may assert the time limit imposed by article 930.8(A) as a basis for denying
relief. State v. Brumfield, 09-1084 (La. 9/2/09), 16 So.3d 1161 (per curiam).
An appellate court can deny an application for post-conviction relief on the
basis of untimeliness even if the district court considered the merits of the postconviction relief application. See State ex rel. Glover v. State, 93-2330 (La.
9/5/95), 660 So.2d 1189, 1201-02, abrogated in part on other grounds, State ex
rel. Olivieri v. State, 00-0172, 00-1767 (La. 2/21/01), 779 So.2d 735, cert. denied,
15
533 U.S. 936, 121 S.Ct. 2566, 150 L.Ed.2d 730 (2001) and 534 U.S. 892, 122 S.Ct.
208, 151 L.Ed.2d 148 (2001).
Can an application for post-conviction relief be supplemented?
District courts have discretion to allow amendment and supplementation of a
timely filed APCR. The district court should determine if the interests of justice
require that the petitioner be allowed to amend and supplement the APCR. La.
C.Cr.P. art. 930.8 does not take away from district court judges the discretion to
allow amendment and supplementation of timely filed pleadings. State ex rel.
Duhon v. Whitley, 92-1740 (La. 9/2/94), 642 So.2d 1273. See also State ex rel.
Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189, 1197 n.8, abrogated in part
on other grounds, State ex rel. Olivieri v. State, 00-0172, 00-1767 (La. 2/21/01),
779 So.2d 735, cert. denied, 533 U.S. 936, 121 S.Ct. 2566, 150 L.Ed.2d 730
(2001) and 534 U.S. 892, 122 S.Ct. 208, 151 L.Ed.2d 148 (2001).
II. COMMON ISSUES IN AN APPLICATION FOR POST-CONVICTION
RELIEF:
La. C.Cr.P. art. 930.3 sets forth the claims cognizable in an APCR. It states:
If the petitioner is in custody after sentence for conviction for an
offense, relief shall be granted only on the following grounds:
(1) The conviction was obtained in violation of the constitution of the
United States or the state of Louisiana;
(2) The court exceeded its jurisdiction;
(3) The conviction or sentence subjected him to double jeopardy;
(4) The limitations on the institution of prosecution had expired;
(5) The statute creating the offense for which he was convicted and
sentenced is unconstitutional; or
(6) The conviction or sentence constitute the ex post facto application
of law in violation of the constitution of the United States or the state of
Louisiana.
16
(7) The results of DNA testing performed pursuant to an application
granted under Article 926.1 proves by clear and convincing evidence that the
petitioner is factually innocent of the crime for which he was convicted.
Ineffective Assistance of Counsel
General law as it relates to a claim of ineffective assistance of counsel:
Criminal defendants have a Sixth Amendment right to “reasonably
effective” legal assistance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 2064, 80 L.Ed.2d 674 (1984).
When a defendant seeks reversal of a conviction based on ineffective
assistance of counsel, he must establish two separate elements to succeed: “First,
the defendant must show that counsel’s performance was deficient. This requires
showing that counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable.” Strickland v. Washington, 466 U.S.
668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).
Trial Strategy
In Florida v. Nixon, 543 U.S. 175, 187, 125 S.Ct. 551, 560, 160 L.Ed.2d 565
(2004), it was held that relator has the ultimate right to make certain decisions
concerning basic trial rights, the defense counsel should make the strategic and
tactical choices, and has the authority to manage most aspects of the defense
without obtaining the client’s approval. Thus, the district court did not err in
denying relator’s APCR.
The fact that a particular strategy is unsuccessful does not establish
ineffective assistance of counsel. State v. Moody, 00-0886 (La. App. 1 Cir.
12/22/00), 779 So.2d 4, 9-10, writ denied, 01-0213 (La. 12/7/01), 803 So.2d 40.
17
The decision to call or not to call a particular witness is a matter of trial
strategy and not, per se, evidence of ineffective assistance of counsel. State v.
Folse, 623 So.2d 59, 71 (La. App. 1 Cir. 1993).
However, as it relates to defense counsel’s performance during pre-trial
investigations, the federal courts have considered the following situations:
In Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360
(2005), the U.S. Supreme Court held that the failure of the defense attorney to
review material that counsel knew the prosecution would probably rely on as
evidence of aggravation at the trial’s sentencing phase was deficient conduct on the
attorney’s part even though the defendant and his family members suggested there
was no mitigating evidence. Counsel failed to examine the court file on the
defendant’s prior conviction.
Furthermore, the Court determined that counsel’s failure to examine the
record was prejudicial because the record contained a range of mitigation leads that
no other source had opened up. “This evidence adds up to a mitigation case that
bears no relation to the few naked pleas for mercy actually put before the jury, and
although we suppose it is possible that a jury could have heard it all and still have
decided on the death penalty, that is not the test.” Rompilla v. Beard, 545 U.S. 374,
393, 125 S.Ct. 2456, 2469, 162 L.Ed.2d 360 (2005).
In Bryant v. Scott, 28 F.3d 1411, 1418 (5th Cir. 1994), the defense counsel
did not interview two eyewitnesses and limited his pretrial investigation to
examination of the prosecutor’s file, discussions with the accused, and a review of
the indictment. 28 F.3d at 1418. The federal Fifth Circuit observed that
“information relevant to [the] defense might have been obtained through better
pretrial investigation of the eyewitnesses, and a reasonable lawyer would have
made some effort to investigate the eyewitnesses’ testimony.” 28 F.3d at 1418
(alteration in original) (citation and quotations omitted).
Also, in Anderson v. Johnson, 338 F.3d 382, 391 (5th Cir. 2003), the federal
Fifth Circuit held that a trial counsel’s failure to interview an eyewitness rose to
the level of constitutionally deficient performance, given the gravity of the
burglary charge, and the fact that there were only two adult eyewitnesses to the
crime and that counsel relied exclusively on the investigative work of the State,
18
basing his own pretrial “investigation” on “assumptions divined from a review of
the State’s files.”
Appellate Counsel
Counsel “need not advance every argument, regardless of merit, urged by the
appellant.” See Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.821 (1985).
