Ricky Carthan VS Jimmy Leblanc, Secretary, Department of Corrections and Risk Review Panel, State of Louisiana
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2009 CA 2100 aj RICKY CARTHAN VERSUS JIMMY LeBLANC SECRETARY DEPARTMENT OF CORRECTIONS RISK REVIEW PANEL STATE OF LOUISIANA Judgment Rendered May 7 2010 Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge Louisiana Trial Court Number 565 108 Honorable Timothy E Kelley Judge Ricky Carthan Angola LA In Proper Person Plaintiff Appellant William Kline Attorney for Defendants Appellees Baton Rouge LA Jimmy LeBlanc Secretary Dept of Corrections and Risk Review Panel State of La BEFORE WHIPPLE HUGHES AND WELCH JJ WELCH J Ricky Carthan a prisoner in the custody of the Department of Public Safety and Corrections appeals a judgment in which the district court on its own motion granted an exception of no cause of action in favor of defendants Louisiana State Public Safety and Corrections Department and Risk Review Panel of Louisiana We affirm BACKGROUND On March 14 2008 Carthan an inmate housed at the Louisiana State Penitentiary at Angola filed this petition for a writ of mandamus seeking to have the court order the Louisiana Risk Review Panel to furnish or provide him with a hearing pursuant to La R 15 Louisiana Revised Statutes 15 provides S 308 308 for the retroactive application of ameliorative penalty provisions enacted by the Legislature in 2001 and 2002 to persons sentenced to certain enumerated crimes prior to June 15 2001 It further provides that such persons shall be entitled to apply to the Louisiana Risk Review Panel pursuant to R 15 provided S 574 22 that the application ameliorates the person circumstances La R 15 s S 308 C and B However La R 15 provides that certain offenders are not S 574 G 22 eligible for review by the Risk Review Panel including those convicted of a crime defined or enumerated as a crime of violence in La R 14 as well as other S2 B persons with certain criminal histories In his petition Carthan alleged that he was entitled to a hearing before the Risk Review Panel because he was sentenced under La R 15 S 529 ii b A 1 and c provisions specifically listed in La R 15 but claimed that every ii S 308 time he applied for review of his sentence he was denied a hearing before the panel He charged that the Department violated his right to equal protection by allowing inmates sentenced under other provisions enumerated in La R 15 S 308 to seek review but denied all prisoners 2 sentenced under La R S iiand b ii 1 c the right to review and relief before the Risk Review A 529 15 Panel To his petition Carthan attached his request for an administrative remedy procedure in which he complained of being denied a hearing before the Risk Review Panel and a letter from the Angola warden to a congressman dated October 29 2007 which noted that Carthan submitted Risk Review Panel applications on May 22 2002 September 22 2006 and April 27 2007 but the panel had not yet acted on the applications In screening the petition the Commissioner observed that the petition failed to state a cause of action for mandamus relief based on a lack of facts regarding s Carthan actual eligibility for a hearing before the Risk Review Panel The Commissioner noted that Carthan failed to state the basis for the panel rejection s failed to allege that he met the requirements of La R 15 regarding his S 574 22 criminal history and failed to allege any facts that show he is entitled to relief Carthan was ordered to amend his petition to set forth a cause of action if he could by stating facts showing he is eligible for consideration by the panel under La R 15 and the Department rules including his current offense and S 574 22 s prior felony convictions Carthan was also ordered if his application to the Risk Review Panel had been denied to file a copy of the rejection or refusal denial along with the amending petition for mandamus relief to confirm that he has applied or attempted to apply for consideration by the panel and that his request was rejected In response Carthan filed an amended petition in which he stated that he applied to the Risk Review Panel over five times before with no response at all However he also alleged that the panel incorrectly interpreted the law when it refused his application for evaluation and review Carthan averred that prior to 2001 he had been convicted of attempted simple robbery and was sentenced as a fourth felony offender under La R 15 which required a S 529 ii c A 1 ki mandatory life sentence because of a crime of violence in his criminal history He attached to his petition the habitual offender bill of information setting forth his prior convictions of attempted aggravated rape theft of property valued at more than 100 but less than 500 issuing worthless checks and illegal 00 00 possession of stolen things He also attached to his petition Department Regulation No B 01 003 which sets forth numerous instances in which inmates are ineligible to apply for Risk Review Panel consideration including inmates convicted of a crime of violence as defined or enumerated in La R 14 In a second amended S 2 petition Carthan attached a document from the Louisiana State Penitentiary Classification Department regarding the status of Carthan Risk Review Panel s application with the notation not eligible In his amended petitions Carthan alleged that he is one whose condition would be ameliorated by the reduction in the severity of the habitual offender law and that Department Regulation B01 003 nullified La R 15 was discriminatory and denied those