Smith v. Hooper

Case: 22-30392 Document: 00516816540 Page: 1 Date Filed: 07/11/2023

United States Court of Appeals for the Fifth Circuit

____________ United States Court of Appeals

Fifth Circuit FILED

No. 22-30392 July 11, 2023

Summary Calendar

____________ Lyle W. Cayce

Clerk Alcus Smith,

Petitioner—Appellant, versus

Tim Hooper, Warden, Louisiana State Penitentiary,

Respondent—Appellee. ______________________________

Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:20-CV-3190

______________________________

Before Barksdale, Elrod, and Haynes, Circuit Judges.

Per Curiam: *

Alcus Smith, Louisiana prisoner # 527215 and proceeding pro se, appeals the denial of his 28 U.S.C. § 2254 application challenging his jury- trial convictions for racketeering, conspiracy to distribute cocaine, and possession with intent to distribute cocaine. See La. Stat. Ann. §§ 15:1352, 40:967(A), 40:979. Pursuant to a 28 U.S.C. § 2253 certificate of appealability

Case: 22-30392 Document: 00516816540 Page: 2 Date Filed: 07/11/2023

No. 22-30392 issued by the district court, he maintains his non-unanimous jury verdicts violated Ramos v. Louisiana, 140 S. Ct. 1390 (2020) (holding state jury must be unanimous to convict defendant of serious offense).

The district court’s findings of fact are reviewed for clear error; its conclusions of law, de novo. Martinez v. Johnson, 255 F.3d 229, 237 (5th Cir. 2001).

As the district court correctly explained, Smith’s convictions became final prior to the issuance of Ramos, which is not retroactively applicable to final convictions on federal collateral review. E.g., Edwards v. Vannoy, 141 S. Ct. 1547, 1562 (2021) (“Ramos announced a new rule of criminal procedure. It does not apply retroactively on federal collateral review.”). Accordingly, his assertions regarding Ramos’ applicability to his convictions are without merit.

AFFIRMED.