Franklin v. Rose

• Decision Date: 21 June 1985
• Docket Number: No. 84-5313,84-5313
• Parties: Marty O'Shea FRANKLIN, Petitioner-Appellant, v. James ROSE, Warden of Tennessee State Penitentiary, and State of Tennessee, Respondents-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 82

765 F.2d 82

Marty O'Shea FRANKLIN, Petitioner-Appellant, v. James ROSE, Warden of Tennessee State Penitentiary, and State of Tennessee, Respondents-Appellees.

No. 84-5313.

United States Court of Appeals, Sixth Circuit.

Argued May 8, 1985.

Decided June 21, 1985.

Marty O'Shea Franklin, pro se.

William Farmer, Federal Public Defender, Robert L. Tucker (argued), Nashville, Tenn., for petitioner-appellant.

William M. Leech, Atty. Gen. of Tennessee, Jerry L. Smith (argued), Nashville, Tenn., for respondents-appellees.

Before JONES and KRUPANSKY, Circuit Judges, and EDWARDS, Senior Circuit Judge.

PER CURIAM.

Petitioner Marty O'Shea Franklin appeals from the district court's summary dismissal of his habeas petition, filed pursuant to 28 U.S.C. Sec. 2254. Franklin seeks remand to the district court rather than issuance of a writ. Upon consideration of the record, we agree that remand is appropriate.

On August 26, 1983, Franklin filed his pro se petition for habeas corpus. He used the printed form petition provided by the district court for persons in state custody. The district court's form listed the ten most frequently raised grounds for habeas relief. The form also instructed him regarding his responsibility to raise all available grounds of relief relating to the contested conviction, and his responsibility to allege supporting facts. The form provided space in which to raise four grounds of relief and to state briefly supporting facts. It also informed him that he could attach pages stating additional grounds and facts.

Franklin filled in each of the four available spaces for grounds of relief by selecting, and restating word for word, four of the grounds of relief listed in the form. Beneath each stated ground of relief he typed, "SEE ATTACHED STATEMENT OF THE FACTS." After his fourth ground of relief he added, "Also issues attached." Franklin attached the seventeen-page statement of facts from his brief on appeal to the Tennessee Criminal Court of Appeals. In addition to a general review of the facts of the crime, the attached pages set forth facts supporting other, clearly labeled legal issues. Several of these issues corresponded with grounds for relief stated in the body of Franklin's petition but several raised grounds of relief that had not been stated on the form itself. Accompanying this petition, and filed on the same date, was Franklin's motion for appointment of counsel. He identified two of the four issues that he had stated on the form petition and added that he "also has approximately fourteen (14) other issues" which he needed the assistance of an attorney to properly frame and argue.

On the same day that Franklin filed his petition and motion, the district court dismissed the petition for failure to demonstrate exhaustion of state remedies. Franklin filed a timely motion to reconsider in which he contended that he had exhausted his state remedies on "the sixteen grounds raised in the instant petition." The district court responded by vacating its previous order of dismissal and allowing Franklin to demonstrate that he had in fact exhausted his remedies. A footnote in this order stated that "[t]he motion speaks as if some 16 grounds for relief were raised in the petition. In actuality, the petition contends only four grounds." Franklin responded with a motion which first declared that he did not possess the documentation necessary to demonstrate exhaustion, and then contended that the court had overlooked contentions which he litigated in the state courts and raised in his habeas corpus petition. He requested that the district court reexamine his petition.

Thereafter, the district court ordered the state to file the documents necessary for the court to determine whether Franklin had exhausted his state remedies. On the basis of this information, the district court first determined that Franklin had exhausted state remedies on the four grounds that it recognized and then dismissed his petition. Federal review of three issues was barred by procedural default in state court under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the district court found. The fourth issue involved a state court finding of fact, to which the district court deferred.

Franklin filed a timely motion for reconsideration in which he stated "[t]hat issues considered by this Honorable Court are not inclusive of all issues petitioner wished to raise in his petition." Franklin then stated eight well-expressed issues on which he sought relief. It appears that he was able to express clearly these issues because for the first time he had the assistance of a jailhouse lawyer, whose affidavit was attached to the motion. Two days later the district court denied Franklin's motion for reconsideration with the declaration that the "Petitioner may not use his pro se status as a refuge to justify his failure to follow clear procedural requirements of the law."

Franklin contends that the district court refused to consider all of the grounds of habeas relief that he raised. Under 28 U.S.C. Sec. 2254, Rule 2(c), a petition for writ of habeas corpus "shall specify all the grounds for relief which are available to the petitioner and of which he has or by the exercise of reasonable diligence...