Opposition Brief — Kirby R. Thomas, Petitioner v. Louisiana

NO. 23-5023

IN THE SUPREME COURT OF THE UNITED STATES

KIRBY THOMAS.

Petitioner

V.

STATE OF LOUISIANA,

Respondent

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES SUPREME COURT

FOR THE STATE OF LOUISIANA

DONALD D. CANDELL. COUNSEL OF RECORD

LA. STATE BAR NO. 1287

ASSISTANT DISTRICT ATTORNEY

TWENTY-THIRD JUDICIAL DISTRICT COURT

PARISH OF ASSUMPTION

STATE OF LOUISIANA

208 E. RAILROAD STREET

GONZALES. LOUISIANA 70737

TELEPHONE: (225) 715-5517

E-mail: dcandell/(@eatel.net

QUESTION PRESENTED FOR REVIEW

Based on the procedural posture and rulings of this case in Louisiana State courts.

respondent asserts that the sole issue presented herein despite petitioner's otherwise contention is

whether the last State court of resort (i.e. supreme court of the State of Louisiana) violated any

federal and/or state constitutional and/or jurisprudential mandates in affirming the lower State

appellate court's denial of petitioner's post-conviction claim of ineffective assistance of counsel

based on the evidence adduced in State court.

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TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Carey _v. Musladin, 549 U.S. 70, 127 S.Ct. 649. 166 1..Ed.2d 482 (2006).....4-5.

Duren v. Missouri. 439 U.S. 357, 364. 99 S. Ct. 664. 668.

58 L.Fed.2d 579 (1979)... occ cece cence cent ee ee eee ee tees teeta eeeet tes eneee eens 2.4.

Honic v, Powell, (10" Cir. 1/26/23), 58 F.3th 1173........0....ccceeeeeeeeeee eee 4-5,

Ramos v. Louisiana. 590 U.S... 140 S.Ct. 1390.

206 L.Ed.2d 583 (2020)... 0... cece cececnecee nee ee eee eee e sense etese eset et ee enenee 1.

Reed v. Peoples State Bank of Many, 63.531 (La. App. 2d Cir. 3/5/03).

PAIN TO RA: hs ne 3.

Skyline Corporation v. National Labor Relations Board, 79-1594

(5" Cir. 3/19/80). 613 F.2d 1328.00.00... ccccccccceccceeeeceseeesseeeeeeneneeeese 3.

Taylor v. Louisiana, 419 U.S. 522. 538, 95 S.Ct. 692. 702.

43 L.Ed.2d 690 (1975). 0... cc ccc cece cece cee ne een ene e eee t eect ee eeneneneesenens 5.

United States ex rel McNeil v. Jolly. (E.D. La. 4/3/20). 451 Supp. 3d 657...... 3.

Williams v. Taylor, 529 U.S. 362. 120 S.Ct. 1495. 146 L.Ed.2d 389 (2000)...4-5

Granier v. Hooper. (5"" Cir. 7/17/23), 2023 WL 4554903... 0.00. ccccseceeeceeseee 4-5.

State v. Lee. 559 So. 2d, 1310. 1314... cece eee cecneee seen reese ee eeeeaes 5.

Static v. Pooler. 96-1794 (La. App. 1° Cir. 5/9/97). 696 So. 2d 22. 39.

writ denied, 97-1470 (La. 11/14/97). 703 So. 2d 1288..............ecceceeeeeeeees 5.

State v. Thomas, 2022-KP-01613. (La. 3/28/23). 358 So. 3d 498.00... eee 4.

SUPREME COURT RULES

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STATEMENT OF JURISDICTION

Respondent asserts that absent this Honorable Court's discretionary action to review

petitioner's writ of certiorari herein, pursuant to the United States Supreme Court Rule 10 (a-c).

petitioner's perceived claim does not rise to any level of constitutional and/or jurisprudential

violation requiring this Honorable Court's consideration. As asserted above. the true issue

herein does not merit this Honorable Court's consideration.

CONCISE STATEMENT OF THE CASE

Petitioner was initially indicted for Attempted Second Degree murder. two (2) counts of

possession with intent to distribute cocaine, and being a convicted felon in possession of a

firearm. all charges arising out of a debt involving illegal drugs. Subsequently. all pre-trial

motions were set and heard. trial commencing on September 26. 2018. After presentation of all

witnesses and evidence, the jury unanimously found petitioner guilty of attempted manslaughter

and non-unanimously guilty of being a convicted felon in possession of a firearm and possession

of cocaine. Petitioner's motion for a new trial based on the jury venire’s racial makeup not being

representative of Assumption Parish’s racial population was denied. The trial court then

sentenced petitioner to a combined total of thirty (30) years. On direct appeal. the lower

appellate court affirmed the convictions but remanded the matter for resentencing on the charge

of a convicted felon in possession ofa firearm charge. State v. Thomas, 2019-KA-0409 (La.

