Smith v. Hendrix

          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 ...