                         Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                         NEWS RELEASE #050


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 14th day of October, 2015, are as follows:




BY CLARK, J.:



2014-KP-2091      STATE OF LOUISIANA v. RONALD MARSHALL (Parish of Orleans)
                  (Armed Robbery)

                  Accordingly, the court of appeal’s decision that granted
                  respondent’s writ, in part, ordering the trial court to conduct
                  an evidentiary hearing to consider respondent’s ineffective
                  assistance of counsel claims, and to issue a subpoena duces tecum
                  to obtain Ms. Hudson’s time sheets, is vacated and the trial
                  court’s judgment denying respondent’s claims for post-conviction
                  relief is reinstated.
                  VACATED AND TRIAL COURT JUDGMENT REINSTATED.
10/14/15

                          SUPREME COURT OF LOUISIANA

                                     NO. 2014-KP-2091

                                 STATE OF LOUISIANA

                                          VERSUS

                                  RONALD MARSHALL

           ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
                FOURTH CIRCUIT, PARISH OF ORLEANS

CLARK, J.

       We granted the State of Louisiana‟s writ application to review the court of

appeal‟s decision that granted respondent Ronald Marshall‟s writ, in part. The

decision orders the district court to conduct an evidentiary hearing to consider the

ineffective assistance of counsel claims raised by respondent in an application for

post conviction relief, and to issue a subpoena duces tecum to obtain the victim‟s

employment time sheets.          For the reasons that follow, the court of appeal‟s

decision is vacated and the trial court‟s judgment denying respondent‟s post

conviction claims is reinstated.

       In 1998, an Orleans Parish jury found respondent guilty of armed robbery.

Following a habitual offender hearing, the trial court adjudicated respondent a

second felony offender and sentenced him to 49½ years imprisonment at hard labor

without the benefit of parole, probation, or suspension of sentence. The court of

appeal affirmed respondent‟s conviction and sentence in State v. Marshall, 99-

2176 (La. App. 4 Cir. 8/30/00), 774 So. 2d 244.1 This Court denied writs. State v.

Marshall, 00-3038 (La. 10/26/01), 799 So. 2d 1149.

1
  On direct appeal, respondent raised four assignments of error. In assignment of error no.1 and
pro se assignment of error no. 2, he argued trial counsel was ineffective by allowing hearsay
testimony at trial. Marshall, 99-2176, p. 4, 774 So. 2d at 248. In pro se assignment of error no.
3, respondent argued the trial court erred in denying his motion to dismiss his trial counsel
without first conducting an evidentiary hearing. Id. at 7, 774 So. 2d 249. Respondent filed the
motion to dismiss, alleging trial counsel “„neglected him [sic] knowledge of when to file
motions,‟ and therefore was ineffective.” Id. at 9, 774 So. 2d 250
       At respondent‟s trial, the state presented two witnesses. The first was New

Orleans Police Detective Calvin Brazley, who testified that he had received an

anonymous tip that a man named Ronald Marshall perpetrated a burglary in

November 1997, and having found no corresponding police report, he began an

independent investigation. Marshall, 99-2176, p. 2, 774 So.2d at 247. Detective

Brazley was initially unable to locate the victim but soon came across information

related to a December 11, 1997 shooting he had recently investigated in which the

victim was named Ronald Marshall. Id. Thereafter, Detective Brazley succeeded

in locating the reported robbery victim, Ms. Terry Hudson, who positively

identified respondent from a photo line-up. Id. The state‟s other witness, Ms.

Hudson, testified that on November 10, 1997, at approximately 8:30 p.m., she had

just come home from the store with her two children when three men pushed their

way into her residence. Id. pp. 2-3, 774 So.2d at 247-48. According to Ms.

Hudson, the men ransacked her home while she and her children were forced to lie

on the floor, before making off with some costume jewelry and $60. Id.

