State ex rel. McGee v. State

212 So. 3d 1159, 2017 WL 986078, 2017 La. LEXIS 486

Opinion

PER CURIAM:

| tDenied. Relator’s sentences are authorized by law. See R.S. 14:64, R.S. 14:27, R.S. 14:65.1. As to his claim about the consecutive nature of the sentence terms, his filing is properly construed as an application for post-conviction relief because it protests a discretionary function of the sentencing court, see La.C.Cr.P. Art. 883, and does not pertain to any illegal sentence term. See State v. Parker, 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. Art. 930.8.Relator’s application was not timely filed in the district court, and he 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. In addition, sentencing claims are not cognizable on collateral review. See La.C.Cr.P. Art. 930.3; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172. Finally, the application is repetitive. La.C.Cr.P. Art. 930.4.

Relator has now fully litigated several 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. 930.412and 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.