Petition for Writ of Certiorari — Sadat El-Amin, Petitioner v. Louisiana
Supreme Court briefApr 23, 2021
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APPENDIX “A”
ORIGINAL PCR W/
MEMORANDUM IN SUPPORT
IK
i'
Sadat El-Amin, #292961
MPEY/Ash-4
La. State Penitentiary
Angola, LA 70712 "
August 10, 2020
(Date)
Clerk of Court,
22ld Judicial District Court
P.O. Box 607
Franklinton, LA 70438
Post-
RE: Sadat El-Amin v. Darrel Vannov. Warden. No. 09-CR1-101854; On Application for
Conviction Relief
Dear Clerk:
Enclosed is an Original of my pm se pleadings, to wit:
1.
Uniform Application for Post-Conviction Relief;
2.
Memorandum of Law in Support;
3.
Motion Requesting Evidentiary Hearing and Appointment of Counsel, w/Order;
4.
Petition for Writ of Habeas Corpus Ad Testificandum, w/Order,
5.
Motion to Compel Answer, w/Order.
I respectfully ask that you please file same in the docket of the above referenced criminal matter
for judicial consideration and disposition.
Additionally enclosed is another copy of this cover letter that I respectfully ask that you please
“file/date” stamp and return to me.
This matter is in forma pauperis.
Respectfully,
Sadat El-Am in
AM/dec #304580
Enclosures (2)
Cc:
w/encl. District Attorney, Washington Parish
\
t
IN THE
22nd JUDICI AL DISTRICT COURT
PARISH OF WASHINGTON
STATE OF LOUISIANA
DOCKET NUMBER: 09-CR1-101854
SADAT EL-AMIN
Petitioner
Versus
DARREL VANNOY, Warden
La. State Penitentiary
Respondent
APPLICATION FOR POST-CONVICTION RELIEF
BRIEF FILED ON BEHALF OF
SADAT EL-AMIN - PETITIONER
RESPECTFULLY SUBMITTED
SADAT EL-AMIN #292961
MPEY/Ash-4
LA STATE PENITENTIARY
ANGOLA, LA 70712
CRIMINAL PROCEEDING
PREPARE!) BlDavid Constance #304580 Offender Counsel Substitute III
Main Prison Legal Aid Office
Criminal Litigation Team
La. State Penitentiary
Angola, LA 70712
V
SECOND OR SUBSEQUENT UNIFORM APPLICATION FOR
POSTCONVICTION RELIEF
Please review La. C. Cr. P. Arts. 924—9.10.9 for the correct procedure for filing an application for
postconviction relief. This form does not modify the taw or requirements as stated in those articles.
For the Time Limitations for filing this application, please see Louisiana Code of Criminal Procedure (La.
C. Cr. P.) Art. 930.8(A), which states in part that “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 ...”
SECOND OR SUBSEQUENT UNIFORM APPLICATION INSTRUCTIONS—READ
CAREFULLY
If this is not your First Application for postconviction relief, please carefully review all of the following
instructions:
1.
In accordance with La. C. Cr. P. Art 930.4(D) or (E), you are entitled to file one application for
postconviction relief after your conviction has become final and within the time limits provided in
La. C. Cr. P. Art. 930.8.
2.
If you are attempting to file a second or subsequent application, you must use tliis form and
justify your right to file a second or subsequent application in accordance with La. C. Cr. P.
Arts. 930.4 and 930.8. If you fail to use this form, your application may be automatically
dismissed by the Court.
GENERAL INSTRUCTIONS—READ CAREFULLY
In addition to die above instructions, please carefully review all of the following instructions:
1.
You must use tills form or the District Court will not consider your application. This could
affect your ability to seek relief in accordance with the time limits established in La. C. Cr. P.
Art.930.8. Therefore, you must use this form or justify your failure to do within die postconviction
time limits.
2.
This application must be clearly written or typed, signed by you oryour attorney, and sworn to
before a notary public or institutional officer authorized to administer an oath. Any false statement
of a material fact may serve as the basis for criminal prosecution. Answer questions concisely in
the proper space on the form. You may attach additional pages stating the facts that support your
claims for relief. No lengtiiy citations of authorities or legal ar guments are necessary.
3.
When the application is completed, you must file the original application in the District Court
for the Parish in which yon were convicted and sentenced, and you must also send a copy to the
State.
4.
You must raise all claims for relief arising out of a single trial or guilty plea in one application.
5.
You are only entided to file an application for postconviction relief to challenge a habitual
offender adjudication or sentence within very limited circumstances. In most cases, you can
only challenge a habitual offender adjudication or sentence in appeal.
REQUIRED ATTACHMENTS
A copy of the Louisiana Uniform Commitment Order of conviction and sentence must be attached to
the application (if it is available), or die application must allege that it is unavailable.
You must attach a copy of any judgment by any court regarding prior postconviction applications, or this
application may be dismissed by the district court. If you are unable to provide any judgments, please
explain why.
Date of tliis Application:
8/10/2020
Name of Applicant:
Sadat El-Amin
DOC Number:
292961
Place of Confinement:
La. State Pen.
District Court Case
Number:
09-CR1-101854
Name of Dial Judge:
William I. Burris
Offense(s) for which you were convicted:
Pal ish of Conviction:
Washington
Forcible Rape (2 Counts)
Do any of the convictions involves a sex offense or a human trafficking related offense where
the victim was a minor under the age of eighteen years (see La. R. S. 46:1842(1.1) and
46:1844(W)(2))?
Page 1 of4
Yes [X]
No[]
5/14/94
Conviction by:
[Check One]
Guilty Plea [] Trial by Jury [X]
Date of Conviction:
Date of Sentencing:
6/4/92
Sentence
Sixty-five (65) years
Name of Counsel who representedyou at the time of
trial, sentence and / or conviction:
John W. Linder
Multiple Offender Proceeding: [Check One]
Yes []
Trial by Judge []
No [X]
If yes, answer both of the following questions:
Pled [] Adjudicated to be a Multiple Offender []
Result of Proceeding: [Check One]
Adjudicated No Bill []
Sentence on Multiple Offender Bill:
Name of Counsel who representedyou on
appeal:
Prentice L. White
Appeal of conviction and
sentence: [Check One]
Yes [X]
No[]
Appeal ofMultipleBill:
[Check One]
Yes []
No []
Appellate Case ft
Writ to Louisiana Supreme
Court: [Check One]
Yes [X]
No []
Supreme Court Case
ft
Action by Supreme Court:
[Check ifApplicable]
Granted {]
Denied [X]
Reheating to Supreme Court
[Check ifApplicable]
Granted []
Denied []
Appellate Case ft
2011-0030
Date of Action
2011-1532
2/17/12
Date of Action
/
/
PRIOR APPLICATIONS INSTRUCTIONS—READ CAREFULLY
Please provide a list of all prior applications for postconviction relief filed by you or on your behalf in
connection with the judgment of conviction and sentence challenged in this application. If you have filed more
titan two prior applications, provide the information for each additional application on a separate sheet of paper.
District Court Case
Number
09-CR1-101854
Parish of Conviction:
Washington
Is this the same case challenged in this application?
[Check One]
Date of Filing:
6/10/2013
Claims Raised:
1. Baton violation; 2. State exceeded peremptorily challenges limit; 3. Ineffective
assistance of counsel; 4. Double Jeopardy; 5. Denied the right to testify
Was relief granted or denied? [Check One]
Did you receive an evidentiary
hearing? [Check One]
Which Circuit? [Check One]
Sought writ to
Louisiana Supreme
Court? [Check One]
District Court Case
Number
Yes [] No [X]
Yes [] No [X]
Date of
Disposition:
Yes [X]No []
9/12/13
Did you file a writ to the Court
of Appeal? [Check One]
Yes [X]No []
1[X] 2[J 3[] 4[] 5[] Appellate Case ft
Granted [] Denied [X]
Not Sought []
09-CR1-101854
Supreme Court
Case ft
Date of Ruling
Parish of Conviction:
Washington
Is this the same case challenged in this application?
[Check One]
Date of Filing:
1/24/18
Claims Raised:
1. Ineffective assistance of counsel (failed to argue recusal of Judge Burris.
Was relief granted? [Check One]
Yes [] No [X]
, Page 2 of4
Date of
Disposition:
Yes [X]No []
3/12/18
Did you receive an evidentiary
hearing? [Check One]
Yes [] No [X]
Which Circuit? [Check One]
Sought writ to
Louisiana Supreme
Court? [Check One]
^[] 3[] 4[] 5[] Appellate Case#:
Granted [] Denied [X]
Not Sought []
Didyou file a writ to the Court
of Appeal? [Check One]
Yes [X]No []
2018-0533
Supreme Court
Case #:
Date of Ruling
/
CLAIMS FOR RELIEF INSTRUCTIONS—READ CAREFULLY
You must include in this application all allowable claims relating to tliis conviction. If yon do not, you may
be barred from presenting additional claims at a later date. See La. C. Cr. P. Art. 930.4. You must state facts
upon which your claims are based. Do not just set out conclusions.
Please refer to La. C. Cr. P. Art. 930.3 (Grounds), which reads:
“If (lie petitioner is in custody after sentence for conviction for an offense, relief shall be granted
only on the following grounds:
(1) The conviction was obtained in violation of the constitution of the United States or the state of
Louisiana;
(2) The com! exceeded its jurisdiction;
(3) the conviction or sentence subjected him to double jeopardy;
(4) The limitations on the institution of prosecution had expired;
(5) The statute creating the offense for which he was convicted and sentenced is unconstitutional;
or
(6) The conviction or sentence constitute the ex post facto application of law in violation of the
constitution of the United States or the state of Louisiana.
(7) The results ofDNA testing performed pursuant to an application granted under Article 926.1
proves by clear and convincing evidence that the petitioner is factually innocent of the crime for
which he was convicted.”
Using a separate sheet of paper, provide the following information as it relates to claims available
under La. C. Cr. P. Art. 930.3.
For each claim:
(A) You must state your claim, the groimd on which it is based under La. C. Cr. P. Art. 930.3, and the facts
that support your claim.
(B) If there are witnesses who could testify in support of your claim, you must list their names and current
addresses. If you cannot do so, explain why.
(C) If you failed to raise tills claim in the trial court prior to conviction or on appeal, you must explain why.
This is your opportunity to state reasons for your failure before the court considers dismissing the application
in accordance with La. C. Cr. P. Art. 930.4(F).
In the following space, provide a brief summary of the reasons why you are legally entitled to file a second
or subsequent application. If you fail to justify' your right to file a second or subsequent application in
accordance with La. C. Cr. P. Arts. 930.4 and 930.8, your application may be automatically dismissed. Mr.
£7-/4n'thwas convicted by a iron-unanimous jury verdict. The Ramos case must be rilled retroactive.
Wherefore, Applicant prays that the Court grant Applicant relief to which he / she may be entitled.
8/10/2020
[Day / Month / Year]
[Signature of Applicant or Applicant's Attorney]
Page 3 of 4
*
AFFIDAVIT
STATE OF LOUISIANA
PARISH OF WEST FELICIANA
Sadat El-Amin #292961. [Name of Applicant], being first duly sworn says that he / she has read the
application for postconviction relief and swears or affirms that all of the information therein is tme and
correct.
SWORN TO AND SUBSCRIBED before [Signature of
Applicant]
me this
day of.
.,20__ .
NOTARY or person authorized to administer oath
Case Name:
Case Number:
JUDGMENT
[May be used by the Court in Lieu of or in
addition to written reasons]
Considering the foregoing Application for Postconviction Relief, this Honorable Court hereby:
DENIES this application in accordance with La. C. Cr. P. Ait
926(E) []
928 []
929 []
930.4 []
or 930.8 [], or
ORDERS that the Applicant show cause in writing on or before the ___ day of
application should not be dismissed in accordance with La. C. Cr. P. Art.
926(E) []
928 []
929 []
930.4 []
., 20___ why the
or 930.8 [], or
ORDERS tlial the State be required to file a response to this application on or before the ___ day of
20
Signed in
Louisiana, this___ day of
.>20
JUDGE
Paged of4
A
TABLE OF CONTENTS:
TABLE OF AUTHORITIES............
MEMORANDUM IN SUPPORT OF.
NOTICE OF PRO-SE FILING.........
NOTICE OF PRO-SE FILING.........
JURISDICTION...............................
FACTS OF THE CASE...................
CLAIMS FOR RELIEF....................
Page
ii
1
1
1
1
1
2
Noil-unanimous jury verdict convicted Mr. El-Am in in violation of his Sixth and Fourteenth
Amendments...........................................................................................................
2
A. Mr. El-Amin has a non-unanimous jury conviction.............................................
2
B. non-unanimous jury convictions violate the Sixth and Fourteenth Amendments
3
Discriminatory intent.............................................................................................
4
C. The Holding in Ramos applies to Mr. EI-Amin....................................................
9
1. The Courts determined 40 years ago that rules relating to non-unanimous jury verdicts
10
should be retroactive
2. The Ramos decision restates the principle that governed prior Supreme Court cases,
11
therefore it should be applied to Mr. El-Amin's case
3. Alternatively, Teague v. Lane requires retroactive application of the holding in Ramos v.
16
Louisiana because it is a “watershed rule.”
4. Alternatively, the State of Louisiana should depart from Teague v. Lane, as allowed in
19
Danforth v. Minnesota
5. The Ramos Court now acknowledges its mistake in Apodaca, and but for this mistake, Mr.
20
El-Amin would have had a constitutional trial
(2) PRESERVATION IS NOT REQUIRED IN ORDER TO RAISE THE ISSUE OF NON21
UNANIMOUS JURY VERDICTS......................................................
