Case: 22-30310 Document: 00516988075 Page: 1 Date Filed: 12/04/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
____________
December 4, 2023
No. 22-30310 Lyle W. Cayce
____________ Clerk
Rashaud L. Robinson,
Petitioner—Appellant,
versus
Joseph P. Lopinto, III, Sheriff of Jefferson Parish,
Respondent—Appellee.
______________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:21-CV-2191
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Before Davis, Southwick, and Oldham, Circuit Judges.
Leslie H. Southwick, Circuit Judge:
A state pretrial detainee scheduled for a second trial seeks a writ of
habeas corpus. He argues that when a poll of jurors at his 2021 trial showed
ten of its members would acquit on four of five counts, retrial on those counts
became barred under then-existing Louisiana law. The state trial court judge
instead declared a mistrial. The federal district court denied any relief.
In this appeal from the district court’s judgment, several issues would
need to be considered before we could answer whether there was an effective
acquittal on the four counts. We do not analyze any of those because, without
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doubt, there was no acquittal on one of the counts. Thus, the detainee’s custody pending a retrial is valid. Inasmuch as the function of federal habeas proceedings for state prisoners is to consider whether their custody is in violation
of federal law, no relief is available in this case. AFFIRMED.
FACTUAL AND PROCEDURAL BACKGROUND
The setting for the issues in this case is the now-repealed Louisiana
constitutional provision that jury verdicts in noncapital criminal trials did not
have to be unanimous. The earliest constitutional provision in Louisiana for
nonunanimous criminal-trial verdicts apparently was one adopted in 1898:
Cases in which the punishment may be at hard labor shall be
tried by a jury of five,[1] all of whom must concur to render a
verdict; cases in which the punishment is necessarily at hard
labor, by a jury of twelve, nine of whom concurring may render
a verdict; cases in which the punishment may be capital, by a
jury of twelve, all of whom must concur to render a verdict.
LA. CONST. art. 116 (1898).
Those rules were revised when a new state constitution was adopted
in 1974. The new provision continued to require unanimity for verdicts in
capital cases; it now required six-member juries for lesser criminal cases but
allowed five members to decide on the verdict 2; finally, it increased from
nine to ten the number of jurors required for verdicts on serious felonies less
than capital: “A case in which the punishment is necessarily confinement at
hard labor shall be tried before a jury of twelve persons, ten of whom must
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1
Authority for five-member juries in Louisiana dates at least from 1880 LA. ACTS
No. 35, § 4, a statute implementing LA. CONST. art. 7 (1879). Almost a century later, the
Supreme Court held that the Sixth and Fourteenth Amendments required at least six jurors
for criminal prosecutions. Ballew v. Georgia, 435 U.S. 223, 244–45 (1978).
2
Allowing nonunanimous verdicts by six-member juries was declared
unconstitutional in Burch v. Louisiana, 441 U.S. 130, 138 (1979).
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concur to render a verdict.” LA. CONST. art. I, § 17(A) (1974); see also LA.
CODE CRIM. PROC. art. 782(A).
In 2020, the United States Supreme Court invalidated Louisiana’s allowing ten members of a twelve-person jury to convict. Ramos v. Louisiana,
140 S. Ct. 1390 (2020). Whether Ramos also invalidated nonunanimous acquittals is the central merits issue presented on this appeal. 3
In 2017, Rashaud Robinson was indicted by a Louisiana grand jury on
several counts, the most serious of which was for a murder he was charged
with committing in September 2016. Prior to the beginning of Robinson’s
post-Ramos trial in April 2021, both Robinson and the State moved for jury
instructions regarding the necessary votes for acquittal. Robinson sought an
instruction that a nonunanimous jury verdict to acquit would be valid. Instead, the court agreed with the State that jurors had to be instructed that
unanimity was required to render any verdict. Robinson then filed an application for a supervisory writ with the Louisiana Fifth Circuit Court of Appeal
on the jury instruction issue. The court denied the writ after concluding the
Supreme Court’s Ramos holding had invalidated all nonunanimous verdicts.
