IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS TEXARKANA DIVISION

THOMAS FLEMING PETITIONER

v. Case No. 4:24-cv-04023

SHERIFF WAYNE EASLEY RESPONDENT

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION Before the Court is a Petition under

for Writ of Habeas Corpus by a Person in State Custody. ECF No. 1. This Petition was filed by Thomas Fleming (“Fleming”) on March 22, 2024. ECF No. 1. No response has been filed and no service has been ordered. This Petition has been referred to the undersigned and is now ripe for consideration. I. BACKGROUND Fleming’s claims in the instant Petition relate to him being held in custody in Miller County Arkansas. According to the state court docket in Miller County, Fleming is the defendant in two ongoing state court criminal cases. The dockets in these cases reveal the cases are both set for jury trial on May 28, 2024.1 According to his Petition he identifies the crimes for which he was convicted and sentenced as “Felony Y Rape X3 and 2nd degree battery of an officer Felony D”. ECF No. 1, p.1. However, in the next section of his Petition he indicates “he pled guilty, and I haven’t been sentenced or convicted yet. I have been here 10 1/2 months.”

Petitioner makes clear he has not been sentenced and in fact states he has not filed direct appeal in the state criminal case because “I haven’t been sentenced yet.” ECF No. 1, p. 5. He claims he filed a “motion to surpress

1 The dockets in Fleming’s state court cases are accessible through https://caseinfo.arcourts.gov. Fleming’s case numbers are 46CR-23-384 State v. Thomas Fleming (Miller County Circuit); and 46CR-24-72 State v. Thomas Fleming (Miller County Circuit). evidence…I acknowledged this to my Attorney Josh Potter and I also filed motion to surpress evidence with Penny Kilcrease. They have not scheduled a surpress hearing. I also filed a motion to dismiss with Penny Kilcrease due to inconsistent errors and lack of evidence.”

For relief in the instant Petition, Fleming seeks to have “dismissal of charges without prejudice”. ECF No. 1 p. 14.

II. DISCUSSION Fleming filed this Petition pursuant to

. Section 2254 requires that a petitioner be “in custody pursuant to the judgment of a State court . . .” Here, Petitioner by his own pleading admits he is not yet in custody pursuant to any state court judgment. Further, under the plain language of

(b), this Petition cannot be granted “unless it appears that— (A) the applicant has exhausted the remedies available in the courts of the State; or (B) (i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process

ineffective to protect the rights of the applicant.” Under the clear terms of Subsection A, this Petition cannot be considered until Fleming has exhausted his state court remedies. Additionally, pursuant to Subsection B, there has been no demonstration or claim that there are no State court processes which could be used by Fleming to obtain relief for the claims he makes here. III. CONCLUSION Accordingly, because such a Petition is not ripe for consideration by this Court, it is recommended this Petition under

be DENIED without prejudice. The Parties have fourteen (14) days from receipt of this Report and Recommendation in which to file written objections pursuant to

(b)(1). The failure to file timely objections may result in waiver of the right to appeal questions of fact. The Parties are reminded that objections must be both timely and specific to trigger de novo review by the district court. See Thompson v. Nix,

(8th Cir. 1990). DATED this 8th day of April 2024. /s/ Barry A. Bryant HON. BARRY A. BRYANT U. S. MAGISTRATE JUDGE