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Hicks v. Kelley

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

January 25, 2017

BRIAN HICKS, ADC #138964 PETITIONER
v.
WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT

          PROPOSED FINDINGS AND RECOMMENDATIONS

          JOE J. VOLPE UNITED STATES MAGISTRATE JUDGE

         INSTRUCTIONS

         The following recommended disposition has been sent to United States District 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 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:

         Clerk, United States District Court Eastern District of Arkansas 600 West Capitol Avenue, Suite A149 Little Rock, AR 72201-3325

         DISPOSITION

         I. BACKGROUND

         On May 23, 2007, Petitioner, Brian Hicks, pleaded no contest to three counts of rape. (Doc. No. 2 at 27-47.) The Miller County Circuit Court sentenced him to twenty years' imprisonment on each count to run concurrently. (Id. at 46.) The underlying facts of the case were proffered by the prosecution at the plea and sentencing hearing. (Id. at 37-40.) On September 30, 2004, a man who identified himself as Mr. Hicks, called 911 and stated he needed to speak to police about two young girls he had molested in 1999. (Id. at 37-39.) Mr. Hicks was living with his cousin, his cousin's wife, and their three children at the time. (Id. at 38-39.) Mr. Hicks inserted his finger in the older victim's vagina three times and in the younger victim's vagina twice.[1] (Id. at 39-40.)

         Mr. Hicks did not appeal his conviction, but instead, in January 2011, he filed an unsuccessful motion for reconsideration. Hicks v. Kelley, 5:16CV00207-JM-JJV, Doc. No. 17 at 3. Then in March 2011, Mr. Hicks filed a Rule 37.1 petition (Id.), and in February 2015, Mr. Hicks unsuccessfully attempted to appeal his conviction.[2] (Id.)

         On July 6, 2016, Mr. Hicks filed a petition for writ of habeas corpus in this Court, arguing, inter alia, that he only signed the plea agreement because he was threatened. (Id.) However, Mr. Hicks filed his petition almost seven years passed the limitations period, so this Court dismissed his petition. Hicks v. Kelley, 5:16CV00207-JM-JJV. That case is presently ...


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