Terrence Williams Versus Darrel Vannoy, Warden

TERRENCE WILLIAMS NO. 20-KH-224

VERSUS FIFTH CIRCUIT

DARREL VANNOY, WARDEN COURT OF APPEAL

STATE OF LOUISIANA

August 31, 2020

Susan Buchholz
First Deputy Clerk

ON APPLICATION FOR REHEARING

Panel composed of Marc E. Johnson,
Robert A. Chaisson, and John J. Molaison, Jr.

DENIED WITH REASONS

JJM
RAC

DISSENTS WITH REASONS

MEJ

MOLAISON, J.

To date, the Louisiana Supreme Court has not held that Ramos v. Louisiana,

140 S. Ct. 1390 (2020), should be given retroactive application. See, Joseph v.

Louisiana, 19-01989(La. 8/14/20), --- So.3d ----, 2020 WL 4731876;State v.

Sonnier, 19-02066 (La. 8/14/20),--- So.3d ----, 2020 WL 4727074; State v.

Mason, 19-01821 (La. 8/14/20) --- So.3d ----, 2020 WL 4731964. For this reason,

and for the reasons assigned in our original denial of relator’s writ application,

relator’s application for rehearing is denied.

20-KH-224 1

TERRENCE WILLIAMS NO. 20-KH-224
VERSUS FIFTH CIRCUIT
DARREL VANNOY, WARDEN
COURT OF APPEAL

STATE OF LOUISIANA

JOHNSON J., DISSENTS WITH REASONS

I respectfully dissent in this matter, having reconsidered my position on

the original writ application. Applications for post-conviction relief (including

those seeking an out-of-time appeal) may be considered if filed more than two

years after the judgment of conviction and sentence become final when: 1) the

claim asserted in the petition is based upon a final ruling of an appellate court

establishing a theretofore unknown interpretation of constitutional law; 2)

petitioner establishes that this interpretation is retroactively applicable to his

case; and 3) the petition is filed within one year of the finality of such ruling.

La. C.Cr.P. art. 930.8 (A)(2). In Ramos v. Louisiana, , --- U.S. ---, 140 S.Ct.

1390, 206 L.Ed.2d 583 (2020), the United States Supreme Court found that the

Sixth Amendment right to a jury trial—as incorporated against the states by the

Fourteenth Amendment— now mandates that Louisiana require a unanimous

verdict to convict a defendant of a serious offense – satisfying the first

requirement of La. C.Cr.P. art. 930.8 A (2) in this case. Also, Relator’s petition

is timely, as Ramos was decided in April, 2020.

The question that remains is whether petitioner established that Ramos is

retroactively applicable to his case. Petitioner cites Teague v. Lane, 489 U.S. 288,

312; 109 S.Ct. 1060, 1076; 103 L.Ed.2d 334 (1989) and avers that that his case

20-KH-224 2

falls within one of the two exceptions proposed by United States Supreme Court

Justice Harlan.1 Louisiana Supreme Court Chief Justice Johnson agrees by

explaining,

[i]n 1992, we adopted Teague's test for determining whether decisions
affecting rights of criminal procedure would be retroactively applied
in cases on state collateral review. Teague only requires retroactive
application of a new rule if it is a “watershed rul[e] of criminal
procedure” that “implicates the fundamental fairness [and accuracy]”
of the criminal proceeding. In my view, Ramos announces a
watershed rule implicating fundamental fairness and accuracy.

Jones v. State, 19-1900 (La. 6/3/20); 296 So.3d 1060, (Mem)–1061 (Internal

citations omitted). In Silva v. Vannoy, Justice Johnson urges:

There is no principled or moral justification for
differentiating between the remedy for a prisoner
convicted by that law whose case is on direct review and
one whose conviction is final. [Louisiana] should
abandon our use of the Teague test, which—informed by
federalism concerns2—has never had any logical
application in state court anyway, and formulate a new
retroactivity test for Louisiana that takes into account the
racist origins or disproportionate impact of a stricken
law.[ . . . R]egardless of the words or legal grounds a
defendant uses to challenge his conviction, I believe
Ramos should apply to anyone convicted by a non-
unanimous jury.

