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Vieira v. Kelley

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

December 13, 2017

WESLEY JOSEPH VIEIRA ADC #158205 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 Chief United States District Judge Brian S. Miller. 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 Chief 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 (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 Chief 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

         I. INTRODUCTION

         On August 12, 2014, Petitioner, Wesley Joseph Vieira, pleaded guilty to one count of first degree sexual abuse and two counts of second degree sexual assault before the Benton County Circuit Court. (Doc. No. 2 at 1.) He was sentenced to twenty years in the Arkansas Department of Correction. (Id.) Since then, Mr. Vieira has failed to file for any form of relief until filing the present Petition on November 29, 2017. Now, Mr. Vieira alleges that his conviction was invalid because his guilty plea was “not knowingly and intelligently made.” (Doc. No. 2 at 6.) For the following reasons, I recommend the Petition be dismissed without prejudice.

         II. ANALYSIS

         Mr. Vieira's Petition (Doc. No. 2) is untimely based upon the one-year period of limitation imposed by the Antiterrorism and Effective Death Penalty Act (AEDPA). Title 28 U.S.C. § 2241 (d)(1) and (2) impose a one-year period of limitation on petitions for writ of habeas corpus:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The ...

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