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Gregory v. Payne

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

August 1, 2019

RORY ALLEN GREGORY ADC #088783 PETITIONER
v.
DEXTER PAYNE [1], Director, Arkansas Department of Correction RESPONDENT

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         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 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 A149 Little Rock, AR 72201-3325

         Disposition

         Pending before the Court is the Petition for Writ of Habeas Corpus filed by Rory Allen Gregory. (Doc. No. 2) After reviewing the parties' briefing and the available evidence, the undersigned recommends that the petition be denied and the case dismissed with prejudice.

         Background

         On or about August 19, 2014, the Baxter County (Arkansas) prosecuting attorney charged Rory Allen Gregory as a habitual offender with two counts of theft of property, second degree battery, fleeing, aggravated assault, two counts of criminal mischief, criminal trespass, and resisting arrest.[2] (Doc. No. 10-3) Petitioner subsequently pleaded guilty to the charges on October 2, 2014, and the Baxter County Circuit Court sentenced him to 180 months in the Arkansas Department of Correction (“ADC”). (Doc. Nos. 10-2 and 10-4)

         Petitioner was released on parole on April 3, 2017. Petitioner signed and acknowledged his conditions of release that included that he obey all federal, state, and local laws. (Doc. No. 10-5) Petitioner states in his habeas petition that, upon release, his doctor prescribed both Hydrocodone and Ambien on April 17, 2017. (Doc. No. 2) He claims that, on April 18, 2017, ...


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