State v. Robinson, 21-K-197 (La. App. 5 Cir. 4/28/21). 4
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3
Almost two years before the United States Supreme Court’s April 2020 Ramos
opinion, the Louisiana legislature agreed to a proposed constitutional amendment that
would require unanimous jury verdicts in all noncapital felony trials for offenses committed
on or after January 1, 2019. 2018 La. Sess. Law Serv. Act 722 (S.B. 243) (final legislative
approval May 17, 2018), amending LA. CONST. art. I, § 17(A). Voters in November 2018
approved the amendment. LA. CONST. art. I, § 17 Credits. As to Ramos himself, jurors at
his 2023 retrial acquitted (unanimously). Jillian Kramer, Man Found Not Guilty in Second
Murder Trial, TIMES-PICAYUNE | NEW ORLEANS ADVOCATE., Mar. 10, 2023, at 1B, 3B.
4
After Robinson’s trial, the Louisiana Supreme Court held, in an appeal involving
a different defendant, that “Ramos only addressed the constitutionality of non-unanimous
verdicts to convict and made no findings with respect to acquittals.” State v. Gasser, 346
So. 3d 249 (La. 2022). The Gasser court left open whether verdicts of acquittal post-Ramos
had to be unanimous for any other reason.
Id. It may be obvious that this court would not
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At Robinson’s trial, the jury considered five counts: one for second
degree murder, two for attempted second degree murder of two different individuals, one for conspiracy to commit second degree murder, and one for
possession of a firearm by a convicted felon. Most of the state-court records
were provided in paper form to the district court, but there was no transcript
of the proceedings when jurors reported their deliberations to the court. We
requested a transcript, and it was provided. 5
The jury informed the trial court it had not reached a unanimous verdict and could not deliberate further. The trial court instructed jurors to continue deliberations. Later, jurors again stated that further deliberations were
pointless. The trial court polled the jury and reviewed the polling slips for
each count with counsel present. The poll slips were in the record provided
to the district court. To be certain of what the polling slips meant, we ordered
supplementation of the record with a transcript of the court’s interactions
with the jurors. The polling results were that on four of the counts, ten jurors
favored acquittal, one would convict, and one juror refused to be polled. For
Count 4, which was conspiracy to commit second degree murder, nine jurors
indicated they would acquit, two would convict, and one juror did not respond. The trial court ordered a mistrial based on a hung jury.
The State informed Robinson that it would retry him, causing Robinson to file a motion to quash the indictment. He argued the trial had resulted
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be bound by Gasser in deciding the reach of Ramos, but we mention the less obvious
principle that “the views of the federal courts of appeals do not bind [a state’s] Supreme
Court when it decides a federal constitutional question.” Johnson v. Williams, 568 U.S.
289, 305 (2013). We have acknowledged that our power in this context is one of persuasion.
See Magourik v. Phillips,
144 F.3d 348, 361 (5th Cir. 1998). Our decisions, of course, do bind
the parties before us.
5
An appellate court has authority to order supplementation of the record. FED. R.
APP. P. 10(e). The transcript assured the accuracy of our understanding of the key facts.
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in his acquittal by the vote of ten jurors and a retrial for the same offenses was
barred by the Fifth Amendment guarantee against double jeopardy. On June
30, 2021, the court denied the motion. Defense counsel again took writs.
The Louisiana intermediate appellate court denied the writ application. State
v. Robinson, 21-K-561 (La. App. 5 Cir. 8/23/21). On August 27, 2021, the
Louisiana Supreme Court denied Robinson’s writ application without assigning reasons. State v. Robinson, 323 So. 3d 381 (La. 2021)(mem).
On November 29, 2021, Robinson filed what he labeled an emergency
28 U.S.C. § 2241 application in the United States District Court for the Eastern District of Louisiana. In that application, he asserted that he had been
found “‘not guilty’ on all charges,” but “state officials continue to unlawfully detain Mr. Robinson” in violation of his federal constitutional right
against double jeopardy. Robinson did not explain that only four of the five
counts at his trial were subject to his argument about acquittals, and he argued for release from detention. The defendant is Sheriff Joseph P. Lopinto,
III, who is in charge of the facility in which Robinson is detained pending trial.
The magistrate judge recommended Robinson’s application be dismissed, concluding that his argument was an issue of state law and not a
proper subject of a federal habeas application. On May 5, 2022, the district
court overruled Robinson’s objections to the Report and Recommendation
and dismissed Robinson’s suit without prejudice. Robinson v. Lopinto, 601 F.
