Smith v. Clarke

Filing 36

MEMORANDUM OPINION. Signed by District Judge James C. Cacheris on 3/10/2016. (dvanm, )

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

Tony Bryan Smith,
Petitioner,

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v.

)
)
)

Harold Clarke,

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)

Respondent.

l:15cvl91 (JCC/IDD)

)
MEMORANDUM OPINION

Tony Bryan Smith, a Virginia inmate proceedingpro se, has filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his conviction of

aggravated malicious wounding and conspiracyto commit first degree murder in the Circuit
Court of the City of Virginia Beach. On July 6,2015, respondent filed a Motion to Dismiss and
Rule 5 Answer, along with a supporting brief. Smith was provided the opportunity to file
responsive materials, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) and Local
Rule 7K, and after receiving an extension of time he filed a reply on September 23, 2015.

Accordingly, the matter is now ripe for disposition. For the reasons that follow, respondent's
Motion to Dismiss will be granted, and the petition will be dismissed, with prejudice. Petitioner's
Motion for Judgment, in which he asks that his petition be granted based on the allegedly

untimely filing of respondent's Motion to Dismiss, will be denied.
I. Background
On January 13,2011, following a jury trial, Smith was convicted of aggravated malicious

wounding and conspiracy to commit first degree murder. Case Nos. CR09-1079 and CR09-

1108. By Order entered May 13, 2011, he was sentenced to serve fifty (50) years in prison. The

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