STATE v. BROWN (2025)

Defendant, Cassetti Dewayne Brown, Jr.,¹ seeks a supervisory writ from the trial court's denial of his application for post conviction relief. For the reasons herein, we grant the writ but deny relief.

FACTS AND PROCEDURAL HISTORY

Defendant was found guilty by a jury on November 16, 2018, of possession of cocaine with intent to distribute, in violation of La.R.S. 40:967; possession of methamphetamines, in violation of La.R.S. 40:967; illegal carrying of weapons, in violation of La.R.S. 14:95(E); and possession of a firearm by a convicted felon, in violation of La.R.S. 14:95.1. On May 8, 2019, the trial court sentenced Defendant as a habitual offender. In State v. Brown, 19-682 (La.App. 3 Cir. 6/17/20), 299 So.3d 661, writs denied, 20-927, 20-925 (La. 11/24/20), 305 So.3d 100, 105, this court affirmed Defendant's four convictions but reversed the sentence imposed as being excessive based on the consecutive nature thereof.² Following resentencing, Defendant again appealed his sentence, which was affirmed on appeal as modified. State v. Brown, 22-483 (La.App. 3 Cir. 11/16/22), 353 So.3d 919, writ denied, 22-1791 (La. 5/2/23), 359 So.3d 1279.

In addition to the instant writ application, Defendant has been before this court on at least two other occasions. In State v. Brown, 23-152 (La.App. 3 Cir. 3/27/23) (unpublished writ decision), we denied an initial writ application for insufficiency, which resulted in our supreme court remanding the matter to this court “to allow [Defendant] a reasonable amount of time to supplement his application with the appropriate supporting documentation and to consider his pro se filing on the merits.” State v. Brown, 23-609, p. 1 (La. 9/6/23), 369 So.3d 796, 796 (per curiam). Thereafter, in compliance with the supreme court's directive, we remanded the application to the trial court for reconsideration in light of the supplemented material. State v. Brown, 23-152 (La.App. 3 Cir. 5/20/24) (unpublished writ decision). On remand, the trial court denied relief, ruling that it had considered the information provided concerning the cleansing period for a predicate offense in the habitual offender adjudication, that this same issue had been argued at the habitual offender status hearing, and that nothing presented by Defendant on reconsideration altered its original decision. Defendant again applied to this court for a writ of review. We granted the writ but denied relief. State v. Brown, 24-385 (La.App. 3 Cir. 11/26/25), ––– So.3d ––––.

Defendant is again before this court on an application for a supervisory writ following the denial of his application for post conviction relief. Defendant alleged fourteen grounds for relief involving claims of ineffective assistance of counsel as well as prosecutorial misconduct. On December 12, 2023, the trial court issued a written “Ruling of the Court” in which it listed Defendant's fourteen claims and denied the application for post conviction relief:

Defendant, Cassetti D. Brown, Jr., filed with the Third Circuit Court of Appeal, an appeal with each and every issue now raised by defendant. The Third Circuit Court of Appeal considered all issues and ruled on June 17, 2020 that the issue of ineffective assistance of counsel was not specifically pled by Mr. Brown. The Court of Appeal considered this and discussed it in their ruling on the denial of Counsel's Motion to Withdraw on page fourteen (14).

On application for supervisory writ, Defendant raises the same fourteen assignments of error in the form of questions of law:

1. Whether [Defendant] was deprived of his Sixth Amendment right to conflict-free counsel when the trial judge ignored the procedures set forth in[ ] United States v. Curcio, 680 F.2d 881 [(2d Cir. 1982)]; State v. Carmouche, 508 So.2d 792 [(La.1987)].

2. Whether the trial court conducted an adequate inquiry to create a sufficient basis for reaching an informed decision.

3. Whether [Defendant] was denied his Sixth Amendment right to effective assistance of counsel, when trial counsel failed to file timely Motion to Suppress, failed to know the procedure [La.Code Crim.P. art.] 521.

4. Whether [Defendant] received ineffective assistance of counsel, when trial counsel failed to object to calculation of the cleansing period and allowed inaccurate sentencing information to go before the court.

5. Whether [Defendant] received ineffective assistance of counsel when trial counsel failed to include a claim of excessive sentence in the Motion to Reconsider.

6. Whether [Defendant] was denied due process of law when the prosecutor misrepresented evidence and solicited perjured, false testimony. [P]rosecutorial Misconduct.

7. Whether the [Defendant] was denied a fair trial, due to misconduct by the prosecutor [sic] knowing use of false testimony.

8. Whether [Defendant] was denied a fair trial due to prosecutorial misconduct, vouching for State's witness.

9. Whether [Defendant] was denied a fair trial due to prosecutorial misconduct, arguing evidence not entered at trial.

10. Whether [Defendant] received ineffective assistance of counsel when trial counsel failed to submit memo ordered by the Court. Critical State.

11. Whether [Defendant] received ineffective assistance of counsel when trial counsel failed to prepare a defense.

12. Whether [Defendant] received ineffective assistance of counsel when trial counsel advocated for the State and placed his Son on trial during opening and closing arguments.

