United States District Court, E.D. Arkansas, Western Division
FINDINGS AND RECOMMENDATION
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.
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.
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.
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.
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.
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. ...
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.
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.
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 ...