Petition for Writ of Certiorari — Marecellus Adams, Petitioner v. Tim Hooper, Warden
Supreme Court briefApr 11, 2022
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No.
Supreme Court, U.S.
FILED
APR 1 1 2022
rpptr.F Of THE CLERK
IN THE
SUPREME COURT OF THE UNITED STATES
MARECELLUS ADAMS — PETITIONER
vs.
TIM HOOPER, WARDEN — RESPONDENT(S)
ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
MARECELLUS ADAMS
425582, SPRUCE—4
LOUISIANA STATE PENITENTIARY
ANGOLA LOUISIANA 70712
QUESTIONS PRESENTED
L
Adams’s trial counsel asked him if he could present a manslaughter
defense instead of arguing justifiable homicide. Adams told counsel he
did not agree with a manslaughter defense because he believed his
actions were justified. Even so, counsel conceded guilt in his closing
argument without Adams’s consent:
(A)
Did trial counsel violate Adams’s right to choose the objective
of his defense when he conceded guilt over his express
objection?
(B)
Was Adams entitled to stay his federal proceedings while he
exhausted his substantive constitutional claim in the state
courts?
(C)
Did the Fifth Circuit Court of Appeals erroneously conclude that
La, C. Cr. P. art 930.8 precluded Adams from post-conviction
or habeas relief because he did not file his McCoy claim within 2
years of the finality of his conviction and sentence?
11
LIST OF PARTIES
All parties appear in the caption of the case on the cover page.
j
ni
TABLE OF CONTENTS
PAGE NO.
QUESTIONS PRESENTED
n
LIST OF PARTIES
m
TABLE OF CONTENTS
IV
TABLE OF AUTHORITIES CITED
v
INDEX TO APPENDICES
Vll
OPINIONS BELOW
1
JURISDICTION
2
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
3
STATEMENT OF THE CASE
5
STATEMENT OF FACTS
6
REASONS FOR GRANTING THE WRIT
9
1.
Adams was denied his Sixth Amendment right to counsel when his
trial counsel conceded guilt over his express objection..................... 13
A.
The Court has authority to address Adams’s claim on its merits
UNDER INEFFECTIVE-ASSISTANCE-OF-COUNSEL JURISPRUDENCE....................... 16
B.
2.
Adams was entitled to stay his federal habeas proceeding until he
EXHAUSTED HIS McCoy CLAIM IN THE STATE COURTS.
20
Adams’s trial was rendered fundamentally unfair because his trial
counsel rendered ineffective assistance in violation of the Fifth, Sixth
23
and Fourteenth Amendments to the United States Constitution.
27
CONCLUSION
IV
TABLE OF AUTHORITIES CITED
PAGE NUMBER
CASES
Arizona v. Fulminante, 499 U.S, 279, 111 S.Ct. 1246 (1991).
17
Cope v. Vannoy, 2019 WL 8918835 (W. D. La. 12/16/2019)...
15
Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444 (1968)......
20
Elmore v. Shoop, 2019 WL 7139860 (S.D. Ohio 2019)
16
Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558 (1982)
12
Fisher v. Gibson, 282 F.3d 1283 (C.A. 10 (Okla.) 2002)
...12,20
Gideon v. Wainwright, 372 U.S. 355, 83 S.Ct. 792 (1963)
19
Hohn v. United States, 524 U.S. 236 (1998).
2
Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477 (1985)
McCoy v. Louisiana, 138 S.Ct. 1500 (2018)
17,26
5,10,11,12,13,16,20,22,23
Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029 (2003)............. .
22
Mitchell v. United States,104 U.S. App. D. C. 57, 259 F.2d 787 (1958)
cert, denied, 358 U.S. 850, 79 S.Ct. 81 (1958)......... ........ ....................
26
Nero v. Blackburn, 597 F.2d 991 (5th Cir. 1979)
18,27
Neville v. Dretke, 423 F.3d 474 (5th Cir. 2005)
23
Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55 (1932)
26
Ramirez v. U.S. 17 F,Supp.2d63 (D.R.I. 1998)
20
Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528 (2005)
23
v
Rosev. Clark, 478 U.S. 570, 106 S.Ct. 3101 (1986),
17
Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595 (2000)
21
State v. Cannon, 2018-1846 (La. 11/20/18); 257 So.3d 182
20,21
State v. Harris, 00-3459 (La. 2/26/02); 812 So.2d 612
24
State v. Horn, 2016-0559 (La. 9/7/18); 251 So.3d 1069
10,11
State v. Wells, 2014-1701 (La. 12/8/15); 209 So.3d 709
12
Stricklandv. Washington,466U.S. 668,104 S.Ct. 2052(1984)...11,12,18,19,23,27
Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078 (1993)....
20
United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039 (1984)
11,12,18,19
U.S. v. Hammonds, 425 F.2d 597 (C.O.A. D.C. 1970)
24,26
Wiley v. Sowders, 647 F.2d 642 (6th Cir.1981)..........
