author: Conner, J.

text:
    James R. BUTLER, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-544
    District Court of Appeal of Florida, Fourth District.
    September 20, 2018
    Jacob M. Noble, Palm Beach Gardens, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R. Napodano, Assistant Attorney General, West Palm Beach, for appellee.
   Conner, J.

Appellant, James R. Butler, appeals his judgment and sentence after a jury found him guilty of two counts of sexual battery on a person less than 12 years of age. He raises five issues on appeal, four of which we affirm without discussion. We affirm as to the fifth issue as well, but write to explain why we disagree with his argument that the trial court erred in allowing the victim to testify via satellite.

Background

Butler was charged with two counts of sexual battery on a person less than 12 years of age involving one victim, who was an adult at the time of trial. The crimes were reported to law enforcement in 1998, but Butler was not arrested for the crimes until 2009 because he absconded.

Prior to trial, the State filed a motion to permit the Victim to testify via satellite live-streaming video transmission, since she had relocated to Australia in 2007. In support of the motion, the State submitted an affidavit by the Victim, which stated:

I, [the Victim], currently reside in Newcastle, Australia. I am the victim in the case of State v. James Butler, case number 2009CF004111AXX. I have applied for a return visa so that I can travel to Palm Beach County, Florida for trial. If I am unable to obtain a return visa, I will not be allowed back to Australia. At this time, I have not been approved for a return visa.
Additionally, if I am required to travel to Palm Beach County, Florida for trial, it will jeopardize my employment, due to the amount of days I will be missing from work. Since I don't have any extended family in Australia who could offer assistance, it will create a financial hardship for me.

Butler objected to the motion.

After a hearing, the trial court granted the State's motion, finding: (1) there was an important state interest because the allegations involved molestation of a minor; (2) it was a delayed prosecution case; (3) the Victim's testimony was crucial; (4) she could not be compelled to testify; (5) her financial hardship "in and of itself is [not] sufficient to ... satisfy the requirements of satellite testimony"; (6) but the fact that her ability to return to Australia would be in question was "a sufficient circumstance to allow the satellite testimony, along with the other factors."

During a break in the trial, the Victim was connected via the satellite transmission. Since Butler did not have the chance to depose the Victim pretrial, the trial court allowed Butler's counsel the opportunity to speak to her off-record outside of the jury's presence before she testified. After the conversation, Butler renewed his objection to the satellite testimony because the Victim stated during the off-record conversation that she had been approved for a return visa to Australia after her affidavit was submitted by the State and the motion for her testimony by satellite transmission was granted, but that this was months before the trial started. Butler argued that, since the lack of return visa was the main reason that the trial court granted the State's motion, that basis was no longer a valid reason to deny his right of confrontation. Butler also moved for a continuance to allow the State to produce the Victim to testify in person. The trial court asked the State to speak to the Victim, to see if she would voluntarily travel to Florida to testify. The Victim stated she would not travel to Florida to testify because it would interfere with her job and would be emotionally difficult.

The trial court overruled Butler's objection. After again stating that the Victim's financial concerns were not considered as part of its ruling, the trial court reasoned that although the Victim cleared up the visa issue, she made it clear that she refused to come to Florida to testify, and the trial court did not know of any way it or the State could compel her to come and testify. Additionally, the trial court concluded that the same compelling state interests continued to be present.

The Victim subsequently testified by satellite transmission about the inappropriate sexual contact by Butler, which began when she was around four or five years old. After her testimony, Butler renewed his objection, and the trial court further explained its reasoning for overruling his objection:

Economics is not the basis of my decision. It's just her unequivocal refusal to appear voluntarily and the State's inability to compel a resident of a foreign country to come here live. That's the basis of my ruling.

Additionally, the State presented two Williams rule witnesses, who testified to inappropriate sexual contact by Butler when they were younger than ten.

Other witnesses testified to establish the reason for Butler's delayed arrest. An investigator from Oklahoma testified that when the Victim reported Butler in 1998, she began an investigation, and questioned Butler about the allegations during an interview. She obtained a warrant for Butler's arrest three days after the interview, but when she made efforts to locate Butler in order to execute the warrant, over the span of "a couple months," "[h]e was gone."

An owner of a magazine testified that he employed Butler as a freelance writer under the pen name of "Christopher Lott." Because Butler was working for the magazine as an independent contractor, the owner needed him to fill out a 1099 tax form. The owner had to ask Butler three or four times for his real name and social security number to issue the 1099 form. When asked to describe Butler's behavior when asked his real name and social security number, the owner said that Butler was "elusive," "he appear[ed] nervous," and that "[i]t took a few minutes to actually get the name out, you know[.]" Butler's evasiveness prompted the owner to contact a law enforcement officer he knew and to pass on the information about the true identity of "Christopher Lott." The owner's contact with law enforcement led to Butler's arrest in 2009, almost eleven years after the Oklahoma investigator had obtained a warrant for his arrest.

The jury found Butler guilty as charged in the information. After the judgment and sentence were entered, Butler gave notice of appeal.

Appellate Analysis

"In considering a trial court's ruling on admissibility of evidence over an objection based on the Confrontation Clause, our standard of review is de novo ." McWatters v. State , 36 So.3d 613, 637 (Fla. 2010) (quoting Milton v. State , 993 So.2d 1047, 1048 (Fla. 1st DCA 2008) ).

Butler contends that the trial court erred in allowing the Victim to testify by satellite live-streaming video transmission, in lieu of physically appearing in court to testify, and denied him his rights under the Sixth Amendment Confrontation Clause. "The United States Supreme Court has 'emphasized that the Confrontation Clause reflects a preference for face-to-face confrontation at trial[.]' " Perez v. State , 536 So.2d 206, 208 (Fla. 1988) (quoting Ohio v. Roberts , 448 U.S. 56, 63, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) ).

The main United States Supreme Court case addressing the Confrontation Clause in the context of video testimony is Maryland v. Craig , 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). There, the defendant was charged with multiple counts, including sexual abuse offenses, all naming a six-year-old child as the victim. Id. at 840, 110 S.Ct. 3157. Prior to trial, the state sought to allow the victim to testify via a one-way closed circuit television, pursuant to a Maryland statute which allowed such for a child witness who was the alleged victim of child abuse. Id. at 840-41, 110 S.Ct. 3157. The trial court allowed the video testimony, and the defendant appealed the ruling asserting rights under the Confrontation Clause. Id. at 842-43, 110 S.Ct. 3157.

The Supreme Court explained that "we have never insisted on an actual face-to-face encounter at trial in every instance in which testimony is admitted against a defendant". Id. at 847, 110 S.Ct. 3157. The Court observed:

[O]ur precedents establish that "the Confrontation Clause reflects a preference for face-to-face confrontation at trial," a preference that "must occasionally give way to considerations of public policy and the necessities of the case."

Id. at 849, 110 S.Ct. 3157 (citations omitted). Applying these precedents, the Court held

[T]hat where necessary to protect a child witness from trauma that would be caused by testifying in the physical presence of the defendant, at least where such trauma would impair the child's ability to communicate, the Confrontation Clause does not prohibit use of a procedure that, despite the absence of face-to-face confrontation, ensures the reliability of the evidence by subjecting it to rigorous adversarial testing and thereby preserves the essence of effective confrontation.

Id. at 857, 110 S.Ct. 3157.

