Opinion
NO. 2013 KW 1004
08-15-2013
STATE OF LOUISIANA v. NICHOLAS PIERRON
In Re: Nicholas Pierron, applying for supervisory writs, 32nd Judicial District Court, Parish of Terrebonne, No. 402, 807.
BEFORE: WHIPPLE, C.J., WELCH AND CRAIN, JJ.
WRIT DENIED. Federal courts have concluded Missouri v. Frye, __ U.S. __, 132 S. Ct. 1399, 182 L.Ed.2d 379 (2012) does "not announce a new rule of constitutional law [because it] merely applied the Sixth Amendment right to effective assistance of counsel according to the test first articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984), and established in the plea-bargaining context in Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)." Hare v. United States, 688 F.3d 878, 879 (7th Cir. 2012). See also In re Perez, 682 F.3d 930 (11th Cir. 2012) (per curiam); In re King, 697 F.3d 1189 (5th Cir. 2012) (per curiam). Furthermore, a pleading's nature is determined by its substance and not its caption. See State ex rel. Lay v. Cain, 96-1247 (La. App. 1st Cir. 2/14/97), 691 So.2d 135, 137; State ex rel. Daley v. State, 97-2612 (La. 11/7/97), 703 So.2d 32. If the inmate files a pleading that requests postconviction relief, the pleading should be treated as such, including the application of the time limit of La. Code Crim. P. article 930.8. See State v. Jarrow, 2004-0483 (La. 9/24/04), 882 So.2d 1160). Relator's ineffective assistance of counsel claim is in the nature of postconviction relief. Accordingly, the trial court did not err in treating relator's filing as an application for postconviction relief and in denying relator's application for postconviction relief as untimely under La. Code Crim. P. art. 930.8(A).
WJC
VGW
JEW
COURT OF APPEAL, FIRST CIRCUIT ____________________
DEPUTY CLERK OF COURT
FOR THE COURT