# Scott v. Vannoy

> District Court, E.D. Louisiana · March 30, 2020

URL: https://www.frixlaw.com/law-library/cases/10185383

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** March 30, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10185383

## How later opinions describe it (automated extraction)

- applying one-year grace period to actions filed pursuant to 28 U.S.C. § 2255

## Opinion text

.UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

FRANK SCOTT CIVIL ACTION

VERSUS NO. 19-2232

DARRYL VANNOY, WARDEN SECTION “G”(3)

ORDER AND REASONS
Before the Court are Petitioner Frank Scott’s (“Petitioner”) objections1 to the Report and
Recommendation of the United States Magistrate Judge assigned to this case.2 Also pending before
the Court is Petitioner’s “Motion to Stay and Hold in Abeyance Pending Application for Writ of
Habeas Corpus.”3 Petitioner, a state prisoner incarcerated at the Louisiana State Penitentiary in
Angola, Louisiana, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254.4 The
Magistrate Judge recommended that this Court dismiss the petition with prejudice because it was
not timely filed, and deny the motion to stay the proceedings.5 Petitioner objects to the Magistrate
Judge’s recommendation.6 After reviewing the petition, the motion, the State’s response, the
Magistrate Judge’s Report and Recommendation, Petitioner’s objections, the record, and the
applicable law, the Court will overrule Petitioner’s objections, adopt the Magistrate Judge’s
recommendation, deny the motion to stay, and dismiss this action with prejudice.

1 Rec. Doc. 25.
2 Rec. Doc. 24.
3 Rec. Doc. 10.
4 Rec. Doc. 1.
5 Rec. Doc. 24.
6 Rec. Doc. 21.
1
I. Background
A. Factual Background
In 1981, Petitioner was charged by Indictment in the Orleans Parish Criminal District Court
with one count of second-degree murder.7 On December 10, 1981, Petitioner was convicted as
charged,8 and on December 22, 1981, he was sentenced to a term of life imprisonment.9

On February 9, 1984, the Louisiana Fourth Circuit Court of Appeal affirmed Petitioner’s
conviction and sentence.10 The Louisiana Supreme Court denied Petitioner’s related writ
application on May 11, 1984.11
On December 26, 1986, Petitioner filed a motion to quash before the state trial court.12 The
state trial court denied the motion on January 28, 1987.13 In the interim, Petitioner filed a writ of
mandamus before the Louisiana Supreme Court, which was denied on October 2, 1987.14
On January 16, 1990, Petitioner filed an application for post-conviction relief with the state
trial court arguing, inter alia, that his sentence was illegal because it did not specify that the
sentence was to be served without the possibility of parole.15 In response, on February 21, 1992,

7 State Rec., Vol. I of VI, Indictment.
8 State Rec., Vol. I of VI, Minute Entry, Dec. 10, 1981.
9 State Rec., Vol. I of VI, Minute Entry, Dec. 22, 1981.
10 State v. Scott, 446 So. 2d 448 (La. App. 4 Cir. 1984).
11 State v. Scott, 450 So. 2d 358 (La. 1984).
12 State Rec., Vol. II of VI, Motion to Quash, Dec. 26, 1986.
13 State Rec., Vol. II of VI, Court Order, Jan. 28, 1987.
14 State ex rel. Scott v. Criminal District Court, Parish of Orleans, 512 So. 2d 859 (La. 1987).
15 State Rec., Vol. II of VI, Application for Post-Conviction Relief, Jan. 16, 1990.
2
the state trial court resentenced Petitioner to a term of life imprisonment without benefit of
probation, parole, or suspension of sentence.16
On July 24, 1995, Petitioner filed another application for post-conviction relief with the
state trial court.17 That application was denied on September 7, 1995.18
On October 7, 1996, Petitioner filed another application for post-conviction relief with the

state trial court.19 That application was denied on October 30, 1996,20 and his motion for
reconsideration was denied on January 27, 1997.21 Petitioner’s related writ applications were then
likewise denied by the Louisiana Fourth Circuit Court of Appeal on May 21, 1997,22 and the
Louisiana Supreme Court on January 16, 1998.23
On December 17, 1998, Petitioner filed another application for post-conviction relief with
the state trial court.24 That application was denied on December 22, 1998.25 The Louisiana
Supreme Court denied Petitioner’s related writ application on June 25, 1999.26

