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identifying Louisiana's standard for an actual innocence claim
Summary of this case from Woodfox v. CainOpinion
No. 2001-KP-2808.
April 12, 2002
IN RE: State of Louisiana; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, Nos. 377-313; to the Court of Appeal, Fourth Circuit, No. 2001-K-1407
ON WRIT OF CERTIORARI TO THE FOURTH CIRCUIT COURT OF APPEAL.
Writ granted. See per curiam.
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CALOGERO, C.J., would grant and docket.
Writ granted; conviction and sentence reinstated. The district court could not and did not grant a motion for a new trial, since Conway did not file one and if he had he would have filed it untimely. La.C.Cr.P. art. 853. Properly viewing Conway's second filing at the district court as a supplement to his application for post-conviction relief, and assuming that a claim of "actual innocence" not based on DNA evidence under La.C.Cr.P. art. 926.1 is cognizable on collateral review under La.C.Cr.P. art. 930.3, see Ex parte Elizondo, 947 S.W.2d 202, 205 (Tex.Cr.App. 1996); Summerville v. Warden, 229 Conn. 397, 641 A.2d 1356, 1369 (1994); People v. Washington, 171 Ill. 475, 665 N.E.2d 1330, 1336-37 (1996); but see Herrera v. Collins, 506 U.S. 390, 416-17, 113 S.Ct. 853, 869, 122 L.Ed.2d 203 (1993); Johnson v. State, 321 Ark. 117, 900 S.W.2d 940, 950 (1995); State v. Watson, 126 Ohio App.3d 316, 710 N.E.2d 340, 344-45 (1998), the district court erred in granting relief because Conway did not make a bona fide claim of actual innocence. Such a claim must involve "new, material, noncumulative," and "conclusive" evidence, Washington, 665 N.E.2d at 1337, which meets an "extraordinarily high" standard, Summerville, 641 A.2d at 1372-75, and which "undermine[s] the prosecution's entire case," In re Clark, 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729, 739 (1993), while Conway on collateral review merely advanced an "alternative and inconsistent" theory of defense to the one he offered at trial, a tactic our jurisprudence prohibits. See generally State v. Juluke, 98-0341, p. 4-5 (La. 1/8/99), 725 So.2d 1291, 1293.