Opinion
No. 2016–KH–0477
08-04-2017
STATE EX REL., Joe MILLER v. STATE of Louisiana
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. We attach hereto and make a part hereof the court of appeal's written reasons denying writs.
Relator has now fully litigated four applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.
Attachment
SERVICE TWENTY FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON STATE OF LOUISIANA NO. 01.4570 DIVISION "K" STATE OF LOUISIANA RECEIVED VERSUS JOE MILLER FILED: Dec. 22, 2015 DEPUTY CLERK
ORDER
This matter comes before the court an the petitioner's MOTION TO VACATE AN INVALID AND UNCONSTITUTIONAL, GUILTY FLEA, STAMPED. AS FILED DECEMBER 4, 2015.
On October 17, 2001, the defendant was convicted by a jury of LSA-R.S. 14:108.1, relative to aggravated flight, and LSA-R.S. 14:69A, relative to possession of stolen things over $500. On December 13, 2001, he stipulated to the multiple bill, and was sentenced as a second felony offender to serve 20 years at hard labor. His conviction was affirmed on direct appeal.State v. Miller, 02-729 (La. App. 5 Cir. 12/30/02), 836 So.2d 614; writ denied, 2003-0200 (La. 10/10/03), 855 So.2d 326; and writ denied by 2003-503 (La. 10/10/03), 855 So.2d 329, The court denied his previously filed applications for post-conviction relief as untimely on July 25, 2006, and April 7, 2011. The court denied his Motion to Correct and Vacate Illegal Sentence on April 11, 2011.
Although this pleading is a captioned as aMotion to Vacate an Invalid and Unconstitutional Guilty Plea, it is in fact an application for post-conviction relief It is well-settled that the characterization of a pleading is not controlling.State v. Chapman, 699 So.2d 504 (La.App. 4 Cir. 9/3/97). An application for post-conviction relief is defined as "a petition filed by a person in custody after sentence following conviction for the commission of an offense seeking to have the conviction and sentence set aside." LSA-C.Cr.P. art. 924.
No application for post-conviction relief may be considered if it is filed more than two years after the judgment of conviction and sentence have became final (unless one of four very restricted exceptions apply) LSA-C.Cr.P. art. 930.8 (A). Defendant does not meet any of the exceptions for filing an untimely application.
Furthermore, the court notes that defendant has attached the transcript of his sentencing hearing to his pleading. This transcript clearly shows that defendant was advised of his rights by the court, and waived these rights, and pled guilty to the multiple bill.
Defendant's conviction and sentence us long been final. He is not entitled to relief.
Accordingly,
IT IS ORDERED BY THE COURT that dafendant's application be and is hereby DENIED
Gretna, Louisiana this 22d day of Dec. 2015.
JUDGE
PLEASE SERVE:
DEFENDANT: Joe Miller, DOC #293174, Louisiana State Penitentiary, Angola, LA 70712