Roy Murphy VS James LeBlanc, Secretary Department of Corrections
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NOT DESIGNATED FOR PUBLICATION E STAT OF LOUISIAN A COLTRT OF A PPEAL T FIRS CIRCUIT NO 2013 CA 0324 ROY MURPHY VERSUS JAMES LEBLANC SECRETARY DEPARTMENT OF CORRECTIONS NQV Judgment Rendered 20 On Appeal from 1 I 19 Judicial District Court In and far East Baton Rouge Parish State of Louisiana Trial Court No 613 269 The Honarable William Morvant Judge Presiding Roy Murphy Winnfield Louisiana Appellant Plaintiff In Proper Person William Kline Attorney for DefendanUAppellee Louisiana Department of Corrections Baton Rouge Louisiana BEFORE J WHIPPLE C WELCH AND CRAIN JJ CRAIN J Roy Murphy appeals the judgment of the district court dismissing his petition for judicial review in which he requested issuance of a writ of habeas corpus Murphy contends that he was convicted of aggravated rape a violation of Louisiana Revised Statute 14 and was sentenced to fifty years imprisonment 42 with the Department of Public Safety and Corrections Murphy alleges that his continued custody is illegal because he was charged by bill of information rather than indictment and because the Sheriff of the parish in which he was convicted did not tender appropriate paperwork to the Department as required by Louisiana Code of Criminal Procedure article 892 the failure of which amounts to the Department having refused custody of him The district court dismissed Murphy suit without service for failure to state s a cause of action for release or damages and for raising the damage claim in the wrong venue and proceeding The court adopted the written recommendation of the court commissioner who noted that numerous complaints had been filed by s inmates claiming that because they were charged by bill of information the Sheriffs in the parishes of their convictions failed to tender the Department with a grand jury indictment as required by Article 892 meaning that the Department s current custody is illegal The same substantive issue was recently considered by this court in Lewis v Secretary Louisiana State Dept of Public Safety and Corrections 12 1890 2013 WL2488464 La App 1 Cir 6 unpublished wherein this court found 13 7 Article 892 requires that the sheriff transmit certain documents to the Department upon delivery of a prisoner including a of copy the indictment under which the defendant was convicted Appellant alleged that his commitment papers were deficient because they included only a bill of information rather than an indichnent This argument lacks merit because under Louisiana Code of Criminal Procedure article 934 6the term indictment by definition includes a bill of information unless there is a clear intent to restrict the term to the finding of a grand jury which is clearly not the case in Article z 892 Moreover even if proper documentation had not been prepared and delivered to the Department in accordance with Article 892 such failure would not affect the validity of appellant convictions or s sentences which constitute the legal authority far the Department s custody See La art 892 Roland v Stalder 10 p 3 P Cr C D 0957 Appellant failed to establish his claim that he has never been accepted into the App La lst 11 25 3 Cir unpublished s Department custody For the same reasons we find no merit to Murphy claims and affirm the s judgment of the district court that dismissed Murphy sdemands at his cost The district court additionally assessed Murphy with a strike pursuant to the Prison Litigation Reform Act See La R 15 However the assessment of S 1187 a strike is a sanction applicable only in suits in which an inmate challenges prison conditions or officials actions affecting the lives of those confined in prison Manuel v Stalder 04 La App 1 Cir 12 928 So 2d 24 27 1920 OS 22 28 rederick F v Ieyoub 99 La App 1 Cir 5 762 So 2d 144 150 writ 0616 00 12 denied 00 La 4 789 So 2d 581 Since Murphy suit does not fall 18ll O1 12 s into that category the district court erred in assessing a strike against him Far the faregoing reason the September 6 2012 judgment of the district court dismissing Murphy petition for judicial review is affirmed That portion of s the district court judgment assessing a strike against Murphy is reversed This s memorandum opinion is issued in compliance with Uniform Rules Courts of Appeal Rule 2 All costs of this appeal are assessed to Roy Murphy 1B 16 AFFIRMED IN PART REVERSED IN PART 3
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