Franklin v. Berry

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER SOUTHERN DISTRICT OF GEORGIA

         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 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. § 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 ...