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Bean v. Kelley

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

April 6, 2016

LEONARD L. BEAN ADC #153997, Petitioner,
v.
WENDY KELLEY, Director, Arkansas Department of Correction, Respondent.

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

JEROME T. KEARNEY, 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 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:

Disposition

BEFORE THE COURT is the Petition for Writ of Habeas Corpus filed by Leonard Bean. (Doc. No. 2) After reviewing the parties' briefing and the available evidence, the undersigned recommends that the petition should be denied.

Background

In April 2010, the Crawford County Circuit Court found Petitioner, Leonard Bean, not guilty of rape. (Resp. Ex. 8, v. 1 at p. 58) The Crawford County Prosecutor had charged Bean by information with the rape of an individual under the age of fourteen "between 2005 and April 28, 2008." Id. at 56. Subsequently, on June 21, 2010, the Crawford County Prosecutor charged Bean with second-degree sexual assault of a minor in his care for incidences occurring "between May 1, 2005 and April 28, 2009." Id. at 60. The victim relayed that she had been in the care of Petitioner and his wife and that Bean on several occasions "licked her privates (Vagina), rubbed her butt, and made her hold his penis." Id. at 62. He had also inserted his fingers in her vagina more than one time. Id. The Crawford County Circuit Court dismissed the charges in an order dated March 14, 2011, on double jeopardy grounds. Id. at 64-67.

On May 3, 2011, the Sebastian County Circuit Court issued a warrant for Petitioner's arrest. Id. at 5. The prosecutor in that county charged Petitioner with second-degree sexual assault alleged to have occurred between "April 29, 2007 and April 28, 2008." Id. at 2. Petitioner moved to dismiss the charge. Id. at 28-31. The Court denied the motion, and an interlocutory appeal ensued. On interlocutory appeal, Petitioner argues that (1) the circuit court misapplied Arkansas Rule fo Criminal Procedure 21.3 and violated core constitutional and common law principles and values by denying his motion to dismiss the Sebastian County felony information and (2) the sexual assault charge filed in Sebastian County violates core double jeopardy-related protections and the ...


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