13. Whether [Defendant] received ineffective assistance of counsel when trial counsel failed to object to remarks made by prosecution during opening statements and rebuttal.

14. Whether [Defendant] received ineffective assistance of appellate counsel, when appellate counsel failed to brief three alleged errors.

DISCUSSION

In an application for post conviction relief, the trial court shall dismiss “any claim which, if established as alleged, would not entitle the petitioner to relief[ ]” prior to ordering the filing of procedural objections by the State. La.Code Crim. P. art. 927(A).³ Additionally, “[t]he application may be dismissed without an answer if the application fails to allege a claim which, if established, would entitle the petitioner to relief.” La.Code Crim.P. art. 928.⁴ Further, “[i]f the court determines that the factual and legal issues can be resolved based upon the application ․ and other reliable documents submitted by either party or available to the court, the court may grant or deny relief without further proceedings.” La.Code Crim.P. art. 929(A).

The burden of proof in an application for post-conviction relief is on the petitioner. La.Code Crim.P. art. 930.2. An application that is based on a “claim for relief which was fully litigated in an appeal from the proceedings leading to the judgment of conviction and sentence[,]” will not be considered “[u]nless required in the interest of justice.” La.Code Crim.P. art. 930.4(A).⁵ Further, relief shall be denied “[i]f the application alleges a claim of which the petitioner had knowledge and inexcusably failed to raise in the proceedings leading to conviction[.]” La.Code Crim.P. art. 930.4(B). In addition, “[i]f the application alleges a claim which the petitioner raised in the trial court and inexcusably failed to pursue on appeal, the court shall deny relief.” La.Code Crim.P. art. 930.4(C).

The burden of proof in a post-conviction proceeding “is entirely on the petitioner.” State ex rel. Williams v. State, 15-1073, p. 1 (La. 4/22/16), 195 So. 3d 433, 434; see also, La. C.Cr.P. art. 930.2. The State has no burden to prove anything in a post-conviction relief setting.

We review a trial court's ruling on an application for post-conviction relief for an abuse of discretion. See State v. Henry, 20-0412, p. 13 (La. App. 4 Cir. 10/29/20), 307 So.3d 249, 257.

State ex rel. Robinson v. Vannoy, 21-812, p. 7 (La. 12/13/24), 397 So.3d 333, 348 (footnote omitted), aff'd on reh'g, 21-812 (La. 6/27/25), 413 So.3d 403.

The issues raised by Defendant fall under two main categories: ineffective assistance of counsel and prosecutorial misconduct. We will address the issues raised by each category.

Ineffective Assistance of Counsel Claims

In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984) (emphasis added), the Supreme Court provided the standard used by courts for determining whether a conviction must be reversed on a claim of ineffective assistance of counsel:

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

This standard was applied by our supreme court in State v. Washington, 491 So.2d 1337 (La.1986). Failure to prove either one of the two components as set forth by Strickland “is fatal to an ineffective assistance of counsel claim.” State v. Chandler, 22-1506, p. 3 (La. 5/5/23), 362 So.3d 347, 350 (per curiam).

In his first five assignments of error, Defendant asserts that he received ineffective assistance of counsel because (1) counsel was conflicted; (2) the trial court refused to appoint new counsel when there was an irreconcilable conflict between Defendant and counsel; (3) counsel failed to file a motion to suppress under La.Code Crim.P. art. 521; (4) counsel allowed improper evidence to be presented at the habitual offender hearing; and (5) counsel failed to argue excessive sentence in the motion to reconsider sentence. In the last four assignments of error, Defendant argues ineffective assistance of counsel because: (10) counsel failed to oppose the determination that Defendant was a habitual offender; (11) counsel failed to investigate or prepare a defense; (12) counsel discussed his son's drug addiction during opening and closing statements; and (13) counsel failed to object to the State's comments during opening statements and rebuttal about drug problems in Leesville, Louisiana; and (14) appellate counsel failed to brief three alleged errors in the original appeal, which were subsequently deemed abandoned.

Conflict of Interest

Defendant's first assignment of error claims that he received ineffective assistance of counsel because his counsel was conflicted. In his second assignment of error, he claims that he was constructively denied counsel when the trial court refused to appoint new counsel to represent him despite this irreconcilable conflict. In essence, Defendant claims ineffective assistance simply because of counsel's conflict of interest with him. The trial court denied this claim reasoning that the claim was addressed on direct appeal.

We note that while this issue was not specifically raised in the original appeal, this court did address Defendant's claim that the trial court erred in denying his trial counsel's motion to withdraw for perceived conflicts of interest, which Defendant raised in the trial court via a motion for new trial:

On November 5, 2018, trial counsel, Don W. Martin, filed a “Motion to Withdraw,” alleging a conflict of interest based upon Mr. Brown's filing of a complaint against Mr. Martin with the Louisiana Attorney Disciplinary Board and Mr. Brown's written accusation of malpractice against counsel. The motion was denied, without hearing, on November 9, 2018. As noted above, Mr. Brown's trial commenced on November 13, 2018. Mr. Brown contends “[c]ursory denial was an abuse of discretion.”

