United States District Court, E.D. Arkansas, Pine Bluff Division
FINDINGS AND RECOMMENDATION
H. DAVID YOUNG, Magistrate Judge.
The following findings and recommendation have been sent to United States District Judge J. Leon Holmes. Any party may serve and file written objections to these findings and 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 recommendation. The copy will be furnished to the opposing party. Failure to file timely objections may result in a 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 details 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:
On November 4, 2003, petitioner Santonio Turner ("Turner") was convicted in an Arkansas state trial court of three criminal offenses and sentenced to the custody of respondent Ray Hobbs ("Hobbs"). Turner appealed his convictions, but the Arkansas Court of Appeals found no reversible error and affirmed his convictions. See Turner v. State, 2005 WL 605592 (Ark.App. 2005). On April 5, 2005, the state Court of Appeals issued the mandate in his appeal.
On August 20, 2013, Turner filed a state petition for writ of habeas corpus. The petition was denied on November 20, 2013. The record is silent as to whether he appealed the denial of his petition.
On January 30, 2014, Turner filed the petition at bar pursuant to 28 U.S.C. 2254 and advanced four claims. His first claim was a challenge to his mental capacity at the time he committed the criminal offenses. His second claim was his assertion that the process used to determine his mental competency fell below constitutionally accepted standards. His third claim was his assertion that his attorney "failed to preserve claims needed on direct appeal." See Document 2 at 8. Turner last maintained that he was denied his right to a trial by jury when his attorney improperly waived a jury trial. As to whether his petition is timely, he alleged the following: "This federal habeas petition is to [be] deemed as timely due to... such... being filed during the time... from May 28, 2013, [to] May 28, 2014..." See Document 2 at 14.
Hobbs responded to Turner's petition by filing the pending motion to dismiss. See Document 6. Hobbs maintained that Turner's petition should be ...