STATE OF LOUISIANA NO. 25-KH-373
VERSUS FIFTH CIRCUIT
NOEL AUSTIN COURT OF APPEAL
STATE OF LOUISIANA
September 12, 2025
Linda Tran First Deputy Clerk
IN RE NOEL AUSTIN
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE FRANK A. BRINDISI, DIVISION "E", NUMBER 03-6329
Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Stephen J. Windhorst
WRIT DENIED
On February 18, 2004, a jury found defendant-relator, Noel Austin, guilty of
two counts of attempted first degree murder, aggravated battery, and possession
with intent to distribute cocaine. On March 4, 2004, the trial court sentenced him to
concurrent terms of fifty years imprisonment at hard labor without benefit of
parole, probation, or suspension of sentence for the attempted first degree murder
convictions, ten years imprisonment at hard labor for the aggravated battery
conviction, and thirty years imprisonment at hard labor with the first two years to
be served without benefit of parole, probation, or suspension of sentence for the
conviction of possession with intent to distribute cocaine. After a habitual offender
hearing on May 18, 2004, the trial court found relator to be a third-felony offender,
vacated his original sentence on count one of attempted first degree murder, and
imposed a sentence of life imprisonment at hard labor without the benefit of
parole, probation, or suspension of sentence.
25-KH-373 This Court affirmed relator’s convictions and sentences, and the Louisiana
Supreme Court denied relator’s writ application. See State v. Austin, 04-993 (La.
App. 5 Cir. 3/1/05), 900 So.2d 867, writ denied, 05-830 (La. 11/28/05), 916 So.2d
143.
On July 9, 2025, relator filed a Motion to Correct an Invalid and Illegal
Habitual Offender Sentence, claiming that his habitual offender sentence was
illegal because the court, not a jury, “made a factual finding which had the effect of
increasing his punishment.” Relator relied on the United States Supreme Court’s
decision in Erlinger v. United States, 602 U.S. 821, 144 S.Ct. 1840, 219 L.Ed.2d
451 (2024), which held that the Fifth and Sixth Amendments require a unanimous
jury’s determination of facts essential to an enhanced sentence under the Armed
Career Criminal Act.1 On July 10, 2025, the trial court denied relief, finding that
relator’s claim “contest[ing] the constitutionality of his sentence pursuant to the
multiple bill” was not “cognizable in a motion to correct illegal sentence.” The trial
court further found “no illegality in the defendant’s sentences, as the terms of the
sentences imposed are clearly within the statutory parameters.”
On August 19, 2025, relator filed a writ application re-urging his claim that
his sentence is illegal.
Discussion
As an initial matter, we note that relator’s motion did not point to a claimed
illegal term in his habitual offender sentence, but instead challenged the
constitutionality of the trial court’s habitual offender finding. La. C.Cr.P. art.
882(A) states: “An illegal sentence may be corrected at any time by the court that
imposed the sentence or by an appellate court on review.” Because relator does not
1 The Armed Criminal Career Act “imposes lengthy mandatory prison terms on certain defendants who have previously committed three violent felonies or serious drug offenses on separate occasions.” Erlinger, 602 U.S. at 825, 144 S.Ct. at 1846.
2 point to an illegal term of his sentence, the trial court correctly determined that
relator did not raise a claim cognizable in a motion to correct an illegal sentence.
Accordingly, the “at any time” language of La. C.Cr.P. art. 882 does not apply to
relator’s motion.
Although the Louisiana Supreme Court has recognized that courts should
“look through the caption of the pleadings in order to ascertain their substance and
to do substantial justice” (see State v. Moses, 05-787 (La. App. 5 Cir. 5/9/06), 932
So.2d 701, 706 n.3, writ denied, 06-2171 (La. 4/5/07), 954 So.2d 140), a
constitutional challenge to the district court’s habitual offender determination and
sentence must be made in a timely fashion. 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.” Relator’s
conviction and sentence became final in 2005. See State v. Austin, 05-830 (La.
11/28/05), 916 So.2d 143. Thus, relator’s challenge appears to be untimely.
However, La. C.Cr.P. art. 930.8(A)(2) allows a defendant to file an
application for post-conviction relief (APCR) more than two years after his
conviction and sentence become final when “[t]he 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.” Erlinger, which relator relies upon to support his
motion, was decided on June 21, 2024 and became final on July 16, 2024,
following the expiration of the twenty-five-day time period for filing a petition for
rehearing.2 Relator filed his Motion to Correct an Invalid and Illegal Habitual
2 Supreme Court Rule 44 provides that a petition for rehearing of a judgment or decision on the merits must be filed within twenty-five days of the entry of the judgment or decision. 3 Offender Sentence with the district court on July 9, 2025, within one year of the
finality of Erlinger. Nevertheless, we find Erlinger does not apply to relator’s case.
