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 November 19, 2008, a Drew County jury convicted Petitioner Jimmy Frost of attempted murder, committing a terroristic act, and possession of a firearm by a certain person. (Doc. Nos. 1, 11.) He was sentenced to 276 months, 120 months, and 120 months, respectively, and all sentences were to run concurrently. ( Id. ) Mr. Frost appealed his conviction arguing sufficiency of the evidence regarding the terroristic act charge and various ways the trial court abused its discretion. Frost v. State, 2010 Ark.App. 163. The Arkansas Court of Appeals recited the underlying facts of the case:
About a month after his wife, Venessa, filed for divorce, Jimmy Frost invited her to their home to talk. She went. Frost asked her to come back and live with him, but she said no. He responded "I'm going to do what I told you I'd always do if you left me. I'm going to kill you." Frost then pulled out a.22 caliber pistol and shot Venessa four times as she sat alone in her car. Venessa survived.
Id. at *1. Mr. Frost appealed to the Arkansas Supreme Court, but it declined to review the case. A mandate was issued on May 13, 2010. (Doc. No. 7.)
Mr. Frost filed a Rule 37 petition on June 17, 2010, arguing his Eighth Amendment rights were violated when the trial court denied his choice of attorney. (Doc. No. 8-2.) The Drew County Circuit Court denied the petition on July 2, 2010. (Doc. No. 8-3.) Then, Mr. Frost filed a motion to extend time to appeal, but the Arkansas Supreme Court denied the ...