Jackson v. Kelley

Filing 26

ORDER declining without prejudice 16 Recommendation. Motions, 12 & 15 , granted. Case stayed. Amended habeas petition due ninety days after state proceedings conclude. Status report due by 1 June 2016. Signed by Judge D. P. Marshall Jr. on 11/18/2015. (jak)

Download PDF
IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION CALVIN EUGENE JACKSON, ADC #134338 v. PETITIONER No. 5:14-cv-388-DPM-JJV WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT ORDER On de novo review, the Court declines the recommendation, NQ 16, without prejudice. FED. R. CIV. P. 72(b)(3). The Court appreciates Magistrate Judge Volpe's good work thus far. But three points give the Court pause. First, the current record is equivocal on prejudice - that is, whether Jackson would have proceeded to trial but for the alleged errors. Compare NQ 1at5 with NQ 1at8 and NQ 24 at 4. Second, Jackson has fleshed out his ineffectiveness claims significantly after the recommendation. NQ 19-24. For example, at his change-of-plea hearing, he said several times that he didn't intend to kill the victim- an element of first-degree murder. E.g., NQ 20 at 14, 21-22;ARK. CODE ANN.ยง 5-10-102(a)(2). Nonetheless, his lawyer told the trial court there was a sufficient factual basis for the plea; and the trial court accepted the plea. NQ 20 at 19. And third, review of the trial court docket shows Jackson is working to perfect an appeal of the Rule 37 proceedings in his case. In these circumstances, the Court concludes a stay is appropriate. Jackson's prose status likely provides good cause for his failure to exhaust state post-conviction remedies. Cf Martinez v. Ryan, 132 S. Ct. 1309, 1320 (2012). There's no evidence he's purposefully delayed his case. And his claims aren't all plainly meritless. Rhines v. Weber, 544 U.S. 269, 277-78 (2005). Waiting for the state proceedings to end will promote comity and may smooth some wrinkles in this case. The Court therefore grants Jackson's motions for a stay. NQ 12 & 15. The Court will hold Jackson's habeas petition in abeyance pending exhaustion of state remedies. After the state proceedings conclude, Jackson will have ninety days to file an amended petition with this Court. If he fails to do so, then Kelley may move to lift the stay. *** Recommendation, NQ 16, declined without prejudice. Motions, NQ 12 & 15, granted. Case stayed. Amended habeas petition due ninety days after state proceedings conclude. Status report due by 1June2016. -2- So Ordered. D .P. Marshall f{ United States District Judge -3-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?