Walter Jevans v. Burl Cain, Warden, Louisiana State Penitentiary

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-30861
WALTER J EVANS
Petitioner - Appellant
v.
BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY
Respondent - Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
Before KING, HIGGINBOTHAM, and CLEMENT, Circuit Judges.
PER CURIAM:
Petitioner-Appellant Walter J. Evans (“Evans”) is a Louisiana State
Penitentiary inmate who seeks to reverse the district court’s denial of his habeas
corpus petition and requests immediate release from incarceration. For the
reasons set forth below, we deny relief and affirm the district court.
FACTS AND PROCEEDINGS
Evans was indicted by a Louisiana grand jury on two counts of aggravated
rape, one count of attempted aggravated rape, and one count of armed robbery.
He was found guilty on all charges. On August 9, 2002, the trial court signed an
ex parte order granting Evans a new trial but also orally denied his motion for
a new trial. The docket notes that the motion was denied and granted on the
United States Court of Appeals
Fifth Circuit
F I L E D
August 4, 2009
Charles R. Fulbruge III
Clerk

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same day without indicating which came first. Evans stipulates, and the State
does not dispute, that the order was faxed to the trial court which signed it and
returned it within minutes. Later that day, at the sentencing hearing and
apparently unaware that the motion had already been signed, Evans’s counsel
brought the motion to the court’s attention. The trial court denied the motion.
On August 30, 2002, at a second sentencing hearing, the trial court reiterated
its denial of the motion for a new trial. The parties agree that the trial court
intended to deny Evans’s motion for a new trial but disagree with respect to
whether the trial court was merely remedying a clerical error in doing so or re-
evaluating a prior determination. Evans was sentenced to life imprisonment for
the aggravated rape counts, sixty-five years at hard labor for the attempted
aggravated rape count, and sixty years at hard labor for the aggravated robbery
count, all to be served concurrently.
A series of state court postconviction and habeas corpus petitions followed.
All were denied. Evans then filed a petition for habeas relief in federal court,
raising four grounds of error. The district court denied the petition. Evans
sought a certificate of appealability (“COA”) from this court which was granted
on the sole issue of whether the Louisiana trial court lacked jurisdiction to
sentence him after it had granted his motion for a new trial. Shortly thereafter,
Evans filed a “Motion For Order Staying Pending Appeal.”
STANDARD OF REVIEW
“In a habeas corpus appeal, we review the district court’s findings of fact
for clear error and review its conclusions of law de novo, applying the same
standard of review to the state court’s decision as the district court.” Martinez
v. Johnson, 255 F.3d 229, 237 (5th Cir. 2001) (quoting Thompson v. Cain, 161
F.3d 802, 805 (5th Cir. 1998)). Under the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), habeas relief challenging a judgment of a state
court may only be granted if “the adjudication . . . (1) resulted in a decision that

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was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court . . .; or (2) resulted in a
decision that was based on an unreasonable determination of the facts in light
of the evidence presented.” 28 U.S.C. § 2254(d).
DISCUSSION
I. Motion to Stay
In his Motion to Stay, Evans urges that we stay the determination of his
remaining claim while he seeks re-review of his original claims in the Louisiana
Fifth Circuit Court of Appeal according to the Louisiana Supreme Court’s
opinion in State v. Cordero, 993 So. 2d 203 (La. 2008). We deny his motion.
In Cordero, the Louisiana Supreme Court remedied a deficiency in the
Louisiana Fifth Circuit’s process of reviewing pro se, postconviction applications
for supervisory writs, a process that fell short of the state constitution’s
requirements. 993 So. 2d at 204–05. Specifically, from February 8, 1994, to May
21, 2007, the Louisiana Fifth Circuit assigned a single judge to review all pro se
writ applications while the state’s constitution required that the court of appeal
“sit in panels of at least three judges.” LA. CONST. art. V, § 8(A); see also
Johnson v. Jefferson, No. 09-2516, 2009 WL 1808718, at *1 (E.D. La. June 19,
2009) (detailing how this revelation came to light). The Louisiana Supreme
Court resolved to remand all successive writ applications alleging this deficiency
during the relevant period to the Louisiana Fifth Circuit for a properly
conducted re-review. See Cordero, 993 So. 2d at 204–05; see also State ex rel.
Cushinello v. State, 7 So. 3d 1176 (La. 2009) (remanding for re-review a
successive writ application filed after Cordero but making the same arguments).
A brief glance at our docket reveals many petitioners whose successive state
writs were remanded for re-review by the Louisiana Supreme Court in Cordero.
Evans intends to seek this re-review and urges that we stay his federal habeas
proceedings pending its outcome.

