STATE OF LOUISIANA NO. 24-KH-198
VERSUS FIFTH CIRCUIT
JEREL SMITH COURT OF APPEAL
STATE OF LOUISIANA
June 10, 2024
Linda Wiseman First Deputy Clerk
IN RE JEREL SMITH
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT, PARISH OF ST CHARLES, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE CONNIE M. AUCOIN, DIVISION "C", NUMBER 17-00030
Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Scott U. Schlegel
WRIT GRANTED
Relator, Jerel Smith, filed a pro se writ application, seeking review of the
district court’s April 2, 2024 judgment denying his First Uniform Application for
Post-Conviction Relief (“APCR”). After review, we grant this writ application and
remand the matter to the district court.
PROCEDURAL BACKGROUND
On May 11, 2018, a jury found relator guilty of second degree murder and
armed robbery. On June 14, 2018, he was sentenced to life imprisonment at hard
labor for second degree murder and ninety-nine years imprisonment for armed
robbery. Both sentences were ordered to be served without benefit of parole,
probation, or suspension of sentence and to run concurrently. On March 13, 2020,
this Court affirmed relator’s convictions and sentences for second degree murder
and armed robbery. State v. Smith, 19-395 (La. App. 5 Cir. 3/13/20), 293 So.3d
24-KH-198 732.1 Relator did not file a writ application seeking review with the Louisiana
Supreme Court.
Relator filed his APCR with the district court on March 21, 2024, raising
claims of ineffective assistance of counsel, denial of right to testify, and erroneous
jury instruction. On April 2, 2024, the district court denied relator’s rule to show
cause as to why his APCR should not be granted and denied his “application in
accordance with La. C.Cr.P. art. 930.8.”
LAW AND DISCUSSION
In the instant application, relator maintains that the district court erred by
finding his APCR was untimely under La. C.Cr.P. art. 930.8 because he originally
filed his APCR on December 13, 2021.
La. C.Cr.P. art. 930.8(A) provides in pertinent part: “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.”
In the instant case, relator’s convictions and sentences became final in
2020. See Smith, supra. Thus, on its face, relator’s APCR, filed with the district
court on March 21, 2024, is untimely. Except as provided in La. C.Cr.P. art.
930.8, the district court has no authority to extend those limits beyond the delays
set forth by the legislature. See State v. Daigle, 593 So.2d 676, 677 (La. App. 3
Cir. 1991), writ denied, 604 So.2d 980 (La. 1992).
However, relator asserts that his original APCR was filed with the district
court on December 13, 2021. In support of his claim, relator submitted to this
Court a copy of his Offender’s Request for Legal/Indigent Mail which is signed
1 Relator was sentenced to an additional five years to run consecutively to the armed robbery sentence because of the use of a firearm in commission of the armed robbery pursuant to La. R.S. 14:64.3. On appeal, this Court found that the district court erred by enhancing the sentence under La. R.S. 14:64.3 because the State failed to provide written notice and include the enhancement in the indictment. As such, this Court vacated the sentencing enhancement of five years and remanded for correction of the uniform commitment order. Smith, 293 So.3d at 742- 43. 2 by a classification officer, dated December 13, 2021, and bears a hand-written
notation stating, “Post Conviction Application.” Relator also included a copy of
his original, unstamped APCR, which includes a certificate of service signed and
dated by relator on December 13, 2021. According to relator, after an
unspecified period of time had passed without a ruling from the district court
with respect to his APCR filed on December 13, 2021, his family members
contacted the Clerk of Court for the 29th Judicial District Court and were advised
that relator did not have a pending application with the district court. In addition,
relator maintains that the “district court suggested relator resubmit his APCR.”
Thus, in relator’s view, his APCR was timely filed when he first turned over his
APCR to prison officials for mailing on December 13, 2021.
When relator filed his APCR with the district court on March 21, 2024, it
does not appear that he informed the district court that he was resubmitting his
original APCR nor did he include a copy of his Offender’s Request for
Legal/Indigent Mail, dated December 13, 2021. Thus, for all that appears, the
district court was unaware that relator had previously attempted to file his APCR
in a timely fashion.
Pro se filings are subject to less stringent standards than formal pleadings
filed by lawyers. State ex. rel. Egana v. State, 00-2351 (La. 9/22/00), 771 So.2d
638. A pro se petitioner is not to be denied access to the courts for review of his
case on the merits by the overzealous application of form in pleading requirements
or hyper-technical interpretations of court rules. Id. The Supreme Court, in
Houston v. Lack, 487 U.S. 266, 270-71, 108 S.Ct. 2379, 2382, 101 L.Ed.2d 245
(1988), noted the “unique circumstances” of the pro se inmate, finding that unlike
other litigants, “the pro se prisoner has no choice but to entrust the forwarding of
his notice of appeal to prison authorities whom he cannot control or supervise.” As
such, for the purpose of determining timeliness, the actual date of filing for
3 pleadings filed by inmates is the date the pleading is delivered to the prison
authorities. See Houston v. Lack, supra; State ex rel. Johnson v. Whitley, 92-2689