Also, as the Louisiana Supreme Court previously held:
Effective counsel has been defined to mean “not errorless
counsel, and not counsel judged ineffective by hindsight, but counsel
reasonably likely to render and rendering reasonably effective
assistance.” United States v. Fruge, 495 F.2d 557, (5th Cir. 1974).
Accord: United States v. Johnson, 615 F.2d 1125 (5th Cir. 1980).
See State v. Ratcliff, 416 So.2d 528, 531 (La. 1982).
Guilty Pleas
In Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203
(1985), the Court addressed the challenges to guilty pleas based on ineffective
assistance of counsel. In Lockhart, the Court held:
We hold, therefore, that the two-part Strickland v. Washington
test applies to challenges to guilty pleas based on ineffective
assistance of counsel. In the context of guilty pleas, the first half of
the Strickland v. Washington test is nothing more than a restatement
of the standard of attorney competence already set forth in Tollett v.
Henderson, supra, and McMann v. Richardson, supra. The second,
or “prejudice,” requirement, on the other hand, focuses on whether
counsel’s constitutionally ineffective performance affected the
outcome of the plea process. In other words, in order to satisfy the
“prejudice” requirement, the defendant must show that there is a
reasonable probability that, but for counsel’s errors, he would not
have pleaded guilty and would have insisted on going to trial.
Most recently, the United Supreme Court addressed claims of ineffective
assistance of counsel for counsel’s failure to inform the defendant of the plea offer.
19
In Lafler v. Cooper, __U.S.__, 132 S.Ct 1376, 182 L.Ed.2d 398, the United
States Supreme Court found:
Defendants have a Sixth Amendment right to counsel, a right
that extends to the plea-bargaining process. Frye, ante, at 1386 –
1387, 132 S.Ct. 1399; see also Padilla v. Kentucky, 559 U.S.--, --, 130
S.Ct. 1473, 1486, 176 L.Ed.2d 284 (2010); Hill, supra, at 57, 106
S.Ct. 366. During plea negotiations defendants are “entitled to the
effective assistance of competent counsel.” McMann v. Richardson,
397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). In Hill, the
Court held “the two-part Strickland v. Washington test applies to
challenges to guilty pleas based on ineffective assistance of counsel.”
474 U.S., at 58, 106 S.Ct. 366. The performance prong of Strickland
requires a defendant to show “‘that counsel’s representation fell below
an objective standard of reasonableness.’” 474 U.S., at 57, 106 S.Ct.
366 (quoting Strickland, 466 U.S., at 688, 104 S.Ct. 2052). In this
case all parties agree the performance of respondent’s counsel was
deficient when he advised respondent to reject the plea offer on the
grounds he could not be convicted at trial. In light of this concession,
it is unnecessary for this Court to explore the issue.
The question for this Court is how to apply Strickland’s
prejudice test where ineffective assistance results in a rejection of the
plea offer and the defendant is convicted at the ensuing trial.
***
In contrast to Hill, here the ineffective advice led not to an
offer's acceptance but to its rejection. Having to stand trial, not
choosing to waive it, is the prejudice alleged. In these circumstances a
defendant must show that but for the ineffective advice of counsel
there is a reasonable probability that the plea offer would have been
presented to the court
(i.e., that the defendant would have accepted
the plea and the prosecution would not have withdrawn it in light of
intervening circumstances), that the court would have accepted its
terms, and that the conviction or sentence, or both, under the offer’s
20
terms would have been less severe than under the judgment and
sentence that in fact were imposed.
See Lafler, 132 S.Ct. at 1384-85.
The Lefler Court found:
In the instant case respondent went to trial rather than accept a
plea deal, and it is conceded this was the result of ineffective
assistance during the plea negotiation process. Respondent received a
more severe sentence at trial, one 3 1/2 times more severe than he
likely would have received by pleading guilty. Far from curing the
error, the trial caused the injury from the error. Even if the trial itself
is free from constitutional flaw, the defendant who goes to trial
instead of taking a more favorable plea may be prejudiced from either
a conviction on more serious counts or the imposition of a more
severe sentence.
(In Padilla v. Kentucky, __U.S.__, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010),
the U.S. Supreme Court held that counsel must inform a client whether a guilty
plea carries a risk of deportation. Deportation or removal is now virtually
inevitable for a vast number of noncitizens convicted of crimes.)
In raising a claim of ineffective assistance of counsel, one can also consider
that: “[A]s a general rule, defense counsel has the duty to communicate formal
offers from the prosecution to accept a plea on terms and conditions that may be
favorable to the accused.” Because defense counsel allowed a formal offer with a
fixed expiration date to expire without advising the defendant or allowing him to
consider it, defense counsel did not render effective assistance. Missouri v. Frye,
__U.S.__,132 S.Ct. 1399, 182 L.Ed.2d 379 (2012).
Sentencing Phase
If defense counsel misinforms a defendant concerning the penalty
provisions, such error might constitute ineffective assistance of counsel. In State v.
Scott, 93-0401 (La. 3/17/95), 651 So.2d 1344 (per curiam), the defendant alleged
his attorney erroneously told him that, under the terms of the plea bargain, he
would remain eligible for diminution of sentence for good behavior (good time).
However, under the habitual offender statute, as a multiple offender the defendant
21
was not eligible for diminution of sentence. The Supreme Court remanded for the
trial court to conduct a hearing to determine if the attorney made the error alleged
and, if so, to determine if such error constituted ineffective assistance of counsel.
In State ex rel. Brown v. State, 93-1701 (La. 3/8/96), 668 So.2d 1148 (per
curiam), the trial judge assured the defendant of a sentence in the middle range
called for by the sentencing guidelines. In a PCR, the petitioner alleged that his
attorney advised him, after miscalculating the guidelines range, that his sentence
would not exceed seven years. Citing State v. Scott, the Supreme Court said that,
upon proof of this allegation, “relator would be entitled to withdraw his guilty plea,
if he chooses to do so, and to proceed to trial or to plead anew.” The Supreme
Court ordered the trial court to hold a hearing.
