Petition for Writ of Certiorari — Darryl Puderer, Petitioner v. Louisiana

Supreme Court briefMar 7, 2024

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IN THE

UNITED STATES SUPREME COURT

✓ -

?^ V

NO.

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- 71T1

STATE OF LOUISIANA, EX REL

DARRYL PUDERER,

Petitioner

Supreme Court, U.S.

I I LCD

MAR 0 7 2024

OFFICE OF THE CLERK

VERSUS

STATE OF LOUISIANA,

Respondent

APPLICATION FOR WRIT OF CERTIORARI OR REVIEW

On Application for a Writ of Certiorari

to review the Ruling of the Louisiana Supreme Court No.’s 2023-KP-0624 and 2023-KO00494 Vacating the Grant of Petitioner’s Out of Time Appeal; and to Review the Rulings

of the Honorable C J. Terri F. Love and JJ. Joy Cossich Lobrano and Karen K. Herman,

Louisiana Court of Appeals, Fourth Circuit,

Case No. 2022-KA-0623

Affirming Petitioner’s Conviction and Sentence

Criminal District Court for the Parish of Orleans

Case No. 496-717 “E”

PETITIONER’S PRO SE APPLICATION FOR WRIT OF CERTIORARI

Darryl Puderer #601803

General Delivery

Raymond Laborde Correctional Center

1630 Prison Road

Cottonport, LA. 71327

QUESTIONS PRESENTED PURSUANT TO RULE 14.1(a)

1. Did the Louisiana Supreme Court err where it vacated Petitioner’s Appeal where the parties and

District Court had consented to the appeal and previously granted Petitioner an Out-of-Time

Appeal?

2. Did the Louisiana Supreme Court err where Petitioner was denied his fundamental right to

equal protection and to the Due Process right to an Appeal of the jurisdictional errors that

occurred in his case in violation of his Fifth and Fourteenth Amendments to the United States

Constitution where the Court denied further review on the merits and vacated Petitioner’s

Appeal?

3. Should Garza v. Idaho be held retroactive on collateral review?; if not, should Petitioner have

previously been granted relief of an Out-of-Time Appeal where he raised Roe v. Flores-Ortega

in a prior application for Post Conviction Relief and where the Louisiana Supreme Court and

Fourth Circuit Court of Appeals ruled that Garza was not retroactive on collateral review in the

instant case?

4. Did the Louisiana Supreme Court err by not reviewing the merits of Petitioner’s jurisdictional

claims and by vacating his Out-of-Time Appeal?

5. Did the Louisiana State Trial Court lack jurisdiction to charge and try petitioner where the state

did not show that any act or element of the alleged 2008 crime of forcible rape occurred in the

Parish of Orleans?

6. Did the Louisiana State Trial Court lack jurisdiction to charge and try petitioner for the alleged

2002 charge of Second-Degree Kidnapping where the state failed to initiate prosecution timely

within the statutorily allotted 6-year statute of limitations?

.7. Did the Louisiana Courts err where Petitioner was denied his fundamental Due Process rights to

“Notice and Fair Waring” when he was not properly advised of the state’s sex offender

registration and notification requirements as statutorily required in violation of his Fifth and

Fourteenth Amendments?

8. Was Petitioner’s guilty pl6a knowingly and intelligently entered where he unknowingly entered

a guilty plea to a time barred charge?

ii.

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

RELATED CASES

State Ex Rel. Puderer v. State, 202 So. 3d 978 (La. 10/17/16)

Puderer v. Vannoy, 2018 WL 1319023, (E.D. La. 1/26/18)

Puderer v. Vannoy, 2018 WL 1287621 (E.D. La. 3/13/18)

Puderer v. Vannoy, 2018 WL 11866564 (5th Cir. [La.] 2/12/19)

Puderer v. Vannoy, 140 S.Ct. 238 U.S. (10/719)

State v. Puderer, 359 So. 3d 551 (La. App. 4th Cir. (3/10/23)

State v. Puderer, 372 So. 3d 800 (La. 11/8/23)

State v. Puderer, 372 So. 3d 801 (La. 11/8/23)

iii.

TABLE OF CONTENTS

Cover Sheet

Questions Presented for Review to Rule 14.1(a)

List of Parties/Related Cases

iii

Table of Contents

Appendix

Table of Authorities

vi-vii

Opinions Below

Statement of Jurisdiction

Constitutional and Statutory Provision Involved

Concise Statement of the Case

4-6

Reasons for Granting the Writ

7-8

Argument of Law in Support of Questions One thru Four

9-11

Argument of Law in Support of Question Five

12-16

Argument of Law in Support of Question Six

17-18

Argument of Law in Support of Question Seven

19-28

Argument of Law in Support of Question Eight

Conclusion

Certificate of Service

INDEX TO APPENDICIES

(SEE ATTACHED INDEX TO APPENDICIES)

iv.

APPENDIX

LOWER COURT RULINGS

Appendix-A: (Ruling of the Louisiana Supreme Court, November 8, 2023, Case No. 2023-KP-00624

[Petitioner’s “Counseled” Application for Writ of Certiorari]).

Appendix-B: (Ruling of the Louisiana Supreme Court, November 8, 2023, Case No. 2023-KO-00494

[Petitioner’s “Pro-Se” Application for Writ of Certiorari].

Appendix-C: (Ruling of the Fourth Circuit Court of Appeal, March 10, 2023, Case No. 2022-KA0623).

Appendix-D: (Dissent of Judge Lobrano, Fourth Circuit Court of Appeal, March 10, 2023, Case No.

2022-KA-0623).

Appendix-E: (Ruling of the State District Court, Parish of Orleans, March 16, 2022.)

LOWER COURT PLEADINGS

Appendix-F: Petitioner’s “Counseled” Application for Writ of Certiorari filed with the Louisiana

Supreme Court on April 28, 2023; Case No. 2023-KP-00624

Appendix-G: Petitioner’s “Pro-Se” Application for Writ of Certiorari filed with the Louisiana Supreme

Court on May 12, 2023; Case No. 2023-KO-00494.

Appendix-H: Petitioner’s “Counseled” Reply Brief filed with the Louisiana Fourth Circuit Court of

Appeals on November 16, 2022; Case No. 2022-KA-0623

Appendix-I: Petitioner’s “Pro-Se” Appellate Brief filed with the Fourth Circuit Court of Appeals on

October 20, 2022; Case No. 2022-KA-0623.

Appendix-J: Petitioner’s “Counseled” Appellate Brief filed with the Fourth Circuit Court of Appeals,

October 17, 2022, Case No. 2022-KA-0623.

Appendix-K: Petitioner’s “Counseled” Motion for Appeal filed with the State District Court, Parish of

Orleans, on April 12, 2022; Case No. 496-717 (E).

Appendix-L: Petitioner’s “Counseled” Memorandum of Law In Support of Application for Second or

Successive Post Conviction Relief, filed with the State District Court, Parish of Orleans, on November

4, 2021.

Appendix-M: Petitioner’s “Pro-Se” Application for Second or Successive Post Conviction Relief filed

with the State District Court, Parish of Orleans, on March 3, 2020.

TABLE OF AUTHORITIES

North Carolina v. Alford. 400 U.S. 25 ('11/23/70')

Garza v. Idaho. 139 S, Ct. 738 (2019)

9-10

Roe v. Flores-Ortega, 528 U.S. 470 (2000).

U.S. v. Cotton. 535 U.S. 625, 631 (2002).