19
STATUTES AND RULES
2
28U.S.C. § 1254
OTHER
Rule 10 of the United States Supreme Court
9
Rule 13.1 of the United States Supreme Court
2
vi
INDEX TOAPPENDICES
Page
Appendix
A
Court of Appeal Proceedings
Order Denying CO A
1
Order Denying CO A
3
Application and Motion for COA
5
Application and Motion for COA
22
Motion and Brief in Support of a Panel Rehearing
51
B
State Supreme Court’s Denial of Successive Application
for Post-Conviction Relief
^
C
State Appellate Court’s Denial of Successive Application
for Post-Conviction Relief
60
D
Trial Court’s Denial of Successive Application for PostConviction Relief
61
E
Trial Counsel’s Affidavit
64
F
Notes from Attorney’s Visit with Adams
67
G
Trial Counsel’s Closing Argument
68
vn
IN THE SUPREME COURT OF THE UNITED STATES
PETITION FOR WRIT OF CERTIORARI
Adams respectfully prays that a writ of certiorari issue to review the
orders of the United States Court of Appeals for the Fifth Circuit denying a
Certificate of Appealability (COA) on his constitutional claims.
OPINIONS BELOW
The order of the Court of Appeals, No. 21-30503, denying a COA
appears at Appendix A to the petition and has not been designated for
publication. The order of the Court of Appeals, No. 19-31066, also denying
a COA appears at Appendix A to the petition, is not reported in the Federal
Reporter but is published at 2021 WL 2764694; however, there is a Motion
and Brief in Support for a Panel Rehearing under F.R. A.P. Rule 40 for No.
19-31066 pending in Fifth Circuit Court of Appeals.
The district court’s orders and the magistrate’s report and
recommendations are published at Adams v. Vannoy, 2021 WL 3500970
(August 9, 2021); 2021 WL 3504648 (May 28, 2021); and, 2019 WL
7139860 (Slip Copy) (December 20, 2019).
1
JURISDICTION
The Court of Appeals entered final judgment against Adams on March
2, 2022. As such, this Court has jurisdiction under 28 U.S.C. § 1254(1) and
Rule 13.1 of the Rules of the Supreme Court of the United States. See Hohn
v. United Suites, 524 U.S. 236,253 (1998) (holding denial of COA
reviewable).
2
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The Fifth Amendment to the United States Constitution provides in
pertinent part:
No person shall be held to answer for a capital, or otherwise infamous
crime ... nor be deprived of life, liberty, or property without due
process of law[.]
The Sixth Amendment to the United Sates Constitution provides in
pertinent part:
In all criminal prosecutions, the accused shall enjoy the right ... to have
the assistance of counsel for his defence.
The Fourteenth Amendment to the United Sates Constitution provides
in pertinent part:
No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.
Article I § 1 of the Louisiana Constitution:
All government, of right, originates with the people, is founded on
their will alone, and is instituted to protect the rights of the individual
and for the good of the whole. Its only legitimate ends are to secure
justice for all, preserve peace, protect the rights, and promote the
happiness and general welfare of the people. The rights enumerated in
this Article are inalienable by the state and shall be preserved inviolate
by the state.
Article I § 2 of the Louisiana Constitution:
No person shall be deprived of life, liberty, or property, except by due
process of law.
3
Article I § 3 of the Louisiana Constitution:
No person shall be denied the equal protection of the laws.
Article I § 13 of the Louisiana Constitution:
When any person has been arrested or detained in connection with the
investigation or commission of any offense, he shall be advised fully
of ... his right to the assistance of counsel and, if indigent, his right to
court appointed counsel. ... At each stage of the proceedings, every
person is entitled to assistance of counsel of his choice, or appointed
by the court if he is indigent and charged with an offense punishable
by imprisonment
Article I § 16 of the Louisiana Constitution:
Every person charged with a crime is presumed innocent until proven
guilty and is entitled to ... [an] impartial trial ... [and] to present a
defense[.]
No person shall be compelled to give evidence against himself.
La. C, Cr. P art. 930.8 A. (2)
A. 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, unless any of
the following apply:
(2) The claim asserted in the petition is based upon a final ruling of
an appellate court establishing a theretofore unknown interpretation of
constitutional law and petitioner establishes that this interpretation is
retroactively applicable to his case, and the petition is filed within one
year of the finality of such ruling.
4
STATEMENT OF THE CASE
Adams was charged, tried, convicted, and sentenced to life
imprisonment at hard labor without the benefits of probation, parole, or
suspension of sentence for second degree murder. He was unsuccessful in
the direct appeal and the collateral attack of his conviction and sentence in
the state and federal courts.
On May 13, 2019, while his § 2254 petition was pending in the district
court, Adams filed a successive application for post-conviction relief with
Memorandum, Exhibits and Attachments in Support (“SAPCR”) alleging
that his trial counsel conceded guilt over his express objection in violation
of McCoy v. Louisiana, 138 S.Ct. 1500 (2018). Adams also filed a motion to
stay his § 2254 petition in the federal district court the same day. The district
court denied the motion to stay December 20, 2019. On April 16, 2021, the
federal appellate court denied Adams’s request for a COA and, in turn, Adams
filed a motion and brief in support for a panel rehearing. The motion is still
pending before the Fifth Circuit Court of Appeal.