16 State Rec., Vol. V of VI, Judgment, Feb. 21, 1992.
17 State Rec., Vol. I of VI, Application for Post-Conviction Relief, Jul. 24, 1995.
18 State Rec., Vol. I of VI, Court Order, Sept. 7, 1995.
19 State Rec., Vol. I of VI, Application for Post-Conviction Relief, Oct. 7, 1996.
20 State Rec., Vol. I of VI, Court Order, Oct. 30, 1996.
21 State Rec., Vol. V of VI, Court Order, Jan. 27, 1997.
22 State v. Scott, No. 97-K-0701 (La. App. 4th Cir. May 21, 1997); State Rec., Vol. V of VI.
23 State ex rel. Scott v. State, 707 So. 2d 51 (La. 1998).
24 State Rec., Vol. I of VI, Application for Post-Conviction Relief, Dec. 17, 1998.
25 State Rec., Vol. I of VI, Court Order, Dec. 22, 1998.
26 State ex rel. Scott v. State, 745 So. 2d 1178 (La. 1999).
3
On January 8, 2003, Petitioner filed yet another application for post-conviction relief with
the state trial court.27 That application was denied on February 24, 2003.28 Petitioner’s related writ
application was denied by the Louisiana Fourth Circuit Court of Appeal on July 28, 2003.29
In 2004, Petitioner filed a “State Habeas Corpus Writ” and a “Motion to Quash
Indictment.”30 The state trial court denied the motions on May 6 and 11, 2004.31

On February 6, 2018, Petitioner filed an “Application for Writs of Habeas Corpus and
Mandamus” with the state trial court.32 That application was denied on November 28, 2018.33
Petitioner’s related writ applications were then likewise denied by the Louisiana Fourth Circuit
Court of Appeal on December 19, 2018,34 and the Louisiana Supreme Court on February 18,
2019.35
On or about March 8, 2019, Petitioner filed the instant federal habeas corpus application
asserting two claims: (1) the indictment was defective because it failed to give him fair notice of
the offense charged and (2) the state courts wrongly denied his state habeas corpus application by
improperly applying rules that govern only post-conviction applications.36 Petitioner subsequently

27 State Rec., Vol. V of VI, Application for Post-Conviction Relief, Jan. 8, 2003.
28 State Rec., Vol. V of VI, Court Order, Feb. 24, 2003.
29 State v. Scott, No. 2003-K-0873 (La. App. 4 Cir. July 28, 2003); State Rec., Vol. V of VI.
30 State Rec., Vol. I of VI, Motions, Mar. 30, 2004.
31 State Rec., Vol. I of VI, Orders, May 6 and 11, 2004.
32 State Rec., Vol. I of VI, Motion, Feb. 6, 2018.
33 State Rec., Vol. V of VI, Order, Nov. 28, 2018.
34 State v. Scott, No. 2018-K-1042 (La. App. 4 Cir. Dec. 19, 2018); State Rec., Vol. V of VI.
35 State v. Scott, 263 So. 3d 882 (La. 2019).
36 Rec. Doc. 1.
4
filed the “Motion to Stay and Hold in Abeyance Pending Application for Writ of Habeas
Corpus.”37 In that motion, Petitioner requests that these federal proceedings be stayed while he
returns to state court to pursue an additional claim challenging the validity of Louisiana’s laws
allowing non-unanimous verdicts.38 On December 11, 2019, the State filed a response opposing
both the petition for writ of habeas corpus and the motion to stay.39 On December 23, 2019,

