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Pusha v. Payne

United States District Court, E.D. Arkansas

October 1, 2019

MICHAEL PUSHA ADC # 105492 PETITIONER
v.
DEXTER PAYNE, Director[1] 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 entered into a negotiated plea of guilty to aggravated robbery on September 6, 2018, in Pulaski County Circuit Court. (DE # 11-3) He was sentenced to 10 years in the Arkansas Department of Correction. Id. Petitioner did not appeal and did not seek any form of post-conviction relief in state court.

         On May 9, 2019, Petitioner filed his pro se habeas petition pursuant to 28 U.S.C. § 2254. (DE # 2) Petitioner asserts the following claims: (1) actual innocence; (2) unlawful seizure of evidence; (3) prosecutor failed to disclose favorable evidence; (4) double-jeopardy violation; (5) ineffective assistance of trial counsel; (6) prosecutorial misconduct; and (7) judicial misconduct. Id. Respondent filed his Response on June 28, 2019, admitting that Petitioner is in his custody and has no unexhausted, non-futile state remedies available to him. (DE # 11) Respondent, however, denies that Petitioner is entitled to an evidentiary hearing or any federal habeas corpus relief because he waived the constitutional claims he asserts in his petition with his guilty plea, and alternatively, because his claims are procedurally defaulted. Id. Petitioner filed his Reply on July 12, 2019, arguing that he had ...


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