Respondent‟s defense at trial was that he was innocent; that the robbery in fact

never occurred; and that Detective Brazley pursued him as a suspect and

manipulated Ms. Hudson to falsely identify him, motivated by a personal vendetta

stemming from respondent‟s prior resistance to Detective Brazley‟s efforts to

engage him as a confidential informant.2

       In 2002, respondent filed his first application for post conviction relief,

claiming that counsel rendered ineffective assistance. Pertinent to the present

discussion, respondent complained in his 2002 application that counsel erred by

failing to explain the consequences of rejecting a plea offer from the state. In

support of his claim, respondent submitted an affidavit signed by his mother,


2
 See Writ application 14-KP-2091, Appendix, Exh.B, p. 3 (Respondent‟s writ application to the
Fourth Circuit Court of Appeal in State v. Ronald Marshall, 2014-K-0763 (La. App. 4 Cir.
9/11/14)).


                                             2
stating his trial counsel told her that he “may” have failed to inform him

(respondent) of the consequences of rejecting the offer. The district court denied

relief, and the court of appeal and this Court denied writs.3

       In 2010, respondent filed a second application for post conviction relief,

asserting two claims of ineffective assistance of counsel. In the first, he claims his

trial counsel failed to discover, prior to trial, evidence that Ms. Hudson was, in

fact, working at Kraft Foods in New Orleans, on November 10, 1997, at 8:30 p.m.,

when the alleged robbery occurred. Respondent acknowledges that he does not

actually possess proof that Ms. Hudson was working at the time of the robbery but

asserts his belief that such proof exists in light of information discovered by Mr.

Dearvis Alexander, a private investigator hired by his post conviction counsel to

investigate the matter. According to respondent, Mr. Alexander, after contacting

Kraft Foods in New Orleans, and its parent company, Kraft Foods of Chicago, had

reason to believe that Ms. Hudson was working at Kraft Foods in New Orleans,

Monday through Friday, November 10 through 14, 1997, from 1:00 p.m. to 9:00

p.m., each day. When Mr. Alexander requested copies of Ms. Hudson‟s time

sheets and employment records, a Kraft Foods supervisor informed him that the

company prohibited the disclosure of employee records to a third party without a

court order. Thus, in conjunction with his post conviction application, respondent

submitted a motion for a subpoena duces tecum, to direct Kraft Foods to produce

the pertinent time sheets.

       In his second claim, respondent asserts his trial counsel failed to convey to

him a plea offer by the state. He asserts he first learned of the plea offer from

documents obtained in response to his 2009 public records request for the district




3
 State v. Marshall, 02-1769 (La. App. 4 Cir. 11/8/02) and State ex rel. Marshall v. State, 02-
3150 (La. 12/12/03), 860 So.2d 1146, respectively.


                                              3
attorney‟s file. Specifically, the district attorney‟s file contained a letter 4 dated

June 9, 1998, by Assistant District Attorney Carol Kovacs to Ms. Hudson that

states, in part:

               Dear Ms. Hudson:

               Several attempts have been made to contact you at your
               home phone in an effort to inform you that the case in
               which you were a victim has been set for trial on July 2,
               1998. It is important that you appear in Criminal District
               Court, 2700 Tulane Ave., Section “F” at 8:00 a.m., for
               your testimony.

               While a trial has been set, I have discussed a ten year
               plea bargain with the defendant’s counsel, whereby the
               defendant, if he agrees, will be permitted to plead guilty,
               and a trial will not be held.

               It is important that I speak to you as soon as possible
               regarding your testimony. You can contact me at . . .
               (emphasis added).

       On March 5, 2013, respondent filed a supplemental application for post

conviction relief asserting the prior ineffective assistance of counsel claims as well

a claim that counsel was ineffective during the habitual offender proceedings by

failing to challenge the habitual offender adjudication on the ground that the

predicate offense was not a final conviction.5

       The state objected to the application and supplemental application for post

conviction relief, arguing respondent‟s claims were repetitive under La. C.Cr.P.

art. 930.46 and untimely under La. C.Cr.P. art. 930.8.7 It further argued respondent


4
  The letter is typed written on stationery with a letterhead bearing the official state seal and
name and title of the district attorney of New Orleans.
5
  Respondent later filed a motion to reopen the habitual offender proceedings, claiming that his
predicate conviction was invalid under the habitual offender law because it carried an illegally
lenient sentence.
6
  At the time Marshall filed his post conviction application in 2010, and the trial court rendered
judgment in June 2014, La. C.Cr.P. art. 930.4 provided:

                      A. Unless required in the interest of justice, any claim for relief which
               was fully litigated in an appeal from the proceedings leading to the judgment of
               conviction and sentence shall not be considered.

