Franklin v. Cain

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
June 29, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-30643
Summary Calendar
DOLAN FRANKLIN,
Petitioner-Appellant,
versus
BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 01-CV-2637-C
--------------------
Before Jones, Benavides, and Clement, Circuit Judges.
PER CURIAM:*
Dolan Franklin, Louisiana prisoner # 93892, convicted of
second-degree murder and sentenced to life imprisonment, appeals
the district court’s dismissal of his 28 U.S.C. § 2254 petition.
The district court granted a certificate of appealability (COA)
for the issue whether Franklin’s attorneys were ”ineffective for
failing to properly develop and present evidence regarding
petitioner’s competency to proceed to trial and his sanity at the
time of the offense.”

-- 1 of 2 --

No. 03-30643
-2-
Franklin argues that his trial attorneys were ineffective
for failing to present to the trial court in support of his
motion for the appointment of a sanity commission evidence of
(1) a one-day hospitalization in a San Francisco psychiatric unit
17 months before his killing of the victim and (2) a suicide
attempt while in prison following his arrest for that offense.
Franklin contends that, had his attorneys provided such
information to the trial court, the trial court would have
appointed a sanity commission.
The State argues that Franklin did not exhaust this issue
because he raised it only in his state postconviction pleading
filed in the state appellate court but not in his petition filed
in the Louisiana Supreme Court. Given that the substance of
Franklin’s appeal is without merit, we need not determine whether
review of the ineffective assistance claim is barred based upon a
failure to exhaust. We nevertheless note that a review of
Franklin’s state postconviction petitions reveals that he
exhausted the claim. See Bledsue v. Johnson, 188 F.3d 250, 255
(5th Cir. 1999).
In light of the testimony of Franklin and his attorneys at
the district court’s evidentiary hearing and the reports not
submitted to the trial court, Franklin has not shown that his
attorneys were ineffective in not presenting the reports to the
trial court or that he was prejudiced by the reports not being
submitted. See Strickland v. Washington, 466 U.S. 668, 687, 694
(1984); State v. Martin, 769 So. 2d 1168. 1169 (La. 2000).
AFFIRMED.

-- 2 of 2 --