United States District Court, E.D. Arkansas, Pine Bluff Division
PROPOSED FINDINGS AND RECOMMENDATIONS
H. DAVID YOUNG, Magistrate Judge.
The following recommended disposition has been sent to United States District Court Judge Brian S. Miller. Any party may serve and file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of your objections must be received in the office of the United States District Court Clerk no later than fourteen (14) days from the date of the findings and recommendations. The copy will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to appeal questions of fact.
If you are objecting to the recommendation and also desire to submit new, different, or additional evidence, and to have a hearing for this purpose before the District Judge, you must, at the same time that you file your written objections, include the following:
1. Why the record made before the Magistrate Judge is inadequate.
2. Why the evidence proffered at the hearing before the District Judge (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.
3. The detail of any testimony desired to be introduced at the hearing before the District Judge in the form of an offer of proof, and a copy, or the original, of any documentary or other non-testimonial evidence desired to be introduced at the hearing before the District Judge.
From this submission, the District Judge will determine the necessity for an additional evidentiary hearing, either before the Magistrate Judge or before the District Judge.
Mail your objections and "Statement of Necessity" to:
Clerk, United States District Court Eastern District of Arkansas 600 West Capitol Avenue, Suite A149 Little Rock, AR XXXXX-XXXX
The respondent moves to dismiss the petition for writ of habeas corpus filed by Mr. Richard Cox pursuant to 28 U.S.C. § 2254. Mr. Cox contends that he is illegally imprisoned in violation of the constitutional prohibition against cruel and unusual punishment. Mr. Cox was sixteen years old when convicted of murder in 1999 and sentenced to life imprisonment without the possibility of parole. Citing Miller v. Alabama, 132 S.Ct. 2455 (2012), and its companion case, Jackson v. Hobbs, 132 S.Ct. 2455 (2012), Mr. Cox claims that he is entitled to habeas corpus relief.
The respondent contends Mr. Cox has not yet exhausted the remedies available to him in state court. Questions of available state remedies require this Court to look to the provisions of 28 U.S.C. 2254(b) and (c). These subsections codify the doctrine of comity by requiring the exhaustion of state remedies prior to bringing federal habeas corpus claims. Lenza v. Wyrick, 665 F.2d 804 (8th Cir. 1981). This exhaustion requirement is necessary in order to afford the state courts the opportunity to correct any constitutional errors before federal courts intervene. Id. However, this requirement will not be construed so as to require the filing of repetitious or futile applications for relief in state court. Powell v. Wyrick, 621 F.2d 921, 923 (8th Cir. 1980). In addition, a federal court should defer action only "if there is some reasonable probability that the relief which the petitioner seeks will actually be available to him." Powell v. Wyrick, 657 F.2d at 224. Consequently, we must determine whether the petitioner has an available state remedy.
Here, Mr. Cox is currently pursuing state habeas corpus relief, advancing his claim that his sentence violates the Eighth Amendment. Thus, the petitioner's claim that the recent United States Supreme Court cases Miller and Jackson entitle him to relief are in the process of being litigated in state court. In addition, the Arkansas Supreme Court has held that a claim under Miller and Jackson ...