                     B. If the application alleges a claim of which the petitioner had
               knowledge and inexcusably failed to raise in the proceedings leading to


                                                4
failed to prove his claims were predicated upon facts not known at the time of trial,

as required by the exception to the limitations period set forth in La. C.Cr.P. art.

930.8(A)(1).




               conviction, the court may deny relief.

                       C. If the application alleges a claim which the petitioner raised in the trial
               court and inexcusably failed to pursue on appeal, the court may deny relief.

                       D. A successive application may be dismissed if it fails to raise a new or
               different claim.

                       E. A successive application may be dismissed if it raises a new or different
               claim that was inexcusably omitted from a prior application.
7
  At the time Marshall filed his post conviction application in 2010 and the trial court rendered
judgment in June 2014, La. C.Cr.P. art. 930.8 provided:

                       A. 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 under the
               provisions of Article 914 or 922, unless the following apply:

                       (1) The 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 attorney.

                       (2) The claim asserted in the petition is based upon a final ruling of an
               appellate court establishing a theretofore unknown interpretation of constitutional
               law and petitioner establishes that this interpretation is retroactively applicable to
               his case, and the petition is filed within one year of the finality of such ruling.

                       (3) The application would already be barred by the provisions of this
               Article, but the application is filed on or before October 1, 2001, and the date on
               which the application was filed is within three years after the judgment of
               conviction and sentence become final.

                      (4) The person asserting the claim has been sentenced to death.

                       B. An application for post conviction relief which is timely filed, or
               which is allowed under an exception to the time limitation as set forth in
               Paragraph A of this Article, shall be dismissed upon a showing by the state of
               prejudice to its ability to respond, negate, or rebut the allegations of the petition
               caused by events not under the control of the state which have transpired since the
               date of original conviction, if the court finds, after a hearing limited to that issue,
               that the state‟s ability to respond to, negate, or rebut such allegations has been
               materially prejudiced thereby.

                       C.     At the time of sentencing, the trial court shall inform the defendant
               of the prescriptive period for post-conviction relief either verbally or in writing.
               If a written waiver of rights form is used during the acceptance of a guilty plea,
               the notice required by this Paragraph may be included in the written waiver of
               rights.

       The legislature in Acts 2013, No.251, §1, eff. Aug. 1, 2014, amended article 930.8 to
make the procedural bars against successive filings mandatory.


                                                 5
         On June 18, 2014, the district court denied respondent‟s application and

supplemental application for post conviction relief, finding he failed to assert a

valid claim under La. C.Cr.P. art. 930.3.8 The court found respondent failed to

prove he was unaware of a plea offer prior to trial or that the victim was working at

the time of the robbery.9

         The court of appeal granted respondent‟s writ, in part, and denied, in part,10

concluding the trial court erred by summarily dismissing respondent‟s claims that

his trial counsel rendered ineffective assistance by failing to discover Ms.

Hudson‟s time sheets and to convey the plea offer. State v. Marshall, 14-0763 (La.

App. 4 Cir. 9/11/14). The court remanded those claims for consideration at an

evidentiary hearing, concluding they were substantively different from
8
    Louisiana C.Cr.P. art. 930.3 provides:

                 If the petitioner is in custody after sentence for conviction for an offense, relief
                 shall be granted only on the following grounds:

                 (1) The conviction was obtained in violation of the constitution of the United
                 States or the state of Louisiana;

                 (2) The court exceeded its jurisdiction;

                 (3) The conviction or sentence subjected him to double jeopardy;

                 (4) The time limitations on the institution of prosecution had expired;

                 (5) The statute creating the offense for which he was convicted and sentenced is
                 unconstitutional; or

                 (6) The conviction or sentence constitute the ex post facto application of law in
                 violation of the constitution of the United States or the state of Louisiana;

                 (7) The results of DNA testing performed pursuant to an application granted
                 under Article 926.1 proves by clear and convincing evidence that the petitioner is
                 factually innocent of the crime for which he was convicted.
9
   The trial court also found respondent‟s motion to reopen the habitual offender proceedings
barred under R.S. 15:529.1(D)(1)(b), which provides that challenges to predicate convictions
must be raised before a habitual offender sentence is imposed and “may not thereafter be raised
to attack the [habitual offender] sentence.”