U.S. v. Prentiss. 256 F.3rd 971, 982 (10th Cir. 2001) (en banc)

U.S. v. White. 611 F.2d 531, 534-36 (5th Cir. 1980)

Decuir v. Decuir. 105 La [481,] 485, 29 South [932,] 934 [(1901)]

.12,13

State of Louisiana v. Nicolosi, 128 La. 836, 846, 55 So. 475, 478 (1911) (on rehearing)

State of Louisiana v. Hester. 746 So. 3d 95 (La. App. 5th Cir. 9/28/99)

U.S. v. Anderson. 328 U.S. 699, 703, 90 L. Ed. 1529, 66 S, Ct. 1213 (1946)

U.S. v. Cabrales. 524 U.S. 1 (1998)

U.S. v. Rodriguez-Moreno. 526 U.S. 275, 279, 143 L. Ed. 2D 388, 119 S. Ct. 1239 (1999)__ 15, 16

Travis v. U.S.. 364 U.S. 631, 635-37, 5 L. Ed. 2D 340, 81 S. Ct. 358 (1961)

15-16

U.S. v. Cores. 356 U.S. 405, 408-09, 2 L. Ed. 2D 873, 78 S. Ct. 875 (1958)

U.S. v. Johnson. 323 U.S. 273, 275, 89 L. Ed. 236, 239, 65 S. Ct. 249 (12/18/44)

U.S. v. Hansel. 70 F. 3d 6 (C.A. 2, 1995).

Strickland v. Washington. 466 U.S. 668 (1984)

Hill v. Lockhart. 474 U.S. 52, 58-59 (1985)

U.S. v. Freeman. WL 1127170 La. (2016)

U.S. v. Bass. 310 F. 3rd 321, 330 (5th Cir. 2002)

U.S. v. Gunera. 479 F. 3d 373, 375 (5th Cir. 2007)

U.S. v. Wilson. 322 F. Ed. 353, 354-55 (5th Cir. 2003)

State of Louisiana v. Dick. 951 So. 2d. 124, 127 (2007)

19-20

State of Louisiana v. Wright. 384 So. 2d. 399, 401 (La. 1980)

19-20

vi.

TABLE OF AUTHORITIES (cont.)

State of Louisiana v. Narcisse, 426 So. 2d. 11, 130, 131 (La. 1983)

19-20

State of Louisiana v. Sugasti. 820 So. 2d. 518, 520 (La. 6/21/02)

19, 20

Narcisse v. Louisiana. 464 U.S. 865 (1983)

19, 20

State of Louisiana v. Bazile, 206 So. 3d. 560, 563 (La. App. 2D Cir. 9/26/12)

.20, 21

Padilla v. Kentucky. 559 U.S. 356 (2010)________________________

State of Louisiana v. Naran. 308 So. 3d. 419 (La. App. 5th Cir. 12/23/20)

.25, 26

State of Louisiana v. Calhoun. 694 So. 2d. 909 (La. 5/20/97)

vii.

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

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

OPINIONS BELOW

[ ] For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix

the petition and is

[ ] reported at

; or,

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

[ ] is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

[ ] reported at

; or,

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

[ ] is unpublished.

[tf^For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix P__to the petition and is

[ reported at $12. So,3A &€>/}

hJ&U

20^3- OTj

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

[ ] is unpublished.,

The opinion of the

C()U(\ 0/~

& fCOff'

appears at Appendix Q~ D to the petition and is

[\/{ reported at 3Sg/ So.US6l, U Af>? ,^C,e

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

[ ] is unpublished.

court

STATEMENT OF JURISDICTION

This Honorable Court’s jurisdiction is invoked under 28 U.S.C. § 1257(a) and Rule 12.4. The

Louisiana Supreme Court’s judgment is final and the judgment was entered on November 8, 2023,

vacating the lower court’s grant of Petitioner’s out-of-time appeal. A copy of that decision appears at

Appendix-A (Counseled Petition [2023-KP-00624]) and B (Petitioner’s Pro-Se Petition [2023-KO00494]).

The Louisiana Court of Appeals for the Fourth Circuit affirmed Petitioner’s conviction(s) and

sentence(s) on March 10, 2023. A copy of that decision appears at Appendix-C with Judge Lobrano’s

dissent appearing at Appendix-D.

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

March 7, 2024 on February 12, 2024, in application No. 23-A-743.

On March 6, 2024 Petitioner mailed his completed writ of certiorari to this Honorable Court on

March 6, 2024, which was postmarked March 7, 2024, and received by this Honorable Court on March

13, 2024.

On March 20, 2024, Petitioner received this Honorable Court’s “Deficiency Letter” dated

March 14, 2024, informing Petitioner of the deficiencies, giving him sixty (60) days of the date of the

letter to submit the Petition in its corrected form to the Office of the Clerk of Court, for the United

States Supreme Court.

CONSTITUTIONAL PROVISIONS

United States Constitution Fifth and Fourteenth Amendments

10, 28

United States Constitution Sixth Amendment

24, 27

STATUTORY PROVISIONS

La. R.S. 14:42.1.

12, 13, 15, 16

La. R.S. 14:44.1

17, 18

La. C. Cr. P. Article 572

La. R.S. 14:24 (A) (1)

La. C. Cr. P. Article 559

La. R.S. 15:541

La. R.S. 15:542.

19, 21, 22, 23

La. R.S. 15:543(A).

19, 26, 28

La. R.S. 15:543.1

19, 20, 23, 26, 28

La. R.S. 15:542.1.

La. R.S. 15:543.

OTHER REFERENCES

41 A.L.R. 6TH 141

STATEMENT OF THE CASE

1. Procedural Posture

Petitioner’s procedural history is lengthy.

On May 11, 2010, Petitioner was charged by a Bill of Information in the Parish of Orleans

with two counts of Second-Degree Kidnapping (La. R.S. 44.1) and two counts of Forcible Rape (La.

R.S. 42.1). On August 7, 2012, Petitioner pleaded guilty as charged to all counts. The state trial court

sentenced Appellant that same day to concurrent terms on each count of twenty years in prison at hard

labor. On September 3, 2014, Petitioner filed a pro se application for post-conviction relief with the

state district court. On September 5, 2014, Petitioner, through private counsel, filed an application for

post-conviction relief. The district court denied Petitioner’s applications on March 3, 2015, at which

time the court denied relief. On June 17, 2015, the Louisiana Fourth Circuit Court of Appeals declined

to grant writs, refusing to consider the merits of the matter. See State ex rel Darryl Puderer v. State,

case no. 2015-K-0468 (La. App 4th Cir. June 17, 2015). The Louisiana Supreme Court followed suit on

October 17, 2016. See State ex rel. Puderer v. State, 202 So. 3d 978 (La. 2016).

On or about February 25, 2020, Petitioner submitted a pro-se successive Application for

Post-Conviction Relief. Petitioner alleged ineffective assistance of counsel for failing to perfect

Petitioner’s appeal by not filing a notice of appeal at the close of Petitioner’s proceedings. Petitioner

cited to the U.S. Supreme Court’s recent ruling in Garza v. Idaho, 139 S.Ct. 738,

U.S___, 203 L.