Brown, 299 So.3d at 671 (alteration in original).

In finding no merit to Defendant's claim regarding the denial of his counsel's motion to withdraw, we set forth the following:

The State asserts “there was no conflict between the defendant and his attorney on display at any point during the trial.” Mr. Brown points out that the State “was not privy to the actual discussions between” himself and trial counsel before or during trial. While we agree with Mr. Brown's statement, we acknowledge the language of [State v.] Pontiff, [14-1049 (La.App. 3 Cir. 5/6/15),] 166 So.3d [1120,] 1132, noting that “[g]enerally, a motion for new trial will be denied unless injustice has been done.” This language places the burden on Mr. Brown to prove he was prejudiced by the trial court's denial of Mr. Martin's motion to withdraw.

Although Mr. Brown argues “[t]here was also no evidence that the [m]otion was filed to manipulate the system or that Appellant was being recalcitrant or contentious with counsel without cause[,]” there is also no evidence to the contrary, aside from counsel's assertion in said motion that it was not filed to delay proceedings. As noted by the State, trial counsel did little at the motion for new trial hearing beyond reiterating the grounds of the written motion. Accordingly, we cannot say an injustice was done to Mr. Brown when the court denied Mr. Martin's motion to withdraw. As such, we find the trial court did not abuse its discretion in denying the motion for new trial on this ground.

Id. at 672 (alterations in original).

We find no abuse of discretion in the trial court's denial of Defendant's claim of ineffective assistance based on the alleged conflicts of interest where the issue of the underlying conflict was litigated, decided below, and affirmed on appeal. While the original issue was not couched in terms of an ineffective-assistance-of-counsel claim, the substance of the complained-of conduct was. In State v. Lee, 14-2374, pp. 8–9 (La. 9/18/15), 181 So.3d 631, 638, the supreme court held that an “attempt to re-litigate a claim that has been previously disposed of, by couching it as a post-conviction ineffective assistance of counsel claim, is generally unavailing.” In State v. Ball, 19-1674 (La. 11/24/20), 305 So.3d 90, the defendant claimed ineffective assistance of counsel with regard to Batson ⁶ challenges. There, the supreme court determined that the substance of the Batson claims were resolved on appeal, and thus, did not warrant reversal and remand of the trial court's denial of the ineffective assistance claim on that very issue as the claim was not truly a new claim under La.Code Crim.P. art. 930.4(A). We agree here that the substantive claim was addressed on appeal and find that the trial court properly denied Defendant's claim on this ground. Accordingly, relief on this claim is denied.

Failure to File Motion to Suppress

In his third assignment of error, Defendant asserts that counsel provided ineffective assistance by failing to timely file a motion to suppress. In its ruling, the trial court stated that this claim was addressed on direct appeal, was rejected, and thus, it denied relief. We agree that the substantive issue of the claim was fully addressed by this court's decision as to the issue raised by the motion to suppress and the admission of the evidence at trial over objection. While we held that the trial court did not err in denying Defendant's pre-trial motion to suppress as it was untimely and its late filing was not excusable for “just cause” as per La.Code Crim.P. art. 521, we then examined the merits of the motion:

Furthermore, the trial court ultimately ruled upon the merits of Mr. Brown's motion when counsel raised the same contentions at trial as objections to the introduction of the evidence he had sought to suppress. We cannot, therefore, say the trial court abused its discretion in denying a hearing on Mr. Brown's motion. This argument is the same argument presented by Mr. Brown in his first pro se assignment of error, and for the reasons stated, we find that both lack merit.

Because we cannot say the cumulative effects of Mr. Brown's alleged errors resulted in an injustice being done, the standard applicable to overturning a trial court's ruling on a motion for new trial, we find this assignment of error meritless.

Brown, 299 So.3d at 677.

While the motion to suppress was untimely and not considered on the merits at that time, the admissibility of that very evidence was objected to at trial and deemed admissible. As the issue raised in the motion to suppress was ultimately addressed at Defendant's trial, and the evidence was deemed admissible at trial, Defendant cannot meet his two-pronged burden of establishing ineffective assistance of counsel. Ball, 305 So.3d 90. Thus, the trial court did not abuse its discretion in denying Defendant relief as to this ground. We, therefore, deny relief on this claim.

Failure to Object to False Evidence of Release Date from Federal Custody at Habitual Offender Sentencing, and Failure to Argue Excessive Sentence in the Motion to Reconsider

In his fourth and fifth assignments of error, Defendant argues that counsel was ineffective when he allowed improper evidence to be presented at the habitual offender hearing and failed to argue that Defendant's sentence was excessive in the motion to reconsider sentence. The trial court denied this claim based on this court's decision in the original appeal.

