STATE v. SCOTT (2020)

Writ application denied.

ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS

Denied. Applicant fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his remaining claims, applicant fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Applicant has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Applicant's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, applicant has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

The defendant was convicted of manslaughter by a non-unanimous jury verdict of 10-2. While he has not directly challenged the constitutionality of the non-unanimous verdict, he has raised a colorable confrontation clause challenge. Confrontation clause errors are subject to harmless-error analysis. See Delaware v. Van Arsdall, 475 U.S. 673 (1996). An error is harmless if the verdict actually rendered is surely unattributable to the error, and the court finds beyond a reasonable doubt that the error could not have affected the verdict. Sullivan v. Louisiana, 508 U.S. 275, 279, (1993).

In my view, it is not possible to find beyond a reasonable doubt that an error could not have affected the verdict if the verdict was non-unanimous. In this case, even considering the evidence erroneously admitted, two jurors already disagreed with the verdict rendered. Therefore I would remand to the district court for a ruling on the confrontation clause claim, with a specific instruction to consider the effect that a non-unanimous jury verdict should have on any harmless error analysis.

PER CURIAM: