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State v. James

Court of Appeals of Louisiana, Fourth Circuit

November 6, 2019

STATE OF LOUISIANA
v.
TERRANCE JAMES

          APPLICATION FOR WRITS DIRECTED TO CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 416-136, SECTION "E" Honorable Keva M. Landrum-Johnson, Judge

          Terrance James, RELATOR/PRO SE DEFENDANT

          Leon Cannizzaro DISTRICT ATTORNEY Donna Andrieu Chief of Appeals COUNSEL FOR THE STATE OF LOUISIANA/APPELLEE

          Court composed of Judge Terri F. Love, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew-Woods

          JENKINS, J., DISSENTS WITH REASONS

          REGINA BARTHOLOMEW-WOODS, JUDGE

         Relator seeks supervisory review of the district court's August 5, 2019 ruling denying his application for post-conviction relief as untimely pursuant to La. C.Cr.P. art. 930.8(A). Relator argues that his plea of guilty for a violation of La. R.S. 122 has been invalidated by Seals v. McBee, 898 F.3d 587 (5th Cir. 2018), which held that "insofar as it criminalizes 'threats,' [La. R.S.] 14:122 is unconstitutionally overbroad." Because we find, for the reasons to follow, that Relator's application for post-conviction relief is timely pursuant to La. C.Cr.P. arts. 930.3 (5) and 930.8(A)(2) and that Seals is retroactive in application, we grant the writ, reverse the ruling of the trial court, and vacate Relator's conviction in violation of La. R.S. 14:122.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         Relator pleaded guilty[1] to count one: possession of cocaine, in violation of La. R.S. 40:967, and count two: public intimidation, in violation of La. R.S. 14:122.[2]

         DISCUSSION

         Relator asserts that, while being arrested for possession of cocaine, he threatened to have the officers fired for beating and pepper spraying him. Relator further asserts that he did not use force or violence when resisting arrest. Similarly, in Seals, the defendant asserted that he was pepper sprayed, verbally objected to his arrest, and threatened to make complaints about the officer's conduct. Recognizing such threats as "part of the core First Amendment rights 'by which we distinguish [our] free nation from a police state, '" the United States Court of Appeals, Fifth Circuit held La. R.S. 14:122's criminalization of such threats unconstitutionally overbroad.

         Timeliness

         While the district court, in its August 5, 2019 judgment denying Relator's application for post-conviction relief, stated that Relator's application was time-barred by La.C.Cr.P. art. 930.8(A)(2), Relator asserted that his application for post-conviction relief is timely pursuant to La.C.Cr.P. arts. 930.3(5)[3] and 930.8(A)(2)[4]. Relator further argues that, in accordance with La.C.Cr.P. art. 930.8(A)(2), Seals is a final ruling by an appellate court, specifically, the United States Court of Appeals, Fifth Circuit, and that his application for post-conviction relief was filed in June 2019, within one (1) year of the Seals decision in August 2018.[5] Relator further argues that his application for post-conviction relief should be granted pursuant to La.C.Cr.P. art. 930.3(5). Although Relator has completed his sentence, the Louisiana Supreme Court has held that "[t]he fact that one convicted of a crime has served his sentence does not render a subsequent attack on a constitutionally invalid conviction moot where the conviction is attended with collateral consequences, such as vulnerability to a multip[l]e offender proceeding and a possible enhanced sentence." State ex rel. Becnel v. Blackburn, 410 So.2d 1015, 1017 (La.1982). Relator argues, and we agree, that he, like the petitioner in Becnel, has been convicted of a subsequent offense and has been sentenced as a multiple offender. Thus, making the fact that he has completed his sentence irrelevant to the conclusion we reach today.

         Retroactive ...


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