Glover v. Cain et al

Filing 14

MEMORANDUM ORDER denying 13 Motion to Supplement; denying 13 Motion to Hold Petition in Abeyance. Signed by Magistrate Judge Mark L Hornsby on 10/13/2017. (crt,Whidden, C)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION

ORLANDO MAURICE GLOVER

CIVIL ACTION NO. 15-cv-2863

VERSUS

JUDGE HICKS

N. BURL CAIN, ET AL

MAGISTRATE JUDGE HORNSBY

MEMORANDUM ORDER
Orlando Maurice Glover (“Petitioner”) approached a group sitting on the steps outside
an apartment and had words with one of the men. The man challenged Petitioner to a fight,
but Petitioner pulled a gun and fired five or six shots. One round hit a 12-year-old boy in the
arm, and another hit the leg of a four-month-old infant. Both victims survived. A Caddo
Parish jury convicted Petitioner of two counts of attempted manslaughter, and he was
adjudicated a second felony offender.
Petitioner’s arguments on direct appeal included that the trial court did not properly
instruct the jury on the burden of proof regarding self-defense and that trial counsel was
ineffective for not objecting to that instruction. Petitioner later filed a post-conviction
application that asserted other claims of ineffective assistance of counsel and two Brady
claims. The post-conviction process ended with an opinion from the Supreme Court of
Louisiana in November 2015, and Petitioner soon filed this federal habeas petition. The
federal petition asserts several of the claims presented in state court, including attacks on the
jury instructions and counsel’s alleged failure to properly object regarding the instructions.

The federal petition has been through the initial review process, and the State has been
served and filed a brief in response. The petition, now pending for almost two years, is ripe
for decision. Petitioner has, however, now filed a Motion to Supplement and Hold the
Petition in Abeyance (Doc. 13) that is now before the court.
Petitioner states that in October 2017 he filed a new application for post-conviction
relief in the state court and argued (for the first time) that trial counsel rendered ineffective
assistance by not objecting to certain instructions regarding the intent requirement of
attempted second degree murder (of which Petitioner was not convicted) and attempted
manslaughter. He argues that an objection would have resulted in a different jury instruction
and a reasonable probability that the verdict would have been different.
The stay and abeyance requested by Petitioner “should be available only in limited
circumstances.” Rhines v. Weber, 125 S.Ct. 1528 (2005). Courts should be cautious about
granting such stays because they undermine the AEDPA’s goal of streamlining federal
habeas proceedings by decreasing a petitioner’s incentive to exhaust all his claims in state
court prior to filing his federal petition. Id. A “stay and abeyance is appropriate when the
district court finds that there was good cause for the failure to exhaust the claim; the claim
is not plainly meritless; and there is no indication that the failure was for purposes of delay.”
Id.
Petitioner has not shown good cause to stay this 2015 case. He articulates no reason
for his failure to assert this claim in his original post-conviction application, which would

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have exhausted the claim and allowed its inclusion in his original federal petition. Petitioner
had all the information necessary to assert the claim at the time of his original postconviction application, as evidenced by his attack on other aspects of the jury instructions
during direct appeal. Petitioner does not claim that there is new information or any other
reasonable excuse for his delay in asserting this claim. There is, however, a significant
likelihood that the 2017 post-conviction application will be met with a timeliness defense and
other potentially valid procedural objections. Even if the state court were to reach the merits,
it would be several months or even a few years before all stages of those proceedings were
completed to exhaust the new claim and allow its presentation in federal court.
This court should not have to carry a case on its docket for several years merely
because Petitioner recently thought of a new argument that he easily could have raised in his
original filings. The state post-conviction and federal habeas process favor a once-and-done
approach, and serial or repetitive filings are disfavored. Accordingly, the court declines to
issue a stay in this case. The Motion to Supplement and Hold the Petition in Abeyance
(Doc. 13) is denied.
THUS DONE AND SIGNED in Shreveport, Louisiana, this 13th day of October,
2017.

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