Opinion
2015 CA 1495
06-02-2016
Michael Lewis Richwood Correctional Center Richwood, LA Plaintiff/Appellant In Proper Person William L. Kline Baton Rouge, LA Attorney for Defendant/Appellee Louisiana Department of Public Safety and Corrections
NOT DESIGNATED FOR PUBLICATION On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana
No. C638671 The Honorable Timothy Kelley, Judge Presiding Michael Lewis
Richwood Correctional Center
Richwood, LA Plaintiff/Appellant
In Proper Person William L. Kline
Baton Rouge, LA Attorney for Defendant/Appellee
Louisiana Department of Public
Safety and Corrections BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ. HOLDRIDGE, J.
Michael Lewis, an inmate in the custody of the Department of Public Safety and Corrections (Department) at Richwood Correctional Center (Richwood), appeals a district court judgment dismissing his petition for judicial review as untimely. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
Lewis claims that, in January 2002, he committed the offense of molestation of a juvenile, see La. R.S. 14:81.2, and was arrested. He alleges that he was convicted of the offense in 2004 and, in 2005, he received a sentence of 10 years hard labor, which was suspended. He claims that, due to "technical reasons[, his] probation was revoked" in 2009, whereupon he began serving the suspended sentence. In calculating Lewis's sentence, the Department determined that, based on the law in effect at the time he committed his offense, he was ineligible for diminution of sentence for good behavior (good time credits).
Because Lewis's suit was dismissed prior to service by virtue of a screening judgment, we do not have the benefit of the entire administrative record. The record before us does not contain Lewis's master prison record and is primarily limited to Lewis's allegations.
Approximately five years later, the Louisiana Supreme Court rendered its decision in Massey v. Louisiana Dep't of Public Safety & Corr., 13-2789 (La. 10/15/14) 149 So.3d 780. After reading Massey, Lewis reasoned that because he committed his offense prior to August 15, 2006 (the effective date of La. R.S. 15:571.3's amendment by 2006 La. Acts. No. 572, § 1), he was eligible to earn good time credits. Therefore, Lewis sought relief under the Louisiana Corrections Administrative Remedy Procedure Act (CARP), La. R.S. 15:1171 et seq. seeking to have the Department recalculate his sentence to include the good time credits he believed he was entitled to.
An inmate alleging an error in computation of good time credits is required to pursue his claim through CARP. Addison v. Louisiana Dep't of Corr., 15-1069 (La.App. 1 Cir. 2/26/16), ___ So.3d ___, ___ n.2.
Lewis was denied relief at both the first and second steps of the procedure. The Department's second step decision, rendered February 24, 2015, provided, in part, as follows:
Persons committing sex offenses on or after August 15, 1999 are prohibited from earning diminution of sentence under [La. R.S. 15:537, as amended by] Act 1209 of the 1999 State Legislation. Therefore, you are not eligible to earn diminution of sentence .... No further investigation will be conducted. Your request is denied.
Lewis filed a petition for judicial review of the Department's decision in the Nineteenth Judicial District Court (19th JDC). Pursuant to La. R.S. 15:1178, Lewis's petition was screened by a commissioner. According to the commissioner, the Department's final decision was rendered on February 24, 2015 and Lewis's petition was filed April 17, 2015; therefore, the commissioner issued a rule ordering Lewis to show cause why his petition should not be dismissed as untimely for failing to file within 30 days of receiving the Department's decision. Responding to the rule, Lewis conceded that he had not filed his petition within the required 30-day period; however, he argued that he was prevented from doing so because Richwood refused to assist him in obtaining the necessary forms and also failed to respond to his request for notarial services for 30 days.
The office of commissioner of the 19th JDC was created by La. R.S. 13:711 to hear and recommend disposition of criminal and civil proceedings arising out of the incarceration of state prisoners. La. R.S. 13:713(A). The commissioner's written findings and recommendations are submitted to a district judge, who "may accept, reject, or modify in whole or in part the findings or recommendations made by the commissioner [or who] may receive further evidence or recommit the matter to the commissioner with instructions." La. R.S. 13:713(C)(5); Owens v. Stalder, 06-1120 (La.App. 1 Cir. 6/8/07), 965 So.2d 886, 888 n.6.
