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Marbley v. Kelley

United States District Court, E.D. Arkansas, Western Division

September 5, 2019

DREVION MARBLEY PETITIONER
v.
WENDY KELLEY, Director of the Arkansas Department of Correction RESPONDENT

          FINDINGS AND RECOMMENDATION

         INSTRUCTIONS

         The following proposed Recommendation has been sent to United States District Judge Kristine G. Baker. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection, and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.

         DISPOSITION

         Petitioner Drevion Marbley (“Marbley”) began the case at bar by filing what appeared to be a petition for writ of habeas corpus pursuant to 28 U.S.C. 2254. See Docket Entry 1. In the petition, he attacked his conviction in an unidentified case from an unidentified jurisdiction.

         Marbley did not accompany his petition with the requisite filing fee or otherwise obtain permission to proceed in forma pauperis. The undersigned apprised him of his oversight and directed him to either pay the filing fee or file an application to proceed in forma pauperis. See Docket Entry 2. In the same order, the undersigned noted that Marbley did not use the standard form for filing a petition pursuant to 28 U.S.C. 2254. He instead wrote his petition out in longhand on plain, lined paper. Because use of the form is extremely beneficial, as it prompts the petitioner to provide information about the conviction under attack, Marbley was sent the form and encouraged to re-submit his petition on the form.

         Marbley eventually paid the filing fee. See Docket Entry 3. In the typical case, the undersigned would have immediately ordered the petition served. This case, though, is atypical because Marbley did not use the standard form in filing his petition and did not provide information about the conviction under attack. For instance, Marbley did not identify his custodial agent, the offenses he was convicted of committing, or the name and location of the court that entered the judgment of conviction under attack. He was afforded another opportunity to re-submit his petition on the form or otherwise provide information about the conviction under attack. See Docket Entry 5.

         Marbley also filed a pleading that was construed as a motion to amend. See Docket Entry 4. Although the motion was later denied, it contained some information about the conviction under attack. For instance, he identified the offenses he was convicted of committing, the name of his attorney, and the name of the deputy prosecuting attorney. Given those representations, the undersigned assumed that Marbley was attacking his Pulaski County Circuit Court conviction in case number 2018-2449.

         The undersigned gave Marbley an opportunity to re-submit his petition on the standard form, but he failed to do so. The undersigned then ordered the petition served on respondent Wendy Kelley (“Kelley”), whom the undersigned believed to be Marbley's custodial agent. See Docket Entry 6. In the order, Marbley was notified of his obligation to comply with the Federal Rules of Civil Procedure and the Local Rules of this Court. He was specifically notified of Local Rule 5.5(c)(2), which provides, in part, as follows:

It is the duty of any party not represented by counsel to promptly notify the Clerk and the other parties to the proceedings of any change in his or her address, to monitor the progress of the case, and to prosecute or defend the action diligently. ... If any communication from the Court to a pro se plaintiff is not responded to within thirty (30) days, the case may be dismissed without prejudice. ...

         Kelley thereafter obtained an extension of time to file a response to the petition. The granting of the motion is noteworthy because a copy of the order sent to Marbley could not be delivered as he was no longer at the address he provided at the time he began this case. See Docket Entry 10.

         Kelley eventually filed the pending motion to dismiss. See Docket Entry 11. In an accompanying brief, she maintained that the petition should be dismissed without prejudice for the following reasons:

... [Marbley] has failed to correct the deficiencies as order by this Court; consequently, the petition, as submitted, fails to demonstrate a plausible claim for relief. It fails to identify the judgment or convictions it attacks; it is not signed or verified; its allegations, even liberally construed, are too conclusory to plausibly state a claim of constitutional error; and its allegations do not show, as they must, that Marbley has exhausted his state remedies. And, beyond the facial insufficiencies, public records affirmatively demonstrate that Marbley, by his counsel, is presently exhausting the ordinary course of state remedies that are available for review of the judgment that the Court assumes to be at issue here. The Court, therefore, cannot award Marbley the relief he ostensibly seeks, and his petition should be dismissed without prejudice.

See Docket Entry 12 at CM/ECF 17.

         Before giving serious consideration to Kelley's assertions, the undersigned gave Marbley up to, and including, September 2, 2019, to file a response. See Docket Entry 13. Marbley was asked to explain why his petition should not be dismissed for the reasons offered by Kelley. Marbley was also again notified of his obligation to comply with Local Rule 5.5(c)(2) and warned that his failure to comply with the rule might be considered as a reason for recommending the dismissal of his petition. A copy of the order ...


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