Opinion
No. 2023-KP-00250
06-07-2023
Richard BENOIT v. Kirt GUERIN, Warden Elayn Hunt Correctional Center
Stay denied. Writ application denied. See per curiam.
PER CURIAM:
Motion denied; writ denied. The original application for post-conviction relief was not timely filed in the district court with respect to applicant's conviction for sexual battery. His conviction and sentence on that count became final in January 2018. La.C.Cr.P. art. 922 ; La.S.Ct.R. X, § 5(a). Resentencing on a separate count of conviction did not restart the time limitations of La.C.Cr.P. art. 930.8 with respect to the sexual battery conviction. See State v. Brumfield , 2013-2390, p. 3 (La. 11/14/14), 152 So.3d 870, 871. Thus, his application for post-conviction relief filed on July 10, 2020, was untimely with respect to his sexual battery conviction. Applicant 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.
Additionally, because a district court only has the authority to allow amendment or supplement of a timely filed application for post-conviction relief, the district court had no authority to allow a supplemental or amended application with respect to the sexual battery conviction. See State ex rel. Benn v. State , 2011-2418, p. 1 (La. 6/22/12), 90 So.3d 1045 ("Established jurisprudence of this Court grants district judges the discretion to allow or to refuse amendment of timely filed but not yet ruled-on applications for post-conviction relief.") (emphasis added). Accordingly, applicant's remaining post-conviction claims should be considered by the district court only with respect to his conviction for attempted aggravated incest.
Lastly, applicant shows no error in the court of appeal's denial with respect to his factual innocence claims. See La.C.Cr.P. art. 926.2(B)(1) ("petitioner shall present new, reliable, and noncumulative evidence that would be legally admissible at trial and that was not known or discoverable at or prior to trial") (emphasis added); see also Schane v. International Board of Teamsters , 760 F.3d 585, 589 (7th Cir. 2014) ("In propositional logic ... the rule of inference that not (X or Y) is equivalent to not X and not Y ... is known as one of De Morgan's Laws.") (internal quotes omitted).