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Nash v. Cain

United States District Court, W.D. Louisiana, Lake Charles Division

December 28, 2017

DEMETRIUS NASH DOC # 536196
v.
NATHAN BURL CAIN, II

         SECTION P

          ORDER

          KATHELEEN KAY UNITED STATES MAGISTRATE JUDGE

         Before the court is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by petitioner Demetrius Nash, who is proceeding pro se and in forma pauperis in this matter. Nash is an inmate in the custody of the Louisiana Department of Public Safety and Corrections and is currently incarcerated at Rayburn Correctional Center in Angie, Louisiana. However, he was incarcerated at Raymond LaBorde Correctional Center in Cottonport, Louisiana, when this complaint was filed.

         After reviewing Nash's petition, we noted that we could not determine from the information provided whether his claims should survive or whether any were barred by the statute of limitations and/or the doctrine of procedural default. Doc. 7. In response Nash has filed documents which do nothing to assuage these concerns and has not offered any excuse in the event that his claims are time-barred or subject to procedural default. See doc. 9. However, based on the record before us and the documents apparently available to Nash, there is not enough evidence to determine whether claims should be dismissed by the court sua sponte at this point.

         Accordingly and in order for the court to determine an appropriate resolution to this matter, THE CLERK IS DIRECTED to prepare summons and serve, by Certified Mail, a copy of the petition and memorandum [doc. 1; doc. 1-2][1] and a copy of this order on:

         1. The Attorney General for the State of Louisiana; and

         2. Robert Tanner, warden of Rayburn Correctional Center.[2]

         THE CLERK IS ALSO DIRECTED TO SERVE, via First Class Mail, the District Attorney for the Fourteenth Judicial District Court of Louisiana, Calcasieu Parish, where Nash was convicted and sentenced. Nash is to receive a copy of this order only by ordinary mail.

         IT IS ORDERED that the respondent, through the District Attorney, file within sixty (60) days after the date of service of the summons:

         1. An answer to the petition

a. The answer shall state whether Nash has exhausted state remedies, including any post-conviction remedies available to him under Louisiana law, by properly presenting to the Supreme Court of Louisiana all issues raised in this petition. If respondent claims that Nash has failed to exhaust his state remedies, respondent shall state whether Nash has any available procedural vehicle by which he may present his claims to the state courts, and if not, respondent shall present applicable case law as to whether this court should reach the merits of the claims. If respondent contends that Nash has procedurally defaulted any claim presented in this petition, respondent should raise the defense of procedural default.
Respondent shall also address whether the claims presented herein are cognizable on federal habeas review, and if they are not cognizable, respondent shall present applicable case law as to why the claims are not properly reviewed by this court.
Respondent shall also state whether Nash demonstrates that any of the claims presented herein have been adjudicated in state court proceedings which resulted in (1) a decision that was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the United States Supreme Court; or (2) a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
b. In the event the respondent contends that it has been prejudiced in its ability to respond by Nash's delay in filing or that the petition is a second or successive petition under 28 U.S.C. ยง 2254, the respondent ...

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