Simms v. Cain et al
ORDER AND REASONS: IT IS HEREBY ORDERED that Petitioner's 33 motion for Writ of Mandamus is DENIED. Signed by Judge Nannette Jolivette Brown on 9/7/2017. (mmv)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CASE NO. 07-966
N. BURL CAIN, et al.
SECTION: “G” (1)
ORDER AND REASONS
Before the Court is Petitioner Dwayne Simms’s (“Petitioner”) motion for “Writ of
Mandamus.” 1 Petitioner, a state prisoner incarcerated in the Louisiana State Penitentiary in
Angola, Louisiana, filed the instant motion, wherein he requests that the Court release him from
prison. 2 The State of Louisiana opposes the motion, asserting that Petitioner is not entitled to
relief. 3 Having considered the motion, the opposition, the reply, the record, and the applicable law,
for the reasons that follow, the Court will deny the motion.
On November 3, 2000, Petitioner was charged by Bill of Information in the 24th Judicial
District Court, Parish of Jefferson with four counts of armed robbery in violation of Louisiana
Revised Statute § 14:64. 4 On December 19, 2002, following a jury trial, Petitioner was found guilty
as charged. 5 On January 10, 2003, Petitioner was sentenced on each count to a term of 99 years
imprisonment without benefit of probation, parole, or suspension of sentence, and it was ordered
Rec. Doc. 33.
Rec. Doc. 36.
Rec. Doc. 36-1.
Rec. Doc. 36-2.
that the sentences run concurrently. 6 On April 1, 2003, Petitioner was found to be a habitual
offender and was resentenced as such on Count One of the Bill of Information to a concurrent term
of 110 years imprisonment. 7 On July 27, 2004, the Louisiana Fifth Circuit Court of Appeal
affirmed Petitioner’s convictions and sentences. 8 The Louisiana Supreme Court denied Petitioner’s
related writ application on May 20, 2005. 9
On or about February 8, 2006, Petitioner filed an application for post-conviction relief in
the state trial court, which was denied on February 16, 2006. 10 His related writ applications were
denied by the Louisiana Fifth Circuit Court of Appeal on March 17, 2006, 11 and the Louisiana
Supreme Court on January 12, 2007. 12
On January 19, 2007, Petitioner filed a federal habeas corpus petition in this Court. 13 On
February 8, 2008, United States Magistrate Judge Sally Shushan issued a Report and
Recommendation recommending that partial habeas corpus relief be granted with respect to
Petitioner’s conviction as to Count Two, and she recommended denying relief as to the remaining
convictions in Counts One, Three, and Four. 14 On March 4, 2008, United States District Judge
Lance Africk issued an Order adopting the Report and Recommendation. 15 The same day, Judge
Rec. Doc. 36-3.
Rec. Doc. 36-4.
State v. Falkins, et al., 04-KA-250 (La. App. 5 Cir. 7/27/04); 880 So.2d 903.
State ex rel. Simms v. State, 04-KH-2171 (La. 5/20/05); 902 So.2d 1045.
See Rec. Doc. 17 at 2.
Simms v. Cain, 06-KH-172 (La. App. 5 Cir. 3/17/06).
State ex rel. Simms v. State, 06-KH-1321 (La. 1/12/07); 948 So.2d 143.
Rec. Doc. 1.
Rec. Doc. 17.
Rec. Doc. 19.
Africk entered a Judgment granting the petition with respect to Petitioner’s conviction on Count
Two for the armed robbery of Kenyatta Bush, denying federal habeas corpus relief with respect to
Petitioner’s remaining convictions and dismissing the petition with prejudice. 16 Petitioner
subsequently filed a notice of appeal to the United States Fifth Circuit Court of Appeal, 17 and on
February 5, 2009, the Fifth Circuit denied Petitioner’s request for a Certificate of Appealability. 18
On August 7, 2017, Petitioner filed the instant motion for a “Writ of Mandamus.” 19 On
August 10, 2017, the case was reassigned to this section of the Court. 20 On August 14, 2017, the
State filed an opposition to the motion. 21 On August 29, 2017, Petitioner filed a reply brief in
further support of the motion. 22
II. Parties’ Arguments
Petitioner’s Arguments in Support of Motion
Petitioner moves the Court to issue a writ of mandamus pursuant to 28 U.S.C. § 1361.23
Petitioner asserts that “[t]he district courts shall have original jurisdiction of any action in the
nature of mandamus to compel an officer or employee of the United States or any agency thereof
to perform a duty owed to the plaintiff.” 24 Petitioner notes that on March 4, 2008, he was granted
Rec. Doc. 20.