Newly Discovered Evidence
Due Diligence
Prior to the 2013 amendment: The time bar provided by article 930.8(A)(1)
for claims based on facts “not known to the petitioner or his attorney” imposed no
“express diligence requirement” on the inmate and remained subject only to the
laches-like provisions of article 930.8(B), which authorized the dismissal of any
timely-filed application or one filed under any of the statutory exceptions to the
time bar when the State shows that delay has prejudiced its ability to respond to the
application as the result of events not within its control. Carlin v. Cain, 97-2390
(La. 3/13/98), 706 So.2d 968, 968-69 (per curiam).
However, effective August 1, 2014 (Acts 2013, No. 251, §1), La. C.Cr.P. art.
930.8 states, in pertinent part:
(1) The application alleges, and the petitioner proves or the state admits,
that the facts upon which the claim is predicated were not known to the
petitioner or his prior attorneys. Further, the petitioner shall prove that
he exercised diligence in attempting to discover any post-conviction
claims that may exist. “Diligence” for the purposes of this Article is a
subjective inquiry that must take into account the circumstances of the
petitioner. Those circumstances shall include but are not limited to the
educational background of the petitioner, the petitioner’s access to
formally trained inmate counsel, the financial resources of the petitioner,
the age of the petitioner, the mental abilities of the petitioner, or whether
22
the interests of justice will be served by the consideration of new
evidence. New facts discovered pursuant to this exception shall be
submitted to the court within two years of discovery.
Also consider the decision in State v. Obney, 99-592 (La. App. 3 Cir.
8/11/99), 746 So.2d 24 wherein the court found:
The supreme court has held that “late realization” that a trial
error has occurred does not qualify as an exception to the article 930.8
time limits. See State v. Parker, 98-256 (La. 5/8/98); 711 So.2d
694. In such cases, the disputed facts or legal errors are available to
the applicant for submission in a timely manner, but were allegedly
not discovered until expiration of the post-conviction
deadline. The Parker court plainly ruled that such late
discovery claims did not qualify for exceptions to the article 930.8
time limit….The burden of proving his post-conviction assertions and
exercising due diligence in pursuing claims belong to the Relator and
cannot be circumvented by referring to the action or inaction of third
parties. To hold otherwise would render the post-conviction time
limits meaningless and permit applicants to simply avoid prescription
by blaming non-parties for the failure to timely pursue and submit
claims.
See Obney, supra 99-592 at 5-6, 746 So.2d at 27 (emphasis as found in original).
Moreover, in Obney, the court also concluded:
If an applicant such as the Relator, who has had an appeal and
several previously-denied post-conviction applications, is aware of
available information upon which a new petition could be based, he
would be encouraged by such an interpretation to withhold filing of
such a petition until after the post-conviction deadline passed. If he
timely obtained the material and timely filed the new application, the
State could object to the petition as successive and the trial court
could deny the application on that basis, and Relator’s lack of
diligence in pursuing the claim would be a relevant factor supporting
dismissal. See La.Code Crim.P. art. 930.4 E. However, once the time
delays for filing for post-conviction relief have run, the same
information, which was available to the petitioner within the threeyear post- conviction period, would support an application which
23
could not be denied as untimely or successive, absent prejudice to the
State. The Relator would simply have to allege that he discovered the
previously-available information after the time limits had run and the
State’s procedural remedies would be foreclosed. The Relator could
prove such a claim, thereby qualifying for an exception and defeating
the State’s procedural objections, by simply submitting his complete
lack of effort in seeking out the material or otherwise pursuing his
claim in a timely manner.
See Obney, supra 99-592 at 7, 746 So.2d at 28.
Analysis of Brady and its progeny
In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963),
the United States Supreme Court held “the suppression by the prosecution of
evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of the good faith
or bad faith of the prosecution.” Id., 373 U.S. at 87, 83 S.Ct. at 1196-97. See also
State v. Lande, 06-24, p. 22 (La. App. 5 Cir. 6/28/06), 934 So.2d 280, 295, writ
denied, 06-1894 (La. 4/20/07), 954 So.2d 154.
Even though the State does not possess or have knowledge of evidence, it is
not necessarily absolved of its responsibilities under Brady because the prosecutor
has a duty to learn of any favorable evidence known to the police and others acting
on the government’s behalf in the case. State v. Louviere, 00-2085, p. 13 (La.
9/4/02), 833 So.2d 885, 896, cert. denied, 540 U.S. 828, 124 S.Ct. 56, 157 L.Ed.2d
52 (2003). The State’s constitutional duty to disclose favorable evidence is not
breached unless the omission is sufficiently significant to result in the denial of the
defendant’s right to a fair trial. State v. Jacobs, 99-991, p. 19 (La. 5/15/01), 803
So.2d 933, 948, cert. denied, 534 U.S. 1087, 122 S.Ct. 826, 151 L.Ed.2d 707,
(2002). In addition, the State is not obligated to furnish a defendant with
information he already has or can obtain with reasonable diligence. Louviere, 002085 at 14, 833 So.2d at 897.
“There is no Brady violation where a defendant knew or should have known
the essential facts permitting him to take advantage of any exculpatory
information, or when the evidence is available from another source, because in
such cases there is really nothing for the government to disclose.” State v. Hobley,
98-2460, p. 25 (La. 12/15/99), 752 So.2d 771, 786 n.10, cert. denied, 531 U.S. 839,
121 S.Ct. 102, 148 L.Ed.2d 61 (2000).
24
The three components of a true Brady violation are:
1) The evidence at issue must be favorable to the accused because it is
exculpatory or impeaching,
2) The evidence must have been suppressed by the State whether
willfully or inadvertently, and
3) Prejudice must have ensued.
See Lande, 06-24 at 23, 934 So.2d at 296.
How is “favorable evidence” defined:
“Favorable evidence” includes both exculpatory evidence and evidence that
impeaches the testimony of a witness whose credibility or reliability may
determine guilt or innocence.” Id., 06-24 at 22, 934 So.2d at 295. However, the
evidence is only material if there is a reasonable probability that the results of the
proceeding would have been different if the evidence had been disclosed to the
defense. Id., 06-24 at 23, 934 So.2d at 296. A reasonable probability is one that is
sufficient to undermine confidence in the outcome of the trial. Id.
