United States District Court, E.D. Arkansas, Pine Bluff Division
FINDINGS AND RECOMMENDATION INSTRUCTIONS
H. DAVID YOUNG, Magistrate Judge.
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:
In February of 2002, petitioner Johnny Paul Dodson ("Dodson") was convicted in an Arkansas state trial court of two drug offenses and sentenced to the custody of the Director of the Arkansas Department of Correction ("Director"). In September of 2004, the Arkansas Supreme Court affirmed Dodson's convictions. See Dodson v. State, 358 Ark. 372, 191 S.W.3d 511 (2004).
In October of 2004, Dodson challenged his 2002 convictions by filing a state trial court petition for post-conviction relief pursuant to Arkansas Rule of 37. The state trial court judge denied the petition in January of 2005, and Dodson failed to prosecute a timely appeal of the adverse ruling. He filed a motion for a belated appeal in May of 2005, but the state Supreme Court denied his motion in June of 2005. See Dodson v. State, 2005 WL 1533576 (Ark.S.Ct. June 30, 2005).
In August of 2005, Dodson challenged his 2002 convictions by filing a petition for writ of habeas corpus pursuant to 28 U.S.C. 2254. See Dodson v. Norris, 5:05-cv-00226 JLH. Within days of filing the petition, though, he asked that it be dismissed because he had intended to file the petition in an Arkansas state trial court but had inadvertently filed it in an Arkansas federal court. United States District Judge J. Leon Holmes granted Dodson's motion and dismissed 5:05-cv-00226 without prejudice in August of 2005.
In November of 2005, Dodson filed a state trial court petition for writ of habeas corpus. The state trial court judge denied the petition in January of 2006, and the state Supreme Court affirmed the denial of Dodson's petition in January of 2007. See Dodson, State, 2007 WL 70432 (Ark.S.Ct. January 11, 2007).
In April of 2007, Dodson challenged his 2002 convictions by filing a petition for writ of habeas corpus pursuant to 28 U.S.C. 2254. See Dodson v. Norris, 5:05-cv-00080 BRW. In the petition, he raised claims involving his right to a speedy trial, his mental competency, and his attorney's effectiveness. The Director asked that the petition be dismissed because of limitations. The question soon arose whether a belated appeal motion, like the one Dodson filed in May of 2005, was a part of the State of Arkansas' ordinary appellate review procedure. Because the answer was unclear, United States District Judge Billy Roy Wilson certified the question to the state Supreme Court and administratively terminated 5:07-cv-00080 without prejudice in November of 2007. In certifying the question, he noted the following: "If the limitations period was tolled by the filing of the motion for belated appeal, the federal habeas corpus petition is timely. If the limitations period was not tolled, the petition is not timely." See Document 8, Exhibit M at 5. In administratively terminating the case, he noted the following: "If no party has moved to reopen this litigation ...