STATE v. TYSON (2022)

Writ application denied. See per curiam.

Denied. Applicant fails to show that she is actually innocent pursuant to the standards provided in State v. Conway, 01-2808 (La. 4/12/02), 816 So.2d 290, and State v. Pierre, 13-0873, (La. 10/15/13), 125 So.3d 403. Applicant also fails to show she received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Applicant has now fully litigated her application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Applicant's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless she can show that one of the narrow exceptions authorizing the filing of a successive application applies, applicant has exhausted her right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Respectfully, I would grant in part and thus dissent. In her post-conviction application, applicant raised two claims for relief: factual innocence and ineffective assistance of counsel. Since the courts below considered her factual innocence claim, the Legislature passed 2021 La. Acts 104, which provides in new Code of Criminal Procedure art. 926.2 for a freestanding claim of factual innocence not based on DNA evidence that, while similar, is distinct from the previously controlling standard set forth in State v. Conway, 01-2808 (La. 4/12/02), 816 So.2d 290 and State v. Pierre, 13-0873 (La. 10/15/13), 125 So.3d 403. Accordingly, I would grant the application in part to remand the matter to the trial court for consideration under the newly enacted provisions. I would otherwise deny the writ.

In her post-conviction application, applicant raises two claims for relief: factual innocence and ineffective assistance of counsel. Since the courts below considered her factual innocence claim, the legislature passed 2021 La. Acts 104, which provides in new Code of Criminal Procedure art. 926.2 for a freestanding claim of factual innocence not based on DNA evidence that, while similar, is distinct from the previously controlling standard under State v. Conway, 01-2808 (La. 4/12/02), 816 So.2d 290, and State v. Pierre, 13-0873, (La. 10/15/13), 125 So.3d 403. Accordingly, I would grant and docket the application in part for consideration under the newly enacted provisions.

Weimer, C.J., concurs in part and dissents in part and assigns reasons. Hughes, J., would grant and docket. Griffin, J., would grant and docket and assigns reasons.