969 F.3d 527 (5th Cir. 2020), 20-30127, In re Sharp

Docket Nº:20-30127
Citation:969 F.3d 527
Opinion Judge:PER CURIAM:
Party Name:IN RE: Larry SHARP, Movant.
Attorney:Gershon Benjamin Cohen, Esq., The Promise of Justice Initiative, New Orleans, LA, for Movant.
Judge Panel:Before HIGGINBOTHAM, SMITH, and OLDHAM, Circuit Judges.
Case Date:August 12, 2020
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 527

969 F.3d 527 (5th Cir. 2020)

IN RE: Larry SHARP, Movant.

No. 20-30127

United States Court of Appeals, Fifth Circuit

August 12, 2020

Page 528

Appeal from the United States District Court for the Southern District of Texas

Gershon Benjamin Cohen, Esq., The Promise of Justice Initiative, New Orleans, LA, for Movant.

Before HIGGINBOTHAM, SMITH, and OLDHAM, Circuit Judges.

PER CURIAM:

Larry Sharp, Louisiana prisoner # 443025, was found guilty of second-degree murder by a jury in an 11-to-1 verdict. See State v. Sharp, 810 So.2d 1179, 1183 (La. Ct.App. 2002). He received a mandatory sentence of life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. See id. On direct appeal, he argued, inter alia, that state law allowing for a non-unanimous 10-to-2 jury verdict for second-degree murder violated his right to due process. See id. at 1193-94. The Louisiana Court of Appeal affirmed Sharp's conviction. Id. at 1193-94, 1196. The Louisiana Supreme Court denied his petition for review. State v. Sharp, 845 So.2d 1081 (La. 2003) (mem.).

In 2008, proceeding pro se, Sharp filed a petition for federal habeas relief under 28 U.S.C. § 2254. In addition to a host of other contentions, Sharp argued that state law allowing non-unanimous jury verdicts violates the Fourteenth Amendment's Due Process Clause. The district court denied the petition. In June 2012, this court denied Sharp's application for a certificate of appealability.

Seven years later in June 2019, Sharp filed a pro se Federal Rule of Civil Procedure 60(b) motion to reopen his federal habeas proceedings in light of the Supreme Court's grant of certiorari in Ramos v. Louisiana, ___ U.S. ___, 139 S.Ct. 1318, 203 L.Ed.2d 563 (2019) (mem.). In February 2020, the district court determined that the motion was an unauthorized successive § 2254 application and transferred it to this court. See Gonzalez v. Crosby, 545 U.S. 524, 531-32, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005); In re Epps, 127 F.3d 364, 365 (5th Cir. 1997). Subsequently, in April 2020, the Supreme Court ruled in Ramos v. Louisiana, ___ U.S. ___, 140 S.Ct. 1390, 1394, 1397, 206 L.Ed.2d 583 (2020), that the Sixth Amendment, as incorporated against the states in the Fourteenth Amendment, requires a unanimous verdict to convict a defendant of a serious offense. Sharp has since moved for this court's authorization to file a second or successive federal habeas petition.

A prisoner cannot file a second or successive federal habeas petition without first getting permission under 28 U.S.C. § 2244. Section 2244(b)(1)...

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