SMALL v. STATE OF INDIANA
Filing
9
ORDER DISMISSING HABEAS PETITION AND DIRECTING ENTRY OF FINAL JUDGMENT - The motions at dkts. 6 and 7 , are denied, and this action is dismissed without prejudice for failure to exhaust state court remedies and because a claim about money damages is not cognizable. Pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Court, the clerk is directed to send Mr. Small a copy of this Order to notify him that this matter has been dismissed without prejudice. Final judgment shall issue by separate order. No certificate of appealability shall issue. SEE ORDER. Copy sent to Plaintiff via US Mail. Signed by Judge James Patrick Hanlon on 1/28/2025. (JRB)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
GEORGE A. SMALL,
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Petitioner,
v.
STATE OF INDIANA,
Respondent.
No. 1:24-cv-02084-JPH-CSW
ORDER DISMISSING HABEAS PETITION AND DIRECTING
ENTRY OF FINAL JUDGMENT
Petitioner George Small is a pretrial detainee presently confined at the
Marion County Jail. He filed this petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2241 challenging his pretrial detention related to Indiana case
number 49D23-2405-CM-013977. This is the sixth such petition he has filed
challenging his detention in that state matter. See Small v. State of Indiana, 1:24cv-942-JRS-TAB, Small v. State of Indiana, 1:24-cv-01868-TWP-KMB, Small v.
State of Indiana, 1:24-cv-02066-JRS-KMB, Small v. State of Indiana, 1:24-cv02071-JRS-KMB, and Small v. State of Indiana, 1:24-cv-02072-MPB-KMB.
I.
Rule 4 Dismissal
Rule 4 of the Rules Governing Section 2254 Cases in the United States
District Court provides that upon preliminary consideration by the district court
judge, "[i]f it plainly appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the petitioner."
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II.
Background and Discussion
Mr. Small was arrested for residential entry and criminal trespass in May
2024 and charged in Indiana case number 49D23-2405-CM-013977. Dkt. 1 at
1. In his petition, he alleges that his right to a speedy trial has been violated, and
he requests to be released and to receive $200 million. Id.
The Court takes judicial notice of the chronological case summary of case
49D23-2405-CM-013977, available at mycase.in.gov, which reflects that this
matter is still pending given the trial court's recent determination that Mr. Small
is incompetent to proceed to trial.
Mr. Small filed a habeas petition on June 3, 2024, challenging the same
proceeding in Small v. State of Indiana, 1:24-cv-942-JRS-TAB. In that case, the
Court explained that Mr. Small's petition must be dismissed because criminal
defendants incarcerated by a state awaiting trial may seek a writ of habeas
corpus from federal courts only if they are raising speedy trial or double jeopardy
claims. Small v. State of Indiana, 1:24-cv-942-JRS-TAB, dkt. 4 at 1-2 (S.D. Ind.
June 7, 2024) (citing 28 U.S.C. § 2241(c)(3); Walker v. O’Brien, 216 F.3d 626,
633 (7th Cir. 2000); Jackson v. Clements, 796 F.3d 841, 843 (7th Cir. 2015);
Stroman Realty, Inc. v. Martinez, 505 F.3d 658, 662 (7th Cir. 2007) (citing
Younger v. Harris, 401 U.S. 37, 43, 49 (1971)); Braden v. 30th Judicial Circuit
Court of Ky., 410 U.S. 484, 489?92 (1973)). Mr. Small did not raise any
cognizable claim, nor had he exhausted any claims in state court before filing
his habeas petition in this Court. Id. Thus, the Court dismissed the petition
without prejudice and entered final judgment. Id. at dkts. 4, 5.
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After his case was dismissed, Mr. Small continued to file amended
petitions and other frivolous motions. Small v. State of Indiana, 1:24-cv-942JRS-TAB at dkts. 6, 8, 11, 14, 15, 19, 20. Ultimately, the Court issued a sanction
wherein Mr. Small is restricted from filing any papers related to his pretrial
detention in case number 49D23-2405-CM-013977. See dkt. 8.
Unlike in Mr. Small's previous habeas petitions, he does raise both speedy
trial and double jeopardy claims in this petition and in the motions for writ of
habeas corpus, dkt. [6], and motion for court assistance, dkt. [7].
But Mr. Small's petition must still be dismissed without prejudice. There
is no indication that Mr. Small has filed a motion for a speedy trial in state court,
or that he has exhausted either that issue or a double jeopardy claim by raising
it in the Indiana Court of Appeals. Further, because he is currently incompetent
to proceed to trial, his trial proceedings are at a standstill until his competence
is restored. See Olsson v. Curran, 328 F. App'x 334, 335 (7th Cir. 2009) (holding
dismissal to be appropriate where petitioner had not exhausted his speedy trial
claims through state court remedies).
Further, Mr. Small's request for monetary damages is not cognizable in a
habeas action.
In summary, Mr. Small's petition here must be dismissed. His claim for
money damages is not cognizable, and his speedy trial and double jeopardy
claims are unexhausted. The motion for writ of habeas corpus, dkt. [6], and
motion for court assistance for writ of habeas corpus, dkt. [7], are denied
because, like his original petition filed in this case, they concern unexhausted
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claims. Because no reasonable jurist would disagree with the Court's resolution
of this action, no certificate of appealability shall issue. 28 U.S.C. § 2253(c).
III.
Conclusion
For these reasons, the motions at dkts. [6] and [7], are denied, and this
action is dismissed without prejudice for failure to exhaust state court
remedies and because a claim about money damages is not cognizable. Pursuant
to Rule 4 of the Rules Governing Section 2254 Cases in the United States District
Court, the clerk is directed to send Mr. Small a copy of this Order to notify him
that this matter has been dismissed without prejudice. Final judgment shall
issue by separate order. No certificate of appealability shall issue.
Pursuant to this Court's order in Small v. State of Indiana, 1:24-cv-942JRS-TAB, Mr. Small may no longer file any papers related to his pretrial
detention in case number 49D23-2405-CM-013977 with the exception of a
notice of appeal. That said, Mr. Small is notified that if he chooses to file a notice
of appeal, he will have to pay a $605.00 filing fee, and he will only be able to
proceed in forma pauperis if this Court determines that the appeal is not brought
in bad faith. Newlin v. Helman, 123 F.3d 429, 434 (7th Cir. 1997) (overruled on
other grounds by Walker v. O'Brien, 216 F.3d 626 (7th Cir. 2000)).
SO ORDERED.
Date: 1/28/2025
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Distribution:
GEORGE A. SMALL
MARION COUNTY JAIL
MARION COUNTY JAIL
ADC Mail Room
695 Justice Way
Indianapolis, IN 46203
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