STATE v. SMITH (2020)

Writ application denied. See per curiam.

Denied. Applicant fails to show that he was denied the effective 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 claim, 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 claims he was convicted by a non-unanimous jury verdict and, therefore, that his conviction violates the Constitution. If he was convicted by a non-unanimous jury then I believe the conviction must be vacated because the Supreme Court's recent decision in Ramos v. Louisiana, ––– U.S. ––––, 140 S. Ct. 1390, 206 L.Ed.2d 583 (2020) should be applied retroactively to cases on state collateral review.

I would grant the writ and remand with instructions to the district court to establish—if it is possible to do so from contemporaneous record of the trial, jury deliberations, and votes—whether the verdict in this case was unanimous. If the record shows that the verdict was non-unanimous, then for the reasons I articulated in State v. Gipson, 19-01815 (La. 06/03/20), 296 So.3d 1051, the defendant should be permitted to file a collateral challenge to his conviction pursuant to La. C. Cr. P. art. 930.3(1) and argue for the retroactive application of Ramos to his case under 930.8(A)(2).