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Nash v. Cain

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

November 2, 2018

DEMETRIUS NASH D.O.C. # 536196
v.
NATHAN BURL CAIN, II

         SECTION P

          REPORT AND RECOMMENDATION

          KATHLEEN 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 Demetrius Nash, who is proceeding pro se 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 Facility in Angie, Louisiana. The respondent has answered the petition, and the parties have also submitted supplemental memoranda addressing the issue of equitable tolling. Docs. 17, 26, 31.

         This petition is referred to the undersigned for review, report, and recommendation in accordance with 28 U.S.C. § 636 and the standing orders of the court. For the following reasons IT IS RECOMMEDED that the petition for writ of habeas corpus be DENIED and DISMISSED WITH PREJUDICE.

         I.

         Background

         A. Conviction

         By separate bills of information under separate docket numbers, Nash was charged in the Fourteenth Judicial District Court, Calcasieu Parish, Louisiana, with (1) one count of attempted armed robbery, a violation of Louisiana Revised Statute § 14:64, and one count of attempted armed robbery with a firearm, a violation of Louisiana Revised Statute § 14:64.3, and (2) one count of armed robbery and one count of armed robbery with a firearm, violations of the same respective Louisiana statutes above. Doc. 17, att. 3, p. 24; doc. 17, att. 6, p. 23. The charges related to the events of May 15, 2009, when, according to the Louisiana Third Circuit Court of Appeal's summary, Nash unsuccessfully attempted to rob two women and pointed his firearm at a stroller they were pushing and at one of the women during this attempt. State v. Nash, 112 So.3d 409, 411 (La. Ct. App. 3d Cir. 2013). Later that night he approached two different women in a parking lot and, threatening them with a gun, successfully robbed them of cash and a cell phone. Id.

         The state eventually dismissed the attempted armed robbery with a firearm and armed robbery with a firearm charges. Doc. 17, att. 3, p. 15. Nash then pleaded guilty to the remaining charges under both docket numbers. Id. On October 13, 2010, he was sentenced to 20 years for attempted armed robbery and 35 years for armed robbery, with the sentences to run consecutively. Id. at 150-51.

         B. Direct Appeal

         The petitioner timely sought review in the Louisiana Third Circuit Court of Appeal, arguing through counsel that his plea was not entered intelligently and that his sentences were excessive and not made with adequate consideration for statutory guidelines. The Third Circuit found no merit to these claims and affirmed his conviction and sentence under both cases on April 3, 2013. State v. Nash, 112 So.3d 409 (La. Ct. App. 3d Cir. 2013); State v. Nash, 112 So.3d 419 (La. Ct. App. 3d Cir. 2013). Appellate counsel withdrew the following day, advising Nash that the Louisiana Supreme Court was not likely to grant a writ application. Doc. 26, att. 1, p. 1. On or about July 19, 2016[1], Nash filed a pro se writ application in the Louisiana Supreme Court. Doc. 17, att. 8, p. 65. That court denied the application as untimely on November 7, 2016. State ex rel. Nash v. Nash, 208 So.3d 381 (La. 2016). It does not appear that Nash filed a petition for writ of certiorari in the United States Supreme Court.

         C. State Collateral Review

         Nash filed a pro se application for post-conviction relief in the state district court on July 22, 2014. Doc. 17, att. 8, pp. 30-40. There he alleged that (1) he received ineffective assistance from trial counsel and (2) the court violated his constitutional rights by failing to ensure that his guilty plea was knowing and voluntary. Id. The state district court denied the application, finding no merit and adopting the Third Circuit's ruling on the validity of the guilty plea. Id. at 41. Nash then sought review in the Third Circuit, which found that the application was deficient under Louisiana Code of Criminal Procedure Article 912.1(C) and Uniform Rules--Courts of Appeal, Rule 4-5, and Third Circuit Internal Rule 16. Id. at 46. Accordingly, the Third Circuit denied the writ application “on the showing made” on March 17, 2015. Id. Nash filed a writ application in the Louisiana Supreme Court, which denied same on February 19, 2016. State ex rel. Nash v. State, 184 So.3d 675 (La. 2016).

         D. Federal ...


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