STATE OF LOUISIANA NO. 24-KH-181
VERSUS FIFTH CIRCUIT
TORREY BROWN COURT OF APPEAL
STATE OF LOUISIANA
May 14, 2024
Susan Buchholz Chief Deputy Clerk
IN RE TORREY BROWN
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE JUNE B. DARENSBURG, DIVISION "C", NUMBER 08-1959, 09-2793
Panel composed of Judges John J. Molaison, Jr., Scott U. Schlegel, and Timothy S. Marcel
WRIT GRANTED FOR A LIMITED PURPOSE; RELIEF DENIED; REMANDED
In this pro se writ application, relator/defendant seeks review of the district
court’s January 26, 2024 Order denying his Second or Subsequent Application for
Post-Conviction Relief (“APCR”). For reasons stated more fully below, we deny
relator’s writ application on the merits, and grant the writ for the limited purpose to
remand this matter to the district court to correct a deficiency in the record.
On September 12, 2012, a jury found relator guilty of two counts of battery
upon a police officer while being detained in a correctional facility. On October
17, 2012, the State filed a habitual offender bill of information on count one
against relator, alleging him to be a third felony offender. A multiple bill hearing
was held on March 21, 2013. At the conclusion of the multiple bill hearing, the
district court found relator to be a third felony offender. The district court then
vacated relator’s original sentence as to count one and sentenced relator under La. R.S. 15:529.1 (the Habitual Offender Statute) to imprisonment at hard labor for a
term of forty months, to run concurrently with defendant’s sentence on count two,
and consecutively with any other sentence defendant was currently serving.
On appeal, this Court affirmed relator’s convictions, but found that his
multiple offender adjudication was not before this Court, as his motion for appeal
was filed before his multiple offender adjudication. State v. Brown, 12-922 (La.
App. 5 Cir. 12/12/13), 131 So.3d 207, 217 n.5. This Court further stated that if
relator wished to appeal his multiple offender adjudication, he must obtain an out-
of-time appeal because more than thirty days had elapsed since his multiple
offender adjudication. Id. On December 15, 2015, relator filed an APCR with the
district court challenging his habitual offender adjudication and requesting an out-
of-time appeal. On January 5, 2016, the district court granted relator an out-of-
time appeal. On September 22, 2016, this Court found that relator’s December 15,
2015 APCR seeking an out-of-time appeal concerning his habitual offender
adjudication was untimely and dismissed the appeal. State v. Brown, 16-141 (La.
App. 5 Cir. 9/22/16), 202 So.3d 585, 589.
Relator’s current APCR, filed on January 22, 2024, argues that counsel
rendered ineffective assistance by failing to file a timely motion to appeal
following his 2013 habitual offender adjudication and sentencing. Relying upon
State v. Clark, 19-1077 (La. 5/1/20), 295 So.3d 935, 936, relator asserts that he
“lost his constitutional right to an appeal through no fault of his own” with respect
to the right to appeal his habitual offender adjudication and sentence.
On January 26, 2024, the district court denied relief, stating:
ln this application for post-conviction relief, the defendant again seeks to challenge his 2013 habitual offender adjudication. Upon review, the court finds that there is no exception to delayed filing of this untimely application for post-conviction relief. Pursuant to La. C.Cr.P. art. 930.8, this application is untimely as it is filed more than two years after finality and the court will deny this application for post-conviction relief. Relator appears to argue that an exception set forth in La. C.C.P. art.
930.8(A)(2) applies based on the Louisiana Supreme Court case of State v Clark,
supra. In Clark, the Court found that trial counsel for the defendant failed to file a
motion for appeal following his conviction. It further found that the defendant lost
his constitutional right to an appeal through no fault of his own. The Louisiana
Supreme Court found that to remedy this potential denial of due process, it would
remand the case to the court of appeal to address the defendant’s appeal on the
merits. However, the exception set forth in La. C.Cr.P. art. 930.8(A)(2)1 requires
that the claim be raised within one year of the theretofore unknown interpretation
of constitutional law. Relator’s claim was not raised within one year of the 2020
decision in Clark. In addition, unlike the defendant in Clark, relator received a
direct review of his convictions.2 See State v. Brown, 131 So.3d 207.
Relator also contends that the district court erred because La. C.Cr.P. arts.
