United States District Court, E.D. Arkansas, Western Division
PROPOSED FINDINGS AND RECOMMENDATIONS
INSTRUCTIONS
The
following recommended disposition has been sent to United
States Chief District Court 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 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 A 149 Little Rock, AR
72201-3325
DISPOSITION
Petitioner
is currently detained at the Arkansas State Hospital pursuant
to a civil commitment, under Act 911, in Pulaski County
Circuit Court. See Monroe v. Arkansas State Hospital et
al., No. 4:17-cv-00171-JTK (DE # 9, Ex. B). On November
23, 2018, he initiated this 28 U.S.C. § 2254 habeas
action (DE # 2) along with a Motion for Leave to Proceed In
Forma Pauperis (DE # 1). For the reasons set forth below, it
is recommended that Petitioner's petition be denied
without prejudice and his Motion for Leave to Proceed In
Forma Pauperis (DE # 1) be denied as moot.
Petitioner
has previously challenged his confinement pursuant to 28
U.S.C. § 2241. See No. 4:17-cv-00171-JTK (DE #
1). In the previous petition, he alleged he was being held in
the Arkansas State Hospital but was not mentally ill, and he
requested this Court to “release me from Act 911”
and the hospital. Id. On May 19, 2017, the
Respondent filed a Motion to Dismiss stating that Petitioner
was in the custody of the Department of Human Services and
that, the case should be dismissed for his failure to exhaust
state remedies, as well as lack of jurisdiction, and failure
to state a claim. Id. at DE # 9. This Court entered
an order granting the Respondent's Motion to Dismiss, and
by judgment on June 20, 2017, the action was dismissed
without prejudice for failure to exhaust state remedies.
Id. at DE # 14 and 15.
As a
matter of comity, the state courts should have the first
opportunity to review federal constitutional issues and to
correct federal constitutional errors made by the state's
trial courts. O'Sullivan v. Boerckel, 526 U.S.
838, 844-45 (1999). A federal habeas petitioner is thus
required to exhaust all available avenues of relief in the
state courts before the federal courts will consider a claim.
28 U.S.C. § 2254(b) & (c). State remedies are not
fully exhausted if a petitioner “has the right under
the law of the State to raise, by any available procedure,
the question presented.” Id. at §
2254(c). This requires state prisoners to “give the
state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the
State's established appellate review process.”
O'Sullivan, 526 U.S. at 845. In order to exhaust
properly, a federal habeas petitioner must “fairly
present” all of his claims to the state court. See
Abdullah v. Groose, 75 F.3d 408, 411 (8th Cir. 1996).
Furthermore,
a federal court is prevented from granting habeas relief
“based on a constitutional violation that could be
redressed adequately by pursuing an avenue of state relief
‘still open to the habeas applicant at the time he
files his application in federal court'.”
Humphrey v. Cady, 405 U.S. 504, 516 (1972) (citing
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