In determining materiality, a reviewing court must ascertain “not whether
the defendant would more likely than not have received a different verdict with the
evidence, but whether in its absence he received a fair trial, understood as a trial
resulting in a verdict worthy of confidence.” Lande at 296. (Citations omitted).
“The possibility of an acquittal on a criminal charge does not imply an insufficient
evidentiary basis to convict.” State v. Crawford, 02-2048, p. 11 (La. App. 4 Cir.
2/12/03), 848 So.2d 615, 624, writ denied, 03-1085 (La. 3/12/04), 869 So.2d 815
(quoting Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 1566, 131 L.Ed.2d
490 (1995)). A defendant does not show a Brady violation by demonstrating that
some of the inculpatory evidence should have been excluded. Rather, the
defendant must show that the favorable evidence could reasonably be taken to put
the whole case in such a different light as to undermine confidence in the verdict.
Kyles, 514 U.S. at 435, 115 S.Ct. at 1566. See also Louviere, 00-2085 at 22, 833
So.2d at 902 n.19.
25
Example of a claim where the Louisiana Supreme Court concluded that
a hearing was not required pursuant to a Brady violation:
In State v. Matthews, 09-493 (La. 12/18/09), 23 So.3d 898, petitioner
claimed that the State violated Brady by failing to turn over a statement in which a
witness purportedly identified another person as the shooter. In light of the fact that
petitioner’s own statement revealed that he participated in the robbery in which the
victim was shot and killed, the statement could not satisfy the materiality standard
because it would not absolve petitioner of the crime of which he was convicted.
Example of a claim that the Louisiana Supreme Court concluded that a
new trial was warranted pursuant to a Brady violation:
In State v. Bright, 02-2793, 03-2796 (La. 5/25/04), 875 So.2d 37, the
Louisiana Supreme Court reversed defendant’s conviction, vacated the life
sentence, and remanded for a new trial based on a finding of a Brady violation. In
Bright, supra, the Brady violation concerned allegations that the State failed to
disclose the prior criminal record of its star witness.
In Bright, 875 So.2d at 39, defendant was found guilty of first degree murder
in 1996, and was sentenced to death. On appeal, the Louisiana Supreme Court
found that there was insufficient evidence to support a conviction and first degree
murder and rendered a judgment of guilty of second degree murder. (citing State
v. Bright, 98-0398 (La. 4/11/00), 776 So.2d 1134). Thereafter, the district court
imposed a life sentence without benefit of parole, probation, or suspension of
sentence. Id.
In 2000, defendant filed an APCR, which was denied by the district court.
In the meantime, defendant also requested the production of the FBI material
pertaining to the underlying crime for which he was convicted. Id. In March
2003, the federal district court granted relief and those materials were produced.
Thereafter, the Louisiana Supreme Court allowed defendant to reopen the
proceedings in district court. Again, the district court denied relator’s APCR, and
the court of appeal denied writs. Id.
In determining whether the State withheld material evidence, the court
considered the following facts:
26
The Brady issue in this case arises from the State’s suppression
of the criminal history of Thompson, its star witness. As noted above,
only Thompson, who acknowledged he had been drinking for many
hours prior to the shooting, identified defendant. In addition, the
identification came some weeks after the crime. This information was
presented to the jury, but jurors did not learn that Thompson had a
prior conviction for simple burglary and was on parole at the time of
the offense and at the time of his subsequent identification of
defendant in the photographic lineup. The prosecution had responded
“not entitled” to a pre-trial request by the defense for the production
of rap sheets of the State’s witnesses. The State now admits this
response was wrong and admits the evidence should have been
disclosed.
Information about a witness’s convictions is admissible and can
form an important source for impeachment of such witnesses. See,
LSA-C.E. art. 609.1; see generally, State v. Tolbert, 03-0330
(La.6/27/03), 849 So.2d 32. The fact that Thompson was under the
supervision of the Department of Public Safety and Corrections
(“DOC”) at the time of the shooting and could have been subject to
parole revocation for violation of the terms of his parole (by drinking,
as he admitted doing), gave him the motivation to cooperate with lawenforcement authorities, motivation defendant had a right to reveal to
the jurors. See, e.g., Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct.
1105, 1111, 39 L.Ed.2d 347 (1974) (Bias may arise from a witness’s
vulnerable status as a probationer; the Sixth Amendment right to
confrontation includes the right to cross-examine a prosecution
witness concerning a possible source of bias.) The importance of
such information can be heightened in a case such as defendant’s,
where only one witness-the felon whose record the State
suppressed-identified defendant. The only evidence relied on to
convict defendant was Thompson’s testimony; there were no
other witnesses, and there was absolutely no physical evidence.
See Bright, 875 So.2d at 42-44 (Emphasis added).
27
It is noted that the court also considered the following facts in reaching its
decision:
Compounding the significance of the State’s failure to disclose
is the fact that the State utilized the same type of impeachment
evidence of prior convictions that was withheld from the defense.
Defendant’s two alibi witnesses both “suffered a ... loss of credibility”
when the State cross-examined them about their convictions. Bright,
09-0398 at 8-9, 796 So.2d at 1140. A second trial will place the case
before a decision-maker informed of the material suppressed at the
first trial. Thus, an informed decision-maker, in evaluating credibility,
can consider the relative degrees of moral culpability exhibited by
convictions for such things as drug offenses and possession of stolen
goods as contrasted with a conviction for burglary and subsequent
parole violations.
Bright, supra, at 43.
Based on the foregoing, the court surmised:
Defendant has shown that the State suppressed the criminal
history of its main witness, the only witness to identify defendant in a
case in which there exists no physical evidence. In this situation, the
evidentiary suppression rises to a level such that we can have no
confidence in the verdict and requires reversal. Kyles, 514 U.S. at 434,
115 S.Ct. at 1566. When the State’s case hinges on the testimony of
one eyewitness, the Brady violation looms larger.
Bright, supra, at 44.
