State of Louisiana Versus Darwin L. Bethune

Fifth Circuit Court of Appeal
State of Louisiana

No. 26-KH-413

STATE OF LOUISIANA
VERSUS
DARWIN L. BETHUNE

IN RE DARWIN L. BETHUNE
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT
COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE E.
ADRIAN ADAMS, DIVISION "G", NUMBER 14-2923

September 17, 2026

Panel composed of Judges Susan M. Chehardy,
Stephen J. Windhorst, and Scott U. Schlegel

WRIT DENIED

Defendant-relator, Darwin L. Bethune, seeks supervisory review of the

district court’s order denying his application for post-conviction relief (APCR). We

deny the writ.

Facts and Procedural History

On June 5, 2014, a Jefferson Parish Grand Jury returned an indictment

charging relator with one count of second-degree murder in violation of La. R.S.

14:30.1. On October 5, 2017, a Jefferson Parish Grand Jury returned a superseding

indictment charging relator with second-degree murder in violation of La. R.S.

14:30.1, obstruction of justice in violation of La. R.S. 14:130.1, and inciting a

felony in violation of La. R.S. 14:28. On April 16, 2018, pursuant to a negotiated

26-KH-413

plea agreement, relator pled guilty to manslaughter and was sentenced to thirty

years imprisonment at hard labor.1

Relator filed his first APCR in 2019, which the district court denied. On

supervisory review, this Court granted the writ in part and remanded to the district

court for a hearing to determine whether relator was entitled to an out-of-time

appeal. State v. Bethune, 20-83 (La. App. 5 Cir. 4/16/20) (unpublished writ

disposition). On September 22, 2020, the district court granted relator an out-of-

time appeal. On appeal, this Court affirmed relator’s conviction and sentence. State

v. Bethune, 21-25 (La. App. 5 Cir. 11/10/21), 330 So.3d 1236. Relator did not file a

writ application with the Louisiana Supreme Court.

Relator filed another APCR with the district court on November 20, 2023,

which he supplemented on September 9, 2024, raising claims of ineffective

assistance of counsel and Boykin2 violations. On January 6, 2025, the State filed its

response, arguing that relator’s claims were procedurally barred or, alternatively,

without merit. On January 16, 2026, relator filed another supplement to his APCR

in which he raised the following claims: (1) illegal acquisition of cell site location

information; (2) Brady3 violation; (3) perjured testimony; (4) involuntary guilty

plea; (5) unlawful warrantless canine-assisted search; and (6) prosecutorial

misconduct.4 On May 26, 2026, the State filed a supplemental response arguing

that relator’s additional claims were without merit. On June 8, 2026, the district

court denied relief, stating: “Petitioner has not presented sufficient evidence in

1
The State amended the indictment to reflect that relator was nolle prossed as to the
counts of obstruction of justice and inciting a felony.
2
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
3
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (State’s
suppression of evidence that is favorable to the accused after receiving a request for such
evidence violates a defendant’s due process rights where the evidence is material to either guilt
or punishment, without regard to the good or bad faith of the prosecutors).
4
Relator’s application does not include a “copy of each pleading on which the judgment,
order, or ruling was founded” as required by Uniform Rules – Court of Appeal, Rule 4-5(C)(8).
However, a copy of relator’s original APCR and his supplements to the APCR filed in the
district court are available in the official record.
2

support of his claims, and thus has not met his burden” under La. C.Cr.P. art.

930.2.5

On July 8, 2026, relator filed a notice of intent with the district court. On

July 14, 2026, the district court found that relator’s request “may be timely”

because “no service” was “reflected in the court record,” and set an extended return

date for August 31, 2026. On September 3, 2026, relator’s writ application,

postmarked August 31, 2026,6 was stamped as filed with this Court. In it, relator

re-urges the claims he raised in the district court.

Discussion

First, relator contends the State illegally obtained his cell site location

information (CSLI), and that the State’s entire case relied on this evidence.

As an initial matter, when a defendant pleads guilty, he waives all non-

jurisdictional defects in the proceedings leading up to the guilty plea, and the

review of such defects either by appeal or through post-conviction relief is

precluded.7 State v. Turner, 09-1079 (La. App. 5 Cir. 7/27/10), 47 So.3d 455, 459.

Furthermore, as the district court pointed out, relator’s claim is procedurally barred

from review under La. C.Cr.P. art. 930.4(B) and (C), by raising a claim about

which he knew but inexcusably failed to raise in the proceedings leading to

conviction or on appeal.8 Nevertheless, because relator raises his CSLI claim along

5
La. C.Cr.P. art. 930.2 states: “The petitioner in an application for post-conviction relief
shall have the burden of proving that relief should be granted.”
6
To determine timeliness, the actual date of filing for pleadings filed by inmates is the
date the pleading is delivered to prison authorities. See Houston v. Lack, 487 U.S. 266, 108 S.Ct.
2379, 101 L.Ed.2d 245 (1988); State ex rel. Johnson v. Whitley, 92-2689 (La. 1/6/95), 648 So.2d
909; Shelton v. Louisiana Department of Corrections, 96-348 (La. App. 1 Cir. 2/14/97), 691
So.2d 159.
7
In addition, counsel for relator did not preserve for appellate review any pretrial rulings,
including the ruling on relator’s motions to suppress. See State v. Crosby, 338 So.2d 584 (La.
1976). Under Crosby, a defendant may be allowed appellate review if, at the time he enters a
guilty plea, he expressly reserves his right to appeal a specific adverse ruling in the case. State v.
Williams, 18-137 (La. App. 5 Cir. 9/19/18), 254 So.3d 1260, 1265.
8
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 shall deny relief.” La. C.Cr.P. art. 930.4(C) provides: “If the application
alleges a claim which the petitioner raised in the trial court and inexcusably failed to pursue on
appeal, the court shall deny relief.”
3

with several other claims in the context of an ineffective assistance of counsel

claim,9 we address the issue.

At the time of the offense, January of 2014, the State’s request for non-

content information, i.e., cell site location information (CSLI), was not subject to

the search warrant requirement. See State v. Marinello, 09-1260 (La. App. 3 Cir.

10/6/10), 49 So.3d 488, writ denied, 10-2494 (La. 3/25/11), 61 So.3d 660, and writ

denied, 10-2534 (La. 3/25/11), 61 So.3d 661, in which the Third Circuit found that

the State was not required to obtain records regarding the defendant’s cellular

telephone activity from the cellular telephone company through a warrant rather

than subpoena. However, in 2018, the United States Supreme Court held that a

warrant supported by probable cause is generally required before cell phone

location records from a third-party provider can be acquired. Carpenter v. United

States, 585 U.S. 296, 138 S.Ct. 2206, 201 L.Ed.2d 507 (2018). Importantly,

Carpenter did not retroactively invalidate searches conducted before the change in

the jurisprudence. See State v. Davis, 18-485 (La. App. 5 Cir. 4/10/19), 269 So.3d

1123, 1134-35, writ denied, 19-716 (La. 11/12/19), 282 So.3d 229.

Here, on January 3, 2014, the State obtained relator’s CSLI from two of his

cell phones pursuant to a court order for a subpoena duces tecum after officers had

interviewed relator that same day. While relator maintains that the court orders are

dated January 8, 2014, relator has not shown how the date discrepancy, standing

alone, would render the acquisition of his CSLI invalid, particularly when a

subsequent search warrant and a police report refer to the application for the court

9
The general rule that a guilty plea waives all non-jurisdictional defects includes all
claims of ineffective assistance of counsel, except when the ineffectiveness is alleged to have
rendered the guilty plea involuntary. See State ex rel. Knight v. Frederick, 21-1061 (La.
11/23/21), 328 So.3d 71. See also United States v. Palacios, 928 F.3d 450, 455 (5th Cir. 2019).
Here, relator does not contend that counsel’s ineffectiveness rendered his guilty plea involuntary.
Nevertheless, the Supreme Court has held that a defendant’s entry of a counseled plea of guilty
did not serve to waive a post-conviction ineffective-assistance claim. Hill v. Lockhart, 474 U.S.
52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). See also State v. West, 09-2810 (La. 12/10/10), 50
So.3d 148, 149 (“When a defendant enters a counseled plea of guilty, this court will review the
quality of counsel’s representation in deciding whether the plea should be set aside.”).
4

orders on January 3, 2014. We agree with the district court’s conclusion that

Commissioner Joyce, who signed the orders, “erroneously affixed an ‘8’ instead of

a ‘3’ on the orders, as it is illogical that the police would legally obtain two court

orders for the CSLI in question, but illegally acquire the same information days

before.” Under these circumstances, relator’s claim is speculative and conclusory,

and relator fails to meet his post-conviction burden of proof. See La. C.Cr.P. art.

930.2.

In a related claim, relator suggests that the State’s illegal acquisition of his

CSLI constituted a Brady violation. In Brady, 373 U.S. at 87, 83 S.Ct. at 1197, the

United States Supreme Court held that the State’s suppression of evidence

favorable to the accused after it receives a request for such evidence violates a

defendant’s due process rights where the evidence is material to either guilt or

punishment, without regard to the good or bad faith of the prosecutors.

Here, relator’s Brady claim fails because relator pled guilty. A guilty plea

constitutes a waiver of all non-jurisdictional defects, including the right to contest

pretrial discovery violations. See, e.g., United States v. Conroy, 567 F.3d 174, 178

(5th Cir. 2009), cert. denied, 559 U.S. 941, 130 S.Ct. 1502, 176 L.Ed.2d 117

(2010) (“[A] guilty plea precludes the defendant from asserting a Brady

violation.”); United States v. Meza, 843 F.App’x 592, 599 n.3 (5th Cir. 2021), cert.

denied, -- U.S. --, 142 S.Ct. 259, 211 L.Ed.2d 118 (2021) (“It is well-established

that a defendant’s guilty plea waives his pre-plea rights to Brady material.”). In any

event, the State disclosed the CSLI records to the defense. Thus, even if relator had

not pled guilty, thereby waiving his right to claim a Brady violation, relator cannot

show that a Brady violation occurred.

Additionally, relator claims that Detective Francis offered perjured testimony

at the motion to suppress hearing when he confirmed that relator’s CSLI was

obtained pursuant to a court order for a subpoena duces tecum. Relator relies on

5

Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), in which

the Supreme Court held that where a prosecutor allows a state witness to give false

testimony without correction, a reviewing court must reverse the conviction if the

witness’s testimony reasonably could have affected the jury’s verdict, even if the

testimony goes only to the credibility of the witness.

Relator offers no legal support to show that Napue applies to guilty pleas.

See United States v. Estey, 2023 WL 2823993, at *7 n.2 (W.D. Ky. Apr. 7, 2023),

in which the federal district court reasoned:

It is true that prosecutorial misconduct may arise in certain
contexts where information the government believes or knows
to be false is nonetheless presented, but the presentation must
occur at trial. Cf. Napue v. Illinois, 360 U.S. 264 (1959), Giglio
v. United States, 405 U.S. 150, 154 (1972). This precedent does
not squarely apply in other contexts, such as plea negotiations.

In any event, relator’s claim that Detective Francis misrepresented how relator’s

CSLI was obtained, standing alone, does not establish that the witness lied or that

the State suborned perjury. See Kutzner v. Cockrell, 303 F.3d 333, 337 (5th Cir.

2002), cert. denied, 536 U.S. 978, 123 S.Ct. 14, 153 L.Ed.2d 877 (2002)

(“Importantly, due process is not implicated by the prosecution’s introduction or

allowance of false or perjured testimony unless the prosecution actually knows or

believes the testimony to be false or perjured; it is not enough that the testimony is

challenged by another witness or is inconsistent with prior statements.”). We find

no merit in relator’s Napue claim.

Relator also argues that the police illegally recovered ballistic evidence, i.e.,

a copper projectile, when a canine sniff was conducted on the flowerbed belonging

to the victim’s next-door neighbor.

Interpreting Louisiana Constitution Article I, § 5, the Louisiana Supreme

Court has held that a defendant adversely affected by the search of another’s home

has standing under the Louisiana Constitution to assert a homeowner’s loss of

6

privacy rights. State v. Gant, 93-2895 (La. 5/20/94), 637 So.2d 396, 397; State v.

Owen, 453 So.2d 1202, 1205 (La. 1984). This added standing provision in the

Louisiana Constitution is therefore contrary to the federal rule that an accused may

not raise the violation of a third person’s Fourth Amendment rights for the

suppression of evidence. See Owen, supra.

The curtilage of a home is that “area to which extends the intimate activity

associated with the sanctity of a man’s home and the privacies of life.” State v.

