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Gooch v. Kelley

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

April 30, 2015

SHERWOOD V. GOOCH ADC #068817, Petitioner,
v.
WENDY KELLEY, 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 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

In July 1976, Mr. Gooch pleaded guilty to two counts of first degree murder and was sentenced to life without parole. (Doc. No. 1.) His plea and conviction arose out of a grocery story robbery. The Eighth Circuit recited the facts as follows:

On the afternoon of October 20, 1975, [Edward] Pickens, Antonio Clark, and Sherwood Gooch entered a rural grocery store in Casscoe, Arkansas with a sawed-off shotgun and a.22 caliber pistol. They robbed the owner, the clerk, and seven customers in the store and two of the robbers raped the female clerk. They then made their victims lie face down on the floor and shot seven of them in the back of the head with the.22 caliber pistol. Several of the victims were shot a second time after the pistol was reloaded. Two of the victims, including seventy-six year old Wesley Noble, died. Noble was one of those shot a second time.

Pickens v. Lockhart, 714 F.2d. 1455, 1458 (1983). During his almost thirty-nine years in prison, Mr. Gooch has filed multiple petitions for post-conviction relief, including two previous writs for habeas corpus in the Eastern District of Arkansas.[1] In the current Petition, Mr. Gooch alleges four grounds for relief: (1) he was not sentenced according to statute; (2) the sentencing court did not have subject matter jurisdiction; (3) the trial court sentenced him for a charge not listed on his information; and (4) according to Arkansas Statutes and the Arkansas and United States Constitutions, he could only plead guilty to first degree murder. (Doc. No. 1.) Respondent filed a Motion to Dismiss (Doc. No. 5) arguing that the district court lacks jurisdiction because Mr. Gooch's Petition ...


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