On November 10, 2020, the Louisiana Supreme Court denied Adams’s
SAPCR. On August 9, 2021, the federal district court denied Adams’s § 2254
petition and his Motion to Amend his § 2254 petition. The district court further
5
declined to issue a certificate of appealability. If the district court would
have held Adams’s § 2254 petition in abeyance until he had exhausted his
remedies in state court, it would have eliminated the chance that his § 2254
petition would be considered a mixed-petition. Thus far, Adams has been
unsuccessful in obtaining a federal writ of habeas corpus and this instant
petition for a writ of certiorari timely follows.
STATEMENT OF FACTS
Early on the morning of July 8, 2012, Michael Blackshire (“Blackshire”)
died as a result of blunt force injuries. Three people who were present when
he received those injuries testified at Adams’s trial: Leroy Scott (“Scott”)
Sarah Davis (“Davis”) and Robert Rattler (“Rattler”). These three presented
a story not supported by the evidence and their stories severely contradicted
each others.
The incident, which sadly led to Blackshire’s death, took place at
Scott’s residence. Scott told the jury he was inside watching television that
evening while Davis, Blackshire, Adams, and someone named Donald were
outside in the yard. According to Scott, Adams and his girlfriend, Neicy, had
been arguing earlier in the day. Later that evening, Adams began “messing
with” Blackshire, which was nothing out of the ordinary because they carried
6
on in that manner often. On this evening, however, Scott testified that Adams
was angry about something concerning his girlfriend. Scott told the jury
things got so out-of-hand that Blackshire threatened to call the police. Scott
said he intervened to keep Blackshire from calling the police and said
Blackshire should get him another drink from the cooler located in the yard.
Scott said he decided to go inside of his home until a scream drew him
back outside. Scott said when he went back outside he saw Blackshire lying
on the ground. According to Scott, he told Davis to pick Blackshire up and
get him away from his residence. He also said he did not see any injuries on
Blackshire. Scott went on to say that when the police arrived Adams was
across the street and everyone was pointing him out to the officers. Scott
said the police tried to catch Adams but could not because of a fence.
Davis testified that she was at Scott’s home that evening drinking
whiskey. According to Davis, she had consumed about a half pint when
everything happened. Davis said although there were several guys present,
she was not sure of who were all there. The only thing Davis said she was
certain of is that she was the only female at Scott’s home that evening.
Davis told the jury that she got up to go to the water cooler and when
she turned around from taking a drink of water, Blackshire was on the ground.
7
Davis said she saw Adams hit Blackshire twice while he was on the ground.
Davis said when she saw Adams hit Blackshire, she screamed and ran to
Blackshire’s aid and Adams’s walked away. Davis said she was detained by the
police for questioning because she was still on the scene when they arrived.
Rattler testified that he was also at Scott’s house the night this tragic
event happened. Ratter said he was sitting by a stump in the yard and drinking
a beer. Rattler said in addition to himself, Blackshire, Adams, Davis, and Don
were in Scott’s yard. According to Rattler, Blackshire and Adams were talking
by the fence. Rattler said he did not know anything was about to happen and
he did not hear any raised voices. Rattler said Blackshire walked up to where
he was while he was on the phone. Rattler said he heard a voice on the other
end say, “911.” Rattler went onto say that Blackshire had not said anything to
the operator when Adams walked up and hit him across the back of the head
with something twice.
Rattler told the jury that once struck, Blackshire went down. Rattler
said when Blackshire went down Adams hit him again across the chest.
Rattler said he told Adams to stop before he killed him and that Adams then
took off running because the police were coming.
8
Forensic pathologist James Traylor performed Blackshire’s autopsy.
According to Dr. Traylor, Blackshire’s death was caused by blunt force
injuries; however, none of the injuries were to the back of the head.
Crime lab analyst, Katie Traweek, analyzed the clothing taken from
Adams just hours after the incident. Her examination and report revealed
that there was no blood on his t-shirt and that the only blood found on his
pants was his own.
When Adams encountered a police officer the morning after the
incident, he willingly cooperated with the officer and told him he knew the
police were looking for him. Adams explained to the officer that he had
been in a fight the night before and that the other guy had been hospitalized.
Although he provided more details with each telling, Adams was consistent
in asserting he acted in defense of himself and/or others when he hit
Blackshire. Adams was arrested and charged with second degree murder for
causing Blackshire’s death.
