United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
Rebecca Grady Jennings, United States District Court District
Lorie Marie Franklin filed a Petition for a Writ of Habeas
Corpus under 28 U.S.C. § 2254 seeking relief for her
2004 conviction in Jefferson Circuit Court on several counts
of sodomy, rape, and use of a minor in a sexual
performance. [DE 1, Petition; DE 12, Am. Petition]. The
Court referred the matter to Magistrate Judge Colin H.
Lindsay [DE 9], who filed a Report and Recommendation
(“R&R”) recommending that the Court deny
Franklin's Petition [DE 89]. Franklin filed timely
objections. [DE 92]. The Court has reviewed the entire
record, including the pleadings, the parties' arguments,
relevant case law, and statutory authority, as well as
applicable procedural rules. For the reasons below, the Court
OVERRULES Franklin's objections and
ADOPTS the R&R.
R&R accurately sets forth the factual and procedural
background of the case. [See DE 89 at 1577-80].
Below, the Court mentions the key facts to frame its
discussion and analysis of Franklin's objections.
2004, a jury convicted Franklin of several counts of sodomy,
rape, and use of a minor in a sexual performance. See
Woodard v. Commonwealth, 219 S.W.3d 723 (Ky. 2007),
overruled on other grounds by Commonwealth v.
Prater, 324 S.W.3d 393 (Ky. 2010). The Jefferson Circuit
Court sentenced Franklin to forty-years imprisonment and
three years of conditional release. Id. Through
counsel, Franklin appealed her conviction and sentence to the
Kentucky Supreme Court, which affirmed. Id. Franklin
did not petition for certiorari with the Supreme Court of the
United States, and her conviction became final on July 18,
2007. See 28 U.S.C. § 2244(d)(1)(A).
March 8, 2010, Franklin filed a pro se motion to
vacate judgment asserting that her trial counsel was
constitutionally ineffective. [DE 36-3 at 660-83]. The trial
court held an evidentiary hearing and later rejected
Franklin's claims on the merits and denied her motion.
Id. at 786. The Kentucky Court of Appeals affirmed,
and the Kentucky Supreme Court denied discretionary review on
October 15, 2014. [DE 36-4 at 869-79, 905].
December 16, 2014, Franklin filed a pro se motion to
modify her sentence. [DE 36-5 at 906-922]. For the first
time, Franklin asserted that the lead detective in her case
acted maliciously in arresting her without sufficient
probable cause and that the prosecutor solicited perjured
testimony from witnesses. Id. at 908, 917. The
Jefferson Circuit Court denied Franklin's motion as
untimely. Id. at 952. The Kentucky Court of Appeals
affirmed, and the Kentucky Supreme Court denied discretionary
review on September 20, 2017. Id. at 999-1005, 1022.
October 16, 2017, Franklin filed a Petition for a Writ of
Habeas Corpus with this Court. [DE 1]. The Court referred the
Petition to Magistrate Judge Lindsay “for rulings on
all non-dispositive motions; for appropriate hearings, if
necessary; and for findings of fact and recommendations on
any dispositive motions.” [DE 9 at 226]. Franklin moved
to amend her Petition, which Magistrate Judge Lindsay
granted. [DE 26]. Magistrate Judge Lindsay filed the R&R
recommending that the Court deny Franklin's Petition. [DE
89]. Franklin filed timely objections. [DE 92].
to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil
Procedure 72, a district court may refer a prisoner petition
to a magistrate judge to conduct an evidentiary hearing, if
necessary, and submit proposed findings of fact and
recommendations for the disposition of the petition. Rule
72(b)(2) provides a petitioner with fourteen days after
service to register any objections to the recommended
disposition. This Court must “make a de novo
determination of those portions of the report or specific
proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1)(C). A specific
objection “explain[s] and cite[s] specific portions of
the report which [counsel] deem[s] problematic.”
Robert v. Tesson, 507 F.3d 981, 994 (6th Cir. 2007)
(alterations in original) (citation omitted). A general
objection that fails to identify specific factual or legal
issues from the R&R is not permitted as it duplicates the
magistrate judge's efforts and wastes judicial resources.
Howard v. Sec'y of Health and Human Servs., 932
F.2d 505, 509 (6th Cir. 1991). After reviewing the evidence,
the Court is free to accept, reject, or modify the magistrate
judge's proposed findings or recommendations. 28 U.S.C.
R&R recommends that the Court deny Franklin's
Petition because habeas petitions submitted under 28 U.S.C.
§ 2254 are subject to the one-year statute of
limitations defined by 28 U.S.C. § 2244(d)(1). [DE 89 at
1581]. Magistrate Judge Lindsay found that the statute of
limitations expired in 2008 and that Franklin failed to show
that either the relevant tolling statute or equitable tolling
applied. Id. at 1581-87. Magistrate Judge Lindsay
also found that Franklin's Petition did not justify an
evidentiary hearing and recommended that the Court deny a
certificate of appealability. Id. at 1587.
filed specific objections to six of the R&R's
findings. [DE 92]. Although many objections are intertwined,
the Court will consider each separately. The objections are
sufficiently definite to trigger the Court's obligation
to conduct a de novo review. 28 U.S.C. §
636(b)(1)(c); see also Robert, 507 F.3d at 994.
Provision of Counsel
Franklin asserts that Magistrate Judge Lindsay did not uphold
his duties because he failed to consider that Franklin could
not afford to file a petition before the statute of
limitations expired. [DE 92 at 1603]. Franklin asserts that
she was unable to file her Petition before the statute of
limitations expired because she could not afford an ...