In argument here, Defendant asserts that his counsel was ineffective when he allowed improper evidence to be presented at the habitual offender hearing. Specifically, Defendant complains that the incorrect release date from federal custody was used and not objected to by counsel. The trial court rejected the claim and denied relief, finding that the claim was presented on appeal and disposed of. Again, we find that the substance of the claim was, in fact, presented on direct appeal, although not couched as an ineffective-assistance-of-counsel claim. Though we noted that no objection preserving the cleansing-period issue was raised at sentencing, we addressed the issue as an error patent. We disposed of the issue, finding no error in the use of the actual release date from federal custody and the fact that Defendant was incarcerated for a violation of his supervised release for the relevant federal conviction:

As stated above, the trial court erred in finding the applicable cleansing period was ten years when it was actually five years. In its habitual offender memorandum to the trial court, the State correctly asserted there was a five-year cleansing period. Despite this, however, we find the trial court did not err in finding Mr. Brown's cleansing period did not begin until his release from federal custody, as Louisiana courts have unanimously and consistently held that computation of the cleansing period is based upon actual date of release from custody or supervision. See State v. Anderson, 349 So.2d 311 (La.1977); State v. Robinson, 549 So.2d 1282 (La.App. 3 Cir. 1989); State v. Thomas, 52,617 (La.App. 2 Cir. 5/22/19), 272 So.3d 999, writ denied, 19-1045 (La. 2/10/20), 292 So.3d 61; and State v. Stock, 16-552 (La.App. 5 Cir. 2/22/17), 212 So.3d 1268.

There is no dispute that Mr. Brown was released from federal custody on July 24, 2014. While the State bears the burden of proving the cleansing period had not passed, the evidence produced at the hearing established that Mr. Brown was not released from federal custody until July 24, 2014. Accordingly, we find the trial court's calculation of Mr. Brown's cleansing period was correct and the applicable five-year cleansing period had not run when Mr. Brown was arrested in June of 2017. This assignment of error, therefore, lacks merit.

Brown, 299 So.3d at 679 (footnotes omitted).⁷

Additionally, we note that in the initial appeal, Defendant argued that the July 25, 2014 release date used to calculate the cleansing period from his 2006 federal conviction to the current conviction was error. However, on counts one through four, the only charges/convictions at issue in this writ application, “[a]ll of these charges had an offense date of June 9, 2017.” Id. at 665. In our opinion, we discussed Defendant's argument about his release date on federal case number 42:03-CR-20050-001, as follows:

Mr. Brown's supervised release on his March 14, 2006 conviction was revoked on October 28, 2010. However, sentencing was “deferred until charges contained in violation #1 are disposed of.” On February 29, 2012, Mr. Brown was then “sentenced to 24 months, concurrent with sentence imposed in 2:10-cr-00291” of 150 months incarceration, with eight years of supervised release and credit for time served. The federal docket number 2:10-cr-00291 is the docket number vacated in U.S. v. Brown, 567 F.App'x. 272. Given all of this information, Mr. Brown is correct that he should have been released from custody on his 2006 conviction no later than October 28, 2012, given his revocation date, sentence, and not granting any good time diminutions of sentence.

Id. at 679 n.7.

Even applying this court's statement that the release date on the conviction in federal case number 2:03-CR-20050-00 should have been October 28, 2012, as opposed to the actual 2014 release date, Defendant still would not be entitled to relief as the current offenses, which occurred on June 9, 2017, occurred less than five years from October 28, 2012.⁸

This very issue was also extensively addressed by appellate counsel for Defendant in his writ application to the Louisiana Supreme Court from the original appeal, which was denied. State v. Brown, 20-927, 20-925 (La. 11/24/20), 305 So.3d 100, 105. Accordingly, we find no abuse of discretion in the trial court's denial of relief on this ground where the underlying issue of the release date from federal custody was actually addressed on direct appeal. Lee, 181 So.3d 631. We deny relief on this particular claim.

We further deny relief regarding Defendant's fifth assignment of error because despite counsel's failure to allege that his sentences were constitutionally excessive, this court still conducted a bare excessiveness review on appeal. Brown, 353 So.3d 919. In that review, we found that Defendant's sentences were not excessive. Accordingly, Defendant cannot establish that he was prejudiced by counsel's failure to raise the excessive-sentence claim in the motion to reconsider. We find no merit in this assignment.

Failure to File Sentencing Memorandum

In his tenth assignment of error, Defendant asserts that he received ineffective assistance of counsel because counsel did not file an opposition to the determination that he was a habitual offender. He especially alleges that “defense counsel Martin failed to submit a memo stating my opposition as a habitual offender as ordered by the court.” In his application to the trial court, Defendant asserted that during the two-week period leading up to the sentencing hearing, counsel failed to meet with him to discuss that the federal release date on which his supervised release was revoked was supposed to be in 2012. Again, the trial court denied relief on the post-conviction-relief application on the basis that the substance of the claim was decided in the former appeal. We also agree. While not couched as an ineffective assistance claim, the opinion in the initial appeal dealt with the release date from federal custody on Defendant's federal conviction, which was used as a predicate for the habitual offender status determination. While we noted that counsel failed to file a motion to reconsider, we, in fact, considered the allegation of the release date as an error patent.

As this issue was substantively addressed in the former appeal, and for the reasons set out above regarding Defendant's fourth and fifth assignments of error, we find no abuse of discretion in the trial court's denial of relief although the claim is now couched as an ineffective-assistance-of-counsel claim. Accordingly, we deny relief here.