sentenced prior to S 308 the 2001 amendment of R 15 S 529 iiand c equal protection of b A 1 ii the law The Commissioner again recommended that the petition be dismissed for failure to state a cause of action finding that there is no authority for a court to review a recommendation rendered by the Risk Review Panel and that mandamus relief is not available to compel a response from the Risk Review Panel The district court on its own motion raised the exception of no cause of action and dismissed Carthan petition for failure to state a cause of action s EXCEPTION OF NO CAUSE OF ACTION The peremptory exception of no cause of action is a procedural device to test the legal sufficiency of the petition In determining whether a petition states a cause of action all well pleaded allegations of fact in the petition must be accepted as true and no reference can be made to extraneous supporting or converting E evidence The court must then determine whether the law affords any relief to the claimant if those factual allegations are true Home Distribution Inc v Dollar Amusement Inc 98 1692 p 5 La App 1st Cir 9754 So 1057 1060 99 24 2d The question on the exception is whether in the light most favorable to the plaintiff and with every doubt resolved in his behalf the petition states any valid cause of action for relief Id In this lawsuit Carthan seeks to have a court order the Risk Review Panel to give him a hearing on his application or to give consideration to his application Carthan insists that he is entitled to be heard before the Risk Review Panel to present evidence to have his sentence ameliorated He claims that he is not asking for a court to order that he receive a favorable recommendation from the panel but to clarify the eligibility of persons sentenced under La R 15 S 529 ii b 1 A and c prior to 2001 In brief Carthan states that the basis for rejection of his ii application was violent criminal history He contends that there is a conflict in the law between La R 15 which denies inmates with certain criminal S 574 G 22 histories the right to apply to the Risk Review Panel for review of their sentences and La R 15 which gives inmates who received harsher sentences the S 308 opportunity to have their sentences reduced in accordance with the ameliorative legislation He also contends he has been denied equal protection of the law because no inmate who has been sentenced under La R 15 S 529 ii b A 1 and c who would benefit from the ameliorative penalty provisions has ii received a hearing from the Risk Review Panel on an application for sentence review In Weaver v LeBlanc 20090244 La App lst Cir 9 22 So 09 14 3d 1014 this court rejected a similar argument Therein an inmate complained that his application had been denied by the panel based on his extensive criminal history and argued that because all persons sentenced under the habitual offender 5 law had an extensive criminal history to deny his application for that reason was clearly contrary to the legislative intent in passing La R 15 This court S 308 assuming that the inmate did not have any prohibiting crimes that would prohibit the Risk Review Panel ability to review his application found that an inmate s does not have a cause of action for mandamus relief to compel the Risk Review Panel to hold a hearing on an application for review to order that the Risk Review Panel review an inmates case or to order the panel to grant a favorable recommendation to the Parole and Pardon Board Weaver 2009 0244 at pp 3 5 22 So at 1016 1017 In so doing this court looked to the history behind the 3d enactment of the ameliorative penalty provisions and the legislation creating the Risk Review Panel observing that the panel duty is limited in part to evaluating s inmates who have not been convicted of a violent crime Weaver 2009 0244 at p 3 22 So at 1016 emphasis in original This court concluded that the only duty 3d the law clearly states the panel must perform is to review a qualified applicant s application and that there is no legal authority for a court to compel any other action by the Risk Review Panel Weaver 2009 0244 at p 5 22 So at 1017 3d The allegations of Carthan petition disclose that he is not entitled to seek s review of his sentence before the Risk Review Panel because he has been convicted of a crime of violence as defined by La R 14 namely attempted S 2 B aggravated rape Louisiana Revised Statutes 15 declares that persons G 22 574 convicted of a crime defined or enumerated as a crime of violence in La R S B 2 14 are not eligible for review by the Risk Review Panel Because La R S 22 574 15 prohibits the Risk Review Panel ability to review inmates with certain s criminal histories and Carthan has been convicted of one of the prohibiting crimes he clearly is not entitled to the mandamus relief he seeks Moreover even if Carthan was not statutorily prohibited from demanding that the Risk Review Panel review his application Weaver makes it clear that a district court is without power 0 to order the Risk Review Panel to hold a hearing on Carthan risk review s application or to order the Risk Review Panel to review his case Therefore the district court properly found that Carthan does not have a cause of action to obtain the relief he seeks in this lawsuit CONCLUSION For these foregoing reasons we hold that the district court properly dismissed Carthan petition for mandamus relief on the basis it failed to state a s cause of action All costs of this appeal are assessed to petitioner Ricky Carthan AFFIRMED 7
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