STATE v. DEAL (2021)

Writ application denied.

Defendant was found guilty of first degree murder, La. R.S. 14:30, after his attorney conceded during closing remarks that defendant was responsible for the death of his two-month-old son, but argued defendant was guilty only of manslaughter. See State v. Deal, 2000-0434 (La. 11/28/01), 802 So.2d 1254. He was thereafter sentenced to death. In state collateral proceedings, applicant contended that concession was made without his consent, and he sought a new trial pursuant to McCoy v. Louisiana, 548 U.S. ––––, 138 S.Ct. 1500, 200 L.Ed.2d 821 (2018). In McCoy, the United States Supreme Court found that counsel's admission of defendant McCoy's guilt over defendant's clearly-stated and persistent objection was a structural error that is incompatible with the Sixth Amendment thereby mandating a new trial.

The district court denied the supplemental application for post-conviction relief, which the State conceded was timely filed and not procedurally barred, because it found defendant failed to establish that McCoy applies retroactively on collateral review. See Dist. Ct. Ruling dated January 23, 2020 (“․ Petitioner does not persuasively argue that the rule announced in McCoy satisfies the Teague requirements for an exception to the non-retroactive default.”). Because the district court denied the application summarily, the record at present does not permit a determination of whether defense counsel conceded defendant's guilt over his clearly-stated and persistent objection. Nonetheless, whether the holding of McCoy applies retroactively in state collateral proceedings is significant open question of law, and one I think must be answered. Accordingly, I would grant and docket this matter so that this court, with benefit of full briefing and oral argument, can carefully consider whether McCoy v. Louisiana applies retroactively, consistent with the view I expressed in Hampton v. Vannoy, 2020-00390 (La. 12/8/20), 306 So.3d 430 (Crichton, J., would grant and docket for full consideration to address the retroactivity of McCoy, supra, citing Teague, supra).

Crichton, J., would grant and docket and assigns reasons.