State vs. Bernard Noble

http://caselaw.findlaw.com/la-court-of-appeal/1658445.html

https://www.viceland.com/en_us/video/the-war-on-weed/56cdd1948af2fa0f2200ba52

http://www.theadvocate.com/new_orleans/news/courts/article_9a0d11fe-bb04-11e6-b197-536e4914dc75.html

 

I placed in the mail 3/20/2017 a signed Motion by Bernard Noble to the Orleans Parish Criminal district Court Section L court to comply with the law. (Attached).  (Background Louisiana v Noble  https://casetext.com/case/state-v-noble-100 )

 

Bernard  Noble Uniform Application for Post Conviction Relief has neither been affirmed or denied. Judge Franz L. Zibilich may think it is, but Noble’s case is not closed.  A reduction of sentence is not post-conviction relief. Judge Zibilich has denied Noble equal protection of the law. A phone call to the court would tell you if Nobles Application is still part of the docket record.  Clerk of Section L (504)658-9035.  

 

The Uniform Application for Post-Conviction approved by the Supreme Court of Louisiana does not comply with state statute CCRP Art 930.3. The application has substituted the word “may” for “shall”. This is a critical part of the application because it list the grounds for relief.

 

 “The word “shall” is intended to impose binding obligations”Commentary to Canon 1, of the Code of Judicial Conduct https://www.lasc.org/rules/supreme/cjc.asp.

 

The use of “may” means discretion as in the right to council. CCRP Art.930.7 which the petitioner was granted.       

                         

The state statute CCRP Art. 930.3.  says; If the petitioner is in custody after sentence for conviction for an offense, relief shall be granted only on the following grounds.” Mr. Noble selected (5) “The statute creating the offense for which he was convicted and sentenced is unconstitutional.”;  CCRP Art. 930.3.(5) https://legis.la.gov/legis/Law.aspx?d=112944.

On page four of the Application, CLAIMS FOR RELIEF It says: “The following is a list of those claims, and only those claims, that “may” provide you with grounds for relief.” http://www.lasc.org/rules/supreme/appA.pdf

 

 

IN THE ORLEANS PARISH CRIMINAL DISTRICT COURT SECTION L
STATE OF LOUISIANA

 

BERNARD NOBLE               )

Applicant/Petitioner               )

)

V                                 )                                   Docket No. 501-594
                                                )

STATE OF LOUISIANA        )
Respondent                             )

MOTION FOR THE COURT TO COMPLY WITH LOUISIANA CCRP ARTICLES 924 -930.8,  AND SHALL ORDER THE RESPONDENT TO ANSWER ON THE MERITS

OF BERNARD NOBLE’S CLAIMS FOR POST CONVICTIOPN RELIEF ART. 927 A

 

Reduced sentence is not post-conviction relief.

 

The Uniform Application for Post-Conviction approved by the Supreme Court of Louisiana does not comply with state statute CCRP Art 930.3. The application has substituted the word “may” for “shall”. “The word “shall” is intended to impose binding obligations”, Commentary to Canon 1, of the Code of Judicial Conduct https://www.lasc.org/rules/supreme/cjc.asp. The use of “may” means discretion as in the right to council. CCRP Art.930.7

 

On page four of the Application, CLAIMS FOR RELIEF It says: “The following is a list of those claims, and only those claims, that may provide you with grounds for relief”. http://www.lasc.org/rules/supreme/appA.pdf.

 

The state statute CCRP Art. 930.3.  says; “If the petitioner is in custody after sentence for conviction for an offense, relief shall be granted only on the following grounds.” I selected (5) “The statute creating the offense for which [I] was convicted and sentenced is unconstitutional.”;  CCRP Art. 930.3.(5) https://legis.la.gov/legis/Law.aspx?d=112944.

 

The application alleges the facts upon which the claim is predicated were not known to the petitioner. CCRP  Art. 930.8 A.(1)

 

“A judge shall respect and comply with the law…” CCRP Art.924-930.8. CANON 2 A  https://www.lasc.org/rules/supreme/cjc.asp

Upon the state courts, equally with the courts of the Union, rests the obligation to guard, enforce, and protect every right granted or secured by the Constitution

1

of the United States, whenever those rights are involved in any suit or proceeding before them, for the judges of the state courts are required to take an oath to support that Constitution. They are bound by it, … as the supreme law of the land. Mr. Justice Harlan in Robb v. Connolly 111 U.S. 624, 637(1884);

I have establish a claim, which relief can be granted. The marijuana possession law I was convicted of is unreasonable use of state police power contravening the Fourth and Fourteenth Amendments of the Constitution of the United States and is unconstitutional. I am being illegally deprived of my liberty without reason, a compelling state interest, without due process of law.