REASONS FOR GRANTING THE WRIT
Under Rule 10, the Louisiana courts and the United States Fifth Circuit
Court of Appeals denied relief and contrarily decided important questions of
federal law that has been settled by this Court and has decided important
9
federal questions in a way that conflicts with relevant decisions of this Court
as set forth below:
According the Court's clear precedent, the decision whether to plead
guilty or not rests solely in the discretion of a criminal defendant and not his
attorney. McCoy v. Louisiana, 138 S.Ct. 1500 (2018). The Court held that:
[A] defendant has the right to insist that counsel refrain from
admitting guilt, even when counsel's experienced-based view is that
confessing guilt offers the defendant the best chance to avoid the death
penalty. Guaranteeing a defendant the right “to have the Assistance of
counsel for his defense,” the Sixth Amendment so demands. With
individual liberty—and, in capital cases, life—at stake, it is the
defendant's prerogative, not counsel’s, to decide on the objective of
his defense: to admit guilt in the hope of gaming mercy at the
sentencing stage, or to maintain his innocence, leaving it to the State
to prove his guilt beyond a reasonable doubt.
McCoy v. Louisiana, 138 S.Ct. at 1505.
Applying the Court's precedent, the Louisiana Supreme Court explained:
... [T]here is no question that a criminal defendant’s decision whether
to concede guilt implicates fundamental constitutional rights and the
right to exercise that decision is protected under the Sixth Amendment.
Moreover, a violation of this Sixth Amendment right is a structural
error and not subject to harmless error review. [Thus] ... [a] criminal
defendant's express refusal to concede guilt is safeguarded by core
constitutional protections.
State v. Horn, 2016-0559 (La. 9/7/18); 251 So.3d 1069,1073-74.
Because a criminal defendant does not surrender complete control of
his defense to his counsel, Adams was deprived of his Sixth Amendment
10
right to counsel—at a critical stage no less—when Mr. Goins conceded guilt
to manslaughter. McCoy, supra. This Court settled any dispute concerning
the right to counsel when it said the Sixth Amendment grants an accused the
right to make his own defense and when it “speaks of the ‘assistance’ of
counsel, [that] assistant, however expert, is still an assistant.” McCoy, supra.
The Court also said that because a client’s autonomy, and not counsel’s
competence is in issue, the usual ineffective-assistance-of-counsel
jurisprudence does not apply to a McCoy claim. McCoy v. Louisiana, 138
S.Ct. at 1510-11 (2018); citing Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984); or United States v. Cronic, 466 U.S. 648,
104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). The Sixth Amendment guarantees a
defendant, not counsel, the right to choose the objective of his defense and
to insist his counsel refrain from admitting guilt over the counsel’s experienced
-based opinion because some decisions, like whether or not to plead guilty,
are for the client to make. McCoy v. Louisiana, 138 S.Ct. at 1508-12. The
Louisiana Supreme Court said the Court’s decision in McCoy is not restricted
to “cases where a defendant maintains his absolute innocence to any crime
[because] McCoy is broadly written and focuses on a defendant’s autonomy
to choose the objective of his defense.” State v. Horn, 251 So.3d at 1075.
11
right to counsel—at a critical stage no less—when Mr. Goins conceded guilt
to manslaughter. McCoy, supra. This Court settled any dispute concerning
the right to counsel when it said the Sixth Amendment grants an accused the
right to make his own defense and when it “speaks of the ‘assistance’ of
counsel, [that] assistant, however expert, is still an assistant.” McCoy, supra.
The Court also said that because a client’s autonomy, and not counsel’s
competence is in issue, the usual ineffective-assistance-of-counsel
jurisprudence does not apply to a McCoy claim. McCoy v. Louisiana, 138
S.Ct. at 1510-11 (2018); citing Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984); or United States v. Cronic, 466 U.S. 648,
104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). The Sixth Amendment guarantees a
defendant, not counsel, the right to choose the objective of his defense and
to insist his counsel refrain from admitting guilt over the counsel’s experienced
-based opinion because some decisions, like whether or not to plead guilty,
are for the client to make. McCoy v. Louisiana, 138 S.Ct. at 1508-12. The
Louisiana Supreme Court said the Court’s decision in McCoy is not restricted
to “cases where a defendant maintains his absolute innocence to any crime
[because] McCoy is broadly written and focuses on a defendant’s autonomy
to choose the objective of his defense.” State v. Horn, 251 So.3d at 1075.
11
A justifiable homicide claim is a colorable constitutional claim that
negates the essential elements of criminal behavior. Moreover, when a
defendant raises a justifiable homicide defense, the burden falls to the State
to prove “beyond a reasonable doubt that the homicide was not committed in
self-defense.” State v. Welts, 2014-1701 (La. 12/8/15); 209 So.3d 709,712;
see also Engle v. Isaac, 456 U.S. 107,119-122, 102 S.Ct. 1558,1567-1569,
71 L.Ed,2d 783 (1982). Thus, not only did counsel violate Adams's right to
choose the objective of his defense, he also failed to hold the prosecution to its
burden of proving guilt beyond a reasonable doubt. In other words, Adams's
trial counsel failed to submit the State's case to any meaningful adversarial
testing. Fisher v, Gibson, 282 F.3d 1283,1290 (C.A. 10 (Okla.) 2002);
Strickland v. Washington, 466 U.S. 668,686, 104 S.Ct. 2052; United States
v. Cronic, 466 U.S. 648,656, 104 S.Ct. 2039,2045 (1984).
