FRANKLIN v. BERRY

Filing 9

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS without prejudice Franklin's 1 Petition, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY Franklin leave to appeal in forma pauperis and a Certificate of Appealability. Any party seeking to object to this Report and Recommendation is ordered to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 4/10/2018). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 3/27/2018. (csr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION

IMARE’ FRANKLIN,
Petitioner,

CIVIL ACTION NO.: 2:17-cv-107

v.
WARDEN WALTER BERRY,
Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Imare’ Franklin (“Franklin”), who is currently housed at Jimmy Autry State
Prison in Pelham, Georgia, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254. 1 (Doc. 1.) Franklin also filed a Motion to Proceed in Forma Pauperis. (Doc. 2.) For
the reasons which follow, the Court DENIES Franklin’s Motion to Proceed in Forma Pauperis.
For these same reasons, I RECOMMEND that the Court DISMISS without prejudice
Franklin’s Petition, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate
judgment of dismissal, and DENY Franklin leave to appeal in forma pauperis and a Certificate
of Appealability.
BACKGROUND
Franklin filed this Section 2254 Petition on August 24, 2017, in the Middle District of
Georgia, and that court transferred Franklin’s Petition to this District on September 13, 2017.
(Docs. 1, 4.)

In his Petition, Franklin challenges his conviction resulting from revocation

proceedings occurring in Glynn County, Georgia, on March 31, 2017. (Doc. 1, p. 1.) Franklin
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The Court DIRECTS the Clerk of Court to correct Franklin’s address upon the docket and record of
this case to reflect his correct place of confinement and to re-mail Document Number 6 to Franklin.

asserts his right to due process was violated, he was lied to about a treatment center in
Dawsonville, Georgia, he received ineffective assistance of counsel, his probation officer lied
under oath, and officers with the Brunswick Police Department violated his rights under
Miranda. (Id. at pp. 5–10.) 2
DISCUSSION
Franklin brings this action under 28 U.S.C. § 2254. Pursuant to Rule 4 of the Rules
governing Section 2254 petitions:
The clerk must promptly forward the petition to a judge . . . , and the judge must
promptly examine [the petition]. If it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief in the district court, the
judge must dismiss the petition and direct the clerk to notify the petitioner.
The requisite review of Franklin’s Petition implicates a doctrine of law which requires the
dismissal of his Petition.
I.

Dismissal for Failure to Exhaust State Court Remedies
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted unless it appears
that–
(A) the applicant has exhausted the remedies available in the courts of the
State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the
rights of the applicant.

28 U.S.C. § 2254(b)(1). “An applicant shall not be deemed to have exhausted the remedies
available in the courts of the State, within the meaning of this section, if he has the right under
the law of the State to raise, by any available procedure, the question presented.” 28 U.S.C.
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Attached to Franklin’s Petition is a separate application for writ of habeas corpus in which Franklin
attacks a separate, older Glynn County conviction. (Doc. 1-1.) Indeed, this attachment was filed in this
Court as a separate Section 2254 action, Franklin v. Warden Walter Berry, Civil Action No.: 2:17-cv-110,
and need not be addressed through this Petition.
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§ 2254(c). The United States Supreme Court has held that “a state prisoner must present his
claims to a state supreme court in a petition for discretionary review in order to satisfy the
exhaustion requirement” when discretionary review “is part of the ordinary appellate review
process in the State.” O’Sullivan v. Boerckel, 526 U.S. 838, 839–40, 847 (1999). Therefore, in
order to exhaust state remedies, “state prisoners must give the state courts one full opportunity to
resolve any constitutional issues by invoking one complete round of the State’s established
appellate review process.” Id. at 845. This exhaustion requirement also extends to a state’s
collateral review process. Gary v. Ga. Diagnostic Prison, 686 F.3d 1261, 1274 (11th Cir. 2012);
Pope v. Rich, 358 F.3d 852, 854 (11th Cir. 2004). Failure to exhaust all claims or to demonstrate
that exhaustion is futile prior to bringing a section 2254 petition requires that the petition be
dismissed. See Nelson v. Schofeld, 371 F.3d 768, 771 (11th Cir. 2004), superseded by rule on
other grounds as recognized in Hills v. Washington, 441 F.3d 1374 (11th Cir. 2006).
While a state prisoner’s failure to exhaust his remedies in state court ordinarily will result
in the automatic dismissal of his federal habeas petition, this is not always true. See 28 U.S.C.
§§ 2254(b) & (c). First, a court may deny a petition on the merits without requiring exhaustion
“if it is perfectly clear that the applicant does not raise a colorable federal claim.” Granberry v.
Greer, 481 U.S. 129, 135 (1987); 28 U.S.C. § 2254(b)(2). The State may also explicitly waive
the exhaustion requirement.

Hills, 441 F.3d at 1376.

