United States District Court, E.D. Arkansas, Eastern Division
JERRY SMITH Reg. #29176-001 PETITIONER
v.
DEWAYNE HENDRIX, Warden FCI - Forrest City Low RESPONDENT
PROPOSED FINDINGS AND RECOMMENDED
DISPOSITION
INSTRUCTIONS
The
following recommended disposition has been sent to United
States District Court Judge D. P. Marshall, 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 A 149 Little Rock, AR
72201-3325
DISPOSITION
For the
reasons explained below, it is recommended Petitioner's
Petition for Writ of Habeas Corpus (DE # 1) be DISMISSED
without prejudice.
Procedural
History
This
matter is before the undersigned United States Magistrate
Judge of the District Court on the petition of federal
prisoner Jerry Smith for a writ of habeas corpus pursuant to
28 U.S.C. § 2241. (DE # 1) Petitioner's prison
sentence derives from a plea agreement in the United States
District Court for the Northern District of Alabama where he
pleaded guilty to three counts of transporting a minor in
interstate commerce for the purpose of engaging in illicit
sexual conduct. Petitioner was sentenced to a term of
imprisonment of 120 months on each count, to run
concurrently. (DE # 5-2) He did not appeal his conviction or
sentence.
On
February 7, 2013, petitioner sought relief under 28 U.S.C.
§ 2255, in the Northern District of Alabama; however,
the motion to vacate, set aside, or correct sentence was
denied. See Smith v. United States, Case #
3:13-cv-08002 (N.D. Ala. 2014). The Petitioner did not appeal
to the United States Court of Appeals for the Eleventh
Circuit. On February 27, 2019, Petitioner filed an
Application for Writ of Habeas Corpus under 28 U.S.C. §
2241, arguing actual innocence. See Case #
3:19-cv-8010-SLB (N.D. Ala. 2019) Petitioner's
application was denied and dismissed with prejudice for lack
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