Salinas, 17-485 (La. App. 5 Cir. 7/6/18), 251 So.3d 1166, 1177 n.8, writ denied,

18-1301 (La. 4/8/19), 267 So.3d 614 (citing United States v. Dunn, 480 U.S. 294,

107 S.Ct. 1134, 94 L.Ed.2d 326 (1987)). The curtilage is considered part of the

home itself and therefore is afforded Fourth Amendment protection. Id. To

determine whether an outside area is part of the curtilage or extension of the

residence’s living area, courts look at four factors to evaluate how intimately the

area is tied to the home itself: (1) the area’s proximity to the home; (2) whether the

area is included within an enclosure surrounding the home; (3) whether the area is

being used for the intimate activities of the home; and (4) the steps taken by the

resident to protect the area from observation by passers-by. Id.

In Florida v. Jardines, 569 U.S. 1, 133 S.Ct. 1409, 1417, 185 L.Ed.2d 495

(2013), the Supreme Court held that an officer’s use of a drug-sniffing dog on the

front porch of a home violated the Fourth Amendment because the officer’s

“behavior objectively reveal[ed] a purpose to conduct a search.” In doing so, the

Supreme Court found that the front porch was part of the home’s curtilage, which

is treated as part of the home itself for Fourth Amendment purposes. On the other

hand, areas outside the curtilage, such as front yards, do not receive the same

Fourth Amendment protection. See United States v. Hayes, 551 F.3d 138, 145 (2d

Cir. 2008) (“The sanctuary of the home simply does not extend to the front yard.”);

Reeves v. Churchich, 484 F.3d 1244, 1255 (10th Cir. 2007) (holding the front yard

7

was not part of curtilage where there was no evidence establishing that the front

yard was enclosed, used for intimate activities, or protected from observation);

State v. Paulson, 98-1854 (La. App. 1 Cir. 5/18/99), 740 So.2d 698, 701 (finding a

defendant had no reasonable expectation of privacy in plants grown in garden plots

in his front yard, accessible through a non-gated driveway, where “[a]ny person,

including mail carriers, delivery people, or neighbors, could have entered” and

observed them).

Here, the canine sniff was conducted on a flower bed in front of a house.

There is no indication that the flower bed was fenced off and shielded from public

view or that the neighbor had a protected curtilage interest in an open-front flower

bed. Thus, on the showing made, relator’s claim of an illegal search is without

merit.

Next, relator maintains that his guilty plea was involuntary. However, as the

district court found, relator raised this claim on appeal, and this Court determined

“that defendant’s plea was entered into freely and voluntarily.” Bethune, 330 So.3d

at 1244. Because relator’s involuntary-plea claim was fully litigated on appeal, it is

precluded from post-conviction review under La. C.Cr.P. art. 930.4(A).10

Relator also asserts that the State committed prosecutorial misconduct by

unlawfully detaining a potential witness, Jasmin Williams, who was coerced by

police into providing information about relator.

As a general rule, a defendant adversely affected by a statement unlawfully

obtained from another under the Fifth or Sixth Amendments, or under Article I, §

16 of the Louisiana Constitution, lacks standing to raise its illegality. See State v.

Neal, 25-157 (La. App. 5 Cir. 5/27/25), 2025 WL 1504861, at *2-3, writ denied,

25-800 (La. 10/1/25), 417 So.3d 575. However, in Neal, this Court pointed out that

10
La. C.Cr.P. art. 930.4(A) provides: “Any claim for relief which was fully litigated in an
appeal from the proceedings leading to the judgment of conviction and sentence shall not be
considered.”
8

the Supreme Court had “reserved judgment on whether ‘gross police misconduct

against third parties in the overly zealous pursuit of criminal convictions might

lead to limited standing.’” 2025 WL 1504861, at *5-6 (quoting State v. Burdgess,

434 So.2d 1062, 1065 (La. 1983)). This Court further stated: “This dicta has since

been acknowledged by Louisiana courts, but each court declined to reach the issue,

finding that the alleged misconduct did not rise to the level necessary to potentially

trigger limited standing.” 2025 WL 1504861, at *6.

Here, relator’s general and conclusory claims of misconduct, standing alone,

do not trigger the limited standing discussed in Neal. In fact, the State’s discovery

inventory lists a copy of a “Rights of Arrestee or Suspects” form for Ms. Williams,

negating any suggestion of gross police misconduct that could establish limited

standing. As such, relator fails to meet his post-conviction burden of proof under

La. C.Cr.P. art. 930.2.