10
    As to respondent‟s complaints that the trial court erroneously denied his actual innocence
claim and motion to reopen habitual offender proceedings, the court of appeal denied writs,
citing State v. Conway, 01-2808 (La. 4/12/02), 816 So.2d 290; State ex rel. Melinie v. State, 93-
1380 (La. 1/12/96), 665 So.2d 1172; and State v. Cotton, 09-2397 (La. 10/15/10), 45 So.3d 1030.
Respondent filed a writ application seeking review of the court of appeal‟s ruling, which this
Court denied. State v. Marshall, 14-2096 (La. 4/25/15), ____ So. 3d ____.



                                                   6
respondent‟s earlier ineffective assistance of counsel claims and, therefore, neither

repetitive nor successive. The court of appeal also ordered the trial court to grant

respondent‟s motion to issue the subpoena duces tecum to obtain Ms. Hudson‟s

time sheets. The state filed a writ application seeking review of the court of

appeal‟s ruling, which we granted. State v. Marshall, 14-2091 (La. 4/24/15), 168

So. 3d 406.

      In its writ application, the state contends the trial court correctly dismissed

respondent‟s ineffective assistance of counsel claims without a hearing because

they are untimely and repetitive. According to the state, because respondent has

failed to prove that trial counsel did not convey to him the ten-year plea offer, or

that the victim was at work when the robbery occurred, he failed to satisfy the

exception to the prescriptive period for facts not known set out in La.C.Cr.P. art.

930.8(A)(1).    The state also points to respondent‟s direct appeal and first

application for post conviction relief, in which he raised ineffective assistance of

counsel claims on other grounds, urging the instant claims are impermissibly

repetitive or suggestive. The state contends respondent could have obtained the

district attorney‟s file once his conviction and sentence became final in 2001, see

Lemmon v. Connick, 590 So. 2d 574, 575 (La. 1991) (holding district attorney files

are subject to public records requests once a conviction and sentence are final),

and, therefore, he should have raised the uncommunicated plea offer claim in a

prior pleading. Finally, the state contends the trial court correctly refused to grant

respondent‟s subpoena duces tecum for Ms. Hudson‟s employment time sheets

because his underlying ineffective assistance of counsel claims are procedurally

barred.

      “The petitioner in an application for post conviction relief shall have the

burden of proving that relief should be granted.” La. C.Cr.P. art. 930.2. The

record indicates respondent‟s conviction and sentence became final in 2001, nearly


                                          7
a decade before he initiated the post conviction proceedings at issue. Thus, his

claims are untimely, see La. C.Cr.P. art. 930.8 and State ex rel. Glover v. State, 93-

2330 (La. 9/5/95), 660 So.2d 1189, unless they fall within an exception to the

prescriptive period set out in La. C.Cr.P.art. 930.8(A).

      In his 2010 application for post conviction relief, respondent alleges his

claims satisfy the exception in La. C.Cr.P. art. 930.8(A)(1) because they are

predicated on facts not previously known. Article 930.8(A)(1) requires the

petitioner (respondent) to prove, or the state to admit, that the facts upon which the

claim is predicated were not known to the petitioner or his attorney. Regarding the

alleged uncommunicated plea offer, respondent submitted an affidavit in

conjunction with his 2010 post conviction application averring that he never knew

of the plea offer until he received the district attorney‟s file in January 2010 in

response to his public records request; that his trial counsel never communicated

the state‟s ten-year plea offer to him for consideration; and that had he known of

the plea offer, he would have accepted it rather than risk receiving a significantly

harsher sentence of 49½ years after conviction at trial. Although respondent

submitted the letter from the district attorney‟s file, indicating Assistant District

Attorney Carol Kovacs had tendered a plea offer to his trial counsel, he submitted

no proof, such as an affidavit from trial counsel, that the plea offer was not

communicated to him.       Absent an affidavit from trial counsel to substantiate

respondent‟s allegation, the claim lacks sufficient credibility to warrant an

evidentiary hearing to ascertain the truth of the claim. Cf. Underwood v. Clark,

939 F. 2d 473, 476 (7th Cir. 1991) (“[I]n a subsequent collateral attack on the

conviction the defendant must produce something more than a bare,

unsubstantiated, thoroughly self-serving, and none too plausible statement that his

lawyer (in violation of professional standards) forbade him to take the stand.”).

