Demery v. Vannoy

Filing 19

ORDER denying 17 Motion to Stay. IT IS FURTHER ORDERED that, within 30 days, Demery shall advise the Court whether he wishes to: (1) proceed with the one exhausted claim (sufficiency of the evidence), possibly foregoing any other claims due to the prohibition of filing second and successive petitions; or (2) dismiss the petition without prejudice to refiling once the post-conviction claim is fully exhausted, subject to the time limitations discussed herein. Signed by Magistrate Judge Joseph H L Perez-Montes on 2/6/2018. (crt,Haik, K)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
ANDRE DEMERY (#126262),
Petitioner

CIVIL ACTION NO. 5:17-CV-524-P

VERSUS

JUDGE ELIZABETH E. FOOTE

DARREL VANNOY,
Respondent

MAGISTRATE JUDGE PEREZ-MONTES

MEMORANDUM ORDER
Before the Court is a motion to stay the petition for writ of habeas corpus (28
U.S.C. § 2254) filed by pro se Petitioner Andre Demery (“Demery”) (#126262). (Doc.
17). Demery is an inmate in the custody of the Louisiana Department of Corrections,
incarcerated at the Louisiana State Penitentiary in Angola, Louisiana. Demery
challenges his aggravated rape conviction in the 26th Judicial District Court, Webster
Parish.
I.

Background
Demery was convicted of aggravated rape and sentenced to the mandatory

term of life imprisonment. See State v. Demery, 49,732 (La. App. 2 Cir. 5/20/15), 165
So. 3d 1175, 1176, writ denied, 2015-1072 (La. 10/17/16), 207 So. 3d 1067. On appeal,
Demery argued the evidence was insufficient to convict him. Id. On May 20, 2015,
the appellate court concluded that sufficient evidence was presented at trial to
sustain Demery’s conviction. See Demery, 165 So. 3d at 1179.
On May 28, 2015, Demery’s attorney mailed a motion for extension of time in
which to file Demery’s writ application. (Doc. 1-3, pp. 1-3). The motion was granted.

(Doc. 10, p. 2). The Louisiana Supreme Court then denied Demery’s writ application
on October 17, 2016. See State v. Demery, 2015-1072 (La. 10/17/16), 207 So. 3d 1067.
After filing this § 2254 petition, Demery sought post-conviction relief in the
trial court on the issue of prosecutorial misconduct. (Doc. 17). Specifically, Demery
claims he filed an application for post-conviction relief on November 20, 2017. (Doc.
17, p. 1).
II.

Law and Analysis
Although Demery lists only one claim in his petition, it appears he wishes to

raise both a sufficiency of the evidence claim, and a claim of prosecutorial misconduct.
(Doc. 17). The prosecutorial misconduct claim is not exhausted, as it was only raised
in state court after this petition was filed. Demery is now asking that his § 2254
petition be stayed pending exhaustion of his post-conviction application.
“Section 2254(b) requires that prisoners must ordinarily exhaust state court
remedies before filing for federal habeas relief.” Cullen v. Pinholster, 563 U.S. 170,
182 (2011); Rose v. Lundy, 455 U.S. 509, 519-20 (1982); Whitehead v. Johnson, 157
F.3d 384, 387 (5th Cir. 1998). The Supreme Court has consistently interpreted § 2254
to require a federal habeas petitioner to complete exhaustion before seeking federal
relief in order to promote comity, finality, and federalism, by giving state courts the
first opportunity to review the claim, and to correct any constitutional violation in
the first instance. See Carey v. Saffold, 536 U.S. 214, 220 (2002) (quoting Williams
v. Taylor, 529 U.S. 420, 436 (2000)); Jiminez v. Quarterman, 555 U.S. 113, 121 (2009).
For this reason, the Supreme Court also provides that petitions containing

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unexhausted claims and mixed petitions, containing both exhausted and
unexhausted claims, be dismissed. See Pliler v. Ford, 542 U.S. 225, 233 (2004);
Whitehead, 157 F.3d at 387.
A stay, as requested by Demery, is an extraordinary remedy that is available
only in limited circumstances. A stay is appropriate only when there is “good cause”
for the failure to exhaust. See Rhines v. Weber, 544 U.S. 269, 278 (2005). Demery
has not alleged good cause for his failure to exhaust the prosecutorial misconduct
claim. Therefore, Demery is not entitled to a stay under Rhines.
The Court will recommend dismissal of the entire petition without prejudice to
Demery refiling once all claims are exhausted, unless Demery voluntarily dismisses
or amends his complaint clearly indicating that he wishes to proceed with only the
exhausted claim.

Demery is cautioned that, should he proceed with only the

exhausted claim, he may be precluded from bringing the second claim in the future,
because a petitioner must obtain authorization from the appropriate court of appeals
before filing a second or successive petition. See 28 U.S.C. §2244(b)(3)(A).
If the petition is dismissed without prejudice, and Demery properly exhausts
the prosecutorial misconduct claim, Demery will still have time, albeit limited, within
which to return to this Court and refile a § 2254 petition. Demery’s conviction became
final under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
Pub. L. No. 104-132, 110 Stat. 1214, on January 15, 2017, which is 90 days after the
Louisiana Supreme Court denied writs. Tolling of the statute of limitations began on
November 20, 2017, when Demery filed his application for post-conviction relief.

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Thus, 309 days of the 365-day limitations period have expired. Demery would have
to refile his § 2254 petition in this Court within 56 days of the Louisiana Supreme
Court denying writs on his post-conviction claim(s) in order to avoid being timebarred.
Therefore, IT IS ORDERED that Demery’s motion to stay (Doc. 17) is DENIED.
IT IS FURTHER ORDERED that, within 30 days, Demery shall advise the Court
whether he wishes to: (1) proceed with the one exhausted claim (sufficiency of the
evidence), possibly foregoing any other claims due to the prohibition of filing second
and successive petitions; or (2) dismiss the petition without prejudice to refiling once
the post-conviction claim is fully exhausted, subject to the time limitations discussed
herein. Alternatively, a report and recommendation will be issued recommending
dismissal without prejudice.
6th
THUS DONE AND SIGNED in chambers in Alexandria, Louisiana, this ____
day of February, 2018.
____________________________________
Joseph H.L. Perez-Montes
United States Magistrate Judge

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