Ed. 2d 77 (2019). The State submitted procedural objections on March 5, 2021. Notably, the State

“[took] no position on whether Garza is retroactive to cases on collateral review. But the State has no

objection [to] the Court granting an out-of-time appeal in the interest of justice.” On November 4,

2021, Petitioner’s retained attorney, Mr. Justin Caine Harrell, filed a counseled Supplemental

Memorandum with the district court. On March 16, 2022, the district court granted Petitioner an out-of-

time appeal. After docketing of the appeal, on or about October 17, 2022, Petitioner’s retained counsel,

Justin Harrell, filed a counseled brief with the Louisiana Fourth Circuit Court of Appeals. On or about

October 20, 2022, Petitioner submitted his timely “Pro-Se” Appellate Brief with the Louisiana Fourth

Circuit Court of Appeals. On or about April 28, 2023, Petitioner’s retained counsel, Justin Harrell, filed

a counseled brief with the Louisiana Supreme Court. On or about March 31, 2023, Petitioner filed a

Motion for an Extension of Time to file a “Pro-Se” Application for Writ of Certiorari with the

Louisiana Supreme Court. On April 21, 2023, the Louisiana Supreme Court granted Petitioner’s

request for an extension of time to file his pro-se Application for Writ of Certiorari, ordering that “IT

IS ORDERED that applicant be granted 30 days from the date of this Order to supplement his writ

application.” On or about May 12, 2023, Petitioner filed a “Pro-Se” Writ of Certiorari with the

Louisiana Supreme Court.

2. Actionfsl of the Lower Court

On or about March 20, 2012, the District Court denied Petitioner's Motion to Quash Count

Four of the information. While counsel noticed his intent to seek writs, he did not, nor did he reserve

the issue for appeal. Thereafter, on August 7, 2012, the District Court permitted Petitioner to enter a

plea of guilty as charged to all offenses, notwithstanding questions regarding the location of the offense

charged in Count Four and the fact that the 2002 Second-Degree Kidnapping charged in Count One

occurred outside the time limit for prosecution provided by La. C. Cr. P. Article 572. Further, the

District Court permitted Petitioner to enter a pleas of guilty specifically, to his 2002 and 2008 sex

offenses notwithstanding the fact that the court did not inform Petitioner or ensure that Petitioner’s

attorney informed Petitioner of the sex offender registration and notification requirements before, or,

even after Petitioner’s plea(s).

On March 16, 2022, the District Court granted Petitioner an out-of-time appeal without

objection from the State. After briefing by both parties, on March 30, 2023, the Clerk of Court for the

Louisiana Fourth Circuit Court of Appeal issued a judgment affirming Petitioner’s conviction and

sentence. On April 21, 2023, the Louisiana Supreme Court granted Petitioner’s request for an extension

of time to file his pro-se Application for Writ of Certiorari, ordering that “IT IS ORDERED that

applicant be granted 30 days from the date of this Order to supplement his writ application.” On or

about November 28, 2023, The Louisiana Supreme Court entered a Judgment granting Petitioner’s

Writ of Certiorari, however, vacating petitioner’s grant of an out-of-time appeal, stating “Writ granted.

The lower court judgments granting an out of time appeal are vacated for the reasons assigned in Judge

Lobrano’s dissent.”

REASONS FOR GRANTING THE PETITION

In accordance with this court’s Rule 10, Petitioner presents for his reasons for granting this

Petition that:

1. A state court of last resort has decided an important federal question in a way that

conflicts with the decision of another state court of last resort or of a United States

court of appeals; and

2. A state court or a United States court of appeals has decided an important question

of federal law that has not been, but should be, settled by this Court, or has decided

an important federal question in a way that conflicts with relevant decisions of this

Court; and

3. Significant unresolved issues of law are involved in the case presented for review;

and

4. The controlling precedent upon which the lower court decision is based should be

overmled; and

5. The lower court has erroneously interpreted or applied the relevant law, and;

6. A court of appeal has so far departed from proper judicial proceedings or so abused

its powers, or sanctioned such a departure or abuse by a lower court, as to call for an

exercise of this court’s supervisory authority.

Petitioner respectfully submits that this case is appropriate for review because the Louisiana

Supreme Court and the Fourth Circuit Court of Appeals erroneously interpreted or applied the

Constitution and the laws of the State of Louisiana, and the United States and the decision will cause

material injustice and/or significantly affect the public interests. Specifically, where Petitioner’s case is

mired by jurisdictional and constitutional errors. Petitioner’s appeal was vacated and he was denied his

right to further review on appeal of jurisdictional violations, and where Petitioner’s plea(s) was not

knowingly and intelligendy entered due to his mistaken understanding of when he would be eligible for

parole and of his eligibility for diminution of sentence. Additionally, as it concerns Petitioner’s 2002

and/or 2008 alleged sex offenses, where the Petitioner in violation of the Fifth and Fourteenth

Amendments to the United States Constitution, was denied his fundamental due process right to

“Notice and Fair Warning” where neither the trial court or his attorney properly advised him of the sex

offender registration and notification requirements as statutorily required in La. R.S. 15:543 in writing,

or otherwise prior to or even after Petitioner entered his plea(s), and where Petitioner's plea(s) were

unknowing and not intelligently entered. Further, despite Petitioner’s attorney’s multiple instances of

ineffective assistance and deficient performance, and Petitioner’s expressed desire to enter an “Alford”

plea, as he continually professed his innocence and expressed his specific intent and desire to enter a

plea pursuant to North Carolina v. Alford. 400 U.S. 25; 91 S. Ct. 160 (11/23/70), the trial court and

Judge denied Petitioner's request to enter an “Alford” plea despite his continual claim of innocence,

and accepted Petitioner’s unconditional plea(s) of guilty knowing he was still proclaiming his

innocence.

Lastly, because of these deficiencies, Petitioner’s plea of guilty to both, the 2002 and 2008

offenses was not knowing or voluntarily made. The lower courts’ actions threaten to erode public

confidence in the administration of justice by accepting an involuntary plea and proscribing subsequent

appellate review. Accordingly, Petitioner respectfully prays for the issuance of the Writ of Certiorari

and additional review from this Honorable Court.

ARGUMENT^ LAW IN SUPPORT OF PETITIC^R’S WRIT

FIRST AND FOREMOST, Petitioner avers that his state case is mired with jurisdictional

and constitutional errors, and that this Honorable Court has held that a jurisdictional defect can be

raised at anytime, anywhere.

NOTICE OF PRO SE FILING

Petitioner is presently incarcerated and proceeding in a Pro-Se capacity. Petitioner humbly

requests that this Honorable Court review the instant pleading and any subsequent pleadings, liberally,

and in accordance with the rulings of Haines v. Kerner, 404 U..S. 519 92 S.Ct. 594, 30 L. Ed. 2d. 652

(1972); State v. Moak. 387 So. 2d. 1108 (La. 1980) (Pro-Se petitioner not held to same stringent

standards as a trained lawyer); State v. Egana, 771 So. 2d. 638 (La. 2000) (Less stringent standards

than formal pleadings filed by lawyers). Petitioner is a novice and layman of the law and untrained in

the ways of filings and pleadings of formal proceedings in this Honorable United States Supreme

Court. Alternatively, Pro-Se Petitioner requests an opportunity to correct any deemed deficiencies,

and/or the opportunity to amend. Further, if the instant application for Writ of Certiorari is granted by

this Honorable Court, Petitioner humbly requests an opportunity for further briefing, and to supplement

the record with the full Louisiana State Court’s Record on Appeal for any additionally needed

pleadings—documents.