1. Mr. El-Amin is entitled to relief regardless of preservation....
21
(5)Ramos meets the test for retroactive application enunciated by the Supreme Court in
25
Teague v. Lane................
SUMMARY..........................
CONCLUSION.....................
CERTIFICATE OF SERVICE
VERIFICATION...................
29
29
30
30
Exhibits: End
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Docket No.: 09-CR1-101854
Sadat Ei-Aniln v. Darrel Vannoy, Warden
i.
TABLE OF AUTHORITIES:
Page
U.S. CONSTITUTION:
Eighth Amendment to the United States Constitution..................................
Fifth Amendment to the United States Constitution....................................
Fourteenth Amendment to the United States Constitution...........................
Section 1 of the Fourteenth Amendment to the United States Constitution
Sixth Amendment of the United States Constitution....................................
Sixth and Fourteenth Amendments to the United St sites Constitution.........
United States Constitution, Art. Vi, cl. 2........................................................
14,15
6
passim
. 14, 15
passim
passim
14
FEDERAL CASES:
Agostini v. Felton, 521 U.S. 203, 237-38 (1997)..................................
Andres v. United Stales, 333 U.S. 740 (1948)......................................
Andres v. United States, 333 U.S. 740, 748 (1948)..............................
Apodaca v. Oregon, 406 U.S. 464 (1972).............................................
Apprendi v. New Jersey, 530 U.S. 466,477 (2000)..............................
Arizona v. Fulminante, 499 U.S. 279, 310 (1991).................................
Arlington Heights, 429 U.S. at 26...........................................................
Atkins v. Listi, 625 F.2d 525, 525-26 (5th Cir. 1980)...........................
Betts v. Brady, 316 U.S. 455 (1942)......................................................
Blakely v. Washington, 542 U.S. 296, 301 (2004)................................
Brown v. Louisiana, 447 U.S. 323 (1980).............................................
Burch v. Louisiana, 441 U.S. 130,138-9 (1979)...................................
Danforth v. Minnesota............................................................................
Descamps v. United States, 570 U.S. 813, 817 (2013)..........................
Duncan v. Louisiana, 391 U.S. 145,148-50 (1968)..............................
Engle v. Isaac, 456 U.S. 107,130 (1982)..............................................
Gideon v. Wainwright, 372 U.S. 335 (1963)..........................................
Glover v. United States, 531 U.S. 198, 203 (2001)...............................
Graham.....................................................................................................
Gray v. Lynn, 6 F.3d 265, 269 (5th Cir. 1993).......................................
Haines v. Kemer, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).
Henry v. Scully, 78 F.3d 51, 53 (2nd Cir. 1996)....................................
Ivan v. City of New York, 407 U.S. 203,204 (1972)............................
Johnson v. Louisiana, 406 U.S. 366 (1972)............................................
Johnson v. Zerbst, 304 U.S. 458,468 (1938).........................................
Maxwell v. Dow, 176 U.S. 581, 586 (1900)..........................................
Maynard v. Cartwright, 486 U.S. 356 (1988)........................................
McDonald v. City of Chicago, 561 U.S. 742,790 (2010).....................
Miller,.......................................................................................................
Patton v. United States, 281 U.S. 276, 288 (1930)................................
Powell v. Alabama, 287 U.S. 45, 68 (1932)..........................................
Ramos v. Louisiana, 590 U.S.___, _ (2020)(plurality opinion)
Reed v. Ross, 468 U.S. 1,17 (1984)
Richardson v. United Stales, 526 U.S. 813, 817 (1999)................................................
Rodrigues de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989)
S. Union Co. v. United States, 567 U.S. 343, 356 (2012).............................................
Saflle v. Parks, 494 U.S. 484,494-95 (1990).................................................................
Schriro v. Summerlin, 542 U.S. 348, 352 (2004)..........................................................
Scott v. Louisiana, 934 F.2d 631, 634 (5th Cir. 1991)...................................................
Strauder v. West Virginia, 100 U.S. 303 (1880).............................................................
Strickland v. Washington, 466 U.S. 668 (1984)............................................................
21
12
17
passim
13
18
4
11
17
13
10,11
15
19, 28
13
25
24
17,18,19
24
2
24
1
24
10
12,17,14, 26
17
12
15
13,15
2
12
17
passim
21
13
21
13
17
17
24
5
22, 23
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Docket No.: 09-CR1-101854
Sadat El-Anon v. Darrel V'annoy, Warden
ii.
>
Stringer v. Black, 503 U.S. 222 (1992)...................................................................
Summit v. Blackburn, 795 F.2d 1237 (5th Cir. 1986)............................................
Teague v. Lane, 489 U.S. 288 (1989)......................................................................
Thomas v. Blackburn, 623 F.2d 383, 384 (5th Cir. 1980).....................................
Thompson v. State of Utah, 170 U.S. 343, 353 (1898)..........................................
Timbs v. Indiana, 139 S.Ct. 682, 691 (2019)..........................................................
Tyler v. Cain, 533 U.S. 656, 666 (1991).................................................................
United States v. Booker, 543 U.S. 220,239 (2005)................................................
United States v. Cronic, 466 U.S. 648 (1984)........................................................
United States v. Gaudin, 515 U.S. 506, 510 (1995)...............................................
Washington v. Davis, 426 U.S. 229,242, 96 S.Ct. 2040; 48 L.Ed.2d 597 (1976)
Williams v. Florida, 399 U.S. 78 (1970).................................................................
Williams v. United States, 401 U.S. 646, 653 (1971).............................................
15
24
passim
11
12
13, 14
18
13
23
13
4
12
10
LA. CONSTITUTION:
Article I, § of the Louisiana Constitution of 1974................................
Article One, Section Three (3) of the Louisiana Constitution of 1974.
Louisiana Constitution of 1974, Ait. 1 § 19, 22 and Art. V § 2,16.....
2
16
1
STATUTORY PROVISIONS:
La C Art. VI (1868).............................
La.C.Cr.P. Art. 782..............................
LaC.CrP. Art. 782(A)........................
La.C.Cr.P. Art. 920...............................
LaC.Cr.P. Arts. 770, 771, 841.............
LaC.CrP. Arts. 924 and 930.8 (A)(1)
LaC.CrP. Arts. 924-930-8.................
LSA-C.E. Article 804...........................
LSA-R.S. 14:42...................................
LSA-R.S. 14:42.1.................................
5
2
29
21
21
1
1
23
1
lp.
STATE CASES:
State ex rel. Craddock v. State, 225 So.3d 452,455 (La 09/15/17).
State ex rel. Taylor v. Whitley, 606 So.2d 1292, 1296 (La 1992)....
State v. Arceneaux, 2019-60 (La App. 3rd Cir. 10/09/19)...............
State v. Ardison, 277 So.3d 883, 897 (La App. 2nd Cir. 6/26/19)...
State v. Aucoin, 488 So.2d 1336 (La App. 3rd Cir. 1986)..............
State v. Ball, 554 So.2d 114,115 (La Ct. App. 1989)......................
State v. Biagas, 255 So.2d 77 (La. 1971)..........................................
State v. Bradford, 298 So.2d 781 (La 1974)....................................
State v. Egana, 771 So.2d 638 (La 2000).........................................
State v. Ervin, 340 So.2d 1379 (La 1976).........................................
State v. Hankton, 122 So.3d 1193 (La App. 4th Cir. 8/2/13)..........
State v. Jackson, 733 So.2d 736 (La App. 4th Cir. 1989)................
State v. Lee, 346 So. 2d 682 (La 1977).............................................
State v. Legrand, 864 So. 2d 1462 (La. 12/03/03)..............................
State v. Moak, 387 So.2d 1108 (La 1980)........................................
State v. Sadat El-Arn in, 2011-KA-0030 (La App. 1st Cir 6/10/14)
State v. Truehill, 38 So.3d 1246 (La App. 3rd Cir. 06/02/10).........
State v. Washington, 491 So.2d 1337 (La 1986)..............................
State v. Wrestle, Inc., 360 So.2d 831, 837 (La. 1978).......................
23
25
22
22
22
24
22
22
1
21
26
24
21
23
1
1,2
23
22
22
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Docket No.; 09-CR1-101854
Sadat EI-Amln v. Darrel Vannoy, Warden
iii.
MISCELLANEOUS:
5
“In Search of Fundamental Law. Louisiana's Constitutions, 1812-1974 (1993)...
6
1898 Constitutional Convention............................................................................
8
2018 Legislative Session.........................................................................................
13
4 W. Biackstone, Commentaries on the Laws of England 343; 349-50 (1769)....
5
Abbe, Ronald M. “That the Reign of Robbery Will Never Return to Louisiana:”.
5
Act of 1805, § 3 3.....................................................................................................
5
In Search of Fundamental Law, (1993)..................................................................
Lanza, Michael L. “Little More than a Family Matter: The Constitution of 1898.” In Search of
6
Fundamental Law.
Marc L. Miller & Ronald F. Wright, Leaky Floors: State Law Below Federal Constitutional Limits, 50
14
Ariz.L.Rev. 227 (2008).........................................................................................
5
Military Reconstruction Act of 1867...................................................................
5
Vincent, Charles M. “Black Constitutional Makers: Hie Constitution of 1868
Voorhies A. A. Treatise on the Criminal Jurisprudence of Louisiana, Bloomfield & Steel (1860), pp. 35
10.
WMepdOSlICSVp-dconstanceSO^yDocumentsldientslEVQ-Amin #29296l\el-amin sadat 10-2 pcr.2.odt
Docket No.: 09-CR1-101854
iv.
Sadat El-Amlnv. Darrel Vannoy, Warden
22nd JUDICIAL DISTRICT COURT
SADAT EL-AMIN
VERSUS NO: 09-CR1-J01854
PARISH OF WASHINGTON
DARREL VANNOY, Warden
La State Penitentiary
STATE OF LOUISIANA
FILED:
CLERK OF COURT
MEMORANDUM IN SUPPORT OF APPLICATION
FOR POST-CONVICTION RELIEF
MAY IT PLEASE THE COURT:
NOW INTO COURT comes, Sadat El-Amin, Petitioner who respectfully moves this court
pursuant to LaC.Cr.P. Arts. 924-930-8 to review his Claim(s) herein that will support that his
conviction and sentence were obtained in violation of both the Louisiana and United States
Constitutions. The issue presented entitles Mr. El-Amin to an evidentiary hearing with the appointment
of counsel and automatic reversal.
NOTICE OF PRO-SE FILING
Mr. El-Amin requests that this Honorable Court view these Claims in accordance with the
rulings of Haines v. Kernel-, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); State v. Moak 387
So.2d 1108 (La 1980XPro-se petitioner not held to same stringent standards as atrained lawyer); State
v. Egana. 771 So.2d 638 (La 2000)(Iess stringent standards than formal pleadings filed by lawyers).
Mr. El-Amin is a layman of the law and untrained in the ways of filings and proceedings of formal
pleadings in this Court.
.JURISDICTION
Jurisdiction is proper in this Honorable Court pursuant to Louisiana Constitution of 1974, Art. 1
§ 19, 22 and Art. V § 2,16; LaC.Cr.P. Arts. 924 and 930.8 (A)(1).
FACTS OF THE CASE
Mr. El-Amin was convicted of two Counts of Forcible Rape, a violation of LSA-R.S. 14:42.1
by a non-unanimous jury (ll-l).1 Mr. El-Aurin's conviction and sentence was finalized in State v.
Sadat El-Amin. 2011-KA-0030 (La. App. Is' Cir. 6/10/14), wit denied, 82 So.2d 281 (La 2012). Mr.
El-Amin has previously filed for Post-Conviction Relief; but due to “newly discovered” evidence, he is
now filing this pleading.
1 See: State n Sadat El-Amt*. Mr. El-Amin was found guilty of two Counts of Forcible Rape with an 11-1 verdict.
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Docket No. :09-CR3 -J0ISS4
1.
Sadat Bi-Amin v. Darrel Vannoy, Warden
CLAIMS FOR RELIEF
Non-unanimous jury verdict convicted Mr. El-Amin in violation of his Sixth and
Fourteenth Amendments.
A. Mr. El-Amin has a n on-unanimous jury conviction
Article I, § of the Louisiana Constitution of 1974, andLa.C.Cr.P. Art. 782 at the time of Mr. ElArain's offense and conviction allowed for non-unanimous jury verdicts for his offense.
The current version of these provisions of the Louisiana Constitution and the Code of Criminal
Procedure continues to allow for non-unanimous jury verdicts in non-capital cases for offenses that
were committed priorto January 1, 2019.2
A non-unaninious juiy convicted Mr. El-Amin of two Counts of LSA-R.S. 14:42.1, Forcible
Rape on July 17, 2018. Specifically, he was convicted by a jury of 11-1. See: State v. Sadat El-Amin.
2011-KA-0030 (La App. lEl Cir. 6/10/14), writ denied, 82 So.2d 281 (La. 2012). See also, Exhibit 1,
transcript pages w/ Court Reporter's Certification regarding results of written poll of jurors supporting
Mr. El-Amin's claim that the court convicted Mr. him after a non-unanimous jury verdict. The court
sentence him to sixty-five years without the benefit of Parole, Probation, or Suspension of Sentence.
The United States Supreme Court refers to life without die benefit of Probation, Parole, or
Suspension of Sentence a “virtuaT’ death penalty (or even a “virtual life sentence of sixty-five years).
Simply put, Mr. El-Amin was still sentenced to a “death'’ penalty with anon-unanimous verdict when
he was sentenced to serve sixly-five years without the benefit of Parole, Probation, or Suspension of
Sentence. In Graham and Milter, the United States Supreme Court addressed the issue of “likening” a
life sentence to the “death” penalty for juveniles. However, it must be stated that if this sentence is a
“death” penalty for a juvenile, then it must also be a “death” penalty for an adult who is sentenced to
2 Article I, §17(A) of the Louisiana Constitution states:
Jury trial in criminal cases, A criminal case in which the puni shment may be capital shall be tried before a jury
of twelve pe'sons, all of whom must concur to render a verdict. A case for an offense committed prior to
January 1, 2019, in which the punishment is necessarily confinement, at hard labor shall be tried before a jury
of twelve persons, ten of whom must concur to render a verdict. A case for an offense committed on or after
January 1, 2019, in which the punishment is necessarily confinement at hard labor shall be tided before a jury
of twelve persons, all of whom must concur to render a verdict. A case in which the punishment may be
confinement without hard labor for mere than six months shall be tried before a jury of six persons, all of
whom must, concur to render a verdict. The accused shall have a right to full voir dire examination of
prospective jurors and to challenge jurers peremptorily. The number of challenges shall be fixed by law.
Except in capital cases, a defendant may knowingly and intelligently waive his right to a trial by jury but no
later than forty-five days prior to the trial date and the waiver shall be irrevocable.
La. Const Art. I § 17(A).
Article 782 of the Louisiana Code of Criminal Procedure provides, in pertinent part:
A case in which punishment may be capital sir all be tided by a juiy of twelve jurors, all of whom must concur
to render a verdict. A case for an offense committed prior to January 1, 2019, in which punishment is
necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must
concur to render a verdict. A case for an offense committed on or after January 1, 2019, in which the
punishment, is necessarily at hard labor shall be tried before a jury of twelve persons, all of whom must concur
to render a verdict. A case in which the punishment may be confinement at hard labor shall be tried by a jury
composed of six jurors, all of whom must concur to render a verdict.
La.C.Cr.P Art. 782(A).
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Sadat El-Amin v. Darrel Vannoy, Warden
2.
Docket No.: 09-CR1 -101854
life imprisonment without the benefit of Probation, Parole, or Suspension of Sentence. Mr. El-Amin
sentenced to such a harsh sentence without the alleged victim losing her life.
This Court should note that a life sentence (or a “virtual life sentence”) in the State of Louisiana
is similar to that of a death penalty, as an offender is meticulously guaranteed that he will NEVER see
the light of day as afree man, aid is virtually sentenced to die in incarceration. Although the State may
submit the fact that Mr. El-Amin may apply for a Pardon in twenty years; it should be noted that
offenders sentenced to death are also able to apply for a Pardon. Hence, showing that this life sentence
is really a “Virtual Death Penalty,” or “Death by Incarceration.” This is an unconstitutional sentence
considering the fact that he was convicted with non-unanimous jury verdicts and his alleged victim did
not lose her life in the process.
Only one other state allows for non-unanimous jury verdicts, Oregon. In Apodaca v. Oregon.
406 U.S. 404 (1972), the Supreme Court upheld Oregon's provision for non-unanimous jury verdicts in
criminal cases. A plurality of the Supreme Court found that, while the Sixth Amendment of the United
States Constitution requires jury unanimity for a verdict, this mandate did not apply to states because
the right was not incorporated via the Fourteenth Amendment Due Process Clause.
However, one fact of Oregon's non-unanimous jury verdict which is different from that Law in
Louisiana, is the fact that, in the event of a non-unanimous verdict, the defendant can not be subjected
to life imprisonment without the benefit of Probation, Parole, or Suspension of Sentence.
To the extent, this Court requires additional proof of Mr. El-Amin's non-unanimous jury verdict,
Mr. El-Amin seeks an evidentiary hearing with the Clerk of Court in Washington Parish, P.O. Box 607,
Franklinton, LA 70438 to further support his claim. To support Mr. El-Amin's Application for PostConviction Relief, Mr. El-Amin also relies on the ruling in State v. Maxie and the Ramos v. Louisiana
Amicus by the Innocent Project New Orleans.
B. non-unanimous jury convictions violate the Sixth and Fourteenth Amendments.
On what ground would anyone have us leave Mr. Ramos in prison for the rest of his
life? Not a single Member of this Court is prepared to say Louisiana secured his
conviction constitutionally under the Sixth Amendment. No one before us suggests
that the error was harmless Louisiana does not claim precedent commands an
affirmance. In the end, the best anyone can seem to muster against Mr. Ramos is that,
if we dared to admit in his case what we all know to be true about the Sixth
Amendment, we might have to say th e same in some (Alters. Buy where is therejustice
in that? Every judge must, team to live with the fact he or she will make some
mistakes; it comes with the territory. But it is something else entirely to perpetuate
something we all know to be wrong because we fear th e consequences of bang right
Ramosv. Louisiana. 590 U.S.___,___(2020)(plurality opinion)(slip op., at 26).
The United States Supreme Court decided Ramos v. Louisiana: on April 20, 2020. In that case,
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3.
Docket No.:09-CKl-101854
Evangelisto Rani os faced a charge of Second Degree Murder, for which he maintained his innocence
and invoked his right to a jury trial. Ramos v. Louisiana. 590 U.S.
(2020)(slip op., at 1).
During that trial, two jurors believed that the State of Louisiana had failed to prove Mr. Ramos' guilt
beyond a reasonable doubt. Id. The two jurors voted to acquit. Id.
The courts in 48 states would have acquitted Mr. Ramos in this circumstance; but in Louisiana where the law allowed 10-2 and 11-1 non-unanimous jury convictions - Mr. Ramos received a life
sentence, without the possibility of pa-ole. Id.
In addition to being inconsistent with the vast majority of criminal procedure practice across the
country, Louisiana's non-unanimous jury rule - the Ramos Court explained - was born from the Jim
t
Crow era “With a careful eye on racial demographics, the [1898 Constitutional] Convention delegates
sculpted a 'facially race-neutral' rale permitting 10-to-2 verdicts in order 'to ensure that AfricanAmerican jury service would be meaningless.'” Id., at
(slip op., at. 2).
Discriminatory intent:
The non-unanimous jury provision was incorporated into the Constitution of 1898 as part of an
effort “to perpetuate the supremacy of the Anglo-Saxon race in Louisiana.” “Determining whether
invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such
circumstantial and direct evidence of intent as may be available.” Arlington Heights. 429 U.S. at 266.
Evidence of any improper motive may be gleaned from the “historical background” of the law,
including the “specific sequence of events leading up to” its enactment, “particularly if it reveals a
series of official actions taken for invidious purposes.” Id at 267 (citations omitted). One potential
“highly relevant” source of such evidence includes “contemporary statements by members of the
decision making body, minutes of its meeting, or reports.” Id at 268.
Another indication of any improper motive may include an otherwise unexplained “substantive
departure” 'from a law usually regarded as important. Cf. Id at 267 (“Departures from the normal
procedural sequence also might, afford evidence that improper puiposes are playing a role. Substantive
departures too may be relevant, particularly if the factors usually considered important by the decision
maker strongly favor a decision contrary to the one reached.”)(footnote and citations omitted). Finally,
an indication of improper motive may arise when the impact of the law “bears more heavily on one.
race than another.” Id at 266, quoting Washington v. Davis. 426 U.S. 229, 242, 96 S.Ct. 2040; 48
L.Ed.2d 597 (1976). Just as the ordinary “sort of difficulties” typically associated with trying to
ascertain congressional intent were absent in Hunter (471 U.S. at 228), each of these factors
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4.
Sadat Bl-Andn v, Darrel Vannoy, Warden
ovenvhelmingly supports the conclusion that Louisiana's non-unanimous jury provisions were the
product of racially discriminatory' intent as the hist ories of both laws are nearly identical, having arisen
from the same overtly racist movement identified in Hunt a'.
Originally, the State of Louisiana had provided for the common law right to trial by jury,
including unanimity of jury verdicts. By the Act of 1805, the Territory of Orleans adopted the forms
and procedures of the common law of England in this criminal proceedings, including “the method of
trials.” Act of 1805, § 3 3; See generally Voorhies A.A. Treatise on the Crimbtal Jurisprudence of
Louisiana, Bloomfield & Steel (I860), pp. 3-10. Following the Civil War and pursuant to the Military
Reconstruction Act of 1867, a Constitutional Convention was convened in Louisiana with equal
numbers of blacks and white delegates. Vincent, Charles M. “Black Constitutional Makers: The
Constitution of 1868. “In Search of Fundamental Law: Louisiana^ Constitutions, 1812-1974 (1993).
The 1868 Constitution enshrined Louisiana's first Bill of Rights, which was modeled on the Federal
Bill of Rights and included the right to trial by jury, La C Art. VI (1868).
After federal hoops withdrew from New Orleans in 1877, southern Democrats immediately'
seized political control, electing a democratic governor and winning three quarters of the seats in the
legislature by 1878. By April 1879, a Constitutional Convention had been called, and a new
Constitution was ratified in December 1879. See: Abbe, Ronald M. “That the Reign of Robbery Will
Never Return to Louisiana” In Seardt of Fundamental Law, (1993). To the disappointment of many
Democrats, however, the Constitution of 1879 did not take significant steps to turn back the civil rights '
granted to black citizens during reconstruction. The limited steps taken in 1879 are explained by the
circumstances at that time; one quarter of the legislature remained hostile to Democrats, the possibility
of a return by federal h oops lingered, EUid fears of a mass exodus of black citizens from the state
threatened the economy. Id.
Through the early 1890's, while the white Democrats maintained power, black citizens
continued to make up the majority of registered voters, and the Democrats feared their voting power
and the possibility of an alliance between blacks and working class whites. Close call election victories
had shaken up the Democrats and added urgency to the need to cement their power and to remove
blacks and poor whites from meaningful participation in Louisiana's political and civil institutions.
Furthermore, only a few years earlier, in 1880, the United States Supreme Court decided in Strauder v.
West Virginia 100 U.S. 303 (1880), which held that the Fourteenth Amendment prohibited states from
excluding persons from jury service based upon race. It was qgainst this backdrop and “a desire of
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Sadat Ei-Amin v. Darrel Mmnoy, Warden
5.
Louisiana's reactionary oligarchies to disfranchise blacks and poor whites (which) prompted the
Constitutional Convention of 1898.” (See: Lanza, Michael L. “Little More than a Family Matter: The
Constitution of 1898.” In Search of Fundamental Lmv. pp. 93-109.
The 1898 Constitutional Convention was designed to produce a constitution that would
entrench white power once and for all, and to ensure this goal; sweeping changes to election laws were
passed immediately prior to the convention. The effect was that when the people were asked by
referendum to vote on wit ether to have a Constitutional Convention and to nominate delegates, black
voter registration had dropped by ninety (90%) percent. Id at 98. As a result of this legislative
disenfranchisement, die 134 delegates at the 1898 Convention were all white and the resulting
constitution was ratified without being submitted to a popular vote. Id at 98-99.
The statements by members of the decision making body also support a finding of
discriminatory intent. Like the delegates to the 1901 Alabama Convention discussed in Hunter,
Louisiana's all white delegates were “not secretive about their purpose.” 471 U.S. at 229. As the
President of Constitutional Convention, E.B. Kruttschnitt, stated in his opening address:
I am called upon to preside over a little more than a family meeting of the Democratic
party of the State of Louisiana... We know that this convention has been called together
by tire people of the State to eliminate voters who have during the last quarter of a
century degraded our politics.3
And in closing argument, President Kruttschnitt bemoaned that the delegates have been
constrained by the Fifth Amendment from achieving “universal white manhood suffrage and the
exclusion from the suffrage of every man with a trace of African blood in his veins.” Id at 380.
He went on to proclaim:
1 say to you, that we can appeal to the conscience of the nation, both judicial and
legislative and I don't believe that they will take the responsibility of striking down die
system which we have reared in order to protect the purity of the ballot box and to
perpetuate the supremacy of the Anglo-Saxon race in Louisiana. [Id at 381].
This overtly racial sentiment was echoed in the closing remarks of Honorable Thomas J.
Semmes, who stated in the “mission” of die delegates had been “to establish the supremacy of the
white race in this state.” Id at 374. In sum, Louisiana's political climate and the dynamics of the
Louisiana Convention were exactly the same as those of its neighbors in Alabama in 1901.
Further, evidence of discriminatory intent is apparent from the unexplained “substantive
departure” from the universal, unquestioned, long-standing, well established rule in Louisiana that jury
verdicts must be unanimous. No explanation, independent of the trumpeted mission of re-establishing
■ white supremacy, can be found to explain this unprecedented action.
3 See: Official Journal of the Proceedings of the Constitutional Convention of the State of Louisiana, 8-9 (1898).
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Sadat EI-Anun v. Darrel Vannoy, Warden
6.
Finally, there is little doubt that the impact of the law “bears more heavily on one race than
another.” As juries in 1898 were highly unlikely to contain more than three black jurors, the absolute
nullification of the votes of the “peers” of black defendants was highly likely. On the other hand, the
possibility that a white defendant would face a predominately black jury was quite small or
nonexistent.
Considering these factors together, it is rather easy to see what the Louisiana legislators were
thinking when they decided to dispense with the centuries-old mainstay of common law criminal
justice: the unanimous jury verdict. Quite simply, with non-unanimous verdicts, African American
citizens charged with a crime were more likely than whites to end up being convicted if the votes of the
one or two potentially sympathetic black jurors who might end up on the jury can be nullified by the
votes of the remaining white jurors. Given that felons cannot vote, and given the overtly racial animus
of these white legislators, the intended disenfranchising effect of the new law is undeniably apparent.
Indeed, the direct racially disenfranchising effect of Louisiana's non-unanimous -verdict
provision is even more obvious and more insidious than the Matute struck down in Hunier. Unlike
Alabama's certain misdemeanors can't vote provision, for which the racial motivation behind its
passage is not self-evident, the discriminatory purpose of Louisiana's non-unanimous-jury provision is
quite obvious.
