author: PER CURIAM:

text:
    STATE of Louisiana v. Allen ROBERTSON, Jr.
    No. 2016-KP-1742
    Supreme Court of Louisiana.
    April 6, 2018
   PER CURIAM:

Writ denied. In 1991, Allen Robertson, Jr. was charged by grand jury indictment with two counts of first degree murder, arising from the deaths of Morris and Kazuko Prestenback. After a trial in 1991, Robertson was found guilty as charged and sentenced to death on both counts. Following the first trial, this Court vacated the convictions and sentences, having found that the trial court erroneously denied a defense challenge for cause to a prospective juror. State v. Robertson , 92-2660 (La. 1/14/94), 630 So.2d 1278. After the second trial in 1995, an East Baton Rouge Parish jury found Robertson guilty as charged on both counts and unanimously agreed to impose a sentence of death based upon the aggravating circumstances that the murder occurred during the commission of an aggravated burglary, that the murder occurred during the commission of an armed robbery, and that he knowingly created a risk of death to more than one person. This Court affirmed the convictions and sentences. State v. Robertson , 97-0177 (La. 3/4/98), 712 So.2d 8.

The evidence presented at trial showed that Morris and Kazuko Prestenback, an elderly couple, lived several houses down from the residence of Robertson's mother on Dalton Street in Baton Rouge. On the evening of January 1, 1991, Robertson slipped into the Prestenback home through an unlocked screen door in search of money to buy cocaine to feed his long-term addiction to the drug. He first grabbed the Prestenback's television and sold it on the street for $20. He then returned to the residence, slipping through the same screen door, paused to grab a 13-inch knife in the kitchen, and then entered the bedroom in which Morris Prestenback was sleeping. Mr. Prestenback evidently awoke as Robertson prowled around the bedroom. A struggle ensued which led to a gruesome murder, in which Robertson stabbed Mr. Prestenback (who was in his 70s) multiple times in the head, face, and chest, and Mr. Prestenback suffered numerous fractures of the facial and nasal bones. Some of the eight stab wounds to the chest hit vital organs and major blood vessels, severed eight of the victim's ribs, and were almost 7" deep. Mr. Prestenback bled to death.

As Robertson struggled with Morris Prestenback, Kazuko Prestenback awoke in her separate bedroom, came upon the bloody scene in her husband's bedroom, and attempted to flee. Robertson attacked her in the hallway, inflicting several deep wounds in her back with the kitchen knife. Mrs. Prestenback retreated into her bedroom and curled into a fetal position on the bed as Robertson continued to stab her in the chest, carving through several of her ribs and spattering her blood on the ceiling and walls of the room. Robertson remained in the house for several minutes to make sure the Prestenbacks were dead, then took a watch, cash, and car keys and left.

He climbed into the Prestenback's Oldsmobile, backed out of the driveway, uprooting and driving over a chain-link fence and gate, which were barring the way, and then sped down Dalton Street, eluding an off-duty police officer who gave chase briefly after observing the Oldsmobile run a stop sign. Robertson quickly abandoned the car and escaped on foot, making his way to the home of his girlfriend, Michelle Alexander.

Robertson immediately confessed to her and to members of his family that he had killed the Prestenbacks. Following his arrest on January 3, 1991, at Alexander's home, Robertson also gave a series of taped statements to police in which he confessed to the murders.

After his convictions and sentences became final, Robertson filed a shell application for post-conviction relief, which the district court summarily denied before setting an execution date. This Court vacated the ruling and execution date and remanded with an order to appoint post-conviction counsel. State ex rel. Robertson v. State , 00-1059 (La. 4/26/00), 760 So.2d 1163. Following the resolution of funding issues, this court again remanded for post-conviction proceedings. State ex rel. Robertson v. Cain , 03-2747 (La. 5/7/04), 872 So.2d 1073.

In July 2007, post-conviction counsel filed an amended application for post-conviction relief and a motion for an evidentiary hearing. In 2008, the district court granted some state objections and summarily denied Robertson's remaining claims on the merits, including his claim that he is intellectually disabled and thus, pursuant to Atkins v. Virginia , 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), exempt from capital punishment. Robertson then filed another writ application in this Court claiming, inter alia , that the district court erred in failing to conduct an evidentiary hearing to determine whether he is intellectually disabled. In response, this Court granted writs in part and remanded for an evidentiary hearing on the limited issue of intellectual disability. Robertson v. Cain , 08-1116 (La. 9/4/09), 17 So.3d 960.

In accordance with this Court's order, the district court conducted multi-day intellectual disability hearings (the " Atkins hearing") on November 13-14, 2013, April 21-23, 2014, and April 4-6, 2016, after which the district court rejected Robertson's claim, taking into consideration his school records (which indicated no prior diagnosis of intellectual disability), his I.Q. scores, and his ability to adapt to life.

We have reviewed Robertson's claim and find no reason to disturb the district court's ruling. In Atkins v. Virginia , 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), the Supreme Court held that the execution of mentally retarded persons (now referred to as intellectually disabled) constitutes excessive punishment, and therefore violates the Eighth Amendment. As implemented in Louisiana, intellectual disability is a three-part condition shown by establishing: (1) sub-average intelligence and (2) significant impairment in several areas of adaptive skills that (3) manifested during the developmental stage. State v. Williams , 01-1650, pp. 22-24 (La. 11/1/02), 831 So.2d 835, 853-54.

At the Atkins hearing, the experts were split on whether Robertson met the criteria for intellectual disability. Defense expert, Dr. Mark Cunningham, and court-appointed expert, Dr. Jill Hayes, concluded that Robertson met the criteria. However, the second court-appointed expert, Dr. Curtis Vincent, and the state's expert witness, Dr. Donald Hoppe, opined that Robertson did not.

As an initial matter, all four experts agreed that Robertson had never been diagnosed with intellectual disability before the Atkins inquiry, and this Court has previously viewed "made-for-litigation diagnoses" with suspicion. Brumfield v. Cain , 854 F.Supp.2d 366, 404 (M.D. La. 2012) (citing State v. Dunn , 01-1635, p. 27 (La. 5/11/10), 41 So.3d 454, 472 ); see also Ex parte Cathey , 451 S.W.3d 1, 20 (Tex. Crim. App. 2014) ("It is difficult to credit that a developmental intellectual disability can lie dormant and undiscovered for [37] years and then spring full-grown, like Minerva from Zeus's forehead, only when that person would be exempted from the death penalty if found so disabled."); Leigh D. Hagan & Thomas J. Guilmette, The Death Penalty and Intellectual Disability , 31 FALL CRIM. JUST. 21, 25 (2017) ("Although DSM-5 and the AAIDD reference assessment of adaptive deficits, no evaluation strategy should apply the blinders of single-hypothesis confirmation, selective attention to the evidence, a priori conclusions, or result-driven advocacy.").