To hold that a trial counsel could concede guilt over a defendant's
express objection, even before McCoy v. Louisiana, supra, is violative of the
state and federal constitutions—namely La. Const Art. I, § 13, and the Sixth
and Fourteenth Amendments. The issue, as pointed out by Justice Ginsberg,
is not counsel's expert representation at trial. The issue is counsel usurping
authority to change the objective of a criminal defendant's claims of
12
innocence and/or justification. Accordingly, Adams respectfully asks the
Court to hold that McCoy v. Louisiana is retroactive to persons whose cases
were final when McCoy was decided.
1.
Adams was denied his Sixth Amendment right to counsel when his
trial counsel conceded guilt over his express objection.
The state courts claimed Adams presented a supplemental ineffective-
assistance-of-counsel claim afflicted with several procedural faults under
La. C. Cr: P. art. 927. Specifically, the trial court said Adams failed to
articulate a factual basis for the requested relief and offered conclusory
allegations without any proof his counsel conceded guilt. The state appellate
court said, after a review of the claims under McCoy v. Louisiana, Adams’s
writ is denied. In denying Adams’s writ application, the state supreme court
said Adams had previously exhausted his right to state collateral review and
failed to show any exception that would allow him to file a successive APCR.
However, the state courts overlooked the transcript of Adams’s trial counsel’s
closing argument where he conceded guilt, without Adams’s consent, and also
told the jury Adams was a liar; “I want to make one thing very clear. This is
also not a case of self-defense. Marecellus lied when he said he acted in
self-defense in those two statements.” Appendix G, p. 69. As for the alleged
13
procedural errors under La. C. Cr P. art. 927, the state courts failed to
identify them. La, C. Cr. P. art 927, in pertinent parts, provides:
A. If an application alleges a claim which, if established, would entitle
the petitioner to relief, the court shall order the custodian, through the
district attorney in the parish in which the defendant was convicted, to
file any procedural objections he may have, or an answer on the merits
if there are no procedural objections, within a specified period not in
excess of thirty days. If procedural objections are timely filed, no
answer on the merits of the claim may be ordered until such objections
have been considered and rulings thereon have become final.
B. In any order of the court requiring a response by the district
attorney pursuant to this Article, the court shall render specific rulings
dismissing any claim which, if established as alleged, would not
entitle the petitioner to relief, and shall order a response only as to
such claim or claims which, if established as alleged, would entitle the
petitioner to relief.
The trial court directed the State to respond to Adams’s claim that his
trial counsel violated his Sixth Amendment right to choose the objective of
his defense and conceded guilt over his express objection. The trial court
then converted Adams’s claim into an ineffective-assistance-of-counsel
claim and said it was procedurally defaulted. The trial court’s summary
dismissal of Adams’s SAPCR ran afoul of La. C. Cr. P. art 927(B) because
the court failed to specifically address Adams’s violation of client autonomy
claim—even before it changed the claim into an ineffective-assistance-ofcounsel claim.
14
The trial court said Adams’s claim was that his trial counsel rendered
ineffective assistance when he chose to concede guilt to manslaughter. The
trial court said Adams is not entitled to relief because he failed to prove Mr.
Goins’s strategic decision and advice fell below the standard for a criminal
defense attorney who exercises reasonable professional judgment and failed
to provide any factual basis to support his claim. When Adams said his trial
counsel conceded guilt in his closing argument over his express objection
and provided a copy of counsel’s closing argument as an exhibit, he provided
the factual basis to support his claim. In an obvious reference to an affidavit
Mr. Goins submitted on the State’s behalf, the trial court claimed Adams
presented conclusory statements and did not offer any proof in the form of
statements, affidavits, or depositions under La. C. Cr. P arts. 928 and 930.2.
This is contrary for more than one reason. First, La. C. Cr. P. art. 928 is not
applicable here: the trial court directed the State to respond because Adams
alleged a claim which, if established, would entitle him to relief. Secondly,
in light of La. C. Cr. P. art. 930.2, the trial court had a duty to extend the
provisions of La. C. Cr. P. art. 930, especially after Adams presented a copy
of Mr. Goins’s closing argument where he conceded guilt without Adams’s
permission. Cf. Cope v. Vamioy, 2019 WL 8918835 *16 (W. D. La. 12/16/2019).
15
And, as submitted in his affidavit, Mr. Goins admitted he conceded guilt
over Adams's objection;
In my experience of handling a number of Murder cases, a claim of
self-defense does not always equate to a valid claim of self-defense.
Mr, Adams's case, in my opinion was not a case in which a valid claim
of self-defense could be sustained, hence given the facts, evidence,
and law herein, I pursued a Manslaughter argument. Unfortunately for
Mr. Adams, the evidence was too much to overcome.
Exhibit E, p. 64.
Under the clear language found in McCoy v. Louisiana and under La.
C. Cr. P. art 930.2, Mr. Goins's affidavit is proof he conceded guilt without
Adams’s permission and over his express objection. In other words, the
essential elements of the State's accusation against Adams were not found
by a rational trier of fact but were conceded by Adams's alleged advocate.