Rec. Doc. 21.
Rec. Doc. 30.
Rec. Doc. 33.
Rec. Doc. 34.
Rec. Doc. 36.
Rec. Doc. 40.
Rec. Doc. 33 at 1.
federal habeas relief with respect to his conviction for the armed robbery of Kenyatta Bush. 25 He
contends that no action has been taken by the state trial court. 26 Therefore, he requests that this
Court “order petitioner free from prison based on the (9) nine years of no action” and to grant him
“some compensation.” 27
The State’s Arguments in Opposition to Motion
In opposition, the State contends that this Court does not have jurisdiction to issue a writ
of mandamus in this action. 28 The State notes that “[u]nder 28 U.S.C. § 1361, district courts have
‘original jurisdiction of any action in the nature of mandamus to compel an officer or employee of
the United States . . . to perform a duty owed to the plaintiff.’” 29 However, the State asserts that
Petitioner is not moving this Court to compel a federal officer or employee to perform a function,
but instead Petitioner is moving this Court to order the state trial court to release him from state
confinement. 30 Therefore, the State contends that “28 U.S.C. §1361 does not give this Court the
jurisdiction to order the state court to act in the manner petitioner is requesting.” 31
Moreover, the State contends that Petitioner “is not entitled to relief based upon the merits
of his claim.” 32 Petitioner asserts that “this is a frivolous pleading, in that the petitioner
Id. at 2.
Rec. Doc. 36 at 4.
Id. at 4–5 (citing Lamar v. 118th Judicial District Court of Texas, 440 F.2d 383 (5th Cir. 1971); Haggard
v. State of Haggard v. State of Tennessee, 421 F.2d 1384 (6th Cir. 1970); Clark v. State of Washington, et al., 366
F.2d 678, 681–82 (9th Cir. 1966)).
Id. at 5.
misrepresents the extent of habeas corpus relief which was granted in 2008.” 33 The State notes that
habeas relief was granted only as to Petitioner’s conviction on Count Two for armed robbery of
Kenyatta Bush, and habeas corpus relief was denied as to Counts One, Three, and Four. 34
Accordingly, the State contends that Petitioner convictions with regards to Counts One, Three, and
Four still stand, “[a]nd, as such, petitioner’s sentences still stand.” 35
The State asserts that a review of the state trial court record reveals that Petitioner “is fully
aware that his remaining convictions and sentences are still valid and that he is properly
incarcerated.” 36 The State notes that on October 17, 2008, Petitioner filed a pro se “Motion to
Clarify Order,” in the state trial court, requesting clarification on the impact of the March 4, 2008
federal judgement upon his state convictions and sentences. 37 According to the State, in that
motion, Petitioner alleged that “his habitual offender adjudication and sentence should have been
vacated, as the conviction vacated by the federal [court] was the same conviction used by the state
courts to enhance his sentence under Louisiana’s Habitual Offender Law.” 38 The State cites an
order dated December 8, 2008, wherein the state trial court found that the conviction vacated by
the federal court concerned Count Two, but that the conviction used by the state trial court to
enhance his sentence pursuant to the Habitual Offender Law was Count One. 39 The State also notes
that the state trial court set a hearing for the clarification of sentence. 40 Following a hearing, where
Id. at 5–6.
Id. at 6.
Id. (citing Rec. Doc. 36-6).
Id. at 6–7 (citing Rec. Doc. 36-6).
Id. at 7 (citing Rec. Doc. 36-7).
Id. (citing Rec. Doc. 36-7).
Petitioner was represented by counsel, the State notes that Petitioner withdrew the motion for
clarification of sentence. 41 Finally, the State notes that on April 16, 2009, Petitioner filed a pro se
“Motion and Order for Rehearing, on Motion to Clarify Order” in the state trial court, 42 which was
denied on April 29, 2009. 43
For these reasons, the State contends that Petitioner “does not have a right to be released
from state custody or to receive compensation from the State of Louisiana.” 44 Because “[t]he
partial habeas relief granted in 2008 only vacated petitioner’s conviction and sentence with regard
to Count Two,” the State contends that Petitioner “still has to serve his remaining sentences” and
is not entitled to relief. 45
Petitioner’s Arguments in Further Support of Motion
In the reply brief, Petitioner repeats his assertion that he is entitled to relied under 28 U.S.C.