Petitioner filed a reply to the State’s response.40
B. Report and Recommendation Findings
On January 8, 2020, the Magistrate Judge recommended that the petition be dismissed with
prejudice as it was not timely filed.41 The Magistrate Judge noted that under Subsection A of the
Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a petitioner must file a
habeas corpus petition within one year of the date his conviction became final.42 The Magistrate
Judge determined that Petitioner’s conviction became final in 1992 when he was resentenced.43
However, because Petitioner’s conviction became final prior to the enactment of the AEDPA,
Petitioner had until April 24, 1997 to file a federal habeas petition, unless the statute of limitations
was extended through tolling.44

37 Rec. Doc. 10.
38 Id.
39 Rec. Doc. 21.
40 Rec. Doc. 23.
41 Rec. Doc. 24.
42 Id. at 5.
43 Id.
44 Id. at 6.
5
The Magistrate Judge examined statutory tolling under 28 U.S.C. § 2244(d)(2), which
establishes that “[t]he time during which a properly filed application for State post-conviction or
other collateral review with respect to the pertinent judgment or claim is pending shall not be
counted toward any period of limitation.”45 The Magistrate Judge noted that Petitioner had one
state post-conviction relief application pending during the applicable one-year period––the post-

conviction application filed with the state trial court on October 7, 1996.46 The Magistrate Judge
further noted that the Louisiana Supreme Court found that the 1996 application was not timely
filed.47 Therefore, the Magistrate Judge determined that Petitioner was not entitled to statutory
tolling because he did not have a properly filed application pending before the Louisiana state
courts during the applicable federal one-year limitations period.48
Next, the Magistrate Judge considered whether Petitioner was entitled to equitable
tolling.49 The Magistrate Judge noted that the Supreme Court has held that the AEDPA’s statute
of limitations may be equitably tolled where the Petitioner shows both that (1) he has been pursuing
his rights diligently, and (2) some extraordinary circumstance stood in his way and prevented
timely filing.50 The Magistrate Judge addressed Petitioner’s claim that he was entitled to equitable

tolling because “[t]here is nothing in Louisiana Jurisprudence that informs a criminal defendant
that he cannot use a State Habeas Corpus to challenges [sic] his or her custody when that custody

45 Id.
46 Id.
47 Id.
48 Id. at 7.
49 Id.
50 Id. (citing Holland v. Florida, 560 U.S. 631, 649 (2010)).
6
is illegal for some legal requisite.”51 The Magistrate Judge found that this was an incorrect
statement of Louisiana law.52 Furthermore, the Magistrate Judge found that Petitioner’s ignorance
of the law did not constitute rare and exceptional circumstances warranting equitable tolling.53 The
Magistrate Judge concluded that because Petitioner had not shown that any “extraordinary
circumstance” had prevented him from filing his federal application within the one-year limitations

period, he was not entitled to equitable tolling.54
The Magistrate Judge also noted that a petitioner may overcome the AEDPA’s statute of
limitations by way of a claim of actual innocence, but Petitioner expressly stated that he was not
asserting such a claim.55 The Magistrate Judge determined that because Petitioner is not entitled
to statutory tolling or equitable tolling, and because he failed to show that he was actually innocent,
his federal application for habeas corpus relief had to be filed no later than April 24, 1997, in order
to be timely.56 The Magistrate Judge concluded that Petitioner’s application filed on March 8, 2019
is untimely, and recommended that the petition be dismissed with prejudice.57
Finally, the Magistrate Judge recommended that Petitioner’s “Motion to Stay and Hold in
Abeyance Pending Application for Writ of Habeas Corpus” be denied.58 The Magistrate Judge

