State of Louisiana v. David A. Nelson

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

21-461

STATE OF LOUISIANA

VERSUS

DAVID A. NELSON

**********

ON REVIEW FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 34884-09 HONORABLE KENDRICK J. GUIDRY, DISTRICT JUDGE

VAN H. KYZAR

JUDGE

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

WRIT GRANTED AND MADE PEREMPTORY. REVERSED. 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 KYZAR, Judge.

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 (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(La.App. 3 Cir. 10/9/13) (unpublished opinion),1 writ denied, 13-2606 (La. 4/17/14),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

1 This case may be found at 2013 WL 5539336. 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 (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 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 (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 (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

2 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 (2008); Ramos; Edwards; and State ex rel. Taylor v. 3 Whitley, 606 So.2d 1292 (La.1992), cert. denied, 508 U.S. 962, 113 S.Ct. 2935

(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 (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 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 (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 [(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 “all similar cases pending on direct review.” Id., at 323, 107 S.Ct., at 713. We quoted approvingly from Justice Harlan’s separate opinion in Mackey, supra, 401 U.S., at 679, 91 S.Ct., at 1173:

4 “ ‘If we do not resolve all cases before us on direct review in light of our best understanding of governing constitutional principles, it is difficult to see why we should so adjudicate any case at all. . . . In truth, the Court’s assertion of power to disregard current law in adjudicating cases before us that have not already run the full course of appellate review is quite simply an assertion that our constitutional function is not one of adjudication but in effect of legislation.’ ” 479 U.S., at 323, 107 S.Ct., at 713.

Second, because “selective application of new rules violates the principle of treating similarly situated defendants the same,” we refused to continue to tolerate the inequity that resulted from not applying new rules retroactively to defendants whose cases had not yet become final. Id., at 323–324, 107 S.Ct., at 713–714 (citing Desist, supra, 394 U.S., at 258–259, 89 S.Ct., at 1038–1039 (Harlan, J., dissenting)). Although new rules that constituted clear breaks with the past generally were not given retroactive effect under the Linkletter standard, we held that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” 479 U.S., at 328, 107 S.Ct., at 716.

Teague, 489 U.S. at 303-05.

The Court went on to note:

Justice Harlan identified only two exceptions to his general rule of nonretroactivity for cases on collateral review. First, a new rule should be applied retroactively if it places “certain kinds of primary, private individual conduct beyond the power of the criminal law- making authority to proscribe.” Mackey, 401 U.S., at 692, 91 S.Ct., at 1180. Second, a new rule should be applied retroactively if it requires the observance of “those procedures that . . . are ‘implicit in the concept of ordered liberty.’ ” Id., at 693, 91 S.Ct., at 1180 (quoting Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937) (Cardozo, J.)).

Id. at 307.

The Court ultimately adopted “Justice Harlan’s view of retroactivity for cases

on collateral review. Unless they fall within an exception to the general rule, new

constitutional rules of criminal procedure will not be applicable to those cases which

have become final before the new rules are announced.” Id. at 310.

5 In Taylor, the supreme court was called upon to rule on the retroactivity of the

Supreme Court’s ruling in Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328 (1991).2

In the process, the Louisiana Supreme Court expressly adopted the Teague analysis:

However, we have yet to consider the issue of retroactivity on collateral review in light of Teague. We now do so, and adopt the Teague standards for all cases on collateral review in our state courts.

In doing so, we recognize that we are not bound to adopt the Teague standards. However, we find the Linkletter test, generally followed by our courts in the past, is vague and leads to the possibility of inconsistent results. Further, we find the consideration of finality in criminal proceedings, so well enunciated by Justice Harlan in Desist and Mackey, is equally applicable in state proceedings as well as federal proceedings.

Taylor, 606 So.2d at 1296-97. Furthermore, the supreme court expressly stated “we

now adopt Justice Harlan’s views on retroactivity, as modified by Teague and

subsequent decisions, for all cases on collateral review in our state courts.” Id. at

1297.

In Danforth, the defendant sought state post-conviction relief based on a claim

the admission of the victim’s taped interview with law enforcement was a violation

of the Sixth Amendment in light of the Supreme Court’s ruling in Crawford v.

Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004). The Supreme Court overruled the

Minnesota Supreme Court’s finding that a state court could not give a Supreme

Court ruling any greater retroactivity than that announced by the federal courts under

Teague:

In sum, the Teague decision limits the kinds of constitutional violations that will entitle an individual to relief on federal habeas, but does not in any way limit the authority of a state court, when reviewing

2 Therein, the Supreme Court held that a jury charge in the defendant’s murder trial that instructed that “to convict, guilt must be found beyond a reasonable doubt; but it then equated a reasonable doubt with a ‘grave uncertainty’ and an ‘actual substantial doubt,’ and stated that what was required was a ‘moral certainty’ that the defendant was guilty,” permits a degree of proof below the “beyond a reasonable doubt” standard constitutionally required by the Due Process Clause of the Fourteenth Amendment. Id. at 329-330.

6 its own state criminal convictions, to provide a remedy for a violation that is deemed “nonretroactive” under Teague.

Danforth, 552 U.S. at 282.

In Ramos, the Supreme Court took up the issue of whether the Sixth

Amendment to the United States Constitution required a criminal defendant to be

convicted by a unanimous jury and whether the Fourteenth Amendment incorporated

that right against the states. The Court ultimately abrogated Apodaca v. Oregon,

406 U.S. 404, 92 S.Ct. 1628 (1972), which had held that a non-unanimous jury

conviction in state court did not violate the United States Constitution and found that

the Sixth Amendment, as incorporated against the states by the Fourteenth

Amendment, required that all criminal convictions be obtained by a unanimous jury

verdict. As Mr. Ramos’s case was on direct appeal, the Court opted not to decide

the issue of retroactive application of the unanimous jury requirement.

In Edwards, the issue of retroactive application was brought squarely before

the Supreme Court by a defendant convicted of armed robbery, rape, and kidnapping

in 2007 who sought to have the Ramos ruling applied to his case on federal collateral

review. The Court, after a thorough analysis of Ramos under the Teague framework,

found that Ramos had announced a new rule of procedural law that did not satisfy

the “watershed” exception set out in Teague and was therefore not retroactively

applicable on federal collateral review. Furthermore, the Edwards court modified

the Teague framework by completely eliminating the “watershed” exception:

Continuing to articulate a theoretical exception that never actually applies in practice offers false hope to defendants, distorts the law, misleads judges, and wastes the resources of defense counsel, prosecutors, and courts. Moreover, no one can reasonably rely on an exception that is non-existent in practice, so no reliance interests can be affected by forthrightly acknowledging reality. It is time—probably long past time—to make explicit what has become increasingly apparent to bench and bar over the last 32 years: New procedural rules do not apply retroactively on federal collateral review. The watershed

7 exception is moribund. It must “be regarded as retaining no vitality.”

Edwards, 141 S.Ct. at 1560.

Despite eliminating the “watershed” exception and declaring Ramos was not

retroactive on federal collateral review, the Edwards court noted in footnote number

six that states could still apply Ramos retroactively on state law grounds in light of

Danforth. Having discussed briefly the cases of import, we now turn to the

arguments presented by Relator to the trial court.

The State contends this court should interpret the Taylor opinion as an

adoption of Teague and all of its future progeny. The State argues that Edwards is

directly applicable as a progeny of Teague, adopted by the Louisiana Supreme Court

in Taylor, wherein the supreme court stated, “we now adopt Justice Harlan’s views

on retroactivity, as modified by Teague and subsequent decisions, for all cases on

collateral review in our state courts.” Taylor, 606 So.2d at 1297. Accepting the

State’s argument would mean the State of Louisiana no longer recognizes the

“watershed exception” as it was eliminated by the Supreme Court in Edwards.

However, we note that at the time the supreme court issued the Taylor opinion, three

cases had already been decided by the Supreme Court which modified Teague by

clarifying the standard: Butler v. McKellar, 494 U.S. 407, 110 S.Ct. 1212 (1990);

Saffle v. Parks, 494 U.S. 484, 110 S.Ct. 1257 (1990); and Sawyer v. Smith, 497 U.S.

