United States District Court, E.D. Arkansas, Pine Bluff Division
PROPOSED FINDINGS AND RECOMMENDATIONS
S. MILLER, Magistrate Judge.
following recommended disposition has been sent to United
States District Court 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
(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.
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 District Judge, you must, at the
same time that you file your written objections, include the
1. Why the record made before the Magistrate Judge is
2. Why the evidence proffered at the hearing before the
District Judge (if such a hearing is granted) was not offered
at the hearing before the Magistrate Judge.
3. The detail of any testimony desired to be introduced at
the hearing before the District Judge 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 hearing before the District Judge.
this submission, the District Judge will determine the
necessity for an additional evidentiary hearing, either
before the Magistrate Judge or before the District Judge.
your objections and "Statement of Necessity" to:
THE COURT is the Petition for Writ of Habeas Corpus filed by
Gerardo Gomez-Jimenez on July 27, 2015 (Doc. No. 2).
Respondent Wendy Kelley filed a response on August 21, 2015
(Doc. No. 7). Petitioner filed a Reply on September 16, 2015
(Doc. No. 8) and a Supplement on December 16, 2015 (Doc. No.
9). After reviewing the Parties' briefing and the
available evidence, the Court finds that the current action
should be DISMISSED.
11, 2013, a Washington County, Arkansas, jury found
Petitioner guilty of rape of a minor. Petitioner received a
768 month sentence in the Arkansas Department of Correction
(ADC) (Doc. No. 7-1). Petitioner did not directly appeal his
April 7, 2015, Petitioner filed a motion for postconviction
relief pursuant to Arkansas Rule of Criminal Procedure 37.1
(Doc. No. 7-2). The Washington County, Arkansas, Circuit
Court entered an order on June 22, 2015, dismissing the
petition because Petitioner did not verify it or file it
within ninety days of entry of judgment (Doc. No. 7-3).
Arkansas Supreme Court records indicate that Petitioner filed
a notice of appeal on October 1, 2015. The Criminal Justice
Coordinator for the Arkansas Supreme Court notified
Petitioner via letter dated September 29, 2015, that his
brief was due no later than Monday, November 9, 2015.
Petitioner filed his brief on November 16, 2015, and that
same date, the Criminal Justice Coordinator informed
Petitioner by letter that the clerk declined to file the
brief because it was tendered late. The Criminal Justice
Coordinator advised Petitioner that, should he resubmit the
brief, it must be accompanied by a motion to file a belated
brief bearing his notarized signature. On December 18, 2015,
the State of Arkansas filed a Motion to Dismiss the appeal
for failure to file a timely brief. The Arkansas Supreme
Court dismissed the appeal ...