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State ex rel. Carey v. State

Supreme Court of Louisiana

September 15, 2017

STATE EX REL. DEMOND CAREY
v.
STATE OF LOUISIANA

         ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO

          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). Furthermore, relator's challenge to the sufficiency of the evidence was fully litigated on direct review and therefore barred by La.C.Cr.P. art. 930.4(A). See State v. Carey, 47, 650 (La.App. 2 Cir. 2/27/13), 110 So.3d 221, writ denied, 13-0726 (La. 11/1/13), 125 So.3d 417. We attach hereto and make a part hereof the district court's written reasons denying relief.

         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.

         FIRST JUDICIAL DISTRICT COURT CADDO PARISH, LOUISIANA

         STATE OF LOUISIANA

         VERSUS

         DEMOND CAREY

         DOCKETNO. 272566 (SECTION 1)

         OPINION

         On October 27, 2011, Petitioner was convicted of Manslaughter. On December 14, 2011, Petitioner was sentenced as a Second Felony Habitual Offender to be confined for eighty (80) years at hard labor. He was subsequently committed to the Louisiana Department of Corrections, subject to the conditions provided by law. The Court ordered that Petitioner's sentence be served without the benefit of probation, parole, or suspension of sentence. The Court also informed Petitioner of his right to post-conviction relief proceedings. On February 27, 2013, the Second Circuit Court Appeal affirmed Petitioner's conviction and sentence. State v. Carey, 47, 650 (La.App. 2d Cir. 2/27/13), 110 So.3cl 221.

         Currently, this Court has for its consideration Petitioner's Application for Post-conviction Relief, filed on February 6, 2014. On December 17, 2015, the Second Circuit Court of Appeals issued a Writ of Mandamus for an Application purportedly filed by Petitioner on January 30, 2014. There is no record of an application being filed on January 30, 2014; however, it appears that Petitioner's February 6, 2014, application is outstanding. For to following reasons, Petitioner Application for Post-Conviction Relief, filed on February 6, 2014, is DENIED.

         In Petitioner's Application, he argues that he received ineffective assistance of counsel. Specifically, Petitioner argues that his defense counsel failed to adequately investigate the crime. He further argues that counsel failed to interview certain parties that may have been able to provide exculpatory evidence.

         To succeed on an ineffective assistance of counsel claim, Petitioner must first satisfy the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Petitioner must show that counsel's performance was deficient, that the deficiency prejudiced him, and that counsel's error was so serious that it violated Petitioner's right to effective assistance of counsel as guaranteed by tire Sixth Amendment of the U.S. Constitution. Id. at 686. The Petitioner must prove actual prejudice before relief will be granted. It is not sufficient for the Petitioner to show the error had some conceivable effect on the outcome of the proceedings. Rather, he must show that but for counsel's unprofessional errors, there is a ...


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