227, 110 S.Ct. 2822 (1990). The Taylor court recognized and discussed Butler,

Saffle, and Sawyer. As noted in Taylor, the Supreme Court in Butler established that

a “new rule” under Teague was one that was not dictated by precedent. In Saffle,

the Court stated the following relative to the Butler definition of a new rule: “Under

this functional view of what constitutes a new rule, our task is to determine whether

a state court considering Parks’ claim at the time his conviction became final would

have felt compelled by existing precedent to conclude that the rule Parks seeks was 8 required by the Constitution.” 494 U.S. at 488. Finally, in Sawyer, the Court

addressed the second Teague exception:

It is thus not enough under Teague to say that a new rule is aimed at improving the accuracy of trial. More is required. A rule that qualifies under this exception must not only improve accuracy, but also “ ‘alter our understanding of the bedrock procedural element’ ” essential to the fairness of a proceeding.

497 U.S. at 242.

The Taylor court’s statement that it was adopting Justice Harlan’s views “as

modified by Teague and subsequent decisions” may have simply been an adoption

of the Teague standard as it stood at the time of the Taylor opinion, as modified or

extended by Butler, Saffle, and Sawyer, not the broad interpretation as propounded

by the State. We cannot be so bold as to extend Taylor beyond the narrower

interpretation.

On the other hand, Relator’s PCR application contends Edwards should not

be followed to determine the retroactivity of Ramos for state collateral review. In

essence, Relator argues that in light of Danforth, Louisiana courts may ignore the

fact the Edwards court subjected Ramos to the test laid out in Teague, found Ramos

was not retroactive, and ultimately modified Teague to remove the possibility of

retroactive application of a new procedural rule. We decline do so in reaching our

decision here.

The trial court, in finding Ramos to be retroactively applicable to state

collateral review, held that it was following Ramos and Teague: “In citing the

exception, I find this a watershed rule in Criminal Procedure.” We find that the trial

court erred in its reasoning. Although the trial court declared Ramos to be a

watershed rule under Teague, the court failed to provide any legal reasoning for how

it presumedly applied the same Teague analysis as the Supreme Court and came to

the opposite conclusion as to whether Ramos met the watershed exception. In 9 Edwards, the Court extensively discussed the potential for the federal retroactivity

of Ramos and determined that it did not so qualify.

Having determined that Ramos announced a new rule requiring jury unanimity, we must consider whether that new rule falls within an exception for watershed rules of criminal procedure that apply retroactively on federal collateral review.

This Court has stated that the watershed exception is “extremely narrow” and applies only when, among other things, the new rule alters “our understanding of the bedrock procedural elements essential to the fairness of a proceeding.” Whorton [v. Bockting], 549 U.S. [406,] at 417–418, 127 S.Ct. 1173 (internal quotation marks omitted).

In the abstract, those various adjectives—watershed, narrow, bedrock, essential—do not tell us much about whether a particular decision of this Court qualifies for the watershed exception. In practice, the exception has been theoretical, not real. The Court has identified only one pre-Teague procedural rule as watershed: the right to counsel recognized in the Court’s landmark decision in Gideon v. Wainwright, 372 U.S. 335, 344–345, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). See Whorton, 549 U.S. at 419, 421, 127 S.Ct. 1173. The Court has never identified any other pre-Teague or post-Teague rule as watershed. None.

Moreover, the Court has flatly proclaimed on multiple occasions that the watershed exception is unlikely to cover any more new rules. Even 32 years ago in Teague itself, the Court stated that it was “unlikely” that additional watershed rules would “emerge.” 489 U.S. at 313, 109 S.Ct. 1060 (plurality opinion). And since Teague, the Court has often reiterated that “it is unlikely that any such rules have yet to emerge.” Whorton, 549 U.S. at 417, 127 S.Ct. 1173 (internal quotation marks and alteration omitted); see also Beard v. Banks, 542 U.S. 406, 417, 124 S.Ct. 2504, 159 L.Ed.2d 494 (2004); Summerlin, 542 U.S. at 352, 124 S.Ct. 2519; Tyler, 533 U.S. at 667, n. 7, 121 S.Ct. 2478; Graham v. Collins, 506 U.S. 461, 478, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993); Sawyer, 497 U.S. at 243, 110 S.Ct. 2822; Butler v. McKellar, 494 U.S. 407, 416, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990).

