Jose C. Garcia Versus Tim Hooper

JOSE C. GARCIA NO. 24-KH-468

VERSUS FIFTH CIRCUIT

TIM HOOPER COURT OF APPEAL

STATE OF LOUISIANA

October 28, 2024

Linda Wiseman First Deputy Clerk

IN RE JOSE C. GARCIA

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE FRANK A. BRINDISI, DIVISION "E", NUMBER 08-5641

Panel composed of Judges Stephen J. Windhorst, Scott U. Schlegel, and Timothy S. Marcel

WRIT DENIED

In this pro se writ application, relator, Jose C. Garcia, seeks review of the trial court’s August 28, 2024 denial of his application for post-conviction relief.

In November 2010, a unanimous jury found relator guilty of three counts of second degree murder, and the trial court sentenced relator to life imprisonment at hard labor on each count. The trial court ordered the sentences to run consecutively. In January 2012, this court affirmed relator’s convictions and sentences, and relator did not did not file a writ application with the Louisiana Supreme Court. State v. Cornejo-Garcia, 11-619 (La. App. 5 Cir. 1/24/12), 90 So.3d 458.

In July 2024, relator filed an APCR with the district court, asserting: (1) Louisiana’s non-unanimous jury verdict system violated the Equal Protection Clause; (2) defective grand jury indictment; and (3) unconstitutional jury instruction. The trial court denied relator’s APCR because it was untimely and relator failed to prove any exception applied under La. C.Cr.P. art. 930.8.

Relator asserts the same claims in this writ application. Upon review, we agree with the trial court that relator’s APCR is untimely under La. C.Cr.P. art. 930.8, which requires a defendant to file an APCR within two years of the judgment of conviction and sentencing become final. Relator’s convictions and sentences became final in 2012. See State v. Cornejo-Garcia, 11-619 (La. App. 5 Cir. 1/24/12), 90 So.3d 458. He filed this APCR more than ten years later in 2024. We also find none of the exceptions set forth in La. C.Cr.P. art. 930.8 A(1), (2), (3), or (4) apply to relator’s case because his claim does not rest on newly discovered evidence or an unknown interpretation of constitutional law, his application was filed after October 1, 2001, and he was not sentenced to death.

Accordingly, we deny this writ application.

Gretna, Louisiana, this 28th day of October, 2024.

SJW SUS 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 10/28/2024 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-468 E-NOTIFIED 24th Judicial District Court (Clerk) Honorable Frank A. Brindisi (DISTRICT JUDGE) Thomas J. Butler (Respondent)

MAILED Jose C. Garcia #475721 (Relator) Louisiana State Penitentiary Angola, LA 70712