51 Id. (citing Rec. Doc. 23 at 7–8).
52 Id.
53 Id. at 8 (citing Tate v. Parker, 439 F. App’x 375, 376 (5th Cir. 2011); Cousin v. Lensing, 310 F.3d 843,
849 (5th Cir. 2002)).
54 Id.
55 Id. (citing Rec. Doc. 23 at 8).
56 Id.
57 Id.
58 Id. at 9–10.
7
found that Petitioner’s proposed claim that his conviction was unconstitutional because the jury’s
verdict was not unanimous is plainly meritless under current Supreme Court precedent.59 The
Magistrate Judge recognized that the United States Supreme Court is currently considering a
challenge to Louisiana’s non-unanimous jury verdict law.60 If this federal application is dismissed
and the Supreme Court subsequently overrules its prior precedent, the Magistrate Judge noted that

Petitioner may, after exhausting his remedies in the state courts, seek authorization to file a second
or successive habeas petition before this Court.61
II. Objections
A Petitioner’s Objection
Petitioner raises two objections to the Magistrate Judge’s Report and Recommendation.62
First, Petitioner argues that the Magistrate Judge erred in finding that Petitioner is not entitled to
equitable tolling.63 Second, Petitioner asserts that the Magistrate Judge erred in recommending that
the motion to stay be denied.64
First, Petitioner argues that the Magistrate Judge erred in finding that Petitioner is not
entitled to equitable tolling.65 Petitioner avers that “[t]here is nothing in Louisiana Code of

Criminal Procedure Articles which governs Louisiana State Habeas Corpus statute that informs a
criminal defendant that he cannot use a State Habeas Corpus to challenge his or her custody when

59 Id. at 9 (citing Apodaca v. Oregon, 406 U.S. 404 (1972); Johnson v. Louisiana, 406 U.S. 356 (1972)).
60 Id. at 10, n.41.
61 Id.
62 Rec. Doc. 25.
63 Id. at 2.
64 Id. at 4.
65 Id. at 2.
8
that custody is illegal for some legal requisite.”66 Petitioner asserts that a state writ of habeas corpus
may be granted pursuant to Louisiana Code of Criminal Procedure article 362 where the order for
custody is deficient.67 Petitioner contends that custody was deficient in his case because the
indictment failed to give him fair notice of the offense charged.68 Therefore, Petitioner asserts that
he is entitled to equitable tolling because he was not informed that he could not file a state habeas

corpus application, even though the trial court had jurisdiction to rule on the violation Plaintiff
alleges occurred.69
Second, Petitioner asserts that the Magistrate Judge erred in recommending that the motion
to stay be denied.70 Petitioner argues that this case should be stayed so that he can return to state
court to exhaust a claim challenging the validity of Louisiana’s laws allowing non-unanimous
verdicts.71 Petitioner contends he has satisfied the three requirements for a stay: (1) good cause;
(2) a potentially meritorious claim; and (3) a lack of intentionally dilatory litigation tactics.72
Petitioner argues that he has established good cause for staying this matter because the claim he
wishes to present to the state courts is predicated on newly discovered evidence, which he asserts
reveals that the non-unanimous verdict law denied him of equal protection under the law.73

Petitioner asserts that the claim has merit because he has discovered new evidence showing the

66 Id. at 2–3.
67 Id. at 3 (citing La. Code. Crim. Pro. art. 362).
68 Id.
69 Id. at 4.
70 Id.
71 Id. at 6.
72 Id.
73 Id. at 6–7.
9
legislature’s “intent to deprive petitioner of a full and fair trial.”74 Finally, Petitioner asserts that
he did not engage in any intentionally dilatory tactics in pursuing this claim.75 Accordingly,
Petitioner asserts that he has established good cause for a stay of these proceedings.76
B. The State’s Opposition
Despite receiving electronic notice of the filing, the State of Louisiana did not file a brief

in opposition to Petitioner’s objections.
III. Standard of Review
In accordance with Local Rule 73.2, this case was referred to the Magistrate Judge to
provide a Report and Recommendation. A District Judge “may accept, reject, or modify the
recommended disposition” of a Magistrate Judge on a dispositive matter.77 The District Judge must
“determine de novo any part of the [Report and Recommendation] that has been properly objected
to.”78 A District Court’s review is limited to plain error of parts of the report which are not properly
objected to.79
IV. Law and Analysis

