Phillips v. Kelley

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         INSTRUCTIONS

         The following recommended disposition has been sent to United States District Court 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 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 that follow, it is recommended that the Petition for Writ of Habeas Corpus (DE #2) be DISMISSED with prejudice.

         Procedural History

         On February 29, 2008, a Pulaski County Circuit Court, accepted Petitioner, Justin Ramon Phillips's guilty plea in No. 2006-3473, on the charges of kidnapping and rape. The court sentenced Petitioner to 396 months in the Arkansas Department of Correction. The court also revoked Petitioner's probation in No. 2002-2124, and Petitioner received 120 months incarceration to run consecutive to the 396 month sentence. (DE ## 8-2 and 8-3) Pursuant to Rule 1(a) of the Arkansas Rules of Appellate Procedure-Criminal, Petitioner was not entitled to challenge the validity of his guilty plea in a direct appeal. Petitioner admits he did not seek post-conviction relief, pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure, due to “mental ilness.” (DE #1, at p.2) Arkansas law requires a Rule 37 petition be filed within ninety (90) days of the entry of judgment. There are no non-futile state remedies available to the Petitioner.

         On March 23, 2016, Petitioner's counsel filed a Petition for Writ of Habeas Corpus (DE #1), pursuant ...