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.

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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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Sadat El-Amin v. Darrel Mmnoy, Warden

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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7.

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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8.

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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9.

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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Sadat Ei-Amim v. Darrel Vennoy, Warden

... 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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Sadat Hl-Amln v. Darrel Vdnnoy, Wa-den

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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Docket No.: 09-CRI -101SS4

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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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Docket No. :09-CRl -101854

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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Sadat El-Amin v. Darrel I annoy, Warden

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)

End of

© 2021 Thomson Reuters. No claim to original U.S. Government Works.

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4/15/21, 7:31 PM

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