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, )

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