In reaching its decision, the court also considered the State’s response:
The State has conceded the prosecution failed to disclose before
trial that Thompson, its only eyewitness to the victim’s murder who
claimed he could identify defendant as the perpetrator, had a prior
felony conviction. Nevertheless, the State argues that its failure to
disclose the criminal history of its star witness does not rise to a level
of materiality requiring reversal. We remain unconvinced by this
28
argument, noting that nothing in the State’s opposition negatively
affects the conclusion that the State committed an evidentiary
suppression that undermines confidence in the outcome of the trial.
Kyles v. Whitley, 514 U.S. at 434, 115 S.Ct. at 1566.
Id. at 44.
Based on the foregoing, the Bright court, in this particular case, determined
as follows:
We conclude the State’s failure to disclose the criminal history
of its key witness, Thompson, violated defendant’s due process rights
and requires reversal under the rule of Brady v. Maryland, 373 U.S.
83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and progeny. Although the
State now concedes the evidence of its key witness’s criminal record
should have been revealed to the defense, we hasten to point out that
a Brady analysis focuses on the harm to the defendant resulting
from nondisclosure rather than on the willful misbehavior of the
prosecutor. Agurs, 427 U.S. at 104, 96 S.Ct. at 2398 n. 10. The
detriment to the defendant in the instant case cannot be discounted.
After a careful review of the facts unique to this case, we can have no
confidence in the verdict.
The sole witness to claim he could identify defendant as the
shooter was Thompson, who spent the better part of the day of the
crime consuming alcoholic beverages and thus was in de facto
violation of his parole. At the time he identified the defendant as the
shooter, Thompson remained on an extended parole. The specific
facts of Thompson’s criminal record and the fact that he was still on
parole in 1995 raise questions about the veracity of his trial testimony.
To compound the detriment to the defendant, the State used the very
type of evidence withheld from the defendant to effectively impeach
the defendant’s witnesses.
Significantly, the only evidence that resulted in a conviction
was Thompson’s testimony. The investigation of the shooting, which
involved the FBI, as well as local authorities, failed to produce any
29
physical evidence, such as the missing envelope of money, a gun, or
DNA evidence, to connect defendant to the shooting.
Id. at 44-45 (emphasis added).
Other Issues Raised in an APCR
DNA testing
In 2001, the legislature established a procedure for a felon to request DNA
testing. 2001 La. Acts No. 1020, § 1. One of the listed grounds for an APCR is that
the “results of DNA testing performed pursuant to an application granted under
Article 926.1 proves by clear and convincing evidence that the petitioner is
factually innocent of the crime for which he was convicted.” La. C.Cr.P. art.
930.3(7).
It is noted that there is no federal constitutional due process right to obtain
post-conviction access to the state’s evidence for DNA testing. District Attorney’s
Office for Third Judicial District v. Osborne, 577 U.S. 52, 129 S.Ct. 2308, 174
L.Ed.2d 38 (2009).
The time limit for filing an APCR that requests DNA testing is August 31,
2014. After that date, the time limit is as provided by article 930.8. La. C.Cr.P. art.
926.1(A)(1) (as amended by 2008 La. Acts No. 297, § 1).
A person convicted of a felony may file an APCR requesting DNA testing of
an “unknown sample” secured in relation to the offense for which he was
convicted. La. C.Cr.P. art. 926.1(A)(1). An “unknown sample” is defined as a
“biological sample from an unknown donor constituting evidence of the
commission of an offense or tending to prove the identity of the perpetrator of an
offense.” La. C.Cr. P. art. 924(4).
The requirements for requesting DNA testing in an APCR are as follows:
(i)Comply with the form requirements of La. C.Cr.P. art. 926.
(ii) “A factual explanation of why there is an articulable doubt, based on
competent evidence whether or not introduced at trial, as to the guilt of the
petitioner in that DNA testing will resolve the doubt and establish the innocence of
the petitioner.” La. C.Cr. P. art. 926.1(B)(1).
30
(iii) Allege the factual circumstances establishing the timeliness of the
application. La. C.Cr.P. art. 926.1(B)(2).
(iv) Allege the identity of the particular evidence for which DNA testing is
sought. La. C.Cr. P. art. 926.1(B)(3).
(v) Contain an affidavit signed by the petitioner in which he professes his
innocence. La. C.Cr.P. art. 926.1(B)(4).
Actual Innocence
In order to meet the exception of La. C.Cr.P. art. 930.8(A)(1) when raising a
claim of actual innocence claim that is based upon newly discovered evidence, it is
important to consider the decision in State v. Pierre, 13-0873 (La. 10/15/13) 125
So.3d 403. In Pierre, supra, the Louisiana Supreme Court reaffirmed its ruling in
State v. Conway, 01-2808 (La. 4/12/02), 816 So.2d 290, 1 and found as follows:
At this extraordinary level, respondent must show in the present
case more than a probability that reasonable jurors might divide over
the question of C.C.’s credibility in light of the new evidence. As
respondent readily concedes, he lacks new reliable scientific evidence,
eyewitness testimony, or critical physical evidence of such
persuasiveness that no reasonable juror would have convicted in light
of the new evidence that did not, in any event, amount to C.C.’s
repudiation of any of her trial testimony against him. And, as the state
has argued throughout these post-conviction proceedings, respondent
has not made an affirmative case of “conclusive exoneration.” House,
547 U.S. at 553, 126 S.Ct. at 2086.
1
In order for relator to be successful with a claim of actual innocence not based on DNA
evidence, such a claim must involve:
“new, material, noncumulative,” and “conclusive” evidence, Washington, 216 Ill. Dec.
773, 665 N.E.2d at 1337, which meets an “extraordinarily high” standard, Summerville,
641 A.2d at 1372-75, and which “undermine[s] the prosecution’s entire case,” In re
Clark, 5 Cal.4th 750, 21 Cal. Rptr.2d 509, 855 P.2d 729, 739 (1993), while Conway on
collateral review merely advanced an “alternative and inconsistent” theory of defense to
the one he offered at trial, a tactic our jurisprudence prohibits. See generally State v.
Juluke, 98-0341, pp. 4-5 (La.1/8/99), 725 So.2d 1291, 1293.
State v. Conway, 01-2808 (La. 4/12/02), 816 So.2d 290, 291.
