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Story v. Kelley

United States District Court, E.D. Arkansas, Western Division

March 8, 2018

KENDRICK STORY ADC # 109934 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

         For the reasons explained below, it is recommended that the Petition for Writ of Habeas Corpus (DE #1) be DISMISSED with prejudice.

         Procedural History

         On February 9, 2017, the Petitioner pled guilty to first-degree murder in the Circuit Court of Columbia County, Arkansas. State of Arkansas v. Kendrick C. Story, 14CR-17-16. At his sentencing hearing, Petitioner acknowledged all of the rights he was waiving by pleading guilty (i.e. right to a jury trial, to a direct appeal, and his right against self-incrimination). Petitioner agreed to such waiver, and admitted he was entering into his plea voluntarily after consulting with his attorney, that he had not been threatened to plead guilty, and that he was not under the influence of drugs or alcohol. (DE # 12-8, pp. 5-8) Petitioner was sentenced to 40 years' imprisonment with a suspended imposition of sentence for life. Id. Petitioner was not entitled to a direct appeal and furthermore did not file a petition for post-conviction relief pursuant to Ark. R. Crim. P. 37.1.

         On March 15, 2017, Petitioner filed a writ of habeas corpus in the Circuit Court of Lee County, Arkansas, where he is currently imprisoned, which was subsequently denied on March 20, 2017. See Docket Report for Story v. State of Arkansas, 39CV-17-37. Petitioner appealed the circuit court's decision to deny habeas corpus relief to the Arkansas Supreme Court. On appeal, Petitioner argued that his writ should have been granted because: (1) the judgment in his criminal case was illegal; (2) the trial court lacked jurisdiction in the case because the judgment did not conform to his signed plea bargain; (3) he was sentenced for aggravated robbery and first-degree murder, but the sentencing order only reflected the first-degree murder conviction; (4) the authorities illegally seized his property; (5) his ...


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