Other Grounds

In his eleventh assignment of error, Defendant asserts that he received ineffective assistance of counsel because counsel failed to investigate or prepare a defense. The trial court denied relief reasoning that the issue was addressed in the underlying appeal. Again, we find that while the issue of counsel's preparedness and representation was not directly addressed, the key issue of counsel's effectiveness at trial was indeed discussed in a different context. In Defendant's initial appeal, this court noted “the fact that the jury found Mr. Brown not guilty on multiple counts[.]” Brown, 299 So.3d at 676. Further, the issue of Defendant's guilt on the four relevant counts was straightforward, as noted by the trial court's recitation of facts, which we adopted:

On June the 9th, 2017, agents executed the warrant and made contact with Brown at the residence on Nona Street. During the investigation, search, and questioning of Mr. Brown, crack cocaine and weapons were found inside the residence. Mr. Brown was charged with possession of Schedule I with intent to distribute, possession of Schedule II methamphetamine with intent to distribute, possession of Schedule II cocaine with intent to distribute, possession of a firearm by a convicted felon, and possession of a firearm while in possession of a controlled dangerous substance.

Id. at 666.

Defendant fails to set forth how counsel was not prepared such that his conduct fell below the standard set forth in Strickland or how he was prejudiced thereby. The opinions rendered in Defendant's appeals show that he was vigorously defended and actually acquitted on multiple counts. Bare allegations without substance are insufficient to support his claim. It is evident from the writ application and attached exhibits, together with other reliable documents available to this court from Defendant's two prior appeals, that Defendant is not entitled to relief on his claim that counsel failed to adequately prepare a defense. Thus, there is no need to remand the matter to the trial court for a further hearing on this issue. La.Code Crim.P. arts. 927 and 929. Accordingly, while the issue was not directly addressed in the trial court, the records thereof show no abuse of the trial court's discretion in denying relief. We, therefore, deny relief as well.

Opening and Closing Arguments, and Failure to Object to Prosecutor's Opening Remarks

In his twelfth assignment of error, Defendant claims that counsel provided ineffective assistance of counsel when he discussed his son's drug addiction during opening and closing statements. In his thirteenth assignment of error, he asserts that counsel was ineffective for failing to object to the State's comments during opening arguments about drug problems in Leesville, Louisiana. We note that while the trial court rejected these allegations because they were addressed on appeal, we cannot find any indication that they were substantively addressed in the prior appeals. However, we find that Defendant failed to establish or even allege how the conduct was ineffective or how he was prejudiced thereby, and thus, we find the trial court did not abuse its discretion in denying relief, albeit for the wrong reason.

Defendant has failed to allege, either in his application for post conviction relief before the trial court or in this writ application, how the complained of conduct was deficient or how he was prejudiced thereby. Strickland, 466 U.S. 668. His bare allegations are insufficient to support a claim for ineffective assistance of counsel. “General statements and conclusory allegations will not suffice to prove a claim of ineffective assistance of counsel.” State v. Celestine, 11-1403, p. 5 (La.App. 3 Cir. 5/30/12), 91 So.3d 573, 577. For this reason, we deny relief.

Additionally, we find that the complained of conduct falls within the ambit of trial strategy. In State v. Griffin, 02-1703, pp. 9–10 (La.App. 4 Cir. 1/15/03), 838 So.2d 34, 40, writ denied, 03-809 (La. 11/7/03), 857 So.2d 515, the fourth circuit set forth the following concerning trial strategy and allegations of ineffective counsel, with which we agree:

This Court has recognized that if an alleged error falls “within the ambit of trial strategy” it does not “establish ineffective assistance of counsel.” State v. Bienemy, 483 So.2d 1105 (La.App. 4 Cir.1986). Moreover, as “opinions may differ on the advisability of a tactic, hindsight is not the proper perspective for judging the competence of counsel's trial decisions. Neither may an attorney's level of representation be determined by whether a particular strategy is successful.” State v. Brooks, 505 So.2d 714, 724 (La.1987).

The conduct Defendant complains of occurred during opening and closing arguments. Statements made during opening and closing arguments are not evidence, and generally, the jury is instructed of the limits thereof. State v. Trahan, 11-1609 (La. 7/2/12), 97 So.3d 994. There are a myriad of reasons why counsel may have wanted to reference the issues of drug use and abuse within families and the community so as to relate to the jurors, many of whom may have experienced such issues among their family or friends. Further, we note that our courts have found that a counsel's decision even to admit guilt to the underlying crime or lesser verdicts can be considered effective trial strategy. See State v. Mitchell, 44,008 (La.App. 2 Cir. 2/25/09), 4 So.3d 320, writ denied, 09-718 (La. 2/12/10), 27 So.3d 841, writ denied sub nom. State ex rel. Mitchell v. State, 09-1570 (La. 4/30/10), 34 So.3d 285.