The petition reflects that it was actually received by the 19th JDC on April 15, 2015; there is no indication in the record as to when Lewis placed it with prison officials to be mailed.
Lewis stated that he was previously unaware of the 30-day limitation; however, he was nonetheless precluded from filing timely as a result of Richwood's failure to provide timely notarial services.
Thereafter, the commissioner issued a screening report and recommendation to the district judge stating that unless Lewis could demonstrate, either through his records or the Department's, that he received the Department's final decision after February 24, 2015, his appeal was untimely and should be dismissed. Lewis traversed the commissioner's recommendation asserting that he was being denied access to the courts and reiterating his claim that Richwood failed to provide the necessary notarial services for 30 days, making the timely filing of his petition impossible. After conducting a de novo review, the district judge adopted the commissioner's report as its reasons for judgment and dismissed Lewis's suit. Neither the commissioner nor the district judge addressed Lewis's allegations regarding the possible violation of his right of access to the courts. Lewis now appeals.
On appeal, Lewis contends, for the first time, that he would be entitled to immediate release if his sentence is recomputed to account for the good time credits he claims he is entitled to.
DISCUSSION
Louisiana Revised Statute 15:1177(A) provides, in pertinent part:
Any offender who is aggrieved by an adverse decision ... by the Department ... rendered pursuant to any administrative remedy procedures under this Part may, within thirty days after receipt of the decision, seek judicial review of the decision only in the Nineteenth Judicial District Court ....The 30-day time period in which to seek judicial review provided for in La. R.S. 15:1177(A) is peremptive rather than prescriptive. Carter v. Lynn, 93-1583 (La.App. 1 Cir. 5/20/94), 637 So.2d 690, 691. If an adult offender fails to file an action for judicial review in the district court within 30 days of receiving the Department's decision, his right to relief ceases to exist. Id.
Lewis concedes that he did not file his petition within 30 days of receiving the Department's final decision. However, he contends that a timely filing was rendered impossible by Richwood officials who not only failed to provide him with necessary forms and legal assistance but also took 30 days just to respond to his request for notarial services. He claims that these actions resulted in his petition being dismissed as untimely and, thus, constituted a violation of his constitutional right of access to the courts.
It is well settled that prisoners have a constitutional right of access to the courts. See Lewis v. Casey, 518 U.S. 343, 350, 116 S.Ct. 2174, 2179, 135 L.Ed.2d 606 (1996) (citing Bounds v. Smith, 430 U.S. 817, 821, 828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72 (1977)). Hence, "indigent inmates must be provided at state expense with paper and pen to draft legal documents, with notarial services to authenticate them, and with stamps to mail them." Bounds, 430 U.S. at 824-25, 97 S.Ct. at 1496. However, a prisoner's constitutional right of access is not unlimited. In order to establish that he was denied access to the courts, a prisoner must demonstrate an "actual injury." That is, he must show that the State has frustrated or is impeding his efforts to file a nonfrivolous legal claim concerning his sentence or the conditions of his confinement. Lewis, 518 U.S. at 351-52, 355-56, 116 S.Ct. at 2180-82. However, a claim is frivolous if it lacks an arguable basis in law or fact, and a claim lacks such a basis if it relies on an indisputably meritless legal theory. Taylor v. Johnson, 257 F.3d 470, 472 (5th Cir. 2001).
Article I, §22 of the Louisiana Constitution of 1974 provides:
All courts shall be open and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.
See LAC 22:111.3101(F) ("Inmates shall be able to obtain ... forms, notarial services, technical information and specific legal materials needed to insure their rights to court access.").
Even assuming, in this case, that Lewis could substantiate his claim that Richwood failed to provide reasonable notarial services, he cannot demonstrate an actual injury because his underlying legal claim is clearly without merit.
It is axiomatic that the law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer. See Massey 149 So.3d at 786. Pursuant to the applicable laws in effect at the time Lewis claims he committed his offense, it is evident that he is not eligible for diminution of sentence for good behavior.
Lewis appears to be laboring under the impression that La. R.S. 15:571.3 is the sole provision regarding good time diminution of sentence; however, with respect to certain sexual offenses, including molestation of a juvenile, La. R.S. 15:537 is also applicable. See State v. Prejean, 08-1192 (La. 2/6/09), 999 So.2d 1135, 1136 (per curiam) (noting that the provisions of La. R.S. 15:537(A), like those of La. R.S. 15:571.3, are directives to the Department for computing an inmate's sentence with respect to good time credits).
