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Hice v. Hobbs

United States District Court, E.D. Arkansas, Pine Bluff Division

June 27, 2014

RICKEY HICE ADC #149969 Petitioner
v.
RAY HOBBS, Director, Arkansas Department of Correction Respondent

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION INSTRUCTIONS

J. THOMAS RAY, Magistrate Judge.

The following recommended disposition has been sent to United States District Judge J. Leon Holmes. 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 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 United States District Judge, you must, at the same time that you file your written objections, include a "Statement of Necessity" that sets forth the following:

1. Why the record made before the Magistrate Judge is inadequate.
2. Why the evidence to be proffered at the requested hearing before the United States District Judge was not offered at the hearing before the Magistrate Judge.
3. An offer of proof setting forth the details of any testimony or other evidence (including copies of any documents) desired to be introduced at the requested hearing before the United States District Judge.

From this submission, the United States 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:

I. Introduction

Pending before the Court is a 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus filed by Petitioner, Rickey Hice, an inmate in the Arkansas Department of Correction ("ADC"). Docs. #1 & #3. Respondent has filed two Responses, Docs. #9 & #17 , and Petitioner has filed a Reply, Doc. #11 . Thus, the issues are joined and ready for disposition.

Before addressing Petitioner's habeas claims, the Court will review the procedural history of the case.

On April 1, 2011, Petitioner entered a negotiated guilty plea to possessing drug paraphernalia with intent to manufacture methamphetamine, in Sebastian County Circuit Court Case No. CR2011-71.[1] He was sentenced to 168 months of imprisonment, followed by a 72-month suspended imposition of sentence. Doc. #9-2 . His sentence was ordered to be served concurrently with three other sentences from Sebastian County Circuit Court.[2]

Importantly, only Petitioner's sentence in Case No. CR2011-71 was for an offense that required the convicted person to serve 70% of the term of imprisonment, the so-called "70% rule." See Ark. Code Ann. § 16-93-611(a)(1) (2009), repealed and replaced by Ark. Code Ann. § 16-93-618 (2011).

Before his sentencing in Case No. CR2011-71, Petitioner and his attorney executed a Plea Statement[3] that expressly addressed the question of parole: "Neither your attorney nor the court can determine when, or if, you will be paroled. Parole eligibility is determined by ...


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