The right of the people to be secure in their persons, houses papers and effects against unreasonable searches shall not be violated. No state shall deprive a person life, liberty, and property without due process of law nor deny equal protection of law.

 My application has alleged a claim established by the deprivation of my liberty, has entitled me to relief,  and “the court shall order the custodian, through the district attorney in the parish in which the defendant was convicted, … an answer on the merits …within a specified period not in excess of thirty days”. Art. 927 A. I request five days to respond.

 

The right of due process of law, I am entitled to judicial relief.  I have a right to know the reasons, the compelling state interest  for criminalizing marijuana and the use of state police power to deprive me of my liberty for seven plus years for possessing 2-3 grams of marijuana. OR relief declaring the Louisiana marijuana possession law I was convicted of is unreasonable and unconstitutional violating the Fourth and Fourteenth Amendments of the Constitution of the United States. That my conviction for possessing marijuana is overturned and I am being illegally detained.

The court can determine that the factual and legal issues can be resolved based upon the application and answer. CCRP Art. 929.  Summary disposition

 

A copy of the judgment granting or denying relief and written or transcribed reasons for the judgment shall be furnished to the petitioner, the district attorney, and the custodian. CCRP Art. 930.1.  


Public defender is not needed for this motion. Please reply to me.

Respectfully submitted. 

 

Dated :                       

                                                            Bernard Noble # 291798

LaSalle Correctional Center
15976 Highway 165
Olla, Louisiana 71465

2

TITLE XXXI-A POST CONVICTION RELIEF

 

Art. 924.  Definitions As used in this Title:

(1)  An "application for post conviction relief" means a petition filed by a person in custody after sentence following conviction for the commission of an offense seeking to have the conviction and sentence set aside.

(2)  "Custody" means detention or confinement, or probation or parole supervision, after sentence following conviction for the commission of an offense.

 

Art. 926.  Petition .D.  The petitioner shall use the uniform application for post conviction relief approved by the Supreme Court of Louisiana.  

 

Art. 927.  Procedural objections; answer A.  If an application alleges a claim which, if established, would entitle the petitioner to relief, the court shall order the custodian, through the district attorney in the parish in which the defendant was convicted, … an answer on the merits …within a specified period not in excess of thirty days.

 

Art. 929.  Summary disposition  A.  If the court determines that the factual and legal issues can be resolved based upon the application and answer,

 

Art. 930.1.  Judgment granting or denying relief under Articles 928, 929, and 930 A copy of the judgment granting or denying relief and written or transcribed reasons for the judgment shall be furnished to the petitioner, the district attorney, and the custodian.

 

Art. 930.2.  Burden of proof. The petitioner in an application for post conviction relief shall have the burden of proving that relief should be granted.

 

Art. 930.3.  Grounds If the petitioner is in custody after sentence for conviction for an offense, relief shall be granted only on the following grounds:(1) -4 deleted) (5)  The statute creating the offense for which he was convicted and sentenced is unconstitutional; or (6)-(7)

 

Art. 930.7.  Right to counsel A.  If the petitioner is indigent and alleges a claim which, if established, would entitle him to relief, the court may appoint counsel.

 

Art. 930.8.  Time limitations; exceptions; prejudicial delay

A.  No application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of Article 914 or 922, unless any of the following apply:

 (1)  The application alleges, and the petitioner proves or the state admits, that the facts upon which the claim is predicated were not known to the petitioner or his attorney.

 

3

IN THE ORLEANS PARISH CRIMINAL DISTRICT COURT SECTION L
STATE OF LOUISIANA

 

BERNARD NOBLE               )

Applicant                                )

V                                 )                                   Docket No. 501-594
                                                )

STATE OF LOUISIANA        )
Respondent                             )

MEMORANDUM OF LAW IN SUPPORT OF MOTION

TO COMPY TITLE XXXI-A Art.927

Upon the state courts, equally with the courts of the Union, rests the obligation to guard, enforce, and protect every right granted or secured by the Constitution of the United States, whenever those rights are involved in any suit or proceeding before them, for the judges of the state courts are required to take an oath to support that Constitution. They are bound by it, … as the supreme law of the land. Robb v. Connolly 111 U.S. 624, 637(1884) Zwickler v. Koota, 389 U.S. 241 248 (1967) 

“One’s right to life, liberty, and property, may not be submitted to vote; they depend on the outcome of no elections.” West Virginia Board of Education v. Barnette, 319 U.S. 624, 638 1943 .“Such rights … do not vanish simply because the power of the state is arrayed against them. Nor are they enjoyed in subjection to mere legislative findings.” Nebbia v. New York, 291 U.S. 502, 548; 54 S.Ct. 505 (1934).

