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Carter v. Kelley

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

June 13, 2019

PERNELL CARTER ADC # 078790 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 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 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 Petitioner's Petition for Writ of Habeas Corpus (DE # 2) be DISMISSED with prejudice.

         Procedural History

         In 2016, Petitioner pled guilty to first-degree murder in exchange for a thirty (30) year sentence (to be followed by 10 years' suspended imposition of sentence) before a Crittenden County Circuit Court. (DE # 12-2 pp. 2-4) At the plea hearing, the Petitioner acknowledged that he understood the rights he was giving up by entering a guilty plea. The sentencing order was filed on February 12, 2016. Id. Petitioner did not file a petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1.

         After the expiration of time for filing for postconviction relief, Petitioner began filing a series of pleadings attacking his guilty plea and conviction. On October 27, 2016, Petitioner filed a Motion to Modify Sentencing Order, requesting the court to modify his sentencing order to reflect what he alleged to be the true terms of his plea agreement. (DE # 12-2 pp. 17-20) Subsequently, on November 4, 2016, Petitioner filed a Petition for Declaratory Judgment and Memorandum of Law making the same allegation that the true terms of his plea agreement, making him eligible for parole after serving 70% of his sentence, were not complied with and asking the court to “order that the 100% be removed and that Petitioner be eligible for parole after serving 70% of the thirty (30) year sentence.” Id. at pp. 29-38. On January 17, 2017, Petitioner filed a pro se Writ of Error Coram Nobis alleging that: (1) his co-defendant, Joseph Lee Toney, told him that the prosecutor coerced Co-Defendant Toney into falsely stating that Petitioner killed the victim; (2) that Fredrick Williams is the person that actually killed the victim, and Petitioner is “actually innocent of the murder”; (3) the prosecution withheld evidence (that Co-Defendant Toney claimed he made false statements about the Petitioner to get a reduced sentence), and Petitioner claims if he had known such information he would not have pled guilty; and (4) the “prosecutions nondisclosure of a promise to Co-Defendant Joseph Lee Toney that his First Degree Murder Charge would be reduced to Attempted First Degree Murder in exchange for his false testimony against Petitioner is a Due Process Violation that merits Petitioner being allowed to withdraw his 30 year plea deal and be granted a Jury Trial.” Id. at 5-9. Lastly, on June 29, 2017, Petitioner filed a pro se Petition for Writ of Mandamus with the Arkansas Supreme Court, requesting for the court to rule on the above-referenced pleadings. (DE # 12-3 pp. 1-5) On June 27, 2017, the Crittenden County Circuit Court entered an Omnibus Order Denying Relief on the three ...


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