State of Louisiana Versus Clarence Otis Gibson

STATE OF LOUISIANA NO. 24-KH-469

VERSUS FIFTH CIRCUIT

CLARENCE OTIS GIBSON COURT OF APPEAL

STATE OF LOUISIANA

October 10, 2024

Linda Wiseman First Deputy Clerk

IN RE CLARENCE OTIS GIBSON

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE R. CHRISTOPHER COX, III, DIVISION "B", NUMBER 07-6779

Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Jude G. Gravois

WRIT DENIED

In this writ application, relator, Clarence Gibson, challenges his 25-year sentence on his sexual battery conviction. For the following reasons, we deny this writ application.

Relator was charged with aggravated rape of a known juvenile in violation of La. R.S. 14:42. In 2009, after a jury trial, he was convicted of the lesser included offense of sexual battery, in violation of La. R.S. 14:43.1, and sentenced to 25 years of imprisonment at hard labor.

Relator filed an appeal, in which he argued the trial court erred by sentencing him to 25 years imprisonment, in accordance with the penalty provision of La. R.S. 14:43.1C(2), rather than the penalty provision in La. R.S. 14:43.1C(1), which provides for a maximum sentence of 10 years. This Court found that while 24-KH-469 *2 the trial court did commit an Apprendi1 violation, this error was harmless. Accordingly, this Court affirmed relator’s conviction and sentence. The Louisiana Supreme Court denied writs thereafter. State v. Gibson, 09-486 (La. App. 5 Cir. 3/9/10), 38 So.3d 373, writ denied, 10-802 (La. 11/5/10), 50 So.3d 814.

On October 3, 2024, relator filed a writ application with this Court, arguing his 25-year sentence for sexual battery is excessive because “no bodily harm was done to the child and there was no sexual penetration.” He refers to his prior appeal and acknowledges this Court’s finding of harmless error in sentencing. However, he insists that this Court has to do something to help him, because the victim lied when she “cried rape,” and he has already served 17 years in prison.

La. C.Cr.P. art. 930.4(A) provides that any claim for relief which was fully litigated in an appeal from the proceedings leading to the judgment of conviction and sentence shall not be considered. Relator acknowledges that he raised this sentencing error on appeal, and that his conviction and sentence were upheld by this Court and the Louisiana Supreme Court. Accordingly, relator’s argument is repetitive and shall not be considered again.

Further, courts of appeal review issues that were submitted to the trial court and that are contained in specifications or assignments of error. U.R.C.A., Rule 1-3. There is no indication that relator is seeking review of any recent trial court ruling. Rather, he appears to seek review or reconsideration of this Court’s prior opinion, rendered in March of 2010, finding a sentencing error to be harmless and upholding his sentence. Such review is not only untimely, but also procedurally improper.

Moreover, relator’s writ application is deficient, because it does not include an index of attachments, a statement of jurisdiction, a statement of the case, a list

1 See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

of the issues presented, or a list of the assignments of error, as required by U.R.C.A., Rule 4-5(C). Relator has also failed to include copies of (1) the ruling from which he seeks review; (2) each pleading on which the ruling was founded; (3) a notice of intent requesting a return date; and (4) an order from the trial court setting a return date for relator to file this writ application. See U.R.C.A., Rules 4-2, 4-3, and 4-5(C).

For these reasons, we deny relator’s writ application.

Gretna, Louisiana, this 10th day of October, 2024.

FHW SMC JGG

SUSAN M. CHEHARDY CURTIS B. PURSELL CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS DAY 10/10/2024 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-KH-469 E-NOTIFIED 24th Judicial District Court (Clerk) R. Christopher Cox, III (DISTRICT JUDGE) Thomas J. Butler (Respondent)

MAILED Clarence O. Gibson #366576 (Relator) Dixon Correctional Institute Post Office Box 788 Jackson, LA 70748