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State v. Kang

Court of Appeals of Louisiana, Fifth Circuit

January 9, 2019

STATE OF LOUISIANA
v.
FRANK KANG IN RE FRANK KANG

          APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE DANYELLE M. TAYLOR, DIVISION ''O'', NUMBER 00-1409

          Panel composed of Judges Jude G. Gravois, Stephen J. Windhorst, and Hans J. Liljeberg

         WRIT GRANTED FOR THE LIMITED PURPOSE OF VACATING THE DISTRICT COURT'S FEBRUARY 27, 2018 AND MARCH 1, 2018 RULINGS, AND TO REMAND THIS MATTER TO THE DISTRICT COURT WITH INSTRUCTIONS; MOTION TO SUPPLEMENT DENIED

         Relator seeks review of the district court's February 27, 2018 ruling (1) summarily denying his second application for post-conviction relief (hereinafter "APCR") without first allowing him the opportunity to respond to the procedural objections, as required by La. C.Cr.P. art. 930.4(F) and (2) procedurally defaulting his post-conviction claims without first granting his discovery requests or conducting an evidentiary hearing on the factual disputes. Relator also claims that the district court failed to address the newly discovered evidence claim set forth in his second APCR, which he asserts was presented within the time limitations of La. C.Cr.P. art. 930.8(A)(1).

         Background and Procedural History

         On November 16, 2000, a jury found relator guilty of second degree murder. He is currently serving a sentence of life imprisonment at hard labor without benefits for this conviction. On November 21, 2005, relator filed his first APCR, which the district court denied on May 4, 2006. After multiple proceedings in the district court and review by this Court and the Louisiana Supreme Court, relator was denied the relief he seeks.

         Federal Court Proceedings

         Because relator was denied relief in state court, relator filed a federal habeas petition filed in the United States District Court for the Eastern District of Louisiana. Relator also filed a motion for discovery in federal court requesting an in camera review of the grand jury testimony and to have the gunshot residue kits tested.

         On February 17, 2016, this matter came before the federal magistrate court for a hearing, at which time Judge Jay Wilkinson indicated that he was considering a stay of the federal proceedings for relator to exhaust his claim of ineffective assistance of counsel in state court in hopes that "somebody recognizes at some point, as I think I do, that there might be serious questions about this man's guilt."

         On March 7, 2016, Judge Wilkinson issued a Stay Order and Reasons, staying the federal habeas corpus proceeding until "after the finality of all state post-conviction review through the Louisiana Supreme Court related to the unexhausted claims and arguments asserted in the original petition and the supplemental memorandum in support of the petition." Judge Wilkinson gave the following reasons:

At this time, I am unable to conclude that Kang's ineffective assistance of counsel claims are "plainly meritless." I do not discern from the record that he has engaged in unnecessary litigation, abusive tactics or intentional delay.
As cause for his failure to exhaust, Kang indicates that his state post-conviction counsel inexplicably failed to include the ineffective assistance of trial counsel claims in the Louisiana Supreme Court writ application…. Without addressing the applicability of Martinez to Kang's situation, I find that Kang's request to forgive any federal or state procedural barrier to review of his ineffective assistance of trial counsel claims is premature.
In this case, Kang has presented a colorable actual innocence argument as a basis to excuse any state imposed procedural default of his ineffective assistance of trial counsel claims. However, no such procedural bar has yet been imposed by the Louisiana Supreme Court, and I am unwilling to assume that it will do so. Kang, through new counsel, and the State recognize that other federal claims and supporting arguments, including the gateway opportunities presented through a showing of actual innocence and Martinez, which were presented in Kang's supplemental memorandum may require further exhaustion. Kang also may have unexplored avenues remaining ...

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