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Kain v. Kelley

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

January 14, 2016

BILLY JACK KAIN, JR., ADC #083093, 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 J. Leon Holmes. 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. PROCEDURAL HISTORY

In September 1984, Petitioner, Billy Jack Kain, Jr., pleaded nolo contendere to a charge of rape and a charge of kidnaping[1] (Doc. No. 2 at 30), and he was sentenced to twenty-three years' imprisonment in the Arkansas Department of Correction (ADC) with ten years suspended on the rape charge and fifteen years suspended probation on the kidnaping charge.[2] After serving five years of his imposed sentence, he was released from ADC in August 1989. (Doc. No. 10-17.) He received an order of discharge from his sentence on January 1, 1991. (Doc. No. 10-18.)

In the summer of 1994, Mr. Kain was again charged with rape.[3] In January 1995, immediately before trial, Mr. Kain's attorneys learned the State was going to move to revoke the suspended, fifteen year probation sentence imposed on the kidnaping charge. (Doc. No. 2.) The jury was released, Mr. Kain changed his plea, and was sentenced to forty-years' imprisonment.

During his incarceration, Mr. Kain has filed many post-conviction pleadings challenging both sentences. He challenged the 1984 conviction with a Rule 37 petition and two federal habeas petitions.[4] He challenged his current conviction with a Rule 37 petition, a third federal petition for writ of habeas corpus, [5] and a petition to correct illegal sentence. In 1998 and 2006, Mr. Kain filed fourth and fifth federal habeas petitions.[6] In 2011, he filed a writ of error coram nobis, and finally on September 11, 2015, he filed the current Petition. (Doc. No. 2.)

In his Petition, Mr. Kain challenges both the 1984 conviction and the current conviction. ( Id. ) Mr. Kain argues: (1) double jeopardy based on the fact that the prosecutors in the 1995 case threatened to revoke Mr. Kain's suspended probation if he refused plead guilty; (2) the state violated the ex post facto clause by enhancing his "illegal conviction" and requiring him to serve one hundred percent of his sentence; (3) the Craighead County Circuit Court violated his due process rights because his petition for error coram nobis was misplaced and was not adjudicated until a year after filing; (4) his ...


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