Cheri Hayden Versus Frederick Boutte, Warden

CHERI HAYDEN NO. 22-KH-244

VERSUS FIFTH CIRCUIT

FREDERICK BOUTTE, WARDEN COURT OF APPEAL

STATE OF LOUISIANA

May 23, 2023

Linda Wiseman
First Deputy Clerk

ON APPLICATION FOR REHEARING

Panel composed of Susan M. Chehardy,
Fredericka Homberg Wicker, and Jude G. Gravois

REHEARING GRANTED FOR CLARIFICATION

FHW
SMC
JGG

WICKER, J.

The State of Louisiana petitions this Court for a rehearing of our April 26,

2023 decision, which granted Cheri Hayden’s writ application, vacated Cheri

Hayden’s conviction and sentence, and remanded the matter for a new trial. We

grant rehearing for the limited purpose of clarifying this Court’s writ disposition. In

all other respects, the application for rehearing is denied and our original writ

disposition remains unchanged.

In its application for rehearing, the State re-urges arguments made in

opposition to Cheri Hayden’s application for supervisory review and previously

reviewed by this Court. We decline to grant rehearing on these issues. However,

this Court’s original writ disposition contained a typographical error, appearing on

page 45 in the first sentence of this Court’s conclusion, and which the State

complains of on rehearing. This Court’s original writ disposition stated:

The record in Cheri Hayden’s case is replete with evidence
supportive of Cheri Hayden’s entitlement to a new trial; and
although the inadequate police investigation and the prosecution’s
withholding of material and favorable evidence in this case merit
granting Cheri Hayden a new trial, we find that the real harm to Cheri
Hayden’s case was the deficient performance of Cheri Hayden’s trial
counsel.

(Emphasis added). The State’s rehearing application asserts that the emphasized

language constitutes a judicial finding on issues this Court expressly pretermitted

discussion of in its analysis of Cheri Hayden’s claims on supervisory review.

Therefore, the opinion is amended to delete any suggestion that this Court’s finding

is based on any claim asserted by Cheri Hayden other than her ineffective assistance

of counsel claim. Accordingly, we correct the typographical error in the

complained-of language and add the word “may,” to wit:

The record in Cheri Hayden’s case is replete with evidence supportive
of Cheri Hayden’s entitlement to a new trial; and although the
inadequate police investigation and the prosecution’s withholding of
material and favorable evidence in this case may merit granting Cheri

22-KH-244 1

Hayden a new trial, we find that the real harm to Cheri Hayden’s case
was the deficient performance of Cheri Hayden’s trial counsel.

(Emphasis added).

For the foregoing reasons, we grant rehearing for the limited purpose of

clarifying this Court’s writ disposition, as noted supra. In all other respects, the

application for rehearing is denied and our original writ disposition remains

unchanged.

REHEARING GRANTED FOR CLARIFICATION

22-KH-244 2

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
CORNELIUS E. REGAN, PRO TEM 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 05/23/2023 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:

22-KH-244
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable Stephen D. Enright, Jr. (District Judge)
Charell D. Arnold (Relator) Anne M. Wallis (Respondent) Thomas J. Butler (Respondent)

MAILED
Jee Y. Park (Relator) Honorable Paul D. Connick, Jr.
Attorney at Law (Respondent)
Innocence Project New Orleans District Attorney
4051 Ulloa Street Twenty-Fourth Judicial District
New Orleans, LA 70119 200 Derbigny Street
Gretna, LA 70053