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Evans’s case is unlike that in Gomez v. Dretke, where this court granted a stay to1
allow Texas state courts to address whether a prisoner who was a Mexican citizen was entitled
to habeas relief based on a Presidential memorandum addressing the treaty-based right to
assistance from the Mexican consulate. See 422 F.3d 265, 265–67 (5th Cir. 2005). There,
Texas courts had not yet ruled on the implications of the Presidential memorandum, and the
issue required difficult constitutional determinations, which would be rendered null if the
state court granted relief. See id. at 267–68. Further, in order for the state court to review
the petitioner’s state successive writ, our granting a stay was necessary due to Texas’s “dual
forum” rule. See id. at 265–66 & n.4.
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Our denial of Evans’s request is guided by Supreme Court precedent. In
Rhines v. Weber, the Supreme Court held that federal district courts retain their
discretion to stay federal habeas proceedings but warned that too frequently
staying federal habeas proceedings “has the potential to undermine [AEDPA’s]
twin purposes” of comity and finality. 544 U.S. 269, 277 (2005). There, the
Court indicated that a stay is not justified where it will only result in further
delay. See id. at 277–78 (stating that “petitioners could frustrate AEDPA’s goal
of finality by dragging out indefinitely their federal habeas review”). A stay may
be justified, however, when a petitioner “run[s] the risk of forever losing [his]
opportunity for any federal review of [his] unexhausted claims.” Id. at 275.
Thus, the Eighth Circuit erred in holding that granting a motion to stay is
always impermissible, and the Court remanded for the determination of whether
the district court abused its discretion in staying the proceedings. Id. at 279.
Here, the circumstances of Evans’s case do not justify a stay. First, Evans1
does not argue that he will be barred from obtaining re-review in the state court
by our continued review and disposition of his habeas case. Second, no party
here argues that Evans’s remaining claim is unexhausted. In fact, the Louisiana
Supreme Court has reviewed that claim and denied his application for a
supervisory writ. See State ex rel. Evans v. State, 904 So. 2d 684 (La. 2005); cf.
Cordero, 993 So. 2d at 214 (Kimball, J., concurring) (“Many of these cases have,
in fact, . . . been reviewed on post conviction by the seven justices of this court
in earlier proceedings.”). Third, it is apparent that all Evans stands to gain from

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Our situation is unlike that of a district court facing a Cordero-based motion to stay2
filed at the very outset of a federal habeas proceeding. A district court must carefully assess
whether the circumstances of each case justify a stay, see, e.g., Rhines, 544 U.S. at 277 (“[A]
district court would abuse its discretion if it were to grant [a petitioner] a stay when his
unexhausted claims are plainly meritless.”), and we do not address the boundaries of the
district court’s discretion to grant a stay other than to point out that such discretion is limited
by the purposes of AEDPA, see id. at 276.
Under the Louisiana Code of Criminal Procedure, “[w]hen a defendant obtains a new3
trial . . . , the state must commence the second trial within one year from the date the new
trial is granted, . . . or within the period established by Article 578, whichever is longer.” LA.
CODE CRIM . PROC. art. 582. Article 578 provides that “no trial shall be commenced nor any
bail obligation be enforceable . . . in capital cases after three years from the date of institution
of the prosecution.” LA. CODE CRIM . PROC. art. 578. Evans was indicted in 2001 and the
period of re-trial would have elapsed three years later, in 2004.
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a stay is further delay of his already three-year-long federal habeas proceedings.
We are at the final stage of those proceedings, and the issues for review have
been pared down to the single, uncomplicated question of whether the state trial
court had jurisdiction to sentence Evans. In light of the circumstances of2
Evans’s case and in consideration of AEDPA’s purposes, Evans’s motion to stay
is denied.
II. Jurisdictional Challenge
Evans argues that the trial court exceeded its jurisdiction by sentencing
him because, from the time the court signed the order granting a new trial, it
was divested of authority under the Louisiana Code of Criminal Procedure. In
other words, Evans asserts that the signed order should prevail over the
subsequent verbal order denying him a new trial. Evans maintains that because
his Fifth, Thirteenth, and Fourteenth Amendment rights were consequently
violated, he is entitled to a writ of habeas corpus and immediate release.3
The district court determined that Evans’s jurisdictional complaint was
one of state procedure and did not entitle him to federal habeas relief.
Accordingly, it deferred to the state courts’ handling of the matter—which had
previously denied Evans’s request for relief. Finding no unreasonable

