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Banks v. Kelley

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

May 21, 2015

WILLIE BANKS, JR., ADC # 078633, Petitioner,
v.
WENDY KELLEY, Director, Arkansas Department of Correction[1], Respondent.

PROPOSED FINDINGS AND RECOMMENDATIONS INSTRUCTIONS

JOE J. VOLPE, Magistrate Judge.

The following recommended disposition has been sent to United States District Judge Susan Webber Wright. 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. INTRODUCTION

Mr. Banks believes his constitutional rights are being violated. He says he is entitled to a "transfer hearing" as of February 26, 2015. (Doc. No. 2 at 4.) He seeks a court order requiring the Arkansas Department of Correction (ADC) to give him a hearing. ( Id. at 5.)

II. BACKGROUND

Pulaski County juries convicted Mr. Banks of two violent crimes within a year. (Doc. No. 4.) His first conviction was for a rape he committed on February 12, 1998. Banks v. State, 2001 WL 1544497 (Ark.App. Dec. 5, 2001). The Arkansas Court of Appeals recited the evidence at trial as:

... while at [Mr. Banks's] brother's house, [Banks] grabbed her by the hair, threw her against the wall, and began beating her in the face. He threw her on the bed, turned off the lights, and told her to shut up or he would hit her in the head with a pistol. He made her take off her clothes, and then he made her perform oral sex on him. He also attempted to have intercourse with her, but he was unable to maintain an erection. The victim testified that [Banks] placed his penis, as well as his fingers, in her vagina. [Banks] then made the victim ...

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