Joseph E. Dickerson Versus Tim Hooper, Warden Louisiana State Penitentiary

JOSEPH E. DICKERSON NO. 21-KH-740

VERSUS FIFTH CIRCUIT

TIM HOOPER, WARDEN LOUISIANA STATE COURT OF APPEAL

PENITENTIARY STATE OF LOUISIANA

January 12, 2022

Susan Buchholz
First Deputy Clerk

IN RE JOSEPH E. DICKERSON

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE RAYMOND S.
STEIB, JR., DIVISION "A", NUMBER 96-2035

Panel composed of Judges Fredericka Homberg Wicker,
Jude G. Gravois, and John J. Molaison, Jr.

WRIT GRANTED; RULING VACATED; MATTER REMANDED

On June 3, 1998, relator, Joseph Dickerson, was found guilty by a
jury of second degree murder (La. R.S. 14:30.1) and was sentenced to
life imprisonment at hard labor without the benefit of parole, probation,
or suspension of sentence. Relator’s conviction and sentence were
affirmed by this Court on January 28, 2000. State v. Dickerson, 99-353
(La. App. 5 Cir. 1/28/00), 751 So.2d 425. On January 12, 2001, the
Louisiana Supreme Court denied writs. State v. Dickerson, 00-0750
(La. 1/12/01), 778 So.2d 1153, reconsideration denied (La. 3/23/01),
787 So.2d 1005, cert. denied, Dickerson v. Louisiana, 533 U.S. 957,
121 S.Ct. 2608, 150 L.Ed. 2d 763 (2001). Relator filed subsequent
applications for post-conviction relief (“APCRs”), which were denied.
Dickerson v. State of Louisiana, 09-KH-97 (La. App. 5 Cir. 8/25/11)
(unpublished writ disposition); Dickerson v. Vannoy, 20-KH-282 (La.
App. 5 Cir. 9/16/20) (unpublished writ disposition).

According to the instant application, relator filed a third APCR on
October 29, 2021. The trial court denied the APCR as time-barred,
pursuant to La. C.Cr.P. art. 930.8, in a judgment dated November 4,
2021. Specifically, the trial court observed that relator’s claims did not
meet an exception to La. C.Cr.P. art. 930.8, because there was no
indication of when relator obtained the 2012 news article and pre-2012
blog post, which he asserted was new evidence of his innocence and
misconduct by the investigating detective in his case. The trial court

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found that relator failed to meet his burden under La. C.Cr.P. art. 930.2.
The trial court also noted that his claim was repetitive, as he had
previously argued it without success.

In his current APCR, relator specifically asserted a claim of
“factual innocence” pursuant to La. C.Cr.P. art. 926.2. Article 926.2
provides, in pertinent part:

A. A petitioner who has been convicted of an offense may
seek post conviction relief on the grounds that he is
factually innocent of the offense for which he was
convicted. A petitioner’s first claim of factual
innocence pursuant to this Article that would otherwise
be barred from review on the merits by the time
limitation provided in Article 930.8 or the procedural
objections provided in Article 930.4 shall not be barred
if the claim is contained in an application for post
conviction relief filed on or before December 31, 2022,
and if the petitioner was convicted after a trial
completed to verdict. This exception to Articles 930.4
and 930.8 shall apply only to the claim of factual
innocence brought under this Article and shall not apply
to any other claims raised by the petitioner. …

B.(1)(a) To assert a claim of factual innocence under this
Article, a petitioner shall present new, reliable,
and noncumulative evidence that would be
legally admissible at trial and that was not
known or discoverable at or prior to trial and that
is either:

(i) Scientific, forensic, physical, or
nontestimonial documentary evidence.

(ii) Testimonial evidence that is corroborated by
evidence of the type described in Item (i) of
this Subsubparagraph.

