Davis v. Noeth

Background

Kevin Davis, representing himself, filed a petition under 28 U.S.C. § 2254 challenging his 2007 sentence for first-degree criminal sexual act. He alleged ineffective assistance of counsel because his attorney did not properly investigate his criminal history for sentencing, and he alleged that he was incorrectly sentenced as a persistent violent felony offender.

The petition was assigned initially to District Judge Louis L. Stanton, who determined that it was untimely and issued an order requiring Davis to explain why it should not be denied as barred by the filing deadline. The matter was later reassigned to Judge Lorna G. Schofield and referred to Magistrate Judge Ona T. Wang for a report and recommendation.

Timeliness and equitable tolling

The Antiterrorism and Effective Death Penalty Act requires most federal petitions challenging state convictions to be filed within one year of the applicable triggering date. Judge Wang concluded that Davis’s deadline expired on March 12, 2010—one year after his judgment became final, when the time to seek permission to appeal to New York’s highest court ended.

Davis argued that his diagnosis with prostate cancer and his lack of awareness of the federal filing requirements justified equitable tolling, which can extend a deadline in extraordinary circumstances. The court noted that Davis was diagnosed on September 29, 2015, five years after the filing deadline had expired. It also concluded that his misunderstanding of the law did not qualify as an extraordinary circumstance. The Report therefore recommended denying the petition as untimely.

Review and ruling

The Report was mailed to Davis on March 14, 2023, and any objections were due by March 31, 2023. No timely objections were filed. Because there were no timely objections, Judge Schofield reviewed the Report for clear error rather than conducting a fresh review of each disputed issue.

Judge Schofield found no clear error and adopted the Report in full. The order thus adopted the recommendation denying Davis’s petition as untimely. The court stated that Davis had not made the required substantial showing that a constitutional right was denied, so a certificate of appealability would not issue. It also certified that an appeal from the judgment would not be taken in good faith and denied permission to appeal without paying filing fees. The Clerk was directed to mail the order to Davis and terminate the case.