United States District Court, E.D. Arkansas, Pine Bluff Division
JAMES W. JOHNSON ADC#086885, Petitioner,
WENDY KELLEY, Director, Arkansas Department of Correction, Respondent.
J. THOMAS RAY, Magistrate Judge.
The following Recommended Disposition ("Recommendation") has been sent to United States District Judge D. P. Marshall Jr. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection; and (2) be received by the Clerk of this Court within fourteen (14) days of the entry of this Recommendation. The failure to timely file objections may result in waiver of the right to appeal questions of fact.
Mail any objections to:
Pending before the Court is a § 2254 Petition for a Writ of Habeas Corpus filed by Petitioner, James W. Johnson ("Johnson"). Doc. 2. Before addressing Johnson's habeas claims, the Court will review the procedural history of the case in state court.
On May 24, 1990, a Pulaski County jury convicted Johnson of two counts of delivery of a controlled substance. See generally Johnson v. Norris, 2008 WL 4694544, *1 (Ark. Oct 23, 2008) (unpublished per curiam ) (discussing procedural history). He received an aggregate 40-year sentence as a habitual offender. Id.
On September 26, 2013, Johnson was paroled from the ADC. Doc. 9-2 at 1. On October 21, 2013, Johnson was charged in a Violation Report with violating his conditions of parole:
On or about 10/12/13, Johnson committed the offenses of Terroristic Act and Domestic Battery 3rd Degree in Little Rock, Arkansas. Brief narrative:
While intoxicated, Johnson was in an altercation with his girlfriend, Teresa Taylor when he shot at her vehicle and struck Ms. Taylor in the face with his fist.
Therefore, I am requesting a Technical Warrant be issued.
Doc. 9-2 at 2 .
On November 21, 2013, Johnson appeared pro se for his Revocation Hearing. Doc. 9-5 . At the hearing, the parole officer informed the Parole Revocation Judge that the charge and factual narrative listed in the Violation Report was incorrect, and pertained to another parolee's conduct, not Johnson's. Doc. 9-6 at ¶2 .
The parole officer "withdrew" the incorrect charge and stated that the correct charge against Johnson was for third-degree domestic battery against his wife, Ms. Bobbie Johnson. Doc. 9-6 at ¶2 . Johnson did not object to proceeding on the new charge concerning his wife. Doc. 9-6 at ¶2 .
According to the Revocation Hearing Judge's November 21, 2013 Hearing Report, Little Rock Police ...