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Smith v. Payne

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

September 18, 2019

STEVEN J. SMITH ADC # 656564 PETITIONER
v.
DEXTER PAYNE, Director Arkansas Department of Correction RESPONDENT

          PROPOSED FINDINGS AND RECOMMENDATIONS

         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 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 before the District Judge (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.
3. The detail of any testimony desired to be introduced at the hearing before the District Judge 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 hearing before the District Judge.

         From this submission, the 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

         For the reasons explained below, it is recommended that Petitioner's Petition for Writ of Habeas Corpus (DE # 2) be DISMISSED with prejudice.

         Background

         Petitioner Steven Smith, an inmate in the Arkansas Department of Correction (“ADC”), bring this petition for writ of habeas corpus under 28 U.S.C. § 2254. Petitioner is serving sentences for multiple convictions and parole revocations. (DE # 8-2, 8-3, and 8-4) Rather than challenging his convictions or sentences, however, the Petitioner's challenge relates to a disciplinary he received while incarcerated on December 12, 2018. (DE # 2) On December 12, 2018, Corporal Felecia Edwards was scanning the incoming mail when she noticed a box addressed to Petitioner from a law office. The package appeared to have “suspicious contents” inside, so Corporal Edwards notified Lieutenant Davis. (DE # 8-5) The Major Disciplinary Report stated as follows:

On December 12, 2018, at approx. 11:50am, I Lt. B. Davis received a box labeled legal mail addressed to Inmate Steven Smith #656564. I Lt. B. Davis called inmate Smith to the Captains [sic] office and asked him if he was expecting legal mail from The Law Office of Jerry Jenkins PA and he responded yes. I opened the box and asked him if the legal papers were his and he said yes[.] [A]t this time I Lt. B. Davis notice that the box contain [sic] a false bottom. I Lt. B. Davis lifted the bottom and noticed a vacuumed sealed package that contained 295 grams of tobacco (that tested positive for meth), 50 grams of green leafy substance that (tested positive for K2) and 5 grams of a green leafy substance that (tested positive for marijuana and K2). At that time Inmate Smith stated I don't know anything about any drugs. Inmate Smith ...

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