United States District Court, W.D. Louisiana, Lake Charles Division
KATHLEEN KAY, Magistrate Judge.
Before the court is an application for a writ of audita querela filed by petitioner Donald K. Runnels. Petitioner is an inmate in the custody of the Louisiana Department of Public Safety and Corrections. He is incarcerated at Tensas Parish Detention Center in Waterproof, Louisiana. For the reasons set forth below, the petitioner's application is hereby DENIED.
I. FACTS & PROCEDURAL HISTORY
A. Procedural History
The petitioner, Donald K. Runnels, was arrested after he was found to be in possession of various cleaning supplies and a shovel that belonged to a Pizza Hut in Oakdale, Louisiana. He was subsequently charged with one count of simple burglary, and one count of theft less than $500.00. At trial on the simple burglary count, a six-person jury unanimously convicted him. Thereafter, the State filed a habitual offender bill of information. On December 15, 2011, while the habitual offender bill was pending, the trial court imposed sentence on the underlying offenses.
For the simple burglary charge, the defendant was sentenced to ten years at hard labor with three years suspended. The trial court further imposed four years of supervised probation, with conditions, and ordered the defendant to pay supervision and technology fees. For the theft less than $500.00 charge, the trial court sentenced him to six months in the parish jail to run concurrent with his simple burglary sentence. Runnels v. Warden Avoyelles Marksville Detention Center, 13-cv-101 (W.D. La.), Doc. 5, att. 1, pp. 22-23.
Petitioner subsequently appealed his sentence and conviction to the Louisiana Third Circuit Court of Appeal which, on November 7, 2012, affirmed his conviction and sentence for simple burglary but vacated and remanded the sentence for theft less than $500.00 [ Id. at Doc. 5, att. 1, p. 20] noting that the record did not indicate that a verdict had been rendered either by the jury or by the trial court on that count. See State v. Runnels, 101 So.3d 1046 (La.App. 3 Cir. 11/7/12).
Following his appeal, the petitioner was sentenced as a Habitual Offender on or about November 29, 2012. He then filed a motion for rehearing in December of 2012 which was denied on January 9, 2013. Thereafter, he did not seek review with a higher state court. Runnels, 13-cv-101 (W.D. La.), Doc. 5, pp. 4-5.
On January 15, 2013, petitioner filed an application for a writ of habeas corpus with this court which was later dismissed without prejudice for his failure to exhaust his remedies at the state level. On January 23, 2013, petitioner filed another application for writ of habeas corpus with this court wherein he attacked both the 2011 conviction and a 1996 conviction for robbery claiming that his 1996 conviction was improperly used to enhance his 2011 conviction. We dismissed that petition with prejudice. See Runnels v. Warden Tensas Parish Detention Center, 13-cv-209 (W.D. La.), Doc. 4. On March 15, 2014 the petitioner filed yet another application for a writ of habeas corpus which has been amended several times. As of the present time, that application remains pending before us.
Under consideration now is the petitioner's application for a writ of audita querela filed on November 5, 2014. It alleges that "newly discovered evidence, " namely a photograph the petitioner has obtained, gives rise to a "high probability of acquittal." Doc. 38, p. 3. Accordingly, he asserts that enforcement of the November 29, 2012 judgment sentencing him to fifteen years imprisonment as a Habitual Offender should be halted and that he should therefore be released from custody. Id.
B. Requests for Bail
During the course of the instant litigation, the petitioner has twice asked this court to set bail in order to secure his release pending collateral review. On his first request filed on June 18, 2014 we stated that we had "no authority to order release from a final state court judgment of conviction pending collateral review except under "extraordinary cases involving special circumstances or a high probability of success." Doc. 24, (citing Land v. Deeds, 878 F.2d 318, 319 (9th Cir. 1989) (internal citations omitted)). We found that the petitioner had set forth no such extraordinary circumstances and thus denied the request.
Reviewing his second request filed on July 7, 2014 we found yet again that the petitioner had still failed to set forth any facts to show any special circumstances or otherwise indicating a high probability of success. We further noted that "[e]ven if an extraordinary case were to exist, it is doubtful this court would allow release given petitioner's having fled the State of Louisiana prior to execution of sentence while on bond on appeal as evidenced by the correspondence of the ...