Small v. Orange County Court, Prosecutors Office
- Kenneth Karas
- 7:18-cv-02716
- U.S. District Court · Southern District of New York
- 3
In David H. Small v. Orange County Court, Prosecutors Office, Judge Karas dismissed Small’s habeas petition as untimely after adopting a recommendation finding no equitable tolling.
David H. Small’s federal challenge to his New York convictions and sentence was dismissed as untimely. The respondent was Orange County Court, Prosecutors Office.
What happened
David H. Small v. Orange County Court, Prosecutors Office concerned Small’s challenge to his New York convictions and sentence. He filed the federal petition without a lawyer after state courts denied his later challenge to the judgment and sentence.
A magistrate judge recommended dismissing the petition because it was filed too late and the deadline should not be extended for exceptional reasons. Small did not object to that recommendation.
Judge Kenneth M. Karas adopted the recommendation in its entirety and dismissed the petition. The court also denied a certificate allowing an appeal and certified that any appeal would not be taken in good faith.
The detailed version
- Small v. Orange County Court, Prosecutors Office · No. 7:18-cv-02716
- Kenneth Karas
- Mar. 5, 2020
Background
Following a jury trial, David H. Small was convicted in County Court, Orange County, of second-degree burglary, first-degree attempted rape, and second-degree unlawful imprisonment on July 23, 2008. He received concurrent determinate prison terms of 12 years for the burglary and attempted-rape convictions, five years of post-release supervision, and one year for unlawful imprisonment. The Appellate Division vacated the attempted-rape conviction but otherwise affirmed the judgment, and the New York Court of Appeals denied leave to appeal.
Small later filed a state-court motion seeking to challenge the judgment or set aside the sentence on the burglary count. County Court denied that motion, the Appellate Division affirmed, and the Court of Appeals denied leave to appeal.
Proceeding without a lawyer, Small filed a federal petition for a writ of habeas corpus on March 27, 2018. The matter was referred to Magistrate Judge Lisa M. Smith, who issued a report and recommendation on August 1, 2019.
Recommendation and review
Judge Smith recommended denying the petition in its entirety because it was barred by the statute of limitations and did not qualify for equitable tolling. Equitable tolling is an exception that can extend a filing deadline in appropriate circumstances. Small did not object to the report and recommendation.
Because there were no objections, Judge Karas reviewed the recommendation for clear error. He reviewed the recommendation and the petition and found no substantive error.
Ruling
Judge Karas ordered that the report and recommendation be adopted in its entirety and that the petition be dismissed. The order does not state whether the dismissal was with or without prejudice.
The court also ordered that no certificate of appealability would issue because Small had not made a substantial showing that a constitutional right was denied. It further certified under 28 U.S.C. § 1915(a)(3) that any appeal from the order would not be taken in good faith, directed the Clerk to close the case, and directed that a copy of the order be mailed to Small.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.