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Lovett v. Hobbs

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

August 12, 2014

ANDREW WAYNE LOVETT ADC # 144985, 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, Andrew Wayne Lovett, is an inmate at the Arkansas Department of Correction (ADC) Pine Bluff Unit. (Doc. No. 1.) On June 3, 2009, Mr. Lovett was convicted of second-degree murder, felon in possession of a firearm, and a firearm enhancement, and sentenced to consecutive sentences totaling sixty-eight years in prison. (Doc. No. 6 at 1.) The Arkansas Court of Appeals affirmed the conviction on April 13, 2011. Lovett v. State, 2011 Ark.App. 275. Mr. Lovett filed a pro se petition for postconviction relief pursuant to Arkansas Rule of Civil Procedure 37.1 on June 6, 2011. Lovett v. State, 2013 Ark. 8 at 1-2. It was denied on November 21, 2011. Id. at 2. On December 2, 2011, Mr. Lovett filed a motion for reconsideration, which was denied on February 2, 2012. Mr. Lovett then filed a second motion for reconsideration on February 10, 2012, which was denied on February 28, 2012. Id. On March 28, 2012, Mr. Lovett filed a notice of appeal from the circuit court's February 28, 2012 order. The Arkansas Supreme Court ruled that Mr. Lovett's March 28, 2012, notice of appeal was untimely because Mr. Lovett failed to file the notice of appeal within thirty days of the order denying his first motion for reconsideration. Id. at 3.

Mr. Lovett filed the instant Petition for Writ of Habeas Corpus (Doc. No. 1) on April 17, 2014, alleging that his trial counsel was ineffective for (1) failure to strike certain jurors for cause; (2) failure to properly investigate and otherwise prepare for trial; (3) failure to communicate with him in preparation for trial and in formulating trial strategy; (4) failure to seek a change of venue; (5) failure to call certain witnesses to provide exculpatory evidence; (6) failure to move for a mistrial due to juror misconduct; (7) failure to properly cross-examine certain witnesses; and (8) failure to object to the introduction of a prior conviction. (Doc. No. 1 at 8-10.) Mr. Lovett contends that but for these alleged errors by his attorneys, the result of the trial would have been different. (Doc. No. 1 at 12.)

II. ANALYSIS

Respondent argues that Mr. Lovett's Petition is barred by the statute of limitations. (Doc. No. ...


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