ON APPLICATION FOR WRITS DIRECTED TO CRIMINAL DISTRICT COURT
ORLEANS PARISH NO. 376-596, SECTION "G" Honorable
Byron C. Williams, Judge
CAINE HARRELL COUNSEL FOR DEFENDANT/RELATOR
A. CANNIZZARO, JR., DISTRICT ATTORNEY KYLE DALY, ASSISTANT
DISTRICT ATTORNEY PARISH OF ORLEANS COUNSEL FOR /STATE OF
composed of Judge Edwin A. Lombard, Judge Rosemary Ledet,
Judge Sandra Cabrina Jenkins
CABRINA JENKINS, JUDGE
seeks review of the district court's March 31, 2017
judgment summarily denying his application for
post-conviction relief. For the following reasons, we grant
petitioner's writ application and remand to the district
court for an evidentiary hearing on the merits of the claims
in his application for post-conviction relief.
January 7, 1997, petitioner and a co-defendant were convicted
of the first-degree murder of Sherri Bailes and were
sentenced to life imprisonment without benefit of parole,
probation or suspension of sentence. On appeal, this Court
affirmed both convictions and sentences. State v.
Lindsey, unpub., 97-1098 (La.App. 4 Cir. 3/10/99), 737
So.2d 978, writ denied, 48 So.2d 463 (La. 10/15/99).
October 12, 2000, petitioner filed an application for
post-conviction relief asserting four claims: 1) the evidence
was insufficient to support his conviction; 2) the State
failed to produce Brady material; 3) ineffective
trial counsel; and 4) ineffective appellate counsel. The
State filed procedural objections to the application. After
denying the State's procedural objections, the district
court held an evidentiary hearing on the merits of the
application and, subsequently, denied petitioner's
application. Petitioner then sought review from this Court,
which granted writs to review his claims for post-conviction
relief but, ultimately, denied relief. State v.
Crawford, 02-2048 (La.App. 4 Cir. 2/12/03), 848 So.2d
615, writ denied, 03-1085 (La. 3/12/04), 869 So.2d
29, 2016, through counsel, petitioner filed his second
application for post-conviction relief asserting two claims:
1) prosecutorial misconduct; and 2) actual innocence. In
support of his claims, petitioner submitted an affidavit from
Shirley Davis, one of the two eyewitnesses who testified at
trial, dated and signed on June 8, 2016. In the affidavit,
Ms. Smith recants her trial testimony that she saw George
Crawford on the night of Sherri Bailes' murder, and she
attests that she felt pressured to identify him as the second
shooter days after a NOPD detective showed her one photograph
of a man named George Crawford as being a person who was with
Larry Lindsey, whom she did know and identify as a shooter,
during the murder.
February 7, 2017, the State filed procedural objections to
petitioner's successive application based on La. C.Cr.P.
arts. 930.4 and 930.8, arguing that petitioner failed to
exercise due diligence in pursuing his claim involving the
recantation of testimony or he inexcusably omitted his claim
from his prior application for post-conviction relief. In
response, petitioner filed a traverse and reply to the
State's procedural objections.
March 31, 2017, the district court heard arguments on the
State's procedural objections to petitioner's
application for post-conviction relief. Petitioner's
counsel argued that the recantation within Ms. Smith's
affidavit is new evidence, sufficient to establish a new
claim for relief and to be considered after an evidentiary
hearing on the merits of the application. After hearing
arguments from both parties, the district court summarily
denied petitioner's application for post-conviction
relief, stating that he failed to raise a new or different
claim that can meet the standard articulated by La. C.Cr.P.
art. 930.4, and that his claim of actual innocence is not
sufficiently supported by the affidavit of Ms. Smith.
now seeks review of the district court's March 31, 2017
ruling denying his application for post-conviction relief
following the hearing on the State's procedural
objections to the application.
in the district court's ruling in open court, we note
that the district court incorrectly remarked that petitioner
"filed two previous applications for post-conviction
relief and his most recent application was denied on July of
2016." The record before us reflects that the instant
application for post-conviction relief that the district
court ruled upon is the second application filed by
petitioner on July 29, 2016. Moreover, this is the first time
that petitioner has raised these two claims for relief and
submitted Ms. Smith's affidavit in support. Thus, we find
the district court erred in granting the State's
procedural objections to petitioner's application or
summarily denying the application on the basis that it is
impermissibly repetitive pursuant to La. C.Cr.P. art. 930.4.
also argues that the district court erred in summarily
finding and ruling that petitioner's claims based on the
recanted testimony of a trial witness are inherently suspect
and incapable of supporting an application for
post-conviction relief. For the following reasons, we find
merit in this ...