STATE v. HARRIS (2020)

Writ application denied. See per curiam.

ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

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.

I would grant the writ to clarify that the Supreme Court's recent decision in Ramos v. Louisiana, 140 S. Ct. 1390 (2020) should be applied retroactively to cases on state collateral review. It is time we abandoned our use of Teague v. Lane, 489 U.S. 288 (1989) in favor of a retroactivity test that takes into account the harm done by the past use of non-unanimous jury verdicts in Louisiana courts.

Regardless of the words or legal grounds a defendant uses to challenge his conviction, and for the reasons I explain further in State v. Gipson, 19-KH-01815 (La. 06/03/20), I believe Ramos should apply to anyone convicted by a non-unanimous jury.