Michael Penson VS Robert Y. Henderson, Warden, C. Paul Phelps Correctional Center and Louisiana Board of Probation & Parole
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 2276 MICHAEL PENSON VERSUS ROBERT Y HENDERSON WARDEN C PAUL PHELPS CORRECTIONAL CENTER AND LOUISIANA BOARD OF PROBATION AND PAROLE Judgment Rendered JUN 1 1 2010 On Appeal from the Nineteenth Judicial District Court In and for the East Baton Rouge State of Louisiana Docket No 575 596 Honorable Janice Clark Judge Presiding Michael Penson Dequincy Louisiana James D Buddy Caldwell PlaintiffAppellant In Proper Person Attorney General Counsel for Defendant Appellee Louisiana Department of Probation Baton Rouge Louisiana and Parole Douglas G Swenson Assistant Attorney General Baton Rouge Louisiana BEFORE DOWNING GAIDRY AND McCLENDON JJ McCLENDON J Michael Penson an inmate in the custody of the Department of Public Safety and Corrections appeals the district court ruling dismissing his petition s for review of a parole revocation For the reasons that follow we affirm FACTS AND PROCEDURAL HISTORY Penson filed a Petition for Judicial Review on February 20 2009 seeking review of a November 13 2008 decision of the Louisiana Board of Parole the Board revoking his parole Penson alleged that the revocation proceedings were improperly instituted and that his due process rights were violated during the revocation proceeding On May 15 2009 the Board filed a Motion to Dismiss because Penson petition was not filed within 90 days of the final revocation as s required by LSAR 15 On September 16 2009 the district court in S 574 11 conformity with the Commissioner recommendation dismissed the appeal s finding that it had been perempted under LSAR 15 Penson has S 574 D 11 filed the instant appeal to seek review of the district court ruling that dismissed s his petition DISCUSSION To properly assert his right to review of the Board decision a parolee is s required to file a petition for judicial review in district court alleging that his right to a revocation hearing was denied or the procedural due process protections specifically afforded by LSAR 15 in connection with such a hearing S 574 9 were violated LSAR 15 and Leach v Louisiana Parole Bd 07 S 574 C 11 0848 La 1 Cir 6 991 So 1120 1124 writ denied 08 2385 La App 08 2d 09 12 8 17 So 378 and writ denied 08 2001 La 12 23 So 947 3d 09 18 3d Otherwise the parolee has no right to an appeal LSAR 15 S 574 A 11 Louisiana Revised Statutes 15 provides the following delays for D 11 574 appealing to the district court Petitions for review that allege a denial of a revocation hearing under the provisions of R 15 shall be subject to a S 574 9 peremptive period of ninety days after the date of revocation by the Board of Parole When revocation is based upon the conviction of a new felony while on parole the ninety peremptive period day 2 shall commence on the date of final judgment of the new felony Petitions for review filed after this peremptive period shall be dismissed with prejudice Service of process of petitions for review shall be made upon the chairman of the Board of Parole or his designee Penson does not claim that his petition for review was timely filed Rather he asserts that he was unable to keep up with time limits because of inter facility transfers Penson also alleges that he was unable to obtain audio recordings from the revocation hearing in order to affirm or dispute the Board accusations s We note that the plain language of LSAR 15 S 574 Dprovides that 11 the time period provided therein is peremptive In Naghi v Brener 08 2527 La 6 17 So 919 the Louisiana Supreme Court explained the 09 26 2d difference between prescription and peremption as follows Although prescription prevents the enforcement of a right by legal action it does not terminate the natural obligation La C art 1762 peremption however extinguishes or destroys the 1 right La art 3458 Public policy requires that rights to which C peremptive periods attach are to be extinguished after passage of a specified period Accordingly nothing may interfere with the running of a peremptive period It may not be interrupted or suspended nor is there provision for its renunciation And exceptions such as contra non valentum are not applicable As an inchoate right prescription on the other hand may be renounced interrupted or suspended and contra non valentum applies an exception to the statutory prescription period where in fact and for good cause a plaintiff is unable to exercise his cause when it accrues Id 082527 at pp 67 17 So at 923 c 3d d Hosp 486 So 717 723 La 2d 1986 Hebert v Doctors Memorial Accordingly regardless of whether Penson had a right to appeal under LSAR 15 s appeal filed S 574 CPenson 11 with the district court was untimely and thus perempted under LSAR S D 11 574 15 CONCLUSION For the foregoing reasons we affirm the judgment of the district court Costs of this appeal are assessed against Michael Penson AFFIRMED 3
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