Finally, a court should not require

exhaustion if it has been shown that “there is an absence of available State corrective process,”
or that “circumstances exist that render such process ineffective to protect the rights of the
applicant.” 28 U.S.C. § 2254(b)(1)(B). The exhaustion requirement should not be applied “if
the state court has unreasonably or without explanation failed to address petitions for relief.”
Hollis v. Davis, 941 F.2d 1471, 1475 (11th Cir. 1991).

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Franklin has not shown that this Court should entertain his federal petition. Respondent
has not waived the exhaustion requirement. In addition, Franklin fails to present evidence that
there is no available corrective process in the State of Georgia. In fact, Franklin admits that he
filed a state habeas corpus petition and repeatedly states he was still awaiting a decision in that
proceeding at the time he executed his Petition on August 18, 2017. (Doc. 1, pp. 5, 6, 10, 12.)
For the reasons set forth above, Franklin failed to exhaust his available state remedies prior to
filing this Petition, and the Court should DISMISS without prejudice his Petition.
II.

Leave to Appeal in Forma Pauperis and Certificate of Appealability
The Court should also deny Franklin leave to appeal in forma pauperis and a Certificate

of Appealability. Though Franklin has, of course, not yet filed a notice of appeal, it would be
appropriate to address these issues in the Court’s order of dismissal. Pursuant to Rule 11 of the
Rules Governing Section 2254 Cases, “the district court must issue or deny a certificate of
appealability when it issues a final order adverse to the applicant.” (emphasis supplied); see also
Fed. R. App. P. 24(a)(3) (trial court may certify that appeal of party proceeding in forma
pauperis is not taken in good faith “before or after the notice of appeal is filed”).
An appeal cannot be taken in forma pauperis if the trial court certifies, either before or
after the notice of appeal is filed, that the appeal is not taken in good faith.

28 U.S.C.

§ 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this context must be judged by an objective
standard. Busch v. County of Volusia, 189 F.R.D. 687, 691 (M.D. Fla. 1999). A party does not
proceed in good faith when he seeks to advance a frivolous claim or argument. See Coppedge v.
United States, 369 U.S. 438, 445 (1962). A claim or argument is frivolous when it appears the
factual allegations are clearly baseless or the legal theories are indisputably meritless. Neitzke v.
Williams, 490 U.S. 319, 327 (1989); Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993).

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Stated another way, an in forma pauperis action is frivolous and, thus, not brought in good faith,
if it is “without arguable merit either in law or fact.” Napier v. Preslicka, 314 F.3d 528, 531
(11th Cir. 2002); see also Brown v. United States, Nos. 407CV085, 403CR001, 2009 WL
307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
Additionally, under 28 U.S.C. § 2253(c)(1), an appeal cannot be taken from a final order
in a habeas proceeding unless a Certificate of Appealability is issued.

A Certificate of

Appealability may issue only if the applicant makes a substantial showing of a denial of a
constitutional right. The decision to issue a Certificate of Appealability requires “an overview of
the claims in the habeas petition and a general assessment of their merits.” Miller-El v. Cockrell,
537 U.S. 322, 336 (2003). In order to obtain a Certificate of Appealability, a petitioner must
show “that jurists of reason could disagree with the district court’s resolution of his constitutional
claims or that jurists could conclude the issues presented are adequate to deserve encouragement
to proceed further.” Id. “Where a plain procedural bar is present and the district court is correct
to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district
court erred in dismissing the petition or that the petitioner should be allowed to proceed further.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Franklin v. Hightower, 215 F.3d 1196,
1199 (11th Cir. 2000). “This threshold inquiry does not require full consideration of the factual
or legal bases adduced in support of the claims.” Miller-El, 537 U.S. at 336.
Based on the above analysis of Franklin’s Petition and applying the Certificate of
Appealability standards set forth above, there are no discernable issues worthy of a certificate of
appeal; therefore, the Court should DENY the issuance of a Certificate of Appealability. If the
Court adopts this recommendation and denies Franklin a Certificate of Appealability, Franklin is
advised that he “may not appeal the denial but may seek a certificate from the court of appeals

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under Federal Rule of Appellate Procedure 22.” Rule 11(a), Rules Governing Section 2254
Cases in the United States District Courts. Furthermore, as there are no non-frivolous issues to
raise on appeal, an appeal would not be taken in good faith. Thus, the Court likewise should
DENY Franklin in forma pauperis status on appeal.
CONCLUSION
Based on the foregoing, I RECOMMEND that the Court DISMISS without prejudice
Franklin’s Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254, (doc. 1), and
DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of
dismissal.

I further RECOMMEND that the Court DENY Franklin a Certificate of

Appealability and DENY Franklin leave to proceed in forma pauperis on appeal. The Court
DENIES Franklin’s Motion to Proceed in Forma Pauperis, (doc. 2), in this Court.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the pleading must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
Upon receipt of objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not

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meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge. The Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon Franklin.
SO ORDERED and REPORTED and RECOMMENDED, this 27th day of March,
2018.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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