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Gipson v. Kelley

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

August 20, 2018

OTIS D. GIPSON ADC #080856 PETITIONER
v.
WENDY KELLEY, Director Arkansas Department of Correction RESPONDENT

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION INSTRUCTIONS

         The following recommended disposition has been sent to United States District Court Judge Billy Roy Wilson. 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 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 United States District Judge, you must, at the same time that you file your written objections, include a “Statement of Necessity” that sets forth the following:

1. Why the record made before the Magistrate Judge is inadequate.
2. Why the evidence to be proffered at the requested hearing before the United States District Judge was not offered at the hearing before the Magistrate Judge.
3. An offer of proof setting forth the details of any testimony or other evidence (including copies of any documents) desired to be introduced at the requested hearing before the United States District Judge.

         From this submission, the United States 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 outlined below, it is recommended Petitioner's Motion to Stay (DE #2) be denied and his Petition for Writ of Habeas Corpus (DE#1) dismissed without prejudice.

         Procedural History

         Petitioner is currently serving a thirty-five (35) year prison sentence for rape. A Pulaski County Circuit Court jury found him guilty of raping his girlfriend's two minor daughters and sentenced him as a habitual offender. His sentence was affirmed on appeal after he challenged two evidentiary rulings. Gipson v. State, 2013 Ark.App. 651. Gipson later filed an untimely Rule 37 petition that the trial court denied by order dated June 22, 2016. On January 22, 2018, Petitioner filed a state habeas corpus petition in Lee County Circuit Court. The matter was transferred to the Pulaski County Circuit Court on February 6, 2018. Respondent filed a Response to the Petition on August 1, 2018. See Gipson v. Kelley, No. 60CV-18-3795, Pulaski County Circuit Court, Sixth Judicial District, Seventh Division.

         Petitioner filed the current writ of habeas corpus in this Court on April 11, 2018, alleging ineffective assistance of counsel. On May 9, 2018, he asked to stay the ...


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