Opinion
No. 15-KH-1425
12-16-2016
STATE EX REL. CARLOS McGREW v. STATE OF LOUISIANA
ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON :
Denied. The application was not timely filed in the district court, and relator 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. We attach hereto and make a part hereof the District Court's written ruling denying relator's application.
Relator has now fully litigated at least five 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 second or 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.
TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON STATE OF LOUISIANA
NO. 98-6947
DIVISION "O"
STATE OF LOUISIANA
VERSUS
CARLOS MCGREW
FILED :April 16, 2015 /s/_________
DEPUTY CLERK
ORDER
This matter comes before the court on defendant's MOTION TO RE-OPEN ORIGINAL POST-CONVICTION RELIEF APPLICATION W/ ATTACHED ORDER REVERSING PREVIOUS DENIAL OF RELIEF , BASED UPON LA.C.CR.P. ART. 924 , ET SEQ., STAMPED AS FILED APRIL 2, 2015 .
On August 14, 1999, the petitioner was convicted of two counts of LSA-R.S.14:30.1, relative to second degree murder. On August 18, 1999, the court sentenced him on each count to life imprisonment at hard labor. Petitioner's conviction was affirmed on direct appeal. State v. McGrew, 00-200, (La.App. 5 Cir. 9/26/00), 769 So.2d 782; writ denied, 2000-2852 (La. 10/12/01), 799 So.2d 492.
Petitioner requests to re-open his original application for post-conviction relief, and argues that recently sworn affidavit of a known, but never questioned or subpoenaed alibi witness, Peter D. Turner, Jr., qualifies as newly discovered evidence. He further argues ineffective assistance for counsel's failure to investigate and subpoena known alibi witnesses.
The court finds no merit to petitioner's alleged newly discovered evidence, as the information was clearly available prior to trial, as evidenced by petitioner's Attachment A, defense's pretrial Notice to State of Alibi Defense, which lists the witness as an alibi, and is locatable in the court record. This "newly discovered evidence" Petitioner does not prove an exception to the time limitations of LSA-C.Cr.P. art. 930.8(A). Thus, petitioner's application is procedurally barred.
The petitioner's application for post-conviction relief is time-barred, pursuant to LSA-C.Cr.P. art. 930.8. The court will not address the merits of petitioner's claims because an application for post-conviction relief would be untimely. Under the clear language of LSA-C.Cr.P. art. 930.8, the petitioner had two years from the date his conviction and sentence became final to file an application for post-conviction relief, unless he proved an exception to the time limitations of LSA-C.Cr.P. art. 930.8 (A).
Accordingly,
IT IS ORDERED BY THE COURT that this application be and the same is hereby DENIED .
Gretna, Louisiana this 16th day of April, 2015.
/s/ _________
JUDGE PLEASE SERVE:
PRISONER: Carlos McGrew, DOC # 413135, Louisiana State Penitentiary, Angola, LA 70712