Nash v. Cain
MEMORANDUM ORDER: Directing plaintiff to amend complaint/petition. Directing plaintiff to submit evidence of exhaustion of state court remedies. Pro Se Response due by 9/18/2017. Signed by Magistrate Judge Kathleen Kay on 8/9/2017. (crt,ThomasSld, T)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
DOC # 536196
DOCKET NO. 17-cv-246
NATHAN BURL CAIN, II
MAGISTRATE JUDGE KAY
Before the court is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254
by pro se petitioner Demetrius Nash (“Nash”). Nash is an inmate in the custody of the Louisiana
Department of Public Safety and Corrections. He is incarcerated at Rayburn Correctional Center
in Angie, Louisiana, but was incarcerated at Raymond Laborde Correctional Center (formerly
known as Avoyelles Correctional Center) when he filed this petition. See doc. 1, p. 1.
Nash pleaded guilty to one count of armed robbery and one count of attempted armed
robbery, and admitted to a probation violation in the Fourteenth Judicial District Court, Calcasieu
Parish, Louisiana, on or about October 30, 2010. Doc. 1, p. 1; see State v. Nash, 112 So.3d 409,
411–12 (La. Ct. App. 3d Cir. 2013). He was sentenced to terms of thirty-five years on the armed
robbery conviction and twenty years on the attempted armed robbery conviction, and the trial court
ordered that his probation be revoked and that he serve a previously suspended three year term for
the probation violation. Nash, 112 So.3d at 412. All sentences were ordered to run consecutively.
Nash sought review in the Louisiana Third Circuit Court of Appeal under two separate
cases, which were later consolidated.1 See State v. Nash, 112 So.3d 419 (La. Ct. App. 3d Cir.
2013). In his appeals he raised the following claims:
1. The guilty plea to the attempted armed robbery charge was invalid
because it was the result of fear and coercion, and the trial court erred
by accepting the plea without having a substantial basis for his guilt.
2. He received an unconstitutionally excessive sentence.
3. The trial judge was biased against him.
Nash, 112 So.3d at 412–19. The Third Circuit rejected the first two claims on the merits and the
third for failure to preserve the issue at trial, and denied relief on April 9, 2013. Id. Nash sought
review in the Louisiana Supreme Court, which denied his application as untimely filed under
Louisiana Supreme Court Rule X § 5 on November 7, 2016. State ex rel. Nash v. State, 208 So.3d
381 (La. 2016).
Nash apparently pursued multiple applications for post-conviction relief. See State ex rel.
Nash v. State, 184 So.3d 675, 676 (La. 2016) (“Relator has now fully litigated several applications
for post-conviction relief in state court.”) He admits to one, which he states the trial court denied
on September 23, 2014. See doc. 1, att. 2, p. 6. He does not provide the date of filing for this
application or enumerate the claims raised therein, but references the state’s failure to respond to
an ineffective assistance of counsel claim. Id. Nash sought review in the Third Circuit, which
denied same on technical grounds. See Nash, 184 So.3d at 675. He then sought review in the
Louisiana Supreme Court, which denied same on February 19, 2016, noting that he failed to show
error to the Third Circuit’s ruling and, furthermore, that the trial court had correctly found that his
claims challenging the validity of his guilty plea were fully litigated on appeal. Id.
He also filed an appeal of his probation revocation, which the Third Circuit rejected on October 28, 2012. State v.
Nash, 2012 WL 5932974 (La. Ct. App. 3d Cir. Nov. 28, 2012). It does not appear that he sought review of this
Nash filed the instant application on February 3, 2017. Doc. 1, p. 11. Here he once again
challenges the validity of his guilty plea, in addition to raising claims of ineffective assistance of
counsel. Doc. 1, att. 2, pp. 8–16.
Before this court reaches the merits of a habeas claim, it conducts a preliminary review of
the pleadings and exhibits in order to determine whether the petitioner has exhausted all available
state remedies prior to filing his petition in federal court, whether any of the claims raised are
subject to the procedural default doctrine, and whether the petition is time-barred by the provisions
of 28 U.S.C. § 2244(d)(1).
The federal habeas corpus statute and decades of federal jurisprudence require a petitioner
seeking federal habeas corpus relief to exhaust all available state court remedies prior to filing his
federal petition. 28 U.S.C. § 2254(b)(1); e.g., Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir.
1998). This is a matter of comity. Ex parte Royall, 6 S.Ct. 734, 740–41 (1886). In order to satisfy
the exhaustion requirement, the petitioner must have “fairly presented” the substance of his federal
constitutional claims to the state courts “in a procedurally proper manner according to the rules of
the state courts.” Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001); Dupuy v. Butler, 837 F.2d
699, 702 (5th Cir. 1988). Each claim must be presented to the state's highest court, even when
review by that court is discretionary. E.g., Wilson v. Foti, 832 F.2d 891, 893–94 (5th Cir. 1987).
Exhaustion is not satisfied if the petitioner presents new legal theories or entirely new factual
claims in support of his federal habeas petition. Brown v. Estelle, 701 F.2d 494, 495 (5th Cir.
