Louisiana Administrative Code
Title 22 - CORRECTIONS, CRIMINAL JUSTICE AND LAW ENFORCEMENT
Part XV - Public Defender Board
Chapter 19 - Performance Standards for Criminal Defense Representation in Indigent Capital Cases
Section XV-1921 - Performance Standard 10: State Post-Conviction and Clemency
Universal Citation: LA Admin Code XV-1921
Current through Register Vol. 50, No. 3, March 20, 2024
A. Duties of Post-Conviction Counsel
1. Post-conviction
counsel should comply with the capital guidelines, and these performance
standards, except where clearly inapplicable to the representation of the
client in the post-conviction period of the case, including the obligations to:
a. maintain close contact with the client
regarding litigation developments;
b. continually monitor the clients mental,
physical and emotional condition for effects on the clients legal
position;
c. keep under continuing
review the desirability of modifying prior counsels theory of the case in light
of subsequent developments;
d. take
all steps that may be appropriate in the exercise of professional judgment in
accordance with these standards to achieve an agreed-upon disposition;
and
e. continue an aggressive
investigation of all aspects of the case.
2. Post-conviction counsel should be familiar
with all state and federal appellate and post-conviction options available to
the client, and should consider how any tactical decision might affect later
options.
3. Post-conviction counsel
should monitor and remain informed of legal developments that may be relevant
to the persuasive representation of claims in state post-conviction
proceedings, in federal habeas corpus proceedings and in any application for
certiorari to the United States Supreme Court as well as the preservation of
claims for subsequent review in state and federal proceedings and international
legal fora.
a. Counsel should monitor relevant
legal developments in and be aware of current legal claims pending in relevant
cases in front of the Louisiana Supreme Court, the Fifth Circuit Court of
Appeals and the United States Supreme Court.
b. Counsel should monitor relevant legal
developments in Louisianas Courts of Appeal including splits between the
circuit courts of appeal.
c.
Counsel should monitor relevant legal developments in the superior courts of
other states, particularly in the interpretation and application of federal
constitutional law.
d. Counsel
should monitor relevant legal developments in the federal courts of appeal,
including splits between circuit courts of appeal.
e. Counsel should monitor relevant
developments in international law.
4. Counsel should explain to the client
counsels role, how counsel was appointed to the case, and the meaning and goals
of post-conviction and federal habeas corpus proceedings, and counsel should
encourage the client to participate in the collateral review process.
5. Counsel shall consult with the client on
the matters to be raised in any post-conviction petition or federal application
for habeas corpus and give genuine consideration to any issue the client wishes
to raise. What claims to raise, and how to raise them, are generally matters
entrusted to the discretion of counsel. When counsel decides not to argue all
of the issues that his or her client desires to be argued, counsel should
inform the client of that decision, of the reasons for the decision, and of his
or her right to file a pro se brief.
6. Post-conviction counsel should obtain and
review a complete record of all proceedings relevant to the case including the
appellate record, the district court file, any file in the court of appeal or
Supreme Court, and the files in any other related or prior proceedings in the
cause.
7. Post-conviction counsel
should obtain and review all prior counsels file(s). Post-conviction counsel
should retain and preserve prior counsels files as far as possible in the
condition in which they were received until transmitted to successor
counsel.
8. Post-conviction counsel
should ensure that the record of proceedings available for review is complete.
If any item is necessary to post-conviction review but is not included in the
record of proceedings, it is post-conviction counsels responsibility to ensure
that the record available for review is supplemented.
9. Post-conviction counsel should interview
the client and previous defense team members about the case, including any
relevant matters that do not appear in the record. Post-conviction counsel
should consider whether any potential off-record matters should have an impact
on how post-conviction review is pursued, and what kind of an investigation of
the matter is warranted.
10.
Post-conviction counsel should seek to investigate and litigate all issues,
whether or not previously presented, that are arguably meritorious under the
standards applicable to high quality capital defense representation, including
challenges to any overly restrictive procedural rules and any good faith
argument for the extension, modification or reversal of existing law. Counsel
should undertake a high quality, independent, exhaustive investigation and
should not assume that investigation of issues by prior counsel has been
complete or adequate.
11. The
investigation and litigation of claims should encompass all arguably available
claims for relief, including those based upon the grounds that:
a. the defendant is in custody or the
sentence was imposed in violation of the Constitution or laws or treaties of
the United States;
b. the execution
of the defendant would violate the Constitution, laws or treaties of the United
States or the Constitution or laws of the state of Louisiana;
c. the conviction was obtained in violation
of the constitution of the state of Louisiana;
d. the sentence was obtained in violation of
the constitution of the state of Louisiana or is otherwise an illegal
sentence;
e. the court exceeded its
jurisdiction;
f. the conviction or
sentence subjected the defendant to double jeopardy;
g. the limitations on the institution of
prosecution had expired;
h. the
statute creating the offense for which the defendant was convicted and
sentenced is unconstitutional;
i.
the conviction or sentence constitute the ex post facto application of law in
violation of the constitution of the United States or the state of
Louisiana;
j. the results of DNA
testing performed pursuant to an application granted under La. C. Cr. P. art.