Relying heavily on Craig , the Florida Supreme Court addressed the issue of satellite testimony in Harrell v. State , 709 So.2d 1364 (Fla. 1998). There, a couple visiting Florida were victims of a robbery before flying home to Argentina. Id. at 1366-67. Before trial, the State sought to introduce the couple's testimony via satellite, arguing that medium "was necessary because the victims were unable to be physically present in the courtroom, both because of the distance between the United States and Argentina and because of health problems that [one of the couple] was experiencing." Id. at 1367. The Third District upheld the procedure, but certified a question to our supreme court. Id. Our supreme court framed the issues on appeal to be "whether or not testimony via satellite in a criminal case violates the Confrontation Clause and, if so, whether the satellite procedure constitutes a permissible exception." Id.

The Harrell court explained that "[a]lthough the Confrontation Clause guarantees a criminal defendant the right to physically confront accusers, this right is not absolute. There are certain exceptions where a defendant's right to face-to-face confrontation will give way to 'considerations of public policy and the necessities of the case.' " Id. at 1368 (quoting Craig , 497 U.S. at 849-51, 110 S.Ct. 3157 ). "However, such exceptions are only permitted when the reliability of the testimony is otherwise assured." Id. The court stated that reliability can be found through three elements:

(1) that the witness will give the testimony under oath, impressing upon the witness the seriousness of the matter and protecting against a lie by the possibility of penalty of perjury, (2) that the witness will be subject to cross-examination, and (3) that the jury will have the chance to observe the demeanor of the witness, which aids the jury in assessing credibility.

Id. The court explained that the satellite testimony was not the equivalent of a face-to-face confrontation, and that "the satellite procedure can only be approved as an exception to the Confrontation Clause." Id. at 1369. Therefore, "the procedure must (1) be justified, on a case-specific finding, based on important state interests, public policies, or necessities of the case and (2) must satisfy the other three elements of confrontation-oath, cross-examination, and observation of the witness's demeanor." Id.

Regarding the specific facts of the case, the Harrell court stated that there were public policy reasons to justify the satellite testimony, where: (1) the witnesses lived beyond the subpoena power of the court; (2) one of the witnesses was in poor health and could not make the trip; and (3) the witnesses "were absolutely essential to this case" and "there is an important state interest in resolving criminal matters in a manner which is both expeditious and just." Id. at 1369-70.

We construe Harrell to establish important factors to be considered by the trial court in determining whether an exception to a defendant's rights under the Confrontation Clause will allow use of satellite live-streaming video testimony by a witness. We discuss those factors with regards to the facts of this case.

State Interests, Public Policies, or Necessities

This factor appears to be the primary focus of disagreement in this case.

Both parties, as did the trial court, rely on United States v. Yates , 438 F.3d 1307 (11th Cir. 2006), for their positions. In Yates , two defendants were charged with mail fraud, conspiracy to defraud the United States, conspiracy to commit money laundering, and prescription drug offenses arising out of their involvement in an internet pharmacy. Id. at 1309-10. Before trial, the government filed a motion to allow two witnesses from Australia to testify via two-way video. Id. at 1310. In support of the motion, the government argued that the witnesses were "essential" and the use of teleconference facilities for their testimony was necessary because they were beyond the government's subpoena powers. Id. The government asserted both witnesses were willing to testify at trial via video teleconference, but they were not willing to travel to the United States. Id. The district court granted the government's motion, finding that the witnesses were unwilling to travel to the United States, the government asserted the important public policies of crucial evidence and an interest in expeditiously resolving the case, and that the defendants' confrontation rights were not violated, since the video was two-way. Id.

On appeal, the Eleventh Circuit found that the trial court erred in allowing the satellite testimony. Id. at 1316. The court construed Craig to generally require an evidentiary hearing to determine whether the denial of physical, face-to-face confrontation at trial is necessary to further an important public policy and whether the reliability of the testimony is otherwise assured. Id. at 1315. The Eleventh Circuit determined the district court erred by not taking evidence to make the required determinations, but instead relying on the Government's assertions regarding the determinative factors. Id.

The court held that "under the circumstances of this case ... the prosecutor's need for the video conference testimony to make a case and to expeditiously resolve it are not the type of public policies that are important enough to outweigh the Defendant's rights to confront their accusers face-to-face." Id. at 1316. Additionally:

The district court made no case-specific findings of fact that would support a conclusion that this case is different from any other criminal prosecution in which the Government would find it convenient to present testimony by two-way video conference. All criminal prosecutions include at least some evidence crucial to the Government's case, and there is no doubt that many criminal cases could be more expeditiously resolved were it unnecessary for witnesses to appear at trial. If we were to approve introduction of testimony in this manner, on this record, every prosecutor wishing to present testimony from a witness overseas would argue that providing crucial prosecution evidence and resolving the case expeditiously are important public policies that support the admission of testimony by two-way video conference.

Id. " Craig requires that furtherance of the important public policy make[s] it necessary to deny the defendant his right to a physical face-to-face confrontation." Id.

Butler makes no argument that the trial court erred when it initially allowed the satellite testimony, since the Victim did not have the proper government authorization at the time to travel to Florida and return to Australia. Instead, Butler argues that the trial court should not have allowed the satellite testimony after the Victim stated that she obtained the proper visa authorization a few months before trial. Butler argues that there was no important interest or public policy in this case to supplant his right of confrontation, and similar to Yates , the Victim simply refused to testify.

We agree with the State that the trial court properly applied Yates and Craig . The trial court did not simply conclude that the use of satellite live-streaming video testimony was justified because it would be more convenient or would expedite the case or financially assist the victim. Instead, the trial court found that the important policy considerations were that the State has an interest in prosecuting alleged child sex offenders and that the Victim was beyond the subpoena power of the court and refused to travel to testify.

In Harrell , the factors that supported our supreme court's determination that video testimony was appropriate were: (1) the witnesses lived beyond the subpoena power of the court; (2) one of the witnesses was in poor health and could not make the trip; and (3) the witnesses "were absolutely essential to this case" and "there is an important state interest in resolving criminal matters in a manner which is both expeditious and just." Harrell , 709 So.2d at 1369-70. Here, the factors that support the use of satellite live-streaming video testimony were: (1) the witness lived beyond the subpoena power of the court; (2) there is a state interest in prosecuting child sex offenders; and (3) the Victim was essential to the case. Just as health was considered as a sufficient factor in Harrell , courts have also held that the type of case is a relevant factor. See, e.g., State ex rel. Montgomery v. Kemp , 239 Ariz. 332, 371 P.3d 660, 663 (2016) (finding a similar "accommodation is necessary to further two important public policies: protecting the rights of a vulnerable alleged sexual assault victim who has been ruled outside Arizona's subpoena power and preserving society's interest in prosecuting accused sexual offenders").

We agree that the prosecution of a child sexual offender is the type of limited cases which may justify an exception to a defendant's rights under the Confrontation Clause. In our view, the state interest in prosecuting child sex offenders is sufficiently comparable to the factor that a witness is in poor health and unable to travel to satisfy Harrell . Our holding on this point is limited to prosecutions of child sexual offenders in which the victim is beyond the reach of a subpoena and unwilling to travel to testify. Thus, we conclude the state interests, public policies, or necessities requirement of Harrell was met in this case.

Adequate Oath Requirement

Butler also argues that the adequate oath requirement was not met because the Victim was not subject to prosecution in Australia for perjury. The Victim was put under oath by a public notary in Australia. However, "an oath is only effective if the witness can be subjected to prosecution for perjury upon making a knowingly false statement." Harrell , 709 So.2d at 1371.

To ensure that the possibility of perjury is not an empty threat for those witnesses that testify via satellite from outside the United States, it must be established that there exists an extradition treaty between the witness's country and the United States, and that such a treaty permits extradition for the crime of perjury.

Id.

