Opinion
No. 98-KP-0707.
July 2, 1998.
In re State of Louisiana; — Plaintiff(s); applying for supervisory and/or remedial writs; to the Court of Appeal, Fourth Circuit, No. 97KW-2767; Parish of Orleans, Criminal District Court, Div. "I", No. 322-698.
Writ granted; conviction and sentence reinstated. Even assuming that Jarrell's 1994 filing in the court of appeal based on Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993) and Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990), as transferred by that court to the district court for consideration, satisfied the procedural requirements of La.C.Cr.P. art. 926 and the timeliness requirements of La.C.Cr.P. art. 930.8, on the merits "it is now Victor [ v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994), rather than Cage,] which should be applied retro-actively." Gaston v. Whitley, 67 F.3d 121, 122 (5th Cir. 1995). Under Victor, Jan-ell's instruction claim fails. See State v. Smith, 91-0749, p. 13 (La.5/23/94), 637 So.2d 398, 406.
JOHNSON, J., would grant and docket.
CALOGERO, C.J., not on panel.