1
Here, the relevant exception suggested by Justice Harlan was ‘that a new rule should be applied retroactively if it
requires the observance of “those procedures that ... are ‘implicit in the concept of ordered liberty,’ in some
situations it might be that time and growth in social capacity, as well as judicial perceptions of what we can rightly
demand of the adjudicatory process, will properly alter our understanding of the bedrock procedural elements that
must be found to vitiate the fairness of a particular conviction.” The other proposed exception was that 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[.]” Teague, 489 U.S. at 311 (internal citations omitted). See also
Mackey v. United States, 401 U.S. 667; 91 S.Ct. 1160; 28 L.Ed.2d 404 (1971).
2
See also Chief Justice Calogero’s dissent in State ex rel. Taylor v. Whitley, 606 So.2d 1292, 1301 (La.1992), which
held, “In adopting new criteria for the determination of retroactive application of criminal constitutional law, the
federal courts have indicated that their reduced intrusion into state criminal process is motivated by concerns of
federalism and comity. See generally Teague v. Lane[, supra]. State courts should not blindly adopt these new
criteria, because the concerns of federalism and comity are absent from state criminal court proceedings.
Moreover, Louisiana Constitution Article I § 21 provides that “[t]he writ of habeas corpus shall not be suspended.”
And Louisiana Code of Criminal procedure article 930.3(1) provides:
If the petitioner is in custody after sentence for conviction of an offense, relief shall be granted only on the following
grounds:
(1)The conviction was obtained in violation of the constitution of the United States or the state of Louisiana.”

20-KH-224 3

Silva v. Vannoy, 19-1861 (La. 6/3/20); 296 So.3d 1033, (Mem)–1034.

Finally, Justice Johnson declares, “[W]e must formulate a new test for

determining whether a decision be applied retroactively; one that includes a

consideration of whether a stricken law had a racist origin, has had a

disproportionate impact on cognizable groups or has otherwise contributed to

our state’s history of systemic discrimination against African Americans. And

under any such test, I believe Ramos would have to be retroactively applied.”

State v. Gipson, 19-1815 (La. 6/3/20); 296 So.3d 1051, 1056.3

In conclusion, Relator’s case falls under the exception provided by La.

C.Cr.P. art. 930.8 (A)(2). Further, Justice Johnson’s recent opinions are

persuasive and convincing – Ramos should apply to cases on collateral review.

Although the Uniform Rules of Court, Rule 2-18.7 does not provide for the

rehearing of denied writs, I recognize the unusual circumstances here. Our

Supreme Court has not yet ruled on the applicability of Ramos to cases on state

collateral review. Therefore, I opine that this Court should grant Relator’s

request in this case in the interests of justice.4

3
In Gipson* and other recent Supreme Court writ denials where the question of whether Ramos applies retroactively
to cases on state collateral review, Justice Weimer along with Chief Justice Johnson, would also grant the writ
applications and docket to consider the issue. See also, State v. Rochon, 19-1678 (La. 6/3/20); 296 So.3d 1028;
State v. Dotson, 19-1828 (La. 6/3/20); 296 So.3d 1059; Jones v. State, supra; Silva v. Vannoy, supra.
*Justice Crichton would also grant and docket Gipson.
4
Consider State v. Davis, 19-1962 (La. 4/27/20); 295 So.3d 396, 397.

20-KH-224 4

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 08/31/2020 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

20-KH-224
E-NOTIFIED
Grant L. Willis (Respondent) Thomas J. Butler (Respondent)

MAILED
Honorable Jeffrey M. Landry (Respondent) Terrence Williams #487561 (Relator)
Attorney General Louisiana State Penitentiary
Louisiana Department of Justice Angola, LA 70712
1885 North 3rd Street
6th Floor, Livingston Building
Baton Rouge, LA 70802