Additionally, while Defendant references some statements from the opening and closing arguments of counsel, he does not include the entirety of the argument, and thus, he provides no context in which the statements were made. Having access to the original appeal record, this court has reviewed the opening and closing arguments in their entirety and finds that counsel's opening and closing remarks were proper, cogent, thoughtful, and designed to argue valid points for the jury to consider favorably for Defendant in reaching their verdict. La.Code Crim.P. 929(A). We, thus, deny relief on this particular claim, although for different reasons than those used by the trial court.

Appellate Counsel

In his fourteenth assignment of error, Defendant asserts that appellate counsel was ineffective because she failed to brief three alleged errors, which were subsequently deemed abandoned by this court in the original appeal. The trial court denied relief because this claim was considered in the original appeal. While not addressed as an ineffective-assistance-of-counsel claim, this court noted the three issues not briefed:

Appellate counsel failed to brief three of the alleged errors from the motions for new trial: (1) denial of counsel's objections related to chain of custody; (2) acceptance of Detective Noel Yates as an expert; and (3) failure to disclose involvement in prior prosecution. As such, we will consider these claims abandoned and pretermit discussion of same. See Uniform Rules—Courts of Appeal, Rule 2-12.4(B)(4).

Brown, 299 So.3d at 671.

While the issue of ineffective assistance of appellate counsel was not addressed in the appeal per se for obvious reasons, we find no abuse of discretion in the trial court's denial of relief on this claim. In State ex rel. Sparkman v. State, 15-1726, p. 3 (La. 10/17/16), 202 So.3d 488, 492, the supreme court addressed the issue of claimed ineffective assistance of appellate counsel:

The law on appellate representation is also frequently cited. In reviewing claims of ineffective assistance of counsel on direct appeal, the Supreme Court of the United States has expressly observed that appellate counsel “need not advance every argument, regardless of merit, urged by the defendant. Evitts v. Lucey, 469 U.S. 387, 394, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). The Court gives great deference to professional appellate strategy and applauds counsel for “winnowing out weaker arguments on appeal and focusing on one central issue if possible, and at most a few key issues. Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). This is true even where the weaker arguments have merit. Id. at 751–2, 103 S.Ct. 3308.

When the claim of ineffective assistance of appellate counsel is based on failure to raise the issue on appeal, the prejudice prong of the Strickland test requires the petitioner to establish that the appellate court would have granted relief, had the issue been raised. United States v. Phillips, 210 F.3d 345, 350 (5 Cir. 2000).

In the instant application, it is not easy to determine the exact claims made, but after reviewing the pro se application broadly, the court does not find either trial or appellate counsel were deficient in their representation. In addition, the district court record and decision on appeal indicate zealous and competent representation.

Nowhere in his application to the trial court, his brief, or his application to this court, does Defendant set forth any law or argument as to the substance of the alleged errors not briefed by appellate counsel in the original appeal. It is the petitioner's burden in an application for post conviction relief to prove that relief should be granted. La.Code Crim.P. art. 930.2. Having set forth no allegations, argument, or law as to the appellate issues not briefed on appeal, he has established neither ineffective assistance of counsel nor prejudice from any such action by appellate counsel. As noted above, general, and conclusory allegations cannot support a claim of ineffective assistance of counsel. Celestine, 91 So.3d 573. Additionally, as in Sparkman, 202 So.3d at 492, we find that “the district court record and decision on appeal indicate zealous and competent representation[.]” It appears to us that despite overwhelming evidence, both trial and appellate counsel performed well in their representation of the Defendant.

We also take note of the fact that appellate counsel prevailed in arguments resulting in the reversal or amendment of Defendant's ultimate sentence, not once, but twice. The initial appeal considered a myriad of issues raised by appellate counsel and by Defendant via his pro se brief. Brown, 299 So.3d 661. In the second appeal, appellate counsel argued sentencing errors and again secured additional relief for Defendant. State v. Brown, 369 So.3d 796. Accordingly, we find no abuse of discretion in the trial court's denial of relief, although for different reasons.

Prosecutorial Misconduct Claims

In his last four assignments of error, Defendant asserts that he was denied due process based on prosecutorial misconduct by the prosecutor in (6) soliciting false or perjurious information at the habitual offender hearing; (7) soliciting false testimony during trial regarding whether Defendant was informed of his Miranda rights prior to questioning; (8) vouching for the truthfulness of testimony regarding whether Defendant was informed of his Miranda rights; and (9) discussing video evidence not presented at trial during its closing argument. Again, we will address these claims in order.

Solicitation of False Perjured Information at Sentencing

In his sixth assignment of error, Defendant asserts that he was denied due process because the prosecutor solicited false or perjurious information at the habitual offender hearing. He claims he was “sentenced as an habitual offender on the basis of manipulation of the evidence by [the prosecutor][,]” who “presented an incorrect, false date of discharge for Docket #2:03-cr-20050-001 in the Bill of Information.” He further claims that the prosecutor “manipulated [O]fficer [Cristina] Cypher in order to extract false, misleading, perjured testimony regarding the correct date of discharge for Docket 2:03-cr-20050-001.” He claims that “[t]he prosecutor knew or should have known that the testimony given by [O]fficer Cypher was false, and contrary to the documents provided by [O]fficer Cypher.” Again, the trial court denied relief on the basis that the claim, or substance thereof, was addressed on direct appeal.

