author: PER CURIAM

text:
    IN RE: Alicia Johnson BUTLER
    NO. 2018-B-1472
    Supreme Court of Louisiana.
    January 30, 2019
    Charles Bennet Plattsmier, Tammy Pruet Northrup; for applicant.
    Leslie J. Schiff ; for respondent.
   PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Alicia Johnson Butler, an attorney licensed to practice law in Louisiana.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent's prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 2000. In 2013, this court accepted a joint petition for consent discipline in which respondent stipulated that she failed to promptly notify a third party of receipt of funds in which the third party had an interest, failed to hold those funds separate from her personal funds, and misinformed a federal court of the correct amount of a reimbursement owed to her following the settlement of her client's case. For this misconduct, respondent was suspended from the practice of law for six months, fully deferred, subject to one year of supervised probation with the condition that she attend Ethics School. In re: Butler , 13-2632 (La. 1/10/14), 144 So.3d 844 (" Butler I ").

UNDERLYING FACTS

In October 2013, Tammy Charles hired respondent to represent her on a contingency fee basis in a claim for damages arising out of injuries she had sustained in a motor vehicle accident. Prior to hiring respondent, Ms. Charles had negotiated with her insurer and made a claim for "med pay" benefits. These benefits were paid.

Respondent filed suit against the alleged tortfeasor and his insurer in the 16th JDC for the Parish of Iberia. The case was set for trial in March 2015, but was continued because respondent, who also works as an indigent defender in Iberia Parish, had a criminal matter scheduled the same day which under the local practice had priority over civil matters. Ms. Charles was advised of the continuance and the new trial date set in September 2015. Ms. Charles indicated that she never agreed to or authorized respondent to file the motion for continuance.

In May 2014, Ms. Charles was deposed by the defense. Due to an emergency, respondent was unable to attend the deposition. However, respondent made arrangements for another attorney to attend the deposition to represent Ms. Charles' interests and provided Ms. Charles with written material in preparation for giving deposition testimony. According to Ms. Charles, she did not know the attorney who appeared at the deposition on her behalf.

On August 20, 2015, respondent met with Ms. Charles. During the meeting, respondent advised Ms. Charles of a settlement offer of $ 75,000 plus court costs, which she recommended that Ms. Charles accept. On August 24, 2015, respondent faxed an acceptance letter to defense counsel. Two weeks later, defense counsel sent respondent the settlement documents and a check made payable to both Ms. Charles and respondent. Respondent endorsed Ms. Charles' name on the settlement check and deposited the check into her trust account on September 16, 2015. Respondent also signed a judgment of dismissal in Ms. Charles' suit, which was granted by the trial court on September 22, 2015.

On September 25, 2015, respondent met with Ms. Charles to have her execute the settlement documents and review the disbursement of settlement funds. In anticipation of Ms. Charles' agreement to the disbursement, respondent prepared seven checks drawn on her trust account to pay third-party healthcare providers and to pay her attorney's fee and advanced expenses.

During the meeting, a dispute arose concerning the disbursement of funds. Specifically, respondent and Ms. Charles disputed whether the "med pay" carrier had a lien on the settlement funds, whether monies needed to be set aside to satisfy such a lien, and which healthcare providers were paid and in what amounts. Multiple disbursement sheets were prepared in an attempt to properly allocate the proceeds, but respondent and Ms. Charles could not agree on how to disburse them.

Respondent's trust account records indicate that on September 30, 2015, she took $ 36,279.72 for her fees and expenses from the settlement funds. However, respondent did not simultaneously pay the remaining balance of $ 38,720.28 to Ms. Charles or to any third-party healthcare providers.

On October 12, 2015, the ODC received a complaint from Ms. Charles, alleging that respondent failed to communicate with her and settled her personal injury matter without her knowledge or consent. Ms. Charles alleged that she did not learn about the settlement until September 11, 2015, a few days prior to the second trial date, when she called respondent to see if the trial was still set or if it had been "bumped" again.

On October 27, 2015, respondent hand-delivered to defense counsel an unsigned copy of the receipt and release of claim, a $ 75,000 check drawn on her trust account (although there were not sufficient funds in the account to honor the check had it been presented at that time), and a letter explaining that she was refunding the settlement funds because Ms. Charles refused to sign the release. The next day, defense counsel returned the check to respondent, advising that the settlement was enforceable and suggesting that the proceeds be deposited into the registry of the court.

Respondent then filed a motion to rescind the judgment of dismissal. Although she was advised that a $ 300 filing fee had to be paid before the pleading could be processed, these costs were never paid. According to the deputy clerk for the Iberia Parish Clerk of Court, no funds were ever placed in the registry of the court in the matter. Instead, on November 13, 2015, respondent used $ 40,000 in personal funds to purchase a certificate of deposit from Regions Bank. Respondent listed herself as the "sole owner" of the certificate of deposit, which had a term of seventy months. There is no contemporaneous writing to evidence that this certificate of deposit was money set aside for paying Ms. Charles her share of the settlement proceeds or to pay any third-party healthcare providers.

Ms. Charles did not receive any settlement proceeds from respondent, and collection activity was initiated against Ms. Charles and her husband. Respondent also did not pay third-party health care providers from the settlement funds. Between January 2016 and May 2016, respondent's trust account had a balance of less than $ 38,720.28, the amount due to Ms. Charles and owed to her healthcare providers.

The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.2 (scope of the representation), 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.15(a) (safekeeping property of clients and third persons), 1.15(d) (a lawyer shall promptly deliver to a client or third person any funds or other property that the client or third person is entitled to receive), 3.3(a) (candor toward the tribunal), 4.1(a) (a lawyer shall not knowingly make a false statement of material fact or law to a third person), 8.1(a) (a lawyer shall not knowingly make a false statement of material fact in connection with a disciplinary matter), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

DISCIPLINARY PROCEEDINGS

In December 2016, the ODC filed formal charges against respondent, as set forth above. Respondent, through counsel, answered the formal charges, and the matter proceeded to a formal hearing on the merits.

Formal Hearing

The hearing committee conducted the formal hearing in May 2017. The committee heard testimony from the following witnesses: Edward Landry, defense counsel in the underlying litigation; Phyllis Nelson, deputy clerk for the Iberia Parish Clerk of Court; Tammy Charles, complainant in the instant matter; Chester Gilliams, Jr., complainant's husband; and Eva May Landry, respondent's paralegal. Respondent testified on her own behalf and on cross-examination by the ODC.

Post-Hearing

In July 2017, respondent's counsel disbursed the $ 40,000 in settlement proceeds which had been held in the certificate of deposit since November 2015 and were subsequently transferred to respondent's counsel's trust account. The disbursements included a $ 30,000 payment to Ms. Charles, reimbursement to Ms. Charles of $ 4,481.30 she had previously paid for medical bills, and payments of the outstanding bills of Ms. Charles' medical providers.

Hearing Committee Report

After considering the testimony and evidence presented at the hearing, the hearing committee made several factual findings, the majority of which are incorporated into the underlying facts above. The committee also made the following factual findings:

The ODC failed to prove by clear and convincing evidence that respondent settled Ms. Charles' case without her consent. The weight of the evidence establishes that Ms. Charles had communicated her willingness to settle if she could net $ 30,000 after paying fees and expenses. On August 20, 2015, respondent met with Ms. Charles, advised her of the settlement offer, and recommended to her that she settle. Respondent's paralegal testified that she heard Ms. Charles tell respondent that she would be willing to settle if she could net $ 30,000. By letter dated October 12, 2015, Ms. Charles indicated that she would "consider" settling if she could put $ 30,000 in her pocket. Thus, respondent had a reasonable basis for believing that she had her client's consent to accept the offer.

