Clerk of Court For the Court State Of Louisiana v. Fabio Ferreira

The Supreme Court of the State of Louisiana
Clerk of Court
For the Court
STATE OF LOUISIANA
VS.
FABIO FERREIRA
No.2019-KP-01929
_ _ _ _ _ _
IN RE: State of Louisiana - Applicant Plaintiff; Applying For Supervisory Writ,
Parish of Orleans Criminal, Criminal District Court Number(s) 489- 173, Court of
Appeal, Fourth Circuit, Number(s) 2019-K-0875;
_ _ _ _ _ _
October 14, 2020
Writ application granted. See per curiam.
JHB
BJJ
JLW
JDH
SJC
JTG
WJC
Supreme Court of Louisiana
October 14, 2020
10/14/2020 "See News Release 039 for any Concurrences and/or Dissents."

10/14/20
S
UPREME COURT OF LOUISIANA
N
o. 2019-KP-01929
S
TATE OF LOUISIANA
v
ersus
F
ABIO FERREIRA
O
N SUPERVISORY WRITS TO THE CRIMINAL
DISTRICT COURT, PARISH OF ORLEANS
P
ER CURIAM:
Wr
it granted. In 2009, defendant, a resident alien in the United States, pleaded
guilty to simple burglary of an inhabited building, La.R.S. 14:62.2. In 2018, he filed an
application for post -conviction relief in which he claimed he received ineffective
assistance of counsel when he pleaded guilty because counsel did not advise him that
he would lose his permanent resident status, citing Lee v. United States, 532 U.S. —,
137 S.Ct. 1958, 198 L.Ed.2d 476 (2017). He was subsequently removed from the
United States.
Defendant’s guilty plea was final and the post-conviction limitations period had
passed by the time he filed his application for post-conviction relief. Nonetheless, the
district court granted the application and vacated the plea, accepting defendant’s
argument that an exception to the limitations period applied, La.C.Cr.P. art.
930.8(A)(2),
1 because the application was filed within one year of Lee v. United States.
1 Code of Criminal Procedure art. 930.8 provides:
A. N
o application for post-conviction relief, including applications which seek an
out-of-time appeal, shall be considered if it is filed more than two years after the
judgment of conviction and sentence has become final under the provisions of
Article 914 or 922, unless any of the following apply:
. . .

2

In Lee, the United States Supreme Court found that Jai Lee had adequately
demonstrated a reasonable probability that he would have rejected a plea offer and
pleaded not guilty had he known that the guilty plea would lead to mandatory
deportation—even though Lee had no viable defense and would have been highly
likely to lose at trial. Lee, 542 U.S. at —, 137 S.Ct. at 1967–68. The court decided Lee
after it had held in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284
(2010), that counsel must inform her client whether his plea carries a risk of
deportation: “Our longstanding Sixth Amendment precedents, the seriousness of
deportation as a consequence of a criminal plea, and the concomitant impact of
deportation on families living lawfully in this country demand no less.” Id., 559 U.S. at
374, 130 S.Ct. at 1486.
In Chaidez v. United States , 568 U.S. 342, 358, 133 S.Ct. 1103, 1113, 185
L.Ed.2d 149 (2013), the United States Supreme Court found, under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), that defendants whose
convictions became final prior to Padilla cannot benefit from its holding. Likewise,
defendants whose convictions became final prior to Lee cannot benefit from its
holding. In Lee, the court simply refused to adopt the government’s proposed “per se
rule that a defendant with no viable defense cannot show prejudice from the denial of
his right to trial.” Lee, 542 U.S. at —, 137 S.Ct. at 1966. The court explained that the
government’s position was contrary to existing precedent. See id., explaining that
“common sense (not to mention our precedent) recognizes that there is more to
consider than simply the likelihood of success at trial.”
Because Lee no more established a theretofore unknown interpretation of

2) The claim asserted in the petition is based upon a final ruling of an appellate
court establishing a theretofore unknown interpretation of constitutional law and
petitioner establishes that this interpretation is retroactively applicable to his case,

3

constitutional law that is retroactively applicable than Padilla did, the district court
erred in failing to deny defendant’s application for post-conviction relief as barred by
the limitations period. Accordingly, we grant the State’s application and we vacate the
district court’s ruling, which set aside defendant’s guilty plea. We reinstate defendant’s
2009 guilty plea to simple burglary of an inhabited building, La.R.S. 14:62.2, and we
dismiss defendant’s application for post-conviction relief.
Defendant 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 25 1 amended that article to make the procedural bars against successive
filings mandatory. Applicant’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 e xceptions authorizing the filing of a successive application applies,
applicant has exhausted his right to state collateral review. The district court is ordered
to record a minute entry consistent with this per curiam.

and the petition is filed within one year of the finality of such ruling.