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
                  ______________________________

   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
Case: 22-30310        Document: 00516988075             Page: 2      Date Filed: 12/04/2023




                                        No. 22-30310


   doubt, there was no acquittal on one of the counts. Thus, the detainee’s cus-
   tody pending a retrial is valid. Inasmuch as the function of federal habeas pro-
   ceedings 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
           _____________________
           1
             Authority for five-member juries in Louisiana dates at least from 1