Supp. 3d 55, 65 (E.D. La. 2022). The district court stated that should Robinson be “convicted, he may raise the unanimous verdict issue again on direct
appeal.”
Id. Robinson filed a motion for a certificate of appealability, which
the district court denied. He then timely filed a notice of appeal.
On December 20, 2022, this court granted a certificate of appealability, concluding that “jurists of reason could find the district court’s assessment of his double jeopardy claims debatable or wrong.”
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DISCUSSION
The issues before us include whether nonunanimous verdicts of acquittal were still valid when Robinson was tried, and if so, whether the actions
of the jurors at his trial effected an acquittal. Before reaching those issues,
we would need to decide if the state courts that rejected his claim independently relied on interpretations of state law. If so, we cannot review the
determinations of state law and would need to dismiss.
We start, though, with determining whether Robinson’s claims are
cognizable in a suit seeking a writ of habeas corpus. Traditionally, the writ
“simply provided a means of contesting the lawfulness of restraint and securing release.” Department of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959,
1969 (2020). Indeed,
the Court has focused on the need to ensure that state prisoners
use only habeas corpus (or similar state) remedies when they
seek to invalidate the duration of their confinement—either directly through an injunction compelling speedier release or indirectly through a judicial determination that necessarily implies the unlawfulness of the State’s custody.
Wilkinson v. Dotson, 544 U.S. 74, 81 (2005) (emphasis in original).
Justice Scalia, concurring in Dotson, summarized the kinds of relief
that affect custody:
It is one thing to say that permissible habeas relief, as our
cases interpret the statute, includes ordering a “quantum
change in the level of custody,” Graham v. Broglin, 922 F.2d
379, 381 (C.A.7 1991) (Posner, J.), such as release from incarceration to parole. It is quite another to say that the habeas statute authorizes federal courts to order relief that neither terminates custody, accelerates the future date of release from custody, nor reduces the level of custody.
Id. at 86 (Scalia, J., concurring).
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It is true that a writ may provide for only a conditional release. For
example, when a “[p]etitioner’s death sentence was tainted by Eighth
Amendment error,” the Court held that the petition for a writ of habeas corpus should be granted, i.e., the inmate should be released from custody, “unless the State of Arizona within a reasonable period of time either corrects
the constitutional error in petitioner’s death sentence or vacates the sentence
and imposes a lesser sentence consistent with law.” Richmond v. Lewis, 506
U.S. 40, 52 (1992). Such relief directly affects custody unless the condition
imposed is satisfied.
At least one treatise categorizes a form of relief available with habeas
as “essentially in the nature of a declaratory judgment.” Randy Hertz
& James S. Liebman, FEDERAL HABEAS CORPUS PRACTICE AND PROCEDURE § 33.4 (7th ed.). What is clear from the discussion, though, is that
the authors were describing precedents that do not immediately end custody
but still affect it. One example concerned a prisoner who was serving consecutive sentences and claimed that the earlier one, already fully served,
arose from an unconstitutional conviction. Id. at n.5 (citing Garlotte v. Fordice, 515 U.S. 39, 41 (1995)). The Court began by emphasizing what we have
been stating here: “The federal habeas statute authorizes United States district courts to entertain petitions for habeas relief from state-court judgments
only when the petitioner is ‘in custody in violation of the Constitution or laws
or treaties of the United States.’” Garlotte, 515 U.S. at 43–44 (quoting
28
U.S.C. § 2254(a)). The Court then concluded that the claim was cognizable
because a holding that the already-served sentence was invalid would advance the date at which Garlotte could be released. Id. at 46.
Another reason for the limits on relief in a habeas proceeding is that a
suit to have someone released from custody needs to be brought against the
keeper of the keys to the detainee’s cell. Robinson brought suit against Sheriff Lopinto, in whose jail he sits. Were we to consider blocking re-prosecution
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on some of the charges against Robinson, the needed defendant would instead be the district attorney or some similar official.
Applying these principles to this case, the most significant fact is that
only nine jurors favored acquitting Robinson on Count 4. In a habeas case,
we cannot “order relief that neither terminates custody, accelerates the future date of release from custody, nor reduces the level of custody.” Dotson,
544 U.S. at 86 (Scalia, J., concurring). The following was the one example
given of a change to the “level of custody”: “release from incarceration to
parole.”
