Carmichael v. Rockwood
- Kenneth Karas
- 7:20-cv-10622
- U.S. District Court · Southern District of New York
- 3
In Carmichael v. Annucci, Judge Karas dismissed the habeas petition as time-barred after adopting the magistrate judge’s recommendation.
Drayvon Carmichael, whose federal petition challenging his conviction and sentence was dismissed as time-barred; Anthony J. Annucci, who was substituted as respondent.
What happened
In Carmichael v. Annucci, the petitioner challenged his New York conviction and sentence through a federal petition seeking release from unlawful custody. The petition followed his convictions for first-degree identity theft and two counts of second-degree criminal possession of a forged instrument.
A magistrate judge recommended dismissing the petition as filed too late. The petitioner did not object, and the court reviewed the recommendation for clear error. It found no substantive error and adopted the recommendation in its entirety.
Judge Kenneth M. Karas ordered that the petition be dismissed. He also ruled that no certificate allowing an appeal would issue and certified that any appeal would not be taken in good faith. The clerk was directed to close the case.
The detailed version
- Carmichael v. Rockwood · No. 7:20-cv-10622
- Kenneth Karas
- Apr. 10, 2023
Background
The petition challenged a conviction and sentence from a jury trial in New York Supreme Court, Dutchess County. The opinion states that the petitioner was found guilty on March 6, 2017, of first-degree identity theft and two counts of second-degree criminal possession of a forged instrument. The Appellate Division affirmed the conviction, and the New York Court of Appeals denied leave to appeal.
The petitioner filed the federal petition under 28 U.S.C. § 2254 on December 15, 2020. The court referred the petition to Magistrate Judge Paul E. Davison. The respondent opposed the petition, and the petitioner filed a traverse.
Report and Recommendation
On December 23, 2022, Judge Davison issued a Report and Recommendation advising the court to dismiss the petition in its entirety as time-barred. The recommendation explained that objections were due within the applicable period and that failing to object would waive the petitioner’s right to appeal certain issues. The petitioner filed no objections.
Because there were no objections, the district court reviewed the recommendation for clear error. The court stated that it reviewed the petition and the recommendation and found no substantive error, clear or otherwise.
Ruling
Judge Kenneth M. Karas adopted the Report and Recommendation in its entirety and ordered that the petition be dismissed. The opinion does not add a with-prejudice or without-prejudice designation to that dismissal.
The court also ordered that a certificate of appealability would not issue because the petitioner had not made a substantial showing that a constitutional right was denied. It certified under 28 U.S.C. § 1915(a)(3) that any appeal from the order would not be taken in good faith. The clerk was directed to mail the order to the petitioner and close the case.
The opinion contains an apparent inconsistency: its caption identifies the petitioner as Drayvon Carmichael, while the opening paragraph refers to “Miguel Martinez” as the petitioner. The opinion also states that Anthony J. Annucci was substituted as respondent because the petitioner had been released to parole supervision, and directed the clerk to amend the caption.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.