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
Cannizzaro DISTRICT ATTORNEY Donna Andrieu Chief of Appeals
COUNSEL FOR THE STATE OF LOUISIANA/APPELLEE
composed of Judge Terri F. Love, Judge Sandra Cabrina
Jenkins, Judge Regina Bartholomew-Woods
JENKINS, J., DISSENTS WITH REASONS
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.
BACKGROUND AND PROCEDURAL HISTORY
pleaded guilty 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.
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.
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) and 930.8(A)(2). 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. 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.