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State ex rel. Lemoine v. State

Supreme Court of Louisiana

May 1, 2017

STATE EX REL. JOSEPH LEMOINE
v.
STATE OF LOUISIANA

         ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF WASHINGTON

          PER CURIAM.

         Denied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to the remaining claims, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2. We attach hereto and make a part hereof the District Court's written reasons denying relator's application.

         Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The District Court is ordered to record a minute entry consistent with this per curiam.

         22nd JUDICIAL DISTRICT COURT PARISH OF WASHINGTON STATE OF LOUISIANA

         STATE EX REL. JOSEPH LEMOINE

         v.

         N. BURL CAIN

         NO. 09-CR-106083 "B"

         JUDGMENT ON POST-CONVICTION WITH INCORPORATED REASONS

          August J. Hand, Judge.

         On July 6, 2015, petitioner Joseph Lemoine filed a timely application for Post-Conviction Relief, After considering the application and the applicable law, the Court finds the application may be dismissed upon the pleadings pursuant to La. C.Cr.P. art. 928.

         The record shows Lemoine was charged by grand jury indictment with aggravated rape, a violation of La. R.S. 14:42. Following a jury trial, Lemoine was found guilty as charged. After post-verdict motions were denied, Lemoine was sentenced to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. Lemoine's conviction and sentence were affirmed on appeal in an unpublished opinion; writs were denied at the Louisiana Supreme Court. State v. Lemoine, 2013-0141 (La.App. 1 Cir. 11/1/13); 2013 WL 5915144 (not reported); writ denied, 2013-2740 (La. 4/25/14); 138 So.3d 644 (Mem.).

         Lemoine files a timely application for post-conviction relief, raising six claims: (1) he was aenied due process and a full, fair appellate review due to the court reporter's failure to transcribe the side bar conferences during voir dire; (2) there was insufficient evidence to support the conviction; (3) he was afforded ineffective assistance of counsel; (4) the state improperly introduced expert testimony; (5) he was denied due process due to the state's intentional misconduct during closing argument; and (6) the cumulative effect of the errors denied him a fair trial.

         The court notes initially that there was no objection made by trial counsel with regard to the factual circumstances underlying these claims; in addition, none of these claims were raised by appellate counsel in the direct appeal of this matter. In his post-conviction application, Lemcine claims these issues were not previously raised because he had not yet had a chance to review the record. However, Lemoine's counsel had an opportunity to do so and failed to object during the trial or to include these issues on direct appeal. The court finds these claims are procedurally defaulted. Nevertheless, and notwithstanding the ...


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