A. AEDPA Statute of Limitations
The AEDPA establishes a one-year statute of limitations for the filing of habeas corpus
applications, which shall run from the latest of:

74 Id. at 8.
75 Id.
76 Id. at 9.
77 Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1).
78 Fed. R. Civ. P. 72(b)(3).
79 See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc), superseded
by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending time to file objection from ten to fourteen days).
10
A. the date on which the judgment became final by the conclusion of direct review
or the expiration of the time for seeking such review;
B. the date on which the impediment to filing an application created by State action
in violation of the Constitution or laws of the United States is removed, if the
applicant was prevented from filing by such State actions;
C. the date on which the constitutional right asserted was initially recognized by
the Supreme Court, if the right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral review; or
D. the date on which the factual predicate of the claim or claims presented could
have been discovered through the exercise of due diligence.80

The Magistrate Judge applied the limitation period established by Subsection A. Petitioner
does not object to this determination or argue that any other subsection should apply. Therefore,
reviewing for plain error, and finding none, the Court adopts the Magistrate Judge’s finding that
Petitioner is not entitled to application of other subsections.
B. Timeliness Under Subsection A
The Magistrate Judge found that the conviction became final for AEDPA purposes in 1992
when he was resentenced.81 Where a petitioner’s conviction became final prior to enactment of the
AEDPA, the United States Fifth Circuit Court of Appeals has held that a grace period applies and
that the one-year statute of limitations began to run in such cases on the AEDPA’s effective date,
April 24, 1996.82 Therefore, Petitioner’s one year-period for seeking federal habeas corpus review
with respect to the prior convictions expired on April 24, 1997, unless that deadline was extended
through tolling.

80 28 U.S.C. § 2244(d)(1).
81 Rec. Doc. 24 at 5.
82 Flanagan v. Johnson, 154 F.3d 196, 200–02 (5th Cir. 1998); see also United States v. Flores, 135 F.3d
1000 (5th Cir. 1998) (applying one-year grace period to actions filed pursuant to 28 U.S.C. § 2255).
11
1. Statutory Tolling
The Magistrate Judge found that Petitioner is not entitled to statutory tolling.83 Petitioner
does not object to this determination.84 Accordingly, the Court reviews for plain error.
The AEDPA provides for statutory tolling throughout “[t]he time during which a properly

filed application for State post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending.”85 The Fifth Circuit “has adopted the ‘narrow’ view of the phrase
‘properly filed application’ in section 2244(d)(2), construing the phrase to require that the state
post-conviction motion or petition comply with rules governing the time and place of filing.”86
Petitioner had one state post-conviction relief application pending during the applicable
one-year period––the post-conviction application filed with the state trial court on October 7,
1996.87 The Louisiana Supreme Court denied relief on Petitioner’s 1996 application because it
found that the application was not timely filed under Louisiana law.88 Therefore, Petitioner is not
entitled to statutory tolling because he did not have a properly filed application pending before the

Louisiana state courts during the applicable federal one-year limitations period.

