State v. Nelson

• Decision Date: 10 November 2021
• Docket Number: 21-461
• Citation: 330 So.3d 336
• Parties: STATE of Louisiana v. David A. NELSON
• Court: Court of Appeal of Louisiana — District of US

330 So.3d 336

STATE of Louisiana
v.
David A. NELSON

21-461

Court of Appeal of Louisiana, Third Circuit.

November 10, 2021
Rehearing Denied March 9, 2022

Stephen C. Dwight, District Attorney, 14th Judicial District, John E. Turner, Assistant District Attorney, P. O. Box 3206, Lake Charles, LA 70602, (337) 437-3400, COUNSEL FOR PLAINTIFF/APPLICANT: State of Louisiana

Hardell Ward, Promise of Justice Initiative, 1024 Elysian Fields Ave., New Orleans, LA 70117, (504) 529-5955, COUNSEL FOR DEFENDANT/RESPONDENT: David A. Nelson

Jamila Johnson, Promise of Justice Initiative, 1024 Elysian Fields Ave., New Orleans, LA 70117, (504) 529-5955, COUNSEL FOR DEFENDANT/RESPONDENT: David A. Nelson

Madeleine Vidger, Promise of Justice Initiative, 1024 Elysian Fields Ave., New Orleans, La 70117, (504) 529-5955, COUNSEL FOR DEFENDANT RESPONDENT: David A. Nelson

Court composed of Elizabeth A. Pickett, Van H. Kyzar, and Charles G. Fitzgerald, Judges.

KYZAR, Judge.

330 So.3d 337

The State of Louisiana seeks review of the trial court's decision granting Defendant/Relator's application for post-conviction relief, ruling that Ramos v. Louisiana , 590 U.S. ––––, 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020), retroactively applied to Relator's March 22, 2012 conviction for manslaughter as a "watershed" exception of criminal procedure. For the reasons herein set forth, we grant the writ and make it peremptory, reversing the trial court's decision and dismissing Relator's application for post-conviction relief as being untimely.

FACTS AND PROCEDURAL HISTORY

Relator, David A. Nelson, was tried for second degree murder, in violation of La.R.S. 14:30.1. On March 22, 2012, by a 10-2 vote, the jury found Relator guilty of the responsive verdict of manslaughter, in violation of La.R.S. 14:31. After the trial court sentenced Relator to thirty years at hard labor, this court and the supreme court affirmed the conviction and sentence on appeal. See State v. Nelson , 13-70 (La.App. 3 Cir. 10/9/13), 2013 WL 5539336 (unpublished opinion),¹ writ denied , 13-2606 (La. 4/17/14), 138 So.3d 626.

Relator sought post-conviction relief in January 2015, alleging that he was denied a fair trial due to the jury foreman being a paralegal at the law firm which represented the victim's family in a related civil matter along with two claims of ineffective assistance of counsel against his trial counsel and one claim of ineffective assistance of appellate counsel. The trial court denied the application without a hearing, and both this court and the supreme court denied Relator's subsequent writ applications. See State v. Nelson , 15-173 (La.App. 3 Cir. 5/6/15) (unpublished opinion), writ denied , 15-1003 (La. 3/24/16), 187 So.3d 995 (per curiam). The supreme court noted in its per curiam that Relator had fully litigated his application and exhausted his right to state collateral review.

On April 8, 2021, Relator filed a "Second or Subsequent Uniform Application for Postconviction Relief." Specifically, Relator contended that his "conviction was obtained in violation of the Constitution of the United States ( La. C. Cr. P. art. 930.3(1) ), and that his application is timely under 930.8(2)." Relator's application is based upon the Supreme Court's decision in Ramos v. Louisiana , 590 U.S. ––––, 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020), which held the United States Constitution requires that a criminal conviction be supported by a unanimous jury verdict and that the Fourteenth Amendment extends that requirement to state courts. On May 27, 2021, the State filed "State's Opposition to Petitioner's Application for Post Conviction Relief," contending Relator's application

330 So.3d 338

was procedural barred as untimely and Relator could not prove Ramos was retroactive to his case in light of Edwards v. Vannoy , ––– U.S. ––––, 141 S.Ct. 1547, 209 L.Ed.2d 651 (2021), which denied retroactive application of Ramos on federal collateral review.

