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Franklin v. Sherman

United States District Court, E.D. California

June 21, 2019

LLOYD JEREMY FRANKLIN, Petitioner,
v.
STUART SHERMAN, Warden, Respondent.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE.

         Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner claims newly discovered evidence shows that he is innocent, and the district attorney withheld exculpatory evidence. Presently before the court is the petition for screening (ECF No. 2), petitioner's motions to proceed in forma pauperis (ECF No. 8) and for the appointment of counsel (ECF No. 7), as well as his request for an evidentiary hearing (ECF No. 7). For the reasons set forth below, the court will deny petitioner's motion to proceed in forma pauperis, his motion to appoint counsel, and his request for an evidentiary hearing and will recommend that the petition be dismissed.

         IN FORMA PAUPERIS

         Petitioner has filed a motion to proceed in forma pauperis (ECF No. 8). However, court records reflect that petitioner paid the filing fee on May 17, 2019. Accordingly, the court will deny as moot petitioner's motion to proceed in forma pauperis.

         SCREENING

         I. Screening Requirement

         Under Rule 4 of the Rules Governing Section 2254 Cases, this court is required to conduct a preliminary review of all petitions for writ of habeas corpus filed by state prisoners. Pursuant to Rule 4, this court must summarily dismiss a petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.”

         II. The Petition

         This action was initiated when plaintiff filed a petition for writ of habeas corpus in the United States Court of Appeals for the Ninth Circuit. (ECF No. 2.) Upon receipt, the Ninth Circuit transferred this action to the Eastern District of California pursuant to Federal Rule of Appellate Procedure 22(a). (ECF No. 1.)

         Petitioner has set forth the following details regarding the criminal charges at issue in his petition: in October 2015, he and his girlfriend, Ms. Hayes, had an argument. (ECF No. 2 at 8.) After he left the residence, police arrived and Hayes told the officers petitioner physically assaulted her and stole her cell phone. When petitioner returned Hayes did not inform him that she spoke to the police. Three months later petitioner was pulled over for a seatbelt violation and arrested for an outstanding warrant. Soon after petitioner's arrest, Hayes told the Shasta County District Attorney that everything she told the police had been a lie. Hayes testified at a pre-trial hearing that she lied to police. Hayes was then advised that lying to the police was a crime. Thereafter, Hayes invoked her right to remain silent under the Fifth Amendment. Because the state did not have a full opportunity to cross-examine Hayes, the court struck her testimony.

         Petitioner states he pled nolo contendere to second degree robbery in the Shasta County Superior Court on June 6, 2016. (ECF No. 2 at 2.) Petitioner also pled no contest to an unrelated child abuse charge, having a prior strike, and violating the terms of probation in several other cases. (ECF No. 2 at 33.) Petitioner indicates that following his conviction he appealed his conviction in the Shasta County Superior Court. He indicates that he did not seek review in the California Supreme Court and he did not file any other petitions, applications, or motions related to his conviction. (ECF No. 2 at 6.)

         Petitioner argues he is entitled to relief under California Penal Code § 1473[1] because Hayes has submitted an affidavit to an investigator hired by petitioner's mother stating that she lied to police and petitioner did not assault her or steal her cell phone.

         III. Analysis

         There is no question that the exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). “Under the exhaustion requirement, a habeas petitioner challenging a state conviction must first attempt to present his claim in state court.” Harrington v. Richter, 562 U.S. 86, 103 (2011); see also O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts”). A petitioner satisfies the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider all claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). For a California prisoner to exhaust, he must present his claims to ...


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