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Rhodes v. Kelley

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

April 22, 2016

ODELL RHODES ADC #116139, Petitioner,
v.
WENDY KELLEY, Director Arkansas Department of Correction, Respondent.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          J. THOMAS RAY, Magistrate Judge.

         INSTRUCTIONS

         The following Proposed Findings and Recommended Disposition ("Recommendation") have been sent to United States District Judge Billy Roy Wilson. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection; and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.

         I. Background

         Pending before the Court is a 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus filed by Petitioner, Odell Rhodes ("Rhodes"), an inmate in the Arkansas Department of Correction ("ADC"). Doc. 2. Before addressing Rhodes's habeas claims, the Court will review the procedural history of the case.

         Rhodes is currently serving an aggregate twelve-year sentence in the ADC for multiple offenses, imposed between 2005 and 2013. These sentences stem from convictions for: possession of ephedrine (probation revocation); failure to appear; possession of drug paraphernalia; theft by receiving; possession of controlled substances; possession of controlled substances with intent to manufacture; possession of drug paraphernalia with intent to manufacture; aggravated assault; fleeing; second-degree battery; and theft of property. Doc. 5-2, at 1-9.

         On December 7, 2012, the Arkansas Parole Board (the "Board") voted to transfer Rhodes from the ADC to parole status under the supervision of the Arkansas Department of Community Correction ("ACC").[1] Doc. 5-3, at 5-6. On December 18, 2012, the Board entered an Order of Conditional Release.[2] Id . at 1-3.

         On March 27, 2013, the Board revoked Rhodes's parole for violating conditions concerning reporting, residency/travel, obeying all laws, and not associating with prohibited persons. He was placed in the Technical Violator Program. Doc. 5-4. On August 29, 2013, Rhodes was returned to parole status under ACC supervision. Doc. 5-2, at 10.

         On September 17, 2013, Rhodes was sentenced, in Washington County Circuit Court, to two concurrent five-year sentences for theft of property and theft by receiving. Both of those new sentences were ordered to run concurrently with "the undischarged portion of [the] time [Rhodes was] now serving." Id . at 5-6. On the same date, the Board again revoked Rhodes's parole for not obeying all laws, in violation of the conditions of his release. Id . at 23; Doc. 5-5. On October 30, 2013, Rhodes was returned to ADC custody. Doc. 5-2, at 10.

         On April 10, 2014, the Board held a parole hearing and denied, for one year, Rhodes's transfer from the ADC to ACC parole supervision, citing his "new time" and previous release history.[3] Id . at 23; Doc. 5-6. On May 11, 2014, the Board denied reconsideration of its decision. Doc. 5-2, at 23; Doc. 5-7.

         On April 9, 2015, a Board member screened Rhodes's case and recommended that he be transferred to parole status under ACC supervision. Doc. 5-8. After holding a hearing, the full Board rejected that recommendation and denied transfer for one year. Id .; Doc. 5-2, at 23. On May 24, 2015, the full Board unanimously denied reconsideration of its decision. Doc. 5-9; Doc. 5-2, at 23.

         On July 9, 2015, Rhodes initiated this § 2254 habeas action. In his habeas papers, he argues that the Board's decisions in April 2014 and in April 2015: (1) violated state law and Parole Board policy; and (2) violated his due process rights under the United States Constitution. Docs. 2 & 7.

         Respondent contends that Rhodes's claims are not cognizable in a § 2254 habeas action. Doc. 5.

         For the reasons explained below, the Court recommends that this habeas ...


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