930.4(G) and 930.8(D) permit the State to waive procedural and timeliness
objections, and the district court should have reviewed the merits of relator’s
claims in the interest of justice. But relator’s writ application does not contain any
writings indicating that the State agreed to waive procedural or timeliness
objections existing with respect to relator’s APCR.
1 La. C.Cr.P. art. 930.8(A)(2) provides:
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 under the provisions of Article 914 or 922, unless any of the following apply:
***
(2) The 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. 2 Although relator did not cite State v. Harris, 18-1012 (La. 7/9/20), 340 So.3d 845, 857-58, we recognize that Harris held that a claim for ineffective assistance of counsel at sentencing is now cognizable on collateral review. However, Harris does not help relator’s position because relator’s APCR was filed more than a year after Harris became final. Therefore, any claim that relator would have based upon Harris is untimely under La. C.Cr.P. art. 930.8(A)(2). Thus, this Court finds no basis upon which to disturb the ruling of the
district court. Accordingly, we hold that relator’s application is time-barred and
deny the relief requested.
Further, in considering this writ application and attachments, we find that the
district court incorrectly captioned its ruling as District Court Case No. 08-1959, a
case in connection with relator’s convictions for attempted first degree robbery,
first degree robbery, and carjacking. The district court should have captioned its
ruling under District Court Case No. 09-2793, the case in connection with relator’s
convictions for battery upon a police officer and in which the post-conviction
pleadings at issue were filed. The district court is authorized to correct an error or
deficiency in the record. La. C.Cr.P. art. 916(2); State v. Williams, 01-0554 (La.
5/14/02), 817 So.2d 40, 44. We therefore grant this writ for the limited purpose to
remand this matter to the district court. The district court is ordered to correct the
January 26, 2024 order to reflect the correct District Court Case No. 09-2793, and
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF LOUISIANA NO. 24-KH-181
VERSUS FIFTH CIRCUIT
TORREY BROWN COURT OF APPEAL
STATE OF LOUISIANA
May 14, 2024
Susan Buchholz Chief Deputy Clerk
IN RE TORREY BROWN
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE JUNE B. DARENSBURG, DIVISION "C", NUMBER 08-1959, 09-2793
Panel composed of Judges John J. Molaison, Jr., Scott U. Schlegel, and Timothy S. Marcel
WRIT GRANTED FOR A LIMITED PURPOSE; RELIEF DENIED; REMANDED
In this pro se writ application, relator/defendant seeks review of the district
court’s January 26, 2024 Order denying his Second or Subsequent Application for
Post-Conviction Relief (“APCR”). For reasons stated more fully below, we deny
relator’s writ application on the merits, and grant the writ for the limited purpose to
remand this matter to the district court to correct a deficiency in the record.
On September 12, 2012, a jury found relator guilty of two counts of battery
upon a police officer while being detained in a correctional facility. On October
17, 2012, the State filed a habitual offender bill of information on count one
against relator, alleging him to be a third felony offender. A multiple bill hearing
was held on March 21, 2013. At the conclusion of the multiple bill hearing, the
district court found relator to be a third felony offender. The district court then
vacated relator’s original sentence as to count one and sentenced relator under La. R.S. 15:529.1 (the Habitual Offender Statute) to imprisonment at hard labor for a
term of forty months, to run concurrently with defendant’s sentence on count two,
and consecutively with any other sentence defendant was currently serving.
On appeal, this Court affirmed relator’s convictions, but found that his
multiple offender adjudication was not before this Court, as his motion for appeal
was filed before his multiple offender adjudication. State v. Brown, 12-922 (La.
App. 5 Cir. 12/12/13), 131 So.3d 207, 217 n.5. This Court further stated that if
relator wished to appeal his multiple offender adjudication, he must obtain an out-
of-time appeal because more than thirty days had elapsed since his multiple
offender adjudication. Id. On December 15, 2015, relator filed an APCR with the
district court challenging his habitual offender adjudication and requesting an out-
of-time appeal. On January 5, 2016, the district court granted relator an out-of-
time appeal. On September 22, 2016, this Court found that relator’s December 15,
2015 APCR seeking an out-of-time appeal concerning his habitual offender
adjudication was untimely and dismissed the appeal. State v. Brown, 16-141 (La.