In Erlinger, the Supreme Court pointed out that the sentencing court’s
factual finding that the defendant’s offenses “occurred on at least three separate
occasions had the effect of increasing both the maximum and minimum sentences”
that the defendant faced. 602 U.S. at 835, 144 S.Ct. at 1852 (emphasis in original).
In that scenario, the Supreme Court determined that “the district court had to do
more than identify his previous convictions and the legal elements required to
sustain them.” 602 U.S. at 838, 144 S.Ct. at 1854. As such, the Supreme Court
ruled that the defendant was entitled under the Fifth and Sixth Amendments to
have a jury unanimously determine beyond a reasonable doubt whether his past
offenses were committed on separate occasions for sentencing enhancement
purposes. 602 U.S. at. 849, 144 S.Ct. at 1860.
At the same time, however, Erlinger let stand the exception set forth in
Almendarez–Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d
350 (1998), where the Supreme Court held that the existence of a prior conviction
triggering enhanced penalties for a recidivist was a fact that could be found by a
judge, not an element of the crime that must be found by a jury. Specifically, in
Erlinger, the Supreme Court stated: “no one in this case has asked us to revisit
Almendarez-Torres. Nor is there need to do so today ... It persists as a ‘narrow
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STATE OF LOUISIANA NO. 25-KH-373
VERSUS FIFTH CIRCUIT
NOEL AUSTIN COURT OF APPEAL
STATE OF LOUISIANA
September 12, 2025
Linda Tran First Deputy Clerk
IN RE NOEL AUSTIN
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE FRANK A. BRINDISI, DIVISION "E", NUMBER 03-6329
Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Stephen J. Windhorst
WRIT DENIED
On February 18, 2004, a jury found defendant-relator, Noel Austin, guilty of
two counts of attempted first degree murder, aggravated battery, and possession
with intent to distribute cocaine. On March 4, 2004, the trial court sentenced him to
concurrent terms of fifty years imprisonment at hard labor without benefit of
parole, probation, or suspension of sentence for the attempted first degree murder
convictions, ten years imprisonment at hard labor for the aggravated battery
conviction, and thirty years imprisonment at hard labor with the first two years to
be served without benefit of parole, probation, or suspension of sentence for the
conviction of possession with intent to distribute cocaine. After a habitual offender
hearing on May 18, 2004, the trial court found relator to be a third-felony offender,
vacated his original sentence on count one of attempted first degree murder, and
imposed a sentence of life imprisonment at hard labor without the benefit of
parole, probation, or suspension of sentence.
25-KH-373 This Court affirmed relator’s convictions and sentences, and the Louisiana
Supreme Court denied relator’s writ application. See State v. Austin, 04-993 (La.
App. 5 Cir. 3/1/05), 900 So.2d 867, writ denied, 05-830 (La. 11/28/05), 916 So.2d
143.
On July 9, 2025, relator filed a Motion to Correct an Invalid and Illegal
Habitual Offender Sentence, claiming that his habitual offender sentence was
illegal because the court, not a jury, “made a factual finding which had the effect of
increasing his punishment.” Relator relied on the United States Supreme Court’s
decision in Erlinger v. United States, 602 U.S. 821, 144 S.Ct. 1840, 219 L.Ed.2d
451 (2024), which held that the Fifth and Sixth Amendments require a unanimous
jury’s determination of facts essential to an enhanced sentence under the Armed
Career Criminal Act.1 On July 10, 2025, the trial court denied relief, finding that
relator’s claim “contest[ing] the constitutionality of his sentence pursuant to the
multiple bill” was not “cognizable in a motion to correct illegal sentence.” The trial
court further found “no illegality in the defendant’s sentences, as the terms of the
sentences imposed are clearly within the statutory parameters.”
On August 19, 2025, relator filed a writ application re-urging his claim that
his sentence is illegal.
Discussion
As an initial matter, we note that relator’s motion did not point to a claimed
illegal term in his habitual offender sentence, but instead challenged the
constitutionality of the trial court’s habitual offender finding. La. C.Cr.P. art.
882(A) states: “An illegal sentence may be corrected at any time by the court that
imposed the sentence or by an appellate court on review.” Because relator does not
1 The Armed Criminal Career Act “imposes lengthy mandatory prison terms on certain defendants who have previously committed three violent felonies or serious drug offenses on separate occasions.” Erlinger, 602 U.S. at 825, 144 S.Ct. at 1846.
2 point to an illegal term of his sentence, the trial court correctly determined that
relator did not raise a claim cognizable in a motion to correct an illegal sentence.
Accordingly, the “at any time” language of La. C.Cr.P. art. 882 does not apply to
relator’s motion.
Although the Louisiana Supreme Court has recognized that courts should
“look through the caption of the pleadings in order to ascertain their substance and
to do substantial justice” (see State v. Moses, 05-787 (La. App. 5 Cir. 5/9/06), 932
So.2d 701, 706 n.3, writ denied, 06-2171 (La. 4/5/07), 954 So.2d 140), a
constitutional challenge to the district court’s habitual offender determination and
sentence must be made in a timely fashion. 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.” Relator’s
conviction and sentence became final in 2005. See State v. Austin, 05-830 (La.
11/28/05), 916 So.2d 143. Thus, relator’s challenge appears to be untimely.
However, La. C.Cr.P. art. 930.8(A)(2) allows a defendant to file an
application for post-conviction relief (APCR) more than two years after his
conviction and sentence become final when “[t]he 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.” Erlinger, which relator relies upon to support his
motion, was decided on June 21, 2024 and became final on July 16, 2024,
following the expiration of the twenty-five-day time period for filing a petition for
rehearing.2 Relator filed his Motion to Correct an Invalid and Illegal Habitual
2 Supreme Court Rule 44 provides that a petition for rehearing of a judgment or decision on the merits must be filed within twenty-five days of the entry of the judgment or decision. 3 Offender Sentence with the district court on July 9, 2025, within one year of the
finality of Erlinger. Nevertheless, we find Erlinger does not apply to relator’s case.
In Erlinger, the Supreme Court pointed out that the sentencing court’s
factual finding that the defendant’s offenses “occurred on at least three separate
occasions had the effect of increasing both the maximum and minimum sentences”
that the defendant faced. 602 U.S. at 835, 144 S.Ct. at 1852 (emphasis in original).
In that scenario, the Supreme Court determined that “the district court had to do
more than identify his previous convictions and the legal elements required to
sustain them.” 602 U.S. at 838, 144 S.Ct. at 1854. As such, the Supreme Court
ruled that the defendant was entitled under the Fifth and Sixth Amendments to
have a jury unanimously determine beyond a reasonable doubt whether his past
offenses were committed on separate occasions for sentencing enhancement
purposes. 602 U.S. at. 849, 144 S.Ct. at 1860.
At the same time, however, Erlinger let stand the exception set forth in
Almendarez–Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d
350 (1998), where the Supreme Court held that the existence of a prior conviction
triggering enhanced penalties for a recidivist was a fact that could be found by a
judge, not an element of the crime that must be found by a jury. Specifically, in
Erlinger, the Supreme Court stated: “no one in this case has asked us to revisit
Almendarez-Torres. Nor is there need to do so today ... It persists as a ‘narrow
exception’ permitting judges to find only ‘the fact of a prior conviction[.]’” Id.,
602 U.S. at 1853-54, 144 S.Ct. at 1840 (quoting Alleyne v. United States, 570 U.S.
99, 111 n.1, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013)).
Furthermore, it is well settled that “[a] defendant is not convicted of being a
habitual offender. Rather, a defendant is adjudicated as a habitual offender as a
result of prior felony convictions. The sentence to be imposed following a habitual
offender adjudication is simply an enhanced penalty for the underlying
4 conviction.” See State v. Kennon, 19-998 (La. 9/1/20), 340 So.3d 881, 887 (citing
State v. Parker, 03-924 (La. 4/14/04), 871 So.2d 317, 325-26). As “a multiple
offender proceeding is not the trial of a criminal charge” but instead is “merely part
of sentencing and allows enhanced penalties for repeat offenders,” the trial court’s
adjudication of relator’s habitual offender status pursuant to La. R.S. 15:529.1 does
not run afoul of Erlinger’s holding. See State v. Langendorfer, 389 So.2d 1271,
1276-77 (La. 1980).
Finally, the Erlinger decision does not state whether its holding is to be
applied retroactively,3 but other courts have concluded that “Erlinger did not
announce a new rule that is retroactively applicable on collateral review.” See, e.g.,
Johnson v. United States, No. 1:24-CV-831, 2025 WL 731966, at *11-12 (W.D.
Mich., Mar. 7, 2025) (collecting cases). Thus, on the showing made, relator has not
satisfied the requirement for reviewing a final ruling of an appellate court by
establishing an unknown interpretation of constitutional law, nor has he shown that
the interpretation is retroactively applicable to his case. See La. C.Cr.P. art.
930.8(A)(1). Consequently, for post-conviction purposes, relator’s claim is
untimely. Relator’s writ application is denied.
Gretna, Louisiana, this 12th day of September, 2025.
SMC MEJ SJW
3 In Justice Kavanaugh’s dissent, he observed: “[f]or any case that is already final, the Teague [v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)] rule will presumably bar the defendant from raising today’s new rule in collateral proceedings.” Erlinger, 602 U.S. at 859 n.3, 144 S.Ct. at 1866. 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. TRAN 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 09/12/2025 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:
25-KH-373 E-NOTIFIED 24th Judicial District Court (Clerk) Honorable Frank A. Brindisi (DISTRICT JUDGE) Thomas J. Butler (Respondent)
MAILED Noel Austin #305854 (Relator) Louisiana State Penitentiary Angola, LA 70712