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Rivers v. Kelley

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

May 28, 2015

DEVONTAE MARQUEZ RIVERS ADC #153025, Petitioner,
v.
WENDY KELLEY, [1] Director Arkansas Department of Correction, Respondent.

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION INSTRUCTIONS

JEROME T. KEARNEY, Magistrate Judge.

The following recommended disposition has been sent to United States District Court Judge Susan W. 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 Clerk no later than fourteen (14) 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 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 hearing for this purpose before the United States District Judge, you must, at the same time that you file your written objections, include a "Statement of Necessity" that sets forth the following:

1. Why the record made before the Magistrate Judge is inadequate.
2. Why the evidence to be proffered at the requested hearing before the United States District Judge was not offered at the hearing before the Magistrate Judge.
3. An offer of proof setting forth the details of any testimony or other evidence (including copies of any documents) desired to be introduced at the requested hearing before the United States District Judge.

From this submission, the United States District Judge will determine the necessity for an additional evidentiary hearing, either before the Magistrate Judge or before the District Judge.

Mail your objections and "Statement of Necessity" to:

Introduction

Petitioner, Devontae Rivers, an inmate at the Arkansas Department of Correction, filed this petition for habeas corpus relief pursuant to 28 U.S.C. ยง 2254 on July 7, 2014. (Doc. Entry No. 2) He filed an amended petition on July 18, 2014. (Doc. Entry No. 5) A response was filed by Respondent on July 30, 2014. (Doc. Entry No. 8) Petitioner filed a reply on September 3, 2014. (Doc. Entry No. 12) along with an Addendum and Amended Addendum (Doc. Entry Nos. 13, 14). After reviewing the parties' briefings and the available evidence, the undersigned recommends that the habeas petition be denied and this action dismissed.

Background

On August 21, 2012, Petitioner pleaded guilty to the offenses of first degree murder, kidnapping and aggravated robbery in Mississippi County (Arkansas) Circuit Court. The court sentenced Petitioner to 420 months imprisonment. Petitioner did not appeal his sentence. The Court filed the judgment and commitment order on August 21, 2012.

On February 5, 2013, Petitioner filed a state habeas petition and motion to rescind his guilty plea. The state circuit court denied the motion and petition by order filed February 11, 2013. Petitioner filed a timely appeal but failed to timely submit his appellate brief. Therefore, the Arkansas Supreme Court dismissed the appeal on October 3, 2013. In its order, the Arkansas Supreme Court stated that it dismissed the appeal not only because of Petitioner's failure to file a brief, but it also dismissed on the grounds that Petitioner could not prevail on appeal because (1) the Mississippi County trial court did not have personal jurisdiction to issue a writ of habeas corpus because Petitioner was not incarcerated within its ...


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