Plainly, racial discrimination was a substantial or motivating factor behind the enactment of
Louisiana's non-unanimous-jury provision that has survived several constitutional conventions and has
even undergone a change from a requirement that a guilty verdict must rest on a vote of 9-3 to the
current 10-2 requirement. Such a concern was addressed in Hunter:
At oral argument in this Court, the appellant's counsel suggested that, regardless of the
original purpose of § 182, events occurring in the succeeding 80 years had legitimated
the provision. Some of the more blatantly discriminatory selections, such as assault and
battery' on the wife and miscegenation, have been struck down by the courts, and
appellants' contend that the remaining crimes-felonies and moral turpitude
misdemeanors - are acceptable bases for denying tire franchise.
Without deciding whether § 182 would be valid if enacted today without any
impermissible motivation, we simply observe that its original enactment was motivated
by a desire to discriminate against blacks on account of race and the section continues to
this day to have that effect. As such, it violates equal protection under Arlington
Heights.4
In other words, the failure of well-intentioned lawmakers does not purge the taint of that law.
The non-unanimity requirement as bom of racial animus and subsequent constitutional conventions do
not change that fact, irrespective of the slight ameliorative tweaking of the provision that occurred
4 471 U.S. at 232-33.
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Sadat El-Andn v. Darrel Vannoy, Warden
when a legal verdict was changed from nine jurors to ten jurors.
Recent developments during the 2018 Regular Session of the Louisiana Legislation, where the
opponents of changing Louisiana's non-unanimous verdict Law admitted that the Law was premised on
racial discrimination. ANY Law based on racial discrimination cannot stand, and will be declared
unconstitutional by the United States Supreme Court.
This Honorable Court must consider the fact that on November 6, 2018, the voters of Louisiana
voted to change the Law' concerning non-unanimous verdicts. Although the new law only applies to
persons whose trial commences on or after January 1, 2019, the State admitted that the Law was
premised on racial discrimination during the arguments concerning such during the Legislative Session.
A Law based on discrimination cannot stand. Although the ballot failed to include the fact that the nonunanimous jury verdict was based on racial discrimination, the Constitutional Amendment was passed
by the voters of the State of Louisiana
Most amazingly, during the course of the 2018 Legislative Session concerning the possibility of
changing the Louisiana Constitution's amendment concerning non-unanimous juiy verdicts, die
prosecutors informed the Legislator's during the Hearing that they were going to address the “White
Elephant in die room.” 'Hie prosecutors admitted dial die non-unanimous jury verdict laws were based
/
on racially discrimination, but, “It is what it is,” ... “but it works.” It would appear that any hope the
State would have had to prevent the Bill’s passage was “shot out of the water” with these remarks
during the course of the hearing.5
Naturally, some of the Legislators had taken offense to to the District Attorneys' (John E
DeRosier [Calcasieu Parish], and Don M. Burkett [Sabine Parish]) statements which infuriated the
Panel to the point where they unanimously agree to send the amended Bill to die House of
Representatives for a lull vote. Although the Bill was amended to reflect Prospective Application only
to those arrested after January 1, 2019, the Legislators agreed that most likely the Federal Courts would
most likely rule that the new law had to be applied retroactively. This Bill was passed with a vast
majority of the Legislators.
The Ramos Court reversed Mr. Ramos' conviction and held that Louisiana's scheme of nonunanimous jury verdicts violated die Sixth and Fourteenth Amendments of the United States
Constitution.
In doing so, Justice Gorsuch, writing for the five-Justice majority, first articulated what the
5 Mr. El-Amin is unable to obtain a copy of the CD of the Committee Hearing in orda- to provide a copy to the Courts due
to the restrict ions of thi s institution.
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Sadat FJ-Anun v. Darrel Vannoy, Warden
Court hart “repeatedly” recognized over many years: the Sixth Amendment requires a unanimous jury
verdict. Id., at
(slip op., at 6).6 Then the Court adckessed the application of this rule to the states,
finding that “[t]here can be no question either that the Sixth Amendment's unanimity requirement
applies to state and federal trials equally,” as it is incorporated against the states under the Fourteenth
Amendment. Id., at___ (slip op., at 7).
This understanding of incorporation had also been “long explained” by the Court and was
supported by jurisprudence for over a half century. Id.1
Lastly, the Court addressed/lparfacrt y. Oregon. 406 U.S. 464 (1972). In Apodaca. a majority of
Justice recognized that the Sixth Amendment requires unanimity in jury verdicts. However, the Court
nonetheless upheld Oregon's system of non-unanimous jury verdicts in “a badly fractured set of
opinions.” Ramos, (slip op., at 8).
Four Justices in
case before them.8 Two Justices found that Apodaca was simply “irreconcilable” with the Court's
constitutional precedent, or “egregiously wrong,” and must be overturned.9 The Court concluded: “We
have an admittedly mistaken decision, on a constitutional issue, an outlier on the day it was decided,
one that's become lonelier with time.” Id., at___ (plurality opinion)(slip op., at 26). The Court could
not, and would not, rely on Apodaca to uphold Louisiana and Oregon's system of non-unanimous jury
verdicts.
C. The Holding in Ramos applies to Mr. El-Amin.
The United States Supreme Court's Holding in Ramos v. Louisiana, supra, should be applied
so as to vacate the conviction(s) of Mr. El-Amin.
(slip op., at 4)(“Wherever we might look to determine what tire tarn 'trial by an impartial jury trial1
6 See also Id, at
meant at the time of the Sixth Amendment's adoption - whether it's common law, state practices in the founding era, or
opinions and treatsies written soon afterward - the answer is unmistakable A jury must reach a unanimous verdict in
order to convict.”).
7 See also, HI, at___ (Kavanaugh, I, concurring in part)(slip op., at 10-ll)("the original meaning and this Court's
precedents establish that the Fourteenth Amendment, incorporates the Sixth Amendrnait jury trial right against the
States”); id, at__ (Thomas, J., concurring on the judgment)(slip op., at 4-5)(“Tha-e is also considerable evidence that
this understanding [of the 3ixth Amaidment's unanimity requirsnait] persisted up to the time of the Fourteenth
Amendment's ratification,”).
8 Joined by Justices Ginsberg and Breyer, Justice Gcrsuch explained that “Apodaca yielded no controlling opinion at all,”
Id., at _ (plurality opinion)(slip op., at 18), and “not even Louisiana tries to suggest that Apodaca supplies a governing
precedent.” Id., at___(plurality opmion)(dip op., at 1(5). In his separate concurring opinion, Justice Thomas found
Apodaca to be inapplicable in this case because it was decided on due process grounds, and in his opinion, the Sixth
Amendment is incorporated against the states through the Privileges and Immunity Clause of the Fourteenth
Amendment: Because “Apodaca addressed the Due Process Clause, its Fourteenth Amendment ruling does not bind us
because the proper question here is the scope of the Privileges or Immunities Clause.” Id, at___ (Thomas, J.,
concurring in the judgmentXshp op., at 8).
9 In her concurrence, Justice Sotomaycr wrote: Apodaca is “irreconcilable with not just one, but two, strands of
constitutional precedent well established both before and after the decision. The Court has long recognized that the Sixth
(Sotomayer, J., concurring in part)(slip op., at 2). In his concurring opinion.
Amendment requires unanimity,” Id, at
Justice Kavanaugh concluded that Apodaca must be reversed, as it is *Apodaca is egregiously wrong. The original
meaning and this Court's precedents establish that the Sixth Amendment requires a unanimous jury ... And the original
meaning and this Court's precedents establish that the Fourteenth Amendment incorporates the Sixth Amendment jury
trial right against, the States.” Id., at___(Kavanaugh, J., concurring in part)(slip op., at 11).
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Sadat El-Anim v. Darrel Vannoy, Warden
1. The Courts determined 40 years ago that rules relating to non-unanimous jury
verdicts should be retroactive.
The United States Supreme Court and the U.S. Fifth Circuit Court of Appeal have already made
clear that a determination that a non-unanimous juiy verdict violates the Sixth and Fourteenth
Amendments necessitates retroactive application.
In Burch v. Louisiana. 441 U.S. 130 (1979), Mr. Burch was charged with exhibiting two
obscene motion pictures. Id., at 132. Under Louisiana law, the court tried him before a six-person juiy.
Id A jury poll indicated that the juiy had voted five-to-one to convict him. Id. He appealed, arguing
that the Louisiana law permitting conviction with anon-unanimous six-member jury violated his rights
to a trial guaranteed by the Sixth and Fourteenth Amendments. Id, at 132-33.
The United States Supreme Court agreed and found that convictions by non-unanimous sixmember jury threatened the substance of the jury trial guarantee and violated the Constitution. Id, at 138.
In Brown v. Louisiana. 447 U.S. 323 (1980), the United States Supreme Court held that the
constitutional principle announced in Burdt - that conviction of anon-petty criminal offense in a state
court by a non-unanimous six-person juiy violates the accused's right to trial by jury guaranteed by the
Sixth and Fourteenth Amendments - “requires retroactive application.” Id., at 334 (“It is difficult to
envision a constitutional rule that more fundamentally implicates “the fairness of the trial - the very
integrity of the fact-finding process.” ... Any practice that threatens the jury's ability to perform that
function poses a similar threat: to the truth-determining process itself. The rale in Burdt was directed
toward elimination of just such a practice. Its purpose, therefore, clearly requires retroactive
application.”).
In Brown, the Court stressed that “[wjhere the major purpose of new constitutional doctrine is
to overcome an aspect of the criminal trial that substantially impacts its truth-finding function and so
raises serious quest ion about the accuracy' of guilty verdicts in past trials, the new rule has been given
complete retroactive effect. Neither good-faith reliance by state or federal authorities on prior
constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed
to require prospective application in these circumstances.” Id., at 328 (citing Williams v. UnitedSlotes.
401 U.S. 646, 653 (1971)(plura!ity opinion of White, J.); Ivan v. City of New York. 407 U.S. 203, 204
(1972)).
Stare Decisis binds this Court to follow the decision by the United States Supreme Court in
Brown. See: e.g. Ramos v. Louisiana, supra at __ (Kavanaugh, I, concurring in part)(slip op., at 10.
n. 5) “vertical stare decisis is absolute, as it must be in a hierarchical system with 'one supreme court.'”
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... In other words, the state courts and the other federal courts have a constitutional obligation to follow
a precedent of this Court unless and until it is overruled by this Court.”).
Following the United States Supreme Court's decision in Brown, two Fifth Circuit Court of
Appeal cases found that the Supreme Court ruling on unanimous jury verdicts in cases with six-person
juries required retroactive application to people seeking Post-Conviction Relief. Atkins v. ListL 625
F.2d 525, 525-26 (5th Cir. 1980); Thomasy. Blackburn. 623 F.2d 383, 384 (5tt Cir. 1980).
In the instant case, it is clear that the 11-1 non-unanimous jury verdict in Mr. El-Amin’s
criminal trial substantially impaired its truth-finding function and raises serious questions about the
accuracy of guilty verdicts in past trials. The State failed to submit any type of physical evidence,
including DNA or a rape kit in this matter. The fact that there were numerous other persons in the
residence at the time of the allegation, no one could corroborate the alleged victim's story.
As the State has not met that burden, Mr. El-Amin should be released and/or granted a new trial.
Considering the rulings in Brown. Atkins, and Thotnas. this Court should vacate the conviction
of Mr. El-Amin, and remand for anew trial or set Mr. El-Amin free.
In Teague v. Lane, the United States Supreme Court laid out the test for determining the
retroactive application offuture newly announced tides. However, Brown had already laid down the
nde for determining retroactivity of decisions concerning non-unanimous juries. Teague did not
purport to overrule Brown, and indeed cites it as the case that detenu ined the retroactivity of the tule in
Burch v. Louisiana. 441 U.S. 130 (1979) prohibiting non-unanimous verdicts in six-person juries.
v. Lane. 489 U.S. 288, 299 (1989).
2. The Ramos decision restates the principle that governed prior Supreme Court
cases, therefore it should be applied to Mr. El-Axnin's case.
The Supreme Court, in Ramos v. Louisiana, returns to the original founding principles that
were consistently applied, noting “This Court has, repeatedly and over many years, recognized that the
Sixth Amendment requires unanimity. As early as 1898, the Court said that a defendant enjoys a
“constitutional right to demand that his liberty should not be taken from him except by the joint action
of the court and the unanimous verdict of a jury' of twelve persons.” Ramos, (slip op., at 6).
In Teague v. Lane, the United States Supreme Court laid out the test for determining the
retroactive application of future newly announced rules. However, the Teague doctrine applies only to
future decisions that announces “new rules” of criminal procedure, not to those that are “merely an
application of the principle that governed” a prior Supreme Court case. Teague v. Lane. 489 U.S. 288,
307 (1989)(quotation and citation omitted); id., at 302 (“It is admittedly often difficult to determine
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11.
when a case announces a new rule, and we do not attempt to define the spectrum of what may or may
not constitute anew rule for retroactivity purposes.”). The Ramos decision falls into the latter category.
Teague does not apply.
The Supreme Court, in no fewer than 14 opinions, has explained that the Sixth Amendments;
Jury Trial Clause requires a “unanimous” verdict to convict, many before Mr. El-Amin's conviction
became final.
Tire first time the United States Supreme Court discussed the issue, it prononnced that the
Framers and the ratifying public believed “life and liberty, when involved in criminal prosecutions,
would not be adequately secured except through the unanimous verdict of twelve juror.” Thompson v.