Amendment IV: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated …

 

Amendment XIV section 1 Because all persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall … deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

 

By the term “liberty,” as used in the provision, … [is] freedom from physical restraint or the bounds of a prison. Munn v. Illinois, 94 U.S. 113, 142 (1876)  cited by Justce Thomas dissenting in OBERGEFELL v. HODGES, 14 556   http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf  (Page 78)

 

State “police power which trenches upon the constitutionally protected freedom even though enacted pursuant to a valid state interest, bears a heavy burden of justification … and will be upheld only if it is necessary, and not merely rationally related, to the accomplishment of a permissible state policy.” McLaughlin v. Florida, 379 U.S. 184, 196 (1964); Griswold v. Connecticut, 381 U.S. 479, 497, (1965); Ravin v. State of Alaska, 537 P. 2d 494,.497 (1975).

 

 “[T]he police power of the State … can only interfere with the conduct of individuals in their intercourse with each other, and in the use of their property.” Munn v. Illinois, 94 U.S. 113, 145 (1876). “The police power of a state … is subordinate to constitutional limitations…. It is the governmental power of self-protection and permits reasonable regulation of rights and property in particulars essential to the preservation of the community from injury.” Panhandle Eastern Pipeline Co. v. Highway Comm’n, 294 U.S. 613, 622 (1935).

 

" In the absence of compelling justification, the police power does not extend so far as to permit the Government to protect an individual against himself and that the concern for public health and safety is relevant only insofar as the action of one individual may threaten the well-being of others." United States V Kiffer 477 F2.d 349 (1973), at 354.

 [C]riminal statutes, be subjected to the most rigid scrutiny, … if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective. Loving v. Virginia, 388 U.S. 1, 11 (1967). “The police power may be exerted … to invade rights … when such legislation bears a real and substantial relation to the public health and safety.” Liggett Co. v. Baldridge, 278 U.S. 105, 111,112; 49 S.Ct.57, 59 (1928).

 

[T]he rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand. Jacobson v. Massachusetts, 197 U.S. 11, 27 (1905).

 

“ ‘Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one’s own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is, then, liberty regulated by law.’” Jacobson v. Massachusetts, 197 U.S. 11, 26 -27 (1905) Crowley v. Christensen 137 U.S. 86, 89, 90 (1890) 

 

Up date:February 2, 2017  Activist Louisiana Judge illegally avoids the constitutional challenge of the Louisiana marijuana possession law that convicted Bernard Noble as a habitual offender to 13 1/3 years..This Judge denied equal protection of law thereby due process of law.

 

 

IN THE ORLEANS PARISH CRIMINAL DISTRICT COURT SECTION L
STATE OF LOUISIANA

http://www.criminalcourt.org/section-l-judge-zibilich.html

https://www.opccdc.org/court-sections.html

 

BERNARD NOBLE                 )

Applicant                                 )

V                                   )                                   Docket No. 501-594
                                                 )

STATE OF LOUISIANA            )
Respondent                              )

APPLICATION FOR POST CONVICTION RELIEF

http://www.lasc.org/rules/supreme/appA.pdf

https://www.legis.la.gov/legis/Law.aspx?d=112936

 

Hearing on December 6, 2016. Noble's prison sentence was reduced to 8 years. This was his post conviction relief for claiming the marijuana law is unreasonable state police power and unconstitutional that would overturn his conviction. The judge violated the laws governing post conviction relief. Reduction in sentencing is not a criteria for post conviction relief. The court acknowledge the established the claim and entitled him to relief, because the court appointed council. Art. 930.7.   

"The application has alleged a claim that has been established, entitled the petitioner to relief, the court shall order the custodian, through the district attorney in the parish in which the defendant was convicted, to file … an answer on the merits … within a specified period not in excess of thirty days." Art. 927.  