Butler acknowledges there is a treaty between the United States and Australia addressing extradition for the crime of perjury. It "covers an offence 'punishable under the laws of both Contracting Parties by deprivation of liberty of more than one year, or by a more severe penalty.' "

Matter of Extradition of Hamilton-Byrne , 831 F.Supp. 287, 289 (S.D.N.Y. 1993) (quoting S. Treaty Doc . 102-23, 102d Cong, 2d Sess (1992) ). In Florida, "the offense of perjury in an official proceeding is a third-degree felony and is punishable by up to five years in prison." Harrell , 709 So.2d at 1371 ; see also § 837.02(1), Fla. Stat. (2017) ("Except as provided in subsection (2), whoever makes a false statement, which he or she does not believe to be true, under oath in an official proceeding in regard to any material matter, commits a felony of the third degree[.]"); § 775.082(3)(e), Fla. Stat. (2017) ("For a felony of the third degree, [a person who has been convicted may be punished] by a term of imprisonment not exceeding 5 years."). Therefore, perjury is a qualifying offense for the extradition treaty and Butler's argument has no merit.

Cross-Examination and Observation Requirement

We determine the cross-examination and observation requirements were met in this case as well. Butler was able to cross-examine the Victim during the trial, and there is no suggestion that the jury could not see the Victim, and vice versa.

Conclusion

Having concluded that the trial court properly analyzed the policy factors, elements of reliability, and principles of law in allowing an exception to Butler's rights under the Confrontation Clause and permitting testimony by satellite transmission, we affirm the judgments and sentences imposed against Butler by the trial court.

Affirmed.

Gross and Klingensmith, JJ., concur.

      Williams v. State , 110 So.2d 654 (Fla. 1959).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    K.R., a Child, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-2858
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 5, 2018
    Robert Wesley, Public Defender and Cody Jordan, Assistant Public Defender, Orlando, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the July 31, 2018, judgments and sentences rendered in Case Nos. 16-CJ-003430-A-OR and 16-CJ-003484-A-OR, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, TORPY, and HARRIS, JJ., concur.


text:
    Anthony Nell WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1992
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 2, 2018
    James S. Purdy, Public Defender, and Rocco Joseph Carbone, III, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Michel , 43 Fla. L. Weekly S298 (Fla. July 12, 2018).

COHEN, C.J., LAMBERT and HARRIS, JJ., concur.


text:
    Armando J. DOCTOR, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-2565
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 5, 2018
    Robert Wesley, Public Defender, and Javier Chavez, Assistant Public Defender, Orlando, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the May 4, 2018, judgment and sentence rendered in Case No. 2017-CF-1731-O, in the Ninth Judicial Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

TORPY, BERGER and EISNAUGLE, JJ., concur.


text:
    Albert L. HAMPTON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-770
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 5, 2018
    James S. Purdy, Public Defender, and George D. Burden, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

In this Anders appeal, we affirm Appellant's sentence of fifteen years for conspiracy to traffic in cocaine. However, we remand for entry of a corrected written sentence that conforms to the trial court's oral pronouncement of forty-one days of jail credit. Turner v. State, 770 So.2d 1288 (Fla. 1st DCA 2000).

AFFIRMED AND REMANDED with instructions.

LAMBERT, EDWARDS and GROSSHANS, JJ., concur.

      Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Kristy Ann EVANS, Appellant, v. David Edward MILLER, Appellee.
    Case No. 5D17-4090
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 12, 2018
    Kristy Ann Evans, Fort Lauderdale, pro se.
    Linda A. Wagner, of Middleton & Middleton, P.A., Melrose, for Appellee.
   PER CURIAM.

The former wife, Kristy Ann Evans, appeals the trial court's order granting the former husband's, David Edward Miller, supplemental petition to modify timesharing, the parenting plan, and child support. The former wife argues that we "should revisit the issues" to determine whether the trial court properly granted the former husband's supplemental petition.

Because we do not have a transcript of the proceedings below, we cannot address the former wife's contention that the trial court's decision on the issues is without evidentiary support. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979). Thus, we must affirm unless the former wife can demonstrate that "fundamental error appears on the face of the appealed order."

Murphy v. Murphy, 948 So.2d 864, 865 (Fla. 5th DCA 2007). The former wife has made no such showing in this case.

AFFIRMED.

ORFINGER, EVANDER and WALLIS, JJ., concur.


author: Per Curiam.

text:
    Ronald WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2683
    District Court of Appeal of Florida, First District.
    October 5, 2018
    Ronald Williams, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

B.L. Thomas, C.J., and Kelsey and Winokur, JJ., concur.


text:
    BAYFRONT HMA MEDICAL CENTER, LLC d/b/a Bayfront Health - St. Petersburg, Appellant, v. STATE of Florida, Department of Health, and Galencare, Inc., d/b/a Northside Hospital, Appellees.
    No. 1D17-3171
    District Court of Appeal of Florida, First District.
    October 15, 2018
    Geoffrey D. Smith, Timothy B. Elliott, and Corinne T. Porcher of Smith & Associates, Tallahassee, for Appellant.
    Stephen A. Ecenia, David M. Maloney, and Gabriel F. V. Warren of Rutledge Ecenia, P.A., Tallahassee, for Appellee Galencare, Inc., d/b/a Northside Hospital.
    Jason Gonzalez and Amber Stoner of Shutts & Bowen LLP, Tallahassee, for Appellee Florida Department of Health.
   Per Curiam.

The recent convergence of this Court's decision in State, Department of Health v. Bayfront HMA Medical Center, LLC , 236 So.3d 466 (Fla. 1st DCA 2018), and chapter 2018-66, Laws of Florida, has rendered the instant appeal moot and subject to dismissal. See Montgomery v. Dep't of Health & Rehab. Servs. , 468 So.2d 1014, 1016-17 (Fla. 1st DCA 1985) (explaining that "[a] case becomes moot, for purposes of appeal, where, by a change of circumstances prior to the appellate decision, an intervening event makes it impossible for the court to grant a party any effectual relief," and emphasizing that "[i]t is the function of a judicial tribunal to decide actual controversies by a judgment which can be carried into effect, and not to give opinions on moot questions, or to declare principles or rules of law which cannot affect the matter in issue").

DISMISSED .

Wolf, Bilbrey, and Jay, JJ., concur.


text:
    Kyle Ray HIMES, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3147
    District Court of Appeal of Florida, First District.
    October 15, 2018
    Andy Thomas, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Bryan Jordan, Senior Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant, Kyle Ray Himes, appeals from an order summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, Appellant asserted several grounds for relief based on newly discovered evidence. The lower court denied all such claims as successive in its order rendered on July 17, 2017. However, because the lower court did not include attachments of record evidence which conclusively refuted Appellant's claims, we reverse.

"To uphold the trial court's summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record." Peede v. State , 748 So.2d 253, 257 (Fla. 1999). "On appeal from the denial of relief, unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing or other appropriate relief." Fla. R. App. P. 9.141(b)(2)(D).

Here, Appellant's claims appear to be facially valid, and they are not conclusively refuted by the record. In fact, the State concedes error. We therefore reverse the lower court's summary denial of Appellant's claims of newly discovered evidence and remand for further proceedings.

REVERSED and REMANDED .

Makar, Osterhaus, and Jay, JJ., concur.


text:
    ACE AMERICAN INSURANCE COMPANY, Appellant, v. Shawn LYNCH, Appellee.
    No. 1D18-3076
    District Court of Appeal of Florida, First District.
    October 16, 2018
    L. Johnson Sarber, III, of Carr Allison, Jacksonville, for Appellant.
    George T. Reeves of Davis, Schnitker, Reeves & Browning, P.A., Madison; Stephen A. Smith, Lake City; and Duane E. Thomas, Lake City, for Appellee.
   Per Curiam.

