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Dodson v. Hobbs

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

November 10, 2014

JOHNNY PAUL DODSON, PETITIONER
v.
RAY HOBBS, Director of the Arkansas Department of Correction, RESPONDENT

Johnny Paul Dodson, ADC #77252, Plaintiff, Pro se, Tucker, AR.

For Ray Hobbs, Defendant: Christian Scholfield Harris, LEAD ATTORNEY, Arkansas Attorney General's Office, Little Rock, AR.

FINDINGS AND RECOMMENDATION

H. David Young, UNITED STATES MAGISTRATE JUDGE.

INSTRUCTIONS

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:

Clerk, United States District Court
Eastern District of Arkansas
600 West Capitol Avenue, Suite A149
Little Rock, Arkansas 72201-3325

RECOMMENDATION

Petitioner Johnny Paul Dodson (" Dodson") commenced the case at bar by filing a petition for writ of habeas corpus pursuant to 28 U.S.C. 2254. Respondent Ray Hobbs (" Hobbs") responded to the petition by asking that it be dismissed. He maintained that the petition should be dismissed because it is a second or successive petition, and Dodson did not receive permission from the United States Court of Appeals for the Eighth Circuit to file the petition.

Dodson has now filed the pending motion to stay and " determine whether habeas petition is second or successive." See Document 12. In the motion, he asks that a determination be made at this time whether his petition is a second or successive petition. If it is determined that the petition is a second or successive petition, he asks that the case be stayed and/or withdrawn so that he can seek the permission of the Court of Appeals to file the petition.

The undersigned recommends that Dodson's motion to stay and " determine whether habeas petition is second or successive" be denied. The undersigned is awaiting Dodson's reply to Hobbs' response and cannot determine before receiving and reviewing the reply whether the petition at bar is indeed a second or successive petition. If it is determined that the petition is a second or successive petition, the undersigned will make appropriate findings and a recommendation to United States District Judge J. Leon Holmes, and Dodson can object to the findings and recommendation at that time.


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