926.1 proves that the petitioner is factually innocent of the crime for which
he was convicted; or
k. the
defendant is otherwise shown to be factually innocent of the crime for which he
was convicted or not eligible for the death penalty.
12. In conducting the investigation, counsel
should have particular regard to the possibility that claims for relief may
arise from matters not previously fully investigated or litigated, including:
a. the possibility that the state failed to
turn over evidence favorable to the defendant and material to his guilt or
punishment;
b. the possibility that
the state knowingly used false testimony to secure the conviction or
sentence;
c. the possibility that
the client received ineffective assistance of counsel as to either guilt or
penalty in the course of his representation in the trial court or on
appeal;
d. the possibility that the
jurys verdict is tainted by issues such as jury misconduct, improper separation
of the jury, and false answers on voir dire examination; and,
e. the possibility that the client is
innocent of the offense charged or not eligible for the death
penalty.
13. In
investigating the possibility that the client received ineffective assistance
of counsel, post-conviction counsel must review both the record in the case and
also conduct a thorough investigation of the facts and circumstances beyond the
record in order to determine whether a claim exists that counsels performance
was deficient. As these Standards are intended to reflect accepted minimum
standards for performance in capital cases, in determining the scope of the
investigation to be conducted, post-conviction counsel shall have regard to
these Standards as they describe the responsibilities of trial and appellate
counsel. Post-conviction counsel shall conduct a sufficiently thorough
investigation to determine either that prior counsels responsibilities were met
or to determine the extent of any prejudice arising from the failure to meet
those responsibilities.
14. In
investigating and developing claims of ineffective assistance of counsel or the
suppression of favorable evidence, counsel shall be conscious that evidence
will be assessed for its cumulative impact and so should not limit the
investigation to those matters that might, in and of themselves, justify
relief. Instead, the investigation should extend to those matters which, in
combination with others, may justify relief.
15. In investigating, preparing and
submitting a petition, counsel should seek such pre-filing discovery,
compulsory process, requests for admissions, depositions and other orders as
are available and appropriate to a high quality, independent, exhaustive
investigation. Counsel should investigate the possibility of and, where
appropriate, file an application for DNA testing pursuant to La. C.Cr.P. art.
926.1.
16. Counsel should make
every professionally appropriate effort to present issues in a manner that will
preserve them for subsequent review. Claims raised should include federal
constitutional claims which, in the event that relief is denied, could form the
basis for a successful petition for writ of certiorari to the Supreme Court or
for a writ of habeas corpus in the federal district court. Where pending claims
in another case may be resolved in a manner that would benefit the client,
counsel should ensure that the relevant issues are preserved and presented for
review in the clients case and, where appropriate, counsel should seek to keep
the clients post-conviction proceedings open pending the determination of the
other case.
17. Petitions and
supporting memoranda shall conform to all rules of court, including Supreme
Court Rule XXVII and shall have a professional appearance, conform to
acceptable rules of grammar, be free from typographical errors and
misspellings, shall advance argument and cite legal authority in support of
each contention. Counsel shall utilize out-of-state and federal authority in
support of positions when no local authority exists or local authority is
contrary to the weight of recent decisions from other jurisdictions. Regardless
of the existence of local authority, federal authority should also be relied
upon to present and preserve for later review any federal constitutional
claims, particularly any applicable decision of the United States Supreme
Court.
18. Counsel should be
scrupulously accurate in referring to the record and the authorities upon which
counsel relies.
19. The
post-conviction petition should clearly allege a factual basis for each claim
which, if established, would entitle the petitioner to relief and clearly
allege all facts supporting the claims in the petition. Counsel shall include
with the petition all documents and exhibits that would establish or support
the factual basis of the petitioners claims, including but not limited to court
records, transcripts, depositions, admissions of fact, affidavits, statements,
reports and other records. In determining the scope of the material to be
presented in state court, counsel shall have regard to the likelihood that
federal review will be limited to the material presented in state court and so
should not refrain from presenting any relevant material unless there are
strong strategic reasons to do so.
20. Where counsel raises a claim that has
previously been fully litigated in earlier appeal proceedings in the case,
counsel shall fully investigate, prepare and submit an argument that the claim
is nevertheless eligible for consideration in the interests of
justice.