State of Utah. 170 U.S. 343, 353 (1898)(emphasis added). Other contemporaneous descriptions of the
right to jury trial are in accord. See: Maxwell v. Daw. 176 U.S. 581, 586 (1900); Patton v. United
States; 281 U.S. 276, 288 (1930), abrogated on other grounds by Williams v. Florida. 399 U.S. 78
(1970).
Two generations after first addressing the unanimity isaie, this Court returned to the subject in
Andres v. United States. 333 U.S. 740 (1948). The issue there was whether afederal murder sentencing
statute allowed juries to impose- sentences by non-unanimous votes. See Id., at 746-47. Emphasizing
that the Sixth Amendment's Jury Trial Clause demands “[ujnanimity in jury verdicts,” the Court
construed the statute to require unanimity “upon both guilt and whether the punishment of death should
be imposed.”Id., at 748-49.
In Apodaca v. Oregon. 406 U.S. 404 (1972), a majority of the Court agreed yet again that the
Sixth Amendment requires jury unanimity to convict. Justice Powell accepted the “unbroken line of
cases reaching back into the late 1800's” hold that, under the Sixth Amendment, “unanimity is one of
the indispensable features of afederal jury trial.” Johnson v. Louisiana, 406 U.S. 356, 369 (1972)
(Powell, J., concurring in the judgment in Apodaca). Justice Stewart, writing for three Justices,
likewise concluded that “the Sixth Amendment's guarantee of atrial by jury embraces a guarantee that
the verdict of the jury must be unanimous.” Apodaca. 406 U.S., at 414-5 (Stewart, J., joined by
Brennan & Marshall, JJ., dissenting). Justice Douglas similarly maintained that “the Federal
Constitution require[s] a unanimous verdict in all criminal cases.” Johnson. 406 U.S., at 382 (Douglas,
J., joined by Brennan & Marshall, JJ., dissenting in Apodaca).
Subsequent decisions have continued to recognize that the Jury Trial Clause requires unanimity
to convict someone of a crime. In a line of cases involving the scope of the jury trial right, this Court
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has repeatedly explained that the Sixth Amendment requires that “the truth of every accusation ... be
confirmed by the unanimous suffrage of twelve of [the defendant's] equals and neighbors.” Apprendi v.
New Jersey. 530 U.S. 466, 477 (2000Xquoting 4 W. Blackstone, Commentaries on the Laws of
England 343; 349-50 (1769); accord S. Union Co. v. United States: 567 U.S. 343, 356 (2012); United
States v. Booker. 543 U.S. 220, 239 (2005); Blakely v. Washington. 542 U.S. 296, 301 (2004); United
States v. Gaudin, 515 U.S. 506, 510 (1995).
The United States Supreme Court has similarly relied on Andres and Justice Powell's opinion in
Apodaca to hold that “a jury in a federal criminal case cannot convict unless it unanimously find” each
element of a crime. Ridtardsan v. United States: 526 U.S. 813, 817 (1999Xemphasis added); see also:
Descamps v. United States. 570 U.S. 813, 817 (2013)(“The Sixth Amendment contemplates that a jury
...” will find the essential facts “unanimously and beyond a reasonable doubt.”) The Supreme Court
returned to the subject in two cases involving the incorporation of other provisions of the Bill of Rights.
Referencing Apodaca. the United States Supreme Court has noted that “the Sixth Amendment right to
trial by jiuy requires a unanimous jury verdict in federal criminal trials.” McDonald v. Chicago. 561
U.S. 742, 111 n. 14; see also Tunbs v. Indiana. 139 S.Ct. 682, 687 n. 1 (2019)(same); see also Ramos.
at___(slip op., at 13).
The outcome in Apodaca. the United States Supreme Court has explained, resulted from Justice
Powell's vote that the Fourteenth Amendment did not require states to fully abide by the Sixth
Amendment. See: McDonald. 561 U.S., at 766 n. 14; see also, Ramos. 590 U.S. at
., (slip op., at
14). And in Tunbs. the United States Supreme Court explained the reasoning in limbs was a sole
outlier in Supreme Court jurisprudence. limbs. 139 S.Ct., at 687 n. 1.
In Tunbs v. Indiana. 139 S.Ct. 682, 203 L.Ed.2d 682 (2/20/2019), the United States Supreme
Court held that: “A Bill of Rights protection is an incorporated protection, applicable to the States
under the Fourteenth Amendment's Due Process Clause, if it is fundamental to the scheme of ordered
liberty, or deeply rooted in the Nation's history and tradition. Fourteenth Amendment to the United
States Constitution. It must be noted that limbs was determined with a unanimous decision amongst
the Justices of the United St ates Supreme Court.
Furthermore, it must be noted that, “If a Bill of Rights is incorporated by the Fourteenth
Amendment's Due Process Clause, and the enforced against the States, there is no daylight between the
federal and state conduct it prohibits or requires. Fourteenth Amendment to the United States
Constitution.
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Although the question presented to the United States Supreme Court in Tbnbs concerned the
Eighth Amendment's Excessive Fines Clause, this case mirrors Tunbs in requesting that that Honorable
Court similarly determine that the Sixth Amendment right to a unanimous verdict guaranteed in the
federal courts is applicable to the State through the Fourteenth Amendment's Due Process Clause.
Any correct reading of Section 1 of the Fourteenth Amendment to the United States
Constitution would acknowledge that the Privileges and Immunities Clause provide an alternative basis
for applying to the States, at minimum, those individual rights enumerated in the first eight
Amendments (See: limbs v. Indiana, 139 S.Ct. 682, 691 (2019)(Gorsuch, J., concurring). Here, there
is a special reason to do so because Apodaca stands in the way of incoiporalion under the Due Process
Clause. Rather than ovemils Apodaca. the Court should hold that the Privileges and Immunities Clause
requires the States to convict people of serious crimes only be unanimous verdict of an “impartial
jury.”10 See: Fourteenth Amendment to the United States Constitution.
After all, the Constitution sets a floor of rights below which state authorities may not go; yet,
under the two-track approach, the state and local authorities can (and do) fall beneath the federal
constitutional minimum. See: Marc L. Miller & Ronald F. Wright, Leaky Floors: State Law Below
Federal Constitutional Limits, 50 Ariz.L.Rev. 227 (2008).
lh is Court should not allow the States to construct a basement of rights somewhere beneath the
federal floor. See: United States Constitution, Ait. Vi, cl. 2 (‘This Constitution ... shall be the supreme
Law of the Land; and the Judges in every State shall be bound thereby, any Tiling in the Constitution or
Laws of any State to the Contrary not withstanding”).
Overturning Apodaca was not hard. Justice Powell's concurrence was based on social science
more than law. His opinion acknowledges that the roots of the Sixth Amendment's unanimity
requirement run deep. And the import of that acknowledgment is that jury unanimity is a fundamental
right. On in social-science research and legal commentary did Justice Powell find “a legitimate basis
for experimentation and deviation from the federal blue-print,” id., when that blueprint is the
Constitution, Johnson v. Louisiana, 406 IJ.S. 366, 388 (1972)(Powell, J., concurring in the judgment
ofApodaca).
As the Ramos Court acknowledged, Justice Powell's vote in Apodaca embraced a notion that
had already been rejected by the Court: that the Fourteenth Amendment applies to the States only a
10 There is no textual basis fa- a two-track approach to incorporation under the Privileges and Immunities Clause because
rights of national citizenship - by definition - apply everywhere in the Nation, See: United States Constitution,
Amendment 14, § 1 (“No State strait make or enforce any law which shall abridge the privileges or immunities of
eiUzeas ofthe United States ...” (emphasis added).
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'watered-down', subjective version of the individual guarantees of the Bill of Rights.'” Ramos, 590
U.S., at
(slip op., at 15); Timbs. 139 S.Ct. 682, 203.
The outlier opinion in Apodaca is what the Ramos decision corrected. Therefore, for the
purposes of La.C.Cr.P. Art. 930.8(2), the ruling is a “therefore unknown interpretation of constitutional
law,” but is not a new rule under Teague.
This is similar to Stringer v. Black. 503 U.S. 222 (1992), where the Court held that its decision
in Maynard v. Cartwright. 486 U.S. 356 (1988), did not announce anew rule because it “applied the
same analysis and reasoning” found in a prior case. Stringer. 503 U.S., at 228.
But, there is never a legitimate basis for “deviation from the federal blue-print,” id., when the
blueprint is the Constitution, cf., McDonald v. City of Chicago. 561 U.S. 742, 790 (2010)(plurality
opinion ^Incorporation always restricts experimentation and local variations, but that has not stopped
the Court from incorporating virtually every other provision of the Bill of Rights”). See also: Burdi v.
Louisiana 441 U.S. 130, 138-9 (1979)(holding that the individual right to an “impartial jmy” prevails
against a date's interest in “'considerable time’ savings” that might be gained from using nonunanimous, six-person juries).
Tile Constitution is an inexorable command, impervious to “empirical research,” see Johnson.
406 U.S., at 374, n. 12 (Powell, J., concurring in the judgment in Apodaca) and unyielding to
“experimentation” in the States, id, at 377, even in service of such beneficial ends as “innovations with
respect to determining - fairly and more expeditiously - the guilt or innocence of the accused ” id., at
376.
Because “the Sixth Amendment requires a unanimous jury verdict to convict in a federal
criminal trial,” id, at 371 (emphasis in original), the same is required to convict a person in a state
criminal trial.
The Court should hold that the Sixth Amendment's guarantee ofjury unanimity is a privilege or
immunity of national citizenship, which Section 1 of the Fourteenth Amendment makes applicable to
the States. If the Court resolves the question presented on Due Process grounds instead, it should
overrule Apodaca and hold that the Sixth Amendment right to conviction by a unanimous jury applies
to States because it is deeply rooted in our Nation's history and traditions and fundamental to our
scheme of ordered liberty.
In Justice Gorsuch's concurring opinion in Timbs. the Honorable Justice stated:
The majority faithfully applies our precedent and, based on a wealth of historical
evidence, concludes that the Fourteenth Amendment incorporates the Eighth
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Amendment's Excessive Fines Clause against the States. I agree with that conclusion. As
an original matter, I acknowledge, the appropriate vehicle for incorporation may well be
the Fourteenth Amendment's Privileges or Immunities Clause, rather than, as this Court
has long assumed, the Due Process Clause."
Accordingly, the district court eired in accepting the non-unanimous verdicts in this case due to
the fact that Louisiana's non-unanimous jury system is unconstitutional because it violates the Equal
Protection Clause of the Fourteenth Amendment to the United States Constitution and Article One,
Section Three (3) of the Louisiana Constitution of 1974.
Here, in addition to the lone line of above cited cases supporting unanimous juries under the
Sixth Amendment, every other provision of the Bill of Rights has been found incorporated to the states
by the Fourteenth Amendment in am miner that shows “no daylight.” See; Timbs. 139 S.Ct., at 687 n. 1,
Ramos; 590 U.S. at
(slip op., at 13).
The Ramos decision only reiterated what the Court had long found: that the constitutional right
to a unanimous jury verdict applied equally in state and federal courts'’
This Cornt has repeatedly and over many years, recognized that the Sixth Amendment
requires unanimity ... There can be no question either that the Sixth Amendment's
unanimity' requirement applies to state and federal criminal trials equally. This Court has
long explained that the Sixth Amendment right to a jury trial is “fundamental to the
American scheme of justice” and incorporated against the States under the Fourteenth
Amendment. The Court has long explained, too, that incorporated provision of the Bill
or Rights bear the same content when asserted against States as they do when asserted
against the federal government. So if the Sixth Amendment's right to ajiuy trial requires
a unanimous verdict to support a conviction in federal court, it requires no less in state
court.
Ramos; Id., at___(slip op., at 6-7).
The only exception had been Apodaca. but it was clear to all that the exception did not comport
with the analysis and reasoning used for all other incorporation cases. This was so apparent, that the
State of Louisiana did not even seek to support the Apodaca holding in its brief in Ramos, or at Oral
Argument. Its only defense in support of Mr. Ram os'judgment was that the Sixth Amendment does not
require unanimity at all; that is, not in state courts or in federal courts - a position clefirly contrary to
the holding in Apodaca.
\
3. Alternatively, Teague v. Lane requires retroactive application of the holding in
Ramos v. Louisiana because it is a “watershed rule.”
If this Court were to undermine that the holding in Ramos somehow established anew rale,
then Teague still would not bar applying to Mr. El-Amin's claim because the Ramos rale qualifies as a
“watershed rale[] of criminal procedure.”11
11 It. may also not be barred because inherent in Romm is a substantive categorical guarantee that no person may be
convicted and sentenced to life without the benefit of Parole without the unanimous suffrage of twelve jurors.
This is not a question of the process - it. is a substantive holding prohibiting punishment at all without, a unanimous
verdict akin to JIbMgomery v. Lmukiatut, 136 S.Ct. 718, 193 L.Ed.2d 599, 613 (2016). There the Court explained that
the substantive rules include “rules for forbidding criminal punishment, of catain primary conduct," as well as “rule
prohibiting a certain category of punishment for a class of defendants because of their status or offense,” Louisiana was
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Ramos created a “'watershed mle of criminal procedure' implicating the fundamental fairness
and accuracy of the criminal proceeding,” like that of Gideon v. Waumright. 372 U.S. 335 (1963) and
should therefore have retroactive effect. Raffle v. Parks. 494 U.S. 484, 494-95 (1990)(citing Teague,,
489 U.S., at 311 (plurality opinion)). To implicate “fundamental fairness and accuracy, the rule must be
one “without which the likelihood of an accurate conviction is seriously diminished.” Schriro v.
Summerlin. 542 U.S. 348, 352 (2004)(intemal citations omitted).