On June 25, 2021, a hearing on Relator's application for post-conviction relief was held. Following argument from both parties, the trial court granted Relator's application for post-conviction relief stating that it found Ramos to be retroactive to Nelson's final conviction as a "watershed rule in Criminal Procedure" under Teague v. Lane , 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). The trial court then granted a stay in the case, anticipating appellate review, stating "someone's going to have to make a decision about my ruling later. So, there's a stay in this case."

The State now seeks review of the trial court's ruling, assigning three assignments of error: (1) the trial court erred in finding Relator's application to be timely, (2) the trial court erred in finding Ramos was retroactively applicable to Relator, and (3) the trial court erred in granting Relator's application for post-conviction relief.

DISCUSSION

The State's first two assignments of error are that the trial court erred in finding Relator's application for post-conviction relief (PCR) was timely and that Ramos applied retroactively to Relator's case. The third assignment of error is generally that the trial court erred in granting Relator's application for PCR. The issues are intrinsically intertwined and thus we address them together. If Ramos applies retroactively to Relator, then his application for PCR is timely; if Ramos is not retroactive, Relator's filing is untimely, and the trial court erred in granting the PCR application, ordering a new trial. As previously noted, the supreme court has already found that Relator has exhausted his right to apply for post-conviction relief unless he can show an exception to La.Code Crim.P. art. 930.8. See Nelson , 187 So.3d at 996. Relator's PCR application alleged it was timely filed under La.Code Crim.P. art. 930.8(A)(2), which allows for an untimely application if:

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.

The ruling in Ramos was issued on April 20, 2020, and Relator filed his instant PCR application on April 8, 2021. Accordingly, if Ramos applies retroactively to Relator, his application would be timely under La.Code Crim.P. art. 930.8(A)(2). Therefore, this court must determine whether Ramos has retroactive application to the collateral review of his conviction. We conclude that it does not.

In our analysis, we must look to the cases of import and their relevant holdings in determining the correct outcome of this issue: Teague ; Danforth v. Minnesota , 552 U.S. 264, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008) ; Ramos ; Edwards ; and State ex rel. Taylor v. Whitley , 606 So.2d 1292 (La.1992), cert. denied , 508 U.S. 962, 113 S.Ct. 2935, 124 L.Ed.2d 684 (1993).

In Teague , the Supreme Court was called upon to determine whether its ruling in Taylor v. Louisiana , 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), dictated that a petit jury must represent a fair cross section. Without addressing that issue, however, the Supreme Court adopted a new standard for determining

330 So.3d 339

whether a rule applies retroactively on federal collateral review. In the process, the Court noted it had been inconsistent in how it determined retroactivity, sometimes deciding on retroactivity at the time it rendered a ruling and sometimes waiting until a subsequent defendant argued he should receive the benefit of the rule.

The Court, after discussing its previous use of the standard set forth in Linkletter v. Walker , 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), adopted a modified version of a standard previously proposed by Justice Harlan:

Dissatisfied with the Linkletter standard, Justice Harlan advocated a different approach to retroactivity. He argued that new rules should always be applied retroactively to cases on direct review, but that generally they should not be applied retroactively to criminal cases on collateral review. See Mackey v. United States , 401 U.S. 667, 675, 91 S.Ct. 1160, 1164, 28 L.Ed.2d 404 (1971) (opinion concurring in judgments in part and dissenting in part); Desist [v. United States ,] 394 U.S. [244] , at 256, 89 S.Ct. [1030] , at 1037 [22 L.Ed.2d 248 (1969)] (dissenting opinion).

In Griffith v. Kentucky , 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), we rejected as unprincipled and inequitable the Linkletter standard for cases pending on direct review at the time a new rule is announced, and adopted the first part of the retroactivity approach advocated by Justice Harlan. We agreed with Justice Harlan that "failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication." 479 U.S., at 322, 107 S.Ct., at 713. We gave two reasons for our decision. First, because we can only promulgate new rules in specific cases and cannot possibly decide all cases in which review is sought, "the integrity of judicial review" requires the application of the new rule to

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