Augustine v. Vannoy et al, No. 2:2016cv01191 - Document 29 (E.D. La. 2017)

Court Description: ORDER AND REASONS denying 26 Motion for a Temporary Stay and Abeyance. Signed by Judge Susie Morgan on 11/27/2017. (clc)
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Augustine v. Vannoy et al Doc. 29 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A ED W ARD AU GU STIN E CIVIL ACTION VERSU S N O. 16 -119 1 D ARRYL VAN N OY, ET AL. SECTION “E” ORD ER AN D REAS ON S Now before the Court is Petitioner’s Motion for a Tem porary Stay and Abeyan ce pursuant to Rule 62(b). 1 For the reasons below, Petitioner’s Motion for a Tem porary Stay and Abeyance is D EN IED . BACKGROU N D On Novem ber 28, 20 12, Edward Augustine (“Petitioner”) was convicted of second degree m urder and attem pted second degree m urder. 2 On J anuary 3, 20 13, Petitioner was sentenced on the form er conviction to a term of life im prisonm ent, and to a concurrent term of thirty years im prisonm ent on the latter conviction. 3 On J anuary 22, 20 14, the Louisiana Fourth Circuit Court of Appeals affirm ed the Petitioner’s convictions and sentences. 4 The Louisiana Suprem e Court then denied his related writ application on Septem ber 26, 20 14. 5 Petitioner filed an application for post-conviction relief with the state district court in Novem ber 20 15, which was denied on Decem ber 2, 20 15. 6 Petitioner did not seek supervisory review of that denial. 7 1 R. Doc. 26. R. Doc. 17 at 1. 3 Id. 4 State v. Augustine, 133 So.3d 148 (La. App. 4th Cir. 20 14). 5 State v. Augustine, 149 So.3d 260 (La. 20 14). 6 R. Doc. 17 at 2. 7 Id. 2 1 On February 22, 20 16, Petitioner, filed a pro se petition for a writ of habeas corpus. 8 The state filed a response conceding that his application was tim ely, but argued that Petitioner’s claim s were without m erit. 9 Petitioner filed a reply to the state’s response. 10 Magistrate J udge J anis van Meerveld then issued a Report and Recom m en dation (“R&R”) on March 7, 20 17, recom m ending that that the federal application for habeas corpus relief Petitioner be dism issed with prejudice. 11 On March 20 , 20 17, Petitioner filed an objection to the findings and conclusions in J udge van Meerveld’s R&R. 12 On J uly 10 , 20 17, this Court adopted the recom m endations in J udge van Meerveld’s R&R, 13 and issued a judgm ent dism issing Petitioner’s federal application for habeas corpus relief with prejudice. 14 The Court also denied the issuance of a certificate of appealability on the grounds that Petitioner failed to m ake a substantial showing of a violation of a constitutional right. 15 Petitioner then filed a notice to appeal J udge Morgan’s J uly 10 judgm ent and denial of the certificate of appealability, and m oved for leave to appeal in form a pauperis. 16 On J uly 25, 20 17, J udge Morgan granted Petitioner’s m otion for leave to appeal in form a pauperis. 17 On August 1, 20 17, Petitioner appealed to the United States Court of Appeals for the Fifth Circuit. 18 On Septem ber 8, 20 17, Petitioner filed m otions for (1) Rule 60 (b) relief 8 R. Doc. 1 at 15. R. Doc. 17 at 2. 10 Id. 11 Id. at 26. 12 R. Doc. 18 at 1. 13 See R. Doc. 19. 14 R. Doc. 20 at 1. 15 R. Doc. 21 at 1. 16 R. Doc. 22 at 1; R. Doc. 23 at 1. 17 R. Doc. 24 at 1. 18 R. Doc. 25 at 1. 9 2 from judgm ent 19 and (2) a tem porary stay and abey order pursuant to Rule 62(b). 20 In his Rule 62(b) m otion, Petitioner raises several unexhausted issues: (1) whether collateral counsel was in effective in his representation of Petitioner’s collateral proceedings, and whether that ineffectiveness caused procedural default; (2) whether Petitioner should be able to continue as tim ely and properly filed; (3) whether Petitioner’s claim s m ay be brought pursuant to Trevino v. Thaler 21 and Colem an v. Goodw in 22 ; (4) whether applicant was denied a fair trial where the state failed to negate any reasonable probability of m isidentification; (5) whether every essential elem ent of the crim e was proved beyond a reasonable doubt; and (6) whether Petitioner’s counsel was ineffective for denying him the right to testify in his own behalf. 23 These issues were not briefed in Petitioner’s original habeas petition. Petitioner asks this Court to allow leave to proceed to state court to seek exhaustion of the new issues. 24 AN ALYSIS Federal courts have the discretion to stay federal habeas proceedings while prisoners seek the exhaustion of claim s in state court. 25 Granting a stay effectively excuses a petitioner’s failure to present his claim s first to the state courts. 26 As a result, “stay an d abeyan ce is only appropriate where (1) the district court determ ines there was good cause for the petitioner's failure to exhaust his claim s in state court”; (2) the claim is not “plainly 19 R. Doc. 27. Petitioner’s Rule 60 (b) m otion is addressed in a separate Order and Reasons. R. Doc. 26. 21 569 U.S. 413 (20 13). 22 833 F.3d 537 (5th Cir. 20 16). 23 R. Doc. 26 at 6. 24 Id. 25 Rhines v. W eber, 544 U.S. 269, 277 (20 0 5). 26 Id. 20 3 m eritless”; and (3) there is no indication that the petitioner is “engag[ing] in abusive litigation tactics or intentional delay.” 27 In this case, the Court need not take a position on the m erits of Petitioner’s unexhausted claim s, or on the question of whether Petitioner has good cause for the failure to exhaust. This Court cannot grant a tem porary stay because Petitioner’s federal habeas proceedings have been adjudicated and a judgm ent has been issued. 28 The appeal is currently before the Fifth Circuit. 29 Sim ply put, there is nothing pending in this Court that can be held in abeyance, an d so this Court is unable to provide the relief sought by Petitioner. As the Western District of Texas noted in denying a post-judgm ent m otion for stay and abeyance, “[g]iven the current procedural posture of this cause, i.e., with petition having already filed a Notice of Appeal and this Court’s Clerk’s Office receiving urgent inquiries from the Fifth Circuit regarding the disposition of petitioner’s post-judgm ent m otions, a stay appears inappropriate.” 30 To the extent that Petitioner wants to am en d his federal petition with new claim s, the proper procedure would be to obtain perm ission from the Fifth Circuit to file a successive petition pursuant to 28 U.S.C. § 2244(b)(3) 31 and then request a stay from this Court in order to pursue state adjudication of any unexhausted claim s. 32 27 Young v. Stephens, 795 F.3d 484 (5th Cir. 20 15). R. Doc. 20 . 29 R. Doc. 25. 30 Young v. Stephens, 20 14 WL 2628941 at *18 (W.D. Tex. 20 14). 31 Anti-Terrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2244(b)(3) (20 12). 32 Young, 795 F.3d at 495. 28 4 CON CLU SION For the reasons above, Petitioner’s m otion for a stay and abeyance is D EN IED . N e w Orle a n s , Lo u is ian a, th is 2 7th d ay o f N o ve m be r, 2 0 17. ________________________________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 5