Appellee's motion to dismiss filed July 26, 2018, is granted and the appeal is hereby dismissed.

Lewis, Wetherell, and Winokur, JJ., concur.


text:
    Dago Bruce HALE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1534
    District Court of Appeal of Florida, First District.
    October 15, 2018
    Anne M. Rush, Alachua, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Amanda Stokes, Senior Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of prohibition is denied on the merits. See Amato v. Winn Dixie Stores/Sedgwick James , 810 So.2d 979 (Fla. 1st DCA 2002) (observing that whether a motion to disqualify was timely filed generally will involve a factual determination, and thus, is reviewed to determine whether competent, substantial evidence supports the trial court's ruling).

Roberts, Rowe, and Ray, JJ., concur.


text:
    Maria Isabel GIRALDO and Juan Gonzalo Villa, as Co-Personal Representatives of the Estate of Juan L. Villa, Appellants, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 1D16-392
    District Court of Appeal of Florida, First District.
    October 18, 2018
    Floyd Faglie of Staunton & Faglie, PL, Monticello; Celene H. Humphries and Maegen Peek Luka of Brannock & Humphries, Tampa, for Appellants.
    Pamela Jo Bondi, Attorney General; Elizabeth Teegen, Assistant Attorney General, Tallahassee; and Alexander R. Boler, Tallahassee, for Appellee.
    ON REMAND FROM THE FLORIDA SUPREME COURT
   Per Curiam.

The Florida Supreme Court has directed us to remand this case to the administrative law judge with direction "to reduce AHCA's lien amount in this case to $13,881.79." Giraldo v. AHCA , 248 So.3d 53, 56 (Fla. 2018). We hereby do so.

Lewis, Rowe, and Kelsey, JJ., concur.


text:
    Ralph MONROE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D16-4672
    District Court of Appeal of Florida, First District.
    October 18, 2018
    Michael Ufferman, Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Tallahassee Bureau Chief, Criminal Appeals, Tallahassee, for Respondent.
    ON REMAND FROM THE FLORIDA SUPREME COURT
   Per Curiam.

This case is on remand from the Florida Supreme Court which quashed our prior decision in this case and directed reconsideration of this case in view of its recent decision in Andrews v. State , 243 So.3d 899 (Fla. 2018).

In Andrews , the Florida Supreme Court held that an indigent defendant who is represented by private counsel proceeding pro bono is "entitled to file motions pertaining to the appointment and costs of experts, mitigation specialists, and investigators ex parte and under seal, with service to the Justice Administrative Commission and notice to the State Attorney's Office, and to have any hearing on such motion ex parte, with only the defendant and the Commission present." Id. at 902.

Accordingly, the petition for a writ of certiorari is granted. This cause is remanded to the trial court with the directions that Petitioner Monroe be allowed to file motions for appointment of experts and for approval of costs ex parte and under seal with service to the Justice Administration and notice of such filings to the Office of the Attorney General and that any hearing on an ex parte motion be heard with only the Petitioner and the Commission in attendance.

Petition granted, and the cause remanded with directions.

Lewis, Roberts, and Bilbrey, JJ., concur.


author: PER CURIAM:

text:
    STATE of Louisiana v. Jason M. REEVES
    No. 2018-KP-0270
    Supreme Court of Louisiana.
    October 15, 2018
    ON SUPERVISORY WRITS TO THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU
   PER CURIAM:

Denied. In 2004, a Calcasieu Parish jury found relator, Jason M. Reeves, guilty of the first degree murder of four-year-old M.J.T. At trial, the state presented evidence that Reeves abducted, raped, and murdered M.J.T. on the afternoon of November 12, 2001. The state's evidence linking Reeves to the murder included semen matching Reeves's DNA profile recovered from M.J.T.'s anus, fibers and dog hairs linking the victim's clothing to Reeves's vehicle, man-trailing dog evidence which tracked Reeves's scent to critical areas associated with the crime, witness statements placing Reeves and his vehicle at the trailer park from which M.J.T. was abducted and the cemetery near which her body was found, and a confession.

After finding Reeves guilty as charged, jurors unanimously agreed to impose a sentence of death in light of the aggravating circumstances that Reeves was engaged in the perpetration or attempted perpetration of aggravated rape at the time of the murder; that the victim was under the age of 12 years; and that the offense was committed in an especially heinous, atrocious, or cruel manner. The trial court sentenced Reeves to death by lethal injection in accord with the jury's determination. This Court affirmed the conviction and sentence. State v. Reeves , 06-2419 (La. 5/5/09), 11 So.3d 1031, cert. denied , 558 U.S. 1031, 130 S.Ct. 637, 175 L.Ed.2d 490 (2009).

In 2009, Reeves filed a pro se "shell" application for post-conviction relief. Through counsel, Reeves subsequently amended and supplemented his original application to allege some 18 claims for relief. Two of those claims have already been fully litigated. See State ex rel. Reeves v. Vannoy , 16-2199 (La. 1/23/17), 209 So.3d 87 (finding no abuse of the district court's discretion in denying Reeves's request to further supplement his application for post-conviction relief with a claim under Penry v. Lynaugh , 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) ); State v. Reeves , 15-1668 (La. 4/4/16), 188 So.3d 257 (denying writs because Reeves failed to prove by a preponderance of the evidence that he suffers from a mental disability that renders him ineligible for execution). The district court denied three other claims on procedural grounds and dismissed four others without prejudice.

Thereafter, the district court conducted an evidentiary hearing to address the remaining nine claims, all of which urged ineffective assistance of trial counsel. It heard testimony from Kerry Cuccia (lead defense counsel from Reeves's first trial), now-Judge Ronald Ware (lead defense counsel from Reeves's second trial), Rick Bryant (the district attorney who prosecuted Reeves in both trials), and Cynthia Killingsworth (an assistant district attorney who aided Bryant in both trials). The district court also considered a deposition from Charles St. Dizier, a member of Ware's team in the second trial whose primary responsibility was in the penalty phase. After consideration of this evidence, the district court denied each claim, finding them meritless.

Reeves now assigns eight errors and seeks review of the district court's denial of 10 of his post-conviction claims for relief (one procedural ruling and nine merits rulings). For the following reasons, the district court reached the correct result in denying the application for post-conviction relief.

In State v. Lee , 14-2374, pp. 8-9 (La. 9/18/15), 181 So.3d 631, 638, another post-conviction capital case, we explained that an "attempt to re-litigate a claim that has been previously disposed of, by couching it as a post-conviction ineffective assistance of counsel claim, [should be] generally unavailing." As we found in Lee , Reeves's post-conviction ineffective assistance of counsel claims predicated upon issues which were in fact resolved on appeal are not truly new claims. The district court correctly dismissed Reeves's first claim-that Ware and his team suffered from "forced ineffectiveness" as a result of their appointment with just over six months to prepare for trial-under La.C.Cr.P. art. 930.4(A). On direct review, this Court devoted considerable attention to the propriety of this substitution of counsel under the circumstances of this case, and we expressly addressed the contention that the trial court erred in failing to grant a continuance. See Reeves , 06-2419, pp. 12-74, 11 So.3d at 1042-79. Reeves's standalone "forced ineffectiveness" claim finds itself predicated upon these same issues and is barred from review.

Next, Reeves argues that Ware rendered ineffective assistance by failing to utilize three experts called by Cuccia in the first trial: 1) a DNA expert to testify that the sample recovered from the victim's anus was "too pristine" given the circumstances of where and when her body was located; 2) a fingerprint expert who purportedly would have testified that the latent prints found on the victim's arm and inner thigh could exclude Reeves as a source; and 3) a traffic engineer to cast doubt upon the state's proposed timeline of events.