21. Where counsel raises a
claim that was not raised in the proceedings leading to conviction or sentence,
was not pursued on appeal or was not included in a prior post-conviction
petition, counsel shall fully investigate, prepare and submit a claim that the
failure to previously raise the claim is excusable.
22. The identification and selection of
issues is the responsibility of lead counsel. Lead counsel shall adopt
procedures for providing an "issues meeting" between the attorneys handling the
case and other relevantly qualified attorneys, including at least one qualified
as lead post-conviction counsel, at which the issues raised in the case and the
defense theory in post-conviction can be discussed. The issues meeting will
ordinarily be conducted in the course of a case review meeting under these
standards but where this is not possible, the issues meeting should be
conducted independently of the case review.
23. Counsel should complete a full review of
the records of relevant proceedings, trial counsels files and the fruits of the
post-conviction investigation prior to completing a draft of the petition. Lead
counsel shall adopt a procedure for screening the petition, which should
include a careful review of the brief by an attorney not involved in drafting
the pleading. The reviewing attorney should be qualified as lead
post-conviction counsel.
24. The
review of the records and files should be completed a sufficient time before
the filing deadline to allow for the issues meeting, the drafting of the
petition, the review of the petition and the finalization of the petition. If
post-conviction counsel is unable to complete the post-conviction investigation
and prepare the petition within the existing briefing schedule in a manner
consistent with these standards and with high quality post-conviction
representation, it is counsels responsibility to file a motion to extend the
filing deadline.
25. Counsel shall
be diligent in expediting the timely submission of the post-conviction petition
and shall take all steps necessary to reduce delays and time necessary for the
processing of petitions which adversely affect the client.
26. Where counsel is unable to provide high
quality representation in post-conviction proceedings in a particular case,
counsel must promptly bring this deficiency to the attention of the capital
case supervisor and the capital case coordinator. If the deficiency cannot be
remedied then counsel must bring the matter to the attention of the court and
seek the relief appropriate to protect the interests of the client. Counsel may
be unable to provide high quality representation due to a range of factors:
lack of resources, insufficient time, excessive workload, poor health or other
personal considerations, inadequate skill or experience etc.
27. Counsel should be aware of the statute of
limitations for filing a petition for writ of habeas corpus in federal court,
and should file pleadings in state court so as to allow adequate time for
preparation and filing of such a petition if state post-conviction relief is
denied.
28. Where the state files
procedural objections or an answer on the merits, counsel should file a
response rebutting legal and factual arguments made by the state. The response
brief should not simply repeat the contents of the original petition but should
respond directly to the contentions of the state and any issues arising from
the states filing. Where appropriate, counsel should file a supplemental
petition or briefing, seeking leave to do so if required.
29. Counsel should seek such discovery,
compulsory process, requests for admissions, depositions and other orders as
are available and appropriate to the full development and presentation of all
claims in the petition and should document the denial of any such attempts to
secure facts in support of possible claims.
30. Counsel should request an evidentiary
hearing for all claims in which the state does not clearly admit the factual
allegations contained in the petition and seek to prove by admissible evidence
those factual allegations that support or establish the clients claims for
relief.
31. Where counsel is
considering seeking an evidentiary hearing, counsel should undertake a full
factual investigation of the issue for which the hearing would be sought so
that the decision as to whether to seek a hearing may be made in light of the
evidence that might be adduced at such a hearing. Where counsel does seek an
evidentiary hearing, counsel should ensure that adequate investigation and
preparation has been undertaken to allow counsel to promptly litigate the
matter if an evidentiary hearing is granted.
32. Following any evidentiary hearing,
counsel should file supplemental briefing demonstrating the clients entitlement
to relief based upon the petition filed and the evidence adduced at the
hearing.
33. Counsel should timely
make application for supervisory writs if the trial court dismisses the
petition or otherwise denies relief on an application for post-conviction
relief. Counsel should take great care to ensure that all writ applications
comply with the requirements of the relevant rules of court and present all
claims in a manner that will meet the exhaustion requirements applicable in
federal habeas corpus proceedings. Counsel should ensure that an adequate
record is created in the trial court to justify and encourage the exercise of
the supervisory jurisdiction of the reviewing court. Counsel should respond to
any state application for supervisory writs or appeal except where exceptional
circumstances justify the choice not to respond.
34. A lack of adequate time, resources or
expertise is not an adequate reason for failing to make application for
supervisory writs or failing to respond to a state application. Where counsel
lacks adequate time, resources or expertise, counsel should take all available
steps to ensure that the defense team has sufficient time, resources and
expertise, including advising the capital case supervisor of the situation and
seeking assignment of additional counsel. Counsel shall ensure that the role of
lack of time or resources upon the decision to file a writ application is
reflected in the record.
