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ON APPLICATION FOR WRITS DIRECTED TO CRIMINAL DISTRICT COURT ORLEANS PARISH. NO. 476-958, SECTION " G" . Honorable Julian A. Parker, Judge.
Leon A. Cannizzaro, Jr., District Attorney, Kyle C. Daly, Assistant District Attorney, New Orleans, LA, COUNSEL FOR RESPONDENT/STATE OF LOUISIANA.
Keith Jenkins, Louisiana State Penitentiary, Angola, LA, DEFENDANT/RELATOR.
(Court composed of Judge Dennis R. Bagneris, Sr., Judge Roland L. Belsome, Judge Paul A. Bonin).
[2015-1148 La.App. 4 Cir. 1] PAUL A. BONIN, J.
Keith Jenkins, a prisoner serving a life sentence at Angola State Penitentiary, timely filed an application for post-conviction relief. In that application, he raised the claim of ineffective assistance of trial counsel and alleged five distinct instances in which his counsel's representation was both deficient and prejudicial. The district judge, who also presided over Mr. Jenkins. trial, dismissed his application without requiring the district attorney to file an answer and held that Mr. Jenkins had failed to provide sufficient evidence to support the allegations raised.
Mr. Jenkins then timely sought our supervisory review. The district attorney filed an opposition to this application. Having closely examined the allegations set forth by Mr. Jenkins regarding his trial counsel's performance, we grant his application for supervisory review. But, after our de novo review of the application for post-conviction relief, we agree with the district judge that Mr. Jenkins is not entitled to any relief because his application fails to substantiate any [2015-1148 La.App. 4 Cir. 2] claim that would entitle the petitioner to such relief. We thus affirm the district judge's denial of Mr. Jenkins' application for post-conviction relief.
We explain our decision in greater detail below.
We begin with a brief summary of the proceedings which concluded in Mr. Jenkins. convictions and sentences.
Mr. Jenkins was charged in a single bill of information with one count of possession with the intent to distribute cocaine and one count of possession of a firearm by a convicted felon. No motion to sever those counts for trial was ever filed, and this forms the basis for Mr. Jenkins. first allegation against his counsel.
Just before commencement of trial and in the presence of Mr. Jenkins, trial counsel stated on the record that the district attorney had offered a plea bargain to Mr. Jenkins which would result in a sentence of ten years imprisonment with a stipulation that habitual offender proceedings would not be instituted. Because Mr. Jenkins had been convicted of possession of cocaine on three prior occasions, if convicted as charged, Mr. Jenkins faced a sentencing range of imprisonment for not less
than thirty years, nor more than the remainder of his natural life, without the benefit of probation, parole, or suspension of sentence. See La. R.S. 40:967 B(4)(b); La. R.S. 15:529.1 A(4)(a). Trial counsel also stated on the record that Mr. Jenkins had rejected that offer; this relates to Mr. Jenkins. second allegation against trial counsel.
[2015-1148 La.App. 4 Cir. 3] During trial, police officers testified that Mr. Jenkins, while standing in front of an abandoned home, was approached by and had a brief conversation with someone in a red vehicle. Mr. Jenkins then walked into and back out of an alley alongside that abandoned home, handed an unknown object to the driver, and received an unknown amount of currency in return. The red car then drove away and was not thereafter stopped by police. Next, according to police testimony, Mr. Jenkins returned to that alley and re-emerged holding his waistband and acting nervously. According to the police, Mr. Jenkins entered a silver car containing at least two other occupants that approached shortly thereafter.
The police then effectuated a stop on that silver car, and, according to police testimony, Mr. Jenkins fled, running into an empty lot filled with knee-high grass and debris, where he was observed discarding a gun and a white object. Following Mr. Jenkins. capture, the officers then located the gun and the white object, which later field-tested positive as cocaine. The substance was also identified at trial as cocaine after laboratory testing. A police fingerprint expert further identified Mr. Jenkins as having been previously convicted of a felony--possession of cocaine--in 2000. No fingerprint or other laboratory testing was requested by trial counsel, and this relates to Mr. Jenkins. third and fourth allegations against counsel.
Mr. Jenkins testified at trial in his own defense. He explained that he was in that area to check on his mother's house and that he was in the silver car with three other people, two of whom, Mr. Jenkins claims, were present in court on the day of his trial. He testified that he did not run from the police and denied possessing a gun or drugs. No witnesses, however, were called by trial counsel to corroborate Mr. Jenkins. testimony, and this relates to his fifth allegation against his trial counsel.
[2015-1148 La.App. 4 Cir. 4] The jury found Mr. Jenkins guilty as charged of being a convicted felon in possession of a firearm and returned a responsive verdict of guilty of attempted possession with the intent to distribute cocaine. The trial judge sentenced Mr. Jenkins to a fifteen-year term of imprisonment for possession of a firearm by a convicted felon. With respect to the conviction for attempted possession with the intent to distribute cocaine, the district attorney instituted habitual offender proceedings, charging Mr. Jenkins as a fourth-felony offender. The sentencing judge adjudicated Mr. Jenkins to be a fourth-felony offender and, after explaining his decision, sentenced Mr. Jenkins to life imprisonment without the benefit of probation, parole, or suspension of sentence.
Mr. Jenkins appealed, and we affirmed his sentences and convictions. See State v. Jenkins, 09-1665 (La.App. 4 Cir. 7/21/10), 39 So.3d 859, writ denied 10-1926 (La. 2/18/11), 57 So.3d 330. On May 3, 2012, Mr. Jenkins timely filed his application for post-conviction relief in the district court. See La. C.Cr.P. art. 930.8 A (setting out the general rule that no application for post-conviction relief will 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..." ); La. C.Cr.P. art. 922 D (" If an application for a writ of review is timely filed with the supreme court, the ...