Nash v. Cain

Filing 10

MEMORANDUM ORDER directing clerk to prepare summons and serve by certified mail a copy of the petition and this order upon the specified parties. Signed by Magistrate Judge Kathleen Kay on 12/28/2017. (crt,Haik, K)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION

DEMETRIUS NASH
DOC # 536196

:

DOCKET NO. 17-cv-246
SECTION P

VERSUS

:

UNASSIGNED DISTRICT JUDGE

NATHAN BURL CAIN, II

:

MAGISTRATE JUDGE KAY

ORDER

Before the court is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254
by petitioner Demetrius Nash, who is proceeding pro se and in forma pauperis in this matter. Nash
is an inmate in the custody of the Louisiana Department of Public Safety and Corrections and is
currently incarcerated at Rayburn Correctional Center in Angie, Louisiana. However, he was
incarcerated at Raymond LaBorde Correctional Center in Cottonport, Louisiana, when this
complaint was filed.
After reviewing Nash’s petition, we noted that we could not determine from the
information provided whether his claims should survive or whether any were barred by the statute
of limitations and/or the doctrine of procedural default. Doc. 7. In response Nash has filed
documents which do nothing to assuage these concerns and has not offered any excuse in the event
that his claims are time-barred or subject to procedural default. See doc. 9. However, based on the
record before us and the documents apparently available to Nash, there is not enough evidence to
determine whether claims should be dismissed by the court sua sponte at this point.
Accordingly and in order for the court to determine an appropriate resolution to this matter,

-1-

THE CLERK IS DIRECTED to prepare summons and serve, by Certified Mail, a copy
of the petition and memorandum [doc. 1; doc. 1-2] 1 and a copy of this order on:
1. The Attorney General for the State of Louisiana; and
2. Robert Tanner, warden of Rayburn Correctional Center. 2
THE CLERK IS ALSO DIRECTED TO SERVE, via First Class Mail, the District
Attorney for the Fourteenth Judicial District Court of Louisiana, Calcasieu Parish, where Nash was
convicted and sentenced. Nash is to receive a copy of this order only by ordinary mail.
IT IS ORDERED that the respondent, through the District Attorney, file within sixty (60)
days after the date of service of the summons:
1. An answer to the petition
a. The answer shall state whether Nash has exhausted state remedies,
including any post-conviction remedies available to him under
Louisiana law, by properly presenting to the Supreme Court of
Louisiana all issues raised in this petition. If respondent claims that
Nash has failed to exhaust his state remedies, respondent shall state
whether Nash has any available procedural vehicle by which he may
present his claims to the state courts, and if not, respondent shall present
applicable case law as to whether this court should reach the merits of
the claims. If respondent contends that Nash has procedurally defaulted
any claim presented in this petition, respondent should raise the defense
of procedural default.
Respondent shall also address whether the claims presented herein are
cognizable on federal habeas review, and if they are not cognizable,
respondent shall present applicable case law as to why the claims are
not properly reviewed by this court.
Respondent shall also state whether Nash demonstrates that any of the
claims presented herein have been adjudicated in state court
proceedings which resulted in (1) a decision that was contrary to, or
involved an unreasonable application of, clearly established federal law
1

The respondent may access the remaining attachments and the petitioner’s response to our previous order via
CM/ECF.
2
The proper respondent in a habeas action seeking release from present physical confinement is the petitioner’s
immediate physical custodian – in other words, the warden of the facility where he is currently housed. See Rumsfeld
v. Padilla, 124 S.Ct. 2711, 2717–18 (2004).

-2-

as determined by the United States Supreme Court; or (2) a decision that
was based on an unreasonable determination of the facts in light of the
evidence presented in the state court proceedings.
b. In the event the respondent contends that it has been prejudiced in its
ability to respond by Nash’s delay in filing or that the petition is a
second or successive petition under 28 U.S.C. § 2254, the respondent
shall set forth such contentions with particularity.
c. Respondent is further ordered to specifically address whether the statute
of limitations contained in 28 U.S.C. § 2244(d) bars review of Nash’s
claims.
d. All factual assertions in the answer must be supported by citations
to the record.
2. A memorandum of law in support of all issues raised in the answer, citing
relevant Fifth Circuit authority and referring to the pertinent page
numbers in the state court record, in support of the answer. A COPY OF
ANY BRIEF FILED IN STATE COURT WILL NOT BE DEEMED
SUFFICIENT IN THIS PROCEEDING.
3. A certified copy of the entire state court record, including but not limited to
available transcripts of all proceedings held in state court.
4. A certified copy of all documents, including all briefs or memoranda of any
party, filed in connection with any appeal, application for post-conviction relief,
or writ application presented to any and all state district courts, appellate courts,
or the Louisiana Supreme Court; and
5. Certified copies of, or citations to, all state court dispositions, including the
Louisiana Supreme Court decisions pertaining to the conviction and sentence
under attack.
In the event the District Attorney is unable to produce any of the above documents, he shall
advise the court in writing and within the applicable deadlines why he is unable to produce them.
IT IS FURTHER ORDERED that Nash is allowed twenty (20) days following the filing
of the response to file any reply he wishes to present to this court. All factual assertions in the
reply must be supported by citation to the record.

-3-

After the record is complete and all legal delays have run, the court will determine the
necessity of an evidentiary hearing. If no hearing is necessary, a Report and Recommendation will
issue without further notice.
IT IS FURTHER ORDERED that, as a condition to their acceptance by the Clerk, all
future filings by any party shall include a certificate indicating that a copy has been provided to
the other parties.
The petitioner’s failure to keep the court apprised of an address change, or to comply
with the provisions of this order, may result in dismissal of this action under Local Rule 41.3
or Federal Rule of Civil Procedure 41(b).
THUS DONE AND SIGNED in Chambers this 28th day of December, 2017.

-4-