As to the first criterion, Robertson's IQ has been tested four times over the course of his life. Notably, one IQ test was administered to Robertson before the age of 18, and his score of 76 is above the generally-accepted range to meet the criteria for intellectual disability. Court-appointed expert, Dr. Vincent, testified that this score should be weighed heavily, and opined that, from this single score, Robertson did not meet the criteria for intellectual disability. However, Robertson's three subsequent scores (74, 70, and 73) and their confidence intervals (range calculated from the standard error of measurement) include scores of 70 or below, and given these borderline IQ scores, Robertson's diagnosis is heavily dependent on his adaptive functioning. See DSM-IV, p. 42 ("Impairments in adaptive functioning, rather than a low IQ, are usually the presenting symptoms in individuals with [Intellectual Disability].").

Both Dr. Cunningham and Dr. Hayes opined that Robertson had significant adaptive functioning deficits, relying upon anecdotal descriptions of third parties of Robertson's childhood behavior (lack of social insight, self-direction, and problem-solving ability; gullibility; poor hygiene; failure to follow instructions for household chores, etc...) and historical records (i.e., academic and vocational records), which demonstrated consistent academic underperformance and limited reading, writing, and math abilities. In the cross-examination of Dr. Cunningham, however, the state pointed to the results of an essential skills test, administered as a part of Robertson's vocational education, where he exhibited skills, such as: (1) use of a dictionary, telephone directory, and the classified section of the newspaper; (2) completion of a job application; (3) counting money, telling time, reading a thermometer, using a ruler, and expressing the months in the year in order; (4) and the ability to measure liquid and dry ingredients.

Dr. Vincent and Dr. Hoppe found Robertson had no deficits in adaptive skills, opining that Robertson's academic underperformance was attributable to his (1) drug and alcohol abuse, which began at the early age of 12; (2) neglect and lack of supervision; (3) lack of encouragement or available support; and (4) designation of slow learner and hyperactivity issues. They emphasized that examples of Robertson's childhood behavior reported by family members and friends were not credible or reliable, as these witnesses were likely motivated to see Robertson spared the death penalty. As examples of Robertson's adaptive functioning, they pointed to the results of the Independent Living Skills test administered by Dr. Vincent, in which Robertson answered the following questions and performed the following tasks: (1) correctly explained the purpose of a will; (2) successfully counted money, filled out a money order and gave correct change using pencil and paper; (3) and successfully located information in a phone book. Further, they emphasized Robertson's oral communication skills, as exhibited by recorded jailhouse phone calls, which demonstrated his ability to recall information, including locations and past acquaintances; his use of common phrases ("It is what it is;" "from the get go;" "keep me in the loop;" etc...); and his ability to give relationship advice.

It is also important to consider Robertson's behavior while committing the instant crime as it relates to his adaptive skills functioning. See Dunn , 01-1635, p. 27, 41 So.3d at 471 ; State v. Scott , 04-1312, p. 85 (La. 1/19/06), 921 So.2d 904, 959 ; State v. Brown , 03-0897, p. 46 (La. 4/12/05), 907 So.2d 1, 32. Both Drs. Hoppe and Vincent emphasized Robertson's specific criminal behavior in the instant case in support of their conclusion that Robertson did not meet the criteria for intellectual disability. The evidence at trial indicates that Robertson, the sole perpetrator, was acquainted with the victims and twice entered their residence undetected. He stole a television and sold it for $20 before returning a second time. After Robertson killed both victims, he stole a watch, cash, and car keys and successfully drove the victims' vehicle while eluding an off-duty police officer. He also counted the stolen money and negotiated with witnesses to avoid arrest. The facts of this case therefore suggest that Robertson is capable of pre-meditation, problem-solving skills, and negotiation skills.

The district court, in its discretion, credited the opinions of Drs. Hoppe and Vincent that Robertson was not intellectually disabled, specifically, focusing upon Robertson's adolescent IQ score of 76; his academic records, which indicated no prior diagnosis of intellectual disability; his drug and alcohol abuse as major contributors to his struggles; and the experts' opinion that third party reporting of Robertson's deficits in adaptive behavior were not credible. Instead, the district court reasonably relied upon the experts' opinion that examples of Robertson's skills, shown through the specific criminal activity in the instant case, skills test results, and jailhouse conversations, did not support a finding of limitations in Robertson's ability to adapt to life.

In Brumfield v. Cain , 808 F.3d 1041, 1057 (5th Cir. 2015), cert. denied , --- U.S. ----, 136 S.Ct. 2411, 195 L.Ed.2d 781 (2016), the Fifth Circuit reviewed and affirmed a federal district court's determination that another Louisiana death row inmate, Kevan Brumfield, was intellectually disabled, explaining at the outset:

The determination of whether a defendant is intellectually disabled is inherently an intensively factual inquiry. Because intellectual disability is a factual finding, this court reviews a district court's determination that an individual is intellectually disabled for clear error. A finding is clearly erroneous only if it is implausible in the light of the record considered as a whole. If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.
Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous. The Supreme Court has explained that: When a trial judge's finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error. This court cannot second guess the district court's decision to believe one witness' testimony over another's or to discount a witness' testimony, and is thus reluctant to set aside findings that are based upon a trial judge's determination of the credibility of witnesses.

Brumfield , 808 F.3d at 1057 (internal citations and quotations omitted).

Because the district court's ruling here is supported by the record and based upon ample evidence that Robertson does not meet the criteria for intellectual disability, this court is not persuaded to "second guess the district court's decision to believe [two expert witnesses] over [the others]." Brumfield , 808 F.3d at 1057. Accordingly, the application is denied.

Robertson has now fully litigated several applications for state post-conviction relief. 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. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Robertson's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless Robertson can show that one of the narrow exceptions authorizing the filing of a successive application applies, he has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

      In the second trial, Robertson conceded his guilt. After conclusion of the state's case-in-chief, the defense rested. Robertson , 97-0177, p. 3 n.2, 712 So.2d at 15.

      In preparation for this post-conviction litigation, post-conviction counsel had Robertson examined by Dr. Ricardo Weinstein, a forensic psychologist. Dr. Weinstein undertook a comprehensive review of Robertson's historical records; performed interviews with family members, and conducted a battery of tests, including an IQ test, measuring Robertson's full scale IQ at 67 in 2007. However, Dr. Hayes and Dr. Vincent, experts appointed by the court, testified at the Atkins hearing that there were issues in Dr. Weinstein's initial scoring, and the corrected full scale IQ score would be 70.

      Consistent with La. Const. Art. V, § 5 (D), which grants this Court exclusive appellate jurisdiction in cases in which a death sentence has been imposed, and considering that capital cases qualify as "extraordinary" for purposes of La.S.Ct.R. X, § 5(b), this Court has invariably entertained writ applications after a death sentence has been imposed and the petitioner has bypassed the intermediate court of appeal.

      This Court applied Atkins in Williams , 01-1650, 831 So.2d 835, and thereafter, the Louisiana legislature enacted La.C.Cr.P. art. 905.5.1 to provide a procedure when a defendant facing capital punishment claims to be intellectually disabled, before trial . The dictates of Williams still govern post-conviction intellectual disability claims in cases, like this, in which the death sentence pre-dates Atkins . See State v. Dunn , 07-0878, p. 6 (La. 1/25/08), 974 So.2d 658, 662 (because the legislature has not enacted a procedure for post-sentencing Atkins claims, the law in such cases remains as it was when Williams was decided).