The dispute between respondent and Ms. Charles arose out of Ms. Charles' claim for and receipt of "med pay" benefits prior to respondent's representation and over what medical bills were paid or needed to be paid. When disbursement sheets were prepared, questions arose as to whether the settlement proceeds were subject to a "med pay" lien and as to which third-party healthcare providers were owed and in what amounts. The evidence was conflicting as to whether Ms. Charles had communicated this information to respondent, who testified that she did not learn of the possibility of a "med pay" lien until after accepting the $ 75,000 offer.

Respondent should have paid Ms. Charles and the third-party healthcare providers the undisputed amounts owed. When an amicable settlement could not be negotiated, respondent should have referred the dispute to the Louisiana State Bar Association's ("LSBA") Fee Dispute Resolution Program, and any disputed funds should have been placed into her trust account or deposited into the registry of court. Ms. Charles and the third-party healthcare providers were entitled to receive undisputed funds simultaneously with respondent receiving her fee and advanced expenses.

The ODC argues for the presumption that respondent converted Ms. Charles' property although respondent was not charged with "conversion." The evidence does not support this presumption. Respondent's unrebutted testimony is that she bought the certificate of deposit to "safeguard" the balance of the settlement funds. However, respondent acknowledged that her decision was a mistake and that she should have maintained the funds in her trust account or deposited them into the registry of the court. Respondent also admitted that she never told Ms. Charles or her new attorney that she purchased the certificate of deposit to "safeguard" Ms. Charles' share of the settlement and the monies necessary to pay third-party healthcare providers.

During the course of this proceeding, respondent, through her counsel, disbursed the $ 40,000 which she had set aside in the certificate of deposit to Ms. Charles and to third-party health care providers. Respondent cooperated with the disciplinary process and voluntarily produced documentation regarding the certificate of deposit. Ms. Charles received $ 30,000 as her share of the settlement and was reimbursed $ 4,481.30 for medical bills she paid or had paid. Ms. Charles "netted" more than the $ 30,000 she told respondent she needed in any settlement.

The committee made the following findings concerning application of the Rules of Professional Conduct:

Respondent violated Rules 1.3 and 1.15(d) by failing to promptly pay her client and third-party healthcare providers the amounts they were undisputedly owed.

Respondent adequately communicated with Ms. Charles prior to the settlement of the case. However, she violated Rule 1.4 by failing to promptly disclose that she set aside $ 40,000 in a certificate of deposit to satisfy her obligations to Ms. Charles and to third-party healthcare providers. At best, this is a technical violation. Ms. Charles and third-party healthcare providers suffered no additional harm than if the monies had been safeguarded in the trust account or in the registry of the court.

Respondent violated Rule 1.15(a) by failing to maintain her trust account and by deciding to "safeguard" money by purchasing the certificate of deposit, as opposed to depositing the money into the registry of the court or into her trust account. She also issued a $ 75,000 check from the account when there were insufficient funds to pay the check. The balance of settlement funds on deposit after cashing her check for fees and expenses should have been $ 38,720.78, but several trust account statements show the balance to be less than that amount.

The ODC did not prove that respondent's continuance of the March 2015 trial date violated Rule 1.2. Respondent had a criminal matter scheduled the same day. Court rules mandate that criminal matters take precedence over civil matters, and the motion to continue the civil trial was based on that practice. Ms. Charles was advised of the continuance and the new trial date, and arguably, the case was not ready for trial since Ms. Charles was still treating for injuries. There is no evidence that the continuance was prejudicial to the case.

The ODC did not prove that respondent "knowingly made false statements" in violation of Rules 3.3, 4.1(a), or 8.1(a). There was a dispute between Ms. Charles and respondent over the division of settlement proceeds. In hindsight, better and prompter communication and conduct by all concerned could and should have resolved this dispute. This communication failure is respondent's responsibility. Her misguided decision to set aside personal funds in a certificate of deposit to "safeguard" the balance of the settlement funds only complicated matters.

The committee found no violation of Rule 8.4, reasoning that "specific rules apply to the conduct in question."

The committee determined respondent violated duties owed to her client and to third-party healthcare providers. Respondent acted very negligently, but there is no persuasive evidence that she intended to knowingly convert Ms. Charles' money. Respondent testified that she used her own money to purchase the certificate of deposit. Ms. Charles and third-party healthcare providers suffered actual harm because respondent failed to promptly pay the amounts undisputedly owed to them. Ms. Charles was also dunned by healthcare providers, who were not promptly paid for services rendered. After considering the ABA's Standards for Imposing Lawyer Sanctions , the committee determined the applicable baseline sanction is suspension.

In aggravation, the committee found a prior disciplinary record. In addition, the committee noted that if respondent had died or become incapacitated, there is no evidence to show that the $ 40,000 certificate of deposit, which was in respondent's name, was set up to "safeguard" the money owed to Ms. Charles and third-party healthcare providers. Respondent had a continuing affirmative duty to promptly disburse the balance of the settlement funds, notwithstanding the deterioration in her relationship with Ms. Charles. Respondent should not have taken her fee without simultaneously disbursing the balance, or at least the undisputed amounts, of settlement funds to Ms. Charles and to third-party healthcare providers.

In mitigation, the committee found a cooperative attitude toward the proceedings. Respondent eventually satisfied her obligations to disburse the balance of settlement funds. Blame for the delay in payment may, in part, lie with Ms. Charles, as resolution of the dispute was impeded by the strong feelings of Ms. Charles and her lack of understanding of the significance of a potential "med pay" lien, insofar as the disbursement of the settlement proceeds. Respondent's intent, however misguided, was to "safeguard" her client's property, not to steal it.

After further considering respondent's misconduct in light of this court's prior jurisprudence addressing similar misconduct, and her prior discipline for similar misconduct, the committee recommended respondent be suspended from the practice of law for one year, followed by a one-year period of supervised probation. The committee also recommended respondent be required to attend the LSBA's Ethics School, with particular attention to the proper use and operation of a client trust account. The committee also recommended respondent's trust account be audited at her expense, and that she be ordered to pay costs of this proceeding.

Both respondent and the ODC objected to the hearing committee's report. The ODC argued that the report contained numerous legal and factual errors, and further argued that the sanction recommended by the committee is too lenient. The ODC also argued that the committee erred in recommending respondent attend Ethics School, which respondent had previously attended "in a prior disciplinary matter to no avail." Respondent argued that the sanction recommended by the committee is too harsh.

Disciplinary Board Recommendation

After review, the disciplinary board found that the hearing committee's factual findings are not manifestly erroneous and are supported by the record. The board adopted these findings with limited revisions and additions, noting that the committee's determinations regarding the overall factual situation presented are supported when the record is considered in its entirety.

The board agreed with the committee's findings that respondent violated Rules 1.3, 1.4, 1.15(a), and 1.15(d) of the Rules of Professional Conduct. These violations establish a derivative violation of Rule 8.4(a).

The board adopted the committee's conclusion that respondent did not violate Rule 1.2. The evidence supports respondent's reasonable understanding that she had the authority to settle Ms. Charles' suit and endorse the settlement check.

The board adopted the committee's conclusion that respondent did not violate Rule 3.3(a). The ODC alleged that respondent filed a motion to continue the first trial date and falsely informed the court that Ms. Charles did not object to the continuance. The ODC also alleged that respondent filed, without Ms. Charles' knowledge or consent, a motion to rescind the judgment of dismissal which stated that Ms. Charles had agreed to settle and release the defendants. The board did not find these were misstatements of fact by respondent. The Charles matter was continued because respondent had a conflicting criminal matter which had priority under local practice. Filing a motion to continue may arguably imply consent of the client; however, contrary to the ODC's suggestion, respondent did not state in the motion that Ms. Charles "did not object to the continuance." In the motion and in her testimony, respondent stated that she had contacted defense counsel and that he had no objection to the motion. With respect to the motion to rescind, respondent reasonably believed that Ms. Charles had agreed to the settlement and dismissal, but a dispute as to disbursement arose after the fact.