A.
The Court has authority to address Adams’s claim on its merits
UNDER INEFFECTIVE-ASSISTANCE-OF-COUNSEL JURISPRUDENCE.
The Sixth Amendment right to counsel is a structural error and was
recognized as such in McCoy. Cf. Elmore v. Shoop, 2019 WL 7139860, at *9
(S.D, Ohio 2019). The Southern District Court of Ohio, at Cincinnati, discussed
the effects of McCoy in habeas petitioner Elmore's case and concluded that
McCoy did not apply retroactively to his matter. Id., at ** 9-10. However,
that court said Elmore was “entitled to relief as a matter of law, because this
16
constitutional violation was a structural error, which entitles him to a new
trial[=]” Id That court also acknowledged that when a defendant is denied
his constitutional right to choose the objective of his or her defense, the error
is structural and prejudice is presumed under the Sixth Amendment because
the defendant is prejudiced by counsel’s actions in a number of ways.
A structural error is understood to be an error that affects the framework
within which a trial proceeds and not “simply an error in the trial process
itself.” Arizona v. Fubninante, 499 U.S. 279,309-310, 111 S.Ct. 1246, 113
L.Ed.2d 302 (1991). Without basic constitutional protections, such as the
Sixth Amendment right to have counsel for one’s defense, “a criminal trial
cannot reliably serve its function as a vehicle for determination of guilt or
innocence, and no criminal punishment may be regarded as fundamentally
fair.” Arizona v. Fubninante, supra, quoting Rose v. Clark, 478 U.S. 570,57778, 106 S.Ct. 3101,3106, 92 L.Ed.2d (1986). This is especially true when
counsel believes his client is guilty and informs the jury of that belief. Adams’s
right to have the assistance of counsel for his defense is guaranteed by the
Sixth and Fourteenth Amendments and “is indispensable to the fair
administration of our adversarial system of criminal justice.” Maine v.
Moulton* 474 U.S. 159,168, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985).
17
The standard of review for a claim of ineffective assistance of counsel
requires a reviewing court to reverse a conviction if the defendant establishes
that counsel's performance fell below an objective standard of reasonableness
under prevailing professional norms; and, but for counsel's deficient performance,
there is a reasonable probability that the outcome of the proceeding would
have been different. Stricklandv. Washington, 466 U.S. at 694. This reasonable
probability standard does not require a defendant to show that counsel's deficient
conduct more likely than not altered the outcome in the case. Strickland v.
Washington, 466 U.S. at 693, 104 S.Ct. at 2068. While a reviewing court
must examine the “totality of circumstances and the entire record” to assess
counsel's performance, “[sjometimes a single error is so substantial that it
alone causes the attorney’s performance to fall below the Sixth Amendment
standard.” Nero v. Blackburn, 597 F.2d 991,994 (5th Cir. 1979).
In United States v. Cronicy the Court created limited exceptions to the
application of Strickland's two-part test for situations that “are so likely to
prejudice the accused that the cost of litigating their effect in a particular
case is unjustified.” United States v. Cronic, 466 U.S. 648,658, 104 S.Ct.
2039, 80 L.Ed.2d 657 (1984). Included among these situations are instances
when a defendant is denied counsel at a critical stage of the proceedings and
18
when counsel fails to subject the prosecution’s case to meaningful adversarial
testing. Cronic, 466 U.S. at 659-662. A detailed examination of the specific
facts and circumstances of each case is necessary to determine whether a
presumption of prejudice applies and any inquiry into the counsePs
effectiveness must be individualized and fact-driven. See Cronic, supra;
Strickland, supra. The presumption of prejudice applies to Adams’s case
because Mr. Goins’s performance defied the Sixth Amendment’s right to
counsel, and its effective-assistance guarantee, when he failed to subject the
state’s case to any adversarial testing. Cf. Gideon v. Wainwright, 372 U.S.
355, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).
“[A]n attorney may not admit his client’s guilt which is contrary to his
client’s earlier entered plea of ‘not guilty.”’ Wiley v. Sowders, 647 F.2d 642,
649 (6th Cir.1981). Even if Mr. Goins believed it was “tactically wise to
stipulate to a particular element of a charge or to issues of proof,” he could
“not stipulate to facts [that] amount to the ‘functional equivalent’ of a guilty
plea.” Id. When Adams pled not guilty, he retained his “constitutional rights
fundamental to a fair trial” and Mr. Goins was obligated to “structure the
trial of the ease around” his plea. Id. at 650. When Mr. Goins conceded
guilt, he deprived Adams of his “constitutional right to have his guilt or
19
innocence decided by the jury” and his concession “nullified the adversarial
quality of this fundamental issue.” Id.y see also Ramirez v, U.S. 17 F.Supp.2d
63, 68 (D.R.I. 1998). Mr. Goins asked the jury to accept his concession of
guilt as a confession that Adams was guilty. He acted on the “belief that
[Adams] should be convicted” and failed “to function in any meaningful
sense as the [prosecution’s] adversary.” Fisher v. Gibson, 282 F.3d at 1291.