ARGUMENT OF LAW IN SUPPORT OF QUESTIONS ONE THROUGH FOUR

Petitioner respectfully argues that the Louisiana Supreme Court erred where it

vacated Petitioner’s out-of-time appeal that had been previously granted by the state trial court

Pursuant to Garza v. Idaho, 139 S. Ct. 738 (2019), where both parties, Petitioner, and the State

of Louisiana, agreed to the appeal. Petitioner had filed a Writ of Certiorari to review the rulings

and denial of Petitioner’s Appeal that was issued in the Louisiana Fourth Circuit Court of

Appeals’ ruling on the merUTof Petitioner’s claims. However, t^^Louisiana Supreme Court

failed to issue a ruling on the merits of Petitioner’s jurisdictional error claims, and adopted the

dissenting opinion of Judge Lobrano of the Fourth Circuit (Appendix

.), vacating the

lower court’s grant of an out of time appeal to Petitioner, arguing that Garza was not

retroactive on collateral review and was just a reaffirmation of Roe v. Flores-Orteaa. 528 U.S.

470 (2000).

Petitioner argues that he was denied the Due Process of Law in violation of his Fifth

and Fourteenth Amendments to the United States Constitution where he was denied his

fundamental right to an appeal of the jurisdictional and constitutional violations which occurred

in his case. Petitioner avers that his case is mired with jurisdictional and constitutional

violations, and he was denied his right to an appeal of these violations. Petitioner had raised

Roe v. Flores-Orteaa in his First Application for Post Conviction Relief which was denied by

the state courts, where the district court opined that he waived his right to an appeal by

pleading guilty, and the Louisiana Supreme Court adopted the district court’s opinion.

However, Plaintiff then raised the issue again in a second Post Conviction Relief Application in

the state district court after this Honorable Court’s ruling in Garza which, specifically, ruled

that an appeal waiver does not waive jurisdictional errors. The district court granted Petitioner

an out-of-time appeal that was subsequently vacated by the Louisiana Supreme Court.

Petitioner argues that the vacating of his appeal was an error by the Louisiana Supreme Court,

where somewhere down the line he should have been able to have his jurisdictional claims

reviewed on the merits on appeal, however, he was not. This Honorable Court ruled in Garza

that an appeal waiver does not waive jurisdictional errors, and Petitioner in the instant case

should have been allowed a full review of those claims on appeal when he raised Flores-

Ortega in his first PCR, or when he raised Garza in his recent second PCR that was granted,

but then vacated by the Louisiana Supreme Court.

Thus far, the rulings of the Louisiana State Courts have so far departed from the rulings of this

Honorable Court and the Federal Constitution itself, the grant of Certiorari and review of

Petitioner’s case and claims is warranted and ripe for review by this Honorable United States

Supreme Court.

ARGUMENT OF LAW IN SUPPORT OF QUESTION 'FIVE

This Honorable Court has held that a jurisdictional defect can be raised at anytime,

anywhere. This court’s decision in United States v. Cotton, 535 U.S. 625, 631 (2002), was that

appellants who challenged their indictments/bills of information for lack of jurisdiction did not

waive their claims by failing to object before trial; however, such appellants received only plain

eiror review when they raised that argument for first time on appeal, and to extent that United

States v. Prentiss, 256 F.3d 971, 982 (10th Cir. 2001) (en banc), held otherwise, it was overruled

by Cotton. Based on those decisions, the petitioner now contends that because this claim relates to

a jurisdictional violation that is made evident on the face of the state court record, it is ripe for

review by this Honorable Court.

The petitioner avers, and the state court record will reflect, that the offense of which he

was charged and convicted of was alleged to have occurred within the geographical boundaries of

the parish of Jefferson, state of Louisiana. However, that judicial district never chose to institute

prosecution in the matter. Instead, the 41st Judicial District Court, which has jurisdiction over

offenses alleged to have occurred in the parish of Orleans, instituted prosecution.

The Fifth Circuit Court of Appeals has previously held that the state must show by a

preponderance of the evidence that th'e trial is in the same district as part of the criminal

offense. United States v. White, 611 F.2d531, 534-36 (5th Cir. 1980). Because the state did not

show that any element of the crime of forcible rape was committed in Orleans Parish, petitioner’s

conviction must be reversed.

It has long been established that lack of jurisdiction is a defect fatal to a criminal

prosecution. The Louisiana Supreme Court has previously held:

"And, so far as nullity resultingfrom absence ofjurisdiction is concerned, why that

is a matter which in the -words of this court in the case ofDecuir v, Decuir, 105 La.

12-

[481J 485, 29 South. [932,] 934 [(1901)], "may be invoked by any one at anytime

and anywhere." State v. Nicolosi. 128 LA. 836, 846, 55 So. 475, 478 (1911) (on

rehearing). ’’

Throughout the state trial court proceedings, petitioner’s attorney argued that no

prosecution could occur where neither the state, nor law enforcement, could show that any sexual

assault occurred within the geographical boundaries of Orleans Parish. At a preliminary hearing

Detective Corey Lymous testified that the petitioner drove the victim to “a desolate area unknown

to the alleged victim.” Detective Lymous also admitted to never determining whether the crime of

forcible rape was alleged to have occurred in Orleans or Jefferson parish, as is made evident in

this portion of the state court transcripts:

"Q: So did you ever determine the physical location of the alleged sexual assault?

A: No, sir.

Q: And you have some belief that it may have occurred in Jefferson Parish?

A: There's a possibility, yes.

0: And why do you say it’s a possibility?

A: Just some of the - it was something that was said in the victim’s statement. She

believed it may have been west ofNew Orleans, going toward the airport..

Q: Did she indicate that she was ever going on. 1-10?

A: I believe so.

Q: Did she remember an exit or anything thalA: We never got concrete landmarks.

O: So as far as you know - let me ask you this question, do you have any concrete

evidence that when she woke up in the vehicle, the vehicle was located in Orleans

Parish?

A: No sir. "

Defense counsel even filed a motion to quash the 2008 charge relating to forcible rape,

arguing that the state could not adduce any discernible reason to conclude that any rape had

occurred within the geographical boundaries of Orleans Parish. At an evidentiary hearing

scheduled for the Motion to Quash, the court stated:

“And 1 think that the law is clear, Mr. Mordock. It says that - even in the Louisiana

Constitution it says that a person shall be tried in the venue where the offense or element of the

■ offense occurred. And the law is very clear that if the acts or the elements constituting the crime

took place in more than one place or more than one parish, then the case may be brought in any

parish where any of those acts occurred.”

In the state’s denial of this claim, the trial court stated:

“Here the evidence shows that the elements of threats and/or without the

lawful consent were present from the onset of kidnapping in New Orleans and

relevant when the victim was later prevented from resisting the rape. Thus, the act

or element offorcible rape occurred in Orleans Parish. And that’s State v. Hester.

Thus, the court did not err in finding it had subject matter jurisdiction over count

four of the bill of information. ”

However, the petitioner avers that the usage of the Louisiana Supreme Court’s holding in

Stale v. Hester was mi sleading as the circumstances of that case are distinctly different from those

in the petitioner’s case. In this case, no evidence was presented to indicate that the petitioner

threatened the accuser in Orleans Parish. In fact, according to the accuser’s version of events, she

was drinking at the Bourbon Street Bar one moment and awake in petitioners’ vehicle west of the

city the next. There were no allegations or evidence that the petitioner compelled the accuser to

enter his vehicle “by force or threats of physical violence.” La. R. S. 14:24(A)(1). At the most,

petitioner was accused of making remarks viewed by the accuser as threatening. However, it has

not been disputed that these comments were made after the vehicle came to a stop at an unknown

and desolate area most likely near the New Orleans Airport in Jefferson Parish, which is still not

within the geographical boundaries of Orleans Parish.