      Dr. Cunningham, a clinical and forensic psychologist, interviewed 18 people, including Robertson, his mother, his brothers and sisters, his sons and daughters, his partner, his inmate counselor, distant relatives, and family friends. He additionally reviewed the reports and raw data of the other experts; the videotaped interview of Robertson with Dr. Jill Hayes; the case record; Robertson's criminal record, education records, Department of Corrections records; and the video and audio of Robertson's confessions.

      Dr. Jill Hayes, a clinical and forensic neuropsychologist, reviewed audiotapes of Robertson's recorded jailhouse phone calls, school records, medical records, and the reports of the other experts. Assisted by Dr. Catherine Lolling, Dr. Hayes also interviewed Robertson, his family members, and Angola staff. She also administered the WAIS-4 IQ test to Robertson.

      Dr. Vincent, a clinical psychologist, reviewed the trial transcripts, the pre-sentencing investigation report, raw data from other experts, administered the Independent Living Skills test to Robertson, and administered the ABAS (Adaptive Behavior Assessment System) questionnaire to Robertson, his mother, and his nephew.

      Dr. Hoppe, a state licensed psychologist, administered the Wide Range Achievement Test (WRAT); conducted interviews with Robertson, Robertson's mother, and his nephew; and reviewed all available records and the reports of the other experts.

      TEST YEAR (AGE) MEASURED IQ IQ WITH SEM WAIS 1984 (16) 76 71-81 WAIS-R 1995 (27) 74 69-79 SB-5 2007 (37) 70 65-75 WAIS-IV 2012 (44) 73 68-78

      In Williams , this Court held that "to qualify as significantly sub-average in general intellectual functioning in Louisiana, one must be more than two standard deviations below the mean for the test of intellectual functioning." Williams , 01-1650, p. 23, 831 So.2d at 853. The Wechsler Adult Intelligence Scale test (WAIS) is commonly administered and utilizes a mean score of 100 with a standard deviation of 15. Id. Thus, two standard deviations below average is a score of 70. Hall [v. Florida] , 572 U.S. ----, 134 S.Ct. [1986] at 1994[, 188 L.Ed.2d 1007 (2014) ].

      Both the United States Supreme Court and Louisiana law reject a bright-line numerical cutoff for IQ scores. See Hall , 572 U.S. ----, 134 S.Ct. at 1999 ; Williams , 22 So.3d at 888. As this Court recognized in Williams , "the assessment of intellectual functioning through the primary reliance on IQ tests must be tempered with attention to possible errors in measurement." Williams , 01-1650 p. 23, n. 26, 831 So.2d at 853; see also DSM-IV, p. 31 ("It should be noted that there is a measurement error of approximately 5 points in assessing IQ, although this may vary from instrument to instrument (e.g. , a Wechsler IQ of 70 is considered to represent a range of 65-75.").

      According to the American Association on Intellectual and Developmental Disabilities (AAIDD), an intellectual disability diagnosis requires significant limitations in at least one of three domains of adaptive skills: conceptual, social, and practical skills.

      Records of St. Agnes Vocational School, where Robertson was referred at age 17, reveal that Robertson was designated with the disability of "slow learner."


source: Caselaw Access Project

author: PER CURIAM

license: Public Domain

text:
    IN RE: Bryan F. GILL, Jr.
    NO. 2018-B-0099
    Supreme Court of Louisiana.
    April 6, 2018
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

The Office of Disciplinary Counsel ("ODC") commenced an investigation into allegations that respondent commingled personal funds with client funds in his trust account and converted client and third-party funds. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Bryan F. Gill, Jr., Louisiana Bar Roll number 17600, be suspended from the practice of law for a period of eighteen months. It is further ordered that nine months of the suspension shall be deferred. Following completion of the active portion of the suspension, respondent shall successfully complete a two-year period of unsupervised probation governed by the conditions set forth in the petition for consent discipline. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.


text:
    STATE EX REL. Otis R. MCKINLEY v. STATE of Louisiana
    No. 2017-KH-0141
    Supreme Court of Louisiana.
    April 6, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. In addition, relator's sentencing claim is not cognizable on collateral review. La.C.Cr.P. art. 930.3 ; State ex rel. Melinie v. State , 93-1380 (La. 1/12/96), 665 So.2d 1172 ; see also State v. Cotton , 09-2397 (La. 10/15/10), 45 So.3d 1030. The application is also repetitive. La.C.Cr.P. art. 930.4.

Relator has now fully litigated his application for post-conviction 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 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 he 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.


text:
    STATE EX REL. Broderick BURTON v. STATE of Louisiana
    No. 2017-KH-0106
    Supreme Court of Louisiana.
    April 6, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. Additionally, relator's sentencing claim is not cognizable on collateral review. La.C.Cr.P. art. 930.3 ; State ex rel. Melinie v. State , 93-1380 (La. 1/12/96), 665 So.2d 1172 ; see also State v. Cotton , 09-2397 (La. 10/15/10), 45 So.3d 1030.

Relator has now fully litigated at least two applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a 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 that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he 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.


text:
    STATE EX REL. Gregory REAUX v. STATE of Louisiana
    No. 2017-KH-0066
    Supreme Court of Louisiana.
    April 6, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

Denied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Relator must file any post-conviction claims relating to his St. Tammany Parish convictions in the 22nd Judicial District Court. La.C.Cr.P. art. 925. We attach hereto and make a part hereof the district court's written reasons denying relief.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a 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 that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he 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.

Attachment


text:
    STATE EX REL. J.B. MOORE, III v. STATE of Louisiana
    No. 17-KH-0060
    Supreme Court of Louisiana.
    April 6, 2018
    ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE
   PER CURIAM:

Denied. Relator fails to show he was denied the effective assistance of counsel during plea negotiations under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In addition, relator's sentencing claim is not cognizable on collateral review. La.C.Cr.P. art. 930.3 ; State ex rel. Melinie v. State , 93-1380 (La. 1/12/96), 665 So.2d 1172. Finally, relator fails to show that he pled guilty involuntarily and/or is entitled to an out-of-time appeal under State v. Counterman , 475 So.2d 336 (La.1985). La.C.Cr.P. art. 930.2.

Relator has now fully litigated his application for post-conviction 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 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 he 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.


author: Hughes, J., would deny WEIMER, J., dissenting.

text:
    IN RE: Howard L. MARCELLO
    NO. 2018-OB-0475
    Supreme Court of Louisiana.
    April 6, 2018
    ORDER
   Considering the Petition for Transfer to Disability Inactive Status filed by the Office of Disciplinary Counsel,

IT IS ORDERED that Howard L. Marcello, Louisiana Bar Roll number 21741, be and he hereby is transferred to disability inactive status pursuant to Supreme Court Rule XIX, § 22(B). Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

Weimer, J., dissents and assigns reasons

Hughes, J., would deny

ATTORNEY DISCIPLINARY PROCEEDING

WEIMER, J., dissenting.