Next, relator claims counsel rendered ineffective assistance by failing: (1) to

preserve relator’s right to challenge the district court’s ruling denying his motion to

suppress via a Crosby plea; (2) to seek supervisory review of the district court’s

ruling denying his motions to suppress his statement; (3) to file a motion to

suppress the projectile; (4) to investigate the Napue violation; and (5) to challenge

his Boykin colloquy.

Under the Sixth Amendment to the United States Constitution and Article I,

§ 13 of the Louisiana Constitution, a defendant is entitled to effective assistance of

counsel. State v. Casimer, 12-678 (La. App. 5 Cir. 3/13/13), 113 So.3d 1129, 1141.

To prove ineffective assistance of counsel, a defendant must satisfy the two-prong

test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). Casimer, 113 So.3d at 1141. Under the Strickland test, the

defendant must show: (1) that counsel’s performance was deficient, that is, the

performance fell below an objective standard of reasonableness under prevailing

9

professional norms; and (2) that the deficient performance prejudiced the defense.

Id. When a defendant claims that counsel’s ineffective assistance rendered a guilty

plea invalid, the Strickland analysis under the first deficiency prong remains the

same, whereas under the second prejudice prong, “the defendant must show that

there is a reasonable probability that, but for counsel’s errors, he would not have

pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474

U.S. 52, 58-59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985).

Although relator complains that counsel should have requested a Crosby

plea, the Supreme Court in Crosby held, “the [district] court has very great and

virtually unreviewable discretion to reject rather than accept a guilty plea

conditioned upon reservation of appellate review of pre-plea assignments of non-

jurisdictional error.” 338 So.2d at 590. Here, relator makes no showing that such a

plea was viable. See La. C.Cr.P. art. 930.2. On the other hand, relator, who faced a

charge of second-degree murder and a life sentence, pleaded guilty to a reduced

charge of manslaughter and a 30-year sentence pursuant to the plea bargain his

counsel negotiated.

With respect to counsel’s failure to file additional motions to suppress or to

seek supervisory review, as a general matter, the filing of motions is squarely

within the ambit of trial strategy. State v. Pendelton, 96-367 (La. App. 5 Cir.

5/28/97), 696 So.2d 144, 156, writ denied, 97-1714 (La. 12/19/97), 706 So.2d 450.

Furthermore, relator’s attempt to re-purpose his claims of illegal search, Napue

violation, and improper Boykin colloquy as a collective claim for ineffective

assistance of counsel is also without merit. See State v. Williams, 613 So.2d 252,

256-57 (La. App. 1st Cir. 1992) (“When the substantive issue that an attorney has

not raised has no merit, then the claim that the attorney was ineffective for failing

to raise the issue also has no merit.”). Relator’s ineffective assistance of counsel

claim does not entitle him to relief.

10

Relator further asserts that he was not given an opportunity to respond to the

State’s supplemental brief before the district court issued a ruling denying his

APCR. In State v. Terry, 458 So.2d 97, 100 (La. 1984), the Supreme Court

explained that La. C.Cr.P. art. 927 was enacted to allow the district court to rule

without the petitioner’s presence in court; its purpose was not to serve as a

prerequisite to the district court’s exercise of its constitutional authority. Thus,

while La. C.Cr.P. art. 927(B) permits the State to file an answer to a relator’s

APCR, there is no codal provision mandating a response from a relator.

Relator also complains that the district court did not conduct an evidentiary

hearing. However, a district court may dispose of the petition for relief summarily

if the factual and legal issues can be resolved based upon the application and

answer, and the supporting documents, including relevant transcripts, depositions,

and other reliable documents submitted by either party or available to the court. La.

C.Cr.P. art. 929(A). Given that the issues relator has raised lack merit, we find the

district court acted within its discretion when resolving relator’s claims without

conducting an evidentiary hearing. See State ex rel. Tassin v. Whitley, 602 So.2d

721, 722 (La. 1992).

For the foregoing reasons, the writ is denied.

Gretna, Louisiana, this 17th day of September, 2026.

SMC
SJW
SUS

11

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. TRAN
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 09/17/2026 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:

26-KH-413
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable E. Adrian Adams (DISTRICT JUDGE)
Darren A. Allemand (Respondent)

MAILED
Darwin L. Bethune #700630 (Relator)
Rayburn Correctional Center
27268 Highway 21
Angie, LA 70426