The board adopted the committee's conclusion that respondent did not violate Rule 4.1(a). Because respondent reasonably believed that Ms. Charles had agreed to the settlement, she did not knowingly make a false statement of material fact when she informed defense counsel that Ms. Charles had agreed to settle the matter.

The board adopted the committee's conclusion that respondent did not violate Rule 8.1(a). Respondent did not knowingly make a false statement of material fact in connection with the disciplinary proceeding. At the hearing, when the ODC began to question respondent about the misstatement in her response to the complaint (see note 1, supra ), counsel for respondent took full responsibility for the "unintentional" misstatement. The ODC also argued that respondent first raised her defense to conversion (by placing funds in a certificate of deposit to safeguard Ms. Charles' settlement funds) in her pre-hearing memorandum, which was filed within a month of the disciplinary hearing. However, two months before the hearing, respondent filed an amended answer, wherein she denied converting funds and stated that the funds were in her possession, protected at all times. While the amended answer did not specifically mention the certificate of deposit, it clearly states the funds were protected. There is no indication that the ODC conducted or requested an interview with respondent to explore the basis of her statement or any other issue or that she failed to cooperate with ODC in any way.

The board adopted the committee's conclusion that respondent did not violate Rules 8.4(b), 8.4(c), or 8.4(d).

The board determined that respondent "very negligently" violated duties to her client and to her client's healthcare providers. When it appeared to respondent that she and Ms. Charles would not reach a quick resolution regarding distribution of the settlement funds, respondent should have kept the funds in her trust account or deposited the funds in the registry of the court. Nevertheless, the funds remained untouched in the certificate of deposit until the matter was resolved and Ms. Charles and the healthcare providers were paid. Viewing the record in its entirety, the committee's conclusion that "respondent's intent, however misguided, was to 'safeguard' her client's property, not to steal it" appears valid. Respondent caused actual harm to her client, who was deprived of her share of the settlement proceeds for eighteen months and was dunned for unpaid medical bills during that time. The dispute between respondent and Ms. Charles also unjustifiably delayed payment to the healthcare providers. After considering the ABA's Standards for Imposing Lawyer Sanctions , the board determined that the baseline sanction is suspension.

In aggravation, the board found a prior disciplinary record, a pattern of misconduct, and substantial experience in the practice of law (admitted 2000). In mitigation, the board found a cooperative attitude toward the proceedings and "restitution." Although restitution was delayed, it does not appear to be forced or compelled as respondent always intended to pay out the money and only held the funds until the dispute over disbursement was resolved. The board added that a significant percentage of respondent's practice involves criminal defense and that she has worked as an indigent defender in the 16th JDC for fourteen years.

After further considering respondent's misconduct in light of this court's prior jurisprudence addressing similar misconduct, and her prior discipline for similar misconduct, the board recommended respondent be suspended from the practice of law for one year, followed by a one-year period of supervised probation. The board also recommended respondent's trust account be audited and that she be required to attend the LSBA's Trust Accounting School. The board further recommended respondent be assessed with the costs and expenses of this proceeding.

Both respondent and the ODC objected to the disciplinary board's recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5 (B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks , 09-1212 (La. 10/2/09), 18 So.3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee's factual findings. See In re: Caulfield , 96-1401 (La. 11/25/96), 683 So.2d 714 ; In re: Pardue , 93-2865 (La. 3/11/94), 633 So.2d 150.

The record of this matter supports a finding that respondent failed to communicate with her client, failed to promptly remit funds to her client and to third-party medical providers, and failed to place disputed funds into her trust account. Based on these facts, respondent has violated the Rules of Professional Conduct as found by the disciplinary board.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent's actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass'n v. Reis , 513 So.2d 1173 (La. 1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass'n v. Whittington , 459 So.2d 520 (La. 1984).

Respondent violated duties owed to her client and to her client's healthcare providers. Her conduct was grossly negligent and caused actual harm to her client. Considering the facts of this case in light of respondent's prior disciplinary record for similar misconduct, we find that the appropriate sanction is a one year and one day suspension from the practice of law.

However, we recognize there are some compelling mitigating factors in this case. Respondent has displayed a cooperative attitude throughout these proceedings. She always evidenced an intent to protect her client's funds and make full restitution to her client. After some delay, respondent, with the assistance of her counsel, made payment to her client's satisfaction. Additionally, while not technically a mitigating factor, we observe that respondent has worked as an indigent defender for fourteen years and a significant percentage of her practice involves criminal defense.

Considering these factors, we will defer all but six months of the suspension and place respondent on probation for two years, subject to the following conditions: (1) respondent shall attend Trust Accounting School, and (2) she shall not undertake the representation of any clients in civil cases of any kind without supervision.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Alicia Johnson Butler, Louisiana Bar Roll number 26613, be and she hereby is suspended from the practice of law for a period of one year and one day. All but six months of this suspension shall be deferred, subject to respondent's successful completion of a two-year period of probation governed by the conditions set forth in this opinion. 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. 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.

GENOVESE, J., dissents and, considering the facts presented herein, would reject any deferral of suspension.

      Answering the complaint, respondent's counsel stated that no dismissal had been signed, that the case was "alive and well," and that Ms. Charles could decide to try the case or re-negotiate the settlement. In fact, the order of dismissal had been granted by the court on September 22, 2015. At the hearing before the committee, counsel for respondent took full responsibility for this error.

      The committee is incorrect in this regard. The formal charges specifically allege that respondent converted the portion of the settlement funds owed to Ms. Charles and the third-party medical providers.

      However, Ms. Charles understood from her new attorney that the settlement funds had been placed in a "trust fund" and would remain there until she and respondent could come to an agreement on the distribution of the funds.

      In addition to her 2014 suspension in Butler I , respondent participated in the diversion program in November 2003 for failing to return an unearned fee and failing to protect the interests of a former client after the termination of representation.


source: Caselaw Access Project

license: Public Domain

text:
    IN RE: Felix DEJEAN, IV
    NO. 2018-B-1333
    Supreme Court of Louisiana.
    January 30, 2019
    Charles Bennett Plattsmier, Robert Samuel Kennedy, Jr. ; for applicant.
    Felix Anthony DeJean, IV ; Leslie J. Schiff ; Julie Brown White; for respondent.
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Felix Anthony DeJean, IV, an attorney licensed to practice law in Louisiana.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent's prior disciplinary history. After being admitted to the practice of law in Louisiana in 1997, respondent's first encounter with the disciplinary system occurred in 2006, when he consented to a two-year period of probation imposed by the disciplinary board for "physical altercations and behaviors" caused by his bipolar disorder, Attention Deficit Hyperactivity Disorder, and prior use of marijuana and alcohol. In re: DeJean , 06-DB-057 (11/10/06). As a condition of probation, respondent and the ODC agreed that he would execute a two-year contract with the Judges and Lawyers Assistance Program ("JLAP"). Respondent successfully complied with his obligations under the JLAP contract, and in November 2008, the ODC notified respondent that his probation had been successfully concluded.

In December 2009, respondent was twice admonished by the disciplinary board for failing to properly address fee disputes with clients. In re: DeJean , 09-ADB-018 (12/1/09) (client Leother Dupas), and In re: DeJean , 09-ADB-019 (12/1/09) (client Jerriel Bazile).

In April 2010, this court accepted a joint petition for consent discipline and publicly reprimanded respondent in In re: DeJean , 10-0712 (La. 4/30/10), 35 So.3d 253. The misconduct at issue in that matter involved allegations that respondent relied upon the false representations of his client and failed to verify the identity of the parties who appeared before him for the purpose of executing a notarial renunciation.

