Howard v. Vannoy et al

Filing 10

STAY ORDER AND REASONS: IT IS ORDERED that Howard's 2 Motion to Stay is GRANTED and the Clerk of Court is directed to STAY AND CLOSE this case for all statistical and administrative purposes. IT IS FURTHER ORDERED that the Court retains jurisd iction in this matter and the petitioner, Ronnie Howard Sr., must file a motion to reopen these proceedings within sixty (60) days after the Louisiana Supreme Court rules on Writ Application No. 16-KH-1761. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 7/24/2017. (mmv) (NEF: HON. IVAN L.R. LEMELLE)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RONNIE HOWARD SR.

CIVIL ACTION

VERSUS

NO. 16-17273

DARRELL VANNOY, WARDEN

SECTION “B”(2)

STAY ORDER AND REASONS ON MOTION
The petitioner, Ronnie Howard Sr., filed this petition for federal habeas relief
under 28 U.S.C. § 2254 related to his 2014 Terrebonne Parish conviction for aggravated
rape for which he is serving a life sentence. Howard also filed a motion to stay these
proceedings while he exhausts review of his claims in the state courts.1 In the motion,
Howard contends that he filed the Section 2254 petition as a protective measure pending
resolution of his post-conviction writ application currently pending in the Louisiana
Supreme Court in No. 16-KH-1761 and to interrupt the statute of limitations applicable
to federal habeas relief.
Howard’s petition asserts seven grounds for relief:2 (1) He received ineffective
assistance of trial counsel. (2) He received ineffective assistance of appellate counsel. (3)
The state trial court erred in exempting the victim’s mother from the sequestration order.
(4) The state trial court erred by denying the defense motion for mistrial. (5) The
evidence was insufficient to support the verdict. (6) The state trial court erred by denying

1

Rec. Doc. No. 2.

2

Rec. Doc. No. 1.

the motion for new trial. (7) The state trial court was without jurisdiction to commence
trial beyond the prescriptive period allowed under state law.
“A fundamental prerequisite to federal habeas relief under § 2254 is the exhaustion
of all claims in state court prior to requesting federal collateral relief.” Whitehead v.
Johnson, 157 F.3d 384, 387 (5th Cir. 1998) (citing Rose v. Lundy, 455 U.S. 509, 519-20
(1982)); accord Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); Nobles v. Johnson, 127
F.3d 409, 419 (5th Cir. 1997). “The exhaustion requirement is satisfied when the
substance of the federal habeas claim has been fairly presented to the highest state court.”
Id. (citing Picard v. Connor, 404 U.S. 270, 275-78 (1971)) (emphasis added). As
Howard recognizes, he has not completed exhaustion of state court review on all of his
claims.
Howard’s third claim addressing the sequestration order was addressed on direct
appeal and review was exhausted through the Louisiana Supreme Court.3 Howard
reasserted that claim along with his other six claims on post-conviction review. His postconviction writ application is pending in Louisiana Supreme Court.4 This case, which
includes both exhausted and unexhausted claims, is therefore a “mixed petition,” subject
to dismissal for that reason. Whitehead, 157 F.3d at 387 (citing Nobles, 127 F.3d at

3

State ex rel. Howard v. State, 191 So.3d 583 (La. 2016); St. Rec. Vol. 2 of 3, La. S. Ct. Order,
2015-KH-0761, 4/8/16; 1st Cir. Opinion, 2014-KA-1048, 3/9/15.
4

Contrary to the representation in the State’s response (Rec. Doc. No. 7), a member of my staff
confirmed on July 21, 2017, with the clerk’s office of the Louisiana Supreme Court that Howard’s writ
application is pending.

2

420); see also, Pliler v. Ford, 542 U.S. 225, 233 (2004) (citing Rose, 455 U.S. at 510).
In Pliler, however, the Supreme Court also addressed the availability of a stay-andabeyance in connection with “mixed petitions” for habeas relief containing both
exhausted and unexhausted claims. Id., 542 U.S. at 227. The Court has held that it is
sometimes appropriate for a federal district court to stay federal habeas corpus
proceedings in order to allow a petitioner to present his unexhausted claims to the state
courts. Rhines v. Weber, 544 U.S. 269, 277-78 (2005). The Court also expressly
sanctions the filing of protective federal habeas corpus petitions and accompanying
motions to stay to allow for complete exhaustion and protect the petitioner’s right to
federal review. Pace v. DiGuglielmo, 544 U.S. 408, 416-17 (2005).
The Rhines Court cautioned that a stay-and-abeyance “should be available only
in limited circumstances,” and is appropriate only when the district court determines that
there was “good cause” for the failure to exhaust. Id. at 277 (emphasis added). Stays are
improper when the unexhausted claims are “plainly meritless” or when the petitioner has
engaged in “abusive litigation tactics or intentional delay.” Id. Howard presents as good
cause for his failure to exhaust his desire to file a federal petition to protect or interrupt
the federal statute of limitations.5 The record demonstrates that Howard is not engaged
in abusive litigation tactics or intentionally delaying resolution of his federal claims. His
5

Howard sought state post-conviction review immediately after his direct appeal. He has had
pending state post-conviction review since that time and it appears he is in no danger of having the oneyear federal filing deadline under Section 2244 expire with statutory tolling applied.

3

claims broadly construed are not so plainly meritless that a court should forego the
complete state review which he has diligently pursued. In addition, the State has not
filed an opposition to Howard’s motion to stay and will not be prejudiced by a brief delay
in the resolution of Howard’s federal claims. A stay is appropriate under these
circumstances. Accordingly,
IT IS ORDERED that Howard’s Motion to Stay (Rec. Doc. No. 2) is
GRANTED and the Clerk of Court is directed to STAY AND CLOSE this case for all
statistical and administrative purposes.
IT IS FURTHER ORDERED that the Court retains jurisdiction in this matter
and the petitioner, Ronnie Howard Sr., must file a motion to reopen these proceedings
within sixty (60) days after the Louisiana Supreme Court rules on Writ Application No.
16-KH-1761.

24th
New Orleans, Louisiana, this __________ day of July, 2017.

JOSEPH C. WILKINSON, JR.
UNITED STATES MAGISTRATE JUDGE

CLERK TO NOTIFY:
HON. IVAN L.R. LEMELLE

4