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 D. P. Marshall Jr. 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:
In May of 2003, petitioner Gary Anderson ("Anderson") pleaded guilty in an Arkansas state trial court to one count of rape as charged in case number CR XXXX-XXX-X and one count of second degree sexual assault as charged in case number CR XXXX-XXX-X and was sentenced to the custody of respondent Ray Hobbs ("Hobbs"). Because Anderson pleaded guilty, he was precluded from appealing.
In September of 2004, Anderson filed a state trial court petition for post-conviction relief pursuant to Arkansas Rule of Criminal Procedure 37 and challenged the representation afforded him by his trial attorneys. The petition was dismissed on December 3, 2004, when the state trial court judge granted Anderson's request to dismiss the petition. Anderson represents, and the undersigned accepts, that he made the request at the direction of his attorney in the post-conviction proceeding.
In May of 2011, Anderson filed a state petition for writ of habeas corpus. In the petition, he maintained that "his due-process rights were violated at his guilty-plea hearing based on the trial court's failure to comply with Rules 24.4, 24.5, and 24.6 of the Arkansas Rules of Criminal Procedure." See Anderson v. State , 2013 Ark. 310, ___ S.W.3d ___, 2013 WL 4779682 at 1 (2013). The state trial court judge dismissed the petition, and Anderson appealed. The Arkansas Supreme Court found no reversible error and affirmed the dismissal of his petition in September of 2013. See Anderson v. Hobbs , 2013 Ark. 310, 2013 WL 4779682 (Ark.S.Ct. 2013).
In May of 2014, Anderson filed the petition at bar pursuant to 28 U.S.C. 2254 and challenged his 2003 guilty pleas in case numbers CR XXXX-XXX-X and CR XXXX-XXX-X. In support of the petition, he advanced the following three claims: (1) the state trial court lacked subject matter jurisdiction because the state trial court judge failed to follow the Arkansas rules of criminal procedure ensuring that Anderson's guilty pleas be knowingly, intelligently, and voluntarily entered, (2) because the state trial court lacked subject matter jurisdiction, Anderson's sentence is void or otherwise illegal; and (3) Anderson's attorney in the post-conviction proceeding ...