The Court has previously used Gideon as the lodestar for determining watershed cases. See id.
In Gideon, the Court overruled Betts v. Brady. 316 U.S. 455 (1942), which had previously refused to
incorporate the Sixth Amendment Right to Counsel under the Fourteenth Amendment. 372 U.S., at 399.
Ten years prior to Betts, the Court found the right to counsel is fundamental and essential to a fair trial.
Powell v. Alabama. 287 U.S. 45, 68 (1932). Hie Court emphasized again in 1938 that the Sixth
Amendment guaranteed a right to appointed counsel in federal prosecutions where the defendant is
unable to employ counsel and that, unless the right is competently and intelligently waived, the “Sixth
Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or
his liberty.” Johnson v. Zerbst. 304 U.S. 4 58, 468 (1938). The Zerbst Court went on to describe the
assistance of counsel as “one of the safeguards of the Sixth Amendment Right deemed necessary to
insure fundamental human rights of life and liberty.” Id., at 462. The Gideon Court, in looking at this
precedent, found Betts to be an abeiration and its decision to be a restoration of “constitutional
principles established to achieve a fail' system ofjustice.” 372 U.S., at 344.
Just like in Gideon. Ramos incorporates a Sixth Amendment right into the Fourteenth
Amendment, following the foundation of prior minority opinions of the United States Supreme Court
as to the fundamental nature of unanimity injury verdicts. See: Ramos, 590 U.S., at __ (slip op., at
13); Andres v. United States. 333 U.S. 740, 748 (1948); Johnson v. Louisiana. 400 U.S., at 371,
(Powell, J., concurring); Id , at 397 (Stewart, J., dissenting).
In Andres, the Supreme Court unanimously held that the Bill of Rights requires a unanimous
jury verdict. 333 U.S., at 748 (“Unanimity in juiy verdicts is required where the Sixth and Seventh
Amendments apply.”). Then, in Johnson and Apodaca. five Justices agreed that the Sixth Amendment
required unanimity. See: Johnson. 406 U.S., at 371 (Powell, J., concurring)(“At the time the Bill of
Rights was adopted, unanimity had long been established as one of the attributes of a jury conviction at
common law. It therefore seems to me, in accord both with history and precedent, that the Sixth
the only state in the country sentencing people to life without the possibility of Parole with non-unanimous jiry verdicts.
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Amendment requires a unanimous jury verdict to convict in a federal criminal trial.”); Id., at 381-403
(dissenting opinions). However, because Justice Powell did not believe that the right should be
incorporated under the Fourteenth Amendment, state non-unanimous jury schemes were upheld as
constitutional. Johnson. 406 U.S., at 371 (Powell, J., concurring)(Concluding that unanimity is
required by the Sixth Amendment that “it is the Fourteenth Amendment, rather than the Sixth, that
imposes the States that requirement that they provide juty trials to those accused of serious crimes.”).
Justice Stewart's opinion provides an argument for fundamentally that echoes the sentiments
that the Gideon Court made regarding the fundamentally to the right to appointed counsel:
The guarantee against systematic discrimination in the selection of criminal court juries
is a fundamental of the Fourteenth Amendment. That has been the insistent message of
this Court in a line of decisions extending over nearly a century. The clear purpose of
these decisions has been to ensure universal participation of the citizenry in the
administration of criminal justice. Yet today's judgment approves the elimination of the
one rule that can ensure that such participation will be meaningful - the rale requiring
the assent of all jurors before a verdict of conviction or acquittal can be returned. Under
today's judgment, nine juror s can simply ignore the views of their fellow panel members
of a different race or class.
Johnson, 406 U.S., at 397 (Stewart, J., dissenting).
Justice Brennan and Justice Marshall joined in Justice Stewart's dissent, which went on to
criticize the majority for failing to recognize the reality that non-unanimous juries grossly undermines
the basic assurances of a fair criminal trial and public confidence in its result. Id., at 398. Justice
Marshall's dissent, joined by Justice Brennan, contained even stronger words than that of Justice
Stewart's:
Today the Court cuts the heart out of two of the most important and inseparable
safeguards the Bill of Rights offers a criminal defendant: the right to submit his case to a
jury, and the right to proof beyond a reasonable doubt. Together, these safeguards
occupy a fundamental place in our constitutional scheme, protecting the individual
defendant from the awesome power of the State.
Id., at 399-400 (Marshall, J., dissenting).
What the dissenters in Johnson rightfully pointed out, and what is underlying in Ramos, is that
non-unanimous juty verdicts solely diminished the likelihood of accur ate convictions, especially in
states during periods of time of intense racial discrimination.
Furthermore, a non-unanimous verdict is a structural error as it is a “defect affecting the
framework within tire trial proceeds, rather than simply an error in the trial process itself.” Arizona v.
Fuiminante. 499 U.S. 279, 310 (1991). Such an error cause the criminal trial to lose reliability in its
capability in serving tire function of determining guilt or innocence. Id. Although stnictural error is not
coextensive with Teague's watershed procedural rale exception, Tyler v. Cain. 533 U.S. 656, 666
(1991), a structural error that strikes at the fundamental fairness and accuracy of the criminal
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prosecution meets the standard of qualifying anew procedural rule for retroactive application
As the Court pointed out in Sckriro and Teague, “[t]hat the new procedural rule is 'fundamental'
in some abstract sense is not enough; the rule must be one 'without which (lie likelihood of an accurate
conviction is seriously diminished.” Schriro. 542 U.S., at 351 (citing Teague. 489 U.S., at 313).
Unanimous juries are not fundamental in an abstract way.
In line with Gideon. Ramos, is remarkable in its primacy and centrality of the truth finding
process. The United States Supreme Court has “long explained that the Sixth Amendment right to a
jury trial is 'fundamental to the American scheme of justice.'” Ramos. 590 U.S., at
(slip op., at 7).
The unanimity rule of the jury verdict is “an ancient guarantee:” “the American people chose to
enshrine that right in the Constitution ... They were seeking to ensure that their children's children
would enjoy Hie same hard-won liberty they enjoyed.”Id., at___(slip op., at 15)The unconstitutional nature of non-unanimous jury verdict fundamentally harms the accuracy
and fairness of the proceedings. Ramos corrects the mistake of the “univa se of one” that is Apodaca
and affords Louisiana ability to bring fairness to those individuals convicted outside of constitutional
precedent occurring before and after Apodaca. Id., at
(Sotomayer, .T., concurring in part)(slip op., at
2). Ramos meets the threshold set out in Teague. It is a watershed case that encompasses the core of a
right to atrial by juiy, and as such, this court should apply /tonesretroactively to Mr. E!-Ainin's case.
4. Alternatively, the State of Louisiana should depart from Teague v. Lane. as
allowed in Danforth v. Minnesota.
Courts in Louisiana have their own obligation to enforce the Constitutional guarantees and csm
ensure constitutional protections broader than those articulated in Teague v. Lane. As Danforth v.
Minnesota held that Teague does not constrain the authority of state courts to give broader effect to
new rules of criminal procedure than is required by that opinion. 522 U.S. 264, 291 (2008). It is
significant to note that Teague v. Lane announces only a rule for prospective federal habeas review.
Leaving to the states the obligations to fulfill their constitutional responsibility.
Mr. El-Amin asks this Court to fulfill its constitutional responsibility and give effect to Ramos
and adopt one of the following rules to govern retroactivity in Louisiana
Where the major purpose of constitutional doctrine is to overcome a practice rooted in extreme
systemic racism so as to substantially impair the legitimacy of Louisiana's criminal justice system, and
to impair the truth-finding function of criminal trials raising serious questions about the accuracy of
guilty verdicts in past trials, the new rule will be given complete retroactive effect and neither- goodfaith reliance by state or federal authorities on prior constitutional law or accepted practice, nor sever
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impact on die administration ofjustice justify require prospective application in these circumstances.
Where the major purpose of a constitutional doctrine is to overcome an aspect of the criminal
trial that substantially impairs its tnith-finding function and so raises serious questions about the
accuracy of guilty verdicts in past trials, die rule will be given complete retroactive effect.
Where the major purpose of a constitutional doctrine is to restore credibility and faith in die
criminal justice system, the rule should apply to all litigants.
Here, evidence of wrongful convictions relating to non-unanimousjury verdicts are significant.
Moreover, the roots of this law are deeply rooted in extreme systemic racism.12 The practice
came from Reconstruction, when whites fought to return their state, to some sense of what they
considered normalcy prior to the Civil War. Non-unanimousjury convictions systematically discounted
the opinions ofjurors of color and contributed to a significant number of wrongful convictions, some of
which later led to exonerations. It corrupted the jury process by silencing skeptical viewpoints,
depriving the other jurors of a full view of the evidence. This practice shipped the Louisiana criminal
justice system of credibility', making all Louisianians less safe. A significant number of exonerations
have been tied to non-unanimousjury verdicts.
5. The Ramos Court now acknowledges its mistake in Apodaca. and but for this
mistake, Mr. El-Amin would have had a constitutional trial.
The United States Supreme Court has now explicitly found that Apodaca was “an admittedly
mistaken decision.” Ramos at
(slip op., at 26). Justice Kavanaugh, in a separate concurrence, found
that Apodaca was “egregiously wrong” and incompatible with the original meaning of the Sixth and
Fourteenth Amendments. Id, at
(slip op., at ll)(Kavanaugh, J., concurring). Justice Sotomayer
found that Apodaca was “irreconcilable with not just one, but two, strands of constitutional precedent
well established both before and after the decision.” Id., at
(slip op., at 2)(Sotomayer, J.,
concurring). Not even the dissenting Justice, defended the Apodaca opinion, finding only that
“whatever one may think about the correctness of the decision, it has elicited and entirely reasonable
reliance.” Id., at __(slip op., at 2)(Alito, 1, dissenting).
If it were not for the error oftlie United States Supreme Court, Mr. El-Amin would have had the
jury trial the Constitution afforded him.
The State of Louisiana did not even believe Apodaca was correctly decided. As previously
12 “Though it's hai-d to say why these laws persist, their origins are dear. Louisiana first endorsed non-unanimous verdicts
fcr serious crimes at a Constitutional Convention in 1898. According to one committee chainnan, the avowed purpose of
that Convention was to “establish the supremacy white race,” and the resulting document included many of the trappings
of the Jim Crow era: a poll tax, a combined literacy and property ownership test, and a grandfather clause that in practice
(slip op., at 1),
exempted white residents from the most onerous of these requirements.” Samos, 590 U.S. at
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discussed, the State did not argue that Apodaoa was good law, the citizens of Louisiana have rejected
non-unanimous jury verdicts, and even the dissent of Ramos “tacitly ... admit[s] that the Constitution
forbids States from using non-unanimous juries.” Ramos 590 U.S. at___(slip op., at 1). Mr. El-Amin
should not be permanently deprived of his constitutional rights because of an admittedly faulty
interpretation of law con\.ro\\z&.” Agodgca is egregiously wrong.” Id., at (slip op., at ll)(Kavanaugh, J.,
concurring). Louisiana cannot allow Mr. El-Amin's conviction to stand merely to “perpetuate
something we all know is wrong only because we fear the consequences of being right.” Id., at
(slip op., at 36).
(2) PRESERVATION IS NOT REQUIRED IN ORDER TO RAISE THE ISSUE
OF NON-UNANIMOUS .JURY VERDICTS.
1. Mr. El-Amin is entitled to relief regardless of preservation.
To the best of Mr. El-Amin's knowledge, Mr. EI-Amin's attorney did not make an objection or
motion opposing a non-unanimous jury at the trial court level or on appeal. Mr. El-Amin also did not
raise this issue during Post-Conviction.
Although Stale law requires that the defense bring error to the attention of the trial coiut within
a reasonable time, La.C.Cr.P. Arts. 770, 771, 841, there is a long established exception to this
contemporaneous objection regime where the objection would “a vain and useless act.” State v. Ervin.
340 So.2d 1379 (La. 1976); State y. Lee. 346 So.2d 682 (La. 1977).
The unanimity claim raised here was not remotely available at the time of Mr. El-Amin's trial
(or appeal). Rather, it had been foreclosed by the Supreme Court's Apodaca v. Oregon and Johnson v.
Louisiana rulings.
No court - state or federal - below the Supreme Court, could alter Apodaca or Johnson. See:
Agostini v. Felton. 521 U.S. 203, 237-38 (1997)(“if aprecedent of this Court has direct application to a
case, yet appears to rest on reasons rejected in some other line of cases, the [lower courts] should
follow the case which directly controls, leaving to this Court the prerogative of overruling its own
decisions,” quoting Rodrigues de Ouijas v. Shearson/Amerioan Express; Inc. 490 U.S. 477, 484
(1989)). Thus, because this rule was not available until the Court's decision in Ramos overruling
Apodaca and Johnson, it was not reasonable available and there is adequate cause to excuse it not
being presented sooner. See: Reed v. Ross. 468 U.S. 1,17 (1984).
Moreover, the conviction based upon a non-unanimous jury verdict is error patent, reviewable
on appeal without an Assignment of Error based upon La.C.Cr.P. Art. 920 (detailing the matters that
may be considered on appeal .2). An error that is discoverable by a mere inspection of the pleadings
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and proceedings and without inspection of the evidence. See also: State v. Wrestle, Inc., 360 So.2d 831,
837 (La. 1978X[W]e have held without discussion that under such circumstances we may, from the
Minute Entry, discover by mere inspection the basis for a defendant's contention that a non-unanimous
jury verdict represents constitutional en or patent on the face of the proceedings”); State v. Bradford.