The elements found in Hester, “threats and/or without the lawful consent” were not made

evident in the present case during the state court proceedings. There was no evidence presented to

prove that the accuser entered the vehicle without her lawful consent. Indeed, petitioner’s charge

of Second Degree Kidnapping is illustrative as it included an element that the accuser was “enticed

or persuaded...” to go from one place to another, a recognition that force or threats are not

necessary for Second Degree Kidnapping and therefore were not necessarily present when the

accuser is said to have entered petitioner’s vehicle in Orleans Parish.

Art. II of the United States Constitution provides that "the trial of all crimes . . . shall be

held in the State where the said Crimes shall have been committed." Likewise, the Sixth •

Amendment requires that "in all criminal prosecutions, the accused shall enjoy the right to a speedy

and public trial, by an impartial jury of the State and district wherein the crime shall have been

committed."

The locus delicti of the charged offense '"must be determined from the nature of the crime

alleged and the location of the act or acts constituting it.'" Cabrales, 524 U.S. at 6-1 (quoting

United States v. Anderson. 328 U.S. 699, 703, 90 L. Ed. 1529, 66 S. Ct. 1213 (1946)). In

effectuating this inquiry, a court must first identify the conduct of the offense and then discern the

location of the commission of the criminal acts. United States v. Rodriguez-Moreno, 526 US.

275, 219, 143 L. Ed. 2d 388, 119 S. Ct. 1239 (1999); see Cabrales, 524 U.S. at 6-7; Travis v.

United States, 364 U.S. 631, 635-37, 5 L. Ed, 2d340, 81 S. Ct. 358 (1961); United States v. Cores,

356 U.S. 405, 408-09, 2 L. Ed. 2d 873, 78 S. Ct. 875 (1958).

In the case sub judice, no element of the offense of forcible rape was alleged to have

occurred within the geographical boundaries of the Parish of Orleans. In fact, the accuser herself

told police during her interview that she didn’t know where they were at when the alleged rape

occurred. Evidence adduced at trial, which was even testified to by a key state witness, Detective

Lymous, proved beyond a reasonable doubt that neither the witness nor the state could discern if

the alleged rape took place in Orleans Parish. In fact, testimony and evidence presented in this case

pointed towards the alleged rape taking place near the New Orleans Airport, which is in Jefferson

Parish, not Orleans, which would make the venue for that crime rest in the 24th Judicial District,

The petitioner’s case is distinctly similar to the circumstances in United States v. Travis,

where defense counsel in Travis filed a motion to dismiss the indictment against him because

venue was improperly laid in Colorado when the crime itself occurred in the District of Columbia.

The trial court denied that motion under the premise that the offense charged began in Colorado,

but was completed in the District of Columbia. The court of appeals reversed and remanded on

other grounds, but specifically held that venue was proper in Colorado. However, this honorable

court held:

“ ...venue provisions in Acts of Congress should not be so freely construed

as to give the Government the choice of "a tribunal favorable" to it. United States

v Johnson. 323 US 273, 275, 89 L. Ed 236, 239, 65 S Ct 249. We therefore begin

our inquiry from the premise that questions of venue are more than matters ofmere

procedure. "They raise deep issues ofpublic policy in the light of which legislation

must be construed." United Stales v Johnson, supra (323 US 276). ”

The Supreme Court ruled in Travis that because a distinct part (clement) of the crime

charged indicated the crime itself occurred in the District of Columbia that venue was proper there

and not in Colorado, where the alleged criminal activity began.

In the present case, similarly to the circumstances in Travis, supra, the petitioner allegedly

met the victim in Orleans Parish. This fact was never in dispute throughout the state court

proceedings. However, no evidence was presented alleging that any element for the crime of

forcible rape either began or commenced within Orleans Parish. Therefore, because it was never

proven that a rape took place in Orleans Parish, then venue cannot be proper in that jurisdiction

and no bill of information could legally be filed by that judicial district. For these reasons, the

petitioner moves this court to vacate his conviction and sentence and remand the matter back for

further proceedings.

ARGUMENT OF LAW IN SUPPORT OF QUESTION 5IX'

In the case sub judice, the state failed to institute prosecution within the six year statute of

limitations set forth in La. C. Cr. P. Art. 572, which provides that the state has only (6) years to

institute prosecution on a crime punishable by imprisonment at hard labor. The record in this case

will clearly show that the events that led to the institution of prosecution in this matter were alleged

to have occurred on February 9,2002. However, the state did not commence prosecution until May

11,2010, more than (8) years after the crime was alleged to have taken place.

The petitioner raised this claim in his application for post-conviction relief, but the state

courts denied this claim stating “the court finds that the defendant’s claim should have been raised

in the court prior to the conviction and the defendant’s reasons for failing to raise the claim prior

to his application for post-conviction relief is inexcusable. The petitioner explained to the court

that his failure to raise this claim rested solely through the ineffectiveness of his trial counsel, who

never advised him of the statute of time limitations for the institution of prosecution! Counsel was

ineffective for failing to investigate the timeliness claim when it was clear on the face of the record

that institution of prosecution in this matter did not occur until well beyond the six year statute of

time limitations. Petitioner respectfully argues that once the statute of limitations had expired, the

state was without authority, and the court lacked jurisdiction to conduct any proceedings in the

matter.

Petitioner now directs this court’s attention to United States v. Hansel, 70 F. 3d 6 (C.A. 2,

1995), where the court held:

"Hansel’s counsel’s failure to object to the time barred counts is

unaccountable in the circumstances, and cannot be considered sound trial strategy.

Strickland, 104 S. Ct. 2064. In particular, counsel’s decision cannot be justified by

considerations related to the negotiation of a plea agreement. Hansel’s counsel’s

prejudice is that he pled guilty to two time barred counts that would have been

dismissed, if his attorney had acted competently. ”

The statutes of limitations is an affirmative defense that must be raised to be

preserved.. .ordinarily a defendant cannot false the issue of limitations after pleading guilty to the

offense in question. However, Hansel was allowed to raise it indirectly. See: Hill v. Lockhart, 474

US. 52, 58-59 (1985); and also see a recent case from the United States Court of Appeals for the

Fifth Circuit, in United States v. Freeman. (2016 WL 1127170 La. 2016), where the defendant

asserted a claim of ineffective assistance of counsel because counsel did not file a motion to

dismiss on statute of limitations grounds. The court found that Freeman’s counsel was deficient

by not filing a motion to dismiss count three, and said that counsel was required to perform

adequate research which would have disclosed that the statute of limitations had expired. See:

United States v. Bass. 310 F. 3d 321, 330 (5lh Cir. 2002). The Freeman court also said: “there is a

reasonable probability that, but for counsel’s failure to move to dismiss count three, the result of

the proceeding would have been different because count three would have likely been dismissed

and the government could not have re-indicted Freeman on that count.” Strickland, 466 U. S. at

694; see also United States v. Gunera, 479 F. 3d 373, 375 (5,h Cir. 2007) (reversing conviction

and dismissing indictment as barred by statute of limitations); United States v. Wilson, 322 F. 3d

353, 354-55 (5lh Cir. 2003) (same). But because Freeman’s counsel did not move to dismiss count

three, his criminal history reflects a conviction on a crime that should not have been part of his

trial.

