State of Louisiana Versus Marvin Robinson

STATE OF LOUISIANA NO. 23-KH-185

VERSUS FIFTH CIRCUIT

MARVIN ROBINSON COURT OF APPEAL

STATE OF LOUISIANA

April 12, 2023

Linda Wiseman
First Deputy Clerk

IN RE MARVIN ROBINSON

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE DONALD A.
ROWAN, JR., DIVISION "L", NUMBER 05-2673

Panel composed of Judges Susan M. Chehardy,
Stephen J. Windhorst, and John J. Molaison, Jr.

WRIT GRANTED, WITH INSTRUCTIONS

Relator, Marvin Robinson, seeks supervisory review of the district
court’s ruling denying his motion for in forma pauperis status and for a free
transcript of the post-conviction evidentiary hearing, as well as his motion for an
extension of the return date.

Relator has requested expedited consideration of his writ application because
the current return date of seeking review of his APCR is April 17, 2023, and the
court reporter will not produce the transcript of the post-conviction hearing without
a fifty percent deposit of the estimated fee ($1,000.00) to produce the transcript.
According to relator, he cannot seek review of the district court’s denial of his
post-conviction claim without a transcript of the hearing, which he contends he
cannot afford.

In a prior writ application, 20-KH-427, this Court granted relator’s writ
application ordering the district court judge to conduct an evidentiary hearing on
relator’s claim of ineffective assistance of counsel under State v. Harris, 18-1012
(La. 7/9/20), 340 So.3d 845. Thereafter, on March 17, 2023, an evidentiary
hearing was held in the district court during which relator purportedly submitted
numerous documentary exhibits and the testimony of his brother. Relator contends
that while the State did not call any witnesses to testify, it submitted several
exhibits. Relator claims that at the conclusion of the hearing, the district court
denied his claim for relief, providing oral reasons. The district court did not issue
written reasons. Relator contends the transcript is the only means by which he can
seek this Court’s review. Relator orally noticed his intent to seek supervisory
writs, and was granted thirty days, or until April 17, 2023, to do so.

23-KH-185

Relator’s counsel notified the court reporter of the need for the transcript to
file relator’s writ application and was told that it would take thirty days to
complete, but a fifty percent deposit of the estimated fee for the transcript was
required before she would begin preparing it. At that time, counsel informed the
court reporter of relator’s intent to move for a free transcript due to his indigency.

On April 4, 2023, relator filed a motion for in forma pauperis status and free
transcript of the post-conviction evidentiary hearing. He also moved for an
extension of the pending return date in order to give the court reporter sufficient
time to complete the transcript. The State did not respond to the motions, either
challenging relator’s indigency status or his right to the transcript at no cost. The
district court summarily denied relator’s motions, without reasons.

In the instant writ application, relator challenges the district court’s ruling
(1) denying his request to proceed in forma pauperis and to a free copy of the
transcript of the March 17, 2023 evidentiary hearing, and (2) denying his request
for an extension of the return date to file his writ application challenging the denial
of his APCR based on his claim of ineffective assistance of counsel under Harris,
supra.

In his motion for in forma pauperis status filed in the district court, citing
State ex rel. Simmons v. State, 93-275 (La. 12/16/94), 647 So.2d 1094, 1095,
relator asserted that he was indigent and, thus, was entitled to a copy of the
transcript of his post-conviction hearing at no cost to him. Attached to relator’s
motion is his in forma pauperis affidavit, signed and notarized on March 30, 2023,
attesting that he is incarcerated with no source of income.

Although as a general matter incarcerated indigents must demonstrate a
particularized need for a court document before receiving a copy of it free of
charge, the Supreme Court has established exceptions to that rule. State ex rel.
Simmons v. State, 94-2630 (La. 12/16/94), 647 So.2d 1094, 1095 (per curiam).
Thus, indigent inmates must be provided with “copies of transcripts of evidentiary
hearings held on their applications for post conviction relief.” Id.; see State v.
Feet, 617 So.2d 921 (La. 1993); see also, State ex rel. Nguyen v. State, 13-1256
(La. 11/15/13), 125 So.3d 1097.1

Accordingly, we grant relator’s writ application and the district court is
instructed to provide relator with a free copy of the transcript of the evidentiary
hearing conducted on March 17, 2023, on his application for post-conviction relief
related to his claim of ineffective assistance of counsel. Additionally, because the
court reporter has advised that she needs at least thirty days to complete the
transcript of the evidentiary hearing, we grant relator’s request for an additional
forty-five days from the date of this disposition to file his writ application
1
The district court may, however, decline to order cost-free production of documents under
Simmons “in cases in which the time limitations period of [Article] 930.8[A] has expired, unless the
relator has made a showing of particularized need by filing an application which would fall under the
exceptions of [Article] 930.8A [(1-4)] and which needs the requested documents to support it.” State ex
re. Fleury v. State, 93-2898 (La. 10/13/95), 661 So.2d 488. See also State ex rel. Brown v. State, 03-2568
(La. 3/26/04), 870 So.3d 976, 977 (per curiam); State ex rel. Jones v. State, 13-1634 (La. 1/27/14), 131
So.3d 52. Here, although the official record indicates the State raised an objection as to the untimeliness
of relator’s application for post-conviction relief, the record shows the district court denied the objection
and proceeded with the evidentiary hearing on the merits. Consequently, we find Simmons applies and
relator, an indigent inmate, is entitled to a copy of the transcript free of charge.

2

challenging the district court’s March 17, 2023 ruling denying relator’s application
for post-conviction relief.

Gretna, Louisiana, this 12th day of April, 2023.

SMC
SJW
JJM

3

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

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DAY 04/12/2023 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:

23-KH-185
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24th Judicial District Court (Clerk)
Honorable Donald A. Rowan, Jr. (DISTRICT JUDGE)
Thomas J. Butler (Respondent)
Christopher F. Edmunds (Relator)

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