(b) To prove entitlement to relief under this Article,
the petitioner shall present evidence that satisfies
all of the criteria in Subsubparagraph (a) of this
Subparagraph and that, when viewed in light of
all of the relevant evidence, including the
evidence that was admitted at trial and any
evidence that may be introduced by the state in
any response that it files or at any evidentiary
hearing, proves by clear and convincing
evidence that, had the new evidence been
presented at trial, no rational juror would have
found the petitioner guilty beyond a reasonable
doubt of either the offense of conviction or of
any felony offense that was a responsive verdict
to the offense of conviction at the time of the
conviction.

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(2) A recantation of prior sworn testimony may be
considered if corroborated by the evidence required by
Subsubparagraph (1)(a) of this Paragraph. However, a
recantation of prior sworn testimony cannot form the
sole basis for relief pursuant to this Article. …
After a review of the application, including the exhibits, and the
trial court’s ruling thereon, we find that the trial court failed to
specifically address whether the time-bar exception to La. C.Cr.P. arts.
930.4 and 930.8 contained in La. C.Cr.P. art. 926.2 applies to relator’s
claim of “factual innocence” brought in his APCR pursuant to Article
926.2. Accordingly, we grant the writ, vacate the trial court’s
November 4, 2021 ruling on relator’s current APCR, and remand the
matter for the trial court to address whether the time-bar exception to
Articles 930.4 and 930.8 contained in Article 926.2 applies to relator’s
claim of “factual innocence” brought in his APCR pursuant to Article
926.2, and if so, to rule on the merits of relator’s claim.

Gretna, Louisiana, this 12th day of January, 2022.

JGG
FHW

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JOSEPH E. DICKERSON NO. 21-KH-740

VERSUS FIFTH CIRCUIT

TIM HOOPER, WARDEN LOUISIANA STATE COURT OF APPEAL

PENITENTIARY STATE OF LOUISIANA

MOLAISON, J., DISSENTS WITH REASONS
I respectfully dissent from the majority’s disposition that this matter requires a

remand.

The newly revised text of La. C.Cr.P. art. 926.2, in relevant part, only

pertains to “A petitioner's first claim of factual innocence.” [Emphasis added.]

The article then specifies:

B. (1)(a) To assert a claim of factual innocence under this
Article, a petitioner shall present new, reliable, and noncumulative
evidence that would be legally admissible at trial and that was not
known or discoverable at or prior to trial and that is either:
(i) Scientific, forensic, physical, or nontestimonial documentary
evidence.
(ii) Testimonial evidence that is corroborated by evidence of the
type described in Item (i) of this Subsubparagraph.

The instant writ application itself, and this Court’s own rulings, clearly show that

the claim before the trial court was not being raised for the first time, and was

not based on “new” evidence. The relator has, in fact, raised identical issues of

perjury, and alleged witness coercion by the investigating detective, in his

previous applications for post-conviction relief (“APCRs”) which date back to

2004.

Relevant procedural history

In Dickerson v. State of Louisiana, 04-KH-528 (La. App. 5 Cir.

5/28/04)(unpublished writ disposition); writ denied, State ex rel. Dickerson v.

Cain, 04-1607 (La. 11/15/04), 887 So.2d 476, this Court observed, “Relator

21-KH-740

claims that he was denied due process and prejudiced by the knowing use of

false testimony. Relator now asserts that the eyewitness recanted his trial

testimony, alleging that he (the witness) was coerced into identifying the

defendant and testifying against him at trial.”

Next, in Dickerson v. State of Louisiana, 04-KH-632 (La. App. 5 Cir.

6/10/04)(unpublished writ disposition), writ transferred, State ex rel. Dickerson

v. State, 08-1861 (La. 2/20/09), 1 So.3d 477, reconsideration granted, writ

denied, 08-WR-1131 C/W 09-KH-97, (La. App. 5 Cir. 4/25/11)(unpublished

writ disposition), writ denied, State ex rel. Dickerson v. State, 11-2066 (La.

5/18/12), 89 So.3d 1186, the relator asserted identical claims in a section entitled

“Coercion and Perjury.” This Court again denied the relator’s claims as

repetitive and, on May 13, 2005, the Louisiana Supreme Court denied relator's

writ of certiorari as repetitive, citing LSA-C.Cr.P. art. 930.4.

