Opinion
No. 2019-KP-1008
02-10-2020
STATE of Louisiana v. Kernell MONETTE
PER CURIAM:
Writ granted. The district court and lower appellate court's rulings regarding the state's procedural objections are vacated, and the application for post-conviction relief is hereby denied. The application was not timely filed in the district court, and Mr. Monette 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. Mr. Monette has now fully litigated his second 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 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. His 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, he 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., would deny and assigns reasons.
Hughes, J., would deny the writ.
JOHNSON, C.J., would deny and assigns reasons.
I would deny the writ. The State does not show error in the district court's denial of its procedural objections.
Defendant bases his claim of ineffective assistance of counsel in part upon his apparent recent discovery of disciplinary proceedings against defense counsel, Keith A. Lewis. Mr. Lewis represented defendant at his 1999 trial for second degree murder, at which Defendant was convicted and sentenced to life in prison without parole. Soon after Defendant's conviction and life sentence, Mr. Lewis was disbarred by this Court, see In re Lewis , 98-2825 (La. 1/29/99), 728 So. 2d 846, and ultimately permanently disbarred, see In re Lewis , 03-1245 (La. 10/3/03), 856 So. 2d 1191, based upon Mr. Lewis's pattern of misconduct, failure to communicate with clients, and neglect of legal matters.
Of note, the Hearing Committee found Mr. Lewis's actions "intentional and evidenced a total disregard for the welfare of his clients." In re Lewis , 728 So. 2d at 848. The disciplinary proceedings were pending against Mr. Lewis at the time of Defendant's trial. And the misconduct for which Mr. Lewis was ultimately permanently disbarred began soon after Defendant's trial and conviction. It is of course possible that the proceedings against Defendant represented the one case in Mr. Lewis's career in which he was attentive, communicative, and operating completely within the bounds of the ethical and professional guidelines. But I believe the district court correctly found that Defendant should have the opportunity to show that it was not, that Mr. Lewis's conduct in Defendant's case was consistent with his conduct in the many other matters he neglected, and that Mr. Lewis's deficient performance prejudiced Defendant.
Defendant makes specific complaints regarding acts or omissions by his trial counsel and he should be afforded a hearing at which the district court can evaluate whether the pending disciplinary proceedings impaired counsel's performance at defendant's trial, and whether the ordinary level of deference to trial counsel's strategy should be afforded to the complained-of omissions in light of the evidence now known about Mr. Lewis's pattern of neglect, inattention and misconduct. See United States v. Mouzin, 785 F.2d 682, 698 (9th Cir. 1986) (finding professional discipline does not create a per se rule of ineffective assistance, but discipline does indeed "flow[ ] from revealed incompetence or untrustworthiness or turpitude such as to deserve no client's confidence.").
Because Defendant is sentenced to life without parole, the interests of justice would be best served if Defendant was afforded the opportunity to present this evidence to the court during an evidentiary hearing. See La. C.Cr. P. art. 930.8(A)(1).