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Franklin v. Hall

United States District Court, W.D. Kentucky, Louisville Division

March 25, 2019

LORIE MARIE FRANKLIN Petitioner
v.
JONATHAN HALL, DIRECTOR, DIVISION OF PROBATION AND PAROLE Respondent

          MEMORANDUM OPINION AND ORDER

          Rebecca Grady Jennings, United States District Court District Judge

         Petitioner 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.[1] [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.

         BACKGROUND

         The 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.

         In 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).

         On 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].

         On 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.

         On 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].[2] Magistrate Judge Lindsay filed the R&R recommending that the Court deny Franklin's Petition. [DE 89]. Franklin filed timely objections. [DE 92].

         STANDARD OF REVIEW

         Pursuant 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. § 636(b)(1)(C).

         DISCUSSION

         The 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.

         Franklin 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.

         A. Provision of Counsel

         First, 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 ...


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