83 Rec. Doc. 24 at 6–7.
84 Rec. Doc. 25.
85 28 U.S.C. § 2255(d)(2).
86 Williams v. Cain, 217 F.3d 303, 307 n.4 (5th Cir. 2000).
87 State Rec., Vol. I of VI, Application for Post-Conviction Relief, Oct. 7, 1996.
88 State ex rel. Scott v. State, 707 So. 2d 51 (La. 1998) (citing Louisiana Code of Crim. Pro. art. 930.8; State
ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189).
12
2. Equitable Tolling
The Magistrate Judge found that Petitioner is not entitled to equitable tolling.89 Petitioner
objects to this determination.90 Petitioner avers that “[t]here is nothing in Louisiana Code of
Criminal Procedure Articles which governs Louisiana State Habeas Corpus statute that informs a
criminal defendant that he cannot use a State Habeas Corpus to challenge his or her custody when

that custody is illegal for some legal requisite.”91 Petitioner asserts that a state writ of habeas corpus
may be granted where the order for custody is deficient.92 Petitioner contends that custody was
deficient in his case because the indictment failed to give him fair notice of the offense charged.93
Therefore, Petitioner asserts that he is entitled to equitable tolling because he was not informed
that he could not file a state habeas corpus application, even though the trial court had jurisdiction
to rule on the violation Plaintiff alleges occurred.94 Accordingly, the Court reviews this issue de
novo.
The United States Supreme Court has held that, in rare circumstances where a petitioner’s
habeas corpus application would be otherwise untimely, the AEDPA’s statute of limitations may
be subject to equitable tolling.95 To establish entitlement to equitable tolling, a petitioner must

show that: “(1) he has been pursuing his rights diligently, and (2) some extraordinary circumstance

89 Rec. Doc. 24 at 7–8.
90 Rec. Doc. 25 at 2.
91 Id. at 2–3.
92 Id. at 3 (citing La. Code. Crim. Pro. art. 362).
93 Id.
94 Id. at 4.
95 Holland, 560 U.S. at 645.
13
stood in his way and prevented timely filing.”96 A petitioner bears the burden of establishing
entitlement to equitable tolling and “must demonstrate rare and exceptional circumstances
warranting application of the doctrine.”97
Petitioner argues that he is entitled to equitable tolling because he was not informed that
he could not file a state habeas corpus application.98 In Louisiana, the state courts have authority

to issue writs of habeas corpus.99 However, under Louisiana law, habeas corpus is generally not
the proper procedural device for petitioners who may file applications for post-conviction relief
under Louisiana Code of Criminal Procedure article 351.100 Essentially, in Louisiana “habeas
corpus deals with preconviction complaints concerning custody,” whereas “[a]n application for
post-conviction relief is a petition filed by a person in custody after sentence following conviction
for the commission of an offense seeking to have the conviction and sentence set aside.”101
Petitioner asserts that a state writ of habeas corpus may be granted pursuant to Louisiana
Code of Criminal Procedure article 362 where the order for custody is deficient.102 Petitioner
contends that custody was deficient in his case because the indictment failed to give him fair notice
of the offense charged.103 In State ex rel. Bartie v. State, the Louisiana First Circuit Court of Appeal

96 Id. at 649 (internal citations and quotation marks omitted).
97 Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002).
98 Rec. Doc. 25 at 2–3.
99 State ex rel. Bartie v. State, 501 So. 2d 260, 263 (La. App. 1 Cir. 1986) (citing La. Const. of 1974, art. I, §
21 and art. V, § 2; State v. Terry, 458 So. 2d 97 (La. 1984)).
100 Id.
101 Id. (internal citations omitted).
102 Rec. Doc. 25 at 3 (citing La. Code. Crim. Pro. art. 362).
103 Id.
14
considered a case in which a state writ of habeas corpus was applicable in a post-conviction
setting.104 There, the petitioner did not contest the validity of his conviction or sentence, but argued
that the initial lawful custody over him became unlawful when the Louisiana Department of
Corrections failed to give him proper credit for time served.105 Therefore, the Louisiana First
Circuit held that the case was not a post-conviction relief proceeding, but a post-conviction habeas

corpus claim.
In this case, Petitioner is challenging the validity of his conviction. Specifically, Petitioner
contends that his conviction is invalid because the indictment failed to give him fair notice of the
offense charged.106 Therefore, Petitioner’s claim appears to fall within the scope of state post-
conviction relief, not state habeas corpus. Moreover, even assuming that the state trial court should
have considered his claim as a state habeas corpus claim, Petitioner does not explain how this
prevented him from timely filing this federal petition for a writ of habeas corpus. Petitioner has
not shown that any extraordinary circumstance prevented him from filing his petition within the
limitations period. Accordingly, on de novo review, the Court finds that Petitioner is not entitled

to equitable tolling.

