JOSEPH JODY DUPLICHAN JR v. JASON KENT WARDEN DIXON CORRECTIONAL INSTITUTE (2017)

ORDER:

Joseph Jody Duplichan, Jr., Louisiana prisoner # 320365, moves this court for a certificate of appealability (COA) following the district court's denial of his 28 U.S.C. § 2254 application challenging his 2006 convictions for indecent behavior with a juvenile. Duplichan seeks a COA on the ground that his constitutional rights were violated because an allegedly falsified or altered voir dire transcript was considered in his appeal and post-conviction proceedings, thereby preventing him from establishing that his trial counsel provided ineffective assistance by failing to strike a biased juror.

To obtain a COA, a prisoner must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The COA applicant must demonstrate “that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (internal quotation marks and citation omitted).

Duplichan's § 2254 application was an unauthorized successive § 2254 application that the district court lacked jurisdiction to consider. See Leal Garcia v. Quarterman, 573 F.3d 214, 221-22 (5th Cir. 2009). Despite the district court's expressed uncertainty regarding the timing of Duplichan's access to the voir dire transcripts, the records from the first § 2254 proceeding establish that Duplichan was in possession of both the 2006 and 2007 transcripts by December 2011, when he filed them as exhibits to his successful motion to amend his petition. See ECF LAWD 2:10-cv-01642, 15; ECF LAWD 2:10-cv-01642, 15-3; docket sheet LAWD 2:10-cv-01642 (dkt. entry nos. 15-16). In fact, Duplichan's January 2012 amended petition discussed at length the differences between the two transcripts and raised the instant claim that the State had submitted the allegedly falsified 2006 transcript in the § 2254 proceeding in order to prevent him from successfully asserting that he received ineffective assistance due to the empaneling of a biased juror. ECF LAWD 2:10-cv-01642, 17. It is true that it was not until Duplichan filed his supplemental objections to the MJ's report in August 2013 that he expanded his argument to allege that the 2006 transcript had also been used in his state post-conviction proceedings. See ECF LAWD 2:10-cv-01642, 28, p.7. However, there is no apparent reason that Duplichan could not have raised that expanded issue, and expanded it further to include the use of the 2006 transcript in his state appeal proceedings, during the 18 months that his amended petition was pending prior to the MJ's report. See docket sheet LAWD 2:10-cv-01642 (dkt. entry nos. 17, 24). Accordingly, Duplichan has failed to make the required showing. Consequently, his motion for a COA is DENIED.

GREGG J. COSTA UNITED STATES CIRCUIT JUDGE