Small v. Director, TDCJ-CID

• Court: District Court, E.D. Texas
• Decided: September 22, 2025
• Docket: 5:25-cv-00021
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TEXARKANA DIVISION § LARKAY SMALL, § § Petitioner, § § CASE NO. 5:25-CV-21-RWS-JBB v. § § DIRECTOR, TDCJ-CID, § § Respondent. § §

ORDER Petitioner Larkay Small, proceeding pro se, filed this petition for writ of habeas corpus under 28 U.S.C. § 2254, challenging the legality of his conviction. The case was referred to the United States Magistrate Judge in accordance with 28 U.S.C. § 636. On August 9, 2024, Petitioner pled guilty to assault on a public servant. Docket No. 1 at 1. He received a sentence of five years in prison, running consecutively to the sentences he is already serving. Id. Petitioner claims, and court records confirm, that he did not appeal his conviction or seek habeas corpus relief in state court, meaning that his grounds for relief have never been presented to the Texas Court of Criminal Appeals in a procedurally proper manner. Id. at 3. After review, the Magistrate Judge issued a Report recommending that the petition be dismissed without prejudice for failure to exhaust state remedies as required by 28 U.S.C. § 2254(b). Docket No. 7 at 3. A copy of this Report was sent to Petitioner at his last known address, but no objections have been received. The Fifth Circuit has explained that where a letter is properly placed in the United States mail, a presumption exists that the letter “reached its destination in the usual time and was actually received by the person to whom it was addressed.” Faciane v. Sun Life Assurance Co. of Can., 931 F.3d 412, 420–21 and n.9 (5th Cir. 2019) (quoting U.S. v. Ekong, 518 F.3d 285, 286–87 (5th Cir. 2007)). Because no objections were filed, Petitioner is barred from de novo review of the findings, conclusions, and recommendations of the Magistrate Judge and, except upon grounds of plain

error, from appellate review of the unobjected-to factual findings and legal conclusions accepted and adopted by the District Court. See Duarte v. City of Lewisville, Tex., 858 F.3d 348, 352 (5th Cir. 2017) (“[W]e review for plain error any of the Magistrate Judge’s factual findings and legal conclusions that were accepted by the district court and to which Appellants failed to object.”). The Court has reviewed the pleadings in this cause and the Report of the Magistrate Judge. After review, the Court concludes that the Report of the Magistrate Judge is correct. See United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.), cert. denied, 492 U.S. 918 (1989) (where no objections to a Magistrate Judge’s Report are filed, the standard of review is “clearly erroneous, abuse of discretion and contrary to law”). Accordingly, it is ORDERED that the Report of the Magistrate Judge (Docket No. 7) is ADOPTED as the

opinion of the District Court. It is further ORDERED that the above-styled petition for the writ of habeas corpus is DISMISSED WITHOUT PREJUDICE for failure to exhaust state remedies. It is further ORDERED that Petitioner Larkay Small is denied a certificate of appealability sua sponte, with this denial referring solely to an appeal of the decision in this case and having no effect upon Petitioner’s right to seek relief in state court through any proper means, or to again seek relief in federal court in the event that the state courts do not grant him the relief he seeks. Iti is further ORDERED that any and all motions which may be pending in this civil action are hereby DENIED-AS-MOOT. So ORDERED and SIGNED this 22nd day of September, 2025.

Joober LU? frerrs ecse. □□□ = ROBERT W. SCHROEDER III UNITED STATES DISTRICT JUDGE

Page 3 of 3