31
Second, respondent has also failed to show that he was deprived
of the opportunity to file a motion for new trial on grounds of newly
discovered evidence and thereby deprived of a lower standard of
materiality than Conway requires because his new evidence, even if
not establishing actual innocence, “would probably have changed the
verdict or judgment of guilty” had it been introduced at trial.
See Pierre, 13-0873, 125 So.3d at 409-10.
It appears that a defendant must meet an “extraordinarily high standard” of
raising a claim of “actual innocence” See Pierre, supra.
Double Jeopardy
The issue of double jeopardy is one of the grounds that may be raised in an
APCR. La. C.Cr.P. art. 930.3(3).
What are the time delays for filing a claim of double jeopardy?
Double jeopardy may be raised at any time. La. C.Cr.P. art. 594. However, if
the issue is raised in an APCR, La. C.Cr.P. art. 930.8 might bar consideration of
the issue if the APCR is filed untimely.
Prior to adoption of the current Code of Criminal Procedure, the issue of
double jeopardy must be raised and disposed of before trial. La.C.Cr. P. art. 594,
official revision comment (b). Now, under Article 594, a defendant now may raise
the issue pretrial, during trial, after trial on appeal, and after trial in an application
for post-conviction relief. La. C.Cr.P. art. 930(3) specifies that the issue of double
jeopardy is one of the grounds that may be raised in an application for postconviction relief. If the issue is raised after finality of conviction, the proper
procedure for presenting the issue is in a PCR, which must be timely filed under
article 930.8.
*However, La. C.Cr.P. art. 594 is not an exception to the time
requirement of article 930.8.
Sentencing Issues:
In State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172, the
Louisiana Supreme Court denied the relator’s claim for post-conviction relief
based on the excessiveness of his sentence. In that case, the court construed the
provisions of LSA-C.Cr.P. art. 930.3 provided no basis for review of claims of
32
excessiveness or other sentencing error post-conviction. Further, in State v.
Cotton, 09-2397 (La. 10/15/10), 45 So.3d 1030, the Louisiana Supreme Court held,
in pertinent part:
An habitual offender adjudication thus constituting sentencing
for purposes of Melinie and La. C.Cr.P. art. 930.3, which provides no
vehicle for post-conviction consideration of claims arising out of
habitual offender proceedings, as opposed to direct appeal of the
conviction and sentence.
Id. at 1030.
It is noted that a claim of ineffective assistance of counsel at a defendant’s
habitual offender adjudication is also not cognizable on post-conviction relief. In
Cotton, supra, at 1031, the court held: “A fortiori, respondent’s claim that he
received ineffective assistance of counsel at his habitual offender adjudication is
not cognizable on collateral review so long as the sentence imposed by the court
falls within the range of the sentencing statutes. Cf. La. C.Cr.P. 882.”
Motion to Correct Illegal Sentence
La. C.Cr.P. art. 882 states:
A. An illegal sentence may be corrected at any time by the court that
imposed the sentence or by an appellate court on review.
B. A sentence may be reviewed as to its legality on the application of the
defendant or of the state:
(1) In an appealable case by appeal; or
(2) In an unappealable case by writs of certiorari and prohibition.
C. Nothing in this Article shall be construed to deprive any defendant of his
right, in a proper case, to the writ of habeas corpus.
In many instances, instead of challenging the legality, validity or
excessiveness of his sentences, a relator will raise claims that are more in line with
the grounds for seeking a post-conviction relief under LSA-C.Cr.P. art. 930.3. The
Louisiana Supreme Court has recognized that courts should “look through the
caption of the pleadings in order to ascertain their substance and to do substantial
justice.” See State v. Moses, 05-787, p. 4 (La. App. 5 Cir. 5/9/06), 932 So.2d 701,
706, n.3. See also State v. Sanders, 93-1, p. 14 (La. 11/30/94), 648 So.2d 1272,
1284, cert. denied, 517 U.S. 1246, 116 S.Ct. 2504, 135 L.Ed.2d 194 (1996) (citing
Smith v. Cajun Insulation, 392 So.2d 398, 402, n.2 (La. 1980); Atchley v. Atchley,
33
01-67 (La. App. 5 Cir. 5/30/01), 788 So.2d 690, 693, writ denied, 01-1915 (La.
2/8/02), 808 So.2d 349).
The district court or the appellate court on review properly may deny
defendant’s claim if he failed to point to an illegal term of his sentences. In State v.
Gedric, 99-1213 (La. App. 1 Cir. 6/3/99), 741 So.2d 851, 851-52, the court stated:
A trial court may correct an illegal sentence at any time.
La.Code Crim.P. art. 882(A). See also La.Code Crim.P. art. 881.5.
Only those claims relating to the legality of the sentence itself under
the applicable sentencing statutes may be raised in a motion to correct
an illegal sentence. See State v. Parker, 98-0256 (La. 5/8/98), 711
So.2d 694, 695; State ex rel. Stepter v. Whitley, 93-2346 (La.
10/13/95), 661 So.2d 480.
In State v. Parker, 98-256 (La. 5/8/98), 711 So.2d 694, 695, the Louisiana
Supreme Court held:
Because Parker’s filing below did not point to a claimed illegal
term in his sentence, he did not raise a claim cognizable in a motion to
correct an illegal sentence. Instead, he raised a claim of trial error
properly cognizable in an application for post-conviction relief if at
all….
Even if a defendant’s claims had been timely filed as an application for postconviction relief, La. C.Cr.P. art. 930.3 provides no basis for review of claims of
excessiveness or other sentencing error post-conviction. State ex rel. Melinie v.
State, 93-1380 (La. 1/12/96), 665 So.2d 1172. Moreover, in State v. Hebreard, 980385 (La. App. 4 Cir. 2/25/98), 708 So.2d 1291, the court “explicitly” decreed that
a challenge to relator’s adjudication as a multiple offender was not a proper ground
for post-conviction relief.
III. PETITIONER’S APCR IS DENIED BY THE TRIAL COURT:
There is no right to appeal the denial of an APCR. The proper procedure to
seek review is an application for supervisory writs. La. C.Cr.P. art. 930.6(A); State
v. Benoit, 446 So.2d 921 (La. App. 1 Cir. 2/28/84), writ denied, 448 So.2d 113 (La.
1984).
