United States District Court, W.D. Louisiana, Lake Charles Division
JONATHAN J. FRANK D.O.C. # 329734
KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE
the court is a petition for writ of habeas corpus filed
pursuant to 28 U.S.C. § 2254 by Jonathan J. Frank, who
is proceeding pro se in this matter. Frank is an
inmate in the custody of the Louisiana Department of Public
Safety and Corrections and is currently incarcerated at the
Louisiana State Penitentiary at Angola, Louisiana. This
matter is before the court on initial review under Rule 4 of
the Rules Governing Section 2254 Proceedings in the United
States District Courts, and has been referred to the
undersigned for review, report, and recommendations in
accordance with the provisions of 28 U.S.C. § 636.
a jury trial in the Fourteenth Judicial District Court,
Calcasieu Parish, Louisiana, Frank was convicted on May 15,
2014, of one count of aggravated rape, a violation of
Louisiana Revised Statute § 14:42. State v.
Frank, 159 So.3d 1131, 1132 (La. Ct. App. 3d Cir. 2015).
He sought review in the Louisiana Third Circuit Court of
Appeal, raising the following assignments of error:
1. The evidence was insufficient to support the conviction.
2. The trial court erred in denying Frank's motion for a
Id. The court also found one error patent relating
to Frank's absence from the courtroom while the jury
viewed the state's exhibits. Id. at 1133. The
court reviewed all issues on the merits and denied relief on
March 4, 2015. Id. at 1133-37. Frank states that he
then sought review in the Louisiana Supreme Court, but we
cannot locate a copy of that court's decision. Doc. 1, p.
states that, after conclusion of review on his direct appeal,
he “timely filed” an application for
post-conviction relief through counsel. Doc. 1, att. 2, p. 3.
Frank's exhibits show that his post-conviction counsel
mailed the application to the trial court on April 26, 2016,
but his copies do not show the date that the pleading was
received by the court. Doc. 1, att. 3, p. 3. There Frank
claimed that he was denied his right to effective assistance
of trial counsel. Id. at 4-9. He also contends that
relief was denied by the trial court and Third Circuit Court,
and the record shows that the Louisiana Supreme Court denied
review on August 31, 2018. Doc. 1, p. 5; State ex rel.
Frank v. Frank, 251 So.3d 1068 (La. 2018).
filed the instant petition for writ of habeas corpus on or
about November 1, 2018, raising ineffective assistance of
trial counsel as his claim for relief. Accordingly, we
now begin our initial review of the petition.
Law & Application
Rule 4 Review
of the Rules Governing § 2254 Cases authorizes
preliminary review of such petitions, and states that they
must be summarily dismissed “[i]f it plainly appears
from the petition and any attached exhibits that the
petitioner is not entitled to relief.” Id. at
Rule 4. To avoid summary dismissal under Rule 4, the petition
must contain factual allegations pointing to a “real
possibility of constitutional error.” Id. at
Rule 4, advisory committee note (quoting Aubut v.
Maine, 431 F.2d 688, 689 (1st Cir. 1970)). ...