State ex rel. Sterling v. State

PER CURIAM: 11 Denied. Relator fails to show he was denied the effective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We attach hereto and make a part hereof the District Court’s written reasons denying relator’s application. Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The District Court is ordered to record a minute entry consistent with this per curiam. Attachment — 1051 — THE FORTIETH JUDICIAL DISTRICT COURT STATE OF LOUISIANA PARISH OF ST. JOHN THE BAPTIST No.201l-CR-2 Division “B” STATE OF LOUISIANA VERSUS DARREN STERLING Filed: Deputy Cleric JUDGMENT Considering petitioner’s Application fir Post Conviction Relief Sled with this Court on April 8¡ 2015:' On May 17,2012 petitioner Darren Sterling was found guilty of aggravated battery through a trial by jury. On September 17,2012/ the court held a multiple bill hearing, and the petitioner was sentenced to 50 years D.O.C, at hard labor. The conviction was affirmed by the Filth Circuit Court of-Appeals on December 12,2013, and affirmed by the Louisiana Supreme Court on August 25,2015. Petitioner has now filed for post conviction relief. In his'application to the court for post conviction relief.petitioner’s claim is one ofineffective' assistance of counsel. Specifically, petitioner alleges his counsel was ineffective by failing to investigate a witness, obtain an alibi witness, file for a change of venue, cross-examine the victim, object to a sleeping juror, and maintain attorney-client privilege. On May 26,2015, the State filed a ■Memorandum in Opposition to.Post-Comiction Relief Application on Behalf of the State ofLouisitma asserting that the petitioner’s claims are without merit and are unsupported by evidence. to. assessing a claim of ineffective assistance of counsel a two-pronged test is employed. The defendant must show that (1) Jiis counsel's performance Was deficient, and (2) the deficiency prejudicedhim. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), To show prejudice, the defendant must demonstrate that, but for the unprofessional conduct, the outcome of the proceedings would have been different. Therefore, the defendant must Show ateasonable probability that counsel's error so undermined the proper functioning of the adversarial process that the trial court cantiot he relied upon as having produced a just result; Effective counsel has been defined to meah'toot errorless counsel, and not counsel judged ineffective by hindsight, but counsel — 1052 — reasonably likely to render 'effective assistance." State v. Ratcliff, 416 So.2d 528, 531 (La.1982). Only if defendant has shown both error and prejudicio will his conviction he fgtmd unreliable and set aside. See State v. Wright, 598 So.2d 493 (La.App. 2d Cir.1992). There is a strong presumption that the conduct of counsel Ms within die wide range of responsible professional assistance'. State v. Myers, 583 So.2d 67 (La.App. 2d Cir.), writ denied, 585 So.2d 576 (La.1991). If an error falls within the ambit of trial strategy, it does not establish ineffective assistance of counsel. State v. Bienemy, 483 So.2d 1105 (La.App. 4 Cir.1986). Hindsight is not the proper perspective forjudging the competence of counsel's decisions because opinions may differ as to the advisability of a tactic, An attorney's level of representation may not be determined by whether a particular strategy is successful. State v. Marino, 804 So.2d 47 (La.App. 4 Cir.2001), citing State v. Brooks, 505 So.2d 714 (La.1987), cert. denied, Brooks v. Louisiana, 484 U.S. 947, 108 S.Ct 337, 98 L.Ed.2d 363 (1987). A defendant who asserts a claim of ineffective counsel based upon a failure to investigate must allege with specificity what the investigation would have revealed and how it would have altered the outcome of a trial. United States v. Green, 882 F.2d 999, 1003 (5th Cir.1989). See also Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. General statements and conelusory charges will not suffice. State v. Outley, 629 So.2d 1243, 1254 (La.App.2d Cir. 1993), writ denied, (La, 1994), 637 So.2d 476. The court finds nothing in the record to indicate that counsel's conduct fell below the range of reasonable professional assistance. Petitioner has failed to demonstrate that but for the speoific acts alleged his application, the outcome of petitioner's trial would have been different The petitioner has Med to suggest with specificity what exculpatory evidence could have been uncovered by a more thorough investigation by 1⅛ counsel, and has failed to. show that counsel's failure to follow up on his leads was unreasonable. To show that counsel's performance was deficient petitioner would have to show that “counsel made errors so serious that counsel Was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment,” Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. CONCLUSION As such, it is hereby ORDERED, ADJUDGED AND DECREED that petitioner’s Application for Post Conviction Relief⅛ DENIED. — 1053 — BEAD, RENDERED end SIGNED ON THIS // day of June, 2015 ta EBgard, Louisiana* [[Image here]] Please notify all parties.