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)

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.§ 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-