Under the standard for ineffective assistance of counsel set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a reviewing court must reverse a conviction if the petitioner establishes (1) that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) that counsel's inadequate performance prejudiced defendant to the extent that the trial was rendered unfair and the verdict suspect. Whether to call a witness is within the ambit of trial strategy. See State v. Johnson , 619 So.2d 1102, 1109 (La. App. 4 Cir. 1993).

Ware explicitly testified at the evidentiary hearing that he did not have a strategic reason for opting not to call any of these witnesses. However, he did not testify that he was unaware of these witnesses because of any lack of preparation; instead, Ware stated he felt "certain" and "sure" that he reviewed these witnesses' testimony from the first trial. He cited no funding issues with respect to securing the presence of any of these witnesses, but in one case-concerning the fingerprint expert-he explained that there might have been trouble locating the witness.

It is simply impossible to determine from the evidence elicited at the evidentiary hearing why Ware did not call at least two of these proposed witnesses. "Judicial scrutiny of counsel's performance must be highly deferential.... Even the best criminal defense attorneys would not defend a particular client in the same way." Strickland , 466 U.S. at 689, 104 S.Ct. at 2065. That Ware proceeded differently than did Cuccia is not itself indicative of deficient performance, especially where Ware's testimony lends little insight into exactly why these witnesses were not called.

Even assuming deficient performance, however, Reeves has failed to prove resultant prejudice. Though these three witnesses may have cast doubt upon certain portions of the state's case, the evidence introduced at the post-conviction proceedings does not rise to the level of proving that the omission of this testimony at the second trial "more likely than not altered the outcome in the case." See Strickland , 466 U.S. at 693, 104 S.Ct. at 2068. In addition to the evidence these witnesses' testimony may have undermined, the state also presented fiber evidence, man-trailing dog evidence, eyewitness identifications, and Reeves's confession. This claim lacks merit.

Next, Reeves asserts that Ware failed to take adequate steps to challenge or otherwise confront the state's evidence from the man-trailing dog handler, including securing a defense expert to attack the dog's reliability and challenging the dog's qualifications.

The man-trailing dog and its handler were the subject of an assigned error on direct appeal. At that time, Reeves argued that the trial court erred in failing to hold a Daubert hearing concerning the dog and handler's expertise. This Court explained that Ware objected both pretrial and at trial to the introduction of this evidence, and:

Thereafter, Mark Holmes, a detective with the Port Arthur, Texas Police Department, and the K-9 handler for the man-trailing dog which participated in the investigation of this matter, "Bo," was examined in the presence of the jury on his own training, certification, and experience, as well as on his dog's pedigree, training and experience. Only after this foundation was laid did the state elicit testimony regarding their involvement in the investigation.

Reeves , 06-2419, p. 110 (unpub'd appx.).

Thus, the dog and handler's qualifications were probed before the jury, even if Ware himself might not have "challenged" them. While Ware expressed some regret at the evidentiary hearing about how he handled the cross-examination of this witness, counsel's choices of which questions to ask on cross-examination fall well within the ambit of trial strategy. See , e.g. , State v. Brooks , 94-2438, pp. 6-7 (La. 10/16/95), 661 So.2d 1333, 1337. Although Ware could not articulate at the evidentiary hearing why he failed to ask certain questions of the dog handler, Reeves's current claims rely improperly upon the "distorting effects of hindsight" cautioned against in Strickland , 466 U.S. at 689, 104 S.Ct. at 2065.

Additionally, though Reeves faults Ware for failing to call a counter-expert, he fails to demonstrate that funding was (or could have been made) available or the nature of that proposed expert's testimony. See La.C.Cr.P. art. 930.2 ; see also Day v. Quarterman , 566 F.3d 527, 538 (5th Cir. 2009) ("[T]o prevail on an ineffective assistance claim based on counsel's failure to call a witness, the petitioner must name the witness, demonstrate that the witness was available to testify and would have done so, set out the content of the witness's proposed testimony, and show that the testimony would have been favorable to a particular defense.").

Finally, even assuming that Reeves had demonstrated some level of deficient performance as to this claim, he nonetheless has failed to demonstrate resultant prejudice. The man-trailing dog evidence was hardly the lynchpin of the state's case, considering that the state also presented DNA evidence, fiber evidence, eyewitness identifications, and a confession. Even were this piece of the state's case to fall, there appears no reasonable probability of a different result in light of the substantial evidence of Reeves's guilt. This claim lacks merit.

Next, Reeves contends that Ware failed to discover and present statements or testimony from three lay witnesses who could have helped to cast reasonable doubt upon the state's case. Two women, Faith Watson and Michelle Mathis, each gave written statements that they had seen a young blonde girl, dressed in purple, running from an Eckerd's drug store on the afternoon of the abduction. Watson's statement indicated that she later saw a picture of the victim on the news and was "almost positive" she was the same girl from the drug store; Mathis's statement indicated she also later saw a picture of the victim on the news and it "was the same little girl" she had seen running from the drug store.

Separately, Calcasieu Parish Sheriff's Office Detective Shannon Daughenbaugh prepared a report indicating that she spoke with Floyd Simmons, a visitor at the victim's trailer park who "said he saw a white male in a truck he had never seen before in the trailer park about a week before [the victim] disappeared." When Daughenbaugh presented Simmons with a photographic lineup containing Reeves's picture, Simmons identified someone else but "was not sure if the person he picked was the person who he had seen in the trailer [park] a week prior."

With respect to the Watson and Mathis statements, Ware testified at the evidentiary hearing that he would have used them if he had been aware of them. However, their value to the defense appears minimal. While both Watson and Mathis indicated that the young girl they saw might have been the victim, they both described her as a blonde; Ware agreed with the state that the victim was a brunette, calling into question the identifications and their utility at trial.

Detective Daughenbaugh's description of Simmons's identification would have been even less helpful to Reeves. According to Detective Daughenbaugh's report, Simmons described seeing an unknown white male in a truck about a week before the victim disappeared. Simmons did not claim to have seen the perpetrator, but someone present in the trailer park well before the victim's abduction.

None of these witness statements gives rise to any logical fault within the state's evidence in support of Reeves's guilt. Their omission did not undermine the verdict rendered in their absence. Strickland , 466 U.S. at 693, 104 S.Ct. at 2068. This claim lacks merit.

Next, Reeves argues that Ware rendered ineffective assistance by failing to ensure that Reeves's videotaped confession was redacted in accordance with the parties' pretrial agreement. The essential nature of this claim was addressed on direct appeal in conjunction with a discussion about whether the trial court erred in denying a motion for mistrial based on the improper introduction of other crimes evidence when the unredacted portion of the videotape was played for the jury. See generally Reeves , 06-2419, pp. 99-104 (unpub'd appx.). In rejecting that claim, the Court explained:

In total, the defense objected to two series of comments which were heard by the jury. One of the instances included comments between a law enforcement officer and Reeves indicating that, after his sister's death, Reeves started to have "problems" with, or started having an attraction toward, little boys and girls. The other set of comments was the interchange during which the defendant stated that he liked to work off-shore because he could easily get rid of the sexual thoughts he had about children and was able to stay out of trouble. These two brief instances of comments in the context of an hour-long videotape, which were so brief as to fail to motivate defense counsel to object, did not prejudice the defendant such that he could not receive a fair trial. We find no abuse of the trial court's discretion in denying the motion for mistrial in this circumstance.
Moreover, the erroneous introduction of other crimes evidence into a trial is subject to harmless error analysis. State v. Johnson , 1994-1379 p. 17-18 (La. 11/27/95), 664 So.2d 94, 101-102. Viewing these two brief statements in the context of the overwhelming evidence of guilt presented by the prosecution, we can state without doubt that the verdict actually rendered in this case was surely unattributable to the error.

