Case: 10-30442     Document: 00511626477         Page: 1     Date Filed: 10/07/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          October 7, 2011
                                     No. 10-30442
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JOHNELL DEMPSEY,

                                                  Petitioner-Appellant

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:07-CV-1042


Before DAVIS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
        Johnell Dempsey, Louisiana prisoner # 458759, was convicted of four
counts of armed robbery and sentenced as a second felony offender to four
consecutive 99-year sentences without benefit of parole, probation, or suspension
of sentence. State v. Dempsey, 

, 1038 (La. Ct. App. 2003). The
district court dismissed his 28 U.S.C. § 2254 petition as untimely. This court
granted Dempsey a certificate of appealability (COA) on the following issues:
(1) whether the Louisiana Supreme Court’s implicit grant of Dempsey’s request

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                    No. 10-30442

for leave to file an out-of-time writ application and its apparent denial of the writ
on the merits affects either the finality of Dempsey’s conviction or
warrants equitable tolling, and (2) whether the district court was correct in
determining that Dempsey’s § 2254 petition was untimely as to his fifth claim--
the prosecutor’s use of perjured testimony--where the district court did not
address Dempsey’s argument that he did not discover the factual predicate for
that claim until he received the D.A.’s file in July 2004 and discovered police
reports that showed that the prosecutor allowed perjured testimony. Dempsey
v. Cain, No. 10-30442, 2-3 (5th Cir. Feb. 21, 2011) (unpublished one-judge order).
Our review is limited to issues for which a COA has been granted. See 28 U.S.C.
§ 2253(c); United States v. Kimler, 

, 430 (5th Cir. 1998); Lackey v.
Johnson, 

, 151-52 (5th Cir. 1997).
      In his appellate brief, Dempsey does not address either of these issues.
Although we liberally construe pro se briefs, the pro se litigant must still brief
arguments in order to preserve them. See Yohey v. Collins, 

, 224-25
(5th Cir. 1993); see also FED. R. APP. P. 28(a). Accordingly, Dempsey could not
rely on arguments made in support of his motion for a COA. Moreover, in its
briefing notice, the Clerk’s office informed Dempsey that his appellate brief
should include, inter alia, a statement of the legal issues that he believed the
court should decide and an argument explaining why the court should decide for
him. Because Dempsey has failed to brief the issues for which COA was
granted, he has abandoned the only issues before us on appeal.
      After he filed his brief, Dempsey filed a document in which he asked this
court to take judicial notice of a specific rule of evidence, certain decisions of this
court, and a decision of the Louisiana Supreme Court’s decision, and argued that
“[b]ecause the Louisiana Supreme Court does not consistently apply Rule X, Sec.
5(A), it did not prevent Petitioner’s application from being considered toward
determining the date his conviction became final, or from statutory tolling.
Notice of Judicial Matters, 1-2. There is no provision in the Federal Rules of

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                                  No. 10-30442

Appellate Procedure for a filing such as Dempsey’s. It does not qualify as a Rule
28(j) letter because the cases cited therein did not come to Dempsey’s attention
after he filed his brief. See FED. R. APP. P. 28(j). He had filed the exact “notice
of judicial matters” in this court in October 2010 in relation to his COA
application.
       Dempsey moves for leave to file an out-of-time reply brief, asserting that
he was transferred from Angola to another facility under an emergency order of
Governor Jindal, and that he did not have a chance to file his reply brief timely.
However, Dempsey does not state either the date he was transferred or the date
of the emergency order. There is no indication that the Governor or anyone else
ordered the evacuation of Angola on or before the date Dempsey’s reply brief was
due.
       Accordingly, the judgment of the district court is AFFIRMED, and
Dempsey’s motion for leave to file an out-of-time reply brief is DENIED.




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