It is respectfully argued that in the present case, that petitioner’s trial counsel, Craig

Mordock, failed to research the law, and that the research would have revealed that the statute of

limitations had expired on the 2002 charge, and Mordock’s failure to file a motion to dismiss on

this ground was deficient performance prejudicial to petitioner’s case.

ARGUMENT OF LAW IN SUPPORT OF QUESTION SEVEN

Petitioner avers that the Louisiana Fourth Circuit Court of Appeals erred in their denial of

this claim. Petitioner contends that the state trial court’s failure to advise him in writing, or otherwise,

of the sex offender registration and notification requirements of La. R.S. 15:542 prior to the entry of his

guilty plea rendered them unknowing and unintelligent; therefore, making them involuntarily entered.

Petitioner contends that this error requires his plea(s) to be set aside or, alternatively, requires him to

have the opportunity to withdraw his plea(s). Petitioner argues that his guilty plea(s) are infirm.

Petitioner avers that at the time of his alleged instant offenses,1 that occurred in 2002, La.

R.S. 15:543(A)2 provided: “[t]he court shall provide written notification to any defendant “charged

with” a sex offense of the registration requirements of La. R.S. 15:542. Such notice shall be included

on any guilty plea forms and judgment and sentence forms provided to defendant. ” In the instant

matter, Petitioner avers that at the time he was sentenced on August 7, 2012, Louisiana Revised

Statute (La. R.S. 15:543[A]) required that “The trial court shall provide written notification to any

person “convicted of” a sex offense and a criminal offense against a victim who is a minor of the

registration requirements and the notification requirements of this chapter; and, that the court shall

use the form contained in R.S. 15:543.1 and shall provide a copy of the registration and notification

statutes to the offender. Furthermore, such notice shall be included on any guilty plea forms and

judgment and sentence forms provided to the defendant, and the entry shall be made in the court

minutes stating that the written notification was provided to such offenders.” In the instant matter,

Petitioner argues that “Notice,” written, or otherwise, after a guilty plea has been entered and accepted

by the court amounts to untimely notice under the statute and sentencing provisions which were in

1 In State v. Dick, 951 So. 2d 124, 127 (La. 2007),LAJfofftMCouTi stated “that the law in effect at the time of the

commission of the offense is determinative of the penalty which the accused must suffer, State v. Wright, 384 So. 2d 399,

401 ((La. 1980), and that a defendant must be sentenced according to the sentencing provisions in effect at the time of the

commission of the offense. State v. Narcisse, 426 So. 2d 118, 130-131 (La. 1983), cert, denied, Narcisse v. Louisiana, 464

U.S. 865, 104 S.Ct. 202, 78 L. Ed. 2d 176 (1983); [State v.] Sugasti, 01-3407 [(La. 6/21/02)], 820 So. 2d [518,] 520.”

2 La. R.S. 15:543 was amended by acts 2007, No. 460, § 2, eff Jan. 1, 2008; Acts 2008, No. 816, § 1; and, most recently,

Acts 2013, No. 408, § 1, effective August 1, 2013.

effect at the time of his alleged 2002 offense(s), especially since a defendant has no absolute right at

the district court level to withdraw a previously entered plea of guilty under La. C. Cr. P. Article 559,

which allows the withdrawal of a guilty plea only before sentencing. Petitioner avers that in his case, he

was not provided any “Notice” of the registration and notification requirements at all; not prior to or

after his guilty plea, and he was also not provided anything in writing as required by statute. La. R.S.

15:543(A) requires that “written notification” be provided, and that it be provided on the statutory form

located in (La. R.S. 15:543.1), and it was not. Petitioner avers that if the trial court would have

followed these express directives of the statute(s), he would have been placed “On Notice, ” and would

have been informed and aware of the requirements — provisions of sex offender registration and

notification, and not just of an obligation to register prior to having to make a determination of whether

or not to plead guilty.

Furthermore, Petitioner argues that the court should have followed the sentencing

provisions of La. R.S. 15:543(A), which were in effect at the time of Petitioner’s alleged 2002 offenses,

and not at the time he was convicted and sentenced. Petitioner avers that the Fourth Circuit Court of

Appeals totally overlooked or ignored his argument as it relates to the rulings of the La. Supreme Court

in State v. Dick. 951 So. 2d 124, 127 (La. 2007), where the court stated (“that the law in effect at the

time of the commission of the offense is determinative of the penalty which the accused must suffer);

State v. Wright. 384 So. 2d 399, 401 (La. 1980), and that a defendant must be sentenced according to

the sentencing provisions in effect at the time of the commission of the offense. State v. Narcisse. 426

So. 2d 118, 130-131 (La. 1983), cert, denied, Narcisse v. Louisiana. 464 U.S. 865, 104 S.Ct. 202, 78 L.

Ed. 2d 176 (1983); fState v.l Sugasti. 01-3407 [(La. 6/21/02)], 820 So. 2d [518,] 520.”)

In denying Petitioner’s claim, the Louisiana Fourth Circuit Court of Appeals cited and

relies on State v. Bazile. 47, 412, p. 6 (La. App. 2nd Cir. 9/26/12), 206 So. 3d 560, 563, where the

Louisiana Second Circuit Court of Appeals stated:

“The trial court was not required to give notice to Defendant of

the sex offender registration requirements prior to accepting his

guilty plea, but rather, upon his conviction.”

However, Petitioner avers that in the instant matter, the Louisiana Fourth Circuit’s reliance

on the rulings in Bazile are incorrect and misplaced for, at least, the following two (2) reasons: 1) In

Razile. the Defendant was charged with a sex offense that was alleged to have occurred on July 8,

2009, which was after the statute (La. R.S. 15:543) was modified in 2007 and the Defendant in Bazile,

was in fact, correctly sentenced in accordance to the sentencing provisions that were in effect at the

time of his commission of offense that occurred in 2009 after the change in statute3, which was

markedly different from Petitioner’s case. In Petitioner’s case, he was charged with an alleged sex

offense that occurred in 2002, and was charged in accordance to the sentencing provisions that were in

effect at the time of his guilty plea and conviction in 2012, and not at the time of his alleged offense

that occurred in 2002; and, 2) The Defendant in Bazile. at the very least, was advised by the trial court

that, “. . . he was subject to the requirements for sex offender registration, and the Defendant affirmed

that defense counsel had reviewed the sex offender notification forms with him, and he had initialed

and signed the forms.” However, and in contrast, in Petitioner’s case, the trial court never advised him

prior to, or even after his guilty plea, that he was subject to any requirements for sex offender

registration, or of any of the notification requirements contained within La. R.S. 15:542, including La.

R.S. 15:542.1 (Notification of sex offenders and child predators), which requires that a defendant

convicted of a sex offense, provide specific notifications as listed and/or defined in the provisions of

(La. R.S. 15:542.1). Petitioner was only advised of an obligation to register, and he never received a

copy nor afforded an opportunity to review any “Sex Offender Notification Forms” or statutes to be

placed on “Notice” as to and of any requirements — provisions, as it relates to sex offender registration

and notification forewhich he would be required to abide by as a consequence of his guilty plea.

At the time of Petitioner’s alleged 2002 offenses, La. R.S. 15:543(A) expressly directed the district

3 La. R.S. 15:543 was modified by acts 2007, No. 460 § 2. Prior to this change, the trial court was required to provide

written notification to any person charged with a sex offense of the registration and notification requirements. The

modification changed the requirement so that any person convicted of a sex offense must receive notification.