Mr. Goins’s concession deprived Adams of his right to a trial by jury and
qualifies as a structural error. See Sullivan v. Louisiana, 508 U.S. 275, 281282, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (“The right to trial by jury
reflects, we have said, ‘a profound judgment about the way in which law
should be enforced and justice administered.’ Duncan v. Louisiana,, 391 U.S.
145,155, 88 S.Ct. 1444,1451 20L.Ed.2d 491 (1968). The deprivation of that
right, with consequences that are necessarily unquantifiable and indeterminate,
unquestionably qualifies as 'structural error.’”).
B.
Adams was entitled to stay his federal habeas proceeding until he
EXHAUSTED HIS McCoy CLAIM IN THE STATE COURTS.
In Slate v. Cannon, the state supreme court denied the defendant’s writ
application concerning an issue stemming from this Court’s decision in
McCoy v. Louisiana. However, Justice Crichton disagreed with the majority
and, in part, said the state supreme court was “missing a valuable opportunity
20
to provide guidance on the best practice for trial courts across the State in
conducting hearings in this unprecedented area of the law.” State v. Cannon,
2018-1846 (La. 11/20/18); 257 So.3d 182 (J. Crichton, dissenting).
Before a prisoner seeking post-conviction relief under §2254 may appeal
a district court's denial or dismissal of the petition, he must first seek and
obtain a COA from a circuit justice or judge under § 2253. When a habeas
applicant seeks a COA, the court of appeals should limit its examination to a
threshold inquiry into the underlying merits of his claim. See Slack v. McDaniel,
529 U.S. 473,481, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). This inquiry
does not require full consideration of the factual or legal basis supporting
the claim.
Consistent with this Court's precedence and the statutory text, a
prisoner need only demonstrate “a substantial showing of the denial of a
constitutional right.” § 2253(c)(2). Adams satisfied this standard when he
demonstrated that jurists of reason could disagree with the district court's
resolution of his case and that the issues presented were adequate to deserve
encouragement to proceed further. Slackv. McDaniel, 529 U.S., at 484. He
did not have to convince a judge or panel that he would prevail. Adams only
had to demonstrate that reasonable jurist would find the district court’s
21
assessment of the constitutional claim debatable or wrong. Id. quoting
Milkr-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029,1032 (2003).
Judge Patrick E. Higginbotham opined that: (1) Adams did not have
good cause for his failure to exhaust his claim that his trial coimsel violated
Ms autonomous right to choose the objective of his defense; (2) the claim has
no merit; (3) Adams failed, inexcusably, to exhaust his claim in state court;
(4) Adams's claim is procedurally barred; (5) Adams's claim is “plainly
meritless;” and (6) the claim does "not warrant a stay.” Exhibit A, pp. 1-2.
Judge Higginbotham concluded, in error, that La. C. Cr. P. art. 930.8
precludes Adams from post-conviction or habeas relief because he did not
file his McCoy claim within 2 years of the finality of his conviction and
sentence. Judge Higginbotham correctly noted that Adams filed his McCoy
claim in 2019, but overlooked that under La. C. Cr. P. art. 930.8A(2);
Adams's McCoy claim falls under an exception to the procedural bar:
No application for post-conviction relief ... shall be considered if it is
filed more than two years after the judgment of conviction and sentence has
become final ... unless any of the following apply:
(2) The claim asserted in the petition is based upon a final ruling of an
appellate court establishing a theretofore unknown interpretation of
constitutional law and petitioner establishes that this interpretation is
retroactively applicable to Ms case, and the petition is filed within one year
of the finality of such ruling.
22
On May 14, 2018, the Court decided McCoy v. Louisiana, 138 S.Ct.
1500 (2018). Adams filed a successive application for post-conviction May
13, 2019—within 1 year of the Court's decision. Adams asked the district
court stay his habeas petition when he filed his successive post-conviction
application. He also served the district court with a copy of the application
along with his memorandum in support. Adams's McCoy claim has been
completely exhausted in the state courts. The trial court denied relief
September 12, 2019. The appellate court denied relief December 5, 2019;
and the Louisiana Supreme Court denied relief November 10, 2020. On
November 20, 2020, Adams filed a Motion to Amend his petition for a writ
of habeas corpus in the federal district court. The district court denied
Adams's request and the Fifth Circuit Court of Appeals, in error, applied a
procedural bar. Cf. Rhinesv. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161
L.Ed.2d 440 (2005); Neville v. Dretke, 423 F.3d 474,480 (5th Cir. 2005).
2.
Adams's trial was rendered fundamentally unfair because his trial
counsel rendered ineffective assistance in violation of the Fifth, Sixth
and Fourteenth Amendments to the United States Constitution.