Consistent with those many emphatic pronouncements, the Court since Teague has rejected every claim that a new procedural rule qualifies as a watershed rule. For example, in Beard v. Banks, 542 U.S. at 408, 124 S.Ct. 2504, the Court declined to retroactively apply the rule announced in Mills v. Maryland, 486 U.S. 367, 384, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), that capital juries may not be required to disregard certain mitigating factors. In O'Dell v. Netherland, 521 U.S. 151, 153, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997), the Court refused to retroactively apply the rule announced in Simmons v. South Carolina, 512 U.S. 154, 156, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), that a capital defendant must be able, in certain circumstances, to 10 inform the sentencing jury that he is parole ineligible. In Lambrix v. Singletary, 520 U.S. at 539–540, 117 S.Ct. 1517, the Court declined to retroactively apply the rule announced in Espinosa v. Florida, 505 U.S. 1079, 1082, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992) (per curiam), that sentencers may not weigh invalid aggravating circumstances before recommending or imposing the death penalty. In Sawyer v. Smith, 497 U.S. at 229, 110 S.Ct. 2822, the Court refused to retroactively apply the rule announced in Caldwell v. Mississippi, 472 U.S. 320, 323, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), which prohibited a death sentence by a jury led to the false belief that responsibility for the sentence rested elsewhere.

The list of cases declining to retroactively apply a new rule of criminal procedure extends back long before Teague to some of this Court’s most historic criminal procedure decisions. For example, in Johnson v. New Jersey, 384 U.S. 719, 721, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), the Court declined to retroactively apply Miranda v. Arizona, 384 U.S. 436, 444–445, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which required that police inform individuals in custody of certain constitutional rights before questioning them. And in Linkletter v. Walker, 381 U.S. at 639–640, 85 S.Ct. 1731, the Court refused to retroactively apply Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), which incorporated the Fourth Amendment exclusionary rule against the States.

Edwards seeks to distinguish Ramos from the long line of cases where the Court has declined to retroactively apply new procedural rules. Edwards emphasizes three aspects of Ramos: (i) the significance of the jury-unanimity right; (ii) Ramos’s reliance on the original meaning of the Constitution; and (iii) the effect of Ramos in preventing racial discrimination in the jury process.

But Edwards’s attempts to distinguish Ramos are unavailing because the Court has already considered and rejected those kinds of arguments in prior retroactivity cases.

First, Edwards emphasizes the significance of the jury- unanimity right for criminal defendants. But that argument for retroactivity cannot be squared with the Court’s decisions in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), and DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968) (per curiam). In Duncan, the Court repudiated several precedents and ruled that a defendant has a constitutional right to a jury trial in a state criminal case. 391 U.S. at 149–150, 154–155, 88 S.Ct. 1444. Notwithstanding the extraordinary significance of Duncan in guaranteeing a jury trial and expanding the rights of criminal defendants, the Court in DeStefano declined to retroactively apply the jury right. 392 U.S. at 633, 88 S.Ct. 2093; see also Summerlin, 542 U.S. at 356–358, 124 S.Ct. 2519 (relying on DeStefano and rejecting retroactivity of jury right recognized in Ring v. Arizona, 536 U.S. 584, 589, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002)). We cannot discern a 11 principled basis for retroactively applying the subsidiary Ramos jury- unanimity right when the Court in DeStefano declined to retroactively apply the broader jury right itself.

Second, Edwards stresses that Ramos relied on the original meaning of the Sixth Amendment. But that argument for retroactivity is inconsistent with Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and Whorton v. Bockting, 549 U.S. 406, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007). In Crawford, the Court relied on the original meaning of the Sixth Amendment’s Confrontation Clause to overrule precedent and restrict the use of hearsay evidence against criminal defendants. 541 U.S. at 60–69, 124 S.Ct. 1354. Notwithstanding Crawford’s reliance on the original meaning of the Sixth Amendment, the Court in Whorton declined to retroactively apply Crawford. 549 U.S. at 421, 127 S.Ct. 1173.

