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Gomez-Jimenez v. Kelley

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

March 3, 2016

GERARDO GOMEZ-JIMENEZ ADC # 155297 Petitioner,
v.
WENDY KELLEY, Director, Arkansas Department of Correction Respondent.

          PROPOSED FINDINGS AND RECOMMENDATIONS

          BRIAN S. MILLER, Magistrate Judge.

         Instructions

         The 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.

         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 District Judge, you must, at the same time that you file your written objections, include the following:

1. Why the record made before the Magistrate Judge is inadequate.
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.

         From this submission, the 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:

         Disposition

         BEFORE 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.

         Background

         On July 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).[1] Petitioner did not directly appeal his convictions.

         On 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 ...


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