^^not “convicted of” - a sex

court to provide written notice to any defendant who is “charged with

offense. The use of the words “charged with” was not accidental. The purposeful use of these words

reflects a legislative acknowledgment of the severity of the registration provisions to ensure that any

defendant who might be subjected to these severe registration provisions be fully informed of the

possibility early on in the process-ideally, when “charged,” but at the very least, prior to the defendant’s

entering a guilty plea. La. R.S. 15:543(A) also requires that written notification of the registration

requirements appear “on any guilty plea forms.” This additional mandate also reflects the Legislature’s

intent to ensure that a defendant be forewarned of the registration requirements, especially before a

defendant enters his plea. In the instant case, despite these directives in La. R.S. 15:543(A), the district

court judge failed to provide Petitioner any notice, written or otherwise, and he was not forewarned of

any of the registration and notification requirements prior to or after the acceptance of his guilty plea.

Petitioner was only advised of his obligation to register, and not the requirements — consequences of

registration to enable him to make an informed and intelligent decision of whether or not to plead guilty.

Petitioner avers that he was unaware of the requirements — provisions of sex offender registration and

notification and did not make an informed and intelligent decision.

Contrary to the Fourth Circuit’s opinion, Petitioner respectfully argues that the record supports his

contention that he clearly did not receive proper notice, written or otherwise, of the registration and

notification requirements of La. R.S. 15:542 as required by La. R.S. 15:543(A) before, or, even after the

entering of his guilty plea(s). In denying this claim, the Louisiana Fourth Circuit Court of Appeals stated

that “. . . The record clearly rebuts Defendant’s argument that he was not notified regarding the sex

offender notification and registration requirements prior to entering his guilty plea. Accordingly, these

assignments of error are meritless. ”4 However, despite this assertion by the Fourth Circuit, the court

clearly contradicts its own statement where it later states that “. . . Nevertheless, in this matter,

Defendant was notified of his ‘requirement’ to register as a sex offender prior to entering his plea.” As

4 Petitioner also raised the issue that his attorney was ineffective for failing to properly notify him as to the notification,

registration, and other numerous restrictions as consequences of his guilty plea.

the Fourth Circuit clearly stated, Petitioner was notified of his “requirement” to register as a sex offender.

However, Petitioner avers that he was not notified of the “requirements” of registration and notification,

as the statute (La. R.S. 15:543[A]) expressly directs. Petitioner avers that the lower court’s error is clear,

in that the trial court was required to inform him of the sex offender registration and notification

“requirements.” plural, and not just of his obligation to register. Additionally, the Fourth Circuit totally

ignored the fact that the trial court failed to provide Petitioner with the required “written notification” of

the sex offender notification and registration requirements of La. R.S. 15:542, as required by statute.

La. R.S. 15:543(A) requires that a Defendant be provided written notice as follows: “Notification must

be given on the statutorily required form contained in La. R.S. 15:543.1 and, the court shall provide a

copy of the registration and notification statutes to the offender. Furthermore, such notice will be

included on any guilty plea forms and judgment and sentence forms provided to the defendant, and the

entry shall be made in the court minutes stating that the written notification was provided to such

offenders. ” Petitioner avers that the trial court never provided him the “written notice” of the registration

and notification requirements on the statutorily required form (La. R.S. 15:.543.1) as required by La. R.S.

15:543(A), nor was he provided a copy of the registration and notification statutes. Moreover, Petitioner

avers that a simple examination of the district court’s record, will clearly show that the court failed to

place the entry on the court’s record that “Written Notification” was provided to Petitioner as required by

statute, which further supports Petitioner’s contention, that he did not receive any notice, written, or

otherwise, of the requirements — provisions of sex offender registration and notification. Petitioner was

totally unaware of the consequences of his guilty plea(s) where he was not advised of any of the

numerous sex offender registration consequences or other restrictions that would apply as a direct

consequence of his guilty plea by the court or his attorney. Petitioner argues that sex offender registration

and notification is a direct consequence of a guilty plea, similar to deportation, which requires the court

and attorneys to properly inform and explain the requirements to a defendant when entering a plea. Cf.

Padilla v. Kentucky. 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), where counsel was

deficient in failing to advise of^portation. In the instant matter, Petitioner respectfully argues that his

attorney, Craig Mordock, provided ineffective assistance in violation of his Sixth Amendment to the

United States Constitution, by failing to fully explain the state’s sex offender registration and notification

requirements forewhich Petitioner would be required to abide and other restrictions which were a direct

consequence of Petitioner’s plea. Petitioner avers that sex offender registration, notification, and

consequences thereof, is a direct result or consequence of a guilty plea for a sex offense as numerated in

La. R.S. 15:541, and Petitioner respectfully argues that it was an error by the trial court to not fully

admonish him as to the consequences of his plea forewhich he was not aware; or, to not ensure that his

trial attorney, Craig Mordock, advised him of the same prior to pleading guilty. Petitioner was only

shown a single sheet of paper (Waiver of Rights Form) and told to sign and initial while speaking to his

attorney in court for less than ten minutes. Petitioner’s attorney did not go over any form(s) with him.

Petitioner avers that had he been properly informed of the numerous restrictive provisions involved in

the sex offender registration and notification processes, the consequences of his plea, he would not have

pleaded guilty, and would have insisted on proceeding to trial. Petitioner asserts that none of these

requirements which are mandated by statute, were adhered to by the court; he was not given a written sex

offender notification form to sign, or a copy of the registration and notification statutes as required in La.

R.S. 15:543(A), nor was he informed by the trial court or his attorney of the requirements - provisions

contained within the sex offender registration or notification statutes and process. The plea agreement

(Waiver of Rights [Guilty Plea] form) which the Petitioner signed, only indicates that he has to register

with the Orleans Parish Sheriff’s Office or New Orleans Police Department.5 Therefore, and

consequently, only informing the Petitioner of a single obligation or requirement of registering, and not

any of the numerous requirements — provisions of registration and notification as required by statute.

Furthermore, the Petitioner’s sentencing transcript and court minutes do not reflect that “written

-------------------------------

^ ^ //

5 See Petitioner’s “Pro-Se” Appellate Brief (Appendix

H-

notification” was provided to the Petitioner as statutorily required in La. 15:543(A).6 The only mention of

Petitioner’s obligations, was that he “must register with the criminal sheriffs office and/or the New

Orleans Police Department and/or the police in any jurisdiction when you are released, and that this is a

lifetime registration as a sexual offender. ” In the instant matter, the Petitioner was not given a copy of

the notification or registration statutes, or advised of the statutes’ numerous restrictions and/or provisions

such as community notification, travel restrictions, certain business ownership prohibitions, certain

business license restrictions, residence - housing restrictions, repetitive ‘in-person’ reporting and address

updates, required re-occurring fees, and etcetera.

In order for a guilty plea to be voluntary and intelligently entered, the Defendant must be advised about

the consequences of a guilty plea. The issue arises as to a court’s duty to advise sex offenders as to sex

offender registration consequences or other restrictions arising from a plea of guilty, or to determine that

the offender is advised thereof. 41 A.L.R. 6TH 141. In the instant matter, Petitioner avers that he was not

advised of any of the sex offender registration consequences or other restrictions by the court or his

attorney prior to, or even after he pled guilty. Petitioner avers that he was only informed of his obligation

to register, and not of the requirements — provisions of registration or other restrictions which were a

direct consequence of his plea. Petitioner was not informed of “ANY” of the requirements of sex

offender registration or notification, as described and required in La. R.S. 15:542 which he would have to

abide as a direct result or consequence of his plea. Cf. State v. Naran, 308 So. 3d 419 (La. App. 5th Cir.