298 So.2d 781 (La. 1974); State y, Biasas. 255 So.2d 77 (La 1971); State r. Arceneattx. 2019-60
(La App. 3^ Cir. 10/09/19)(“The defendant is coirect in that if the Supreme Court finds a nonunanimous jury verdict to be unconst itutional for the types of verdicts returned in the present case and
if the Supreme Court applies such a holding retroactively to include the jury verdicts returned in the
present case, the verdicts returned in the present case would be improper and would be considered an
eiTor patent.”); State v. Ardison. 277 So.3d 883, 897 (La. App. 2nd Cir. 6/26/19)(<‘Under Louisiana law,
the requirement of a unanimous jury conviction specifically applies only to crimes committed after
January 1, 2019. The instance crimes were committed in 2017, and thus, the amended unanimous jury
requirement is inapplicable to Ardison'st case. Art&son's assertion of an “error patent” is without
merit.”); State v. A ucmn, 500 So.2d 921, 925 (La Ct. App. 1987)(In our earlier opinion, Sttie v.
Aucain. 488 So.2d 1336 (La App. 3rd Cir. 1986), pursuant to court policy, the record was inspected and
we found a patent error from the polling of the jury; the verdict represented a finding of guilty with
only nine jurors concurring when ten is required. We reversed and remanded the case. The State filed
an Application for a Rehearing alleging that the polling of the jury actually was a then to two verdict
but there was an error in transcribing the polling of the jury and requeued an opportunity to correct the
transcript.”).
If the Court follows the appropriate law above, the Court can rule solely on the issue of whether
Mr. El-Amin's conviction should be reversed as unconstitutional.
However, if this Court finds that Mr. El-Amin is foreclosed from relief for failing to raise the
non-unanimous jury claim at any point in the proceeding prior to the Application for Post-Conviction
Relief, Mr. El-Amin asserts that his counsel was ineffective for this failure. As detailed in the section
below, if the result of the failing to object were to foreclose Mr. El-Am in from raising a claim regarding
the retroactivity of Ramos, the error must be at such a level as to meet the requirements of ineffective
assistance of counsel.
Under the standard set out in Striddand v. Washington. 466 U.S. 668 (1984), and State v.
Washington, 491 So.2d 1337 (La. 1986), a conviction must be reversed if the Petitioner proves (1) that
counsel's peiformance fell below an objective standard of reasonableness under prevailing professional
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norms, and (2) counsel's inadequate performance prejudiced defendant to the extent that the trial was
rendered unfair and the verdict suspect. State v. Leqrand. 864 So.2d 1462 (La. 12/03/03).
When determining the first prong of the ineffective assistance of counsel prong is met, the
inquiry is whether defense counsel's conduct was deficient. State ex rel. Craddock i. State. 225 So.3d
452, 455 (La. 09/15/17), where the Louisiana Supreme Court stated “proper standard for attorney
performance is that of reasonably effective assistance.” Failing to object may be deficient conduct
sufficient to reach ineffective assistance of counsel if counsel should have objected.” In State v.
Truehill. the Third Circuit Court of Appeal analyzed the accused counsel's failure to object to
inadmissible evidence under the Louisiana Code of Evidence. State y. Truehitl. 38 So.3d 1246 (La.
App. 3ld Cir. 06/02/10). In that case, hearsay statements were admitted, a violation of the LSA-C.E.
Article 804. The Court found that, “[bjecause the evidence was inadmissible under the La Code Evid.
Art. 804, defense counsel's failure to object to the evidence constituted a deficient performance.” Id.
Here, if the Court as sells that Mr. El-Am in is unable to achieve relief on Post-Conviction for his
counsel's failure, to object or otherwise challenge the use of non-unanimous juries, then it is clear that
counsel should have raised such an objection.
Mr. El-Amin is serving a mandatory life imprisonment at hard labor for Forcible Rape. Polling
following the 11-1 verdict revealed that one juror voted for not guilty. State v. Mr. El-Amin. Upon
learning that the juiy was non-unanimous, defense counsel should have lodged a contemporaneous
objection. Mr. El-Amin seeks Post-Conviction Relief relief with clarity from the United States Supreme
Court concerning improper incorporation of his constitutional rights. Mr. El-Amin should be able to
asseit his arguments for the appropriateness of anew trial or his release and not be constrained by his
■ trial counsel's failure to object.
As to the second prong, the United States Supreme Court has held that the benchmark for
judging a charge of ineffectiveness is whether the attorney's conduct was so ineffective that it
undermined the proper functioning of the adversarial process that the trial cannot be considered to have
produced a just result. United States v. Crania 466 U.S. 648 (1984); Strickland v. Washington. 466
U.S. 668 (1984). Proving prejudice requires that a Petitioner demonstrate that there is a “reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would have been
different,” and a reasonable probability “is a probability sufficient to undermine confidence in the
outcome.”Strickland. 466 U.S., at 694.
For the reasons asserted above, and in Ramos, it is clear that non-unanimous juries undermine
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the proper functioning of the court system. Non-unanimous jury convictions systematically discounted
the opinions ofjurors of color and contributed to a significant number of wrongful convictions, some of
which later led to exonerations. It corrupted die jury process by silencing skeptical viewpoints,
depriving the other jurors of a full view of the evidence. This practice stripped the Louisiana criminal
justice system of credibility, making all Louisiana less safe. Louisiana courts inherited a practice that
undermined the proper functioning of the adversarial process, and if the remedy of die undermining is
unavailable to Mr. El-Amin, it should follow that the second prong of the ineffective assistance of
counsel prong is met.
Failure to object to the constitutionality of the non-unanimous jury verdict constituted deficient
performance by the defense counsel. See e.g., Glover v. United Stc&es. 531 U.S. 198, 203 (2001); Scott
r. Louisiana, 934 F.2d 631, 634 (5,h Cir. 1991)(fmding failure to object to an instruction allowing
conviction of Attempted Second Degree Murder where there was only the intent to commit serious
bodily harm constitutes deficient performance.); Gray v. Lynn. 6 F.3d 265, 269 (5,h Cir. 1993)(“the
failure by Gray's counsel to object to the erroneous instruction 'cannot be considered to be within the
wide range of professionally competent assistance.'"); Summit v. Blackburn. 795 F.2d 1237 (5th Cir.
1986); Henry v. Scully. 78 F.3d 51, 53 (2ild Cir. 1996)(counsel ineffective for failing to object to
instruction); State v. Jackson. 733 So.2d 736 (La. App. 4th Cir. 1989)(counsel ineffective for failing to
object to instruction!: State v. BalL 554 So.2d 114,115 (La Ct. App. 1989)(counsel attempted murder
case ineffective for failing to object to state argument and judge's erroneous instructions which told jury
that intent to inflict bodily harm would support the conviction because an attempted murder requires a
specific intent to kill). Even if die objection would have been rejected, counsel still had an obligation.
C.f, Engle v. Isaac, 456 U.S. 107, 130 (1982)(“if a defendant perceives a constitutional claim and
believes it may find favor in the federal courts, he may not bypass the state courts simply because he
thinks they will be unsympathetic to the claim. Even a state court that has previously rejected a
constitutional argument may decide, upon reflection, that the contention is valid.”).
To the extent the State argues that the failure to challenge the constitutionality of Louisiana's
non-unanimous jury verdict, and/or the failure to raise the issue on appeal, constitutes a procedural bar
preventing Mr. El-Amin from raising the claim today, Mr. El-Amin was prejudiced from counsel's
failure to raise the issue.
Wherefore, Mr. El-Amin moves this Court to order a hearing on the allegations contained
herein, and to grant the Application for Post-Conviction Relief.
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(3)Ramos meets the test for retroactive application enunciated by the Supreme
Court in Teague v. Lane.
Ramos meets the test for retroactive application enunciated by the Supreme Court in Teague v.
Lane, 489 U.S. 288 (1989). It is time we abandoned our use of Teague in favor of a retroactivity test
that takes into account the harm done by the past use of a particular law. By either route, Louisiana
should give Ram os retroact ive effect.
In 1992, the State of Louisiana adopted Teague's test for determining whether decisions
affecting rights of criminal procedure would be retroactively applied to cases in state collateral review.
State ex re!. Taylor v. Whitley. 606 So.2d 1292,1296 (La. 1992). In relevant part, Teague only requires
retroactive application of a new rule if it is a “watershed rule of criminal procedure” that “implicates
the fundamental fairness [and accuracy]” of the criminal proceeding. Teague. 489 U.S. at 311-312.
Ramos meets that definition. It plainly announced a watershed rule. “Die Sixth Amendment
right to a jury t rial is 'fundamental to the American scheme of justice' and incorporated gainst the
Stales under the Fourteenth Amendment” Ramos. 140 S.Ct. at 1397 (citing Duncan v. Louisiana. 391
U.S. 145, 148-50 (1968). Therefore, the remaining question under Teague is whether the Ramos rule
implicates fundamental fairness and accuracy. Because this Court denied the instant Writ Application,
we do not have a fill briefing on this issue. However, the existing Ramos record alone supports the.
conclusion that it does. Die law that Ramos struck was designed to discriminate against AfricanAmericans and it has been successful. For the last 120 years, it has silenced and sidelined AfricanAmericans in criminal proceedings and cause questionable convictions throughout Louisiana.
The post-Reconstniction Louisiana Constitutional Convention of 1898 sought to “establish the
supremacy of the white race.” Ramos. 140 S.Ct. at 1394. It “approved non-unanimous juries as one
pillar of comprehensive and brutal program of racist Jim Crow' measures against African-Americans,
especially in voting and juiy service.” Id, at 1417 (Kavanangh, I, concurring in part). “[A] ware that
this Court would strike down any policy of overt discrimination against African-American jurors as a
violation of the Fourteenth Amendment, the delegates sought to undermine African-American
participation on juries in another way. With a careful eye on racial demographics, the convention
delegates sculpted a 'facially race-neutral” rule ... in order “to ensure that African-American juror
service would be. meaningless.'”Id.
Data allowing that votes of African-American jurors have been disproportionately silenced is
compelling evidence that the use of pve-Ramos rule affected the fundamental fairness and accuracy of
criminal trials. “In light of the racist origins of the non-unanimous jury, it is no surprise that non\\Mepd05\ICS\lp-dcon3tance80Y''ly Documented ients\E\El-Amin #29296 l\ei-amin sadat 10-2 pcr,2.odt
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25.
unanimous Julies can make a difference in practice, especially in cases involving black defendants,
victims, or jurors.” Id., at 1417 (Kavanaugh, J., concurring in part). The whole point of the law was to
make it easier to convict African-American defendants at criminal trials, even when some of the jurors
themselves were African-American. By Louisiana’s Constitutional Convention of 1974, which
reauthorized the use of the Jim Crow law, the expected ease of convicting African-Americans in
Louisiana had come to simply be described as “judicial efficiency.” State v. Hanhton. 122 So.3d 1193
(La. App. 4th Cir. 8/2/13).
But despite “race neutral” language justifying the law in 1974, it has continued to have a
detrimental effect on African -American citizens.13 “Then and nownon-unaninious juries can silence the
voices and negate the votes of black jurors, especially in cases with black defendants or black victims,
and only one or two black jurors. The 10 jurors “can simply ignore the views of their fellow panel
members of a different race or class.” Johnson v. Louisiana. 406 U.S. 356, 397 (1972)(Steward, J.,
dissenting).” Ramos. 140 S.Ct. at 1414-18)(Kavanaugh, J., concurring in part).
Approximately 32% of Louisiana's population is Black. Yet, according to the Louisiana
Department of Corrections, 69.9% of prisoners incarcerated for felony convictions are Black. Again,
this grossly disproportionate backdrop, it cannot be seriously contended that our longtime use of a law
deliberately designed to enable majority-White juries to ignore the opinions and votes of Black jurors
at trials of Black defendants has not affected the fundamental fairness of Louisiana's criminal legal
system. The original discriminatory purpose and the lasting discriminatory effect of the non-unanimous
jury rale all implicate fundamental fairness.
The rights at issue here also directly implicate the accuracy of convictions. While many of those
convicted by non-unanimous juries are surely guilty of the crimes of which they were convicted, we
still have a subset of convictions where at least one - but often two - jurors had sufficient doubt of the
accused's guilt to vote “not guilty.” Experience teaches, and the Ramos decision reiterates, that those
“not guilty” votes should not be cavalierly dismissed as meaningless:
Who can say whether any particular hung juiy is a waste, rather than an example of a
jury doing exactly what the \Apodacd) plurality said it should - deliberating carefully
and safeguarding against overzealous prosecutions? And what about the fact, too, that
some studies ... profess to have found that requiring the unanimity may provide other
possible benefits, including more open-minded and more thorough deliberations?
13 Data on non-unanimous jury verdicts contained in the record of State « Mehin Cortez Mnxte. ll*1 Judicial District
Court, No. 13-CR-72522 and submitted to the Supreme Court in the JointAppendix in Ramos « Lonisiuua. shows that
Alrican-Arnericans have bear 30 percent more likely t:o be convicted by non-unanimous juries than white defendants
and that African-American jura’s cast, "empty” votes at 64 percent above the expected rate whereas white jurors cased
“empty" votes at 32 percent less that the expected rate if empty votes were evenly dispersed amongst, all jurors. Rtgags
« Lotusimm. 2018 WL 8545357, at *51 (2018).
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Ramos. 140 S.Ct., at 1401.