Reeves , 06-2419, p. 104 (unpub'd appx.).

The instant claim, couched as a post-conviction ineffective assistance of counsel argument, is essentially an attempt to re-litigate the claim raised on appeal. That roundabout method of attack is prohibited. See La.C.Cr.P. art. 930.4(A) ; see also Lee , 14-2374, pp. 8-9, 181 So.3d at 638. Moreover, even if counsel can be said to have rendered deficient performance by failing to ensure that the videotape was properly redacted, Reeves fails to prove any resultant prejudice. As a result, this claim fails.

Next, Reeves asserts that Ware failed to take adequate steps in urging his Batson objection. He urges that Ware should have drawn direct comparisons between seated white jurors and peremptorily challenged black jurors to make a prima facie showing of purposeful discrimination.

On direct appeal, this Court expressly rejected a claim that the trial court erred in finding no prima facie showing of purposeful racial discrimination:

First, the case itself presented no overt racial overtones. The defendant is white, as was his victim. Second, the trial court properly considered the timing of the defense objection. Although the objection was timely under our law in the sense that a Batson challenge is timely until the entire jury panel has been sworn together, this circumstance contrasts sharply with the situation in other cases where a defense attorney raises an objection immediately after a prospective juror is challenged and gives reasons. Third, the trial judge could and did take into consideration the overall tenor of the voir dire questioning. Our review shows that the prosecution used the same questions throughout its voir dire. There is no indication that any particular prospective jurors were "targeted" for questioning in any way. Fourth, the record shows that the ultimate make-up of the jury which considered this case was composed of five black jurors and seven white jurors. "Although the mere presence of African American jurors does not necessarily defeat a Batson claim, the unanimity requirement of a capital case sentencing recommendation may be considered." State v. Tart , 1993-0772 p. 18 (La. 2/9/96), 672 So.2d 116, 141, cert. denied , 519 U.S. 934, 117 S.Ct. 310, 136 L.Ed.2d 227 (1996). Finally, the trial judge indicated clearly he found no discriminatory intent whatsoever. Here, the trial judge found: "Just numerically the ratio of the existing jury is higher than that of the entire panel, showing that if anything there was a propensity to be more minority-oriented than less minority-oriented." An analysis of the voir dire as a whole convinces us that the trial judge was correct in his determination that no prima facie showing of purposeful racial discrimination was met by the defense in its Batson objection.

Reeves , 06-2419, pp. 98-99 (unpub'd appx.).

Once again, Reeves improperly attempts to re-litigate an issue upon which he has already sought review; this Court has already found no prima facie showing of purposeful racial discrimination. While he now includes arguments that draw comparisons between a single seated white juror (Craig Phillips) and an excused black prospective juror (Ian Joseph), his side-by-side analysis is not persuasive. The comparison cherry-picks between two jurors whose answers were more orthogonal to one another than they were conflicting. Moreover, it does not include the entirety of voir dire, which this Court considered on direct review. In short, Reeves cites no evidence this Court has not already assessed to support this Batson -related ineffective assistance claim. This claim lacks merit.

Next, Reeves contends that penalty-phase counsel St. Dizier failed to discover and present evidence and additional expert witnesses to help explain the effects of his difficult childhood, including the circumstances of his childhood commitment and the history of sexual abuse he suffered.

A defendant at the capital penalty phase is entitled to the assistance of a reasonably competent attorney acting as a diligent, conscientious advocate for his life. State v. Fuller , 454 So.2d 119, 124 (La. 1984) ; State v. Berry , 430 So.2d 1005, 1007 (La. 1983) ; State v. Myles , 389 So.2d 12, 28 (La. 1980) (on reh'g). Thus, counsel's role at capital sentencing resembles his role at the guilt phase in that he must "ensure that the adversarial testing process works to produce a just result ...." Burger v. Kemp , 483 U.S. 776, 788-89, 107 S.Ct. 3114, 3122-26, 97 L.Ed.2d 638 (1987). A finding of ineffective assistance of counsel at the penalty phase requires a showing that counsel failed to undertake "a reasonable investigation [which] would have uncovered mitigating evidence," and that failing to put on the available mitigating evidence "was not a tactical decision but reflects a failure by counsel to advocate for his client's cause," which resulted in "actual prejudice." State v. Hamilton , 92-2639, p. 6 (La. 7/1/97), 699 So.2d 29, 32 (citing State v. Brooks , 94-2438 (La. 10/16/95), 661 So.2d 1333 ; State v. Sanders , 93-0001 (La. 11/30/94), 648 So.2d 1272 ). The ABA Guidelines provide an overview of the scope of counsel's duty to investigate at the penalty phase and provide that counsel explore, inter alia , the defendant's: medical history; family and social history (including physical, sexual or emotional abuse); mental illness and cognitive impairments; and substance abuse. ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (2003).

Reeves attached to St. Dizier's deposition several exhibits that he urges should have been discovered and used in mitigation. These exhibits highlight Reeves's familial history, instances of sexual abuse he suffered (and evidence of which was not presented at trial), and the general conditions of childhood commitment facilities in Louisiana around the time he was housed in one of them. In general, St. Dizier expressed that he would have used all of this evidence in mitigation if he had discovered it in preparing for trial.

On direct appeal this Court explained the available information concerning Reeves's background:

The Uniform Capital Sentence Report ("UCSR") and the Capital Sentence Investigation Report ("CSIR") indicate the defendant, Jason Reeves, is a white male born on January 8, 1975. He was 26 years old at the time of the offense. Defendant is unmarried and has no children or other dependents. He was living with his mother at the time he murdered M.J.T.
Reeves is one of three children born to the on-again, off-again common law union of Judy Ann Doucet and Larry Manuel Reeves. The defendant grew up in the rural community of LeBleu Settlement near Lake Charles and Iowa, Louisiana. Reeves' parents separated for a significant period of time during Reeves' early childhood, during which time his mother married Dennis Mott, whom Reeves' mother described as emotionally abusive to her and her children.
One of Reeves' siblings, Patricia Renee, was killed in a tragic accident in 1986, when Reeves was 9 or 10 years old. His other sibling, Ronald Wayne, is currently serving a life sentence at the state penitentiary for a murder he committed in 1994. Reeves was sexually abused by a friend of the family, George Reed, when he was 14 years old. Reed was charged with the aggravated rape of Reeves, but was allowed to plead guilty to aggravated crime against nature.
Reeves' parents indicated Reeves suffered from headaches and black outs from the time he was a small child but denied any mental health problems. He is of medium intelligence, with an IQ within the 70 to 100 range. Reeves dropped out of school before completing the 7th grade, where he was a below average student academically and a disciplinary problem. He has not obtained a GED. He has no other formal education or job training.
Reeves' past employment history is described in reports generally as "various labor positions" of unknown duration. For an unknown period of time, Reeves worked as a deckhand for an oil field related company. He was working as an insulator for an insulation company at the time he murdered M.J.T.
At trial, the defense presented extensive evidence of Reeves' character and behavioral disorders, both to challenge the validity of the confession and in the penalty phase as mitigation. According to an expert forensic psychologist, Reeves suffers from major depression and mixed personality disorder, with borderline and anti-social personality traits. Another defense expert related that the defendant exhibits emotional instability, volatile interpersonal relationships, anger, mood swings and impulsivity. However, Reeves does not suffer from a mental disease or defect which would prevent him from being able to distinguish right from wrong.
Reeves had a prior criminal history. The UCSR and CSIR relate that Reeves had two juvenile adjudications for burglary, one occurring June 11, 1991, and the other occurring June 17, 1991. On October 10, 1991, he was adjudicated a delinquent and sentenced to four years at a juvenile detention facility. His adult record includes a conviction for indecent behavior with a juvenile, which occurred on January 3, 1996. He was sentenced to four years hard labor, with three years of the sentence suspended. His probation for this offense was revoked on May 5, 1997, when he pleaded guilty to another charge of indecent behavior with a juvenile, with this offense occurring on March 29, 1997. He was sentenced to four years and was released from incarceration on March 29, 2001, after serving the entirety of his sentence. The CSIR shows that at the time the report was completed, Reeves had two pending charges for obscenity, as well as simple battery and criminal trespass. As previously stated within this opinion, Reeves' conviction for attempted simple escape was reversed on appeal.