I would order a hearing before deciding whether to place respondent on disability inactive status.


text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-30059
    NO. 2018-BA0389
    Supreme Court of Louisiana.
    April 6, 2018
   PER CURIAM

After reviewing the evidence and considering the law, we conclude petitioner is immediately eligible to be conditionally admitted to the practice of law in Louisiana, subject to a probationary period of twenty-four months. The probationary period shall commence from the date petitioner, the Office of Disciplinary Counsel, and the probation monitor execute a formal probation plan. During the probationary period, petitioner shall comply with all of the terms and conditions of the consent agreement executed by her with the Louisiana Supreme Court Committee on Bar Admissions, and such other conditions as may be imposed upon her by the Office of Disciplinary Counsel. Should petitioner fail to make a good faith effort to satisfy these conditions, or should she commit any misconduct during the period of probation, her conditional right to practice may be terminated or she may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.


text:
    STATE EX REL. Terry Wayne MAYS v. STATE of Louisiana
    No. 2017-KH-0323
    Supreme Court of Louisiana.
    April 6, 2018
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. We attach hereto and make a part hereof the district court's written reasons denying relief.

Relator has now fully litigated at least six applications for post-conviction 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 limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he 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.

Attachment

STATE OF LOUISIANA NUMBER: 155,463 SECTION 4 VERSUS FIRST JUDICIAL DISTRICT COURT TERRY WAYNE MAYS CADDO PARISH, LOUISIANA

RULING

On August 15, 1991, Petitioner, TERRY WAYNE MAYS, was found guilty by a jury of one (1) count of Second Degree Murder and one (1) count of Armed Robbery. On February 14, 1992, Petitioner was sentenced as to the charge of Second Degree Murder to life imprisonment at hard labor, without the benefit of probation, parole or suspension of sentence, and committed to the Louisiana Department of Corrections, subject to the conditions provided by law. As to the change of Armed Robbery, Petitioner was sentenced to be confined at hard labor for a period of fifty (50) years, without benefit of probation, parole or suspension of sentence, and committed to the Louisiana Department of Corrections, subject to the conditions provided by Law. The Court infirmed Petitioner of his right to post-conviction relief proceedings.

On appeal, Petitioner's conviction end sentence were affirmed.State v. Mays, 24,468 (La. App. 2 Cir. 1/20/93); 612 So.2d 1040;writ denied, 93-0578 (La. 6/18/93); 619 So.2d 576.

The subject of this Opinion is Petitioner's "Uniform Application for Post-Conviction Relief" filed September 15, 2016. In said Application, Petitioner seeks to reverse his conviction by alleging 5 claims all alluding to racial bias as it relates to his trial and selection. Specifically Petitioner argues: 1) racial bias by the clerk's office in identifying the race of the jurors leading him to not know the true identity of each seated prospective juror, 2) racial bias became in the jury coordinators duties, 3) a history of racial bias by the Caddo Parish District Attorney's office, 4) La. C. Cr. Pro. Art 795 is unconstitutional, 5) the presentence of the confederate flag monument outside of the courthouse is racially bias.

Petitioner's application is still untimely. As previously noted, Petitioner's sentence and conviction became final in 1993.State v. Mays, 24,468 (La. App. 2 Cir. 1/20/93); 612 So.2d 1040;writ denied, 93-0578 (La. 6/18/93); 619 So.213 576. It is well beyond the two-year limit according to La. C. Cr. P. Art. 930.8. Petitioner has only made general conclusory allegations. Petitioner has yet to set forth any facts to substantiate his claims that would entitle him to the exceptions set forth in La. C. Cr. P. Art. 930.8 (C) (1-4).

For the foregoing reasons, Petitioner's "Uniform Application for Post-Conviction Relief" filed September 15, 2016 is DENIED.

The Clerk of Court is directed to provide a ropy of this Opinion to the Petitioner, his custodian and the District Attorney.

RULING RENDERED, READ AND SIGNED this 27 th day of October, 2016.

RAMONA L. EMANUEL
DISTRICT JUDGE

SERVICE INFORMATION :

Mr. Terry W. Mays, DOC # 108167
Louisiana State Penitentiary
General Delivery
Angola, LA 70712

Ceddo Parish District Attorney's Office


text:
    STATE EX REL. Curtis Lee JOHNSON v. STATE of Louisiana
    No. 2017-KH-0172
    Supreme Court of Louisiana.
    April 6, 2018
    ON SUPERVISORY WRITS TO THE SIXTEENTH JUDICIAL DISTRICT COURT, PARISH OF ST. MARY
   PER CURIAM:

Denied. Relator's application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated his application for post-conviction 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 limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he 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.


text:
    STATE EX REL. Renil ESCOBAR-RIVERA v. STATE of Louisiana
    No. 2017-KH-0107
    Supreme Court of Louisiana.
    April 6, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. The application is also repetitive and successive. La.C.Cr.P. art. 930.4(D), (E).

Relator has now fully litigated two applications for post-conviction 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 limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he 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.

GUIDRY, J., recused.


text:
    STATE EX REL. Otis R. MCKINLEY v. STATE of Louisiana
    No. 2017-KH-0051
    Supreme Court of Louisiana.
    April 6, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated his application for post-conviction 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 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 he 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.


text:
    STATE EX REL. Jarrod HENRY v. STATE of Louisiana
    No. 2016-KH-2220
    Supreme Court of Louisiana.
    April 6, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

Denied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Relator has now fully litigated his application for post-conviction 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 limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he 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.


text:
    STATE of Louisiana v. Phillip SCHANE
    No. 2017-KP-0582
    Supreme Court of Louisiana.
    April 6, 2018
   PER CURIAM:

Writ granted. In light of the Supreme Court's holding in Montgomery v. Louisiana , 577 U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016) that Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) announced a substantive rule of constitutional law that applies retroactively, we hereby vacate relator's sentence and remand to the 16th Judicial District Court for further proceedings consistent with the views expressed in State v. Montgomery , 13-1163 (La. 6/28/16), 194 So.3d 606, and for resentencing pursuant to La.C.Cr.P. art. 878.1.

After he is resentenced, that judgment of sentence is included by statute among those which a defendant may appeal. See La.C.Cr.P. art. 912(C)(1). Furthermore, although this court originally had exclusive appellate jurisdiction over this pre-1982 felony conviction, see La.Const. art. V, § 5 (E), after the resentencing to which relator is now entitled, appellate jurisdiction for purposes of any review of his new sentence will vest in the intermediate court of appeal. See La.Const. art. V, § 10 (eff. July 1, 1982, "[A] court of appeal has appellate jurisdiction of ... all criminal cases triable by a jury," except when a law has been declared unconstitutional or when the death penalty has been imposed); see, e.g., State ex rel. Hudson v. State , 16-1731 (La. 1/9/17), 208 So.3d 882.


text:
    STATE EX REL. Jacole GATLIN v. STATE of Louisiana
    No. 2017-KH-0165
    Supreme Court of Louisiana.
    April 6, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

Denied. Relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Relator has now fully litigated his application for post-conviction 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 limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he 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.


text:
    STATE of Louisiana v. Charles NICHOLSON
    No. 2017-KP-0127
    Supreme Court of Louisiana.
    April 6, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. Relator has failed to show the state withheld material exculpatory evidence in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). La.C.Cr.P. art. 930.2. We attach hereto and make a part hereof the district court's written reasons denying relator's application.

