Smith v. Commonwealth Of Virginia

Filing 34

FINAL ORDER. The Court ORDERS that Respondent's 23 Motion to Dismiss is GRANTED, and the 1 Petition for a Writ of Habeas Corpus is DENIED and DISMISSED WITH PREJUDICE. It is further ORDERED that Judgment be entered in favor of Respondent. Signed by District Judge Mark S. Davis on 3/10/2017. Copies mailed 3/10/2017. (jmey, )

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Norfolk Division VALERIE K. SMITH, #1080429, Petitioner, V. ACTION NO. HAROLD W. 2:15cv428 CLARKE, Director of the Virginia Department of Corrections, Respondent. FINAL ORDER Valerie K. pro se petition U.S.C. § 2254. Smith for ("Smith")/ a a Virginia inmate, writ ECF No. habeas corpus, submitted a of pursuant to 28 17. The petition alleges violations of federal rights pertaining to Smith's convictions in the Circuit Court for the City of Newport News for robbery armed burglary commission of convictions. a (one count), felony (three and use counts). Smith was sentenced, of As a (three counts), firearm a in result of on October 17, 2001, the these to serve a 43-year active term of incarceration. The matter was referred to the United Judge pursuant to the provisions of 28 U.S.C. (C) for States Magistrate § 636(b)(1)(B) and and Rule 72 of the Rules of the United States District Court the Eastern District of Virginia for report and recommendation. 19, 2016, No. 23, The report and recommendation, recommends be that Respondent's and the granted, motion petition for filed December to a dismiss, writ of habeas corpus, ECF No. 17, be denied and dismissed with prejudice. No. 29. to the ECF ECF Each party was advised of the right to file objections findings Judge. On and recommendations January 27, 2017, made the by Court objections to the report and recommendation. The ECF No. 32. and objected to, novo does recommendations hereby set filed December 19, findings in record and with adopt forth the Smith's objections filed by Smith to the report and recommendation, de reviewed received the made having Magistrate examined having Court, the respect to and approve the the report and the portions findings and recommendation, 2016. In Smith's objections, she restates substantially the same arguments she raised in her petition regarding why she should be entitled namely, to of the statute of limitations: and limited access to the prison law library, ability obtain tolling that a lack of resources and deficient understanding of the law, her equitable a to police file a report timely petition, and a and disposition that of hampered she did not charges record- documents pertinent to her claims of ineffective assistance of counsel and prosecutorial misconduct—until years after her conviction became final, arguments were despite some efforts to do so. adequately addressed by the These Magistrate Judge's report and recommendation. The dismiss, habeas Court, therefore, ECF No. 23, corpus, PREJXJDICE. It is GRANTED, ECF is ORDERS No. 17, that Respondent's motion to and the petition for a writ of is DENIED and DISMISSED WITH further ORDERED that Judgment be entered in favor of Respondent. Smith has failed to demonstrate "a substantial the denial of a constitutional right," and, declines Rule therefore, showing of the Court to issue any certificate of appealability pursuant 22(b) Miller-El V. Smith of the Federal Cockrell, is hereby Rules of Appellate Procedure. to See 537 U.S. 322, 335-36 (2003). notified that she may appeal from the Judgment entered pursuant to this Final Order by filing a notice of appeal Courthouse, with the Clerk 600 Granby Street, of this Norfolk, Court, United States Virginia 23510, within thirty days from the date of entry of such Judgment. The Clerk shall mail a copy of this Final Order Petitioner and to counsel of record for Respondent. Mark S. Davis United States District Judge Mark S. Davis UNITED STATES DISTRICT JUDGE Norfolk, Virginia March 10 , 2017 to

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