We need not look far back in history to be reminded that sometimes the will or opinion of a
majority is wrong and the dissenting minority was factually, or morally, correct. But during the 120
years of Louisiana's non-unanimous jury scheme, jurors on the majority never had reason to consider
the perspective or opinion of a minority dissenting jurors, because - by design - once the jury reached
a consensus of ten, dissenting voices became irrelevant. While we will likely never know how many
factually inaccurate convictions have rested on non-unanimous jury verdicts, nor in how many the rule
was a pivotal cause of the wrongful conviction, we know they have occurred.14
The non-unanimous jury rule has “allowjed] convictions of some who would not be convicted
under the proper constitutional rule, and [has] tolerate[d] and reinforce[d] a. practice that is thoroughly
racist in its origin and has continuing racially discriminatory effects.” Ramos. 140 S.Ct., at 1419
(Kavanaugh, J., concurring in part). By Justice Kavanaugh's accurate summary alone, Ramos satisfies
the relevant portion of Teague's test and should be applied retroactively by Louisiana courts.
But we are not bound to continue using Teague's test, and there ar e good reasons to abandon
our decision in Taylor that adopted it. There was little in the Taylor rationale that commands our
continued adherence to Teague. Dissenting in Taylor. Chief Justice Calogero explained why Teagues
premise did not apply to state courts: “[FJederal courts have indicated that their reduced intrusion into
state criminal process is motivated by concerns of federalism and comity. State courts should not
blindly adopt these new criteria, because the concerns of federalism and comity are absent from state
criminal court proceedings.” Taylor, 606 So.2d at 1301 (Calogero, C.J., dissenting). Since this Court
decided Taylor in 1992, Congress and the federal courts have created ever more restrictions on the
availability of the federal writ of habeas corpus to prisoners convicted in state court, further
undermining the premise of Taylor and creating additional imperative for us to revisit its holding.
Die importance of the Ram os decision - and the historic symbolism of the law that it stiuck present the opportunity to reassess Taylor and the wisdom of Louisiana using the Teague standard in
retroactivity analysis. Lwe should. Die original purpose of the non-unanimous jury law, its continued
use, and the disproportionate and detrimental impact it has had on African-American citizens for 120
years is Louisiana's history. Die recent campaign to end the use of the law is already part of the history
of this state's long and ongoing struggle for racial justice and equal rights for all Louisianans. That
campaign meant meant many more citizens now understand the law's origins, purpose, and
14 In 2019 alone, two Louisiana men who have been convicted by non-unanimous juries were exonerated and freed after
fingerprint database searches identified the true perpetrators in both cases. Archie Williams spait 36 years wrongfully
imprisoned for rape and attempted murder and Royal Clark spent 17 years wrongly imprisoned fer Armed Robbery.
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V
discriminatory impact. And that understanding contributes to a cynicism and fatal mistrust Louisiana's
criminal justice system by many citizens who seek the lack of fundamental fairness and equal
protection afforded to all. It is time that our state courts - not the United States Supreme Court decided that whether we should address the damage done by our longtime use of an invidious law.
The racist history of the law was not explicitly relevant to the Supreme Court's determination
dial the Sixth Amendment requires jury unanimity. However, a majority of the Justices considered hat
history as one of the principled justifications for abandoning stare decisis and departing from the
“gravely mistaken” and “egregiously wrong” “outlier” precedent ofApodaca v. Oregon. 404 U.S. 406
(1972)(in which a plurality of the Supreme Court held that Oregon and Louisiana's non-unanimous jury
schemes did not violate the Sixth Amendment) in favor of a correct interpretation of the Sixth
Amendment's jury requirement. Ramos. 140 S.Ct., at 1405, 1418.15 That history should be just as - if
not more - persuasive to us in deciding whether to overrule the erroneously reasoned Tavlor case. This
Court should be persuaded that we should replace Teaguds test with one that, at least in part, weighs
the discriminatory law that has disproportionately affected Black defendants and Black jurors. There is
no principled or moral justification for differentiating between the remedy for a prisoner convicted by
that law whose case is on direct review and one whose conviction is final. Both are equally the product
of racist and unconstitutional law. If concerns of comity and federalism ultimately mean that the federal
courts do not force us to remedy those convictions which are already final through a writ of habeas
coqius, the moral and ethical obligation upon courts of this state to address the racial stain of our own
history' is even more compelling, not less.
“Any decision by [the Supreme.] Court that a new ruled does not apply retroactively under
Teague does not imply that there was no right and thus no violation of that right at the time of trial only that no remedy will be provided in federal habeas courts.” Dan forth. 552 U.S., at 291. This Court
must determine that we must formulate a new test for determining whether a decision be applied
retroactively; one that includes a consideration of whether a stricken law had a racist origin, has had a
disproportionate impact on cognizable groups or has otherwise contributed to our state's history' of
15 The Court’s majority opinion noted that “ Aportacu was gravely mistaken (and] no Member of the Court today defends
[it] as rightly decided ... The [Agoitaea] plurality spent almost no time grappling with the racist origins of Louisiana’s
and Oregon's laws.” Ramos-, 140 S.Ct., at 1405. Justice Kavanaugh further explained the relevance of the law’s history:
”... [T]he disputed question here is whether to ovarule an erroneous constitutional precedent that allowed
non-unanimous juries. An on that question - the question whether to overrule - the Jim Crow origins and
racially discriminatcry effects (and the perception thereof) of non-unanimous juries in Louisiana and Oregon
should matter and should count heavily in favor of overruling, in my respectful view. Alla- all, the nonunanimous jury is today the last of Louisiana's Jim Crow laws.1 And this Court has emphasized time and again
the 'imperative to purge racial prejudice from the administration of justice' generally and from the jury system
in particuiar,”
Romas, 140 S.Ct., at 1418 (Kavanaugh, J. additionally concutring)(citing T. Aiello, Jim Crow's Last Stand: non-unanimous
criminal jury verdicts in Louisiana, 63 (2015).
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systematic discrimination against African-Americans. And under any such test, this couit must find that
Ramos would have to be retroactively applied.
We should not reject retroactivity through a fear that we will “provoke a 'crushing tsunami' of
follow-on litigation.” Ramos. 140 S.Ct., at 1406. The Court made clear in Ramos that such functional
assessments have no place in considering fundamental rights. “The deeper problem is that the
[Apodacd| plurality subjected the ancient guarantee of a unanimous jury verdict to its own functionalist
assessment should have no place in our decision as to whose convictions will be remedied by Ramos.
Even if we perform such a functionalist assessment, the benefits of applying Ramos retroactively
greatly outweigh the costs. To be sure, addressing a history of legally-sanctioned racism in our criminal
system will come with a significant fiscal and administrative cost. But it is a cost we must bear if we
mean to show that we guarantee all Louisiana!)s equal justice. We must not “perpetuate something we
all know to be wrong only because we fear the consequences of being right.” Id., at 1408. Hie cost of
giving new trials to all defendants convicted by noil-unanimous juries pales in comparison to the long
term societal cost of perpetuating - by our own inaction - a deeply-ingrained distrust of law
enforcement, criminal justice, and Louisiana's government institutions.
Defendants convicted by non-unanimous jury verdicts are prisoners of a law that was designed
to discriminate against them and disproportionately silence African-American jurors. Simply pledging
to uphold the Constitution in future criminal trials does not heal the wounds already inflicted on:
Louisiana's African-American community by the use of this law for 120 years. The reality that harm
“and the resulting perception of unfairness and racial bias - [has] underm ine[d] confidence in and
respect for the criminal justice system.” Id., at 1418 (Kavanaugh, 1, concurring in part). At stake here
is the very legitimacy of the rule of law', which depends upon all citizens having confidence in the
courts to1 apply equal justice.
SUMMARY
Mr. El-Amin has shown this Honorable Court that he was denied his Due Process of Law as
guaranteed by the Sixth and Fourteenth Amendments to the United Stales Constitution.
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Sadat El-Amin v. Barrel Vannoy, Warden
APPENDIX “B”
DISTRICT COURT RULING
t
SADAT EL-AM IN
DKT. NO. 09-CR1-101854 DIVISION E
•'
:
V.
22ND JUDICIAL DISTRICT COURT
PARISH OF WASHINGTON
DARREL VANNOY, WARDEN
STATE OF LOUISIANA
FILED:
MINUTE CLERK
ORDER WITH REASONS
Petitioner filed a Motion to Clarify District Court Ruling and a Notice of Intent to Seek
Writs, seeking clarity of conflicting court orders in the above-captioned matter. Petitioner had
filed an Application for Post-Conviction Relief on August 10, 2020. On August 28, 2020, a
Motion for Stay of Post-Conviction Relief Proceedings was filed by the state but was
inadvertently presented to and signed by the judge of another division due to a mistake in the
caption. Thereafter, this Court issued reasons dismissing the application without prejudice on
October 7, 2020. Following receipt of the petitioner's Motion to Clarify District Court Ruling
and review of the record, the order granting the Motion for Stay of Post-Conviction Relief
Proceedings was vacated on November 17, 2020. Accordingly, the Application for PostConviction Relief has been dismissed pursuant to the orders of this Court on October 7, 2020.
If IS ORDERED that the Clerk of Court of the Parish of Washington give notice of this
order to petitioner and to the District Attorney for the Parish of Washington.
Covington, Louisiana, this
day of
., 2020.
JL
JUDGEAVILLIAM H. BURRIS, DIV. E
'-A? ■'
it)'*
2.c
ISP'**
APPENDIX “D
LOUISIANA 1st COURT OF APPEAL:
RULING
♦
Office Of The Clerk
Court of Appeal, First Circuit
State of Louisiana
www.lft-fcca.org
Rodd Naquin
Clerk of Court
Notice of Judgment and Disposition
Post Office Box 4408
Baton Rouge, LA
70821-4408
(225) 382*3000
December 30, 2020
Docket Number: 2020 - KW - 1069
State Of Louisiana
versus
Sadat El-Amin
TO:
Sadat El-Amin
Spruce 3
Louisiana State Penitentiary
Angola, LA 70712
Warren LeDoux Montgomery
701 N. Columbia Street
Covington, LA 70433
wmontgomery@22da.com
William H. Burris
701 N. Columbia Street
Covington, LA70433
In accordance with Local Rule 6 of the Court of Appeal, First Circuit, I hereby certify that this notice of judgment and
disposition and the attached disposition were transmitted this date to the trial judge or equivalent, all counsel of record,
and all parties not represented by counsel.
/'
RODD NAQUIN *
CLERK OF COURT
STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT
NO. 2020 KW 1069
STATE OF LOUISIANA
VERSUS
DECEMBER 30, 2020
SADAT EL-AMIN
In Re:
On motion of Sadat El-Amin for stay of proceedings,
22nd Judicial District Court, Parish of Washington,
No. 09-CR1-101854.
BEFORE:
guidry, McClendon, and lanier, jj.
MOTION FOR STAY OF PROCEEDINGS DENIED.
JMG
EMc
WIL
COURT OF APPEAL, FIRST CIRCUIT
DEPUTY CLERK OF COURT
FOR THE COURT
STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT
STATE OF LOUISIANA
NO. 2020 KW 1069
VERSUS
SADAT EL-AMIN
DECEMBER 30, 2020
In Re:
Sadat El-Amin, applying for supervisory writs, 22nd
Judicial District Court, Parish of Washington, No. 09CR1-101854.
BEFORE:
guidry,
McClendon, and lanier, jj.
WRIT DENIED.
In Ramos v. Louisiana,
u.s.
, 140
S.ct. 1390, 1397, 206 L.Ed.2d 583 (2020), the United States
Supreme Court held, "the Sixth Amendment's unanimity requirement
applies to state and federal criminal trials equally." However,
the Court declined to address whether its holding applied
retroactively to cases on collateral review,
The Court
specifically observed that the question of "[w]hether the right
to jury unanimity applies to cases on collateral review is a
question for a future case where the parties will have a chance
to brief the issue and we will benefit from their adversarial
See: Ramos,
presentation."
U.S. at
, 140 S.Ct. at 1407.
The question of whether Ramos must apply retroactively to cases
on federal collateral review is currently pending before the
Court. Edwards v. Vannoy,
U.S.
140 S.Ct. 2737, 206
L.Ed.2d 917 (2020).
Moreover, the Louisiana Supreme Court has
declined to definitively rule on whether Ramos should apply on
collateral review in state court proceedings pending a decision
in Edwards.
See State v. Gipson, 2019-01815 (La. 6/3/20), 296
So. 3d 1051, 1052 (Johnson, C.J., dissenting to point out that
she disagreed with the majority's decision to defer ruling until
the United States Supreme Court mandates action). Therefore, we
are constrained to deny relief at this time,
However, our
decision does not preclude relator from reurging the issue in
the district court if warranted by the decision of the higher
courts.
JMG
RMc
WIL
COURT OF APPEAL, FIRST CIRCUIT
\
/ i j
DEPUTY CLERK OF COURT
FOR THE COURT
APPENDIX “F
59
LOUISIANA SUPREME COURT:
RULING
«.
https://nextcorrectional.westlaw.com/Document/Ib491b2309d6fll...
State v. El-Amin | WestlawNext
WESTLAW
State v. El-Amin
Supreme Court of Louisiana.
April 13, 2021
— So.3d —-
2021 WL 1398637 (Mem)
2021-00276 (La. 4/13/21)
(Approx. 1 page)
2021 WL 1398637
Supreme Court of Louisiana.
STATE of Louisiana
v.
Sadat EL-AMIN
No. 2021-KH-00276
04/13/2021
Applying For Supervisory Writ, Parish of Washington, 22nd Judicial District Court
Number(s) 91-CR1-101854, Court of Appeal, First Circuit, Number(s) 2020 KW 1069.
Opinion
*1 Writ application denied.
Weimer, C.J., would deny on the showing made.
Griffin, J., would grant to consider the retroactivity of Ramos v. Louisiana, 140 S.Ct. 1390,
206 L.Ed.2d 583 (2020).
All Citations
— So.3d —-, 2021 WL 1398637 (Mem), 2021-00276 (La. 4/13/21)
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