Relator has now fully litigated two applications for post-conviction 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 limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he 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.

Attachment

STATE OF LOUISIANA CRIMINAL DISTRICT COURT FOR THE PARISH OF ORLEANS SECTION J

STATE OF LOUISIANA CASE No. 375-712 V. CHARLES NICHOLSON

ORDER

To comport with the dictates of the due process clause of the Fourteenth Amendment, the State must disclose to the defense evidence that is favorable to the defense and is material to guilt or punishment.Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); State v. Porter, 98-0279 (La.App. 4 Cir. 3/15/00), 756 So.2d 1156, writ denied, 2000-1135 (La.1/10/02), 790 So.2d 3. Included in this rule is evidence that impeaches the testimony of a witness whose credibility or reliability may determine guilt or innocence.Giglio v. U.S., 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). "[T]he prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial, that is, evidence favorable to the defendant which is material to guilt or punishment."State v. Rosiere, 488 So.2d 965, 970 (La.1986). See also Porter, supra.

Materiality was defined in U.S. v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985): "The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." The same test is to be employed whether or not the defense makes a pretrial request for exculpatory evidence.Bagley; State v. Phillips, 92-1063 (La.App. 4 Cir. 1996), 670 So.2d 588.

In Kyles v. Whitley, 514 U.S. 419, 434-435, 115 S.Ct. 1555, 1565-1566, 131 L.Ed.2d 490 (1995), the Court discussed "materiality":

Although the constitutional duty is triggered by the potential impact of favorable but undisclosed evidence, a showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal (whether based on the presence of reasonable doubt or acceptance of an explanation for the crime that does not inculpate the defendant). . . . Bagley's touchstone of materiality is a reasonable probability of a different result, and the adjective is important. The question is 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. A reasonable probability of a different result is accordingly shown when the Government's evidentiary suppression undermines confidence in the outcome of the trial. Bagley, 473 U.S., at 678, 105 S.Ct., at 3381.

The second aspect of Bagley materiality bearing emphasis here is that it is not a sufficiency of evidence test. A defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict. The possibility of an acquittal on a criminal charge does not imply an insufficient evidentiary basis to convict. One does not show a Brady violation by demonstrating that some of the inculpatory evidence should have been excluded, but by showing 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.

After reviewing the evidence, hearing argument, and testimony, the defendant's Brady claims do not show that there would have been a reasonable probability of a different result. As such, the trial verdict in this case stands with confidence. The defendant's Post-Conviction Relief Application is DENIED.

NEW ORLEANS, LOUISIANA, this ____ day of _________, 2016.

Judge Darryl A. Derbigny


text:
    STATE EX REL. Walter D. FAIRLEY v. STATE of Louisiana
    No. 2017-KH-0121
    Supreme Court of Louisiana.
    April 6, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY
   PER CURIAM:

Denied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to the vindictive prosecution and due process claims, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2. The remaining challenge to the sufficiency of the evidence is repetitive. La.C.Cr.P. art. 930.4.

Relator has now fully litigated his application for post-conviction 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 limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he 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.


text:
    STATE EX REL. Alvin WELCH v. STATE of Louisiana
    No. 2017-KH-0111
    Supreme Court of Louisiana.
    April 6, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

Denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker , 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator's application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. The application is also repetitive. La.C.Cr.P. art. 930.4.

Relator has now fully litigated several applications for post-conviction 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 limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he 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.


author: CLARK, J., would grant.

text:
    STATE of Louisiana v. Christopher CALENDER
    NO. 2016-KP-2229
    Supreme Court of Louisiana.
    Supreme Court of Louisiana March 23, 2018
    Denied.
   CLARK, J., would grant.


text:
    STATE EX REL. Marlon CARTER v. STATE of Louisiana
    NO. 2017-KH-1346
    Supreme Court of Louisiana.
    March 23, 2018
    Denied.


author: WEIMER, J., recused.

text:
    STATE of Louisiana v. Blaise GRAVOIS
    NO. 2018-K-0100
    Supreme Court of Louisiana.
    March 23, 2018
    Denied.
   WEIMER, J., recused.


text:
    Jennifer RICKERSON, Roxanne Diggs, Joseph Rounds, Desaray Joseph, Jenisha Rounds, and the Estate of Joseph Triggs, individually and on behalf of Joseph Triggs, Deceased v. AUDUBON HEALTH & REHABILITATION CENTER a/k/a Community Care Center of Thibodaux, LLC d/b/a Audubon Health & Rehab and Audubon Health & Rehabilitation Center
    NO. 2018-C-0118
    Supreme Court of Louisiana.
    March 23, 2018
    Denied.
    JOHNSON, C.J., would grant and docket.
    HUGHES, J., would grant and docket.
    GENOVESE, J., would grant and docket.


text:
    STATE of Louisiana v. Kevin DESALLE
    NO. 2017-KP-0024
    Supreme Court of Louisiana.
    March 23, 2018
    Denied.
    CLARK, J., would grant and reinstate trial court ruling.


text:
    SUCCESSION OF Rosalie Romano RESTIVO
    NO. 2018-CC-0223
    Supreme Court of Louisiana.
    March 23, 2018
    Denied.


text:
    Kenneth M. ALLAN v. AUTOMOBILE CLUB INTER-INSURANCE EXCHANGE, Hudson Specialty Insurance Company, State Farm Fire and Casualty Company and Selissa A. James
    Kenneth M. Allan, et al. v. Bankers Insurance Company, et al.
    NO. 2018-C-0142
    Supreme Court of Louisiana.
    March 23, 2018
    Denied.


text:
    STATE EX REL. James DAVIS v. STATE of Louisiana
    No. 2016-KH-1526
    Supreme Court of Louisiana.
    March 23, 2018
    Reconsideration denied.


text:
    Jana RITTER v. Victor LORASO, III
    NO. 2018-C-0149
    Supreme Court of Louisiana.
    March 23, 2018
    Denied.


text:
    Benjamin F. CROSBY and Bentex Associates, Inc. v. SAHUQUE REALTY COMPANY, INC., Latter & Blum Property Management, Inc., ABC Insurance Company and XYZ Insurance Company
    NO. 2018-C-0183
    Supreme Court of Louisiana.
    March 23, 2018
    Denied,


author: JOHNSON, C.J., would grant.

text:
    Clarence E. WATTS, Jr. v. Donna Renee WATTS
    NO. 2018-C-0185
    Supreme Court of Louisiana.
    March 23, 2018
    Denied.
   JOHNSON, C.J., would grant.


text:
    STATE EX REL. Marlon CARTER v. STATE of Louisiana
    NO. 2017-KH-1387
    Supreme Court of Louisiana.
    March 23, 2018
    Denied.


author: HUGHES, J., would grant.

text:
    John C. DANIELS, et al. v. INTERNATIONAL PAPER COMPANY
    NO. 2018-C-0236
    Supreme Court of Louisiana.
    March 23, 2018
    Denied.
   HUGHES, J., would grant.