In 2013, the disciplinary board publicly reprimanded respondent for engaging in conduct prejudicial to the administration of justice when he acted in an abusive and threatening manner towards the opposing party during a settlement conference. Respondent sought review of the board's ruling in this court. We affirmed the board's ruling as correct. In re: DeJean , 13-2311 (La. 1/10/14), 131 So.3d 36.

Against this backdrop, we now turn to a consideration of the misconduct at issue in the present proceeding.

UNDERLYING FACTS

On March 19, 2015, respondent was present in the chambers of Judge Kathy Johnson of the Seventh Judicial District Court for the Parish of Concordia for a conference in a criminal case. Also present in chambers were the District Attorney, Bradley Burget, and First Assistant District Attorney Ann Siddall.

At the conclusion of the conference, as the parties were leaving the judge's chambers, a physical altercation occurred. Mr. Burget claims that respondent exchanged words with him, physically confronted him and "chest bumped" him. Respondent claims that Mr. Burget instigated the altercation and that he acted in self-defense.

Respondent was subsequently charged with simple battery in connection with the altercation. On July 14, 2016, a trial was held before Retired Justice Chet Traylor, sitting as judge ad hoc. The state called the following witnesses to testify: Judge Johnson, Ms. Siddall, the judge's assistant, Julie Colclasure, court reporter Leona Paul, and Mr. Burget. Respondent testified in his own defense and on cross-examination by the state. At the conclusion of testimony and the closing argument of counsel, Justice Traylor found respondent guilty as charged of simple battery upon Mr. Burget. In oral reasons for judgment, Justice Traylor stated that he found the State had carried its burden of proof beyond a reasonable doubt; to find otherwise "would be to ignore the testimony of all the witnesses."

After taking sentencing under advisement, Justice Traylor sentenced respondent to serve six months in the parish prison, suspended, and placed him on eighteen months active supervised probation with special conditions. Among other conditions of probation, respondent was required to submit to a psychological evaluation by Dr. John W. Thompson, Jr., M.D. at his own cost and enroll in and successfully complete an anger management program.

Respondent sought appellate review of his conviction. The court of appeal denied his application, as did this court.

DISCIPLINARY PROCEEDINGS

In August 2016, the ODC filed formal charges against respondent, alleging that his conduct violated the following provisions of the Rules of Professional Conduct: Rules 8.4(b) (commission of a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer) and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

Respondent answered the formal charges and admitted that he was convicted of simple battery. However, he denied that he violated the Rules of Professional Conduct. Respondent maintained that he was not the aggressor in the incident with Mr. Burget and reiterated that "his actions were in self-defense of words and deeds by Burget."

Hearing Committee Report

This matter proceeded to a hearing in mitigation conducted by the hearing committee in August 2017. Based upon the evidence and testimony presented at the hearing, the hearing committee made the following findings of fact:

To establish a context for mitigation, respondent testified that during the trial of his client on drug charges, after respondent repeatedly referenced an earlier arrest of his client, to which Mr. Burget objected, a mistrial was declared. The battery incident occurred in chambers two months later, on a date on which motions were scheduled to be heard. While in chambers, respondent "chest bumped" Mr. Burget, and as a result, he was convicted of simple battery. For this misdemeanor conviction, respondent was sentenced to six months imprisonment, suspended, eighteen months of supervised probation and a fine. He was also ordered to complete an anger management program, to continue to take his prescribed medication, and to see Dr. Thompson every three months. Respondent completed the anger management program and complied with the required visits with Dr. Thompson. Respondent also continues to see Dr. Burl Forgey, a psychiatrist who has treated him for over fifteen years, every three months.

Prior to his criminal trial, respondent filed a civil suit against Mr. Burget for damages arising out of the battery incident. Respondent described the suit as trying to claim his innocence in mitigation of his criminal conviction. The suit remains pending.

Based on these facts, the committee found that respondent violated Rules 8.4(b) and 8.4(d), as charged in the formal charges. In failing to conduct himself with the dignity and decorum demanded of a lawyer, respondent violated duties owed to the public, the legal system, and the profession, diminishing public trust and respect for the profession and the judicial system. Respondent's conduct was presumably intentional; he did not claim that he acted as a result of any mental impairment or substance influence. While respondent's misconduct caused no actual physical harm, it did impair the public reputation of the profession and the judicial system.

In aggravation, the committee found the following factors: a prior disciplinary record and substantial experience in the practice of law. The committee did not recognize any mitigating factors.

In formulating a recommendation for an appropriate sanction, the committee considered In re: Greenburg & Lewis , 08-2878 (La. 5/5/09), 9 So.3d 802. Mr. Lewis and Mr. Greenburg represented opposing parties in a bitterly contested succession matter. While appearing in open court for a motion hearing, Messrs. Lewis and Greenburg exchanged vulgarities, following which Mr. Greenburg grabbed Mr. Lewis's suit jacket, and both men fell to the floor. Mr. Greenburg was subsequently convicted of the misdemeanor offense of simple battery arising out of this altercation. In response to the formal charges filed against both lawyers, neither of whom had a prior disciplinary record, the court suspended Mr. Greenburg from the practice of law for six months, with all but thirty days deferred, subject to his participation in an anger management counseling program. The court publicly reprimanded Mr. Lewis.

At the other end of the spectrum is In re: Estiverne , 99-0949 (La. 9/24/99), 741 So.2d 649. Mr. Estiverne became involved in an altercation with opposing counsel during a deposition. At some point, opposing counsel suggested to Mr. Estiverne that the two of them "step outside" and settle the matter "man to man." Mr. Estiverne left the office and reappeared a few minutes later with an unloaded gun, allegedly threatening to kill opposing counsel. Finding Mr. Estiverne's use of a dangerous weapon created a clear potential for harm, and considering that he had previously been admonished for harassing and unprofessional behavior, this court suspended him for one year and one day.

In light of the circumstances of this matter, the committee recommended that respondent be suspended from the practice of law for six months, with no period of deferral.

Respondent filed an objection to the severity of the sanction recommended by the hearing committee.

Disciplinary Board Recommendation

After reviewing this matter, the disciplinary board determined that the hearing committee's factual findings are not manifestly erroneous, and that the committee correctly found respondent violated the Rules of Professional Conduct as charged.

The board determined that respondent intentionally violated duties owed to the public, the legal system, and the profession by engaging in criminal conduct. Respondent's conduct did not cause actual harm, but the potential for physical harm to the person of Mr. Burget was present. Considering the ABA's Standards for Imposing Lawyer Sanctions , the board found the applicable baseline sanction is suspension.

The board found the following aggravating factors are supported by the record: a prior disciplinary record, refusal to acknowledge the wrongful nature of the conduct, substantial experience in the practice of law, and illegal conduct. In mitigation, the board recognized the following factors: full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings and the imposition of other penalties or sanctions.

Turning to the issue of an appropriate sanction, the board surveyed the prior cases of this court involving facts similar to those at issue here, and determined that respondent's conduct is most similar to the Greenburg & Lewis case cited by the hearing committee. However, the board felt this case involves more significant aggravating factors than were present in Greenburg & Lewis , primarily respondent's prior disciplinary history. The board noted that this is the third disciplinary matter in which the misconduct is related to respondent's failure to control his anger. Given this history, the board concluded that a one year and one day suspension, with no period of deferral, is warranted, as respondent will then be required to establish his fitness by clear and convincing evidence before returning to the practice of law. See Supreme Court Rule XIX, § 24.

Based on this reasoning, the board recommended respondent be suspended from the practice of law for one year and one day. Two board members dissented and would recommend a lesser period of suspension. The board also recommended that respondent be assessed with the costs and expenses of the proceeding.

Respondent filed an objection to the disciplinary board's recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5 (B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks , 09-1212 (La. 10/2/09), 18 So.3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee's factual findings. See In re: Caulfield , 96-1401 (La. 11/25/96), 683 So.2d 714 ; In re: Pardue , 93-2865 (La. 3/11/94), 633 So.2d 150.