We note that this is essentially a restatement of Defendant's ineffective-assistance-of-counsel claim regarding counsel's handling of the release date from federal custody as it relates to the cleansing period for the prior felony. Defendant now couches the claim as a prosecutorial misconduct claim, asserting it as false and perjured evidence. The release date and cleansing period issues were fully addressed on direct appeal, as discussed in the fourth assignment of error. As noted, Officer Cypher's testimony was not contrary to the records concerning federal case number 2:03-CR-20050-001. Additionally, the trial court also addressed this issue in a previous writ application and denied relief. On June 28, 2025, the trial court issued the following ruling regarding the same issue.:

Now upon granted writ, the Third Circuit Court of Appeals has ordered this Court to consider documentation that contains information that was available in the record at the time of Mr. Brown's sentencing. Upon reviewing all documents submitted including exhibit A (Public Information Inmate Data), the Court concludes that Mr. Brown's arguments are without merit. This Court has found no information contained therewithin that would change this Court's previous conclusions as they relate to sentencing.

This court recently reviewed that ruling on a separate application for supervisory writ and denied relief. Brown, ––– So.3d ––––. Accordingly, while the claim is postured differently, we find it to have been addressed substantively in the original appeals and in the prior writ application, and we find no abuse of discretion in the trial court's ruling. Thus, we deny relief on this claim as well.

Miranda Rights Testimony

In his seventh assignment of error, Defendant asserts that he was denied due process because the prosecutor solicited false testimony during trial regarding whether he was informed of his Miranda ⁹ rights prior to questioning.

While not directly addressed as a prosecutorial-misconduct claim, this argument was raised in the initial appeal, as noted by this court: “In his third counseled assignment of error, Mr. Brown contends the trial court erred in admitting his statement to law enforcement on June 9, 2017, without the State first proving he had been informed of his Miranda rights.” Brown, 299 So.3d at 679. Thereafter, this court extensively addressed the claim and found it to be without merit, concluding as follows:

Multiple officers testified Mr. Brown was read his Miranda warnings prior to his making an inculpatory statement that the room with drugs inside it was his bedroom. As recited above, the testimony of the interviewing officer may be sufficient proof that a statement is free and voluntary. Additionally, “[i]n reviewing the trial judge's ruling as to the admissibility of a confession, his conclusions on credibility are entitled to the respect due those made by one who saw the witnesses and heard them testify.” State v. David, 425 So.2d 1241, 1245 (La.1983). Apparently, the trial court felt the testimony of Detectives Martin and Yates was sufficient proof that Mr. Brown was aware of his Miranda rights prior to giving his statement. As such, we cannot say the trial court erred in allowing the statement. Accordingly, we find this assignment of error too lacks merit.

Id. at 680–81 (alteration in original).

The underlying issue of whether Defendant was actually advised of his rights and whether the evidence was credible was presented on direct appeal and disposed of contrary to Defendant's allegations. His claim, here, is another attempt to re-litigate a claim that was previously disposed of on appeal. Lee, 181 So.3d 631. Accordingly, we find no abuse of discretion in the trial court's ruling denying relief on this ground.

Closing Argument

In his eighth assignment of error, Defendant asserts that he was denied due process because the prosecutor, during closing argument, vouched for the truthfulness of the officers’ testimony regarding whether he was informed of his Miranda rights. Again, the trial court denied relief on the basis that these claims were addressed on direct appeal.

As stated above, this court noted that this issue was addressed on direct appeal and rightfully deferred to the trial court's determination as to credibility. Brown, 299 So.3d 661.

In State v. Willis, 05-218, p. 48 (La.App. 3 Cir. 11/2/05), 915 So.2d 365, writ denied, 06-186 (La. 6/23/06), 930 So.2d 973, this court reviewed the defendant's argument that the prosecutor committed prosecutorial misconduct by vouching for its witnesses’ credibility in closing arguments. Defense counsel made a contemporaneous objection. This court held that no error occurred under the circumstances:

“[A]n argument with regard to the credibility of a witness is proper where the credibility of the witness is in question and the facts bearing on the witness’ credibility appear in the record. State v. Sayles, 395 So.2d 695 (La.1981); State v. Procell, 365 So.2d 484 (La.1978), cert. denied, 441 U.S. 944, 99 S.Ct. 2164, 60 L.Ed.2d 1046 (1979); State v. May, 339 So.2d 764 (La.1976); State v. West, 319 So.2d 901 (La.1975).” State v. Brewer, 38,515, pp. 9–10 (La.App. 2 Cir. 8/20/04), 880 So.2d 1005, 1011, writ denied, 04-2509 (La.2/18/05), 896 So.2d 27. The credibility of J.W. and C.M. was clearly at issue in this case. The defense attorney pointed this out in his closing argument when he informed the jury that the case hinged on the credibility of C.M. and J.W. Accordingly, a comment by the prosecutor in reference to their credibility was not improper.

