United States District Court, M.D. Louisiana
LARRY A. LEWIS (#416274)
N. BURL CAIN, ET AL
MAGISTRATE JUDGE'S REPORT
STEPHEN C. RIEDLINGER, District Judge.
Before the court is the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody filed by Larry A. Lewis.
For the reasons which follow, the petition should be denied.
Petitioner was found guilty of one count second degree murder in the Eighteenth Judicial District Court for Pointe Coupee Parish, Louisiana on May 24, 2006. Petitioner was sentenced to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence.
Petitioner appealed his conviction and sentence asserting a single assignment of error.
1. The trial court erred when it failed to include in its jury instructions a special jury charge on identification regarding the capacity of an eyewitness to make a reliable observation.
The Louisiana First Circuit Court of Appeal affirmed the petitioner's conviction and sentence in State of Louisiana v. Larry Lewis, Jr., 2006-2423 (La.App. 1st Cir. 6/8/07), 958 So.2d 1217 (Table).
Petitioner sought review by the Louisiana Supreme Court, which denied review on May 30, 2008. State ex rel. Larry Lewis v. State of Louisiana, 2007-1662 (La. 5/30/08), 983 So.2d 888.
Petitioner signed his application for post-conviction relief ("PCRA") on December 16, 2008, and it was filed on December 18, 2008. Petitioner asserted the following ground for relief.
1. The trial court exceeded its jurisdiction in proceeding to trial on the charge of second degree murder because the grand jury indictment was not endorsed "A True Bill" as required by LSA-La.C.Cr.P. art. 383.
On April 23, 2010, the petitioner filed a Motion to Supplement Application for Post-Conviction Relief. Petitioner asserted the following additional grounds for relief.
2. He was denied effective assistance of counsel at trial when trial counsel failed to file a motion to quash pursuant to LSA-C.Cr.P. art. 533(5).
3. He was denied effective assistance of counsel on appeal when appellate counsel failed to assert an ineffective assistance of trial counsel assignment of error on appeal.
On January 4, 2011, the petitioner, through counsel, filed a Post-Conviction Relief Application, Petitioner's Second Supplemental Memorandum. Petitioner asserted the following additional grounds for relief.
4. There was insufficient evidence to support the petitioner's second degree murder conviction.
5. He was denied effective assistance of trial counsel when counsel:
a. failed to file a Motion to Quash the defective indictment pursuant to LSA-C.Cr.P. art. 533(5); and
b. failed to introduce exonerating DNA evidence at trial.
6. The trial court was without jurisdiction to proceed to trial without a proper indictment.
An evidentiary hearing on the PCRA was held on October 12, 2011. Following the evidentiary hearing, the trial court denied the PCRA.
Petitioner sought review in the Louisiana First Circuit Court of Appeal. The Louisiana First Circuit Court of Appeal denied review on the showing made in part and the writ was denied in part. State of Louisiana v. Larry A. Lewis, Jr., 2011-2124 (La.App. 1st Cir. 1/27/12). Specifically, the appellate court held that the petitioner's insufficiency of evidence claim and his ineffective assistance of counsel claim on the grounds that counsel did not argue or submit DNA evidence at the petitioner's trial was denied on the showing made. The appellate court held that it could not adequately review the trial court's ruling because the petitioner failed to include a copy of the trial transcript and the transcript of the hearing on the post-conviction relief application. Petitioner was given until March 1, 2012 to file a new application and was directed to include the entire contents of the application, the missing items noted and a copy of the ruling. In all other respects, the writ was denied. Petitioner failed to file a new application prior to March 1, 2012.
On June 20, 2012, the petitioner once again sought review in the Louisiana First Circuit Court of Appeal. On September 12, 2012, the Louisiana First Circuit Court of Appeal denied review. State of Louisiana v. Larry A. Lewis, Jr., 2012-1078 (La.App. 1st Cir. 9/12/12).
Petitioner sought review by the Louisiana Supreme Court, which denied review on February 8, 2013. State ex rel. Larry Lewis, Jr. v. State of Louisiana, 2012-2092 (La. 2/8/13), 108 So.3d 81.
Petitioner signed his federal habeas corpus petition on March 21, 2013, and it was filed on March 22, 2013. Petitioner asserted the followings grounds for relief:
Ground One: The trial court lacked jurisdiction to proceed to trial without a proper indictment.
Ground Two: He was denied effective assistance of trial counsel when counsel:
a. failed to file a Motion to Quash the defective indictment as required by ...