34
An appeal cannot be taken from a judgment dismissing an APCR. State v.
Mourra, 06-695 (La. App. 5 Cir. 1/30/07), 951 So.2d 1216; State v. Fontenot, 061373 (La. App. 3 Cir. 11/29/06), 943 So.2d 1274.
The defendant is required to file a notice of intent or seek a return date
challenging the district court’s ruling. U.R.C.A., Rule 4-2 provides:
The party, or counsel of record, intending to apply to the Court
of Appeal for a writ shall give to opposing parties or opposing counsel
of record, notice of such intention; notice simultaneously shall be
given to the judge whose ruling is at issue, by requesting a return date
to be set by the judge within the time period provided for in Rule 4-3.
Important considerations for the timely filing of a notice of intent in criminal
cases:
The time period for filing a timely notice of intent commences on the date of
the ruling, not the date of service of the copy of the ruling.
U.R.C.A., Rule 4-3 states, in pertinent part:
In criminal cases, unless the judge orders the ruling to be
reduced to writing, the return date shall not exceed 30 days from the
date of the ruling at issue. When the judge orders the ruling to be
reduced to writing in criminal cases, the return date shall not exceed
30 days from the date the ruling is signed. In all cases, the judge shall
set an explicit return date; an appellate court will not infer a return
date from the record.
It is important to consider that U.R.C.A., Rule 4-3 requires the district court
to set an explicit return date. For instance, an order setting a return date “within
the delays allowed by law” or or “within thirty days after defendant receives a
copy of the transcript” may not be considered explicit dates.
A defendant may seek an extension of time so long as the request is made
prior to the return date.
U.R.C.A., Rule 4-3 states, in part:
35
Upon proper showing, the trial court or the appellate court may
extend the time for filing the application upon the filing of a motion
for extension of return date by the applicant, filed within the original
or an extended return date period.
What if the district court sets the return date more than thirty days
from the date of the ruling?
In Barnard v. Barnard, 96-0859 (La. 6/24/96), 675 So.2d 734, 735, the
Louisiana Supreme Court held:
The trial court violated Rule 4-3 by fixing the time for filing on
a date that was more than thirty days from the date of that court’s
ruling. Nevertheless, the trial court had authority under Rule 4-3 to
extend the deadline for filing beyond the thirty-day limit.
Accordingly, since it was the trial court who violated Rule 4-3 and
since relator filed his application within the time limit authorized in
the order of the trial court, there is no justification for penalizing
relator or his client by refusing to consider the application.
Procedural defects in the writ application
What happens when a defendant’s writ application fails to present any
issues and/or assignments of error concerning the district court’s ruling or the
defendant raises new claims not previously addressed by the district court?
U.R.C.A, Rule 1-3, provides:
The scope of review in all cases within the appellate and
supervisory jurisdiction of the Courts of Appeal shall be provided by
LSA-Const. Art. 5, §10(B), and as otherwise provided by law. The
Courts of Appeal will review only issues which were submitted to the
trial court and which are contained in specifications and assignments
of error, unless the interest of justice clearly requires otherwise.
Thus, under U.R.C.A., Rule 1-3, an appellate court may deny a writ
application challenging the denial of an APCR if the application fails to include
any assignments of error or a memorandum of law regarding the district court’s
ruling.
36
What is the legal effect when a defendant raises for the first time in his
writ application arguments concerning errors during an evidentiary hearing
on post-conviction matters.
The writ application could be denied pursuant to U.R.C.A., Rule 1-3, since
defendant failed to raise these specific issues to the district court during the
evidentiary hearing. For instance, the defendant fails to make a contemporaneous
objection or an objection on a ruling of the evidence under both La. C.Cr.P. art.
841 and La. C.E. art. 103. Although there does not appear to be controlling
statutes or jurisprudence which address whether the requirements of either La.
C.Cr.P. art. 841 or La. C.E. art. 103 are applicable to an evidentiary hearing on
post-conviction matters, the appellate court could decide that the same principles
should apply in the instant matter.
A defendant cannot avail himself of an alleged error unless he made a
contemporaneous objection at the time of the error. La. C.Cr.P. art. 841(A) states:
An irregularity or error cannot be availed of after verdict unless
it was objected to at the time of occurrence. A bill of exceptions to
rulings or orders is unnecessary. It is sufficient that a party, at the time
the ruling or order of the court is made or sought, makes known to the
court the action which he desires the court to take, or of his objections
to the action of the court, and the grounds therefor.
In State v. Norwood, 99-136, p. 6 (La. App. 5 Cir. 8/31/99), 742 So.2d 993,
996, the defendant argued on appeal that the trial court erred by not allowing
defense counsel to attack the credibility of the State’s witness about a prior
criminal conviction. Accordingly, this Court found that defense counsel in effect
acquiesced to the court’s ruling. This Court further found that absent a motion to
suppress or an objection at trial, defense counsel did not properly preserve the
issue for appeal. Norwood, supra (citing La. C.Cr.P. art. 841).
What if the writ application does not contain documentation of a return
date or any extension thereof?
U.R.C.A., Rule 4-3 states, in part:
An application not filed in the appellate court within the time so
fixed or extended shall not be considered, in the absence of a showing
37
that the delay in filing was not due to the applicant’s fault. The
application for writs shall contain documentation of the return
date and any extensions thereof; any application that does not
contain this documentation may not be considered by the
appellate court.
What if the writ application is untimely filed with the appellate court?
U.R.C.A., Rule 4-3 states, in pertinent part:
In criminal cases, unless the judge orders the ruling to be
reduced to writing, the return date shall not exceed 30 days from the
date of the ruling at issue. When the judge orders the ruling to be
reduced to writing in criminal cases, the return date shall not exceed
30 days from the date the ruling is signed. In all cases, the judge
shall set an explicit return date; an appellate court will not infer a
return date from the record.
(emphasis added).
However, for purposes of determining timeliness the actual date of filing for
pleadings filed by inmates is the date the pleading is delivered to the prison
authorities. See Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245
(1988); State ex rel. Johnson v. Whitley, 92-2689 (La. 1/6/95), 648 So.2d 909;
Shelton v. Louisiana Department of Corrections, 96-0348 (La. App. 1 Cir.