text:
    Donna BRISTOL & Sylvester Bristol, Sr., Individually and on Behalf of their Deceased Minor Child, Sylvester Bristol, Jr. v. GONZALES POLICE DEPARTMENT, City of Gonzales, and The Department of Public Safety and Corrections/Louisiana State Police
    Barbara Dabney, Brett Dabney, Shannon Bowers, Kimberly McKnight and Lawrence W. McKnight, Jr., Individually and on Behalf of their Minor Child, Kayla McKnight v. Safeway Insurance Company, Donna Carter, Individually and on Behalf of the Estate of her Minor Child, Sylvester Bristol, City of Gonzales, Gonzales Police Department, Parish of Ascension, Louisiana State Police Department, and State of Louisiana through the Department of Transportation and Development
    Tyrone Johnson and Latoria Singleton on Behalf of their Minor Child, Ta'Ryan Singleton v. Sylvester Bristol, Donna Carter Bristol, Safeway Insurance Company of Louisiana, Louisiana State Police, John Doe, and State of Louisiana
    NO. 2018-C-0146
    Supreme Court of Louisiana.
    March 23, 2018
    Denied.
   HUGHES, J., would grant.


text:
    STATE of Louisiana v. David BROWN
    NO. 2018-KK-0175
    Supreme Court of Louisiana.
    March 23, 2018
    Denied.
   WEIMER, J., recused.


text:
    Irma DORSEY v. PURVIS CONTRACTING GROUP, LLC and Jon P. Purvis C/W
    Irma Dorsey v. Scottsdale Insurance Company, et al.
    NO. 2018-C-0199
    Supreme Court of Louisiana.
    March 23, 2018
    Denied.


text:
    SUCCESSION OF Doris Lavner FEINGERTS
    NO. 2018-C-0147
    Supreme Court of Louisiana.
    March 23, 2018
    Denied.


text:
    State ex rel. Ronald A. SCHEXNAYDER v. STATE of Louisiana
    NO. 2016-KH-0769
    Supreme Court of Louisiana.
    March 23, 2018
    Not considered. See La.S.Ct.R. IX, § 6.


text:
    Michael Edward BLÄKE v. Alicia DiMarco BLAKE
    Alicia Victoria DiMarco Blake v. Michael Edward Blake
    Michael Edward Blake v. Alicia DiMarco Blake
    Michael Edward Blake v. Alicia DiMarco Blake
    NO. 2017-C-2057
    Supreme Court of Louisiana.
    March 23, 2018
    Denied.
   JOHNSON, C.J., would grant.

HUGHES, J., would grant.


text:
    Whitney BANK v. The GARDEN GATE NEW ORLEANS, L.L.C., Garden Gate Growers, L.L.C. ; Chad Everett Harris; and Jacqueline Kendall Harris
    NO. 2018-C-0174
    Supreme Court of Louisiana.
    March 23, 2018
    Denied.


text:
    STATE EX REL. Marlon R. CARTER v. STATE of Louisiana
    NO. 2016-KH-2041
    Supreme Court of Louisiana.
    March 23, 2018
    Denied.


text:
    STATE of Louisiana v. Blaise GRAVOIS
    NO. 2018-K-0080
    Supreme Court of Louisiana.
    March 23, 2018
    Denied.
   WEIMER, J., recused.

HUGHES, J., would grant in part.


text:
    LAGNIAPPE LOGISTICS, INC. OF MISSISSIPPI v. Scott BURAS, Barrett McCreary, Todd Nienaber, Citation Logistics, L.L.C., Citation Investments, Inc.
    NO. 2018-C-0219
    Supreme Court of Louisiana.
    Supreme Court of Louisiana March 23, 2018
    Denied.


text:
    William Kyle AYMOND, Thad Herron, Hillary Denise Herron, William Garret Aymond, et al. v. CITIZENS PROGRESSIVE BANK
    NO. 2018-CC-0494
    Supreme Court of Louisiana.
    March 29, 2018
    Denied.


text:
    Geoffrey J. BOULMAY, Sr. v. Frederick R. HEEBE, Jr., Copeland Estate, et al
    NO. 2018-00193
    Supreme Court of Louisiana.
    March 23, 2018
    Denied.


text:
    STATE of Louisiana v. Idalecio ANDRADE
    NO. 2016-KP-1427
    Supreme Court of Louisiana.
    March 23, 2018
    Not considered. See La.S.Ct. Rule IX, § 6.


author: PICKETT, Judge.

text:
    Caleb Kent AGUILLARD v. John Christopher CHATMAN
    17-408
    Court of Appeal of Louisiana, Third Circuit.
    January 31, 2018
    M. Terrance Hoychick, Hoychick & Aguillard (A Professional Law Corporation), Post Office Drawer 391, Eunice, LA 70535-0391, (337) 457-9331, COUNSEL FOR PLAINTIFF-APPELLEE: Caleb Kent Aguillard
    Randy M. Guidry, Durio, McGoffin, Stagg & Ackermann, Post Office Box 51308, Lafayette, LA 70505-1308, (337) 233-0300, COUNSEL FOR DEFENDANT-APPELLANT: John Christopher Chatman
    Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Phyllis M. Keaty, Judges.
   PICKETT, Judge.

The defendant filed a reconventional demand seeking a declaration that a confirmed default judgment awarded against him is null and vacated or set aside because it was obtained through ill practices. The trial court denied the requested relief, and the defendant appealed. For the reasons discussed below, we affirm the judgment.

FACTS

On June 17, 2016, Caleb Aguillard filed a Petition for Injunctive Relief and for Damages seeking a temporary restraining order, a preliminary injunction, a permanent injunction, and an award of damages against John Chatman. In his petition, Mr. Aguillard alleged that Mr. Chatman had been stalking and harassing him and that his acts constituted defamation. The trial court issued a Temporary Restraining Order (TRO) which set a hearing for July 8 on the issuance of a preliminary injunction. On that date, Mr. Chatman appeared at the hearing with counsel. Counsel informed the trial court that he was appearing with Mr. Chatman for the purposes of that hearing only and that he could not represent Mr. Chatman thereafter.

In light of Mr. Chatman being unrepresented, the trial court treated the hearing as a status conference. During the conference, the trial court advised Mr. Chatman to hire counsel and instructed him to file an answer within fifteen days or "there would be consequences." At the conclusion of the conference, the trial court issued an order which reflected the status of the matters at issue before the court at that time. The order, which was reduced to writing and served upon Mr. Chatman, provided:

The above-captioned and docketed matter came before the Court for status conference on July 8, 2016[,] on a Petition for Protection from
Stalking and a Petition for Injunctive Relief and for Damages filed by the Plaintiff. Present in court were the Plaintiff, Caleb Kent Aguillard, and the Defendant, John Chatman, represented by temporary counsel only for the purpose of that status conference; the hearing was continued upon a finding of just cause therefor by the Court; John Chatman was provided with notice and a copy of the Court's June 23, 2016 Temporary Restraining Order in open court. After the conference[,] the Court rendered the following orders:
IT IS ORDERED that this matter is continued without date.
IT IS FURTHER ORDERED that the parties are reciprocally enjoined from any form of harassment, abuse, stalking, and defamation of each other; this prohibition shall remain in full force and effect until further order of this Court.