(La. 1/6/95), 648 So.2d 909; State v. Cepriano, 22-77 (La. App. 5 Cir. 3/30/22),
337 So.3d 999, 1002 n.3.
In Stoot v. Cain, 570 F.3d 669 (5th Cir. 2009), the Fifth Circuit applied the
principle of Houston v. Lack to a pro se inmate pleading that purportedly never
reached the intended recipient. Stoot, a Louisiana inmate, claimed to have filed a
pro se writ application with the supreme court after the third circuit denied his writ
application seeking review from the district court’s ruling denying his APCR, but
the supreme court never received the filing. Stoot, 570 F.3d at 670-71. Stoot
asked a relative to investigate after he failed to receive confirmation as to whether
his filing had been received. Id. at 671. When the relative discovered that Stoot’s
writ application was never received, Stoot filed a second writ application that the
supreme court “denied.” Stoot subsequently filed a federal habeas corpus petition
that the district court dismissed as untimely. Id. at 670-71.
On appeal, the Fifth Circuit considered whether Stoot had timely filed his
writ application in state court, thereby tolling the period of limitation on his federal
habeas petition. Id. In support of his claim, Stoot presented an Inmate’s Request
for Legal/Indigent Mail as evidence that he had mailed an earlier writ application
that the supreme court had not received. Id. at 671. The Fifth Circuit concluded
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STATE OF LOUISIANA NO. 24-KH-198
VERSUS FIFTH CIRCUIT
JEREL SMITH COURT OF APPEAL
STATE OF LOUISIANA
June 10, 2024
Linda Wiseman First Deputy Clerk
IN RE JEREL SMITH
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT, PARISH OF ST CHARLES, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE CONNIE M. AUCOIN, DIVISION "C", NUMBER 17-00030
Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Scott U. Schlegel
WRIT GRANTED
Relator, Jerel Smith, filed a pro se writ application, seeking review of the
district court’s April 2, 2024 judgment denying his First Uniform Application for
Post-Conviction Relief (“APCR”). After review, we grant this writ application and
remand the matter to the district court.
PROCEDURAL BACKGROUND
On May 11, 2018, a jury found relator guilty of second degree murder and
armed robbery. On June 14, 2018, he was sentenced to life imprisonment at hard
labor for second degree murder and ninety-nine years imprisonment for armed
robbery. Both sentences were ordered to be served without benefit of parole,
probation, or suspension of sentence and to run concurrently. On March 13, 2020,
this Court affirmed relator’s convictions and sentences for second degree murder
and armed robbery. State v. Smith, 19-395 (La. App. 5 Cir. 3/13/20), 293 So.3d
24-KH-198 732.1 Relator did not file a writ application seeking review with the Louisiana
Supreme Court.
Relator filed his APCR with the district court on March 21, 2024, raising
claims of ineffective assistance of counsel, denial of right to testify, and erroneous
jury instruction. On April 2, 2024, the district court denied relator’s rule to show
cause as to why his APCR should not be granted and denied his “application in
accordance with La. C.Cr.P. art. 930.8.”
LAW AND DISCUSSION
In the instant application, relator maintains that the district court erred by
finding his APCR was untimely under La. C.Cr.P. art. 930.8 because he originally
filed his APCR on December 13, 2021.
La. C.Cr.P. art. 930.8(A) provides in pertinent part: “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.”
In the instant case, relator’s convictions and sentences became final in
2020. See Smith, supra. Thus, on its face, relator’s APCR, filed with the district
court on March 21, 2024, is untimely. Except as provided in La. C.Cr.P. art.
930.8, the district court has no authority to extend those limits beyond the delays
set forth by the legislature. See State v. Daigle, 593 So.2d 676, 677 (La. App. 3
Cir. 1991), writ denied, 604 So.2d 980 (La. 1992).
However, relator asserts that his original APCR was filed with the district
court on December 13, 2021. In support of his claim, relator submitted to this
Court a copy of his Offender’s Request for Legal/Indigent Mail which is signed
1 Relator was sentenced to an additional five years to run consecutively to the armed robbery sentence because of the use of a firearm in commission of the armed robbery pursuant to La. R.S. 14:64.3. On appeal, this Court found that the district court erred by enhancing the sentence under La. R.S. 14:64.3 because the State failed to provide written notice and include the enhancement in the indictment. As such, this Court vacated the sentencing enhancement of five years and remanded for correction of the uniform commitment order. Smith, 293 So.3d at 742- 43. 2 by a classification officer, dated December 13, 2021, and bears a hand-written
notation stating, “Post Conviction Application.” Relator also included a copy of
his original, unstamped APCR, which includes a certificate of service signed and
dated by relator on December 13, 2021. According to relator, after an
unspecified period of time had passed without a ruling from the district court
with respect to his APCR filed on December 13, 2021, his family members
contacted the Clerk of Court for the 29th Judicial District Court and were advised
that relator did not have a pending application with the district court. In addition,
relator maintains that the “district court suggested relator resubmit his APCR.”
Thus, in relator’s view, his APCR was timely filed when he first turned over his
APCR to prison officials for mailing on December 13, 2021.