The court never ordered an answer. The court continues to deprive Noble his liberty without due process of law until he is free completely. His application for post conviction relief has not been resolved.

 

 

June 20, 2016 

State vs. Bernard Noble

13 1/3 years for 2.8 grams of pot.

http://caselaw.findlaw.com/la-court-of-appeal/1658445.html

https://www.viceland.com/en_us/video/the-war-on-weed/56cdd1948af2fa0f2200ba52

 

Bernard Noble has been deprived of his fundamental right to liberty for over 5 years of a 13+ years sentence as an habitual offender for possessing 2+ grams of marijuana.

With assistance, he has filed an  Application of Post-Conviction Relief in Orleans Parish Criminal District Court Section L on May 18th 2015, Doc # 501-594 on the claim that the Louisiana marijuana possession law is unreasonable use of police power contravenes the Fourth and Fourteenth Amendments and the law is unconstitutional. The State of Louisiana did not respond by June 17th to Mr. Noble’s claim as required by law. Therefore the District Attorney of Orleans Parish did not deny but perhaps agrees the marijuana possession law is unconstitutional. I am told he is being brought to his hearing on June 29, 2016.

 I have informed the media about this hearing after I called this court and learned the state did not respond to his application for post-conviction relief.  This means the DA’s office concedes that the criminalizing marijuana is unreasonable and unconstitutional by not responding. There are no reasons, no compelling state interest to deprive Mr. Noble’s liberty for allegedly possessing marijuana violating due process of law.

I was also was told that Mr. Noble was informed by the public defender that the clerk of the court said the judge did not want any of his family or the media at this hearing.

And the clerk of this court is offering some plea agreement that the charges he was convicted of would be reduced so he would be released for time served to avoid the court declaring the marijuana possession law unconstitutional.

It is said, after that Mr. Noble can question the constitutionality of the marijuana laws to overturn his convictions in a declaratory judgment lawsuit. What the what? The court does not work for the executive or legislature branches of government. The judiciary is supposed to be impartial to secure constitutional rights against majority rule. That due process of law requires the judicial standard of review of laws that deprive fundamental rights is strict scrutiny. The burden is on the government to demonstrably justified that the law is reasonable and necessary to protect public safety. How is the possession of marijuana a threat to the rights of others?

What is lower than simple possession of marijuana? There is no pleading to a lesser charge listed in the application for post-conviction relief. But questioning the constitutionality of a law that has deprived Mr. Noble of his liberty is a criteria listed on the form for post-conviction relief and has no statutory of limitation.

This Judge, that sentence Mr. Noble for 13+ years because he had to by law. Now he has no choice but  to declare the state of Louisiana marijuana possession law is unreasonable violating due process of law and unconstitutional because there is no victim of a crime and overturn Mr. Noble’s conviction and restore his liberty, freedom from physical restraint.

I want to believe bringing Mr. Noble to Court he has spent his last night in jail. He will have his liberty restored and freedom to leave the court quietly  or not with his family because criminalizing this property, marijuana, and the use of state police power violated his rights secured by the Fourth and Fourteenth Amendments and is unconstitutional. 

 

UNIFORM APPLICATION FOR POST-CONVICTION RELIEF

His Claim 1

I claim that my person has been seized and I have been deprived of my inalienable fundamental right of liberty without reason, without a compelling state interest, without due process of law contravening the Fourth and Fourteenth Amendments of the Constitution of the United States.

  1. I was arrested for possessing marijuana. The possession of marijuana didn’t pose a threat to public safety. State police power arresting me and depriving me of my liberty was not protecting the rights of others, public safety. There was no victim of a crime.
  2. N/A
  3. This claim was not raised in the trial court because :

I didn’t know that being arrested, seizure of my person and deprivation of my fundamental right of liberty, that I had had standing to question the validity, the construction, the  reasonableness, the constitutionality of the State of Louisiana’s marijuana possession law in a pretrial Motion to Dismiss.

I didn’t know that liberty is freedom from physical restraint, bounds of prison.

I didn’t  know substantive due process of law requires the deprivation of my fundamental right of liberty by the use of state police power  must be justified by a compelling state interest.

I didn’t know that judicial standard of review of the marijuana possession law that authorized the use of state police power is strict scrutiny standard of review.

