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Hubbard v. Kelley

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

February 1, 2018

BRAD A. HUBBARD ADC #653533 PETITIONER
v.
WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT

          PROPOSED FINDINGS AND RECOMMENDATIONS

         Instructions

         The following recommended disposition has been sent to United States District Court Judge Kristine G. Baker. 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 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 before the District Judge (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.
3. The detail of any testimony desired to be introduced at the hearing before the District Judge 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 hearing before the District Judge.

         From this submission, the 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:

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

         Disposition

         BEFORE THE COURT is the Petition and Amended Petition for Writ of Habeas Corpus filed by Brad A. Hubbard (DE #2, 5) on July 8, 2016, and July 27, 2016, respectively. Hubbard pleaded guilty to a couple of drug-related charges, forgery, and breaking and entering offenses out of Pope County, Arkansas, and the circuit court ordered his imprisonment in the Arkansas Department of Correction. This habeas petition, however, does not relate to those convictions, but instead stems from his placement back into ADC after transfer to a reentry center following a positive drug screen and admission for methamphetamine use.[1] Specifically, Hubbard claims that officials put him back in the ADC in violation of Act 679 of 2005, which entitled him to a revocation hearing.[2]

         Respondent admits Petitioner is in her custody; however, she denies that he is entitled to any relief. Instead, Respondent asserts that the petition should be dismissed because his claim is not cognizable, as Hubbard was an ADC inmate under the Act 146 of 2015[3] program and had no due process liberty interest in being housed in a particular facility. Alternatively, Respondent argues Petitioner received all the due process afforded him when he waived any revocation hearing and because his disciplinary hearing satisfied due process.

         For the reasons outlined below, the Court recommends that the petition be dismissed with prejudiced.

         Records reflect that Petitioner was administratively transferred into the DCC reentry facility on March 9, 2016 under Act 146. (DE #16-2, at pp. 14-15) On that date, he signed a reentry facility agreement acknowledging that he would comply with any and all conditions set by DCC and the reentry facility and that he understood any rule infractions would be considered a major disciplinary subjecting him to return to the ADC. (Doc. No. 16-3, at pp. 1) The facts giving rise to his return to ADC are as follows: Hubbard was not present for bed check on April 22, 2016, but when he was found, he was tested by facility administrators on April 23, 2016. He tested positive for methamphetamine and also admitted use. He was immediately removed from the facility and placed back ...


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