Bernis Brown Versus Tim Hooper, Warden Lsp

BERNIS BROWN NO. 24-KH-494

VERSUS FIFTH CIRCUIT

TIM HOOPER, WARDEN LSP COURT OF APPEAL

STATE OF LOUISIANA

October 25, 2024

Susan Buchholz
Chief Deputy Clerk

IN RE BERNIS BROWN

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE FRANK A.
BRINDISI, DIVISION "E", NUMBER 90-3893

Panel composed of Judges Jude G. Gravois,
Scott U. Schlegel, and Timothy S. Marcel

WRIT DENIED

Relator, Burnis Brown, seeks this Court’s supervisory review of the trial

court’s August 2, 2024 ruling which denied his application for post-conviction

relief (“APCR”). For the following reasons, we find no error in the court’s ruling

and thus deny the writ application.

FACTS AND PROCEDURAL BACKGROUND

On February 8, 1991, relator pled guilty to two counts of first degree

murder. Pursuant to a plea agreement, the trial court sentenced relator to life

imprisonment at hard labor without the benefit of parole, probation, or suspension

of sentence on each count. The court also ordered the sentences to run

concurrently with each other. Relator did not file a motion for an appeal.

On July 26, 2024, relator filed an APCR with the trial court based on his

claim of newly discovered evidence pursuant to La. C.Cr.P. art. 930.8(A)(1),

which allows a defendant to file an APCR more than two years after his conviction

and sentence become final where “[t]he application alleges, and the petitioner

proves or the state admits, that the facts upon which the claim is predicated were

not known to the petitioner or his prior attorneys.” Specifically, relator claimed

that he recently learned that the record in his case does not contain documentation

of the number of grand jury members who voted to indict him for first degree

murder, in violation of his right to due process and equal protection under La.

C.Cr.P. arts. 383, 435, and 444.1 On August 2, 2024, the court denied relief, first

finding that relator “fail[ed] to meet any exceptions to timeliness” pursuant to La.

C.Cr.P. art. 930.8.2 The court also found that relator’s claim was procedurally

barred as successive, citing La. C.Cr.P. art. 930.4, because relator’s claim was

“known or should have been known to him, yet w[as] not included in any of his

previously filed APCRs.”3 The court also found that relator was not entitled to

relief because he failed to meet his burden of proof pursuant to La. C.Cr.P. art.

930.2.4

In his writ application, relator complains that the court erred by denying his

claim based on newly discovered facts showing that the number of grand jury

members who voted to indict him for first degree murder was unrecorded by the

Clerk of Court.

1
Pursuant to La. C.Cr.P. art. 383, in pertinent part, “[a]n indictment is a written
accusation of crime made by a grand jury. It must be concurred in by not less than nine of the
grand jurors, indorsed ‘a true bill,’ and the indorsement must be signed by the foreman.” La.
C.Cr.P. art. 435 provides, in pertinent part: “Nine grand jurors shall constitute a quorum, and
nine grand jurors must concur to find an indictment.” La. C.Cr.P. art. 444 provides, in pertinent
part: “At least nine members of the grand jury must concur in returning ‘a true bill’ or ‘not a true
bill.’”
2
Relator’s writ application does not include a copy of the trial court’s August 2, 2024 ruling in
compliance with Uniform Rules–Courts of Appeal, Rule 4-5(C)(6), which requires a “copy of
the judgment, order, or ruling complained of (if by written judgment, order, or ruling).”
However, a copy of the ruling is available in relator’s official record.
3
La. C.Cr.P. art. 930.4(B) provides: “If the application alleges a claim of which the
petitioner had knowledge and inexcusably failed to raise in the proceedings leading to
conviction, the court may deny relief.”
4
La. C.Cr.P. art. 930.2 provides “The petitioner in an application for post-conviction
relief shall have the burden of proving that relief should be granted.”

ANALYSIS

La. C.Cr.P. art. 930.8(A) provides, in pertinent part: “No 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.” In the instant case, relator’s

convictions and sentences became final in 1991. Thus, as the court found, relator’s

APCR filed in 2024 is untimely.

Relator however contends that his claim concerning the grand jury

indictment falls under the “facts not known” exception of La. C.Cr.P. art.

930.8(A)(1). In support of his claim, relator relies on a letter from the 24th

Judicial District Court Clerk of Court, dated October 19, 2023, which states:

In regards to your request for a copy of minutes or documents
reflecting a True Bill of Indictment was found by no less than nine
members of the Grand Jury, the Clerk’s Office is only in possession of
the Grand Jury return minute entry reflecting the name and number of
Grand Jurors that were present for the return and the signature of the
Grand Jury Foreperson on the Bill of Indictment.

The record of this case does not contain any documents which reflect
the number of Grand Jury members who voted for the Indictment.
In the instant writ application, relator gives no explanation as to why he did

not request documentation of the number of grand jury members who voted for the

indictment until 2023—more than thirty years after his 1991 guilty pleas and

sentencing. Furthermore, from relator’s official record, it appears that he requested

and received copies of the grand jury indictment and related minute entries in 2012

and 2017. As such, relator does not meet the diligence requirement of La. C.Cr.P.

art. 930.8(A)(1), which provides, in pertinent part:

[T]he petitioner shall prove that he exercised diligence in attempting
to discover any post conviction claims that may exist. “Diligence” for
the purposes of this Article is a subjective inquiry that shall take into
account the circumstances of the petitioner. Those circumstances
shall include but are not limited to the educational background of the
petitioner, the petitioner’s access to formally trained inmate counsel,
the financial resources of the petitioner, the age of the petitioner, the
mental abilities of the petitioner, or whether the interests of justice

will be served by the consideration of new evidence. New facts
discovered pursuant to this exception shall be submitted to the court
within two years of discovery.

Additionally, a defendant’s late realization that an error may have occurred

at trial does not qualify as discovery of a new fact for purposes of Article

930.8(A)’s exception. State v. Parker, 98-256 (La. 5/8/98), 711 So.2d 694, 695

(per curiam). Thus, relator fails to show that the Clerk of Court’s recent

confirmation that the number of votes was not recorded with respect to his grand

jury indictment now exempts him from the post-conviction two-year limit.

CONCLUSION

Upon review, on the showing made, we conclude that there was no error in

the ruling of the trial court. Accordingly, this writ application is denied.

Gretna, Louisiana, this 25th day of October, 2024.

JGG
SUS
TSM

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
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL 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 10/25/2024 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:

24-KH-494
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable Frank A. Brindisi (DISTRICT JUDGE)
Thomas J. Butler (Respondent)

MAILED
Bernis Brown #292270 (Relator)
Louisiana State Penitentiary
Angola, LA 70712