Opinion
No. 2016-KH-0538.
08-04-2017
STATE EX REL. David B. TARVER v. STATE of Louisiana
ON SUPERVISORY WRITS TO THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU
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, who pled guilty, otherwise fails to satisfy his post-conviction burden of proof that he is entitled to an out-of-time appeal. La.C.Cr.P. art. 930.2. We attach hereto and make a part hereof the district court's written reasons denying relief.
Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.
Johnson. C.J. n.s.
Genovese, J., recused
Attachment
STATE OF LOUISIANA : 14TH JUDICIAL DISTRICT COURT VS. NO. 22239-SO-12 : PARISH OF CALCASIEU DAVID TARVER : STATE OF LOUISIANA FILED: 9-14-15 : : DEPUTY CLERK OF COURT
ORDER DENYING POST-CONVICTION RELIEF
Petitioner, DAVID TARVER, has filed a Motion for Post Conviction Relief. The claims listed in his application form include (1) ineffective assistance of counsel; (2) inadequate factual basis for Alford Plea; and (3) actual innocence. The only claims raised in his memorandum of law and support, however, is the claim for ineffective assistance of counsel.
Petitioner claims he was denied effective assistance of counsel due to counsel's failure to give Notice of Intent to Appeal or to perfect an appeal on behalf of the Petitioner, or advise Petitioner of his right to appeal. Petitioner's unsubstantiated claim that counsel failed to render effective assistance prior to and during the plea process does not Set forth a valid basis for deficient performance.Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984).see Hines v. Louisiana, 102 F.Supp.2d 690 (E.D.La. 2000).
The Court has reviewed the minutes of Petitioner's guilty plea proceedings. The minutes reflect Mr. Tarver entered a guilty plea on August 27, 2013. During the proceedings the Court advised petitioner of his constitutional rights which would be waived by pleading guilty, including the right to appeal. Furthermore, Petitioner signed and submitted to the Court a form entitled "Felony Plea Guilty and Waiver of Constitutional Rights." As a result, Petitioner has failed to state a claim for which post conviction relief may be granted.
The Court finds no basis to order an evidentiary hearing in this matter since Petitioner has not met his burden of proof of ineffective assistance of counsel.
THEREFORE, IT IS HEREBY ORDERED that defendant's Motion for Post-Conviction Relief isDENIED.
Thus done and signed this 3 day of September 2015, Lake Charles, Louisiana.
_______________________
CLAYTON DAVIS
DISTRICT JUDGE, DIV, B.
PLEASE SERVE:
Calcasieu Parish District Attorney's Office