Opinion
21-KH-724
01-21-2022
STATE OF LOUISIANA v. BRANDON GRAY SR. IN RE BRANDON GRAY, SR.
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE DANYELLE M. TAYLOR, DIVISION "O", NUMBER 14-5895
Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and John J. Molaison, Jr.
WRIT DENIED
The relator, Brandon Gray, Sr., was convicted by a jury of five counts of armed robbery in violation of La. R.S. 14:64 and one count of aggravated flight from an officer in violation of La. R.S. 14:108.1(C) on September 22, 2016. On December 12, 2016, the trial court sentenced the relator as a second-felony offender to fifty years in the Department of Corrections without benefit of parole, probation, or suspension of sentence each on counts one, to run concurrently with fifty years imprisonment at hard labor on counts two through five and five years imprisonment at hard labor on count six. See State v. Gray, 17-166 (La.App. 5 Cir. 12/20/17), 235 So.3d 1270, writ not considered, 18-250 (La 4/16/18), 239 So.2d 830.
On December 10, 2019, the relator filed an Application for Post-Conviction Relief (APCR) alleging ineffective assistance of counsel that was denied on May 5, 2020. He subsequently filed a June 11, 2020 writ application with this Court challenging the denial of his APCR, and including two supplemental claims/ assignments of error. This Court denied the APCR claims, but remanded to the trial court to consider and rule on the relator's supplemental claims. State v. Gray, 20-KH-179 (La.App. 5 Cir. 7/27/20) (unpublished writ disposition).
A May 6, 2020 letter from the relator was filed the district court after the denial, postmarked on March 20, 2020, stating that he wished to file a rebuttal to the State's response, requesting a thirty to sixty day, and stating his intent to supplement the original APCR.
On March 18, 2021, the relator filed "Writ of Injunction/Alternative Mandamus" in this Court, which this Court granted ordering the trial court to act upon this Court's directives in its prior writ disposition. State v. Gray, 21-KH-130 (La.App. 5 Cir. 4/15/21) (unpublished writ disposition). This Court again granted the relator's July 9, 2021 writ of mandamus directed the trial court to render a ruling on the relator's supplemental claims within sixty days and provide proof to this Court. State v. Gray, 21-KH-450 (La.App. 5 Cir. 7/15/21) (unpublished writ disposition). The trial court provided a copy of its July 8, 2021 order denying the relator's supplemental claims to his APCR.
The relator now seeks this Court's supervisory review claiming in two assignments of error that the trial judge allowed the assistant district attorney immunity in depriving him of his constitutional rights and that Louisiana's non-unanimous verdict scheme violated his constitutional rights. We find no merit to the relator's claims.
As to the first alleged error, that the trial judge showed partiality and allowed the prosecution in his case complete immunity against deprivations of constitutional rights "under color of state law," the relator initially raised this as one of two supplemental claims. The relator alleged these "examples" of "deprivation & conspiring" include: a) failing to give the relator the opportunity to supplement his APCR; b) failing to grant a mistrial when the State made improper references in voir dire regarding relator's right to remain silent; c) failing to grant a mistrial when the State introduced evidence mentioning the relator's criminal history after its 404(B) motion had been denied; d) conspiring with defense attorney in suggesting a sentencing range. The trial court considered and ruled on the merits of his four arguments, despite the fact as they were untimely filed more than two years after the finality of the relator's convictions and sentences. We find that the relator failed to present any evidence of the trial judge's conspiracy with the prosecution, particularly as two of his examples were previously examined by this Court and found to not be an abuse of the trial court's discretion when raised as assignments two and three of the relator's appeal. State v. Gray, 235 So.3d 1270, 1279-84.
The trial court found this issue moot, as the Fifth Circuit Court of Appeal remanded and transferred the said supplemental claims to this court for review.
The trial court found this claim was procedurally barred from review as it was litigated in the relator's direct appeal and was rejected by the Fifth Circuit Court of Appeal.
The trial court found this claim was also procedurally barred from review as it was litigated in the relator's direct appeal and was rejected by the Fifth Circuit Court of Appeal.
The trial court found no merit to this claim, finding it "speculative and conclusory. . .especially considering that he pled guilty to the multiple bill, with a possible sentencing exposure of 48 to 198 years, and received a sentence of 50 years."
While the original APCR was timely filed, the supplemental APCR-raising new claims-was stamped as filed with this Court on June 11, 2020, more than two years from this Court's December 20, 2017 decision on direct review.
As to the relator's second supplemental claim that his constitutional rights were violated by his non-unanimous verdict on counts one and two, we find no error to the trial court's denial of relief. Although the relator argued that his claim has merit under the new constitutional interpretation of Ramos v. Louisiana, 590 U.S. ___, 140 S.Ct. 1390, 206 L.Ed.2d 582 (2020) rendered on April 20, 2020, the relator has failed to establish that the interpretation is retroactively applicable to his case. The majority in Ramos specifically declined to decide whether the right to jury unanimity applied to now-final convictions and sentences, and in Edwards v. Vannoy, ___ U.S. ___, 141 S.Ct. 1547, 209 L.Ed.2d 651 (2021), the Court concluded that the Ramos jury-unanimity rule does not apply retroactively on federal collateral review. The Louisiana Supreme Court has declined to extend Ramos retroactively in state cases.
We find no error with the trial court's denial of the relator's supplemental APCR claims for failing to meet his burden of proving that relief should be granted under La. C.Cr.P. art. 930.2. Accordingly, we deny this application.
JJM
MEJ
RAC