Free Order on Motion for Miscellaneous Relief - District Court of Delaware - Delaware

Case 1 :05-cv—00893-GIVIS Document 6 Filed 03/30/2006 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JOHN M. FRANKLIN, )
Petitioner, g
v. g Civ. A. No. 05-893-GMS
RICHARD KEARNEY, Warden, and J
CARL C. DANBERG, Attorney )
General of the State of Delaware, )
Respondents. g
O R D E R
At Wilmington this glday of March, 2006;
IT IS ORDERED that:
l. Petitioner John M. Franklin’s motion to proceed informa pauperis is GRANTED.
(D.I. 1)
2. Franklin’s pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. §
2254 is DISMISSED WITHOUT PREJUDICE for failure to exhaust state remedies. (D.I. 2) A
district court judge may summarily dismiss a habeas petition "if it plainly appears from the face
of the petition and any exhibits annexed to it that the petitioner is not entitled to relieiZ" Rule 4,
28 U.S.C. foll. § 2254. A petitioner is not entitled to federal habeas relief unless he has
exhausted state remedies for his habeas claims. 28 U.S.C. § 2254(b)(l)(A). Franklin filed his
habeas petition on December 28, 2005, and the court issued an order notifying Franklin that the
terms of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. §

Case 1:05-cv—00893-Gl\/IS Document 6 Filed 03/30/2006 Page 2 of 2
2244, apply to his petition. (D.1. 3) On January 12, 2006, Franklin filed a motion to toll the
statute of limitations because he is presently exhausting his state remedies by appealing the
Superior Court’s denial of his motion for post-conviction relief filed pursuant to Delaware
Superior Court Criminal Rule 61. (D.l. 4) Franklin also submitted a copy of a letter from the
Delaware Supreme Court confirming that he filed a notice of appeal on December 14, 2005.
Therefore, it plainly appears that Franklin is not entitled to federal habeas relief because he has
not yet exhausted state remedies.
3. Franklin’s motion for permission to toll § 2244(d)(l) and (2) is DENIED as moot.
4. The court declines to issue a certificate of appealability. See 28 U.S.C. § 2253(c)(2);
United States v. Eyer, 113 F.3d 470 (3d Cir. 1997); 3rd Cir. Local Appellate Rule 22.2 (2000).
5. The clerk of the court is directed to mail a copy of this order to Franklin.
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