      Furthermore, the veracity of respondent‟s claim that trial counsel never


                                          8
informed him of a plea offer is undermined by other evidence in the record.

Specifically, the record includes a copy of a letter received by the Office of

Disciplinary Counsel on June 22, 1998, that is dated June 14, 1998, handwritten,

signed by the respondent, and includes his return address at Orleans Parish

Prison.11 The letter states, in pertinent part:

                  I‟M WRITING IN REGARDS TO COMPLAINT
             AGAINST MY STATE APPOINTED COUNSEL OF
             THE (O.I.P.D.), IN REFERENCE TO MY CASE
             PENDING IN SECTION “F” OF THE CRIMINAL
             DISTRICT COURT OF N.O. LA, 70119. FIRST &
             FOREMOST I‟M VERY AWARE OF MY RIGHT TO
             COUNSEL IS THE RIGHT TO EFFECTIVE
             ASSISTANCE OF COUNSEL.

                  NEVERTHELESS, MY STATE COUNSEL,
             TOWNSEND MYERS IS NOT EXERCISING NOR IS
             HE APPLYING HIS PROFESSIONAL SKILLS
             TOWARD THE CASE PENDING AGAINST ME,
             THEREFORE,     COUNSEL     HAS  SHOWN
             NEGLIGENCE AND HAS NEVER DISCUSS A
             TACTIC FOR AS A DEFENSE FOR MY CASE.
             MORESO EVERY COURT APPEARANCE, HE‟S
             DEPRIVING ME OF MY FREEDOM, OFFERING A
             PLEA BARGAIN. SO NOW I ASK, FOR YOUR
             ASSISTANCE IN THIS MATTER.


The dates indicate respondent wrote and sent the aforementioned letter just weeks

prior to his trial, evidencing he knew of a plea offer.

      As to respondent‟s claim that trial counsel failed to discover prior to trial

Ms. Hudson‟s employment time sheets that placed her at work at the time of the

robbery, he offered absolutely no proof that the time sheets do, in fact, exist.

Respondent concedes that he does not possess actual proof that Ms. Hudson was

working at the time of the robbery but asserts his belief that such proof exists in

light of information discovered by Mr. Alexander, the private investigator.

Without an affidavit from either Mr. Alexander or Ms. Hudson‟s then employer,

Kraft Foods, averring that such time sheets do exist and can be disclosed only upon
11
  The record also contains a copy of the letter the Office of Disciplinary Counsel sent to
respondent on June 23, 1998, in response to his complaint.


                                            9
a court order, respondent‟s allegation is merely a bare, self-serving,

unsubstantiated statement insufficient to satisfy his burden under La. C.Cr.P. arts.

930.2. and 930.8. Because respondent offered no proof to support his claim that

the victim‟s time sheets do exist, the court of appeal erred in ordering the trial

court to issue the subpoena duces tecum to obtain them.

      In summary, we find respondent has failed to show that his late-filed post

conviction claims satisfy an exception as provided in La. C.Cr.P. art. 930.8(A) and,

therefore, these claims are procedurally barred. We find the trial court correctly

denied respondent‟s post conviction claims.

      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 La.C.Cr.P. art. 930.4 to make the procedural bars

against successive filings mandatory. Respondent‟s claims have now been fully

litigated in state collateral proceedings in accord with La.C.Cr.P. art. 930.6, and

this denial is final. Hereafter, unless respondent can show that one of the narrow

exceptions authorizing the filing of a successive application applies, respondent

has exhausted his right to state collateral review.

                                         DECREE

      Accordingly, the court of appeal‟s decision that granted respondent‟s writ, in

part, ordering the trial court to conduct an evidentiary hearing to consider

respondent‟s ineffective assistance of counsel claims, and to issue a subpoena

duces tecum to obtain Ms. Hudson‟s time sheets, is vacated and the trial court‟s

judgment denying respondent‟s claims for post conviction relief is reinstated.

      VACATED AND TRIAL COURT JUDGMENT REINSTATED




                                          10
