Franklin v. Davis

Filing 31

ORDER DENYING 28 MOTION Writ of Mandamus; STRIKING Franklin's second amended petition 30 (Signed by Judge George C Hanks, Jr) Parties notified.(dperez, 3)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
LIONEL FRANKLIN,
TDCJ #01943237,
Petitioner,
VS.
LORI DAVIS,
Respondent.

July 18, 2018
David J. Bradley, Clerk

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§ CIVIL ACTION NO. 3:17-CV-0009
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ORDER

Petitioner Lionel Franklin, Jr., an inmate in the Texas Department of Criminal
Justice–Correctional Institutions Division (“TDCJ”), filed this case seeking a writ of
habeas corpus for relief from a state court drug conviction. On January 24, 2018, after
Respondent filed an Answer, the Court stayed and administratively closed the case to
allow Petitioner to pursue relief in Texas state courts on his unexhausted claims (Dkt.
21). On July 10, 2018, Petitioner filed a second amended petition (Dkt. 30).
The procedural history of this case is set forth in the Court’s previous
Memorandum Opinion and Order, dated May 14, 2018 (Dkt. 24). On March 26, 2018,
after the Court stayed these habeas proceedings to allow Franklin to exhaust his state
habeas remedies, Franklin filed a habeas application in state court. However, the Texas
Court of Criminal Appeals dismissed the application on April 4, 2018, because Franklin
had not complied with Texas Rule of Appellate Procedure 73.1. In this Court’s May 14
opinion, the Court instructed Franklin to file a proper state habeas application within
forty-five days, admonishing him to comply with all requirements of Texas Rule of
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Appellate Procedure 73.1, as well as Section 132.001 of the Texas Civil Practice and
Remedies Code. The Court further instructed that, after complying, Franklin could file a
motion to re-open this case (Dkt. 24, at 5-6).

Franklin’s current filings do not indicate that he has complied with the Court’s
instructions, and publicly available records do not reflect that Franklin has re-filed his
state application since the Court’s May 14 order. Nevertheless, Franklin recently has
filed three documents with the Court. First, he filed an “application for assigned writ of
complex administrative order” (Dkt. 28), requesting relief that this Court previously has
granted. Second, Franklin filed a letter to the Court (Dkt. 29), which appears to state his
belief that he does not need to comply with the Court’s instructions because he had
complied previously, before the Court’s Mary 14 order was entered:
[Y]ou told me to re-file everything again which I did file[.] That’s when
they came up with Rule 73.1. I sent 3 indictment [sic] and a copy on all 7
cards they sent to me[.] A copy of everything they sent to me is in that writ
folder with the 2254. Sir just make sure you got what I sent that all [sic] sir
[be]cause they have been playing games with people[’s] mail.
(Dkt. 29). Third, without filing a motion to re-open these proceedings, Franklin filed a
second amended petition (Dkt. 30). The proposed amended petition continues to seek
relief from his state court conviction and demonstrates no attempt by Franklin to re-file
his state habeas application in compliance in a form that complies with Rule 73.1.
Franklin’s filings provide no basis to re-open these habeas proceedings because
they do not demonstrate that he has filed a state habeas application that complies with
Rule 73.1. Petitioner again is INSTRUCTED that, although he previously has filed his
state habeas application, he must re-file the application materials with the state court. His
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re-filed application must comply with Rule 73.1.

The Court repeats its previous

instruction to Franklin that Rule 73.1(g)(2) requires that an application filed by a TDCJ
inmate “must be verified” by “an unsworn declaration in substantially the form required
in Civil Practices and Remedies Code chapter 132.” TEX. R. APP. P. 73.1(g)(2). This
unsworn declaration must include a “jurat” in “substantially the following form”:
“My name is ___________________________ (First) (Middle)
(Last), my date of birth is _________________, and my inmate
identifying number, if any, is ________________. I am presently
incarcerated in _____________ (Corrections unit name) in
__________________ (City) (County) (State) (Zip Code).
I declare under penalty of perjury that the foregoing is true and
correct.
Executed on the _____ day of ________ (Month) (Year)
____________________
Declarant”
See Dkt. 24, at 4 n. 2 (citing TEX. R. APP. P. 73.1(a); TEX. CIV. PRAC. & REM. CODE
§ 132.001(e)).
Franklin must re-file his state habeas application within forty-five days of this
Order. If Petitioner does not comply with this Court’s instructions, the Court will re-open
his case and adjudicate the claims in his federal petition. In so doing, the Court will
consider the defenses raised by Respondent in her Answer (Dkt. 13), which include
Respondent’s argument that Franklin has failed to exhaust the remedies available to him
in state habeas proceedings.
For the foregoing reasons the Court ORDERS as follows:

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1.

Petitioner’s application for assigned writ of complex administrative order
(Dkt. 28) is DENIED.

2.

Franklin’s second amended petition (Dkt. 30) is STRICKEN from the
record.

3.

Because Franklin’s recent filings provide no basis to re-open these habeas
proceedings, the stay imposed by the Court on January 24, 2018, remains in
effect.

4.

Franklin must file a proper state habeas application within forty-five days
of the date of this order. Franklin is admonished to comply with all
requirements of Texas Rule of Appellate Procedure 73.1, as well as Section
132.001 of the Texas Civil Practice and Remedies Code, when re-filing his
state application. Within thirty days of the TCCA’s decision on his
application, Franklin must file a motion to re-open this federal habeas
proceeding.

5.

If Petitioner does not comply with these instructions, the Court will re-open
his case and adjudicate the claims in his federal petition, taking into
consideration Respondent’s argument that some of Franklin’s claims are
unexhausted and procedurally defaulted.

The Clerk will provide a copy of this order to the parties.
SIGNED at Galveston, Texas, this 18th day of July, 2018.
___________________________________
George C. Hanks Jr.
United States District Judge

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