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Johnson-Bey v. Kelley

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

July 23, 2019

DERRICK L JOHNSON-BEY, ADC #110079 PETITIONER
v.
WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT

          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 ...


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