Bernis Brown Versus Tim Hooper, Warden Lsp ( 2024 )

BERNIS BROWN NO. 24-KH-494
VERSUS FIFTH CIRCUIT
TIM HOOPER, WARDEN LSP COURT OF APPEAL
STATE OF LOUISIANA
October 25, 2024
Susan Buchholz
Chief Deputy Clerk
IN RE BERNIS BROWN
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE FRANK A.
BRINDISI, DIVISION "E", NUMBER 90-3893
Panel composed of Judges Jude G. Gravois,
Scott U. Schlegel, and Timothy S. Marcel
WRIT DENIED
Relator, Burnis Brown, seeks this Court’s supervisory review of the trial
court’s August 2, 2024 ruling which denied his application for post-conviction
relief (“APCR”). For the following reasons, we find no error in the court’s ruling
and thus deny the writ application.
FACTS AND PROCEDURAL BACKGROUND
On February 8, 1991, relator pled guilty to two counts of first degree
murder. Pursuant to a plea agreement, the trial court sentenced relator to life
imprisonment at hard labor without the benefit of parole, probation, or suspension
of sentence on each count. The court also ordered the sentences to run
concurrently with each other. Relator did not file a motion for an appeal.
On July 26, 2024, relator filed an APCR with the trial court based on his
claim of newly discovered evidence pursuant to La. C.Cr.P. art. 930.8(A)(1),
which allows a defendant to file an APCR more than two years after his conviction
and sentence become final where “[t]he application alleges, and the petitioner
proves or the state admits, that the facts upon which the claim is predicated were
not known to the petitioner or his prior attorneys.” Specifically, relator claimed
that he recently learned that the record in his case does not contain documentation
of the number of grand jury members who voted to indict him for first degree
murder, in violation of his right to due process and equal protection under La.
C.Cr.P. arts. 383, 435, and 444.1 On August 2, 2024, the court denied relief, first
finding that relator “fail[ed] to meet any exceptions to timeliness” pursuant to La.
C.Cr.P. art. 930.8.2 The court also found that relator’s claim was procedurally
barred as successive, citing La. C.Cr.P. art. 930.4, because relator’s claim was
“known or should have been known to him, yet w[as] not included in any of his
previously filed APCRs.”3 The court also found that relator was not entitled to
relief because he failed to meet his burden of proof pursuant to La. C.Cr.P. art.
930.2.4
In his writ application, relator complains that the court erred by denying his
claim based on newly discovered facts showing that the number of grand jury
members who voted to indict him for first degree murder was unrecorded by the
Clerk of Court.
1
Pursuant to La. C.Cr.P. art. 383, in pertinent part, “[a]n indictment is a written
accusation of crime made by a grand jury. It must be concurred in by not less than nine of the
grand jurors, indorsed ‘a true bill,’ and the indorsement must be signed by the foreman.” La.
C.Cr.P. art. 435 provides, in pertinent part: “Nine grand jurors shall constitute a quorum, and
nine grand jurors must concur to find an indictment.” La. C.Cr.P. art. 444 provides, in pertinent
part: “At least nine members of the grand jury must concur in returning ‘a true bill’ or ‘not a true
bill.’”
2
Relator’s writ application does not include a copy of the trial court’s August 2, 2024 ruling in
compliance with Uniform Rules–Courts of Appeal, Rule 4-5(C)(6), which requires a “copy of
the judgment, order, or ruling complained of (if by written judgment, order, or ruling).”
However, a copy of the ruling is available in relator’s official record.
3
La. C.Cr.P. art. 930.4(B) provides: “If the application alleges a claim of which the
petitioner had knowledge and inexcusably failed to raise in the proceedings leading to
conviction, the court may deny relief.”
4
La. C.Cr.P. art. 930.2 provides “The petitioner in an application for post-conviction
relief shall have the burden of proving that relief should be granted.”
ANALYSIS
La. C.Cr.P. art. 930.8(A) provides, in pertinent part: “No application for
post-conviction relief including applications which seek an out-of-time appeal,
shall be considered if it is filed more than two years after the judgment of
conviction and sentence has become final.” In the instant case, relator’s
convictions and sentences became final in 1991. Thus, as the court found, relator’s
APCR filed in 2024 is untimely.
Relator however contends that his claim concerning the grand jury
indictment falls under the “facts not known” exception of La. C.Cr.P. art.
930.8(A)(1). In support of his claim, relator relies on a letter from the 24th
Judicial District Court Clerk of Court, dated October 19, 2023, which states:
In regards to your request for a copy of minutes or documents
reflecting a True Bill of Indictment was found by no less than nine
members of the Grand Jury, the Clerk’s Office is only in possession of
the Grand Jury return minute entry reflecting the name and number of
Grand Jurors that were present for the return and the signature of the
Grand Jury Foreperson on the Bill of Indictment.
The record of this case does not contain any documents which reflect
the number of Grand Jury members who voted for the Indictment.
In the instant writ application, relator gives no explanation as to why he did
not request documentation of the number of grand jury members who voted for the
indictment until 2023—more than thirty years after his 1991 guilty pleas and
sentencing. Furthermore, from relator’s official record, it appears that he requested
and received copies of the grand jury indictment and related minute entries in 2012
and 2017. As such, relator does not meet the diligence requirement of La. C.Cr.P.
art. 930.8(A)(1), which provides, in pertinent part:
[T]he petitioner shall prove that he exercised diligence in attempting
to discover any post conviction claims that may exist. “Diligence” for
the purposes of this Article is a subjective inquiry that shall take into
account the circumstances of the petitioner. Those circumstances
shall include but are not limited to the educational background of the
petitioner, the petitioner’s access to formally trained inmate counsel,
the financial resources of the petitioner, the age of the petitioner, the
mental abilities of the petitioner, or whether the interests of justice
will be served by the consideration of new evidence. New facts
discovered pursuant to this exception shall be submitted to the court
within two years of discovery.
Additionally, a defendant’s late realization that an error may have occurred
at trial does not qualify as discovery of a new fact for purposes of Article
930.8(A)’s exception. State v. Parker, 98-256 (La. 5/8/98), 711 So.2d 694, 695
(per curiam). Thus, relator fails to show that the Clerk of Court’s recent
confirmation that the number of votes was not recorded with respect to his grand
jury indictment now exempts him from the post-conviction two-year limit.
CONCLUSION
Upon review, on the showing made, we conclude that there was no error in
the ruling of the trial court. Accordingly, this writ application is denied.
Gretna, Louisiana, this 25th day of October, 2024.
JGG
SUS
TSM
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 10/25/2024 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:
24-KH-494
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable Frank A. Brindisi (DISTRICT JUDGE)
Thomas J. Butler (Respondent)
MAILED
Bernis Brown #292270 (Relator)
Louisiana State Penitentiary
Angola, LA 70712