United States District Court, E.D. Arkansas, Pine Bluff Division
PROPOSED FINDINGS AND RECOMMENDATIONS
JOE J. VOLPE, Magistrate Judge.
The following recommended disposition has been sent to United States District Judge James M. Moody, 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 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:
On January 25, 2012, a jury in Franklin County, Arkansas found Petitioner Ralph Pruitt guilty of two counts of rape of a minor and one count of sexual indecency with a minor. (Doc. No. 2 at 37-40.) He was sentenced to 480 months on each count of rape, and 72 months on the sexual indecency charge, all to run concurrently. (Id. ) Mr. Pruitt was convicted of raping his two granddaughters between 2000 and 2008, and committing sexual indecencies with a third granddaughter between 2005 and 2009. Pruitt v. State, 2013 Ark. 128, 2 (2013). He appealed his conviction based solely on the trial court's denial of his pretrial motion to sever the offenses and try them separately. The Arkansas Supreme Court affirmed because severance was waived after Mr. Pruitt failed to raise the motion again at the close of evidence. Id.
On June 19, 2013, Mr. Pruitt filed a petition for post-conviction relief under Rule 37.1. (Doc. No. 9-1.) The Franklin County Circuit Court dismissed the petition because it was untimely. (Doc. No 9-2.) Mr. Pruitt also missed the deadline to appeal the denial of his Rule 37. He then filed a pro se motion to file a belated appeal. (Doc. No. 9-3.) The Arkansas Supreme Court denied the motion on May 29, 2014, because it lacked jurisdiction. (Id. )
On July 30, 2014, Mr. Pruitt filed a state habeas corpus petition. (Doc. No. 9-4.) It was denied as without merit (Doc. No. 9-5), and the Arkansas Supreme Court dismissed the appeal. (Doc. No. 9-6.)
Mr. Pruitt filed the instant Petition for Writ of Habeas Corpus on December 16, 2014, listing four grounds for relief: (1) actual innocence; (2) ineffective assistance of trial counsel; (3) abuse of trial court's discretion; and (4) ineffective assistance based on "the total lack thereof as to counsel, needed at the initial review stage." (Doc. No. 2.) The Response, filed on March 4, 2015, argued that the claims are either procedurally defaulted or meritless. (Doc. No. 9.) Mr. Pruitt then filed a Motion for Evidentiary Hearing (Doc. No. 10) which Respondent opposes (Doc. No. 12), ...