104 Bartie, 501 So. 2d at 263–64.
105 Id. at 264.
106 Rec. Doc. 1-1 at 4–6.
15
3. Actual Innocence
The Magistrate Judge found that Petitioner could not overcome the statute of limitations
by making a “convincing claim of actual innocence under McQuiggin v. Perkins.”107 Petitioner
does not object to this determination.108 Accordingly, the Court reviews for plain error.
In McQuiggin v. Perkins, the United States Supreme Court held that “actual innocence, if

proved, serves as a gateway through which a [habeas] petitioner may pass whether the impediment
is a procedural bar . . . or expiration of the statute of limitations.”109 The Court cautioned, however,
that this exception “applies to a severely confined category: cases in which new evidence shows
‘it is more likely than not that no reasonable juror would have convicted [the petitioner].’”110 The
Supreme Court has explained:
It is not the district court’s independent judgment as to whether reasonable doubt
exists that the standard addresses; rather the standard requires the district court to
make a probabilistic determination about what reasonable, properly instructed
jurors would do. Thus, a petitioner does not meet the threshold requirement unless
he persuades the district court that, in light of the new evidence, no juror, acting
reasonably, would have voted to find him guilty beyond a reasonable doubt.111

Petitioner does not argue that he is actually innocent of the crime for which he was
convicted, nor does he present any new evidence to establish his innocence. In fact, Petitioner
explicitly acknowledges that he is not pursuing a claim of actual innocence in this case.112
Therefore, the “actual innocence” exception is not applicable here.

107 Rec. Doc. 12 at 5 (citing McQuiggin, 569 U.S. at 383).
108 Rec. Doc. 13
109 McQuiggin, 569 U.S.at 386.
110 Id. at 395 (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)).
111 Schlup, 513 U.S. at 329.
112 Rec. Doc. 23 at 8.
16
C. Motion to Stay
Finally, Petitioner objects to the Magistrate Judge’s recommendation that the Court deny
the motion to stay.113 Accordingly, the Court reviews this issue de novo.
In the motion to stay, Petitioner requests that these federal proceedings be stayed while he
returns to state court to pursue an additional claim, which is not raised in the instant federal habeas

petition, challenging the validity of Louisiana laws allowing non-unanimous verdicts.114 Petitioner
has not previously raised such a claim before the state courts. “A fundamental prerequisite for
federal habeas relief under § 2254 is the exhaustion of all claims in state court prior to requesting
federal collateral relief.”115 The Fifth Circuit has recognized that “habeas corpus jurisprudence
consistently underscores the central importance of comity, of cooperation and of rapport between
the parallel systems of state and federal courts.”116 “These concerns animate [the court’s] strict
adherence to the doctrine of exhaustion—i.e., the notion that federal courts will not consider a
claim on habeas review if it has not been considered and finally rejected by the state courts.”117
“Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state

remedies [] thereby giving the State the opportunity to pass upon any correct alleged violations of
its prisoners’ federal rights.”118
A federal habeas corpus petition should typically be dismissed without prejudice if the

113 Rec. Doc. 25 at 4–11.
114 Rec. Doc. 10.
115 Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998) (citing Rose v. Lundy, 455 U.S. 509, 519–20
(1982)).
116 Gomez v. Dretke, 422 F.3d 264, 266 (5th Cir. 2005) (internal citations and quotation marks omitted).
117 Id.
118 Baldwin v. Reese, 541 U.S. 27, 32 (2004) (internal citations and quotation marks omitted).
17
petitioner has failed to exhaust all available state remedies.119 However, dismissal without
prejudice of a “mixed petition,” which raises both exhausted and unexhausted claims, may result
in a subsequent petition being barred by the one-year statute of limitations set forth in 28 U.S.C.
§ 2244(d).120 Because of this dilemma, federal courts are authorized to stay a habeas petition and
hold it in abeyance while a petitioner exhausts claims in state court.121 The United States Supreme