§ 1361. 46 Petitioner contends that the State’s response fails to answer whether any action was taken
by the 24th Judicial District Court after Petitioner was granted federal habeas relief with respect
to Count Two. 47 Petitioner asserts that the State has failed to show that any relief was provided by
the state trial court after Petitioner was granted federal habeas relief. 48
Id. (citing Rec. Doc. 36-9).
Id. (citing Rec. Doc. 36-10).
Id. (citing Rec. Doc. 36-11).
Id. at 8.
Rec. Doc. 40 at 1.
Id. at 2.
III. Law and Analysis
The Mandamus Act, 28 U.S.C. § 1361, provides that “[t]he district courts shall have
original jurisdiction of any action in the nature of mandamus to compel an officer or employee of
the United States or any agency thereof to perform a duty owed to the plaintiff.” 49 The Fifth Circuit
has recognized that “[t]he test for whether jurisdiction [pursuant to the Mandamus Act] is whether
mandamus would be an appropriate means of relief.” 50 “Three elements must exist before
mandamus can issue: (1) the plaintiff must have a clear right to the relief, (2) the defendant must
have a clear duty to act, and (3) no other adequate remedy must be available.” 51 Moreover, the
Fifth Circuit has determined that federal district courts “lack jurisdiction under § 1361 to compel
state officials to perform their official duties.” 52
In the instant motion, Petitioner moves this Court to issue a writ of mandamus, ordering
his release from state confinement, because he contends that the state trial court did not take any
action in his state criminal case after Petitioner was granted federal habeas relief with respect to
his conviction for the armed robbery of Kenyatta Bush. 53 Under 28 U.S.C. § 1361, the Court has
jurisdiction over an action seeking to compel an officer or employee of the United States or any
agency thereof to perform a duty owed to the plaintiff. However, this Court lacks jurisdiction under
28 U.S.C. § 1361.
Jones v. Alexander, 609 F.2d 778, 781 (5th Cir.1980).
Barnett v. Louisiana, 624 F. App’x 218, 219 (5th Cir. 2015) (citing Moye v. Clerk, DeKalb County Superior
Court, 474 F.2d 1275, 1275–76 (5th Cir.1973)).
Rec. Doc. 33 at 1.
28 U.S.C. § 1361 to compel state officials to perform their official duties. 54 Therefore, this Court
does not have jurisdiction to issue a writ of mandamus directing that the State release Petitioner
from state confinement.
Furthermore, Petitioner has not shown that he is entitled to relief on any other basis. As the
Supreme Court recognized in Preiser v. Rodriguez, “when a state prisoner is challenging the very
fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is
entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy
is a writ of habeas corpus.” 55 However, prevailing in a federal habeas corpus proceeding does not
always imply that a petitioner will be entitled to release from custody. 56 In this case, Petitioner has
obtained federal habeas relief with respect to his conviction on Count Two for the armed robbery
of Kenyatta Bush. 57 However, federal habeas relief was denied with respect to Petitioner’s
convictions on Counts One, Three, and Four. 58 Petitioner’s convictions and sentences for Counts
One, Three, and Four remain in effect. Petitioner is currently serving concurrent terms of
imprisonment of 110 years with respect to Count One, 99 years with respect to Count Three, and
99 years with respect to Count Four. Accordingly, although the State recognizes that Petitioner’s
conviction with respect to Count Two was vacated, 59 Petitioner has not demonstrated any basis
upon which he is entitled to release from imprisonment.
Barnett, 624 F. App’x at 219.
411 U.S. 475, 500 (1973).
See Peyton v. Rowe, 391 U.S. 54, 67 (1968) (citing Ex parte Hull, 312 U.S. 546 (1941) (“this Court has
held that a prisoner whose first-sentence parole was revoked upon a second conviction could challenge the second
conviction in a habeas corpus proceeding though he would not be released if he prevailed.”))).
Rec. Doc. 20.
Rec. Doc. 36 at 7 (citing Rec. Doc. 36-7).
For the foregoing reasons, this Court does not have jurisdiction to issue a writ of mandamus
directing that the State release Petitioner from state confinement. Furthermore, Petitioner has not
shown that he is entitled to relief on any other basis. Accordingly,
IT IS HEREBY ORDERED that Petitioner’s motion for “Writ of Mandamus” 60 is
NEW ORLEANS, LOUISIANA, this ________ day of September, 2017.
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE
Rec. Doc. 33.
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