Id. (citing Graham v. Broglin,
922 F.2d 379, 381 (7th Cir. 1991)).
Robinson is validly in custody at least on the basis that he can be retried on
Count 4. The relief Robinson wants derives from his argument that a proper
interpretation of federal law means he was acquitted on four of five counts.
Even if we were to agree, we could not terminate custody, accelerate its conclusion, or alter the level or, perhaps more precisely, the category of his custody.
The parties did not brief the propriety of granting relief if Robinson
was still subject to trial on one count. Indeed, the factual claim Robinson
made in his pleadings in district court was that at his trial, jurors by “a supermajority favor[ed] acquittal on all counts.” Thus, this habeas case began as
one in which release from custody might have been the remedy. Once it was
clear that one charge was unaffected by Robinson’s arguments, we directed
each party to file a supplemental letter brief analyzing whether there is any
relief relevant to custody that could be granted in this case.
Sheriff Lopinto’s supplemental letter stated that Robinson “will indisputably still be subject to retrial and custody for Count Four even if this
Court finds an effective acquittal on the other counts.” The letter acknowledged that bail might be lowered if four counts were eliminated. Robinson
argues he is entitled to “immediate release” from the four counts, apparently
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meaning release from the legal effect of those counts. The letter then argued
that even if our ruling did not lead to Robinson’s release from physical custody, he still was entitled to removal of those four charges from the collection
of legal restraints on him:
Even if Mr. Robinson were denied bail on the other charge (or
lawfully convicted of the offense), the jeopardy-barred charges
would constitute an unlawful restraint on Mr. Robinson’s liberty (and, hence, Mr. Robinson would be “in custody in violation of the Constitution” under the habeas statute).
The most relevant authority Robinson cites for that proposition is
readily distinguishable. There, a prisoner had been serving consecutive sentences and challenged the sentence he was to serve in the future. Peyton v.
Rowe, 391 U.S. 54, 55 (1968). Success in his argument would not entitle the
habeas applicant to immediate release, but he was not required to wait until
he began serving the potentially invalid sentence to bring his claim.
Id. at 64.
The Court concluded “that a prisoner serving consecutive sentences is ‘in
custody’ under any one of them for purposes of” the federal habeas statutes.
Id. at 67. If we were to agree with Robinson’s claims, though, there would
not be a delayed effect on custody. A closer fit with Rowe would be if the State
were planning to try Robinson seriatim on each count, an approach that would
provide separate periods of future custody on each of the four challenged
counts. There is no suggestion of that in this record. Any one of the counts
currently pending against Robinson is sufficient to allow his detention until
trial, and that single detention is the only one relevant in this case.
Another difficulty with this argument is that Robinson had not previously contended that some effect on bail was relevant. His arguments had
basically been this: (1) nonunanimous acquittals were not invalidated by Ramos; (2) Robinson’s “mistrial” actually was an acquittal; (3) none of the pretrial and post-mistrial denials of relief by the state courts had relied on state
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law; and (4) this court could grant relief, as both the initial and reply brief
state, “pursuant to the double jeopardy protections” of the Constitution.
Had Robinson argued and presented evidence in district court that his
custody would be affected by a favorable ruling because he could afford the
bail set for Count 4 alone, that would get closer to making this case one about
custody. That is not the case before us on this appeal.
We leave this case in the form it was presented. Once it became clear
that the arguments about acquittals did not apply to all counts, this suit has
not been about a release from or reduction in length or level of custody. The
question has been whether nonunanimous verdicts of acquittal prevented
Robinson’s retrial on four counts. He has not been requesting release from
detention as he awaits trial on only one charge. This Section 2241 habeas
proceeding therefore must be dismissed.
We do not evaluate the district court’s finding that when the state
courts held Robinson had not been acquitted, those courts had relied at least
in part on state law. Our decision is based only on the unavailability of any
relief appropriate in a habeas proceeding for Robinson’s claims. That is the
only issue we consider, and, solely for that reason, we hold that there was no
error in the district court’s denial of habeas relief.
Though we cannot rule on the merits of Robinson’s arguments, nothing in this opinion should be interpreted as preventing Robinson from presenting similar arguments in the future as appropriate.
AFFIRMED.
10
