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Halbrook v. Kelley

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

September 19, 2016

JASON WAYNE HALBROOK, ADC # 120828, Petitioner,
v.
WENDY KELLEY, Director, Arkansas Department of Correction, Respondent.

          Jason Wayne Halbrook, Plaintiff, Pro Se.

          Wendy Kelley, Defendant, represented by Ashley Argo Priest, Arkansas Attorney General's Office.

          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. BACKGROUND

         On November 3, 2014, Petitioner Jason Halbrook pleaded guilty to two counts of aggravated assault upon a certified law enforcement officer, one count of criminal mischief, and one count of second degree battery. (Doc. No. 12 at 9-11.) He was sentenced to concurrent eighty-four months' imprisonment with an additional thirty-six months suspended imposition of sentence. ( Id. ) The conviction arose from a night when an intoxicated Mr. Halbrook began destroying his rental property with a metal bat and his landlord calling the police. (Doc. No. 2 at 4.) After Mr. Halbrook was placed in the officer's patrol car, he spit blood on the officer from the back seat through the cage and struck the officer in the right side of his face and back of his head. ( Id. ) Mr. Halbrook was still combative when he arrived at the jail so he was placed in restraints. While the jailer was securing him, he "head butted a jailer on the top of the head causing a knot..." ( Id. )

         Mr. Halbrook did not appeal his conviction, nor did he file any post-conviction relief in the state court. He filed the current Petition[1] on April 1, 2016, alleging that his conviction was invalid because he was charged with two counts of the same offense. ( Id. ) According to Mr. Halbrook, "This is Double Jeopardy." ( Id. at 7.) ...


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