United States District Court, E.D. Arkansas, Pine Bluff Division
FRED L. WILLIAMS ADC #093355 PETITIONER
WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT
PROPOSED FINDINGS AND RECOMMENDATIONS
VOLPE UNITED STATES MAGISTRATE JUDGE.
following recommended disposition has been sent to United
States District Judge Billy Roy Wilson. 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.
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
1. Why the record made before the Magistrate Judge is
2. Why the evidence proffered at the hearing (if such a
hearing is granted) was not offered at the hearing before the
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.
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
Fred L. Williams, an inmate at the East Arkansas Regional
Unit of the Arkansas Department of Correction
(“ADC”), filed a Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 2.)
Pending before the Court is Respondent Wendy Kelley's
Motion to Dismiss for failure to exhaust state court
remedies. (Doc. Nos. 12-13.) Mr. Williams has responded (Doc.
No. 14), and this matter is now ripe for a decision. After
careful review, and for the following reasons, I find the
Motion to Dismiss should be GRANTED. Mr. Williams's
habeas petition should be dismissed without prejudice.
RULE 4 AND RULE 12(b)(6) STANDARDS
of the Rules Governing Section 2254 Cases in the United
States District Courts mandates dismissal of a habeas
petition “[i]f it plainly appears from the petition and
any attached exhibits that the petitioner is not entitled to
relief in the district court.” Rule 12(b)(6) of the
Federal Rules of Civil Procedure authorizes a court to
dismiss a claim on the basis of a dispositive issue of law.
Neitzke v. Williams, 490 U.S. 319, 326 (1989). If,
as a matter of law, “it is clear that no relief could
be granted under any set of facts that could be proved
consistent with the allegations, ” a claim must be
dismissed, without regard to whether it is based on an
outlandish legal theory or on a close but ultimately
unavailing one. Id. at 327 (quoting Hishon v.
King & Spalding, 467 U.S. 69, 73 (1984)); see
also O'Neal v. State Farm Fire & Cas. Co., 630
F.3d 1075, 1077 (8th Cir. 2011). In addition to the
complaint, the court may consider matters of public record,
orders, items appearing in the record of the case, and
exhibits attached to the complaint. See Porous Media
Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir.