Petition for Writ of Certiorari — Floyd Flugence, Petitioner v. Darrel Vannoy, Warden

Supreme Court briefAug 18, 2021

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Supreme Court. U.S.

FILED

AUG 1 8 2021

No..

OFFICE OF THE CLERK

21-5551

IN THE

SUPREME COURT OF THE UNITED STATES

FLOYD FLUGENCE - PETITIONER

vs.

STATE OF LOUISIANA - RESPONDENT^)

ON PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF LOUISIANA

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR CERTIORARI

FLOYD FLUGENCE

CAMP C WOLF 2

LOUISIANA STATE PRISON

ANGOLA, LOUISIANA 70712

Prepared By;

CAMP C - LSHgATIOH team

DR. ERIC M DEMET, RH.D., TH.D., DIV.D., C.ED.D.

63S0958 CAMP C WOLF-2

CERTIFIED PARALEGAL/OFFENDER. COUNSEL HI

ORIGINAL

QUESTION(S) PRESENTED

Whether the evidence was sufficient to support, the finding of guilt, in accordance with

La. R.S. 14:30.1 (Second Degree Murder) where there was no specific intent, to kill?

Was there a constructive denial ofPetitioner's right t o present a defense?

Did the hid court create manifest error by:

(a)

allowing the jury (during deliberations) to review a videotape?

(b)

modifying the video to slow motion?

In playing the video in slow motion, did the jury review a different form of the events

different time frame of the events?

Whether the Petitioner's (P and 14fc Amendments to the United Sates Constitution were

violated in the use of La. C. Qr.P. Art. 413(B)?

Is La C.Cr.P. Art. 413(B) in violation of the United States Constitution?

Whether Counsel was ineffective in violation of the # Amendment. to the United States

Constitution?

Did Petitioner suffer a Due Process violation in the lengthy delays?

Is an indictment sufficient when it finis to allege the elements of fire crime?

10.

Cm a Defendant present a proper defense when Ore indictment Sals to give notification

of the alleged crane?

with a

LIST OF PARTIES

f J

All parties appear m Hie cation of Hie case on Hie caver page.

[,Y]

All parties do not appear in the coition of Hie esse mi the cover p^e. A list of all pasties to the

proceeding in the court wb ose judgment is the subject of this petition is as follows;

Floyd Flugence #401997, Camp C Wolf 2, Louisiana State Prise®, Angola, Louisiana 70712

Keith States, D.A, Psrish of Lafayette, P.O. Bos 3306, Lafayette, Louisiana 70502-3306

Warden Tim Hooper, Acfcninistrative Building, Louisiana State Prison, Angola, Louisiana 70712

TABLE OF CONTENTS

QUESTION^) PRESENTED.................................................................

LIST OF PARTIES,.................................................................................

TABLE OF AUTHORITIES CITED.......................................................

OPINIONS BELOW.............................. .................................................

JURISDICTION........................................................................ -...........

CONSTmrnONAL AND statutory provisions involved.

STATEMENT OF THE CASE............................................................. ..

L Course of Proceedings....................................................................

2. Eacts ofthe Offense.......................................................................

REASONS FOR GRANTING THEPETTITON...... ..... .............. .

I. REASONABLE....... ..... .................................... ..... ..................... .

LAW AND ARGUMENT....................................................................

II. REASONABLE.................................................................................

LAW AND ARGUMENT.................................................. .................

Ill REASONABLE........................ ....................... ............ ..................

LAW AND ARGUMENT....................................................................

IV. REASONABLE.......... ........... .........................................................

LAW AND ARGUMENT....................................................................

V. REASONABLE.................................................................................

LAW AND ARGUMENT........................ ............. ....... .....................

VI. REASONABLE........................................................................ .......

LAW AND ARGUMENT............. ....... .............................. ........... .

VII. REASONABLE..............................................................................

LAW AND ARGUMENT....................................................................

VIII. REASONABLE......................................................... ...................

LAW AND ARGUMENT........................ ................. ...... .................

CONCLUSION................. ............................................................. .......

PROOF OF SERVICE............................................................................

INDEX TO APPENDICES

APPENDIX A

Writ of Habeas Corpus

APPENDIX B

Magistr ate Judge's Report and Recommendation

APPENDIX C

Objections to the Magistrate Judge's Report mid Recommendation

APPENDIX D

Order / Judgment of the United States District Court

APPENDIX E

Request, of Certificate of Appealability to the United Sates Fifth Circuit

Court of Appeal

APPENDIX F

Order of the United States Fifth Circuit Court ofAppeal

VII

...... 6

TABLE OF AUTHORITIES CITED

PAGE NUMBER

CASES

Jackson u Virginia, 443 U.S. 307,99 S O. 2781 (1979).

State v. Bryd, 385 So.2d 248 (La. 1980>.........................

Hudson v. Louisiana, 450 U.S. 40,101 S.CL 970 (1981)

State v. Shoemaker, 500 So.2d 385 (La. 1987)...............

Stale v. Harper, 646 So. 2d 338 (La 1994)......................

U.S. V: Dim stead,___F.2d 756 (DC. Cir. 1925); Russet) v. U.S., 82 S.CL 1045,

369 U.S. 761 (1962)............. ..................................................................................

Campbell v. Louisiana,___U.S.___ , 18 S.Ct. 1419, at 1425,

No. 96-1584 (decided April 21,1998)........................... ............. ...........................

State v. Carley, 617 So.2d 1292 (La App. 3rd Cir. 1993)............................................

In Re Olivet; 333 U.S. 257 (1948)........................ ......................................................

Cole v. Arkansas, 333 U.S. 196 (1948)........................................................................

Dejonge v. Oregon, 299 U.S. 353 (1937)................................................................. .

Paiko v. State of Connecticut, 302 U.S. 319,325,58 S.CL 149,152 (1937)...............

Chapman v. California, 386 U.S. 18, 23,87 S.Ct. 824, S2S (1967).............. ..............

Rose v. Clark, 478 U.S. at 577, 106 S.Ct. at 1305........................................................

Carella supra, 491 U.S. at 268,109 S.Ct. at 2421.......................................................

Vasques v. Hillary, 474 U.S. 263-64,106 S.Q. 623,88 L.Ed2d 598..........................

State v. Charles, 827 So.2d 553 (La. App. 3rd Cir. 10/02/02),

writ denied, 840 So.2d 569 (La 3/28/03)...............................................................

United States v. Hughey, 147 F.3d 423,436 (5th Cir. 1998),

ceil denied,__ U.S.

, 119 S.Ct 569,,__ L.Ed.2d___ (1998)........................

United States v. Gaytan, 74 F.3d 545,552 (5th Cir. 1996)...........................................

Russell v. United States, 369 U.S. 749,763-64,82 S.Ct, 1038,8 L.Ed.2d 240 (1962)

Wilson, 884 F.2d at 179................................. :..............................................................

United States v. Gutter, 659 F.2d 1306,1310 (5th Cir. Unit B. Oct 1981)...................

State v. Comeaux, 408 So.2d 1099 (La. 1981).............................................................

State v, Lecompte, 734 So. 2d 83 (La App. 1st Cir. 1999)...........................................

United States v. Joel Cabrera-Teran, 168 F.3d 141 (5th Cir. Feb. 35,1999)................

Russell, 369 U.S. at 770,82 S.Ct. 1038.......................................................................

U.S. v. CatarfrOferw, 168 F.3d 341 (5th Cir. 1999)...................................................

Strickland v. Washington, 466 U.S. 668,80 L.Ed2d 674,104 S.Q. 2052..................

Crisp v Duckworth, 743 F.2d 580 (1984)

Herring v. Estelle, 491 F.2d 125 (5th Cir. 1974)................

U.S. ex rel. Williams, 863 F.Supp 697 (N.D. Ill 1994)......

U.S. v. Gray, 565 F.2d 881 (5th Cir.).............................. ....

Hollingshed v. Wainwright. 423 F.2d 1059 (5th Cir. 1970)

U.S. v, Henderson, 19 F.3d 917 (5th Cir. 1994).................

.12

.13

.21

.23

IN THE

SUPREME COURT OF THE UNITED STATES

PETTITON FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below:

OPINIONS BELOW

[X]

For cases from federi courts:

The opinion of the United States court of appeals appears at AppendixJF. to the petition

and is

[ ]

report ed at.

; or.

[X] has been designated tor publication but is not yet reported; or*

[ j

is unpublished

Hie opinion of the Unit ed States district court appears at. Appendix JD_ to

the petition and is

[Xj reported at FJ.upe$iee v. Homey- 2020 WL 2758953 (May 27- 20201: or*

[ ]

has been designated for publication but is not yet. reported; or,

[ 1 is unpublished

[X]

For cases from state courts:

Hie opinion of the highest, state court, to review the merits appears attached to

Appendix A_ of the petition and is

[X j reported at Stater. Flttf>aux. 268 So.3d 301 (La. 4/22/19* ©i;

[ ]

has been designated for publication bid is not yet reporter!; oi;

[ J is unpublished

Hie opinion of the Third Circuit Court of Appeal appears attached to Appendix _A_ of

the petition and is

[ ]

reported at

; o*>

[ ]

has been designated for publication but is not yet reported; or,

[X]

is unpublished

JURISDICTION

[X]

For cases from federal courts:

Hie dale on which the United States Court ofAppeals decided my case

was April 5.2021

[X]

No petition for rehearing was lira eiy filed in my arse,

[ ]

A timely petition far rehearing was denied by the United States Court of

„ and a copy of

Appeals on the following date:_____________

the order denying rehearing appears at Appendix

[ ]

An extension of time to file the petition for a writ of certiorari was granted

(date)

(date) on

to and mckding _

in Application No.

The jurisdiction of this Court is invoked under 28 U,$,C. § 1254(1),

[X]

For cases from state courts:

The date on which the highest, state court, decided my case was April 22.20I&

A copy of that decision shears attached to Appendix _A.

[ J

A timely petition far rehearing was thereafter denied on the following

* and a copy of the order denying reheating

date:

appears at Appendix

[ ]

An extension of time to tile the petition for a writ of certiorari was

.(date) on

granted to and including.

(date) in Application No,

The jurisdiction of this Court is invoked under 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

CegMillUffi.

Fifth and Sixth Amendments of the United States Constitution

Louisiana Constitution of 1974, Artici L § 13

Louisiana Constitution of 1974, Article 1, § 15

Louisiana Constitution of 1974, Article I, Section 16

Louisiana Constitution of 1974, Article I, § 21

Louisiana Constitution of 1974, Article 5

Coinditutton of Clsrendom in 1166 A.D.

Statutes

La. C.Cr-P. Arts. 401,403.1 and 787

La C.Cr.P. Arts. 924 - 930.8

La R.S. 14:30.1

VII

STATEMENT OF THE CASE

Course ofProceedings

Petitioner request this Honorable Court indulge in the lengthy Statement of case because of the

procedural nightmare involved.

On March 21, 1997, Mr. Floyd FJugenee was charged by Grand Jury Indictment with second

degree murder, a violation of La. R.S. 14:30.1. On April 15,1997, he entered a plea of

guilty to the

Bill of Indictment. Following pre-trial discovery, motion hearing were held on March 30, 1998,

addressing Flugence's Motion to Suppress Statements made by the Petitioner, as well as heating on

Petitioner's Motion to Suppress Evidence. Following the presentation of evidence by the State and

Defense, the Tirijd Court, denied Petitioner Motion to Suppress Statements made by the Petitioner,

On March 31, 1998, the Court, however, ruled that, the video taped discussion between the

Petitioner and his attorney are absolutely inadmissible. The Court excluded the entire tape from use by

the State. Hie Court also denied Petitioner's Motion to Suppress the Evidence. Hie State noticed its

intent to seek writ of review regarding the inadmissibility of the discussion between the Petitioner and

his attorney. The matter was reset tor hid at a later date.

On June 24, 1998, the Third Circuit Court of Appeal affirmed the Trial Court's ruling only

insofar as it rale admissible to the video tape recording of the advise and the waiver of rights and the

Petitioner's statements to Detective Kaeea (ILp. 193).

The matter proceeded to trial on Augori 25,1998. Voir Dire examination was conducted by both

the State and Defense. A jury was selected with neither the State nor the Defense exercising all of its

peremptory challenges.

The State presented the testimony of many police officer and kg? witnesses. Hie Defense

presented testimony of a. lay witness, a. physician, and several law enforcement officers. Hie Defense

was denied the opportunity to present the testimony of a martial arts expert. The individual prepared for

trial by review of video tapes of the incident giving rise to the above captioned matter. The defense

timely objected to this arbitrary and capricious ruling. The Stale presented briefrebuttal evidence.

The trial court instructed the jury, but denied the use of proposed Defense jury instructions

number sis and eight. Hie Petitioner timely objected to this ruling. During jury deliberation, the jury

requested, among other things, permission from the Court, to review the slow motion video tape of the

incident. The Trial Court erroneously denied this request. On August 28, 1998, the jury returned a

verdict of guilty of second degree murder. The Petitioner waived the three day delay of sentencing.

after which the trial court, sentenced Mr. Floyd Flugence to serve a term of Life imprisonment, without

benefit of probation, parole or suspension of sentence. The Petitioner was not advised by the Trial

Court as to the three year limitation which to pursue any post conviction relief issues. Defense Counsel

for Petitioner filed a Motion for Appeal, imm ediatefy alter sentencing.

Petitioners appeal was beard in the Third Circuit. Court, of Appeal on June 2,1999, under State

r. Fief* Fh&getice, 744 Sold 235, 98-01882 (La App. 3* Cir. 6/2/99). However, Petitioner did not

receive this denial from the Circuit Court until November 1999. The fad that Appellate Counsel did not

seek Certiorari to the Louisiana Supreme Court, and Mr. Flugence being a “layman” was not aware of

the time linittgriott for seeking a timely review to the Court. This effectively caused Petitioner

subsequent filing to be untimely. As a result of the State-created impediment, the Louisiana Supreme

Court accepted and reviewed the writ. Thereafter, denying Petitioner's writ on April 27, 2001. See State

ex ret Fta?4 Fiugmce v. State, 791 So.2d 109, 2000-1574 (La. 4/27/01).

Petitioner then filed his Application for Post Conviction Relief1 in December of 2001, which

was also dented as untimely. Petitioner sought writs on Februay 22, 2002, in the Third Circuit Court of

Appeal The Circuit Court agreed with Petitioner stating the Trial Court erred in denying Petitioner's

PCR. It reversed the decision of the Trial Court and set aside their ruling, ordering the District Court to

Petitioner's Original Pest Conviction Application

rule on the merits of the claims without undue delay.

Following the Appellate Court's Jhme 27, 2002, ruling and order, Petitioner, on July 5, 2002,

was transferred from Louisiana State Penitentiary, to the Lafayette Parish Prison, for the purpose of

appearing before Judge Aaron of the 15a Judicial District Court. Petitioner moved for a continuance in

the matter, and requested that an attorney be appointed to represent him. Tire District Court granted the

continuance and order that an attorney be appointed to represent him. The Court also ordered that.

another motion for port-conyiction he prepared, after speaking with.counsel The Court ordered

that Petitioner remain in the Lafayette Parish Correction Center until further notice and that die

appointed attorney meet with the Petitioner as soon as possible.2

On July 23, 2003, Petitioner received notice ftom the Assistant District Attorney, Keith A.

Stutes (Currently the District Attorney) acknowledging the Public Defender's Office had not yet

communicated with Petitioner, and he was compelled to ask the Court to continue and refix: file August

4, 2003 scheduled hearing.3 Shortly thereafter, Petitioner received notice ftom the Office of the District

Defender stating that he was appointed as Public Defender, Gregory L. Thibodeaux.

From July 5, 2002 through March 14, 2005 (Two Yetux and 221 days), Petitioner remained on

Court order in the Lafayette Parish Correctional Center. During this time, Petitioner aid his fixnily

continuously called and wrote Attorney Thibodeaux. However, he never visited Petitioner nor took

then' calls or responded to their written correspondence. Never once in over two years did Attorney

Thibodeaux visit or communicate with Petitioner. Petitioner made approximately four (4) appearances

before the trial judge, each time Petitioner was without counsel and file matter was continued.

On March 14, 2005, Petitioner was transferred back to Louisiana. State Penitentiary. Due to

Petitioner's post-conviction still pending without a ruling on the merits. Petitioner diligently sought to

contact. Attorney Thibodeaux for representation on the merits cf his post, conviction for which he was

See Page 2 of the State’s Motion to Continue and Refix Hearing.

Sea Lrfter and State's Motion to Continue and Refbc Hearing.

appointed Or in the alternative, alter meeting with cotmsi<l, prepare a new application for postconviction rdief as so ordered by the trial Judge on July 5„ 2002.

On July 9, 2008. Petitioner filed a complaint with the Louisiana Attorney Disciplinary Board

against Attorney Thibodeaus. On August 21, 2008, the Louisiana Attorney Disciplinary Board advised

Petitioner the Attorney Thibodeaus had been suspended from practicing law since May 4, 2007.

Therefore, he could not represent Petitioner.4

Shortly thereafter, Petitioner advised the Court, that, he was without an Attorney, the Honorable

(Presiding) Judge Ernies ordered the Louisiana State Penitentiary for Petitioner's appearance.

Petit ioner was brought before the Court, and appointed Public Defender Vales Am os.

Petitioner diligently sought to communicate with Attorney Vales Amos by phone and written

communication, to no avail. Attorney Vales Amos never visited with Petitioner, nor forwarded any

written communication to Petitioner. During this time. Petitioner gained knowledge of newly

discovered evidence, that being ajury member seated in his trial that's a friend of Petitioner's family ad

knew Petitioner well. Petitioner was/is unable to address this issue due to counsel's neglect of

representstfion to his pending post-conviction.

Petitioner, on September 26,2013, after several diligent inquires, received a notice from G. Paul

Mars with the 15th Judicial District Office of the District. Defender. Mr. Mars acknowledges there has

been no judgment rendered In reference to petitioner's post-conviction. However, Mr. Marx states,

contrary to Court ordered appointment of counsel, that his office does not anticipate taking further steps

on Petitioner's behalf. Mr. Mars reasoning is basically due to Petitioner poorly prepared pro se

application for post-conviction,5 even after the Court ordered on July 5, 2002, that Petitioner be

allowed to prepare another motion for post-conviction after speaking with counsel.

4 See August. 21,2008, Letter from Louisiana Attorney Disciplinary Board

5 September 26,2013 Letter from G. Paul Marx, Office of District Defender

On November 23, 2016, the Petitioner decided to file a Motion to Enforce, being that his post

conviction was still pending before the Fifteenth Judicial District. Court.. The Appellate Court, agreed

with the Petitioner, stating the Petitioner's application had not been ruled on as order by this Court, on

June 27,2002. The Court further ordered that the trial court answer by March 13, 2017, It did net. The

Petitioner was appointed, once again, Mr. Vales Amos, This was not know® to the Petitioner for quite

some time. Finally, after writing several letters, it had come to the Petitioner's attention that Mr. Amos

was actually sett ing the Court dates back (deferring) on behalf of the Petitioner, even without having

even spoken with the Petitioner. This began the process of another layer of ineffective assistance of

counsel which will be discussed throughout.

On October 24, 2017, Petitioner appeared in front of the 15& Judicial District Court for the

purpose of an Evidentiary hearing regarding the PCR originally filed by the Petitioner in December

2001. After 17 years pending in the District Court, the Petitioner was denied relief. When counsel

asked if the court had any reason, the District Court Judge stated, “Well it. just, seems like Mr. Block

had done his Job as thoroughly as he felt -

then wait on to say, “yeah. It seems that Mr, Block did

what he could with the case he had and it looked like he explored all the options that he thought were

relevant to the case.” 6 Aft®* waiting nearly 2 decades, this was the answer the Petitioner received from

the Court. He did not receive bus written ruling per La. C.Or.P. Art. 930.8 until December 20, 2017. Mr.

Flugence then filed a Notice of Intent to the District Court seeking a return date for filing to the Third

Circuit Court of Appeal.7

Petitioner, out of an abundance of caution, timely filed his supervisory writ to the Circuit. Court,

arguing the claims of an erroneous ruling regarding the post, conviction. Although the Petitioner

explmned to the Court that he was not in possession of certain documents (i.e., copy of the transcripts

from the hearing held on October 24,2017), on May 8,2018, the Court denied Petitioner on a string of

6 Transcripts from October 24, 2017 Hearing,

For m unknown reason, the writ, w as denied on How ember 27,2018.

technicalities. (See Ruling of the Third Circuit Court of Appeal).

Petitioner received the denied on May 11. 2018. Thereby making his “due date” lor filing to the

Louisiana Supreme Court set for June 10, 2018. Thirty days after receiving the denial. Because June

10, 2018 was a Sunday, his due date changed to Hie next available date of June 11, 2018.

On June 11, 2018, Mr. Flugence filed Supervisory Writs to die Louisiana Supreme Court. On

April 22, 2019, the Louisiana Supreme Court denied the Petitioner's request for Supervisory Writs.

On June 25, 2019, Petitioner timely filed his Writ ofHabeas Corpus to die United States District

Court, Western District of Louisiana, Lafayette Division, after dealing with a long judicial nightmare in

the Louisiana State courts. Die State, some time thereafter, filed an Aflsmv to Petition for Writ of

Habeas Corpus.. On January 3, 2020, Petitioner filed a Traverse To Rate's Answer To Petition. On April

8, 2020, Magistrate Judge Carol B. Whitehurst filed a Report and Recommendation, which was

received by Petitioner on or about April 14, 2020. Petitioner filed timely Objections To Magistrate's

Report And Recommendation And Incorporated bfemorandum on April 23, 2020. On May 29, 2020,

Judge Michael J. Juneau of die United States District Court, Western District of Louisiana, Lafayette

Division, entered an action to deny7 Petitioner's Writ of Habeas Corpus. On June 12, 2020, Petitioner

filed si. Notice OfAppeal and sm Affidavit To Proceed In Forma Pauperis.

Petitioner now files a timely Certificate ofAppealability with this Honorable Fifth Circuit Court

of Appeal seeking to finally receive a proper judicial review per the United States Constitution.

Facts ofdie Offense

On February 11,1997, during the afternoon of Mardi Gras celebration in Lafayette, Louisiana,

Petitioner, a Carencro, Louisiana, reserve police officer was working as a security officer at local

university students hangout and is known locally as “the strip,” Due to the Mardi Gras celebrations, and

because of the frequent incidents of drunken brawls, many of the local bars employ off duty police

officers to work security details during Mardi Gras celebrations.

Late in the afternoon of February 11,1997, alight broke out in the parking lot of Club Jam ad a.

The music DJ requested security to breakup this light. Petitioner, Floyd Flugence, was working as a.

security guard and was wearing a black shirt, and hat. with the word “security” boldly emblazoned on

the same, became involved in an altercation with the deceased, Brian Benoit In attempts to subdue Mr.

Benoit, Mr. Flugence was repeatedly knocked to the ground. On tow occasions, Mr, Flugence

attempted to subdue him. It should be noted that Mr. Flugence was not running or charging Mr. Benoit,

nor was he trying to tackle hi or take him to the ground. He was simply trying to subdue him and

restore the peace. All within the means ofhis training as a. police officer.

According to many Stale's witnesses, Benoit punched Mr, Flugence in the face knocking him to

the ground on two occasions Mr. Flugence sustained injuries to his face requiring University Medical

Center physicians to stitch the injury, i.e., a hole through and through the flesh surrounding his month.

In further efforts to subdue Benoit, Mr. Flugence went to his vehicle and returned with his service

weapon. He approached Brian Benoit, at. which time Benoit advanced towards Mr. Flugence, and a

single shot was fired at Benoit The bullet entered the upper chest of the six foot three inch (tO”) Brian

Benoit, and traveled a downward path and lodged underneath his skin near Mr. Benoit's eighth rib, Mr.

Benoit died of injuries sustained by two major blood vessels and upper airway. Mr. Floyd Flugence was

arrested oit Are scene.

REASONS FOR GRANTING THE PETITION

REASONABLE

INSUFFICIENCY OF THE EVIDENCE

LAW AND ARGUMENT

When sufficiency of the evidence to sustain a conviction is raised on appeal, the appropriate test

ts that a reasonable fact finder must have a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99

S.Q. 2781 (1979); State v. Bryd, 385 So. 2d 248 (La. 1980). When the evidence is legally sufficient, the

verdict must be set aside and either a modified verdict or a judgment of acquittal must be entered.

Hudson v. Louisiana, 450 U.S. 40,101 S.Ct. 970 (1981); State v. Byrd, supra.

In the matter before this Court the record is void of any evidence establishing that Floyd

Flugence was not acting in self defense, or the defense of others when he attempted to subdue Brian

Benoit with his service weapon. In fact, one of the Statens essential witness. Dr. Emil Laga, testified

that he performed the autopsy of Brian Benoit. Under cross examination, Dr. Laga testified that the

victim was six feet three inches tail, and weighed two hundred and eighty-three pounds. (Record 570).

Dr. Laga testified that:

In this case the bullet went, from the breastbone close to the mkl line of the body,

about here [indicating], about mid way between the collarbone and the nipple, and then

it went across the mid line inside the chest. It hit the eighth (8th) rib on the right side ol

the body in the back, crossed the eighth rib mid then came to a halt just underneath the

skin overlying the eighth rib; and that's where I removed the bullet.” (Record page 572,

lines 7-15)

“A.

When questioned as to whether the above described bullet path is consistent with a person

lunging or bending forward, Dr: Laga further testified:

“A.

There are two ways to get a. trajectory like this, going down and to the right, in

the body. One would be where the victim of course would be standing up, aid the

shooter was pointing the gun from high and down; then of course the bullet would go

through the body at an angle.” (Record page 573, lines 11-16)

“A.

The second way, of course, would be that the shooter shoots straight

horizontally,, but the victim would bend over or lunge over or fall over* so that die bullet

goes into the body this way. Them the man comes back up and, of course, the bullet is

fixed inside the body, and the angle is also fixed.” (Record page 573, lines 20-25)

All of the witnesses presented by the State, who are alleged to have witnesses the shoeing,

failed to state that Floyd Flugence shot down onto the deceased. In fact, that would have been almost

impossible in light of the fact that Brian Benoit was sis feet three inches tall. The testimony of Dr. Emil

Laga scientifically establishes that just prior to the shooting of Brian Benoit, Mr. Benoit made yet a

third and final aggressive attack on Floyd Flugence, a man working security, dressed in unambiguous

“SECURITY” labeled clothing. Without question, the evidence presented by the State failed to provide

sufficient, evidence for a. reasonable fact finder to conclude that. Floyd Flugence ccsumitted second

degree murder.

The Sate repeatedly argued that this killing was revenge for getting beat up, if in fact that

occurred, then at best this killing was committed in the heat of passion, therein mandating a reduced

verdict of manslaughter.

II.

REASONABLE

THE TRIAL COURT COMMITTED MANIFEST ERROR INSOFAR AS IT DENIED THE

DEFENSE ITS CONSTITUTIONAL RIGHT TO PRESENT EVIDENCE AND TESTIMONY IN

ITS DEFENSE.

LA\Y_AffiLARGUMENX

Tire facts of the above assignment of err or are not in dispute. Record pages 904 through 907,

the Trial Court refused to allow the Defense to present the testimony of a martial arts expert. The State

objected to die presentation of this evidence, and stated on Record page 906, lines 12-18, the following:

Your honor, my response is that is proven by fact, it can be

“Mr. States: (Pr osecutor)

argued by the video, and it is now proven by Dr. Harper's testimony. This is repetitive.

In addition to it being objectionable under 404(A), it is further repetitive and

unnecessary.”

The Court then stated:

“I agree, and I'm going to sustain the objection, and I will note your objection to the

ruling of the court.” (Record page 906, lines 19-21)

This assignment addresses two problems, first, the denial of the Defendant's absolute

constitutional right to present a. defense. And second, the State's representation that Dr. Harper's

testimony is proven. If this were in fact true, then jury instructions on credibility of witnesses and

weight, of testimony are not necessary. Finally, the evidence sought to be admitted was not repetitive.

and was not an attempt, to introduce evidence ofthe character of Brian Benoit.

The Defense did however attempt, to present this martial arts expert to analyze the events she

witnesses on the slow motion video tape. Specifically, the Defendant intended to present testimony

regarding an elbow thrown into the face of Floyd Flugence, therein ripping a. hole through the flesh

surrounding his mouth. Dr, Harper analyzed this slow motion video through his training and experience

as a neurologist, however, the Defense was denied the opportunity to present this martial arts analysis.

which testimony would have provided additional and non duplicitous exculpatory testimony.

The State objected herein trying to prohibit, and succeeded in preventing the Defense from

presenting relevant testimony that would not repeat, but would “dove tail” with testimony presented by

Defense witness. Dr. Don Harper. This matter must be reversed because, it is impossible on appellate

review of an incomplete and cold record, to determine what affect the proposed Defense evidence

would have had on the outcome of this trial.

Louisiana Jaw is well settled, Louisiana Constitution Article 1, Section 16 guarantees every

criminal defendant a right to a fair trial. Further, this article specifically provides the following:

“An accused is entitled to confront, and cross-examine the witnesses against him, to

compel the attendance of witnesses, to present a defense, aid to testify in his own

behalf” (Emphasis added) Reversal of this conviction is appropriate because Floyd

Flugenee was denied his constitutional right to present a defense. The testimony of the

martial arts expert was not hearsay, was not duplicitous, and was improperly prohibited

from trial because the prosecutor did not believe it was sgjpropriate. If the Courts relied

on tine State to make the determination of relevancy and admissibility of defense

evidence and strategies, then the undersigned contends that Article 1, Section 16—is

meaningless.”

See State r. Shoemaker, 500 So.2d 385 (La. 1987); State v. Harper, 646 So.2d 338 (La 1994).

IIL

REASONABLE

THE TRIAL COURT COMMITTED MANIFEST ERROR INSOFAR AS IT REFUSED TO

ALLOW THE JURY, DURING ITS DELIBERATIONS, AND UPON ITS REQUEST, TO

REVIEW THE SLOW MOTION VIDEOTAPE OF THE INCIDENT GIVING RISE TO THE

ABOVE CAPTIONED MATTER.

LAW AND ARGUMENT

The Court records is abundantly clear, die juiy requested die opportunity to review die slow

motion video of die incident which gave rise to the above captioned matter. The jury was denied the

last opportunity to adequately evaluate the evidence in light of die evidence presented at trial Further,

this denial, combined with the Court refusing to allow the Defense to present the te^imony of a martial

aits expert, has die affect of denying the Defendant his constitutional right to a fair and mijKuiial trial

pursumit to Louisiana Constitution Article 1, Section 16, supm.

IV.

REASONABLE

UNCONSTITUTIONALITY OF ARTICLE 413(B) - Mr. Fiugence's Constitutional Rights Under

The Sixth And Fourteenth Amendments Were Violated When The Louisiana District Court.

Unconstitutionally Selected The Foreperson From The Grand Jury Venire Before The Remaining

Members Of The Grand Jury Were Chosen By Lot La. C.Cr.P. Art 413(B)

LAW: AND ARGUMENT

Louisiana State's procedural law shapes the compositions of the grand jury system in this State

and affects ail proceedings thereafter. The procedural mandate requires arbitrary appointment of the

jury foreperson and conveys full voting power to the Grand Jury Foreperson equal to other grand jury

members.

Urns, Mr. Flugence contends that because of an unconstitutional State procedural rule, La.

C.CrJP. Art. 413(B), the district court exceeded its jurisdiction in allowing the inst itution of prosecution

when the judge selected the foreperson from the grand jury venue before the remaining members of the

grand jury were chosen by lot.

Louisiana's system for instituting prosecution by presentment of a grand jury indictment is

derived from English Common Law, apparently first recognized in the Constitution of Clarendom in

E2d 756 (D.C. Cir. 1925); Russell v. [f.S., 82

1166 A.D. under Henry II. See [f.S. v. Olmstead',

S.Q. 1045, 369 U.S. 761 (1962). Subsequently, this same grand jury system was adopted in Louisiana

by virtue of an 1805 Legislative enactment which called for criminal matters to be handled “in

conformity with the common law of England.” See, History of Louisiana Criminal Procedure, 33

Tulane L. Rev. 739,740 (1959).

Then clearly, our grand system was instituted as a vital check against the wrongful exercise of

powers by the State and its prosecutors. It is common law and it is not legislative, but grand juries and

petit, juries were established under the protective shield of Inalienable Rights, and the Fifth

Amendment, to safe-guard the citizens from malicious prosecution by my branch at the government.

Thus, ceding authority to one's peers in the United States to stand in judgment, is done only

because the Constitution guarantees fairness. Therefore, judgment was ceded to juries, and the grand

jury controls not only the initial decision to indict, but also significant, decision such as how many

counts to charge and whether to charge a. greater or lesser offense, including the important, decision to

charge a. capital crime. Thus, when a State-appointed Grand Jury Foreperson is given authority to vote

for an indictment against a citizen and in favor of the prosecution, it is an infringement of one's

fundamental rights, and contravenes due process. See Campbell v. Louisiana,__ ; U.S.

1419, at 1425, No. 96-1584 (decided April 21,1998), where the Court stated:

“...in Louisiana, by contrast, the judge selects foreperson from the grand

jury venire before the remaining members of the grand jury have been

chosen by lot. La. C.Cr.P. Aim.Art. 413(B) (West Supp. 1997); In

addition to his other duties, the foreperson of the Louisiana Grand Jury

has the same full voting powers as other grand jury members. As a result.

18 S.Ct.

when the Louisiana judge selected die foreperson, he also selected one

member of the grand jury outside ofthe drawing system used to compose

the balance of’that. body. These considerations require us to treat the cam

as one alleging discriminatory selection of grand jurors.’"

Although it has been determined by the Court of die land, that the Fifth Amendment's grand

juiy requirements is not binding on the State, but once the State incorporated a grand jury system, it

must conform to constitutional standards of due process. An exanple of standards to consider' rre those

of some forty-six states and the federal procedures of selecting or appointing grandjury forepersons is,

that in those procedures, the grandjury foreperson's duties <re ministerial in nature, and does not confer

voting powers to die grand jury forepersons. From those procedures, a defendant, may logically

presume that the prosecution has, before empaneling of the jury, secure one vote of the nine votes

required to return a “hue bill.”

Furthermore, it is not unlawful in Louisiana for the District Attorney’s secretary to serve on the

grandjury, nor another person officially connected with the prosecution. Is there a. doubt then, that the

entire grandjury panel could be composed of court personnel? If it did occur, it would nor be unlawful

in Louisiana. State v. Corley, 617 So.2d 1292 (La. App. 3”1 Cir. 1993); LSA-Conrt. Art. 5,

33 LSA-

C.CrP. Art. 401,403.1 and 787.

Since much of the Louisiana Code is patterned after the federal rules in an attempt to facilitate a

trend toward uniformity of national law, it seems only appropriate that Louisiana Courts adhere to

Constitutional standards of due process when impaneling grand juries.

Moreover, present procedures impinge the right of the accused to reasonable notice of the

change presented against, him by a panel of one's peers. “Notice” is one of the m ore basic ingredients of

due process, guaranteed by the Sixth Amendment, and applicable to States proceedings by virtue of its

incorporation into the Fourteenth Amendment. In Re Oliver, 333 U.S. 257 (1948); Cole ?. Arkansas,

333 U.S. 196 (1948); Dejatige v, Oregon, 299 U.S. 353 (1937). A State-appointed jury foreperson does

not equate to peer.

Briefly, when a Louisiana Judge selects one voting member of the grand jury outside of the

drawing system used to composed the balance of that body, it is an incompatible appointment, thus the

jiujge affect s the “jury ” not just a juror.

The above considerations require this Honorable Court to treat this case as one alleging election

of a. grand jury by judge, not by lot. Louisiana's departure from constitutional standards is an ambiguity

and strikes at the fundamental values of our judicial system because the grand jury chosen by let is a

central component of the criminal justice system.

The aftermath of selecting a voting member of the grand jury from outside the drawing system,

cast doubt upon the integrity of the judicial process and places the basic fairness of a criminal

proceeding in doubt. This cloud of doubt deprives the defendant of the certainty that a verdict to initiate

prosecution in his case was given in accordance with the standards of due process as* described by the

Sixth and Fourteenth Amendment to the United States Constitution.

Factually, jurisdiction to commence trial and punish citizens accused of a capital offense or

necessitating life imprisonment, may be acquired in no other matter than by die method decreed by

statutory law shown in die Louisiana Code of Criminal Procedure, Article 382(A). Then Article 413(B)

confers authority to, and requires Louisiana judges to select the grand juty foreperson from the grand

jury venue before the available members of the grand jury have been chosen by lot.

Consequently, this procedure conflicts with the constitutional system for presentment of an

indictment rendered by a full foreperson have the same voting powers as other grand jury members

initiating the indictment legalizing prosecution. As such, this procedural decree is unconstitutional and

mui£ be tilled null and void.

Nullify constitutionally, and indictment returned by a grand jury for any offense against the

State, if controlled by the authority ofArticle 413(B), contravenes the requirement for a valid sentence

must rest upon a valid and sufficient indictment.

Therein, this Honorable Court, may reasonable construe that, constitutional provisions are

supreme, transcending any legislative enactment, judicial pronouncements or executive acts. Then

logically, when prescribing form of charge and procedure in criminal cases, the legislature can never.

either directly or indirectly, endanger any of the safeguards and protections contained within the Bill of

Rights. Neither is the legislature empowered to suppress those inalienable rights that have encircled

individuals since the inception of that historical document, or, by circumvention, in any manner.

undermine constitutional guarantees.

Therefore, one may readily ascertain that La. C.Cr.P. Art.. 413(B) dictates a direct endangerment

to fundamental safeguards, and Article 413(B) definitely negates the institution of indictments by a

grand jury chose by lot. Thus, Article 413(B) undermines both Sate and Federal Constitutional

guarantees.

Accordingly, trial court's jurisdiction and the State's judgment must be considered void because

the right to initiation of changes by a grand jury chosen by its lot is “implicit in the concept of ordered

liberty.” Palko v. State of Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149,152 (1937), and is stipulated

in the due process clause of the Fourteenth Amendment independently of the Fifth and Sixth

Amendments of the United States Constitution.

Therein, it is Mr. Flugence's contention that the use of a grand jury for the purpose of an

indictment, creates a “legitimate entitlement to liberty interest” but the manner in which the foreperson

is chosen in Louisiana, is constitutional deficient, proscribing his liberty interests.

In furtherance of this claim and pursuant to the Louisiana Constitution of 1974, Article 1, § 21,

this court has constitutional authority to issue writ of habeas corpus to remedy unconstitutional

infringementa

Additionally, La. C.Cr.P. Art. 382(A) provides the institution of prosecution for criminal

offenses punishable by death or life imprisonment, under the authority of the Louisiana, Article 1, § 15,

“shall” be by indictment of agrandjuiy.

In Chapman y. California, 386 U.S. 18, 23, 87 S.Ct. 824, 828 (1967), the Supreme Court

“recognized that sane constitutional errors require reversal without regard to the evidence in the

particular case.” Rase v. Clark, 478 U.S. at 577, 106 S.Ct. at 1305 (Emphasis supplied). A defendant

“may assuredly insist upon observance of... (structural .guarantees) even when the evidence against

him is so overwhelming as to establish guilt beyond a reasonable doubt.” Car ella, supra, 491 U.S. at

268, 109 S.Ct. at 2422. And reversal is required because structural error is a “fundamental ilaw(s) in

the trial process; and, undermines the structural integrity of the criminal tribunal itself.” See Vasques v.

Hillary, 474 U.S. 263-64,106 S.Ct. 623, 88 L.Ed2d 598.

Mr. Flugence respectfully reiterates that the grand jury controls not only the initial decision to

indict, but the significant decision to charge a capital offense. Therefore, the integrity of those decision

depends on the integrity of the process used to select the grand jurors.

Consequently, La. C.CrJP. Art. 413(B) mandates that a Judge shall select the foreperson, who

will be a. voting member of the grand jury. Hie foreperson is appointed before the available members of

the grand jury are chosen by lot, and thus employed, this mandate demeans the integrity of the process

used to select the grand jury foreperson. Accordingly, the standard established in the La. C.Cr.P. Art.

413 (B), is unconstitutional, therefore, Mr. Fhigence is constitutionally entitled to the quashing of his

indictment.

The Petitioner herein filed his original Application for Port Conviction Relief in December

2001. Along with the first claim mentioned above, the Petitioner submitted several other claims. (See

Original Post Conviction). These claim brought forth may have been without merit because Mr.

Flugence did not have any legal knowledge. The quertion(s) of the validity concerning short form

indictments have been raised and answered many times over the years. Thus, the District Court had

ordered a.new post conviction be prepared by an attorney. The matter was never resolved Die feet, that

the District. Court, and the Court-appointed Attorney, Mr. Valex Amos, ignored the “ORDER”, has

brought on a new claim which can only be brought to this Honorable Court, and only at this time.

Although normally, the Court would not hear any “new” claims, the Petitioner request. In the Interest

ofJustice,, the Corn! entertain the following claim.

REASONABLE

INEFFECTIVE ASSISTANCE OF [POST CONVICTION] COUNSEL

LAW AND ARGUMENT

In the instant case, the fifteen (15) year delay in adjudicating Petitioner's post-conviction

application violated Petitioner's due process rights causing Petitioner to suffer oppressive incarceration

during the indeterminacy^ of his post-conviction and to suffer constitutionally cognizable anxiety and

concern awaiting the outcome, impairing Petitioner's grounds to newly discovered evidence mid

defenses in the event of reversal and retrial. In further support of prejudice, fee Dial Court shipped

Petitioner from filing a meaningful 28 U.S.C.A § 2254, by impairing Petitioner's grounds, defenses,

memory, and fee opportunity to present witnesses. Dus has come as a dir ect result of ineffective

assistance of counsel which began at the District Court level assigning “collateral attack” counsel and

has trickled down all the way to the Petitioner's October 24, 2017 evidentiary hearing. The Petitioner

was once again appointed Mr. Valex Amos as counsel in this matter. Mr. Flugence once again began

attempts to contact Mr. Amos, but that was again, to no avail. Die situation began to mirror that of Mr.

Valex Amos' 2008 appointment as counsel. After waiting 17 year to have an opportunity to finally be

heard, Mr. Flugence was delayed several more time as he later discovered his lawyer was pushing back

(requesting continuances) his court dates. NOTE: At this time, Mr. Flugence was unaware as to Mr.

Valex Amos was the assigned lawyer, or why he was not being brought to court. Die Petitioner ended

up filing a Motion to Enforce Order, asking the Third Circuit Court of Appeal to once again compel the

District Court to have Mr. Flugence appear for said hearing.

The Court of Appeal ordered the District Court to comply by March 13, 2017, but. it did net

comply until October 24, 2017. After a. short discussion with Mr. Vales Amos only several flays prior to

the PCR hearing, the Petitioner felt as though Mr. Amos would more than suffice and was certain he

would get another opportunity to file a. new post conviction, with his assistance, so that, the real issues

in his case could be brought to light. This was the information expressed directly to Mr. Flugence by

Mr. Vales Amos. It was alleged by Mr. Amos that there could be must better claims brought and that he

would review, research and file ameritorious Application for Post Conviction Relief.

On October 24, 2017, Petitioner appeared in front of the Honorable Judge Earies, 15fe Judicial

District Court, Parish of Lafayette. Mr. Flugence questioned Mr. Amos as to whether the Court was

going to allow him to file anew? post conviction (as previously ordered), and Mr. Amos replied, “That's

why we’re here.” The Petitioner, being a layman in the legal matter and no previous legal field

experience, did not understand exactly what that meant, aid the hearing proceeded Mr. Amos called

Mr. Gerald Block to the stand Mr. Block represented the Petitioner during trial. Although the

Petitioner’s first claim had merit, the Court, denied the claims and when asked for reason, the Judge

replied, “Well it just seems like Mr. Block did his job as thoroughly as he felt - - ” The Court did not

explain that. Mr. Block did his job within the requirement of the United States Constitution's 6"1

Amendment or within the U.S. Supreme Court’s holding of Stridiland. Just within the circle of what

Mr. Block felt was his job.

Mr. Vaiex Amos obviously had not went though the Petitioner’s paperwork thoroughly. If he

had, he would have known that the Petitioner should have teen afforded an opportunity to file anew

PCR. Any practicing attorney is aware the indictment issues that have been through the Louisiana

Courts time and time again; and each time, the issue has been addressed and the short form indictment

has been deemed constitutional. The Court knew this when the original post was filed This was the

purpose when the Court ordered the Petitioner- be allowed to filed a new post conviction application.

