United States District Court, E.D. Arkansas, Pine Bluff Division
PROPOSED FINDINGS AND RECOMMENDATIONS
JOE J.
VOLPE UNITED STATES MAGISTRATE JUDGE
INSTRUCTIONS
The
following recommended disposition has been sent to United
States District 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 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 (if such a
hearing is granted) was not offered at the hearing before the
Magistrate Judge.
3. The details of any testimony desired to be introduced at
the new hearing 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 new hearing.
From
this submission, the District Judge will determine the
necessity for an additional evidentiary hearing. 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
I.
BACKGROUND
Derrick
L. Johnson-Bey is a prisoner of the Arkansas Department of
Correction, who, according to Arkansas court records, was
convicted on November 26, 1996, in the Pulaski County Circuit
Court of two counts of aggravated robbery, a single count of
theft of property, and a single count of commercial
burglary.[1] Additionally, Petitioner pleaded guilty to
a single count of murder in the first degree and battery in
the first degree in the same court on December 5, 1996.
According
to the instant Petition, Mr. Johnson-Bey has “exhausted
all [his] Administrative Remedies in Pulaski County Circuit
Court.” (Doc. No. 2 at 4.) Petitioner remarks that
exhaustion has been fulfilled by filing “a notice in
the nature of writ of error coram nobis, ” “a
demand for dismissal or state the proper jurisdiction,
” and “a tort notice complaint for
racketeering/deprivation of rights/conspiracy against
rights.” (Id.) He provides no other details
regarding these filings, but records located through the
Arkansas Judiciary indicate Mr. Johnson-Bey filed the
petition for a writ of error coram nobis with the
Pulaski County Circuit Court on May 17, 2017. This petition
was denied on April 22, 2019.
II.
STANDARD OF REVIEW
The
Court is guided by Rule 4 of the Rules Governing Section 2254
Cases in the United States District Courts, which directs
district courts to dismiss habeas petitions when it
“plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to
relief.” Rule 4 of the Rules Governing § 2254
cases (mandating sua sponte dismissal of ...