The court minutes and transcript for the July 8 hearing also reflect that Mr. Aguillard filed a motion for preliminary default during the hearing which the trial court denied.

On August 9, Mr. Aguillard filed a Rule for Contempt, Motion for Preliminary Default and to Fix for Hearing/Order/Certification No Pleadings Filed. That same date the trial court signed an order that entered a preliminary default and ordered Mr. Chatman to show cause on September 16 why he should not be held in contempt for his willful violations of the trial court's previous order and why the injunctive relief and permanent order of protection should not be granted. Mr. Aguillard mailed Mr. Chatman notice of the order and the entry of preliminary default by certified mail and also had Mr. Chatman personally served with a copy of his rule for contempt and the order that entered the preliminary default against him and set the September 16 hearing date.

Mr. Aguillard appeared before the trial court on September 12 to confirm the preliminary default. After considering Mr. Aguillard's presentation of evidence and arguments in support of his claims, the trial court rendered judgment against Mr. Chatman, ordering him to pay Mr. Aguillard $60,000 in damages, together with legal interest from the date of demand and all costs of the proceeding.

By letter dated September 14, Mr. Chatman, in proper person, sought a continuance of the hearing scheduled for September 16, explaining that he had been impacted by flooding that occurred August 12-13 in the area. The trial court granted the continuance and re-set the hearing for November 4. On November 2, Mr. Chatman filed a Reconventional Demand for Nullity, To Vacate and/or Set Aside Judgment of Default for Ill Practices. After conducting a telephone conference, the trial court rescheduled the November 4 hearing. A hearing on Mr. Chatman's Reconventional Demand was held December 13. The trial court denied his request to annul or vacate the confirmed default judgment, and Mr. Chatman filed this appeal.

ASSIGNMENTS OF ERROR

In his appeal, Mr. Chatman assigns the following errors with the trial court's denial of his Reconventional Demand:

1. The trial [c]ourt erred by not applying Governor Edwards['] Executive Order of August 15, 2016, retroactive to August 12, 2016, which should have interrupted the time delays in Louisiana [c]ourts which would allow a redress of the September 12, 2016 Judgment.
2. The [trial] court erred when it denied Appellant's Motion for New Trial in the face of evidence that the [n]otices provided to him were questionable as to when the various matters would be heard.
3. The Default Judgment award for defamation or mental anguish contains an excessive and unconscionable high damage award for the evidence presented.

DISCUSSION

Did the Trial Court Err in Denying the Reconventional Demand?

We first address Mr. Chatman's second assignment of error because it bears upon our resolution of his first assignment of error. Mr. Chatman argues that Mr. Aguillard's having a preliminary default judgment entered against him and thereafter confirming that default judgment against him constitutes ill practices. He acknowledges that Mr. Aguillard did not commit any acts that constitute fraud; nevertheless, he asserts that Mr. Aguillard's actions constitute ill practices because he was unrepresented when Mr. Aguillard confirmed his default judgment and because there was no deadline for him to file an answer to Mr. Aguillard's demand for damages.

At the hearing on his motion, Mr. Chatman testified that no deadline was set for him to file an answer during the July 8 status conference. He further asserted that the provision in the July 11 order, stating "this matter is continued without date", contributed to this understanding.

The trial court thoroughly addressed Mr. Chatman's claims when denying his motion:

[T]his matter did come up before me on July 8th 2016[,] at that time I did not go through with the hearing[.] I instead held a Status Conference between the parties. That Status Conference was recorded[;] it was held in open court. Those records are there for anyone that cares to transcribe them. I reviewed a portion of that record ... for today's hearing because I wanted to fix in my mind whether or not I had actually informed Mr. Chatman of his need to get an attorney[,] and I did tell him not once but twice he had fifteen days to respond to this particular matter. I also told them [sic] that if he didn't there would be consequences [,] and I told [him] that once he got an attorney his attorney could request continuances or other things from this court and that we could handle it from there. I also denied the Motion for Preliminary Default because quite frankly he had not had a chance to get an attorney at that time. He had been served in June. [A]lthough the fifteen days had past [sic] from the service[,] Mr. Ludeau did not enroll[.] Mr. Ludeau made an appearance just to request a continuance[,] and I granted it. On August 9th a Motion for a PD was signed[,] and that was served according to the record on August 12th 2016[,] on Mr. Chatman.... [The Judgment confirming the preliminary default] was signed, presented on September 12th 2016[,] that is the day that Mr. Aguillard and his witnesses showed up to confirm the PD that was entered on August 9th 2016. Now on September 14th[,] I received a letter from Mr. Chatman asking for a continuance of the things that had [sic] set for the 16th[,] and I ... continued them and then eventually everybody got on board[,] and we are here today. At this point I believe the law was followed[,] and I have no choice but to deny the Motion to Vacate[.]

In addition to having Mr. Chatman served with his motion for preliminary default and the August 9 order entering the default, Mr. Aguillard documented that he mailed Mr. Chatman notice of the preliminary default entered against him by certified mail on August 9, 2016, as required by La.Code Civ.P. art. 1702 and that the certified mail was not claimed after being provided notice by the postal service.

Mr. Chatman testified that he consulted two or three attorneys after the July 8 status conference, but explained that none of them could represent him. He also testified that after being served with the August 12 order, he relied upon his own interpretation and understanding of the documents, the trial court's instructions at the July 8 status conference, and the July 11 order to conclude that he did not need to do anything further until the September 16 hearing.

Louisiana Code of Civil Procedure Article 2004 provides for the annulment of any "judgment obtained by fraud or ill practices." In Wright v. Louisiana Power & Light , 06-1181, p. 12 (La. 3/9/07), 951 So.2d 1058, 1067 (citations omitted) (footnote omitted) (quoting Power Marketing Direct, Inc. v. Foster , 05-2023, p. 12 (La. 9/6/06), 938 So.2d 662, 670 ), our supreme court addressed a nullity action, explaining:

In Johnson v. Jones-Journet , 320 So.2d 533 (La.1975), this Court reviewed the historical development of C.C.P. art. 2004 and noted that the jurisprudence under Art. 607 of the Code of Practice (the source of present C.C.P. art. 2004 ) established the following criteria for an action in nullity: (1) that the circumstances under which the judgment was rendered showed the deprivation of legal rights of the litigant seeking relief, and (2) that the enforcement of the judgment would have been unconscionable and inequitable. Since that time, this Court has accepted those two requirements as the necessary elements in establishing a nullity action under Art. 2004.
However, those cases also further defined the types of conduct required to establish those two elements depending on the type of fraud or ill practice alleged. This Court has held that "the article is not limited to cases of actual fraud or intentional wrongdoing, but is sufficiently broad to encompass all situations where a judgment is rendered through some improper practice or procedure which operates, even innocently, to deprive the party cast in judgment of some legal right, and where the enforcement of the judgment would be unconscionable and inequitable."

