State of Louisiana Versus Ronald Fairman

STATE OF LOUISIANA NO. 24-KH-411 VERSUS FIFTH CIRCUIT RONALD FAIRMAN COURT OF APPEAL

STATE OF LOUISIANA

September 24, 2024

Linda Wiseman First Deputy Clerk

IN RE RONALD FAIRMAN

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE JACQUELINE F. MALONEY, DIVISION "D", NUMBER 14-1248

Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Timothy S. Marcel

WRIT DENIED

Relator, Ronald Fairman, seeks review of the district court’s August 6, 2024 judgment denying his third, pro se, application for post-conviction relief (“APCR”). Relator’s convictions and fourth felony offender sentences resulting from charges of possession of a firearm by a convicted felon (count one), resisting a police officer (counts three and four), and battery on a police officer (counts two and five) became final by the end of 2015. See State v. Fairman, 173 So.3d 1278, 1282 (La. App. 5 Cir. 9/23/15). He specifically seeks review of the district court’s refusal to address the merits of the claims related to his alleged actual innocence and the existence of facts not (previously known) to him or his attorney.1

First, La. C.Cr.P. art. 926.2, effective date, August 1, 2021, provides for a freestanding claim of factual innocence not based on DNA evidence. Relator’s supporting documentation, i.e., citations to a 1983 Supreme Court case and a 2022 executive order banning the use of chokeholds and carotid restraints by federal law enforcement agencies, does not qualify as “new, reliable, and noncumulative evidence that would be legally admissible at trial and that was not known or discoverable at or prior to trial,” as required by La. C.Cr.P. art. 926.2 B(1)(a). See La. C.Cr.P. art. 930.2.

Second, Relator alleges that his constitutional rights were violated when he was not allowed to confront or cross-examine the person who made an anonymous 9-1-1 call, which was admitted into evidence at trial. One of the deputies who 1 We note that Relator’s other APCR claims – regarding the non-unanimous jury verdict and double jeopardy – are successive and repetitive under La. C.Cr.P. art. 930.4 and were reviewed by this Court in a previous writ and appeal, respectively. See Fairman, supra and State of Louisiana, ex rel. Ronald Fairman, DOC #398483, 21-KH-292 (La. App. 5 Cir. 6/22/2021) (unpublished writ opinion).

responded to the call was allowed to testify about the report regarding the man inside Pee-Wee’s Lounge threatening patrons with a firearm. But the record on appeal shows that Relator’s counsel unsuccessfully objected to the introduction of the 9-1-1 call on grounds he now argues constitutes a previously unknown error sufficient to trigger the exception provided by La. C.Cr.P. art. 930.8(A)(1), allowing a defendant to file an APCR more than two years after his conviction and sentence has become final when “[t]he application alleges, and the petitioner proves or the state admits, that the facts upon which the claim is predicated were not known to the petitioner or his prior attorneys.” However, “a defendant’s late realization that an error may have occurred at trial does not qualify as the discovery of a new fact for purposes of the exception set out in La. C.Cr.P. art. 930.8(A).” State v. Parker, 98-256 (La. 5/8/98), 711 So.2d 694, 695 (per curiam). Further, Relator failed to assign this alleged error in his previous appeal. See La. C.Cr.P. art. 930.4(C), (E); Fairman, supra.

Based on the foregoing, the writ application is denied.

Gretna, Louisiana, this 24th day of September, 2024.

MEJ JGG TSM

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

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

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

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS DAY 09/24/2024 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-411 E-NOTIFIED 24th Judicial District Court (Clerk) Honorable Jacqueline F. Maloney (DISTRICT JUDGE) Thomas J. Butler (Respondent)

MAILED Ronald Fairman #398483 (Relator) Raymond Laborde Correctional Center 1630 Prison Road Cottonport, LA 71327