In January 2002, when Lewis claims he committed his crime, La. R.S. 15:537(A), provided, in part:
If a person is convicted of or pleads guilty to, or where adjudication has been deferred or withheld for a violation of R.S. 14:78 (incest), R.S. 14:78.1 (aggravated incest), R.S. 14:89(A)(1) (crime against nature), R.S. 14:89.1 (aggravated crime against nature), R.S. 14:93.5 (sexual battery of the infirm) or any provision of Subpart C of Part II, or Subpart A(1) of Part V, of Chapter 1 of Title 14 of the Louisiana Revised Statutes of 1950, and is sentenced to imprisonment for a stated number of years or months, the person shall not be eligible for diminution of sentence for good behavior. [Emphasis added.]Lewis claims he was convicted of molestation of a juvenile, a violation of La. R.S. 14:81.2, which is a "provision of Subpart C of Part II, or Subpart A(1) of Part V, of Chapter 1 of Title 14." Moreover, Lewis claims that he was sentenced to 10 years, hard labor. Therefore, as a matter of law, he is "not ... eligible for diminution of sentence for good behavior."
We further note that Lewis's reliance on Massey is misplaced. Lewis believes that, like Massey, he is eligible for good time diminution of his sentence because he committed his offense before August 15, 2006 (the effective date of La. R.S. 15:571.3's amendment by 2006 La. Acts. No. 527, § 1). However, the offenses in Massey were committed on August 9, 1994, before La. R.S. 15:537 was enacted; therefore, La. R.S. 15:537 was not implicated in Massey. However, such is not the case herein.
Similarly, Lewis is mistaken in his belief that individuals convicted of molestation of a juvenile were only prohibited from earning good time commencing with La. R.S. 15:571.3's amendment by 2006 La. Acts. No. 572, § 1. The pertinent part of that amendment merely restated what had long been provided for in La. R.S. 15:573(A). See 1999 La. Acts. No. 1209, § 1, effective August 15, 1999.
Among its changes, 2006 La. Acts. No. 572, § 1 added the following subsection to La. R.S. 15:571.3(B)(2):
(b) If a person is convicted of or pleads guilty to, or where adjudication has been deferred or withheld for a violation of R.S. 14:78 (incest), R.S. 14:78.1 (aggravated incest), R.S. 14:80 (felony carnal knowledge of a juvenile), R.S. 14:81 (indecent behavior with juveniles), R.S. 14:81.1 (pornography involving juveniles), R.S. 14:81.2 (molestation of a juvenile), R.S. 14:89(A)(1) (crime against nature), R.S. 14:89.1 (aggravated crime against nature), R.S. 14:93.5 (sexual battery of the infirm) or any provision of Subpart C of Part II of Chapter 1 of Title 14 of the Louisiana Revised Statutes of 1950, and is sentenced to imprisonment for a stated number of years or months, the person shall not be eligible for diminution of sentence for good behavior.
See Louisiana Bill Digest, Amendment Summary, 2006 Reg. Sess. S.B. 129; see also Louisiana Bill Digest, Redigest, 2006 Reg. Sess. S.B. 129.
Following its amendment by 1999 La. Acts. No. 1209, § 1, La. R.S. 15:537 provided, in pertinent part:
A. If a person is convicted of or pleads guilty to a violation of any provision of Subpart C of Part II, Subpart B of Part IV, or Subpart A(1) or A(4) of Part V, of Chapter 1 of Title 14 of the Louisiana Revised Statutes of 1950, and is sentenced to imprisonment for a stated number of years or months, the person shall not be eligible for diminution of sentence for good behavior.Hence, sex offenders such as Lewis have been prohibited from earning good time on a sentence for their offenses that occurred after the Act's effective date of August 15, 1999. --------
Having found that Lewis is unable to establish a violation of his constitutional right of access to the courts, we conclude that the district judge properly dismissed Lewis's petition as untimely. His right to relief has ceased to exist.
CONCLUSION
For all of the forgoing reasons, the judgment is affirmed. Michael Lewis is cast with the costs of this appeal.
AFFIRMED.