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McCall v. Hobbs

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

July 21, 2014

JAMIE SHAWN McCALL, ADC # 610019, Petitioner,
v.
RAY HOBBS, Director, Arkansas Department of Correction, Respondent.

PROPOSED FINDINGS AND RECOMMENDATIONS

JOE J. VOLPE, Magistrate Judge.

INSTRUCTIONS

The following recommended disposition has been sent to United States District Judge D. P. Marshall Jr. 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 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 new hearing for this purpose before either the District Judge or Magistrate Judge, you must, at the time you file your written objections, include the following:

1. Why the record made before the Magistrate Judge is inadequate.

2. Why the evidence to be proffered at the new hearing (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 new hearing 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 new hearing.

From this submission, the District Judge will determine the necessity for an additional evidentiary hearing. Mail your objections and "Statement of Necessity" to:

DISPOSITION

I. BACKGROUND

Petitioner, Jamie Shawn McCall, is an inmate at the Arkansas Department of Correction (ADC) Delta Regional Unit. (Doc. No. 2.) On April 12, 2007, Mr. McCall pleaded guilty to commercial burglary and theft of property and was sentenced to six years in the ADC with three years suspended. (Doc. No. 14.) On November 5, 2008, Mr. McCall pleaded guilty to criminal attempt to deliver cocaine and was sentenced to ten years in the ADC with four years suspended. ( Id. ) In 2011, Mr. McCall pleaded guilty to forgery and was sentenced to ninety-six months in the ADC. ( Id. ) In 2012, while on parole, Mr. McCall pleaded guilty to delivery of cocaine, commercial burglary, and theft by receiving and was sentenced to six years in the ADC. ( Id. ) Mr. McCall was released on parole from ADC custody in February 2013. On October 10, 2013, he received notice of a parole violation and of his right to appear at a parole revocation hearing. ( Id. ) A parole revocation hearing was held on October 17, 2013, and Mr. McCall's parole was revoked. ( Id. ) Mr. McCall appealed his revocation, which was affirmed by the Arkansas Board of Parole. ( Id. )

Mr. McCall filed the instant Petition for Writ of Habeas Corpus (Doc. No. 2) on February 10, 2014, alleging his parole was revoked without due process for several reasons. In his first ground, Mr. McCall claims that his parole violation report states that he committed aggravated assault, but he was never convicted of that offense. ( Id. ) Mr. McCall also claims that he was not offered an attorney to represent him at his parole revocation hearing, that he did not receive a preliminary hearing, but only a full hearing sixty-nine days after his arrest, and that witnesses who were not on the witness list testified at the hearing. ( Id. ) In his second, third, and fourth grounds, he asserts that the evidence was insufficient to support three of the parole violations he was found to have committed: failure to report, failure to provide supervising officer with proof of employment, and failure to pay fees. ( Id. )

II. ANALYSIS

Respondent argues the Petition is procedurally defaulted. (Doc. No. 14 at ...


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