United States District Court, W.D. Louisiana, Lafayette Division
REPORT AND RECOMMENDATION
B. Whitehurst United States Magistrate Judge.
petitioner Jason Rebardi, an inmate in the custody of
Louisiana39;s Department of Corrections, filed the instant
petition for writ of habeas corpus pursuant to 28 U.S.C.
§2254 on February 28, 2019. Petitioner attacks his 2002
aggravated rape conviction and the life sentence imposed
thereon by the 16th Judicial District Court, St
Mary Parish. For the following reasons it is recommended that
the petition be deemed second and successive and, owing to
the Court39;s lack of jurisdiction, TRANSFERRED to the
United States Fifth Circuit Court of Appeals pursuant to 28
U.S.C. §1631 for further proceedings in accordance with
the provisions of 28 U.S.C. § 2244(b).
of the Case
was indicted by the St. Mary Parish Parish Grand Jury and
charged with aggravated rape of person under the age of 12.
Following a jury trial, where he was found guilty as charged,
he was sentenced to life imprisonment. He appealed his
conviction and sentence in the First Circuit, who denied his
appeal on December 31, 2003. The Louisiana Supreme Court
denied writs on June 25, 2004. On June 6, 2005, Rebardi filed
an application for post-conviction relief in the
16th Judicial District Court. The application was
denied by the district court, the First Circuit Court of
Appeal, and ultimately by the Louisiana Supreme Court on
September 29, 2006. State of Louisiana ex rel. Jason
Rebardi v. State of Louisiana, 2006-0699 (La.
9/29/2006), 37 So.2d 855');">937 So.2d 855.
November 17, 2006, he filed a pro se petition for writ of
habeas corpus in this Court. He argued the following claims
for relief, (1) trial court erred in failing to allow defense
counsel to play a videotaped statement of one of the
state39;s witnesses for the purpose of impeaching the
witness39;s testimony; (2) trial court erred in denying
defense the right to present testimony about a statement made
to a detective by a witness who allegedly asserted her Fifth
Amendment privilege at trial, which denied defendant the
right to present a defense; (3) trial court erred in denying
defendant39;s motion for mistrial; (4) prosecution
improperly manipulated a witness to prevent her from
testifying on petitioner39;s behalf in violation of her
Sixth Amendment right; and (5) witness never stated that she
was invoking her Fifth Amendment right not to testify.
Rebardi v. Warden Louisiana State Penitentiary,
Civil Action 06-2255 (W.D. La. 2009). On April 6, 2009,
United States Magistrate Judge Mildred E. Methvin,
recommended dismissal of the petition on the merits.
Id. at Rec. Doc. 19. Thereafter, on June 28, 2009,
United States District Judge Richard T. Haik, Sr. adopted the
recommendation and ordered that the petition be dismissed.
Id. at Rec. Doc. 21. On July 10, 2009, Judge Haik
denied petitioner39;s motion for certificate of
appealability (COA). Id. at Rec. Doc. 28.
Thereafter, on February 11, 2010, the United States Fifth
Circuit Court of Appeals also denied a COA. Rebardi v.
Burl Cain, Warden, No. 09-30590 (5th Cir.
maintains that in August 2009, he obtained a notarized
affidavit of the victim39;s aunt, dated August 26, 2009,
who stated under oath that the victim told her she had lied
about Petitioner raping her. He contends that this newly
discovered evidence proves his innocence.
filed a second Application for Post-Conviction Relief in the
state court, relying on the affidavit. On November 9, 2016,
the trial court denied his application, holding that the
petition did not present newly discovered evidence. [Rec.
Doc. 1-3, p. 10] On March 6, 2017, Petitioner applied for
writs in the First Circuit Court of Appeal (Id. at
pp. 12-29); the application was denied on May 18, 2017.
Id. at p. 30. Petitioner39;s application for
supervisory writs in the Louisiana Supreme Court
(Id. at pp. 32-51) was denied on October 8, 2018.
Id. at pp. 53-55. Justice Hughes, dissenting,
stated, “Relator offers five affidavits, three from the
victim39;s family, which recant or call into question trial
testimony. Relator argues actual innocence. Without reaching
the merits, these affidavits are ‘new evidence39; as
contemplated by La. C.Cr.P. article 930.8(A)(1), and a
hearing is required. Id. at p. 55.
February 28, 2019, Petitioner filed the instant petition for
habeas corpus alleging that this newly discovered evidence
supports his claim of actual innocence.
Antiterrorism and Effective Death Penalty Act of 1996 limits
the circumstances under which a state prisoner may file a
successive application for federal habeas relief.
See Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. 104-132, 110 Stat. 1214 (1996). A petition is
successive when it raises a claim that was or could have been
raised in an earlier petition. See Hardemon v.
Quarterman, 3d 272');">516 F.3d 272, 275 (5th Cir. 2008). A claim
presented in a second or successive application under Section
2254 must be dismissed unless:
(A) the applicant shows that the claim relies on a new rule
of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
(B) (I) the factual predicate for the claim could not have
been discovered previously through the exercise of due
(ii) the facts underlying the claim, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would ...