Adams briefed the lower courts of how his trial counsel, Mr. Goins,
rendered ineffective assistance within the confines of Strickland. Because
Mr. Goins was not prepared for trial, and because he further failed to
23
prepare Adams for trial, Adams suffered prejudice in this case because the
jury only heard the State’s representation of what allegedly happened on the
day of this tragic incident. Mr. Goins’s failure, in this regard, did affect the
outcome of trial. In other words, Mr. Goins’s failure to adequately investigate
the facts and circumstances of Adams’s case in order to present them to the
jury in an orderly fashion is evidence of his deficient performance. For instance,
there is evidence that establishes Adams and Blackshire have had fights before
—fights that were reported to be as violent as the one that resulted in
Blackshire’s death. According to Scott, Adams and Blackshire argued and
fought regularly. In fact, Scott testified that Blackshire “was just laying on
the ground like he usually do, fighting.” R. pp. 372-374. Mr. Goins had a duty
to present to the jury that Adams did not possess “that state of mind which
exists when the circumstances indicate that the offender actively desired the
prescribed criminal consequences to follow his act or failure to act.” See
State v. Harris, 00-3459 (La. 2/26/02); 812 So.2d 612,618 (quoting La. R.S.
14:10(1)). Mr. Goins told Adams he would present his intoxication defense
but failed to do so. In fact, Mr. Goins, in addition to his other failures, did not
even offer an opening statement. US. v. Hammonds, 425 F.2d 597 (1970).
Adams was intoxicated and could not form the requisite specific intent. This
24
was just another drunken brawl that turned out badly for the two willing
participants. Mr. Goins could have told this to the jury in an opening statement.
Mr. Goins also failed to cross-examine certain witnesses and failed to
properly cross-examine other witnesses. Mr. Goins constructively denied
Adams the right to testify in his own defense by failing to prepare him for
trial. It is for this reason that Adams told the trial court he did not want to
testify, He was afraid to speak on his own behalf because he could not
anticipate what Mr. Goins would ask him. Mr. Goins was also ineffective for
not preparing him for what could possibly happen on cross-examination. Mr.
Goins failed to present Adams with any anticipatory questions that may have
been asked by the prosecution. As was pointed out in his original APCR, Mr.
Goins's performance was so grossly deficient that there was a break down of
the adversarial process because he failed to subject the State’s case to any
meaningful adversarial testing. According to the lowers courts, Adams’s claim
that Mr. Goins rendered ineffective assistance does not have any merit;
however, each court failed to list or address any one of the so-called
“general allegations and assumptions” supposedly contained in Adams’s APCR.
Adams’s right to the effective assistance of counsel is guaranteed by
the Sixth and Fourteenth Amendments to the United States Constitution, and
25
is also “indispensable to the fair administration of our adversarial system of
criminal justice,” Maine v. Moulton, 474 U.S. at 168. The United States
Court of Appeals for the District of Columbia discussed what it means for a
criminal defendant to have the assistance of counsel for his defense. U.S. v.
Hammonds, 425 F.2d 597,600-601 (1970). The Hammond court said the
constitutional guarantee of the Sixth Amendment is not just a procedural
formality, The court said that although “the word ‘effective1 does not appear
in the Constitution itself, it was held in Powell v. Alabama, 287 U.S. 45,71,
53 S.Ct, 55, 77 L.Ed.2d 158 (1932) that the failure of the trial court to make
an ‘effective' appointment of counsel was a denial of due process, and that
the duty to assign counsel is not discharged by an assignment ‘under such
circumstances as to preclude the giving of effective aid in the preparation
and trial of the case.5” Id. at 601, quoting its decision in Mitchell v. United
States, 104 U.S. App. D. C. 57, 259 F.2d 787,793 (1958) cert, denied, 358
U.S. 850, 79 S.Ct. 81, 3 L.Ed.2d 86 (1958). The Hammonds court said:
We think the term “effective assistance”—the courts' construction of
the constitutional requirement for the assistance of counsel—does not
relate to the quality of the service rendered by a trial lawyer or to the
decisions he makes in the normal course of a criminal case; except
that, if his conduct is so incompetent as to deprive his client of a trial
in any real sense—render the trial a mockery and farce is one
descriptive expression,—the accused must have another trial, or
rather, more accurately, is still entitled to a trial.
26
The standard of review for a claim of ineffective assistance of counsel
requires a reviewing court to reverse a conviction if the defendant establishes:
(1) that counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms; and (2) but for counsel’s
deficient performance, there is a reasonable probability that the outcome of
the proceeding would have been different. Strickland v. Washington, supra.
This reasonable probability standard does not require a defendant to show
that counsel’s deficient conduct more likely than not altered the outcome in
the case. Stricklandv. Washington, 466 U.S., at 693, 104 S.Ct., at 2068.
While a reviewing court must examine the “totality of circumstances and the
entire record” to assess counsel’s performance, “[s]ometimes a single error
is so substantial that it alone causes the attorney’s performance to fall below
the Sixth Amendment standard.” Nero v. Blackburn, 597 F.2d at 994.
CONCLUSION
For the foregoing reasons Adams’s petition for a writ of certiorari
should be granted.
Respectfully submitted,
.^arecellus Adams^
Date: April JJ_, 2022
27
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.