 I didn’t know the burden was on the State of Louisiana to provide reasons, a compelling state interest, a substantial threat to public safety, that demonstrably justifies the law that criminalized the possession of marijuana and the use of state police power.

I didn’t know I had a right to equal protection of law, the Fourth and Fourteenth Amendments of the Constitution of the United States.

 

 

IN THE ORLEANS PARISH CRIMINAL DISTRICT COURT SECTION L
STATE OF LOUISIANA

 

BERNARD NOBLE                            )

                                                            )

V                                              )                                            Docket No. 501-594
                                                            )
STATE OF LOUISIANA                                  )

APPLICATION FOR POST CONVICTION RELIEF

MEMORANDUM OF LAW

 

For violating the marijuana possession law, I claim that my person has been seized and I have been deprived of my inalienable fundamental right of liberty without reason, without a compelling state interest, without due process of law contravening the Fourth and Fourteenth Amendments of the Constitution of the United States.

 “One's right to life, liberty, and property, may not be submitted to vote; they depend on the outcome of no elections.” West Virginia Board of Education v. Barnette, 319 U.S. 624, 638 1943 .“Such rights … do not vanish simply because the power of the state is arrayed against them. Nor are they enjoyed in subjection to mere legislative findings.” Nebbia v. New York, 291 U.S. 502, 548; 54 S.Ct. 505 (1934).

 

No State "shall deprive any person of life, liberty, or property without due process of law," says the Fourteenth Amendment to the Constitution. … By the term "liberty," as used in the provision, … [is] freedom from physical restraint or the bounds of a prison. Munn v. Illinois, 94 U.S. 113, 142 (1876)

 

State “police power which trenches upon the constitutionally protected freedom even though enacted pursuant to a valid state interest, bears a heavy burden of justification … and will be upheld only if it is necessary, and not merely rationally related, to the accomplishment of a permissible state policy.” McLaughlin v. Florida, 379 U.S. 184, 196; 85 S.Ct. 283, 290 (1964); Griswold v. Connecticut, 381 U.S. 479, 497, 85 S. Ct. 1678 (1965); Ravin v. State of Alaska, 537 P. 2d 494,.497 (1975).

 

 “[T]he police power of the State … can only interfere with the conduct of individuals in their intercourse with each other, and in the use of their property.” Munn v. Illinois, 94 U.S. 113, 145 (1876).

“The police power of a state … is subordinate to constitutional limitations. Under it there is no unrestricted authority to accomplish whatever the public may presently desire. It is the governmental power of self-protection and permits reasonable regulation of rights and property in particulars essential to the preservation of the community from injury.” Panhandle Eastern Pipeline Co. v. Highway Comm'n, 294 U.S. 613, 622 (1935).

 

" In the absence of compelling justification, the police power does not extend so far as to permit the Government to protect an individual against himself and that the concern for public health and safety is relevant only insofar as the action of one individual may threaten the well-being of others." United States V Kiffer 477 F2.d 349 (1973), at 354.

 

            A "seizure" triggering the Fourth Amendment's protections occurs only when government actors have, by “means of physical force or show of authority, . . . in some way restrained the liberty of a citizen.” Terry v. Ohio, 392 U.S. 1, 19 n. 16 (1968). A full custodial arrest is …a severe intrusion on an individual's liberty, its reasonableness hinges on "the degree to which it is needed for the promotion of legitimate governmental interests.” Wyoming v. Houghton, 526 U.S. 295, 300 (1999).

 

[C]riminal statutes, be subjected to the most rigid scrutiny, … if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective. Loving v. Virginia, 388 U.S. 1, 11 (1967). “The police power may be exerted … to invade rights … when such legislation bears a real and substantial relation to the public health [and] safety.” Liggett Co. v. Baldridge, 278 U.S. 105, 111,112; 49 S.Ct.57, 59 (1928).

 

[T]he rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand. Jacobson v. Massachusetts, 197 U.S. 11, 27 (1905).

 

“ ‘Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is, then, liberty regulated by law.’” Jacobson v. Massachusetts, 197 U.S. 11, 26 -27 (1905) Crowley v. Christensen 137 U.S. 86, 89, 90 (1890) “This constitutional guaranty demands only that the law shall not be unreasonable, arbitrary, or capricious, and that means selected shall have real and substantial relation to the object. Nebbia v. New York, 291 U.S. 502, (1934).

 

 

            The case law indicates the marijuana possession law is unconstitutional and I’m illegally detained.

 

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