STATE v. JACK (2020)

Writ denied.

Relator has alleged ineffective assistance of counsel in a second post-conviction application. The district court did not afford relator an opportunity to make a showing that his application was timely under La. C. Cr. P. art. 930.8(A)(1) because “the facts on which his claim [of ineffective assistance of counsel] are predicated were not known to the petitioner or his prior attorneys.” Regardless of the likelihood of success, relator should be afforded that opportunity as well as an opportunity to either produce, or request an order for production of, documents in the State's possession that relator claims his trial counsel should have been furnished with in the (notably very brief) time between petitioner's arrest and trial.

If such documents contain information substantiating either relator's claim that his counsel was ineffective for taking relator's case to trial before being furnished with full discovery by the State, or if they contain exculpatory or impeachment evidence that the State was obliged to provide to relator under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), then the district court should determine whether the exception to the two-year time limit for filing post-conviction applications under La. C. Cr. P. art. 930.8(A)(1) applies to relator's claims. If the district court finds the exception does apply, it should consider the merits of relator's claims. If no such evidence exists, then relator has been given a full opportunity to show that his conviction was obtained in violation of the laws or Constitution under La. C. Cr. P. art. 930.3, but failed to do so. Because I am not comfortable denying relator's writ without this further factual development, I would grant the writ and remand to the district court.

Johnson, C.J., would grant and remand and assigns reasons. Weimer, J., recused.