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Freeman v. Warden, Louisiana State Penitentiary

United States District Court, W.D. Louisiana, Shreveport Division

February 4, 2015

JEMARIO FREEMAN
v.
WARDEN, LOUISIANA STATE PENITENTIARY

REPORT AND RECOMMENDATION

MARK L. HORNSBY, Magistrate Judge.

Introduction

Jemario Freeman ("Petitioner") elected a bench trial before Caddo Parish District Judge John D. Mosely, Jr. on charges of armed robbery and attempted second-degree murder arising from a robbery and shooting at the Thrifty Liquor Store on Hollywood Avenue in Shreveport. Petitioner was convicted on both counts, adjudicated a second habitual offender, and given lengthy prison sentences. He presented three issues on direct appeal. State v. Freeman, 34 So.3d 541 (La.App.2d Cir. 2010), writ denied, 50 So.3d 827 (La.), and he now presents one of those issues-the voluntariness of his confession-in his federal habeas petition.

Petitioner also filed a post-conviction application in state court, but he has not yet exhausted his state court remedies with respect to the claims presented in that filing. He asked this court to stay this proceeding to await exhaustion of the post-conviction claims. For the reasons that follow, a stay should not be granted, and the petition should be denied.

Stay and Abeyance

The only issue presented in the federal petition is a claim that police violated the Fifth and Fourteenth Amendments during their custodial interrogation of Petitioner. Petitioner asked at the end of the filing that the court consider his petition a protective application and stay this federal action until unspecified state court proceedings have concluded. The court issued an order (Doc. 6) and advised Petitioner that he could go forward with this petition with the single claim or dismiss this petition and return with a petition that presented all claims Petitioner wished to present. Petitioner was warned about the timeliness issues related to the procedures.

Petitioner responded (Doc. 7) by stating that he had filed a post-conviction application in state court on April 19, 2012 and presented additional (unspecified) claims that he might later wish to add to this petition by amendment. The court waited several months before issuing an order (Doc. 9) that the State respond to the single claim presented in the petition. The court noted that Petitioner had not yet requested leave to add any additional claims.

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's direct appeal process ended when the Supreme Court of Louisiana denied a writ application on November 24, 2010, so the federal limitations period began to run 90 days later on February 22, 2011. Petitioner then had one year, until February 22, 2012, to (1) file a federal petition or (2) toll the federal limitations period by properly filing a post-conviction application in state court. Petitioner did file this federal petition within the timeliness window, but he waited until April 2012 to file his state post-conviction application.

Petitioner has not shown good cause to further stay this 2011 case. He could have simply filed his post-conviction application within the one year following the finality of his conviction, and his federal limitations period would have been tolled until the post-conviction proceedings were completed. He could have then filed a timely federal petition that could include any claims exhausted on direct appeal or on post-conviction. The State represents that Petitioner's post-conviction proceedings are still underway, and a hearing was scheduled to have been held in 2014. It may be several months or even a few years before all stages of those proceedings are completed, and this court should not have to carry a case on its docket for several years merely because Petitioner jumped the gun and filed his federal petition rather than first filing the post-conviction application and tolling the federal period. The court should exercise its discretion to deny a stay in this case to discourage such prematurity and encourage proper exhaustion of all claims before the applicant comes to federal court.

Relevant Facts

Two men entered the Thrifty Liquor Store on Hollywood Avenue. At least two clerks and a number of customers were inside. Witnesses said the shorter man pulled a handgun and fired a shot into the ceiling. He also fired a number of other shots, and six spent 9mm casings were collected by police. The gunman was quoted as saying, "Give me the money - I want all of it." One of the robbers shouted, "I'm going to kill every m*** f*** in here!" Tracy Harrison, one of the clerks, said that the shorter man told her, "Bitch, I got you now - you can't leave." She tried to run, but she was struck by a bullet and fell.

The men took a total of $1, 389 from three cash registers and fled. Police officers and EMT personnel initially thought Ms. Harrison was dead, but she gasped for air, and they began resuscitation efforts. She required emergency surgery to repair a severed femoral artery and suffered a fractured femur. She spent several days in the hospital and would have died without the surgery. Ms. Harrison was popular with customers and those in the neighborhood, and Crime Stoppers was inundated with calls, many of which implicated "Mario" and "Gregory" as the robbers. Detectives questioned Gregory Jenkins, who implicated Petitioner, Jemario Freeman. Officers arrested Freeman ...


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