State ex rel. Rebardi v. State

253 So. 3d 1291

Opinion

PER CURIAM:

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 ;

*1292State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. In addition, relator fails to show he is factually innocent under the standard of State v. Conway , 01-2808 (La. 4/12/02), 816 So.2d 290.

Relator has now fully litigated two 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 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.

Weimer, J., recused.

Hughes, J., dissents and assigns reasons.

Relator offers five affidavits, three from the victim's family, which recant or call into question trial testimony. Relator argues actual innocence. Without reaching the merits, these affidavits are "new evidence" as contemplated by La. C. Cr. P. article 930.8(A)(1), and a hearing is required.