Mr. Amos has assisted in prejudicing the Petitioner. The two prong Mandat’d of Strickland v.

Washington is met through Mr. Amos' actions. (1) The deficiency was that Mr. Amos failed to file a

new Abdication for Post Conviction Relief as ordered by the Court; (2) The prejudice resulted from

such deficiency because Mr. Flugenee did not receive a proper constitutional review of his case.

Although the claim of ineffective assistance of counsel is not normally heard in this matter,

Petitioner request a de novo review as this was a matter of ineffective rasistance of counsel involving

counsel on the initial collateral proceeding. The claim of ineffective assistance of initial-review

collateral counsel was brought before the available courts for filing, i.e., the Third Circuit Court, of

Appeal and the Louisiana Supreme Court.. Both passed on review of this claim.

WHEREFORE, after a complete and thoroughly review of this claim, this Honorable Court

should remand to the State District Court for appointment of independent counsel, who shall, as per the

District Court's 2001 order, prepare said file a new Application for Post Conviction Relief.

VI.

REASONABLE

DUE PROCESS VIOLATION

LAW. AND ARGUMENT

Unjustifiable Delay

Petitioner's post-conviction application remained pending in the 15m Judicial District for

approximately fifteen (15) years. The court had failed to appoint/provide effective counsel allowing

Petitioner to proceed, and prepare a new application for post-conviction relief after meeting with

counsel as so ordered by the trial ju<|ge on July 5, 2002.8 The State failed to object of the trial court's

July 5, 2002 ruling, nor did the State seek review of the issue in a timely fashion, it is now prechided

See Page 2 of the State's Motion to Continue and Refix Hearing.

from objecting to the trial court’s ruling. State v. Charles, 82? So.2d 553 (La App. 314 Cir. 10/02/02),

writ denied, 840 So.2d 569 (La. 3/28/03).

Principles of fundamental fairness dictated by the due process clause of the Fourteenth

Amendment.. In determining whether delay in adjudicating Petitioner’s criminal appeal violated

Petitioner's due process rights, length of delay is the threshold that Petitioner must meet before court

need consider other factors, and ordinary Petitioner must make some showing of prejudice factor to

establish due jnocess violations.

In the instant case, the fifteen (15) year delay in adjudicating Petitioner's post-conviction

application violated Petitioner's due process rights causing Petitioner to suffer oppressive incarceration

during the indeterminacy of his post-conviction and to suffer constitutionally cognizable anxiety and

concern awaiting the outcome, impairing Petitioner's grounds to newly discovered evidence and

defenses in the event of reversal and retrial. In further support of prejudice, the Trial Court stripped

Petitioner' from filing a meaningful 28 U.S.C.A. § 2254, by impairing Petitioner's grounds, defenses,

memory, mid die opportunity to present witnesses. Petitioner argues that in Louisiana, where the

records does not contain sufficient evidence to fully explore a claim of ineffective assistance of

counsel, the claim should be relegated to post-conviction proceedings. U.S.C.A. Const. Amend. 6; La.

C.CrJP. Art. 924 - 930.8. Thus, where Petitioner's constitutional right to effective assistance of counsel

claim his not been exhausted. Petitioner's conviction does not rest on ski untainted affirmative

conviction during the fifteen (15) year delay. Where the State cannot, offer that. Petitioner due process

rights have been violated, it must then address the matter of a remedy other than just, an enforcement of

its prior order.

Principles cdf Fundamental Fairness prohibits inordinate delays such as the delay the Petitioner

suffered These sort of delays prejudiced the Petitioner in many different ways. The Petitioner should

have had the opportunity to address his issues over 17 years ago. Even now, if this Honorable Court

agrees that a new post conviction should be filed as order by the Sate District Court, the Petitioner will

face a monumental struggle in obtaining witnesses, gaining access to files, any withheld evidence, and

accurate eyewitness re-account of the events which took place.

¥11.

REASONABLE

THE INDICTMENT FAILS TO ALLEGE AN OFFENSE - Petitioner Contends That His

Indictment Fails To Charge An Offense; In That It Omits The Elements Of The Crime.

LAW AND ARGUMENT

An indictment's failure to charge an offense constitutes a jurisdiction defect. See United States

v. Hughey, 147 F.3d 423, 436 (5* Cir. 1998), cert denied,___U.S.___ , 119 S.Ct. 569,___L.EcL2d

___(1998). Because an .indictment, is jurisdictional,.defkidfflifs. at any. time may. raise an .objection to

the indictment based on failure to charge an offense.

To be sufficient, an indictment must allege each element of the offense, if ft does not, it fails to

charge that offense. See United SW.es r. Gaytan, 74 F.3d 545, 552 (5th Cir. 1996); and Russeii v.

United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). This requirement steins

directly from one of the central purposes of an indictment: To ensure that the grand jury find; probable

cause that the defendant has committed each element as required by the Fifth Amendment See: e.g.,

Wilson, 884 F.2d at 179, United Statesv. Outler, 659 F.2d 1306, 1310 (5ft Cir. Unit B. Oct 1981).

Article 1 § 13 of the Louisiana Constitution provides that an accused in a criminal prosecution

has a right to be informed of the nature and cause of the accusation against him. Concomitantly, the

Louisiana Code of Criminal Procedure requires that the indictment be a plain, concise, and definite

written statement of the essential elements of the crime intended to be diarged in sufficient particularity

to enable the defendant to prepare for trial, to allow the court to determine the propriety of the evidence

that is submitted at the trial, to all the court to impose the con ed punishment on a verdict of guilty, and

finally to afford the defendant protection from prosecutions for the same offense. StMe v. Comeaux,

408 So. 2d 1099 (La. 1981).

Petitioner was indicted for second degree murder. At the time of the allegedly committed'

offense, the State obtain a conviction under the offense alleged - LSA-R.S. 14:30.1. The State was

require to prove:

R.S. 14:30.1; SECOND DEGREE MURDER

A. Second degree murder is the killing of a hum an being;

(1) When the offender has specific intent, to kill or to inflict, great, bodily harm; or

(2)(a) When the offender is engaged in the perpetration or attempted perpetration

of aggravated rape, forcible rape, aggravated arson, aggravated burglary, aggravated

kidnapping, second degree kidnapping* aggravated escape, drive-by shooting* armed

robbery, first degree robbery, or simply robbery, even though he has no intent to kill or

to inflict great bodily harm.

(b) When the offender is engaged in the perpetration of cruelty to juveniles, even

though he has no intent to kill or to inflict great bodily harm.

(3) When the offender’ unlawfully distributes or dispenses a controlled dangerous

substance listed in Schedules I or II of the Uniform Controlled Dangerous Substances

Law (R.S. 40:961 et seq.) which is the direct eanse of the death of the recipient who

ingested or consumed the controlled dangerous substance.

(4) When the offender unlawfully distributes or dispenses a controlled dangerous

substance listed on Schedules I or II of the Uniform Controlled Danger ous Substances

Law to another’ who subsequently distributes or dispenses such controlled dangerous

substance which is the direct cause of the death of the person who ingested or consumed

the controlled dangerous substance.

B. Whoever commits the crime of second degree murder* shall be punished by

life imprisonment at hard labor without benefit of parole, probation, or suspension of

sentence.

Petitioner's indictment fails to cite any of the elements described under the respective charged

offense, hence depriving the trial coart of jurisdiction to conduct further proceedings.

The indictment failed to raise any elements of the crime whatsoever, stating only the name of

the alleged perpetrator and the alleged victim.

“Indictment must contain all of the essential elements of the crime intended to be

charged hrsulHoieiit-particulniTty to enable the defendant to prepare for trial, to allow

the court to determine file propriety of the evidence that is submitted at the trial, to allow

the court to impose the correct punishment on a verdict of guilty, and finally to afford

the defendant protection Iran prosecutions for the same offense/5 Stats r. Lecwnpte,

734 So.2d 83 (La. App. la Cir. 1999).

In the instant, case. Petitioner was denied his constitutionally protected rights, as the indictment

against him failed to allege any specific fads particular to the elements of the crime alleged. With the

elements excluded from the indictment, Petitioner could not properly prepare for trial, the court could

not. properly determine the propriety of the evidence that, is submitted at the trial, not. could the court

properly impose the correct punishment on averdid of guilty, and there was net enough specificity in

the indictment to afford the defendant protection from prosecutions for the same offense.

The United States Court of Appeal for the Fifth Circuit in United States v. Jad Cabrera-Teran,

168 F.3d 141 (591 Cir. Feb. 15, 1999) vacated and remanded a conviction and sentence because the

indictment failed to cite an essential element ofthe offense.

Tire government in Cabrera argued that the error was technical and thrt Are records of a prior

deportation hearing sought and review by Cabrera included the missing elements and that the statutory

citation in the indictment informed him of the offense charged. However, the court concluded that none

of those observations saved the indictment from facial deficiency.

The Cabrera Court noted that it was governed by practical considerations and would not

reverse a conviction based on purely technical error in the indictment. However, the court concluded

that the failure to allege an essential element of the offense is not technical error. Cabrera, p. 144.

The Government in Cabrera, asserted that he sought and reviewed records of prior deportation

proceedings on which the government relied thus mitigating or canceling the error in the indictment by

showing he suffered no prejudice. The court rejected this aigument citing Outier, supra, where an

indictment was challenged for several counts of unlawful dispensing of controlled substances for

failing to allege the element that the prescription lacked legitimate medical reasons. Hie Court said:

“Even that the prosecution introduced evidence substantiating this element foi~eaeh-----count and the jury instructions accurately included die element, see 659 F.2d 1308, we

reversed the convictions. See Id. at 1314. We found that, the elements absence from the

indictment fatal, irrespective of die governments post indictment proffer of evidence and

the defendant's notice ofthe offense charged”

The Cabrera Court found the notice lacking mid stated:

The indictment is jurisdictional. A facially complete complaint cannot make up for the

shortcomings of die indictment.

The Court found that the central jurisdictional purpose of an indictment negates the wisdom and

piety of relying upon the complaint to provide elements missing from the indictment. The indictment it

said, ensures that the grand jury has had the opportunity to review evidence supporting, and find

sufficient cause to charge a defendant with, each element of the offense before the Court may entertain

prosecution. See Russell, 369 U.S. at 770, 82 S,Ct. 1038. Only the appearance in the indictment of all

the offenses elements meet this requirement.

Finally, in Cabrera, the government attempted to rely on the indictments citation to the statute.

This argument presented the most challenging of the governments arguments in Cabrera, because as

the Court rioted, “At first glance, Fifth Circuit case law is not entirely pellucid on whether a statutory

citation suffices to meet the requirement that all elements appear in the indictment.”

However, after a. thorough review of the cases, the Cabrera Court, concluded that statutory

citations may not stand in place of the inclusion of an element of the crime. Cabrera cited Russell, 369

U.S. at 770, 82 S.Ct. 1038, where the Court rejected a contention that omission from the indictment

was a technical deficiency that could be cured by a bill of particulars, because then defendant's could be

convicted on the basis of facts not found by, and perhaps not even {resented to, the grand jury which

indicted him.”

Hie Cabrera Court at page 14? had flits to say:

“Fwhw

haw addressed the issue a^ee fliat a

3MI7&

the crime in the indictment”

“We join these circuits and clarify our case law by concluding that a

statutory citation standing alone, cannot substitute for including an

element of the crime in an indictment1”1

Like Cabrera, Petitioner's indictment utterly fails to allege essential elements. Because of this

omission, the indictment fails to charge an offense, leaving the district court without jurisdiction.

Vffi. REASONABLE

INEFFECTIVE ASSISTANCE OF COUNSEL - Trial Counsel Was Ineffective What He Fatted

To File Proper Pre-Trial Motions To Quash A Defective Indictment.

LAW AND ARGUMENT

The Indictment that was returned by the Layette Parish Grand Jury was totally defective in that

it failed to properly change the crime for which Petitioner was tried. Trial counsel failed to object, or

file motion to qus&h the indictment. This was a direct violation of due process clause in failing to

advise the Petitioner of the nature and cause of the allegations which he was to prepare a defense. Trial

counsel failed to put the State's case to an adversarial test

Petitioner indictment dated:

“did unlawfully committed second degree murder of Brian Benoit, in

violation of R.S. 14:30.1.”

(See Attached Exhibit)

The indictment was insufficient as it did not alleged each material element of the offense; and

thereby it failed to charge that offense which amounted to a jurisdictional defect as provided under U.S.

v. Cabrera- Teran, 168 F.3d 141 (5* Cir. 1999) and Russell, 369 U.S. at 770, 82 S.Ct.

. Hie United

States Court of Appeal for the Fifth Circuit in United States v. Joe! Cats' era- Teran, 168 F.3d 141 (5a

Cir. 1999) found an indictment defective for failing to charge an offense because it omits elements of

the crime, his performance was proven deficient meeting both prongs of the Strickland test. Strickland

v. Washington, 466 U.S. 668, 80 L.Ed.2d 674,104 S.Ct.“20527

Hie Petitioner entrusted his life to a man who sat idly and watched his client being convicted

without subjecting the prosecution's case to a meaningful, adversarial teeing. The Court have held ‘‘an

attorney should bot be allowed to automatically defend his omission simply by raising the drield of trial

strategy.” Crispv. Duckworth, 743 F.2d 580 (1984).

In the Fifth Circuit, the standard for ineffective assistance of counsel requires a counsel to be

reasonably likely to render and rendering ineffective assistance. Herring v, Estelle, 491 F.2d 125 (5th

Cir. 1974X this means that an attorney must not only be qualified by training and experience to

adequately represent an accused, but he must actually perform services that are reasonably adequate.

Counsel is required to, for a better' phrase, turn over the “large stones” aid “pursue the obvious

issue,... ” U.S. ex rel. Williams, 863 F.Supp 697 (N.D. Ill 1994). If an appellant can point to specific

examples of ineffective assistance, we have not hesitated to grant new trial or hearing. U.S. v. Gray,

565 F.2d 881 (5°* Cir.) Effectiveness of counsel must be tested not only by review of available trial

court record, but by hearing, to determine truthfulness of habeas corpus, to petitioner's allegations

concerning pretrial presentation of counsel. Httilingshed v. Wainwright, 423 F.2d 1059 (5tt Cir. 1970);

and when a hearing is necessary to pr otect defendant's due process rights, then failure to hold a hearing,

would be abuse of discretion. U.S. v. Henderson, 19 F.3d 917 (5ft Cir. 1994).

Petitioner submits that he was denied a fundamental and impartial trial and in addition an

effective assistance of counsel as guaranteed by both the Sixth and Fourteenth Amendments of tire

United States Constitution, and pursuant to Article 1, Sections 2 and 13 of the LoulMana

Constitution of 1974.

CONCLUSION

The petition for a. writ of certiorari should be granted. The irnAter-abfflnld he remanded to the State

district court for further proceedings.

Respectfully submitted:

Floyd Flugence

Date: August IS, 2021

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.