United States District Court, S.D. Georgia, Brunswick Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER SOUTHERN DISTRICT OF GEORGIA
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. (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.
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.)
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.
requisite review of Franklin's Petition implicates a
doctrine of law which requires the dismissal of his Petition.
Dismissal for Failure to Exhaust State Court
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
(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 ...