Demery v. Vannoy

Filing 7

MEMORANDUM ORDER: Directing plaintiff to amend complaint/petition. Pro Se Response due by 6/29/2017. Signed by Magistrate Judge Joseph H L Perez-Montes on 5/30/2017. (crt,ThomasSld, T)

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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 petition for writ of habeas corpus (28 U.S.C. § 2254) filed
by pro se Petitioner Andre Demery (“Demery”) (#126262). Demery is an inmate in the
custody of the Louisiana Department of Corrections, incarcerated at the Louisiana
State Penitentiary in Angola, Louisiana. Demery challenges the sufficiency of the
evidence for his aggravated rape conviction in the First Judicial District Court, Caddo
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 that 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
(citing Jackson v. Virginia, 443 U.S. 307 (1979); State v. Hearold, 603 So.2d 731 (La.

1992); State v. Smith, 47,983 (La.App. 2d Cir. 5/15/13), 116 So.3d 884; La. C. Cr. P.
art. 821.).
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). Demery’s writ application
and brief were submitted by counsel on June 30, 2015. The Louisiana Supreme Court
denied Demery’s writ application in a one-word opinion. See State v. Demery, 20151072 (La. 10/17/16), 207 So. 3d 1067.
II.

Instructions to Amend
Demery had 30 days from the mailing of the notice of the original judgment of

the court of appeal, or until June 19, 2015, within which to seek writs in the Louisiana
Supreme Court. See La. Sup. Ct. R. X § 5(a). Rule X provides that no extension of
time will be granted. See id. It is unclear whether Demery’s motion for extension of
time was granted, denied, or construed as a writ application.
In order to determine whether Demery’s writ application in the Louisiana
Supreme Court was timely filed, Demery should provide a copy of that court’s order
granting or denying his attorney’s motion for extension of time, and any other
communications from the Louisiana Supreme Court confirming the date of filing of
the writ application. (Doc. 1-3, p. 4).
III.

Conclusion
IT IS ORDERED that Demery amend his complaint within thirty (30) days of

the filing of this Order to provide the information outlined above. Should Demery

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need additional time to obtain documents from his appellate counsel, Demery may
file a motion for extension of time within which to comply with this Order.
30th
THUS DONE AND SIGNED in chambers in Alexandria, Louisiana, this ____
day of May, 2017.
____________________________________
Joseph H.L. Perez-Montes
United States Magistrate Judge

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