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determination of the facts in light of the evidence presented at trial and nothing
contrary to or involving an unreasonable application of federal law, the district
court further noted that the trial court’s error was purely ministerial and did not
affect the fundamental fairness of Evans’s trial.
This court has consistently demonstrated deference to state court
determinations of state law, including jurisdictional determinations based on
state law. This deference is illustrated in our decisions involving challenges to
the sufficiency of a state indictment. There, we have emphasized that “[i]t is
settled in this Circuit that the sufficiency of a state indictment is not a matter
for federal habeas corpus relief unless it can be shown that the indictment is so
defective that the convicting court had no jurisdiction.” Branch v. Estelle, 631
F.2d 1229, 1233 (5th Cir. Unit A 1980) (emphasis added); see also McKay v.
Collins, 12 F.3d 66, 68 (5th Cir. 1994) (same). In this regard, “[a]n absence of
jurisdiction in the convicting court is . . . a basis for federal habeas corpus relief
cognizable under the due process clause.” Lowery v. Estelle, 696 F.2d 333, 337
(5th Cir. 1983). But “[w]here the state courts have held that an indictment is
sufficient under state law, a federal court need not address that issue.” McKay,
12 F.3d at 68. In other words, “‘[w]hen it appears . . . that the sufficiency of the
indictment was squarely presented to the highest court of the state on appeal,
and that court held that the trial court had jurisdiction over the case,’”
Alexander v. McCotter, 775 F.2d 595, 598 (5th Cir. 1985) (alterations in original)
(quoting Liner v. Phelps, 731 F.2d 1201, 1203 (5th Cir. 1984)), then the question
“as to whether a state trial court was deprived of jurisdiction . . . is a question
foreclosed to a federal habeas court,” Liner, 731 F.2d at 1203. An issue may be
squarely presented to and decided by the state’s highest court when the
petitioner presents the argument in his application for postconviction relief and
the state’s highest court denies that application without written order. See
Alexander, 775 F.2d at 599 (“By refusing to grant the appellant relief . . . the

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Texas Court of Criminal Appeals has necessarily, though not expressly, held that
the Texas courts have jurisdiction . . . .”); see, e.g., McKay, 12 F.3d at 68 (holding
that an issue was squarely presented to the state’s highest court when the
petitioner presented the argument in a state application for postconviction relief
and the Texas Court of Criminal Appeals denied the application without written
order); see also Garrett v. McCotter, 807 F.2d 482, 484 (5th Cir. 1987)
(determining that an issue has not been sufficiently presented to the state’s
highest court when that court dismissed the application for postconviction relief
as improvidently set).
Here, the question of whether the state trial court lacked jurisdiction to
sentence Evans was squarely presented to the Louisiana Supreme Court in
Evans’s application for a supervisory writ. And, unlike the application in
Garrett, the Louisiana Supreme Court did not deny the application as
improvidently set; instead, the state’s highest court “necessarily, though not
expressly” held that the state trial court had jurisdiction to sentence Evans.
Because this issue was presented to and denied by the Louisiana Supreme Court
and because Evans’s current argument relies solely on the contention that the
state courts misapplied that state law, our review of this claim is therefore
precluded.
Even were our review not precluded, we would still be required “to accord
due deference to the state courts’ interpretations of its own law.” See McKay, 12
F.3d at 69. The federal district court did not err in this regard. It expressly
deferred to the state court’s postconviction decision that the state trial court had
denied Evans’s motion and therefore had jurisdiction to sentence Evans. The
record shows that the state trial court adamantly denied Evans’s motion in both
an August 9, 2002 sentencing hearing and an August 30, 2002 sentencing
hearing. Further, Evans initially believed the motion to be denied because he
challenged that denial on direct appeal. See State v. Williams, 817 So. 2d 40, 47

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(La. 2002) (“Even the defendant knew the trial court intended to deny the motion
for new trial as is evident from the defendant’s appeal of his conviction after the
new trial motion was inadvertently signed.”). Evans attempts to distinguish this
case from Williams by pointing to immaterial factual differences, but these
differences are insufficient to overcome the deference we pay to the state court’s
conclusion. Thus, we cannot say that the state postconviction court made an
unreasonable determination of the facts in light of the entire record, let alone
that it unreasonably applied clearly established federal law (given that all of
Evans’s arguments are based on state law). Accordingly, Evans is not entitled
to federal habeas relief.
CONCLUSION
The Motion to Stay is DENIED. The district court’s judgment is
AFFIRMED.

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