Appellate courts review a trial court's decision to nullify a judgment to determine "whether the trial court's conclusions were reasonable," not "whether the trial court was right or wrong." Belle Pass Terminal, Inc. v. Jolin, Inc. , 01-149, p. 6 (La. 10/16/01), 800 So.2d 762, 766.

Mr. Chatman disregarded two warnings personally provided by the trial court at the July 8 hearing that he had fifteen days to file an answer to Mr. Aguillard's pleadings or "there would be consequences." Thereafter, he relied upon his interpretation of documents that included the notice that a preliminary default had been entered against him on August 12, rather than seeking advice from an attorney. He contends that Mr. Aguillard should have notified him that he would confirm the default judgment on September 12, but Mr. Aguillard fulfilled his legal requirements and provided Mr. Chatman the notice required by law.

Mr. Chatman had more than fifty days after being served with Mr. Aguillard's initial pleadings to file an answer before the preliminary default was entered and more than ninety days to file an answer before Mr. Aguillard confirmed the default against him. He had thirty-two days after being warned by the trial court at the July 8 hearing to file an answer within fifteen days or suffer the consequences before the preliminary default was entered and sixty-five days to file an answer before Mr. Aguillard confirmed the default against him. Lastly, after being served with the notice of the default, Mr. Chatman had thirty-one days to file an answer before Mr. Aguillard confirmed the default against him.

These facts show that Mr. Chatman ignored the trial court's warning to file an answer and the notice that a preliminary default had been entered. Therefore, he failed to show that he was deprived of any legal rights or that Mr. Aguillard's enforcement of his judgment against him would be unconscionable and inequitable. Accordingly, we find no abuse of discretion in the trial court's denial of his motion to annul the judgment.

Did Executive Orders Issued by Governor Edwards Affect the Trial Court's Consideration of Mr. Aguillard's Motion to Confirm Preliminary Default?

As previously discussed, a hearing was scheduled for September 16 on a rule for contempt filed by Mr. Aguillard. On September 14, Mr. Chatman sent a letter to the trial court asking for a continuance of the hearing, asserting that he and family members had been affected by flooding that occurred in August and that damages caused by the flooding required his assistance and attention. The trial court granted the continuance.

At the December 13 hearing, Mr. Chatman described how he and his family had been impacted by flooding that occurred in August and explained that that was why he sought a continuance of the September 16 hearing date. At the conclusion of the hearing on Mr. Chatman's motion to annul the judgment, the trial court noted that it had not considered the potential impact of the flooding on Mr. Chatman with regard to Mr. Aguillard's confirmation of the preliminary default and ordered the parties to brief the issue.

Over the course of three days in August 2016, heavy rainfall caused serious flooding in a large portion of southern Louisiana that prevented many individuals, businesses, and governmental agencies from carrying on their usual day-to-day activities. To protect the legal rights of persons involved in litigation in the judicial system, Governor John Bel Edwards issued three Executive Orders that suspended prescriptive and preemptive periods and other legal deadlines following the flooding. Mr. Chatman contends in this assignment of error that the trial court erred because it did not apply Executive Order 16-53 dated August 15 retroactively to August 12 with regard to Mr. Aguillard's confirmed default judgment.

On August 15, 2016, Governor Edwards issued Executive Order 16-53 which suspended all legal deadlines, including prescription and preemption, in all state courts until September 9, 2016. This Order applied "retroactively from Friday, August 12, 2016." Two days later, Governor Edwards issued Executive Order 16-57, which amended Executive Order 16-53 and ordered that the suspension of all deadlines in legal proceedings, other than prescription and preemption, ended August 19, unless:

[A] party to a pending matter can show that there is an inability to meet the deadlines caused by the events occurring in the parishes identified in Subsection B, then the court, administrative agency or board shall suspend deadlines specific to that matter until Friday, September 19, 2016.

Subsection B included Evangeline Parish. Accordingly, anyone seeking relief from a pending legal deadline in an Evangeline Parish court within the period August 12 through September 19 had to show that he was unable to meet the deadline due to flooding. Governor Edwards issued Executive Order 16-66 on September 9, which extended the deadlines in all legal proceedings in specified parishes, which included Evangeline Parish, until September 30. Executive Order 16-66 also required litigants seeking suspension of a deadline to show that they could not "meet a legal deadline due to the declared disaster."

During the hearing on his Reconventional Demand, Mr. Chatman was questioned at length by his attorney on his request for a continuance of the September 16 hearing. While Mr. Chatman discussed family members being affected by the flooding and his efforts to assist in their recovery efforts, he also admitted that he had a previously planned trip to Florida that day. Moreover, the clear language of Executive Orders 16-53 and 16-57 provided for the retroactive application of the suspension of legal deadlines only if the party seeking suspension of a deadline showed he was unable to meet the deadline.

After considering the parties' post-trial briefs on this issue, the trial court confirmed the denial of Mr. Chatman's reconventional demand, stating:

[I]n order to suspend the deadline to answer, defendant would have had to certify that he was in an affected area and that he is [sic] unable to meet a legal deadline due to the disaster. Defendant did not do so.
Therefore, for the reasons assigned by this Court[ ] in its ruling on December 13, 2016[,] Defendant's Motion for Nullity to Vacate[ ] or set Aside the Judgment of Default is hereby denied.

Mr. Chatman corresponded directly with the trial court to inform it of his inability to attend the September 16 hearing and could have done the same if the August flooding prevented him from filing an answer herein; he did not. Accordingly, we find no error with the trial court's conclusion that Mr. Chatman failed to establish that he was entitled to relief from any legal deadlines as provided by Executive Orders 16-53 and 16-57.

Was the Trial Court's Damage Award Excessive?

Mr. Chatman seeks review of the trial court's damage award. He did not, however, appeal the confirmed default judgment Mr. Aguillard obtained against him in the amount of $60,000. Accordingly, this issue is not before the court and need not be discussed.

DISPOSITION

For the reasons discussed herein, the trial court's judgment denying John Chatman's Reconventional Demand for Nullity, To Vacate and/or Set Aside Judgment of Default for Ill Practices is affirmed. All costs are assessed to Mr. Chatman.

AFFIRMED.

      Mr. Chatman notes in argument that Mr. Aguillard's Petition improperly cumulates a summary proceeding and an ordinary proceeding. Pursuant to La.Code Civ.P. art. 926, the improper cumulation of actions is a dilatory exception that is waived if not pleaded. "[T]he dilatory exception shall be pleaded prior to or in the answer and, prior to or along with the filing of any pleading seeking relief ... and in any event, prior to the signing of a final default judgment." La.Code Civ.P. art. 928. Mr. Chatman did not plead improper cumulation of Mr. Aguillard's actions against him; therefore, he waived it.

      Louisiana Code of Civil Procedure Article 1702 provides, in pertinent part:
      When a preliminary default has been entered against a party that is in default after having made an appearance of record in the case, notice of the date of the entry of the preliminary default must be sent by certified mail by the party obtaining the preliminary default to counsel of record for the party in default, or if there is no counsel of record, to the party in default, at least seven days, exclusive of holidays, before confirmation of the preliminary default.