In conclusion, any reference by the prosecutor to the credibility of the State's witnesses was proper.

Id. at 398.

Like in Willis, the credibility of the witnesses was in question here as Defendant attempted to discredit the officers’ testimony as to whether he was given his Miranda warnings. While addressed in a different light, the substance of this claim was indeed considered and was obviously put at issue during trial by Defendant. The trial court did not abuse its discretion in denying relief on this ground, though the issue was couched differently. We, therefore, deny relief on this ground.

Evidence Not Admitted at Trial

In his final assignment of error, Defendant asserts that he was denied due process because the prosecutor discussed video evidence during closing arguments, which was not presented at trial. Again, we cannot find that this issue, directly or indirectly, was addressed on direct appeal. However, we find no abuse of discretion in the trial court's denial of relief on this claim based upon the record of this case.

The references complained of by Defendant were made by the prosecutor and concerned a video of a confidential informant's controlled drug buy from Defendant, which was not introduced at trial as it was not directly related to the charges before the jury. However, these remarks, while not disclosing the actual contents of the video, came on rebuttal after the issue was raised by Defendant's counsel in his closing argument. As counsel's remarks opened the door as to the video, it was not prosecutorial misconduct for the prosecutor to address those remarks in rebuttal argument, nor was there any objection by counsel to these references during the prosecutor's rebuttal argument.¹⁰

Moreover, where no contemporaneous objections were made concerning errors in the trial court, those grounds may not be considered on post conviction relief. “An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” La.Code Crim.P. art. 841(A); La.Code Crim.P. art. 920; see also Talley v. Maggio, 451 So.2d 1358 (La.App. 4 Cir. 1984). Again, while the trial court's reasons for denying this claim were incorrect, the result is correct. Where the record reflects no validity to arguments raised in an application for post conviction relief, those arguments may be summarily denied and dismissed. La.Code Crim.P. art. 929(A). Accordingly, we deny relief on this claim as well.

DECREE

For the reasons set forth herein, we grant Defendant's supervisory writ and deny the relief requested therein.

WRIT GRANTED; RELIEF DENIED.

FOOTNOTES

1.   Defendant's name is listed as Cassetti Dewayne Brown, Jr. in the federal and trial court documents attached as exhibits to his writ application as well as in this court's previous opinions and writ decisions. However, on his writ application, Defendant signed his name as “Casetti D. Brown Jr.” For consistency, we will continue to use the spelling contained in the court documents.

2.   We also reversed two other convictions as resulting from non-unanimous verdicts thereon and remanded those counts to the trial court for retrial.

3.   Effective August 1, 2025, La.Code Crim.P. art. 927(A)(1) was amended by 2025 La. Acts No. 393, § 1, to provide that in an application for post conviction relief, “the court shall conduct a preliminary review of all petitions for post conviction relief for compliance with the limitations for relief established in this Title.” It was further amended to provide that among the factors to be considered, the trial court should consider “[w]hether the application states adequate factual or legal grounds for relief.” La.Code Crim.P. art. 927(A)(1)(c).

4.   Pursuant to 2025 La. Acts No. 393, § 3, effective August 1, 2025, La.Code Crim.P. art. 928 was repealed as the substance of the article was incorporated into La.Code Crim.P. art. 927(A)(2), which provides, “If it is evident from the petition and any attached exhibits that the petitioner is not entitled to relief, the court shall dismiss the application.”

5.   As amended by 2025 La. Acts No. 393, § 1, the language “Unless required in the interest of justice” has been deleted.

6.   Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986).

7.   At the original habitual offender sentencing hearing, records from Federal Court Case 2:03-CR-20050-001 were introduced as evidence, containing fifteen pages detailing that Defendant was sentenced in that case in 2006 to sixty-three months in prison, to be followed by three years of supervised release. It also contains from Case 42:03-CR-20050-001, U.S. District Court Minutes of Court dated February 24, 2012, showing that Defendant's probation was revoked and that he was sentenced to serve twenty-four months in the Bureau of Prisons. At the hearing, United States Federal Probation Officer Cristina Cypher testified. When asked if the date July 25, 2014 “marks the termination date for his federal issues under [Federal Court Case 2:03-CR-20050-001],” she replied, “Yes, sir, it does.”

8.   At the time Defendant was sentenced as a habitual offender, the habitual offender statute provided that “the current offense shall not be counted as, respectively, a second, third, fourth, or higher offense if more than five years have elapsed between the date of the commission of the current offense or offenses and the expiration of the correctional supervision, or term of imprisonment if the offender is not placed on supervision following imprisonment, for the previous conviction or convictions[.]” La.R.S. 15:529.1(C)(1).

9.   Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).

10.   State v. Hoffman, 98-3118, p. 47 (La. 4/11/00), 768 So.2d 542, 584, supplemented, 00-1609 (La. 6/14/00), 768 So.2d 592, cert. denied, 531 U.S. 946, 121 S.Ct. 345 (2000) (“the defense unwittingly opened the door to this line of argument through the testimony of its expert witness.”)

KYZAR, Judge.