When relator filed his APCR with the district court on March 21, 2024, it
does not appear that he informed the district court that he was resubmitting his
original APCR nor did he include a copy of his Offender’s Request for
Legal/Indigent Mail, dated December 13, 2021. Thus, for all that appears, the
district court was unaware that relator had previously attempted to file his APCR
in a timely fashion.
Pro se filings are subject to less stringent standards than formal pleadings
filed by lawyers. State ex. rel. Egana v. State, 00-2351 (La. 9/22/00), 771 So.2d
638. A pro se petitioner is not to be denied access to the courts for review of his
case on the merits by the overzealous application of form in pleading requirements
or hyper-technical interpretations of court rules. Id. The Supreme Court, in
Houston v. Lack, 487 U.S. 266, 270-71, 108 S.Ct. 2379, 2382, 101 L.Ed.2d 245
(1988), noted the “unique circumstances” of the pro se inmate, finding that unlike
other litigants, “the pro se prisoner has no choice but to entrust the forwarding of
his notice of appeal to prison authorities whom he cannot control or supervise.” As
such, for the purpose of determining timeliness, the actual date of filing for
3 pleadings filed by inmates is the date the pleading is delivered to the prison
authorities. See Houston v. Lack, supra; State ex rel. Johnson v. Whitley, 92-2689
(La. 1/6/95), 648 So.2d 909; State v. Cepriano, 22-77 (La. App. 5 Cir. 3/30/22),
337 So.3d 999, 1002 n.3.
In Stoot v. Cain, 570 F.3d 669 (5th Cir. 2009), the Fifth Circuit applied the
principle of Houston v. Lack to a pro se inmate pleading that purportedly never
reached the intended recipient. Stoot, a Louisiana inmate, claimed to have filed a
pro se writ application with the supreme court after the third circuit denied his writ
application seeking review from the district court’s ruling denying his APCR, but
the supreme court never received the filing. Stoot, 570 F.3d at 670-71. Stoot
asked a relative to investigate after he failed to receive confirmation as to whether
his filing had been received. Id. at 671. When the relative discovered that Stoot’s
writ application was never received, Stoot filed a second writ application that the
supreme court “denied.” Stoot subsequently filed a federal habeas corpus petition
that the district court dismissed as untimely. Id. at 670-71.
On appeal, the Fifth Circuit considered whether Stoot had timely filed his
writ application in state court, thereby tolling the period of limitation on his federal
habeas petition. Id. In support of his claim, Stoot presented an Inmate’s Request
for Legal/Indigent Mail as evidence that he had mailed an earlier writ application
that the supreme court had not received. Id. at 671. The Fifth Circuit concluded
that Louisiana would apply the prison mailbox rule even when the timely pleading
was never received by the state court. Id. Specifically, the Fifth Circuit found:
[A] pro se prisoner’s pleading is deemed filed on the date that the prisoner submits the pleading to prison authorities to be mailed, regardless of whether the pleading actually reaches the court. Under such a rule, it is of course incumbent upon the petitioner to diligently pursue his petition. A failure to inquire about a lost petition is strong evidence that the petition was, in fact, never sent.
4 Id. at 672. In doing so, the Fifth Circuit reasoned that “reference to prison mail
logs usually answers the question of when the petition was actually mailed” but
concluded in Stoot’s case that “we are ill-equipped to determine whether Stoot’s
allegations are true.” Id. Accordingly, the Fifth Circuit reversed and remanded
Stoot’s case to the district court for a factual inquiry into whether Stoot submitted a
timely petition.
In the instant case, relator’s APCR filed with the district court on March 21,
2024, standing alone, appears to be time-barred. However, like the scenario
presented in Stoot, supra, relator has submitted an Offender’s Request for
Legal/Indigent Mail, dated December 13, 2021, as evidence of his earlier filing.
Relator also sought assistance from a family member to inquire as to whether his
APCR had been ruled upon by the district court. Although the timing of the
inquiry is unclear, after learning that the APCR had never been received, relator
subsequently filed another APCR with the district court. We find relator’s case
warrants a determination by the district court as to whether relator’s original APCR
was timely filed under the mailbox rule. See Houston v. Lack, supra.
DECREE
Accordingly, for the reasons stated herein, this writ application is granted.
We reverse the district court’s judgment that denied relator’s APCR, and remand
this matter to the district court for consideration as to whether relator’s original
APCR was timely.
Gretna, Louisiana, this 10th day of June, 2024.
FHW JGG SUS
5 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX www.fifthcircuit.org
NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS DAY 06/10/2024 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
24-KH-198 E-NOTIFIED 29th Judicial District Court (Clerk) Honorable Connie M. Aucoin (DISTRICT JUDGE) Honorable M. Lauren Lemmon (DISTRICT JUDGE) No Attorney(s) were ENOTIFIED
MAILED Jerel Smith #170560 (Relator) Hon. Joel T. Chaisson, II (Respondent) District Attorney Louisiana State Penitentiary Twenty-Ninth Judicial District Court Angola, LA 70712 Post Office Box 680 Hahnville, LA 70057 >C!EJC tc • •
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