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LeBlanc v. Hooper

United States District Court, E.D. Louisiana

June 14, 2019

JONATHAN LEBLANC
v.
TIMOTHY HOOPER, WARDEN

         SECTION: "S"(5)

          REPORT AND RECOMMENDATION

          MICHAEL B. NORTH, UNITED STATES MAGISTRATE JUDGE

         This matter was referred to the undersigned United States Magistrate Judge to conduct a hearing, including an evidentiary hearing if necessary, and to submit proposed findings and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), and as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts. Upon review of the entire record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2). For the following reasons, IT IS RECOMMENDED that the petition for habeas corpus relief be TRANSFERRED to the United States Fifth Circuit Court of Appeals for authorization to proceed with a second or successive petition.

         I. FACTUAL AND PROCEDURAL HISTORY

         A State-Court Proceedings

         Petitioner, Jonathan LeBlanc, is a state prisoner currently incarcerated at Elayn Hunt Correctional Center in St. Gabriel, Louisiana. In November 2011, he was charged by superseding bill of information with two counts of armed robbery with a firearm.[1] On September 18, 2012, LeBlanc pleaded guilty to two counts of armed robbery with a firearm and was sentenced to concurrent 20-year terms of imprisonment at hard labor.[2] He did not pursue a direct appeal.

         On or about February 14, 2013, LeBlanc filed an application for post-conviction relief with the state district court.[3] In that application, he asserted as interrelated grounds for relief that his conviction was unconstitutional because he pled guilty to two counts of a sentencing enhancement statute, which is not a substantive offense, and the trial court lacked jurisdiction to accept his guilty plea to two counts of armed robbery with a firearm under Louisiana Revised Statute 14:64.3. The application was denied on the merits by the district court on May 22, 2013.[4] LeBlanc's related supervisory writ application to the Louisiana Fourth Circuit Court of Appeal was denied on June 20, 2013.[5] His writ application to the Louisiana Supreme Court was denied without comment on January 10, 2014.[6]

         On or about July 17, 2014, LeBlanc filed a second application for post-conviction relief.[7] In that application, he argued that his guilty plea was invalid because it was not knowingly or intelligently made, and trial counsel was ineffective for providing misleading information regarding the actual number of years he would have to serve. The State opposed the application on procedural grounds.[8] The state district court agreed with the State and dismissed the application pursuant to Louisiana Code of Criminal Procedure article 930.4(E) (raises a new claim that was inexcusably omitted from a prior application), by Judgment signed November 14, 2014.[9] LeBlanc's related supervisory writ application filed with the Louisiana Fourth Circuit was denied on January 28, 2015.[10] On November 20, 2015, the Louisiana Supreme Court denied his supervisory writ application on the merits.[11]His request for reconsideration was denied on January 15, 2016.[12]

         On July 21, 2015, LeBlanc filed a motion to correct an illegally lenient sentence.[13] The state district court held an evidentiary hearing on that motion September 17, 2015. At the hearing LeBlanc explained that he was incorrectly and illegally sentenced to concurrent 20-year terms. He asked the court to correct his sentence to reflect the two armed-robbery sentences and the two five-year terms imposed consecutive to those sentences under Louisiana Revised Statute 14:64.3. The trial court questioned why LeBlanc would object to his sentence as allegedly illegally lenient. LeBlanc candidly stated that he intended to use the new declaration that his sentences were illegal to attack his guilty plea again and avoid any procedural bars for timeliness or repetitiveness.[14] The district court then ruled as follows:

THE COURT: In other words, you couldn't do that right now because it would be untimely. I got it. I'm not saying I'm going to grant your motion, but this is what I'm going to do. Mr. Burke, you ready? I need an amended commitment. I'm changing the sentence of September the 18th 2012. On September 18, 2012, Mr. LeBlanc pled guilty to two counts of 14:64.3. As to those two counts he received two twenty year Department of Correction sentences without the benefit of probation, parole or suspension of sentence, which I do not see in this particular minute entry, and that he was to receive credit for time served and those two sentences were to run concurrently with one another.
MR. BURKE: It should have been a crime of violence.
THE COURT: Crime of violence needs to be in there as well. The sentence is now amended. The two sentences are 15 years in the Department of Corrections as to the two counts of armed robbery to run concurrently with one another with credit for time served and an additional five years for the gun component in 64.3 to run concurrently with one another, but to run consecutively with the 15. So that the record's really clear, as to Count 1 the sentence is 15 years in the Department of Corrections for the armed robbery, an additional five years for the gun enhancement, the five years to run consecutive to the 15. The Count 2 sentence is identical. 15 and five consecutive but Count 2 sentences are to run concurrently with Count l's sentences. So the sentence is corrected.[15]

         A minute entry for September 17, 2015 reflects the imposition of this modified sentence.[16]

         An amended minute entry for October 2, 2015 deleted any reference to his guilty pleas.[17]

         On October 14, 2015, LeBlanc filed a third application for post-conviction relief.[18] In that application, he argued that his guilty pleas were invalid due to the original unlawful sentence and that he was denied effective assistance of trial counsel during plea negotiations.

         He asserted that his filing was proper following his resentencing to lawful terms of imprisonment.[19] Counsel on his behalf also filed a memorandum in support.[20] On April 6, 2016, a hearing was held with LeBlanc and his appointed counsel on the State's procedural objections.[21] The district court held the ruling open for additional briefing of issues. On May 13, 2016, the state district court heard additional argument and denied relief on procedural grounds.[22] On October 5, 2016, the Louisiana Fourth Circuit Court of Appeal denied his related supervisory writ application, reasoning that his post-conviction relief application was both successive and untimely.[23] On February 23, 2018, the Louisiana Supreme Court denied relief finding that "relator previously exhausted his right to state collateral review."[24]

         B. Prior Federal Habeas Proceedings

         In February 2014, following his first completed course of state collateral review on his two claims for relief, LeBlanc filed a federal application for habeas corpus relief in this Court (Civil Action No. 14-277). The State conceded that the petition was timely and that he had exhausted his state-court remedies. On November 20, 2014, the undersigned issued a report and recommendation on the merits for dismissal with prejudice. An order and judgment to that effect was signed on December 8, 2014. LeBlanc filed a notice of appeal. His certificate of appealability was denied by the United States Fifth Circuit Court of Appeals.[25] On April 7, 2016, the United States Supreme Court denied review.[26]

         C. Current Federal Habeas Proceedings

         On September 25, 2018, LeBlanc filed his second federal application for habeas corpus relief challenging the state courts' rulings denying his most recent application for post-conviction relief on procedural grounds. He asserts that the state courts unreasonably determined that his application was untimely (La. C.Cr.P. art. 930.8) and successive (La. C.Cr.P. art. 930.4) in violation of due process. The State asserts that the federal application is impermissibly second or successive and this Court is without jurisdiction to consider the application. Alternatively, the State argues that the application is untimely. The State also asserts that the claims are not cognizable on federal habeas review and procedurally barred, at least in part.[27] Citing Magwood v. Patterson, 561 U.S. 320, 130 S.Ct. 2788, 177 L.Ed.2d 592 (2010), LeBlanc contends his petition is not successive due to the intervening 2015 resentencing, which resulted in the only legal sentence imposed in this case.[28]

         II. LAW AND ANALYSIS

         Title 28 U.S.C. § 2244 (b) places the following restrictions on second or ...


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