35.
Counsel shall promptly inform the client of the decision of the trial court and
any reviewing court in the client's case and shall promptly transmit to the
client a copy of the decision. Counsel should accurately inform the client of
the courses of action which may be pursued as a result of the
decision.
36. The duties of the
counsel representing the client in state post-conviction proceedings include
filing a petition for certiorari in the Supreme Court of the United States. If
post-conviction counsel does not intend to file such a petition, he or she
should immediately notify the capital coordinator and the state public
defender.
37. In preparing and
filing a petition for certiorari, counsel should consider the benefit to the
client of the support of amici and seek appropriate support where it is in the
clients interests.
38.
Post-conviction counsel should be familiar with the procedure for setting
execution dates and providing notice of them. Counsel should also be thoroughly
familiar with all available procedures for seeking a stay of execution. If an
execution date is set, counsel should immediately take all appropriate steps to
secure a stay of execution and pursue those efforts through all available
fora.
39. In the event that the
clients state post-conviction application is unsuccessful, post-conviction
counsel shall advise the client of: his right to seek federal habeas corpus
relief; the one-year statute of limitations for the filing of a petition for a
writ of habeas corpus in federal district court; and, the procedure for
assignment of counsel to represent the client in federal habeas corpus
proceedings. Having regard to tolling, counsel shall advise the client of the
actual period of time that will be remaining for filing a federal petition upon
finalization of the state post-conviction proceedings. Counsel shall provide
such advice a sufficient period prior to the finalization of state
post-conviction proceedings to allow the client to take adequate steps to
protect his rights to federal review.
40. Counsel shall promptly inform the capital
case coordinator of the disposition in any capital post-conviction
case.
41. Counsel shall take all
necessary steps to preserve the clients right to federal review, including
ensuring that the client is not time barred from seeking relief.
Post-conviction counsel shall be responsible for protecting the clients
interests in this regard, including ensuring that a federal petition is filed
while state post-conviction proceedings remain pending where the time remaining
for filing a federal petition following finalization of the state
post-conviction proceedings will be inadequate to allow a timely filing at that
time.
42. State post-conviction
counsel may continue to represent the client in his federal habeas corpus
proceedings only with the consent of the capital case coordinator and the
informed consent of the client. Adequate representation in federal habeas
corpus proceedings will include an investigation of whether state
post-conviction counsel provided ineffective assistance in failing to
adequately raise a meritorious claim of ineffective assistance of trial or
appellate counsel. Just as trial counsel is poorly placed to investigate or
litigate his or her own ineffectiveness, state post-conviction counsel may be
similarly limited. In these circumstances, the capital case coordinator should
not ordinarily consent to continuing representation by state post-conviction
counsel in the absence of: informed consent from the client obtained through
independent counsel; and, the assignment to the defense team of at least one
attorney qualified and experienced in federal habeas corpus proceedings in
capital cases who was not involved in the preparation and presentation of the
state post-conviction petition.
43.
When counsels representation terminates, counsel shall cooperate with the
client and any succeeding counsel in the transmission of the record,
transcripts, file, and other information pertinent to post-conviction
proceedings. Counsel should notify the client when the case assignment is
concluded.
44. Counsel should
closely monitor the clients competence in post-conviction proceedings, having
regard to the requirement that the client be sufficiently competent to be
lawfully executed and should investigate and litigate this issue where it is
possible that the client does not meet the necessary degree of
competence.
B. Duties of Clemency Counsel
1. Clemency counsel should be
familiar with the procedures for and permissible substantive content of a
request for clemency.
2. Clemency
counsel should conduct an investigation of matters relevant to clemency
consistent with these standards and should not assume that the investigation
conducted by prior counsel was complete or adequate.
3. Clemency counsel should ensure that
clemency is sought in as timely and persuasive a manner as possible, tailoring
the presentation to the characteristics of the particular client, case and
jurisdiction.
4. Clemency counsel
should ensure that the process governing consideration of the clients
application is substantively and procedurally just, and, if it is not, should
seek appropriate redress.
5.
Clemency counsel should fully discharge the ongoing obligations imposed by the
guidelines, and standards including the obligations to:
a. maintain close contact with the client
regarding litigation developments;
b. continually monitor the clients mental,
physical and emotional condition for effects on the clients legal
position;
c. keep under continuing
review the desirability of modifying prior counsels theory of the case in light
of subsequent developments; and
d.
continue an aggressive investigation of all aspects of the case.
AUTHORITY NOTE: Promulgated in accordance with R.S. 15:148.
Disclaimer: These regulations may not be the most recent version. Louisiana may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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