Demond Cook v. Burl Cain, Warden ( 2016 )

Case: 14-30425 Document: 00513447327 Page: 1 Date Filed: 03/31/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-30425
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
March 31, 2016
DEMOND COOK,
Lyle W. Cayce
Clerk
Petitioner-Appellant
v.
BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,
Respondent-Appellee
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:14-CV-48
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
Demond Cook, Louisiana prisoner # 367617, appeals the district court’s
dismissal without prejudice of his 28 U.S.C. § 2254 petition for failure to
exhaust state court remedies. The district court abused its discretion in
dismissing the petition because Cook did not concede a failure to exhaust all
his claims and a lack of exhaustion of all claims was not apparent on the face
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 14-30425 Document: 00513447327 Page: 2 Date Filed: 03/31/2016
No. 14-30425
of his § 2254 petition. See Coleman v. Sweetin, 745 F.3d 756, 763 (5th Cir.
2014); Horsley v. Johnson, 197 F.3d 134, 136 (5th Cir. 1999).
Cook did concede in the district court that he failed to exhaust three
claims: that his conviction was secured through the use of evidence obtained
in violation of the Fourth Amendment and the Louisiana constitution, that his
conviction and sentence were obtained in violation of the Sixth Amendment,
and that his conviction derived from a stop which violated his rights under
Terry v. Ohio, 392 U.S. 1 (1968). He therefore waived any challenge as to these
claims. See Palacios v. Stephens, 723 F.3d 600, 604 n.4 (5th Cir. 2013).
Additionally, we do not consider the two claims which are beyond the
scope of the COA grant and for which Cook has not sought a COA, namely, that
the trial court erred in permitting him to represent himself and that the trial
court improperly accepted his guilty plea to the habitual offender bill of
information. See United States v. Kimler, 150 F.3d 429, 430-31 (5th Cir. 1998).
The state concedes that Cook exhausted his claims that the state
withheld evidence favorable to the defense; that an impermissibly suggestive
identification process violated Cook’s due process rights; that the state engaged
in misconduct by presenting false testimony by the detective; that there was
insufficient evidence to support his conviction of robbing Brent Beling; and that
the state’s interference with the defense’s review of a dashboard video camera
recording violated his due process rights. We therefore VACATE the judgment
and REMAND this matter for consideration of the merits of these claims and
for consideration whether Cook exhausted his claim that the state engaged in
misconduct by presenting false testimony from witnesses Beling and Mayo.
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