In brief and argument before this court, respondent purports to accept the guilty verdict in the criminal proceeding but asserts he has not committed any misconduct, maintaining that Mr. Burget initiated this altercation or that respondent acted in self-defense. Respondent's arguments are not supported by the record. Rather, the record demonstrates in a clear and convincing fashion that respondent physically confronted Mr. Burget and "chest bumped" him during a conference in chambers. Based on these facts, respondent has violated the Rules of Professional Conduct as charged by the ODC.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent's actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass'n v. Reis , 513 So.2d 1173 (La. 1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass'n v. Whittington , 459 So.2d 520 (La. 1984).

By its very nature, respondent's criminal conduct was intentional. He violated duties owed to the public, the legal system, and the legal profession, causing actual harm to the profession and potential harm to Mr. Burget.

The sanctions in our jurisprudence in prior cases concerning attorneys who have engaged in violent conduct range from a period of suspension to disbarment. By their nature, the cases in this area tend to be very fact specific, making it difficult to synthesize any broad precepts. However, it may be said that in general, the severity of the sanctions depend on the intent of the perpetrator, the harm resulting from the actions and the context in which the conduct occurs.

In the case at bar, respondent's actions were unquestionably intentional, although they caused no actual harm to Mr. Burget. The conduct occurred in a judge's chambers, but outside the view of the general public. Considering these factors, we believe a baseline sanction of suspension is applicable.

The only mitigating factor present is the imposition of other penalties or sanctions in connection with the criminal proceeding. In contrast, the record supports the following aggravating factors: a prior disciplinary record, refusal to acknowledge the wrongful nature of the conduct, substantial experience in the practice of law, and illegal conduct.

Of the aggravating factors, we must place particular emphasis on the fact that this matter is respondent's third disciplinary proceeding since 2006 which involves overly aggressive or physically abusive behavior. These are not isolated incidents. Indeed, the trial court which presided over the criminal case expressed clear concern over respondent's mental state, as demonstrated by the fact it required respondent to submit to a psychological evaluation and successfully complete an anger management program as conditions of probation.

Considering respondent's disciplinary history, we find it appropriate to fashion a sanction which is both responsive to respondent's current misconduct and which will protect the public in the future by requiring him to demonstrate fitness prior to being reinstated to the practice of law. See Supreme Court Rule XIX, § 24(E)(3). Accordingly, we will adopt the disciplinary board's recommendation and suspend respondent from the practice of law for one year and one day, thereby necessitating a formal application for reinstatement.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Felix Anthony DeJean, IV, Louisiana Bar Roll number 25028, be and he hereby is suspended from the practice of law for a period of one year and one day. 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.

      Retired Judge Benjamin Jones, assigned as Justice Ad Hoc, sitting for Weimer, J., recused; Retired Judge Burrell Carter, assigned as Justice Ad Hoc, sitting for Genovese, J., recused.

      Medical records introduced into evidence at the board panel hearing in the instant matter reflect that respondent is not currently diagnosed as bipolar.

      La. R.S. 14:35(A) provides that simple battery is a battery committed without the consent of the victim. La. R.S. 14:33 defines battery as "the intentional use of force or violence upon the person of another..."

      Dr. Thompson is a board-certified psychiatrist and forensic neuropsychiatrist. He serves as the chair of the Department of Psychiatry and Behavioral Sciences and the Director of the Division of Forensic Neuropsychiatry at Tulane University School of Medicine.

      See State v. DeJean , 16-0789 (La. App. 3rd Cir. 1/25/17) --- So.3d ----, writ denied , 17-0369 (La. 4/13/17), 218 So.3d 626 (Weimer and Genovese, JJ., recused).

      Respondent testified at the hearing that he respects his criminal conviction but nonetheless is innocent of the crime.

      For example, in In re: Crabson , 13-0312 (La. 4/12/13), 115 So.3d 452, a man was backing his car out of a parking space at a Walmart store when he heard a car horn behind him. Unsure whether he had hit another vehicle, the man got out of his car and walked around to check for damage. As he did so, a man later identified as Mr. Crabson exited his own vehicle and began screaming profanities. Mr. Crabson then approached the man and threw several punches at him, striking him once and leaving a bruise on his cheek. When the man's wife tried to separate them, Mr. Crabson pushed her away. Mr. Crabson subsequently pleaded no contest to simple battery. For his misconduct, this court suspended him from the practice of law for one year and one day.
      In In re: Bowman , 12-2410 (La. 3/19/13), 111 So.3d 317, the lawyer was convicted of domestic abuse battery following an altercation with his former wife. Specifically, while attempting to exercise visitation with his children, the lawyer pinned his former wife against a door by placing his forearm against her throat and chest. He also drew back his left hand in a fist as though he was going to punch her, but he did not actually strike her with his fist. For this misconduct, the court suspended the lawyer for a period of six months, with all but thirty days deferred.
      In In re: Cardenas , 11-0031 (La. 5/6/11), 60 So.3d 609, Mr. Cardenas struck his estranged wife in the presence of their minor child. He was subsequently convicted of domestic abuse battery (child endangerment), a misdemeanor, and placed on probation. For this conduct, the court suspended Mr. Cardenas for one year, with six months deferred, followed by a two-year period of probation.
      In In re: Willis , 09-0211 (La. 5/13/09), 8 So.3d 548, Mr. Willis was waiting with his girlfriend in a vehicle at the drive-up window of a fast food restaurant. Before their food arrived, Mr. Willis and his girlfriend began arguing. This led to a physical altercation between them wherein Mr. Willis hit and grabbed his girlfriend. He also poured beer on her and hit her over the head with the empty beer bottle. Mr. Willis was ultimately charged with two counts of simple battery, which charges were still pending at the time of the disciplinary matter. He was also charged with other professional misconduct, including neglecting a client's bankruptcy matter, failing to refund an unearned fee and unused costs, failing to return the client's documents upon the termination of the representation, and practicing law while ineligible to do so. For this misconduct, Mr. Willis was disbarred.
      In In re: Sterling , 08-2399 (La. 1/30/09), 2 So.3d 408, Mr. Sterling kicked in the door of his girlfriend's apartment and then pushed and shoved her around the apartment. He was subsequently convicted of unauthorized entry of an inhabited dwelling, a felony, and placed on probation. Mr. Sterling was also charged with other professional misconduct, including failure to properly notify his clients of the interim suspension that followed his criminal conviction, failure to return a client's file after he was placed on interim suspension, and transferring a client matter to another attorney without the consent of the client. For this misconduct, the court imposed a two-year suspension from the practice of law.


text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-9711
    NO. 2019-BA-0054
    Supreme Court of Louisiana.
    February 25, 2019
    BAR ADMISSIONS PROCEEDING
   PER CURIAM

Petitioner's current application makes no showing of any significant change in circumstances since his prior applications were denied in 2007, 2008, and 2017. In the absence of any compelling new evidence or significant changed circumstances, this court will not reconsider a decision denying admission to the bar. See In re: Jordan , 00-3006 (La. 12/15/00), 775 So.2d 1065.

Accordingly, it is ordered that the application for admission be and hereby is denied. In accordance with Supreme Court Rule XVII, § 9(D)(13), petitioner may not re-apply for admission until he can demonstrate a significant change in circumstances, and in no event until at least two years have passed from the date of this judgment.

ADMISSION DENIED.

Clark, J., concurs and assigns reasons.

Hughes, J., would grant conditional admission.

Crichton, J., additionally concurs and assigns reasons.

CLARK, J., concurs and assigns reasons.

I agree with the denial of admission in this case, but would not allow petitioner to re-apply for admission until at least three years have passed from the date of this judgment.

Crichton, J., additionally concurs and assigns reasons.