App. 1* Cir. 10/25/19), 289 So. 3d 1030. On writ of review to the Louisiana Supreme Court.

pursuant to the holding in Ramos v. Louisiana. 590 U.S... 140 S.Ct. 1390. 206 L.Ed.2d 583

(2020). the matter was remanded to the trial court for reconsideration of the non-unanimous

convictions. Chief Justice Johnson in her concurrence. citing the statistics set forth in

petitioner’s counsel’s brief, noted that the issue of trial counsel's failure to file a motion to quash

the petit jury venire was troubling but more appropriately raised in a post-conviction claim of

ineffective assistance of counsel. State v. Thomas. 2019-K-01819 (La. 6/22/20), 297 So. 3d 727.

On remand to the trial court, petitioner again without alleging with any specificity or

constitutional grounds objected to being subjected to a non-unanimous jury verdict. On remand

to the lower appellate court, petitioner’s non-unanimous convictions were vacated, same being

found to be unconstitutional. State v. Thomas. 2019-KA-0409R (La. App. 1 Cir. 12/30/20). 317

So. 3d 688.

Petitioner then sought post-conviction relief alleging ineflective assistance of counsel

based on his trial counsel's failure to file a motion to quash the petit jury venire for its alleged

discriminatory racial makeup citing Louisiana supreme court Justice Johnson's dicta

concurrence. Aifter consideration. the trial court’s written reasoned judgment found that

petitioner had failed to meet the required Strickland standards for deficient performance or

prejudice. Petitioner sought appellate review thereof which was denied without comment. State

v. Thomas. 2022-K W-0909 (La. App. 1“ Cir. 9/26/22). 2022WL4463842. On writ of certiorari

to the Louisiana Supreme Court, petitioner contended that while only 5.4% of the petit jury

venire were African Americans, they constituted “nearly 1/3” of Assumption Parish’s population

which allegedly amounted to a violation of the Equal Protection clause. Said writ was denied but

Justice Griffin citing the requirements of Duren v. Missouri, 439 U.S. 357. 364. 99 S.Ct. 664,

668. 58 L.Ed.2d 579 (1979) noted that without a “deeper investigation into the parish's jury

selection process” the matter demanded further evidentiary development for a proper analysis.

State v. Thomas. 2022-K P-01613 (La. 3/28/23). 358 So. 3d 498. Thereafter, petitioner filed the

instant petition.

ARGUMENT

Respondent asserts that petitioner's writ of certiorari must be denied based on both

procedural and jurisprudential grounds. Procedurally and pertinent herein, United States

Supreme Court Rule 10(b) requires that absent this Honorable Court's discretion. petitioner's

writ should be granted only when:

“(b) a state court of last resort has decided an important federal question in a way that

conflicts with the decision of another state court of last resort or of a United States court

of appeals:”.

Herein, the sole issue presented to the trial court and subsequently addressed by Louisiana’s

appellate courts was whether petitioner's counsel was ineffective in failing to file a motion to

quash the petit jury venire. That is a question of fact answered by the evidence adduced at a

hearing on the matter. not a question of federal law. In this instance. petitioner has failed to

substantiate that the decision of the Louisiana Supreme Court on this issue conflicts with the

decision of any other state court or of a United States court of appeals. As such, respondent

asserts that procedurally, petitioner's writ must be denied absent the exercise of this Honorable

Court's discretion.

Jurisprudentially, it is well settled that pleadings, arguments of counsel and/or briefs and

memorandum on any particular issue are not evidence upon which appellate courts can base their

decisions. See Skyline Corporation v. National Labor Relations Board. 79-1594 (5" Cir.

3/19/80), 613 F.2d 1328; United States ex rel McNeil v. Jolly. (E.D. La. 4/3/20), 451 Supp. 3d

657: and Reed v. Peoples State Bank of Many, 63,531 (La. App. 2d Cir. 3/5/03). 829 So. 2d 955.

Factually. the trial court herein correctly found that petitioner faited to substantiate either prong

(i.e. deficiency and/or prejudice) of the Strickland standard. Specifically. petitioner failed to

adduce at trial a scintilla of fact/evidence regarding the racial makeup of Assumption Parish

and/or its registered voters. Herein. the state court record accurately reflects that only

petitioner's pleadings. argument, and briefs set forth the alleged statistical racial makeup of the

petit jury venire and that of Assumption Parish. He failed to adduce a single record which

substantiated his racial disparity contention. While he claims that the area from which a majority

of petit jury venire were served to appear for trial are white. the record is devoid of a scintilla of

adduced fact that of those individuals who were served and appeared for service at trial were in

fact white. Petitioner's sophomoric contention is that because they were allegedly not black,

there is systemic racism in the petit jury venire selection process in Assumption Parish. This

contention completely negates any statistical fact of whether any individual sought to be served

or was served to be on the petit jury venire was in fact of any other ethnic group (i.e. Latino.

Asian and/or of mixed ethnic makeup). Justice Griffin in State v. Thomas. 2022-KP-01613. (La.

3/28/23). 358 So. 3d 498, citing Duren v. Missouri, 439 U.S. 357. 364. 99 S. Ct. 664. 668. 58

L.Ed.2d 579 (1979), stated as much, noting that he would vote to grant petitioner's writ as

without a “deeper investigation into the parish’s jury selection process” the matter demanded

further evidentiary development to establish any basis for petitioner's claim of Assumption

Parish racial disparity in the petit jury venire selection system. Based thereon, it is abundantly

clear that petitioner failed to adduce a scintilla of fact at the trial court level to substantiate his

claim of racial disparity in the Assumption Parish petit jury venire selection system. Further.

while petitioner cites to Chief Justice Johnson’s dicta concurrence outlining the “statistical

disparity”. he fails to note that she failed to adhere to clearly established jurisprudence (i.e.

counsel’s arguments/briefs/memorandums/pleadings are not adduced evidence viable to support

a reasoned decision). Moreover, concurrences do not create clearly established law. Williams v.

Taylor. 529 U.S, 362. 120 S.Ct. 1495. 146 L.Ed.2d 389 (2000): Carey v. Musladin. 549 U.S. 70,

127 S.Ct. 649, 166 L.Ed.2d 482 (2006): Honie v. Powell. (10" Cir. 1/26/23), 58 F.3th 1173: and

Granier v, Hooper. (5"" Cir. 7/17/23), 2023WL 4554903. Petitioner's underlying contention

appears to be that a petit jury venire can only be non-discriminatory if the racial makeup of the

venire matches the racial makeup of Assumption Parish. Petitioner was not entitled to a jury of

any particular composition. Taylor v. Louisiana. 419 U.S. 522. 538. 95 S.Ct. 692. 702. 43

L.Ed.2d 690 (1975). A venire reflecting exactly the complete representation of every group

within a community would be impossible to seat. State v. Lee. 559 So. 2d. 1310. 1314. and State

v. Pooler. 96-1794 (La. App. 1™ Cir. 5/9/97), 696 So. 2d 22. 39, writ denied. 97-1470 (La.

11/14/97). 703 So. 2d 1288. Petitioner’s contention without any viable statistical data smacks of

racial profiling in direct opposition to that “dream” imagined by Martin Luther King when he

proclaimed ~(I) dream of a day when my daughters will not be judged by the color of their skin

but by the content of their character”. Lastly. petitioner does not contend that any of the jurors

selected indicated animus or bias to or against him, only that the petit jury venire was lacking in

its racial makeup. This claim is without constitutional muster and must be denied.

CONCLUSION

Based upon the above and forgoing. respondent asserts that the state court record fails to

substantiate cither the deficiency or prejudice prong of the Strickland standard or that Petitioner

was denied any constitutional right under the Equal Protection clause based upon the alleged

racial make-up of the jury venire.

RESPECTFULLY SUBMITTED.

RICKY L. BABIN

ASSISTANT DISTRIC T ATTORNEY

Louisiana Bar Roll #1287

Twenty-third Judicial District Court

Parish of Assumption

State of Louisiana

208 East Railroad Street

Gonzales, Louisiana 70737

Telephone: (225) 715-5517

Email: deandelli@eatel net

v

Dated: 3 {7 July. 2023

AFFIDAVIT OF VERIFICATION AND CERTIFICATE OF SERVICE

STATE OF LOUISIANA

PARISH OF ASCENSION

DONALD D. CANDELL, being first duly sworn, deposed and said that he has

prepared and read the foregoing Opposition to Petitioner’s Wirt of Certiorari to the

United States Supreme Court, that the allegations of fact and arguments of law contained

therein are true and correct to the best of his knowledge; and that he has the 31‘! day of

July, 2023, delivered the foregoing Opposition to Petitioner’s Wirt of Certiorari to the

United States Supreme Court by electronic and/or U.S. mail, to the following:

Mr. Andre Robert Belanger

Attorney for Kirby Thomas

Manasseh, Gill, Knipe & Belanger

Attorneys at Law

8075 Jefferson Highway

Baton Rouge, LA 70809

Email: andre@manassehandgill.com

INALD D. CANDELL

Assistant District Attorney, Respondent

Sworn to and subscribed before me,

This 31 day of July, 2023.

NOTARY PUBLIC

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