Green v. Kelley

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

         Procedural History

         On December 14, 2014, a Mississippi County Circuit Court jury found Petitioner, Tevarius Green, guilty of capital murder in the shooting death of Daniel Goodwin. Petitioner received life without the possibility of parole in the Arkansas Department of Correction (“ADC”). On appeal, to the Arkansas Supreme Court, Petitioner argued the circuit court abused its discretion by admitting into evidence a photograph of the victim at the crime scene. On October 8, 2015, the Arkansas Supreme Court affirmed the conviction. Green v. Arkansas, 2015 Ark. 359, 471 S.W.3d 200.

         Petitioner filed a Rule 37 petition on December 28, 2015, and amended petition thereafter. Following a hearing, the circuit court issued a ruling dismissing the petition on November 9, 2016. (DE #13-5) He sought to appeal the court's ruling, and filed a Notice of Appeal on December 5, 2016. He also filed an Affidavit in Support of Request to Proceed In Forma Pauperis. (DE #13-6) The Court determined Petitioner was not indigent and assessed an initial partial filing fee of twenty ($20) dollars. (DE #13-6) Petitioner subsequently abandoned appeal from the denial of his Rule 37 petition. Petitioner filed the instant federal habeas petition on February 14, 2018. In it, he states he abandoned his appeal because he could not afford to pay the filing fee. (DE #1) His points for reversal include: (1) ineffective assistance of trial counsel for failing to raise jurisdictional issues pursuant to the Interstate Agreement on Detainers; (2) ineffective assistance of trial counsel due to a conflict of ...