Opinion
21-KH-692
01-20-2022
IN RE BOBBY STEVENSON v. TIM HOOPER, WARDEN, LOUISIANA STATE PENITENTIARY STATE OF LOUISIANA EX REL., BOBBY STEVENSON
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE RAYMOND S. STEIB, JR., DIVISION "A", NUMBER 00-6104
Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Stephen J. Windhorst
WRIT DENIED
Relator, Bobby Stevenson, seeks this Court's supervisory review of the trial court's October 15, 2021 ruling which denied his application for post-conviction relief ("APCR") as untimely. For the following reasons, we find no error in the trial court's denial of relator's APCR, and thus deny this writ application.
Relator filed his APRC with the district court on July 13, 2021. In it, relator claimed that counsel rendered ineffective assistance at his habitual offender sentencing hearing, which took place on April 22, 2003, relying on State v. Harris, 18-1012 (La. 7/9/20), __ So.3d __, 2020 WL 3867207, in which the Louisiana Supreme Court held that an "ineffective assistance of counsel at sentencing claim is cognizable on collateral review." The State filed its response on October 8, 2021, arguing that relator's claim was untimely, and alternatively, without merit. On October 15, 2021, the district court denied relief, finding that relator's APCR was untimely and that it failed to provide any exceptions to the time limitations of La. C.Cr.P. art. 930.8. In doing so, the district court stated: "[T]here is nothing in Harris that dictates retroactive application to a case such as the petitioner's."
La. C.Cr.P. art. 930.8 provides, in pertinent part:
A. No application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final
under the provisions of Article 914 or 922, unless any of the following apply:
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(2) The claim asserted in the petition is based upon a final ruling of an appellate court establishing a theretofore unknown interpretation of constitutional law and petitioner establishes that this interpretation is retroactively applicable to his case, and the petition is filed within one year of the finality of such ruling[.]
While the Harris decision did not make a statement as to the retroactivity of its holding, nor have the few subsequent cases relying on Harris specifically addressed this issue, both the Louisiana Supreme Court and this Court have permitted Harris-based claims to move forward in cases where La. C.Cr.P. art. 930.8's prescriptive period for filing an APCR has expired and where the defendant has presented a prima facie claim of ineffective assistance of counsel raised within one year of the Harris decision under La. C.Cr.P. art. 930.8(A)(2). See State v. Robinson, 19-1330 (La. 11/24/20), 304 So.3d 846 (per curiam); State v. Robinson, 20-427 (La.App. 5 Cir. 3/8/21), 2021 WL 863395, writ denied, 21-485 (La. 5/25/21), 316 So.3d 443; Eugene v. Boutte, 21-414 (La.App. 5 Cir. 8/12/21), 2021 WL 3569220.
Consequently, it appears that the district court erred by denying relator's Harris claim on timeliness grounds, as relator raised this issue within one year of the Harris decision.
In any event, under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution, a defendant is entitled to effective assistance of counsel. State v. Casimer, 12-678 (La.App. 5 Cir. 3/13/13), 113 So.3d 1129, 1141. To prove ineffective assistance of counsel, a defendant must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). State v. Casimer, 113 So.3d at 1141. Under the Strickland test, the defendant must show: (1) that counsel's performance was deficient, that is, that the performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) that the deficient performance prejudiced the defense. Id. An error is considered prejudicial if it was so serious as to deprive the defendant of a fair trial or "a trial whose result is reliable." Id. (quotations omitted). To prove prejudice, the defendant must demonstrate that, but for counsel's unprofessional conduct, the outcome of the trial would have been different. Id. (citing Strickland v. Washington, supra).
We note initially that relator failed to include a copy of the transcript or the minute entry from his habitual offender hearing in his writ application. See State v. Cambrice, 21-KH-575 (La.App. 5 Cir. 9/22/21) (unpublished writ disposition). Furthermore, relator's writ application does not include any documentation supporting his claim that the predicate offenses used to enhance his sentence were invalid. As such, relator's conclusory allegations, standing alone, do not establish that counsel rendered ineffective assistance by failing to challenge the State's evidence of relator's fourth-felony offender status. See La.C.Cr.P. art. 930.2.
While relator now complains that counsel failed to present mitigating factors in support of a reduced sentence, despite relator's assertion that he is "no more than a petty thief" with an addiction to alcohol, such a characterization is at odds with relator's conviction for the instant offense of sexual battery of his girlfriend's nine-year-old daughter and his prior conviction for aggravated burglary, both crimes of violence.
Upon review, on the showing made, we find that relator has failed to present a prima facie claim of ineffective assistance of counsel at the habitual offender hearing, as required by La. C.Cr.P. art. 930.2. Relator's claim concerning the omission of mitigating evidence by counsel is not persuasive. With respect to relator's contention that his attorney's failure to file a motion to reconsider sentence prevented him from raising a claim of excessive sentence on appeal, the mere failure to file a motion to reconsider sentence does not in and of itself constitute ineffective assistance of counsel. A defendant must also "show a reasonable probability that, but for counsel's error, his sentence would have been different." Casimer, 113 So.3d at 1142. Here, as this Court noted on appeal, relator's counsel "orally objected that a mandatory life sentence would be excessive and asked the court to consider some leniency, although he did not state any particular basis for leniency." See Stevenson, 05-52, 908 So.2d at 55. Nevertheless, this Court found that relator's life sentence was not unconstitutionally excessive, noting:
In the present case, two of the four felonies committed by Stevenson, who was forty years old at the time of the last felony in 1999, are defined as crimes of violence. [La.] R.S. 15:529.1 treats the defendant with multiple felony convictions as a recidivist who is to be punished for the instant crime in light of his continuing disregard for the laws of our state, subjected to a longer sentence because he continues to break the law.Stevenson, 908 So.2d at 56.
Thus, on the showing made, we find that relator fails to make a prima facie case of ineffective assistance of counsel at sentencing based on Harris, supra. Accordingly, the trial court did not err in denying relator's APCR. This writ application is thus denied.
JGG
SMC
SJW