Martin v. Payne

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION GREGORY MARTIN PETITIONER ADC #170561 Case No: 4:20-cv-00048 KGB-PSH DEXTER PAYNE, Director, RESPONDENT Arkansas Division of Corrections ORDER The Court has reviewed the Findings and Recommendation (“Recommendation”) submitted by United States Magistrate Judge Patricia S. Harris (Dkt. No. 18). Judge Harris’s Recommendation recommends that petitioner Gregory Martin’s petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 be dismissed without prejudice to allow Mr. Martin to exhaust his state court remedies (Dkt. No. 18, at 3). Mr. Martin did not object to the Recommendation; however, respondent Dexter Payne filed a letter with the Court notifying it that, after Judge Harris submitted her Recommendation, the Arkansas Supreme Court granted Mr. Martin’s motion to file a belated appeal of his conviction (Dkt. No. 19). Director Payne attached to his letter the opinion of the Arkansas Court of Appeals denying Mr. Martin’s appeal (Dkt. No. 19-1). See Martin v. State, 2021 Ark. App. 463, 1 (2021). Because it appears to the Court based on Director Payne’s submission that Mr. Martin attempted exhaustion of his state court remedies while Judge Harris’s Recommendation was pending before this Court, the Court declines to adopt Judge Harris’s Recommendation. The case is referred back to Judge Harris for further proceedings. So ordered this 17th day of January, 2023. Kristine G. Baker United States District Judge