12/23/20), where the court provided sufficient information to allow the Defendant in “Naran,” to make an

informed and intelligent decision to plead guilty. In Naran. the court provided the defendant with forms

that set forth the requirements for sex offender registration, the defendant acknowledged receiving copies

of the sex offender registration and notification statutes, and had signed a written acknowledgment that

he had received copies of the statute, reviewed the notification form which included the requirements

with his attorney, and understood that by pleading guilty, he was agreeing to abide by the registration and

6 See Petitioner’s “Pro-Se” Appellate Brief (Appendix^ f J- )

2.5

G> CXaA. 2D

notification requirements. In contrast, and in the instant case as argued above, Petitioner was not

provided the necessary sex offender registration and notification requirements to allow him to make an

informed and intelligent decision to plead guilty. In Petitioner’s case, the trial court never provided him

with any forms setting forth the requirements for sex offender registration, he did not acknowledge

receiving any copies of the sex offender registration and notification statues, and did not sign a written

acknowledgment that he had received copies of the statute, or that he reviewed any notification form

which included the requirements with his attorney and understood that by pleading guilty, was agreeing

to abide by the registration and notification requirements. Petitioner was not afforded any of those

opportunities as was the defendant in Naran.

Petitioner avers that when a defendant pleads guilty to a sex offense, La. R.S. 15:543(A) requires the

court to provide “written notification” of the registration and notification requirements, and Petitioner

argues that this requirement that the court provide written notification to a defendant, is to ensure that he

is properly informed of the said requirements, to enable him or her to make an informed and intelligent

decision and determination of whether or not to enter a plea of guilty. In fact, the statutorily required

form (“Notification to Sex Offender” in La. R.S. 15:543.1) that the Defendant in Naran was afforded the

opportunity to read and sign, and the Petitioner was not, states that “the court has the duty to provide

defendant with the information necessary for awareness of sex offender registration requirements. ”

Petitioner relies on State v. Calhoun. 694 So. 2d 909 (La. 5/20/97), where the Louisiana Supreme Court

held that: “Failure to advise a defendant of the requirements of registration and notification is a factor

that may undercut the voluntary nature of a guilty plea. ” In Calhoun, the court refused to set out a

blanket rule that failure to notify of these requirements nullifies a guilty plea. Rather, the court

considered the totality of circumstances under which the pleas were made, including counsel’s

unpreparedness. The Calhoun trial court did not inform the defendant of the registration and notification

requirements until his sentencing hearing more than two months after his guilty plea. The defendant “at

the least, implicitly stated that he would not have pled guilty had he been informed of the registration

requirements. He also raised tthe issue in a timely-filed motion to withdraw guilty plea prior to

sentencing. The Louisiana Supreme Court held, under the circumstances, the trial court’s failure to advise

the defendant of the registration requirements prior to accepting the guilty plea undercut the

voluntariness of that plea.” Id.

In the instant case, Petitioner avers that he did not benefit from a plea bargain, where he pled guilty as

charged to all offenses and his bill of information was not amended. Petitioner was never informed of the

registration and notification requirements by the trial court or his attorney. Petitioner was only advised by

the court of his obligation to register, and not of the consequences of registration by neither the court or

his attorney. Furthermore, Petitioner avers that he had also attempted to file a Motion to Withdraw his

guilty plea(s) after learning of the numerous restrictions — provisions pertaining to sex offender

registration, by writing his attorney at the time, Mr. Craig J. Mordock, multiple letters, requesting that

Mr. Mordock, file a Motion to Withdraw Guilty Plea, and to file his Notice of Intent to Appeal.7

However, Petitioner was abandoned by his attorney, and his letters were ignored. Petitioner would also

like this Honorable Court to please note, that he is also claiming that his trial attorney, Mr. Craig

Mordock, provided ineffective assistance in violation of his Sixth Amendment to the United States

Constitution by not advising him of the sex offender statute(s), and of the requirements - provisions,

including his failure to fully explain the “Consequences” of sex offender registration. Further, Petitioner

argues that in the light of the totality of the circumstances under which he pled guilty, and considering his

attorneys’ multiple instances of ineffective assistance in Petitioner’s case, including his attorney’s failure

to file a “Notice of Intent to Appeal,” which consequently, has led to the instant “out-of-time” appeal,

renders his guilty plea(s) infirm. Petitioner’s attorney did not: (1) inform Petitioner of the consequences

of the mandatory sex offender registration and notification requirements and other restrictions; (2) Was

unprepared for trial where he advised his client to plead guilty and enter a “Best-Interest” plea because he

“couldn't win at trial;” (3) Failed to file a Motion to Quash on Statute of Limitations grounds; (4) Miss7 It should be noted that Mr. Mordock’s failure to file Petitioner’s direct appeal as requested verbally and in writing, is what

has led to Petitioner being granted the instant “Out-of-Time” Appeal.

advised Petitioner as to his eligibility for parole and diminution of sentence; (5) Petitioner had steadfastly

maintained his innocence, where he requested to enter an “Alford” plea, but his request was denied by

the court - judge; and (6) Any other reasons found by your Honor(s); and, since the trial court also failed

to adhere to the rules of La. 15:543(A), as to a signed copy of the sex offender notification and

registration (La. R.S. 15:543.1) form, nor provide Petitioner with a copy of the registration and

notification statutes or any mention of the requirements in Defendant’s plea - sentencing “Boykin”

colloquy, or to make sure that his attorney properly advised his client, Petitioner, of the consequences of

sex offender registration. The record clearly indicates in this case, that the Petitioner was not put on

notice as to and of the registration and notification requirements by the court or his attorney before, or

even after his guilty plea. The trial court did not provide the necessary registration and notification

requirements to Petitioner to allow him to make an informed and intelligent decision to plead guilty.

Furthermore, Petitioner argues that for the above and foregoing mentioned reasons, he was also denied

due process in violation of his Fifth and Fourteenth Amendments to the United States Constitution and

the Louisiana State Constitution. Accordingly, Petitioner’s plea(s) was not knowingly and

intelligently entered. Petitioner’s guilty plea(s) should be set aside, his conviction(s) reversed, and his

sentence(s) vacated. Alternatively, Petitioner requests that a full evidentiary hearing be ordered and

conducted in this matter.

OF LAW IN SUPPORT OF OUES^^N EIGHT

ARGUME

(SEE ARGUMENTS IN SUPPORT OF QUESTIONS 5-7)

CONCLUSION AND PRAYER

THEREFORE, for the above and foregoing mentioned reasons, Petitioner avers that the

Louisiana State Supreme Court and/or the Louisiana Fourth Circuit Court of Appeals erred, and a Writ

of Certiorari is warranted and should be issued to the Louisiana Supreme Court, vacating Petitioner’s

conviction(s) and sentence(s). Alternatively, Petitioner avers that a remand should be ordered with

instructions in accordance with this Honorable Court’s findings.

WHEREFORE, for the above and foregoing mentioned reasons, Petitioner prays that this

Honorable Court will “GRANT” and issue a Writ of Certiorari to the Louisiana Supreme Court,

vacating Petitioner’s conviction(s) and sentence(s). Alternatively, Petitioner prays that a remand will be

ordered with instructions in accordance with this Honorable Court’s findings.

Respectfully submitted on thisc^'T'dav of

f^lVCs!)

., 2024

T2L

Darryl Puderer #601803

General Delivery

1630 Prison Road

Cottonport, LA. 71327

30.

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.