Third, Edwards says that Ramos prevents racial discrimination by ensuring that the votes of all jurors, regardless of race, matter in the jury room. But that argument for retroactivity cannot prevail in light of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986) (per curiam). In Batson, the Court overruled precedent and revolutionized day-to-day jury selection by holding that state prosecutors may not discriminate on the basis of race when exercising individual peremptory challenges. 476 U.S. at 92–93, 96–98, 106 S.Ct. 1712. Nonetheless, the Court in Allen declined to retroactively apply Batson. 478 U.S. at 261, 106 S.Ct. 2878; see also Teague, 489 U.S. at 295–296, 109 S.Ct. 1060 (reaffirming Allen).

The Court’s decisions in Duncan, Crawford, and Batson were momentous and consequential. All three decisions fundamentally reshaped criminal procedure throughout the United States and significantly expanded the constitutional rights of criminal defendants. One involved the jury-trial right, one involved the original meaning of the Sixth Amendment’s Confrontation Clause, and one involved racial discrimination in jury selection. Yet the Court did not apply any of those decisions retroactively on federal collateral review. Ramos is likewise momentous and consequential. But we see no good rationale for treating Ramos differently from Duncan, Crawford, and Batson. Consistent with the Court’s long line of retroactivity precedents, we hold that the Ramos jury-unanimity rule does not apply retroactively on federal collateral review.

Edwards, 141 S.Ct. at 1556-59 (footnote omitted).

Relator argues that such a Teague analysis should turn out differently under

Louisiana state law based upon Brown v. Louisiana, 447 U.S. 323, 100 S.Ct. 2214

(1980). In Brown, the Supreme Court retroactively applied its ruling in Burch v.

12 Louisiana, 441 U.S. 130, 99 S.Ct. 1623 (1979), that it was unconstitutional to allow

non-unanimous convictions in trials with a six-person jury. However, the Brown

ruling not only pre-dates the Teague analysis, but it is one of the cases cited by the

Teague court as exemplifying the need for a single method of analyzing retroactivity.

See Teague, 489 U.S. at 299-300. Additionally, the Edwards opinion addressed

Brown in footnote 5, noting the Justices who provided the decisive opinion in Brown

only found Burch applicable to cases on direct review.

Rather, we rely on the Supreme Court’s Teague analysis in Edwards and

conclude that the Ramos decision has no retroactive effect on collateral review of

Relator’s 2012 conviction in Louisiana. The trial court erred in its decision to the

contrary. In doing so, the trial court failed to provide any explanation for why its

analysis of Ramos under Teague reached the opposite conclusion as the Supreme

Court did for federal collateral review. We cannot fathom any different conclusion

than that of the United States Supreme Court that Ramos does not satisfy the

“watershed” exception set out in Teague. As such, Relator has failed to show a valid

exception to the time limitation in La.Code Crim.P. art. 930.8 which would allow

filing of an otherwise untimely application for post-conviction relief.

An appellate court may raise the procedural bar of untimeliness on an

application for post-conviction relief even when the trial court has considered the

merits of the application. See State ex rel. Glover v. State, 93-2330, 94-2101, 94-

2197 (La. 9/5/95), 660 So.2d 1189, abrogated in part on other grounds by State ex

rel. Olivieri v. State, 00-172, 00-1767 (La. 2/21/01), 779 So.2d 735, cert. denied,

533 U.S. 936, 121 S.Ct. 2566 (2001), and cert. denied, 534 U.S. 892, 122 S.Ct. 208

(2001). Accordingly, Relator’s application for post-conviction relief is denied as

untimely because Ramos does not apply retroactively to Relator’s conviction. In so

concluding, the State’s final assignment of error is rendered moot. 13 DECREE

For the reasons set forth herein, we reverse the decision of the trial court and

deny Relator’s application for post-conviction relief as having been untimely filed.

WRIT GRANTED AND MADE PEREMPTORY. REVERSED.