Reeves , 06-2419, pp. 87-89, 11 So.3d at 1087-88.

At trial, St. Dizier elicited testimony from a professor of criminal justice regarding the rarity of escapes from Angola and the unlikelihood of an offender serving a life sentence receiving a pardon or commutation. One of Reeves's penalty-phase experts testified that he had dysfunction in the portions of his brain controlling information processing and impulse control, and he suffered from post-traumatic stress disorder. A second penalty phase expert agreed with the diagnosis of PTSD. The jury heard testimony from Reeves's brother Ronald, mother, and middle school principal, who together painted a picture of his troubled childhood, including sexual abuse, distant parents, and a problematic family life.

In assessing a penalty-phase ineffective assistance of counsel claim, a court should first "determine whether a reasonable investigation would have uncovered mitigating evidence to be put to the jury in the penalty phase of the trial." State ex rel. Busby v. Butler , 538 So.2d 164, 169 (La. 1988). Nothing in the post-conviction proceedings sheds light upon exactly what steps post-conviction counsel undertook to obtain the information that Reeves now asserts St. Dizier should have used. Moreover, as St. Dizier acknowledged at the deposition, Reeves did not disclose to him any of the additional sexual abuse revealed in these newly discovered documents, meaning that the best potential source of this information proved most unhelpful to his own defense. As a result, it is not clear that St. Dizier failed to engage in a reasonable mitigation investigation.

Even if one assumes that Reeves has made such a showing, however, and that St. Dizier would have used this information if he had it, Reeves still must have suffered "actual prejudice due to the ineffectiveness of his counsel before relief will be granted." Busby , 538 So.2d at 169. He has not made the required showing.

The jury found three applicable aggravating circumstances in this case: 1) that the offender was engaged in the perpetration or attempted perpetration of aggravated rape at the time of the murder; 2) that the victim was under the age of 12 years; and 3) that the offense was committed in an especially heinous, atrocious, or cruel manner. Reeves , 06-2419, pp. 81-85, 11 So.3d at 1084-86. As to the third aggravating factor, we noted:

The 4 year old victim was stabbed 16 times. The victim's hands showed defensive wounds, revealing her awareness of the assault, and her attempt to protect herself. The victim's neck was cut for two-thirds of its entire circumference. M.J.T.'s legs were scraped, showing she had been dragged. Although she sustained multiple stab wounds in the heart, the coroner testified that she survived for some time despite this incredible trauma.

Id. , 06-2419, p. 84, 11 So.3d at 1085.

The sentencing hearing shall focus on the circumstances of the offense, the character and propensities of the offender, and the victim, and the impact that the crime has had on the victim, family members, friends, and associates. La.C.Cr.P. art. 905.2(A). That Reeves suffered from a difficult childhood was undoubtedly relevant to his character and propensities. The jury heard a great deal of evidence that regard, but it still unanimously recommended a death sentence. While the additional evidence Reeves now points to might have further supported his case for mitigation, it is unlikely that it would have outweighed the particularly brutal and heinous circumstances of the offense. This claim lacks merit.

Finally, Reeves shows no grounds for relief based on his argument that the cumulative effect of the claimed errors rendered the proceedings fundamentally unfair. Although we have previously reviewed cumulative error arguments, we have never endorsed them. See, e.g., State v. Strickland , 94-0025, pp. 51-52 (La. 11/1/96), 683 So.2d 218, 239 ; State v. Taylor , 93-2201, (La. 2/28/96), 669 So.2d 364 (unpub'd appx.); State v. Tart , 93-0772, p. 55 (La. 2/9/96), 672 So.2d 116, 164 ; State v. Copeland , 530 So.2d 526, 544-45 (La. 1988) (citing State v. Graham , 422 So.2d 123, 137 (La. 1982) ). Given Reeves's failure to show prejudice as a result of any of the claimed errors, he cannot show that their combined effect entitles him to relief. See, e.g., Mullen v. Blackburn , 808 F.2d 1143, 1147 (5th Cir. 1987) (rejecting cumulative error claim, finding that "twenty times zero equals zero").

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. 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.

      Reeves's first trial ended in a mistrial when the jury could not reach a unanimous verdict.

      Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

      Reeves believes that Joseph was objectively a more ideal juror for the state because: 1) he indicated in his jury questionnaire that he would "always" vote for the death penalty in the case of a rape and murder of a child (during voir dire he stated that he could keep an open mind, but was "leaning toward that"); 2) he only believed a confession would not be a reliable indicator of guilt "if somebody confessed something to protect somebody else"; and 3) believed DNA evidence was "pretty solid" and "reliable." See Appl. pp. 23-24.
      In contrast, Phillips apparently indicated that: 1) confessions were not always reliable evidence of guilt and that a person's state of mind and the experience of the interrogators could have an effect; 2) confessions should be evaluated critically if other witnesses' statements conflict with them; 3) some children are "never really given a chance," which can "be the cause of their future actions"; 4) he had a skepticism of law enforcement (though he was later rehabilitated to say that he did not have reservations judging witnesses on their own merits). Appl. pp. 22-23.


author: PER CURIAM

text:
    BIG EASY TATTOO & CO., INC., Fleur Delicious Couture, LLC, Louisiana Gold Connection, LLC, and Audio Visual Services, Inc. v. QUARTER HOLDINGS, LLC, Golden Perfume, Inc., and Sweet Sticky Stuff, LLC
    NO. 2018-CC-0737
    Supreme Court of Louisiana.
    October 15, 2018
   PER CURIAM

Granted. Considering the unique facts presented, we find the district court erred in granting the exception of non joinder. The fault of all persons responsible, whether parties or non-parties, may be addressed pursuant to La. Civ. Code arts. 2323 and 2324. Accordingly, the judgment of the district court is reversed, and the case remanded to the district court for further proceedings.


text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-274298
    NO. 2018-BA-1656
    Supreme Court of Louisiana.
    October 12, 2018
    BAR ADMISSIONS PROCEEDING
   PER CURIAM

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

CONDITIONAL ADMISSION GRANTED.


text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-296758
    NO. 2018-BA-1652
    Supreme Court of Louisiana.
    October 12, 2018
    BAR ADMISSIONS PROCEEDING
   PER CURIAM

After reviewing the evidence and considering the law, we conclude petitioner is eligible to be admitted to the practice of law in Louisiana.

ADMISSION GRANTED.


text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-978270
    NO. 2018-BA-1468
    Supreme Court of Louisiana.
    October 15, 2018
    BAR ADMISSIONS PROCEEDING
   PER CURIAM

After reviewing the evidence and considering the law, we conclude petitioner is eligible to be conditionally admitted to the practice of law in Louisiana, subject to the following conditions:

1. Petitioner shall continue to comply with the terms of the recovery agreement he signed with the Judges and Lawyers Assistance Program ("JLAP") on July 3, 2018.

2. The period of this conditional admission shall coincide with the period of petitioner's JLAP agreement. However, petitioner's conditional admission status shall not be terminated until this court so orders.