I agree with the denial of admission in this case. I write separately to raise the question of whether the Court should continue to review petitions for admission from this petitioner after he has been denied admission in this-his fourth -application. See In re: Jordan , 12-0051 (La. 4/9/12), 85 So.3d 683 (prohibiting petitioner from reapplying after third application for admission).


author: PER CURIAM:

text:
    STATE of Louisiana v. Jessie GRACE
    No. 2017-KP-2070
    Supreme Court of Louisiana.
    February 25, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIFTH CIRCUIT, PARISH OF JEFFERSON
   PER CURIAM:

Denied. Relator fails to show that 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).

Relator has now fully litigated three 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.

Johnson, C.J., would grant and docket.

Hughes, J., would grant and assigns reasons.

Crichton, J., would grant and docket.

Hughes, J., would grant the writ and assigns reasons.

The state failed to disclose grand jury testimony that contained favorable impeachment evidence, including inconsistent statements about a pre-trial identification of the shooter; relator's presence at the crime scene; and a crucial state witness's motivation for testifying in the instant case. The suppression of this impeachment evidence undermines the verdict in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ; United States v. Bagley , 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) ; Giglio v. United States , 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) ; State v. Knapper , 579 So.2d 956 (La. 1991). Because the district court did not abuse its discretion in finding that the cumulative effect of the withheld evidence would have created reasonable doubt as to the state's case, and thus the verdict rendered in their absence was undermined, see Kyles v. Whitley , 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), the court of appeal erred in reversing the district court's ruling, which granted relator relief, vacating his conviction and sentence, and ordering a new trial.


text:
    Lloyd JARROW v. STATE of Louisiana
    No. 2018-KH-0152
    Supreme Court of Louisiana.
    February 25, 2019
    ON SUPERVISORY WRITS TO THE FORTIETH JUDICIAL DISTRICT COURT, PARISH OF ST. JOHN THE BAPTIST
   PER CURIAM:

Denied. The application was not timely filed in the district court, and applicant 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.

Applicant 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. Applicant'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, applicant 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. John LINDSEY
    No. 2018-KH-0260
    Supreme Court of Louisiana.
    February 25, 2019
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. Applicant fails to show that 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 his remaining claims, applicant fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Applicant 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. Applicant'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, applicant has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Hughes, J., would grant in part.


text:
    STATE of Louisiana v. Freddy WELCH
    No. 2018-KH-0317
    Supreme Court of Louisiana.
    February 25, 2019
    ON SUPERVISORY WRITS TO THE THIRTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF TERREBONNE
   PER CURIAM:

Denied. Applicant fails to show that 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 his remaining claims, applicant fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Applicant 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. Applicant'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, applicant has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Weimer, J., recused.


text:
    STATE of Louisiana v. Tracy Lee MCMOOAIN
    No. 2018-KH-0345
    Supreme Court of Louisiana.
    February 25, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY
   PER CURIAM:

Denied. Applicant'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. Applicant also fails to show that 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 his remaining claims, applicant fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Applicant 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. Applicant'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, applicant has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Hughes, J., would grant the writ for an evidentiary hearing.


text:
    STATE of Louisiana v. Leopold "Chuck" LACOSTE, II
    No. 2018-KP-0649
    Supreme Court of Louisiana.
    February 25, 2019
    ON SUPERVISORY WRITS TO THE THIRTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF TERREBONNE
   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. Relator's sentencing claims are 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 an 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.

Weimer, J., recused.


text:
    STATE of Louisiana v. Leopold "Chuck" LACOSTE, II
    No. 2018-KP-1084
    Supreme Court of Louisiana.
    February 25, 2019
    ON SUPERVISORY WRITS TO THE THIRTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF TERREBONNE
   PER CURIAM:

Denied. Relator fails to show that 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 his remaining claims, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Relator has now fully litigated an 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.

Weimer, J., recused.


text:
    Phillip JAMES v. ST. MARTIN PARISH GOVERNMENT, et al.
    No. 2019-CC-0013
    Supreme Court of Louisiana.
    February 25, 2019
    ON SUPERVISORY WRITS TO THE 16TH JUDICIAL DISTRICT COURT FOR THE PARISH OF ST. MARTIN
    Writ denied.
    CRICHTON, J., would grant and assigns reasons.
    CRICHTON, J., would grant and assigns reasons:
   In this parking lot trip and fall case, St. Martin Parish Government asserts that the district court erred in denying summary judgment where plaintiff failed to show actual or constructive notice. The district court held that there was sufficient evidence to negate summary judgment because the library parking lot bumper was defective with mold, and thus there was no genuine issue of material fact as to whether there was an open and obvious defect. Not only did such ruling rely on the district court's own perception of mold on the bumper, which plaintiff did not assert and of which plaintiff did not produce evidence, but such reliance appears to have implicitly circumvented the requirement that plaintiff show actual or constructive notice pursuant to La. R.S. 9:2800. Considering the requisites of La. R.S. 9:2800, I would grant this writ application and assign the case for briefing, permitting the parties an opportunity to request oral argument, pursuant to La. Code Civ. P. art. 966(H).


text:
    IN RE: Sean C. BRAZIL
    NO. 2019-B-0081
    Supreme Court of Louisiana.
    February 25, 2019
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

The Office of Disciplinary Counsel ("ODC") commenced an investigation into allegations that respondent submitted false and inflated billing records to his law firm. Prior to the institution of formal charges, respondent and the ODC submitted a joint petition for consent discipline, in which respondent acknowledges that his conduct constitutes a violation of Rules 8.4(a) and 8.4(c) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Sean C. Brazil, Louisiana Bar Roll number 36810, be and he hereby is disbarred, retroactive to June 15, 2018, the date of his interim suspension. His name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked.

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 of Louisiana v. Joseph NORAH
    No. 2018-KH-0217
    Supreme Court of Louisiana.
    February 25, 2019
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. Applicant fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2. The application is also repetitive. La.C.Cr.P. art. 930.4.

Applicant 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. Applicant'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, applicant 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. Ronald FAIRMAN
    No. 2018-KH-0228
    Supreme Court of Louisiana.
    February 25, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

Denied. Relator fails to show that 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). 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 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. Karrell NORA
    No. 2018-KP-0707
    Supreme Court of Louisiana.
    February 25, 2019
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. Relator fails 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).

Relator has now fully litigated an 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. Edward W. JOHNSON
    No. 2018-OK-1542
    Supreme Court of Louisiana.
    February 25, 2019
    ON SUPERVISORY WRIT TO THE COURT OF APPEAL, SECOND CIRCUIT, PARISH OF CADDO
   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 of Louisiana v. Troy TAYLOR
    No. 2018-KH-1317
    Supreme Court of Louisiana.
    February 25, 2019
    ON RECONSIDERATION
   Reconsideration Denied.

HUGHES, J., would grant and assigns reasons.

Hughes, J., would grant reconsideration.

Respectfully, given the odyssey this case has taken, the trial court is in the best position to determine whether defendant was properly re-indicted after his original convictions were overturned.


text:
    Tracy VINCE and Joann Vince on Behalf of Southland Express, LLC v. METRO REDISCOUNT COMPANY, INC., Brian Brennan and Frank J. Adolf
    No. 2018-C-2056
    Supreme Court of Louisiana.
    February 25, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIFTH CIRCUIT, PARISH OF JEFFERSON
   PER CURIAM

The purpose of the peremptory exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the petition. Scheffler v. Adams and Reese, LLP , 06-1774 (La. 2/22/07), 950 So.2d 641. The peremptory exception of no cause of action is triable on the face of the pleadings, and, for purposes of resolving issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. Scheffler, 950 So.2d at 646. Thus, to determine whether the trial court erred in granting the defendants' Exception of No Cause of Action, we must accept all facts alleged in the petition as true. Veroline v. Priority One EMS , 09-1040 (La. 10/9/09), 18 So.3d 1273, 1275.

