United States District Court, W.D. Louisiana, Shreveport Division
ELIZABETH E. FOOTE JUDGE.
H.L. Perez-Montes United States Magistrate Judge.
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.
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.
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.
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).
Law and Analysis
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.
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 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.
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
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).
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.
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 time-barred.
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 ...