Court has noted that a “stay and abeyance should be available only in limited circumstances.”122
A district court should stay federal habeas proceedings to allow a petitioner to exhaust state
remedies only when the district court finds: “(1) the petitioner has good cause for failure to exhaust
his claim, (2) the claim is not plainly meritless, and (3) the petitioner has not engaged in intentional
delay.”123
This case is in a unique procedural posture. This federal habeas petition is untimely.
Nevertheless, Petitioner seeks to stay these untimely proceedings to allow him to return to state
court to pursue an unexhausted claim that is not currently even raised in this federal habeas
petition. Therefore, this case does not fall within the “limited circumstances” where the Supreme
Court has recognized that a stay is warranted.124

119 Pliler v. Ford, 542 U.S. 225, 230 (2004).
120 Duncan v. Walker, 533 U.S. 167, 181–82 (2001) (holding that 28 U.S.C. § 2244(d)’s one-year limitation
period is not tolled during the pendency of federal habeas proceedings).
121 Rhines v. Weber, 544 U.S. 269, 277 (2005).
122 Id.
123 Shillereff v. Quarterman, 304 F. App’x 310, 314 (5th Cir. 2008) (citing Rhines, 544 U.S. at 277–78).
124 See Rhines, 544 U.S. at 277.
18
The claim Petitioner wishes to pursue––a challenge to the validity of Louisiana laws
allowing non-unanimous jury verdicts––is unavailing under current Supreme Court precedent.125
However, the United States Supreme Court is currently considering a challenge to Louisiana’s
non-unanimous jury verdict law in Ramos v. Louisiana, No. 18-5924. If the Supreme Court
overrules its prior precedent, Petitioner may––after exhausting his remedies in state court––seek

authorization to file a second or successive habeas petition.126 Therefore, Petitioner has not shown
that the Court should stay these untimely proceedings to allow him to return to state court to
exhaust a claim challenging the validity of Louisiana’s non-unanimous jury verdict law.127
V. Conclusion
For the foregoing reasons, the Court finds that the petition is time-barred. Additionally, the
Court denies Petitioner’s motion to stay these untimely proceedings. Accordingly,
IT IS HEREBY ORDERED that Petitioner’s objections are OVERRULED.
IT IS FURTHER ORDERED that the Court ADOPTS the Magistrate Judge’s
recommendation and Petitioner Frank Scott’s petition for issuance of a writ of habeas corpus,

pursuant to 28 U.S.C. § 2254 is DISMISSED WITH PREJUDICE.

125 Apodaca v. Oregon, 406 U.S. 404 (1972); Johnson v. Louisiana, 406 U.S. 356 (1972).
126 See 28 U.S.C. § 2244(b). Pursuant to Section 2244(b)(2)(A), a claim presented in a second or successive
habeas petition must be dismissed unless “the applicant shows that the claim relies on a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.”
127 If the Supreme Court recognizes a new constitutional right made retroactively applicable to a case on
collateral review, Petitioner would have one year from the date the right is newly recognized to file a federal habeas
petition. 28 U.S.C. § 2244(d)(1)(C).
19
IT IS FURTHER ORDERED that Petitioner’s “Motion to Stay and Hold in Abeyance
Pending Application for Writ of Habeas Corpus”!?® is DENIED.
NEW ORLEANS, LOUISIANA, this 29thday of March, 2020.

NANNETTE J ale BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT

128 Rec. Doc. 10.
20

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10185383. Public record. Not legal advice.