2/14/97), 691 So.2d 159. It is noted that the postmark date may be stamped later
than the date relator signed the writ application.
Further, an appellate court may deny a writ application if relator has failed to
include a copy of the district court’s rulings as required by U.R.C.A., Rule 45(C)(6).
Additionally, U.R.C.A., Rule 4-5(C) provides, in pertinent part:
The submission shall contain these items:
(4) the issues and questions of law presented for determination
by the court;
(5) the assignments or specifications of errors and a
memorandum in support of the application, in accordance with Rules
2-12.2 and 2-12.10, and a prayer for relief.
38
IV. DISCUSSION CONCERNING UPCOMING REVISIONS TO
LOUISIANA POST-CONVICTION PROCEDURES
There is discussion to refine and create a more definitive and efficient postconviction process for both capital and non-capital cases. For instance, the APCR
committee has proposed a renumbering and reorganization of current articles. It
appears that these changes would reflect of the importance of some post-conviction
articles, especially as to assist the average pro se litigant through the process.
There are also proposals to add new articles in pursuit of this goal.
One example of a proposed legislative revision would be specifying the
grounds for post-conviction relief under La. C.Cr.P. art. 930.3. As to repetitive
applications, there is a proposal to include language that an applicant must be
granted leave of court to file a subsequent application. The applicant would be
required to file a motion to request leave of court and shall use the uniform motion
for leave of court approved by the Supreme Court of Louisiana. A new article may
include discovery. Another proposal would place the article concerning the time
limitation to file an APCR at the beginning instead of the end of the postconviction chapter.
Of note, the Uniform Application will also be revised.
39
JUDGE PAUL A. BONIN
Judge Paul A. Bonin serves on the 4th Circuit Court of Appeal, based in New Orleans.
He began his service seven years ago. In addition to his judicial responsibilities, Judge Bonin
serves as the Chair of the Louisiana Board of Examiners of Certified Shorthand Reporters and
was recently reappointed by the Louisiana Supreme Court to a second three-year term on the
board. He also serves as the Chair of the Court Costs Standing Committee of the Judicial
Council and is a member of the Council’s New Judgeships Committee.
Before his current service, Judge Bonin was a judge of the New Orleans Traffic Court for
ten years and, during that time, served as president of the Louisiana City Court Judges
Association. During his legal career, Judge Bonin actively engaged in the general practice of
law, including a stint as an Assistant Attorney General for the State of Louisiana, and was
appointed on a temporary basis to serve as a judge in the Municipal, Traffic and Juvenile Courts
in New Orleans as well as a Commissioner and judge ad hoc in Civil District Court. For many
years he was an Assistant Professor in the Criminal Justice Graduate Program of Southern
University at New Orleans and an adjunct at Delgado Community College.
He received his BA in Philosophy in 1973 from St. Joseph Seminary College near
Covington and his JD from Loyola College of Law in 1976, and has completed the course work
toward the Masters of Judicial Studies at the University of Nevada – Reno in association with the
National Judicial College. The judge is married to Loree Buchert Bonin, and they are the parents
of four children, including two lawyers and a law student.
Maria E. Hayes
After graduating from Tulane Law School, Ms. Hayes was employed as a law clerk and a
research attorney for the Fourth Circuit Court of Appeal handling both civil and criminal appeals
and writs from 1997 through 2004. Ms. Hayes began work at the Fifth Circuit Court of Appeal
as a law clerk and research attorney handling both civil and criminal appeals and writs in 2004.
Beginning in 2007, Ms. Hayes worked exclusively in Central Staff at the Fifth Circuit handling
all of the pro se criminal writ applications, as well as all of the counseled post-conviction writ
applications. In 2013, Ms. Hayes began working in the Fifth Circuit’s newly developed
Screening Department reviewing both civil and criminal appeals and writs for jurisdictional
problems and assessing the record.
Serena C. Vaughan
Since June 15, 2013, Ms. Vaughan has been a research attorney in Central Staff for the
Louisiana Fifth Circuit Court of Appeal in the area of criminal post-conviction writ applications,
both pro se and counseled.
After obtaining her J.D. degree, she served as an Assistant District Attorney in Orleans
Parish. During this time, Ms. Vaughan handled both misdemeanor and felony proceedings (both
judge and jury trials and pre-trial motions) in Juvenile Court, Magistrate, and Criminal District
Court. She also served as a screener in Juvenile Court.
After honoring her three-year commitment with the District Attorney’s Office, I served as
the En Banc attorney for the 24th Judicial District Court for the Parish of Jefferson. She
primarily handled a wide range of criminal post-conviction pleadings for all sixteen divisions of
the 24th Judicial District Court.
From September of 2006 to June of 2013, Ms. Vaughan served as a judicial law clerk for
the Honorable Michael G. Bagneris in Orleans Parish Civil District Court, and later with the
Honorable Monique G. Morial in Orleans Parish First City Court.
Kevin V. Boshea manages a successful defense and appellate
litigation practice focusing on criminal defense, appeals and postconviction relief, with offices in the New Orleans area and Baton
Rouge.
He earned his bachelors in criminal justice from the University of
Florida at Gainesville and his juris doctorate from Loyola University
School of Law. He was admitted to the Louisiana State Bar in1981,
and is admitted to practice in all five Louisiana Courts of Appeal, as
well as 37 parishes, and the Supreme Court of Louisiana.
Mr. Boshea began serving as an Assistant District Attorney in Orleans Parish in 1981, and
was promoted to Trial Section Senior Assistant District Attorney, Chief of Sex Crimes and
Child Abuse, and the Chief of Screening. Since opening a private practice in 1989 he has
been a member of the Louisiana Association of Criminal Defense Attorneys, the
Louisiana State Bar Association, and the National Register’s “Who’s Who in Executive
Professionals” rankings.
He has taught courses on various legal areas, and was selected to teach in continuing
legal education programs sponsored by Loyola University Law School on trial tactics and
pretrial procedure, and seminars on organized crime prosecution sponsored by the
Louisiana State Police. He has served as the Trial Advocacy Program Judge at Tulane
University, and lectured for the Louisiana State Bar Association.