More recently, in Dickerson v. Vannoy, 20-KH-282 (La. App. 5 Cir.

9/16/20)(unpublished writ disposition), the relator again argued in his writ

application to this Court that “The new facts [are that] former Detective Grey

Thurman is now known for manufacturing evidence, coercing false statements,

and suppressing favorable evidence during his lead investigation of homicide

cases. In denying that writ application, which notably included the two members

of the majority in the instant application, this Court opined:

Relator alleges that his claims are based on new facts. However, the writ
application submitted to this Court does not contain any evidence of new
facts discovered within two years of the filing of relator’s second APCR
as required by La. C.Cr.P. art. 930.8(A)(1).

21kh740

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As stated in the relator’s current application, his claim is: “Eliminate the

false evidence created by Thurman's corruption and there is sufficient evidence

to establish Dickerson is Factually Innocent.” The only “new” evidence that the

relator provides are photocopies of two internet articles that are not directly

related to his case.

The claim of actual innocence

I believe that, prior to the recent amendment of La. C.Cr.P. art. 926.2,

there would be little argument that the claims raised in the relator’s third APCR

would by repetitive under La. C.Cr.P. art. 930.4 and untimely under La. C.Cr.P.

art. 930.8. The relator argues, however, that the trial court erred in denying

relief pursuant to La. C.Cr.P. arts. 930.4 and 930.8, because La. C.Cr.P. arts

926.2 allows a claim of actual innocence to proceed in spite of those limitations.

I conclude that the relator has not met the criteria of 926.2 because: 1) This is not

the first time he has advanced these claims, and; 2) His “new evidence” does not

meet the required definition.

The question then becomes whether the relator can avoid the application

of 930.4. and 930.8 merely by stating his claim is one of “actual innocence.” In

this case, I think that the issue is one of semantics and not substance. I would

suggest the relator is availing himself of the new statute by “repackaging”

otherwise repetitive claims. As observed by the Louisiana Supreme Court in

State v. Conway, 01-2808 (La. 4/12/02), 816 So.2d 290, 291, a bona fide claim

of actual innocence must involve evidence that is “new, material, [and]

noncumulative.”

The trial court’s judgment

The trial court did not articulate any findings about “actual innocence” in

its reasons for judgment. Yet the court’s conclusion, that the relator raises

repetitive claims and that there was no new evidence, are both correct. As such,

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the relator has not shown that he is entitled to relief under La. C.Cr.P. art. 926.2.

Accordingly, the limitations of articles 930.4 and 930.8 would apply, reaching

the result rendered by the trial court. Even in the absence of a discussion of

926.2 in the trial court’s reasons for judgment, as a reviewing court we are not

bound to determine relief on that basis. As we observed in State v. Gravois, 17-

341 (La. App. 5 Cir. 12/13/17), 234 So. 3d 1151, 1160, writ denied, 2018-0100

(La. 3/23/18), 239 So. 3d 292, and writ denied, 18-0080 (La. 3/23/18), 239 So.3d

298:

We note that appellate Courts do not review reasons for judgment as a part
of the judgment itself. La. –C.C.P. art. 1918; Burmaster v. Plaquemines
Parish Government, 07-1311 (La. 8/31/07), 963 So.2d 378, 379. The
written reasons for judgment are merely an explication of the trial court's
determinations. State in the Interest of Mason, 356 So.2d 530, 532 (La.
App. 1 Cir. 1977).

Conclusion

Given that the trial court correctly found that the relator’s most recent

APCR claims are repetitive, and therefore do not fit the criteria of La. C.Cr.P.

art. 926.2, I fail to see the necessity of remanding this matter to the trial court for

yet another review of these particular claims. I would deny the instant

application on the showing made, for the reasons stated above.

JJM

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SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. 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 01/12/2022 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:

21-KH-740
E-NOTIFIED
24th Judicial District Court (Clerk)
Hon. Raymond S. Steib, Jr. (DISTRICT JUDGE)
Thomas J. Butler (Respondent)

MAILED
Joseph E. Dickerson #126166 (Relator)
Louisiana State Penitentiary
Angola, LA 70712