The CA noted that, in the supplemental and amending petition, with respect to defendant Brennan, applicants allege:

When payments received by Southland from Metro began to be returned from the bank as non-sufficient, Southland contacted Metro, through defendants , Frank Adolf and Brian Brennan, and requested they immediately cease accepting payments from Southland's customers. Those requests were ignored. Defendants , despite knowing that they had no authority to do so, continued to fraudulently collect Southland customer payments and failed to notify Southland that they were collecting customer payments on accounts never assigned to them and for which Metro had no authority to endorse. Defendants continued to submit checks to Southland that defendants knew were not backed by sufficient funds and would not be honored, thereby misrepresenting their value to Southland. Adolf and Brennan, acting through Metro, intentionally deceived and defrauded Southland through these worthless checks and the continued unauthorized collection of payments owed to Southland .
* * * *
The scheme of intentional fraud by Frank J. Adolph and Brian Brennan , performed through Metro, makes them personally liable for the damages caused thereby and all amounts owed to third party creditors such as plaintiffs herein as well as attorneys' fees and punitive damages as permitted by law. (Emphasis added.)

Vince on Behalf of Southland Express, LLC v. Metro Rediscount Company, Inc. , 18-237 (La. App. 5 Cir. 11/14/18), 259 So.3d 1221 (unpublished opinion ).

The allegations of the petition are sufficient to assert a cause of action. As such, the ruling of the lower courts, sustaining the exception of no cause of action, is reversed. The exception of no cause of action is denied, and this matter is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

Guidry, J., recused.

Clark, J., and Crichton, J., would deny.


text:
    IN RE: Oscar Augusto ARAUJO
    NO. 2019-B-0007
    Supreme Court of Louisiana.
    February 25, 2019
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

The Office of Disciplinary Counsel ("ODC") commenced an investigation into allegations that respondent mismanaged his client trust account. During the investigation, respondent also made a false statement of material fact to the ODC. 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 Oscar Augusto Araujo, Louisiana Bar Roll number 23624, be suspended from the practice of law for a period of one year and one day. All but thirty days of this suspension shall be deferred, followed by a two-year period of supervised probation governed by the conditions set forth in the petition for consent discipline. The probationary period shall commence from the date respondent, the ODC, and the probation monitor 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 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.

Clark, J., and Genovese, J., would reject consent discipline.


text:
    IN RE: William Christopher BEARY
    NO. 2019-B-0262
    Supreme Court of Louisiana.
    February 25, 2019
    ORDER
   Considering the Joint Petition for Interim Suspension filed by respondent, William Christopher Beary, and the Office of Disciplinary Counsel,

IT IS ORDERED that William Christopher Beary, Louisiana Bar Roll number 22253, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.3, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.


author: HUGHES, J., would grant.

text:
    STATE of Louisiana v. Dnerius ANTOINE
    NO. 2019-KK-0047
    Supreme Court of Louisiana.
    February 25, 2019
    ON SUPERVISORY WRITS TO THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF LAFAEYETTE
    Writ denied.
    JOHNSON, C. J., would grant.
   HUGHES, J., would grant.

GENOVESE, J., would grant and assigns reasons.

Genovese, J., would grant for the following reasons:

The facts in this case fit squarely within the parameters and prohibition set forth in Rodriguez v. United States , --- U.S. ----, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015), i.e., absent reasonable suspicion, police may not extend an otherwise-completed traffic stop in order to conduct a dog sniff. This case presents just such a scenario.

Officers stopped a vehicle ostensibly for a traffic violation. Over the course of 15 minutes, officers vetted both the driver and passenger and found no outstanding warrants or other cause to detain the occupants. Officers denied smelling marijuana or other drug odors. Nevertheless, one officer asked to search the vehicle. The driver refused. The officer thereafter requested a K-9 officer to conduct a drug sniff. The K-9 unit arrived approximately 22 minutes later.

In my view, officers articulated no reasonable suspicion to justify extending the already-completed stop to conduct the drug sniff. For this reason, I disagree with the slim majority and would grant defendant's motion to suppress.


text:
    STATE of Louisiana v. Gary Thomas GORMAN
    No. 2018-KP-0647
    Supreme Court of Louisiana.
    February 25, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-FIRST JUDICIAL DISTRICT COURT, PARISH OF LIVINGSTON
   PER CURIAM:

Denied. Relator's claim for relief has been fully litigated in an appeal from the proceedings leading to judgement of conviction and sentence and shall not considered. La.C.Cr.P. art. 930.4(A).

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.


text:
    STATE of Louisiana v. William Wayne LEE, Jr.
    No. 2018-KP-0779
    Supreme Court of Louisiana.
    February 25, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY
   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 third 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. Dumauriea Leon MCGEE
    No. 2018-K-1052
    Supreme Court of Louisiana.
    February 25, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, SECOND CIRCUIT, PARISH OF LINCOLN
   PER CURIAM:

Writ granted. Defendant, having been convicted of second degree murder, urged on appeal that defense counsel rendered ineffective assistance in three specific ways: 1) for failing to introduce or proffer statements he made to two separate police officers following his arrest; 2) for failing to subpoena one of these officers to testify at trial; and 3) for failing to request that a machete found near the scene of the crime be fingerprinted as possible exculpatory evidence. See State v. McGee , 51,977, p. 8 (La. App. 2 Cir. 5/23/18), 247 So.3d 1142, 1146. The court of appeal concluded the record was insufficient to resolve these claims and remanded with instructions for the trial court to conduct a full evidentiary hearing, pretermitting discussion of defendant's remaining assignments of error.

Under the standard for ineffective assistance of counsel set out in Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), adopted by this Court in State v. Washington , 491 So.2d 1337, 1338-39 (La. 1986), a reviewing court must reverse a conviction if the defendant establishes (1) that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's inadequate performance prejudiced defendant to the extent that the trial was rendered unfair and the verdict suspect. Generally, a claim for ineffective assistance of counsel is properly raised in an application for post-conviction relief. State v. Burkhalter , 428 So.2d 449, 456 (La. 1983). This enables the district judge to conduct a full evidentiary hearing on the matter. State v. Seiss , 428 So.2d 444, 449 (La. 1983). However, the information contained in the writ application and the opinion below is adequate to support a finding that defendant failed to demonstrate ineffective assistance of counsel or entitlement to a hearing at this stage of the proceedings. See, e.g., State v. Ratcliff , 416 So.2d 528, 530-32 (La. 1982) ("Since the record discloses evidence needed to decide the issue of ineffective assistance of counsel and that issue was raised by assignment of error on appeal, in the interest of judicial economy we will address that issue now.").

Defendant's statements to Captain Hanna and Detective Isom are hearsay and apparently believed by defendant to present an exculpatory version of the events surrounding his conviction. Hearsay is inadmissible unless it falls within an exception. La.C.E. art. 802. No hearsay exceptions apply in this case. Contra La.C.E. arts. 803 & 804. Further, a defendant may not introduce his pretrial statement before the jury without subjecting himself to cross-examination. See, e.g., State v. Guillory , 373 So.2d 133, 135 (La. 1979) ; see also State v. Melerine , 236 La. 930, 971, 109 So.2d 471, 486 (1959). Thus, counsel did not render ineffective assistance in failing to introduce or proffer these statements. Because Detective Isom's testimony would only have been relevant to lay a foundation for, or describe, defendant's statement to him, counsel also did not render ineffective assistance for failing to subpoena him to testify at trial.