3. Petitioner shall authorize the Executive Director of JLAP to report any violations of the JLAP agreement to the Office of Disciplinary Counsel ("ODC").

4. Upon the expiration of the term of petitioner's JLAP agreement, the Executive Director of JLAP shall forward to the ODC (a) a final report of petitioner's progress and participation in JLAP, and (b) a recommendation regarding the need for petitioner's continued participation in JLAP.

5. Following receipt of the report from JLAP, the ODC shall file a report in this court in which it shall recommend whether the conditional admission shall be allowed to terminate or shall be extended.

6. Petitioner shall cooperate with JLAP and the ODC, and shall comply with any and all requirements imposed upon him by JLAP and the ODC.

Should petitioner fail to make a good faith effort to satisfy these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.


text:
    IN RE: Jeanne Marie LABORDE
    NO. 2018-B-1481
    Supreme Court of Louisiana.
    October 15, 2018
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

The Office of Disciplinary Counsel ("ODC") commenced an investigation into allegations that respondent accepted the legal representation of a husband and wife whose interests were directly adverse to each other, and then, after terminating the legal representation of the husband, filed suit on behalf of the wife against the husband in the same matter. 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 Jeanne Marie Laborde, Louisiana Bar Roll number 24821, be publicly reprimanded. It is further ordered that respondent shall attend the Louisiana State Bar Association's Ethics School.

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. Duvander HURST
    No. 2018-KP-0470
    Supreme Court of Louisiana.
    October 15, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. Relator fails to show any error in the rulings of the courts below.

Defendant 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 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. Defendant's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, defendant has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Leroy CHATMAN v. STATE of Louisiana
    No. 2018-KH-0445
    Supreme Court of Louisiana.
    October 15, 2018
    ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE
   PER CURIAM:

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

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:
    Jeffery NELSON v. STATE of Louisiana
    No. 2018-KP-0349
    Supreme Court of Louisiana.
    October 15, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

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

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    Quentin MCCLURE v. STATE of Louisiana
    No. 2018-KP-0348
    Supreme Court of Louisiana.
    October 15, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

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

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Keeton Jerome TROSCLAIR v. STATE of Louisiana
    No. 2017-KH-1222
    Supreme Court of Louisiana.
    October 15, 2018
    ON SUPERVISORY WRITS TO THE SIXTEENTH JUDICIAL DISTRICT COURT, PARISH OF ST. MARY
   PER CURIAM:

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

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Everett J. HUGHES v. STATE of Louisiana
    No. 2017-KH-1198
    Supreme Court of Louisiana.
    October 15, 2018
    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).

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Carl BAHAM v. STATE of Louisiana
    No. 2017-KH-1195
    Supreme Court of Louisiana.
    October 15, 2018
    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).

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Larry LAWRENCE v. STATE of Louisiana
    No. 2017-KH-1194
    Supreme Court of Louisiana.
    October 15, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   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 his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Foster SHIVERS, Jr. v. STATE of Louisiana
    No. 2017-KH-1231
    Supreme Court of Louisiana.
    October 15, 2018
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

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

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.

Crichton, J., recused.


text:
    STATE of Louisiana v. Brian AGUILLARD
    No. 2015-K-0589
    Supreme Court of Louisiana.
    October 15, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Writ denied; motion denied. The state has returned following the trial court's compliance with this court's order on remand. State v. Aguillard , 15-0589 (La. 2/26/16), 184 So.3d 1273. We hereby deny the state's motion for additional clarification from the trial court and deny the state's writ in full. We leave intact the decision of the court of appeal, vacating the conviction and sentence, and remanding for a new trial. State v. Aguillard , 14-0316 (La. App. 4 Cir. 3/4/15), 158 So.3d 976. The court of appeal reached the correct result because the trial court's failure to adequately record the bench conference concerning the challenge for cause of prospective juror Lt. Mark Mulla has resulted in actual prejudice to the defendant's appeal. See State v. Pinion , 06-2346 (La. 10/26/07), 968 So.2d 131.


text:
    STATE EX REL. HUNG NGUYEN v. STATE of Louisiana
    No. 2017-KH-1800
    Supreme Court of Louisiana.
    October 15, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

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

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Eugene JARROW v. STATE of Louisiana
    No. 2017-KH-1193
    Supreme Court of Louisiana.
    October 15, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

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

Relator has now fully litigated several applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Edward James MCKINNEY v. STATE of Louisiana
    No. 2017-KH-1181
    Supreme Court of Louisiana.
    October 15, 2018
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

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

Relator has now fully litigated multiple 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.

Crichton, J., recused.


text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-461218
    NO. 2018-BA-1469
    Supreme Court of Louisiana.
    October 15, 2018
    BAR ADMISSIONS PROCEEDING
   PER CURIAM

After reviewing the evidence and considering the law, we conclude petitioner is eligible to be conditionally admitted to the practice of law in Louisiana, subject to a probationary period of one year. Should petitioner commit any misconduct during the period of probation, her conditional right to practice may be terminated or she may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.

Crichton, J., additionally concurs and assigns reasons.

I write separately to note that for those initially declined admission for character and fitness concerns, a demonstrated effort of rehabilitative work weighs heavy in reconsideration for admission to this noble profession. See In re: Committee on Bar Admissions CFN-461218 , 17-0867 (La. 6/16/17), 221 So.3d 835 (Crichton, J., additionally concurring, stating that petitioner's "unacceptable conduct" demonstrates a "lack of proper character and fitness to practice law in the State of Louisiana"). Since this Court's 2017 denial of petitioner's previous application for admission, petitioner has diligently devoted time and effort to personal and professional development and established good moral character. Consequently, I wholeheartedly agree with the Court's decision to grant this petitioner conditional admission, subject to a probationary period of one year.


text:
    STATE of Louisiana v. Keith THOMPSON
    No. 2018-KH-0274
    Supreme Court of Louisiana.
    October 15, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker , 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator's application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. In addition, relator's sentencing claim is not cognizable on collateral review. La.C.Cr.P. art. 930.3 ; State ex rel. Melinie v. State , 93-1380 (La. 1/12/96), 665 So.2d 1172 ; see also State v. Cotton , 09-2397 (La. 10/15/10), 45 So.3d 1030.

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. Norman PETE
    No. 2018-KH-0258
    Supreme Court of Louisiana.
    October 15, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

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

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Stanley WALDRON v. STATE of Louisiana
    No. 2017-KH-2110
    Supreme Court of Louisiana.
    October 15, 2018
    ON SUPERVISORY WRITS TO THE THIRTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF ST. BERNARD
   PER CURIAM:

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

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Kevin BALSER v. STATE of Louisiana
    No. 2017-KH-1789
    Supreme Court of Louisiana.
    October 15, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

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

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Henry Eugene BENNETT v. STATE of Louisiana
    No. 2017-KH-1720
    Supreme Court of Louisiana.
    October 15, 2018
    ON SUPERVISORY WRITS TO THE NINTH JUDICIAL DISTRICT COURT, PARISH OF RAPIDES
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. In addition, relator's sentencing 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 his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Donald Ray MAGEE, Jr. v. STATE of Louisiana
    No. 2017-KH-1213
    Supreme Court of Louisiana.
    October 15, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF WASHINGTON
   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). In addition, relator's sentencing claim is not cognizable on collateral review. La.C.Cr.P. art. 930.3 ; State ex rel. Melinie v. State , 93-1380 (La. 1/12/96), 665 So.2d 1172 ; see also State v. Thomas , 08-2912 (La. 10/16/09), 19 So.3d 466.

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.

Weimer, J., recused.