In Louisiana the highest court is the Louisiana Supreme Court. See LSA–Const. art. 5, §
5(a). Thus, in order for a Louisiana prisoner to have exhausted his state court remedies he must
have fairly presented the substance of his federal constitutional claims to the Louisiana Supreme
Court in a procedurally correct manner, supported by the legal theories and factual allegations that
he raises now. Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997).
B. Procedural Default
When a petitioner has defaulted a claim by violating a state procedural rule which
constitutes adequate and independent grounds to bar direct review in the United States Supreme
Court, he may not raise that claim in a federal habeas proceeding absent a showing of cause and
prejudice or actual innocence. Coleman v. Thompson, 111 S.Ct. 2546, 2554 (1991). Failure to
satisfy state procedural requirements results in forfeiture of a petitioner’s right to present a claim
in a federal habeas proceeding. Murray v. Carrier, 106 S.Ct. 2639 (1986). This is not a
jurisdictional matter; rather, it is grounded in concerns of comity and federalism. Trest v. Cain,
118 S.Ct. 478, 480 (1997).
Procedural default exists where (1) a state court clearly and expressly bases its dismissal
of the petitioner's constitutional claim on a state procedural rule and that procedural rule provides
an independent and adequate ground for the dismissal (“traditional” procedural default)2 or (2) the
petitioner fails to properly exhaust all available state court remedies and the state court to which
he would be required to petition would now find the claims procedurally barred (“technical”
procedural default). In either instance, the petitioner is considered to have forfeited his
federal habeas claims. Bledsue v. Johnson, 188 F.3d 250, 254–5 (5th Cir. 1999). The grounds for
To serve as adequate grounds for a federally cognizable default the state rule “must have been firmly established and
regularly followed by the time as of which it is to be applied.” Busby v. Dretke, 359 F.3d 708, 718 (5th Cir. 2004)
(internal quotations omitted).
traditional procedural default must be based on the actions of the last state court rendering a
judgment. Harris v. Reed, 109 S.Ct. 1038, 1043 (1989).
C. Limitations Period
Federal law imposes a one-year limitation period within which persons who are in custody
pursuant to the judgment of a state court may seek habeas review in federal court. 28 U.S.C. §
2244(d)(1). This period generally runs from the date that the conviction becomes final. Id. The
time during which a properly-filed application for post-conviction relief is pending in state court
is not counted toward the one-year limit. Id. at § 2244(d)(2); Ott v. Johnson, 192 F.3d 510, 512
(5th Cir. 1999). However, any lapse of time before proper filing in state court is counted. Flanagan
v. Johnson, 154 F.3d 196, 199 n. 1 (5th Cir. 1998).
A state application is considered pending both while it is in state court for review and also
during intervals between a state court’s disposition and the petitioner’s timely filing for review at
the next level of state consideration. Melancon v. Kaylo, 259 F.3d 401, 406 (5th Cir. 2001). The
limitations period is not tolled, however, for the period between the completion of state review and
the filing of the federal habeas application. Rhines v. Weber, 125 S.Ct. 1528 (2005). Accordingly,
in order to determine whether a habeas petition is time-barred under the provisions of §2244(d)
the court must ascertain: (1) the date upon which the judgment became final either by the
conclusion of direct review or by the expiration of time for seeking further direct review, (2) the
dates during which properly filed petitions for post-conviction or other collateral review were
pending in the state courts, and (3) the date upon which the petitioner filed his federal habeas
Based on the pleadings and exhibits filed by Nash, the court cannot determine whether the
petition should survive initial review. We are unable to calculate how much time should be tolled
by Nash’s state court proceedings without learning the dates when his application(s) for postconviction relief were filed.3 As we only have one judgment relating to one of Nash’s state
applications for post-conviction relief, we cannot determine what claims he exhausted or attempted
to exhaust within those. The fact that both of the Louisiana Supreme Court decisions presented
here show that Nash’s claims were not considered on the merits renders the versions of those
claims presented here subject to technical and/or traditional procedural default. Additionally,
given the possibility that his claims will be found unexhausted, time-barred, and/or subject
to procedural default, Nash should file another memorandum raising any arguments for
equitable tolling, cause and prejudice, and actual innocence that might excuse these bars to
Therefore, Nash is ORDERED to amend his petition within forty (40) days of this order
and provide the following documentation/information:
1. Dated copies of all applications for post-conviction relief filed in the trial court;
2. Copies of any state court rulings related to these claims; and
3. Any other documentation he believes necessary to support his petition under
the standards above.
Nash may attach the above documentation to his response.
Additionally, Nash should be aware that his conviction became final on direct review when he failed to timely file
for appeal in the Louisiana Supreme Court. Richardson v. Cain, 628 Fed. App’x 304, 305 (5th Cir. 2016) (citing Butler
v. Cain, 533 F.3d 314, 318–19 (5th Cir. 2008)).
Nash is advised that the only proper defendant in a habeas corpus case is the warden of the
prison. See Rules 2(a) and 1(b) of the Rules Governing Section 2254 Cases; see also Rumsfeld v.
Padilla, 124 S. Ct. 2711 (2004). Here Nash has also named the attorney general of the state of
Louisiana as respondent. Accordingly, he should amend his petition to correct the error.
Failure to comply with this order within the time limit set forth above will result in a
recommendation that the petition be dismissed under this court’s inherent authority.
THUS DONE this 9th day of August, 2017.
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