Defendant argues in his third claim that counsel rendered ineffective assistance by failing to request that a machete found near the scene be fingerprinted as possible exculpatory evidence. We note that the two eyewitnesses to the shooting who testified at trial each stated that the victim was unarmed both when he left his vehicle and when he was shot. See McGee , 51,977, pp. 6-7, 247 So.3d at 1145-46. On these facts, defendant has failed to show that there was evidence in the appellate record "sufficiently compelling to conclude that the interest of justice and judicial economy will be best served by remanding the matter for an evidentiary hearing at this juncture." State v. Mansfield , 50,426, p. 19 (La. App. 2 Cir. 2/24/16), 190 So.3d 322, 333 (listing as relevant factors the length of the defendant's pretrial and post-trial incarceration, his conviction of a lesser included offense, and indications of other possible acts of ineffective assistance of counsel found in the record). Defendant may urge this claim in future post-conviction proceedings, subject to all the procedural requirements thereof. See La.C.Cr.P. art. 924 et seq .

The court of appeal is reversed to the extent that it remanded with instructions to the district court, and this matter is remanded to the court of appeal for consideration of the pretermitted assignments of error.

REVERSED AND REMANDED


text:
    STATE of Louisiana v. Gerald W. DAHLEM
    No. 2018-KH-0105
    Supreme Court of Louisiana.
    February 25, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF WASHINGTON
   PER CURIAM:

Denied. Applicant fails to show that 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 his remaining claims, applicant fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Applicant 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. Applicant'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, applicant 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. James TOWNSEND
    No. 2019-KH-0093
    Supreme Court of Louisiana.
    February 25, 2019
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

Defendant represents that the court of appeal has failed to act timely on a supervisory writ application or applications filed on or about July 23, 2018. If defendant's representation is correct, the court of appeal is ordered to consider and act on the writ application(s). The court of appeal is also ordered to provide this court with a copy of its judgment.

Guidry, J., would deny.

Clark, J., would deny.

Crichton, J., recused.


text:
    STATE of Louisiana v. Joshua THOMAS
    NO. 2018-KH-1941
    Supreme Court of Louisiana.
    February 18, 2019
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Tyrone BIENEMY
    NO. 2018-KH-2033
    Supreme Court of Louisiana.
    February 18, 2019
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


author: WEIMER, J., would grant.

text:
    Richard CREEL v. DOLPHIN SERVICES, L.L.C., Masse Contracting, Inc., Suncoast Fabrication Services, Inc., ABC Insurance Company, EFG Insurance Company and XYZ Insurance Compamy
    NO. 2018-C-1570
    Supreme Court of Louisiana.
    February 18, 2019
    Denied.
   WEIMER, J., would grant.


author: WEIMER, J., recused.

text:
    STATE of Louisiana v. Earl Joseph DUPRE, Sr.
    NO. 2018-KH-1624
    Supreme Court of Louisiana.
    February 18, 2019
    Denied. Untimely filed pursuant to La.S.Ct.R. X § 5.
   WEIMER, J., recused.

GUIDRY, J., recused.


text:
    GRACE RANCH, LLC v. BP AMERICA PRODUCTION COMPANY, et al.
    NO. 2018-C-1655
    Supreme Court of Louisiana.
    February 18, 2019
    Denied.
   WEIMER, J., would grant.

HUGHES, J., would grant.

GENOVESE, J., would grant.


text:
    STATE of Louisiana IN the INTEREST OF Z.D.
    NO. 2018-CJ-1721
    Supreme Court of Louisiana.
    February 18, 2019
    Denied.
   WEIMER, J., would grant.

GUIDRY, J., would grant.

GENOVESE, J., would grant.


text:
    STATE of Louisiana v. Steven SMITH
    NO. 2018-KH-1826
    Supreme Court of Louisiana.
    February 18, 2019
    Denied. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    E.R. v. T.S.
    NO. 2018-CJ-1843
    Supreme Court of Louisiana.
    February 18, 2019
    Denied.


text:
    Janice Hebert BARBER, John H. Fairbanks, M.D., Pierce D. Nunley, M.D., John Bogan, M.D., John Faulkner, Darrell Cormier, Peggy Edwards, Joan Savoy, Karen Frierson, and Vanessa Arnold v. LOUISIANA WORKFORCE COMMISSION, Louisiana Office of Workers' Compensation, Christopher Rich, M.D., Wes Hataway, and Curt Eysink
    NO. 2018-C-1878
    Supreme Court of Louisiana.
    February 18, 2019
    Denied.
   HUGHES, J., would grant.

CRICHTON, J., would grant.

GENOVESE, J., would grant.


text:
    Ridder Williams CROCKER, Individually and on Behalf Her Deceased Son, Jerry Lee Sheppard v. BATON ROUGE GENERAL MEDICAL CENTER-MID CITY and its Staff, Including but Not Limited to the Behavioral Health Unit, William T. Elliot, M.D. and Joseph Thomas, Jr., M.D.
    NO. 2018-C-1911
    Supreme Court of Louisiana.
    February 18, 2019
    Denied.
   HUGHES, J., would grant.

GENOVESE, J., would grant for reasons assigned by Judge McDonald.


author: CLARK, J., would grant.

text:
    STATE of Louisiana v. Darrell HAMPTON
    NO. 2018-KP-1929
    Supreme Court of Louisiana.
    February 18, 2019
    Denied.
   CLARK, J., would grant.

HUGHES, J., would grant in part.


text:
    STATE of Louisiana v. Brynton Kelli SIMMONS
    NO. 2018-KK-1972
    Supreme Court of Louisiana.
    February 18, 2019
    Denied.
   HUGHES, J., would grant.


text:
    State of Louisiana, MILITARY DEPARTMENT and Department of Public Safety, Office of State Police v. EXPLO SYSTEMS, INC., Crum & Forster Specialty Insurance Company, and Seneca Specialty Insurance Company
    NO. 2018-CC-2006
    Supreme Court of Louisiana.
    February 18, 2019
    Denied.


text:
    Douglas W. BARTON v. WAL-MART STORES, INC.
    NO. 2018-C-2058
    Supreme Court of Louisiana.
    February 18, 2019
    Denied.
   WEIMER, J., would grant.

CLARK, J., would grant.


text:
    STATE of Louisiana v. Kenneth Dwayne NIXON
    NO. 2018-KH-2075
    Supreme Court of Louisiana.
    February 18, 2019
    Denied. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    Logan LOTT, Kirsten Lott, and the Royal Bakery, LLC v. PLAQUEMINES PARISH GOVERNMENT; Nova Casualty Insurance Company; ABC Insurance Company ; Amos Cormier, III; Edward Theriot; Stanley Wallace; Robert Barnett; DEF Insurance Company; John Barthelemy; Irvin Juneau; Benedict Rousselle; Charlie Burt ; Audrey Trufant-Salvant; and Nicole Smith Williams
    NO. 2018-CC-2094
    Supreme Court of Louisiana.
    February 18, 2019
    Denied.


text:
    Derek RABALAIS, et al. v. STRATEGIC RESTAURANTS ACQUISITION COMPANY, LLC, d/b/a Burger King, et al.
    NO. 2018-CC-2109
    Supreme Court of Louisiana.
    February 18, 2019
    Denied.
   CLARK, J., would grant.

HUGHES, J., would grant.


author: GENOVESE, J., recused.

text:
    STATE of Louisiana and Vermilion Parish School v. The LOUISIANA LAND AND EXPLORATION CO., et al.
    BOARD NO. 2018-CC-2110
    Supreme Court of Louisiana.
    February 18, 2019
    Denied.
   GENOVESE, J., recused.


text:
    Terrance SANDERS and Danielle Sanders v. CERES GULP, INC., ABC Insurance Co., and Rudolph Price
    NO. 2018-CC-2111
    Supreme Court of Louisiana.
    February 18, 2019
    Denied.


text:
    STATE of Louisiana and Vermilion Parish School v. The LOUISIANA LAND AND EXPLORATION CO., et al.
    BOARD NO. 2018-CC-2112
    Supreme Court of Louisiana.
    February 18, 2019
    Denied.
   HUGHES, J., would grant.

GENOVESE, J., recused.