App. 5 Cir. 9/22/16), 202 So.3d 585, 589.
Relator’s current APCR, filed on January 22, 2024, argues that counsel
rendered ineffective assistance by failing to file a timely motion to appeal
following his 2013 habitual offender adjudication and sentencing. Relying upon
State v. Clark, 19-1077 (La. 5/1/20), 295 So.3d 935, 936, relator asserts that he
“lost his constitutional right to an appeal through no fault of his own” with respect
to the right to appeal his habitual offender adjudication and sentence.
On January 26, 2024, the district court denied relief, stating:
ln this application for post-conviction relief, the defendant again seeks to challenge his 2013 habitual offender adjudication. Upon review, the court finds that there is no exception to delayed filing of this untimely application for post-conviction relief. Pursuant to La. C.Cr.P. art. 930.8, this application is untimely as it is filed more than two years after finality and the court will deny this application for post-conviction relief. Relator appears to argue that an exception set forth in La. C.C.P. art.
930.8(A)(2) applies based on the Louisiana Supreme Court case of State v Clark,
supra. In Clark, the Court found that trial counsel for the defendant failed to file a
motion for appeal following his conviction. It further found that the defendant lost
his constitutional right to an appeal through no fault of his own. The Louisiana
Supreme Court found that to remedy this potential denial of due process, it would
remand the case to the court of appeal to address the defendant’s appeal on the
merits. However, the exception set forth in La. C.Cr.P. art. 930.8(A)(2)1 requires
that the claim be raised within one year of the theretofore unknown interpretation
of constitutional law. Relator’s claim was not raised within one year of the 2020
decision in Clark. In addition, unlike the defendant in Clark, relator received a
direct review of his convictions.2 See State v. Brown, 131 So.3d 207.
Relator also contends that the district court erred because La. C.Cr.P. arts.
930.4(G) and 930.8(D) permit the State to waive procedural and timeliness
objections, and the district court should have reviewed the merits of relator’s
claims in the interest of justice. But relator’s writ application does not contain any
writings indicating that the State agreed to waive procedural or timeliness
objections existing with respect to relator’s APCR.
1 La. C.Cr.P. art. 930.8(A)(2) provides:
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 under the provisions of Article 914 or 922, unless any of the following apply:
***
(2) The 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. 2 Although relator did not cite State v. Harris, 18-1012 (La. 7/9/20), 340 So.3d 845, 857-58, we recognize that Harris held that a claim for ineffective assistance of counsel at sentencing is now cognizable on collateral review. However, Harris does not help relator’s position because relator’s APCR was filed more than a year after Harris became final. Therefore, any claim that relator would have based upon Harris is untimely under La. C.Cr.P. art. 930.8(A)(2). Thus, this Court finds no basis upon which to disturb the ruling of the
district court. Accordingly, we hold that relator’s application is time-barred and
deny the relief requested.
Further, in considering this writ application and attachments, we find that the
district court incorrectly captioned its ruling as District Court Case No. 08-1959, a
case in connection with relator’s convictions for attempted first degree robbery,
first degree robbery, and carjacking. The district court should have captioned its
ruling under District Court Case No. 09-2793, the case in connection with relator’s
convictions for battery upon a police officer and in which the post-conviction
pleadings at issue were filed. The district court is authorized to correct an error or
deficiency in the record. La. C.Cr.P. art. 916(2); State v. Williams, 01-0554 (La.
5/14/02), 817 So.2d 40, 44. We therefore grant this writ for the limited purpose to
remand this matter to the district court. The district court is ordered to correct the
January 26, 2024 order to reflect the correct District Court Case No. 09-2793, and
the Clerk of Court for the 24th Judicial District Court is ordered to properly file the
January 26, 2024 order in District Court Case No. 09-2793. In all other respects,
this writ is denied.
Gretna, Louisiana, this 14th day of May, 2024.
SUS JJM TSM 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 05/14/2024 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-181 E-NOTIFIED 24th Judicial District Court (Clerk) Honorable June B. Darensburg (DISTRICT JUDGE) Thomas J. Butler (Respondent)
MAILED Torrey D. Brown #386420 (Relator) Rayburn Correctional Center 27268 Highway 21 Angie, LA 70426