Smith v. Commonwealth of Virginia

Filing 16

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 2/23/12. Copy sent: Yes(tdai, )

IN THE UNITED
FOR THE

STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

Richmond Division

TIMOTHY NATHANIEL SMITH,

Petitioner,
v.

Civil Action No.

3:11CV06

COMMONWEALTH OF VIRGINIA,

Respondent.
MEMORANDUM OPINION

Petitioner,

Timothy

Nathaniel

Smith,

a

Virginia

inmate

proceeding pro se and in forma pauperis,

filed this petition for

a writ of habeas

U.S.C.

corpus pursuant to 28

§ 2254

("§ 2254

Petition").

Respondent has moved to dismiss on the grounds that

the

Petition

§

2254

is

barred

applicable to § 2254 petitions.

by

the

statute

(Docket No.

of

12.)

limitations

Smith has not

replied.

I.

In

the

Circuit

PROCEDURAL HISTORY

Court

for

the

County

of

Prince

George,

Virginia ("Circuit Court"), a jury convicted Smith of burglary,
use of a firearm in commission of a robbery, and possession of a

firearm

by

a

convicted

No. CR07000115-00

the Circuit

Court

felon.

Commonwealth

(Va. Cir. Ct. Dec. 16, 2008).

entered

Smith,

On June 8,

final judgment wherein

Smith to twenty-five years imprisonment.

v.

2009

it sentenced

(State Ct. R. 140-41.)

On

December

10,

2009,

Smith's petition
09-2

(Va.

appeal

in

indicate

the

for appeal.

Ct.

App.

the

Supreme

that

Court

he

Dec.

10,

a

Appeals

Smith v.
2009) .

Court

filed

of

of

of

Commonwealth,
Smith

Virginia,

subsequent

Virginia

did

nor

habeas

No.

not

does

denied
1100-

pursue

the

petition

an

record
in

any

Court,

an

Virginia state court.
On

January

10,

2011,

Smith

filed,

unsigned copy of the § 2254 Petition.1

in

this

In his § 2254 Petition,

Smith makes the following claims:
Claim 1

Counsel
failed

use

performed
to

them

witness.

witness,

obtain

to

impeach

These

who

deficiently

Smith's

the

records

he

records

and

Commonwealth's

would

identified

because

school

show

Smith

that she knew him from school,

by

that

the

stating

never went to

school with Smith.

Claim 2

Counsel

rendered

ineffective

assistance

when

he failed to obtain a separate trial for
Smith on the charge of possession of a
firearm by a convicted felon.
(§ 2254 Pet.

6-8.)

Normally,

courts

deem a § 2254

petition

filed as

of

the

date the petitioner swears he or she placed it in the prison
mailing system.
See Houston v. Lack, 487 U.S. 266, 276 (1988).
Here, however, Smith neither signed nor dated his original,
handwritten § 2254 Petition. Thus, the § 2254 Petition's filing
date is the date it was received by this Court.
Smith submitted
a signed copy of the § 2254 Petition on March 18, 2011.

II.

A.

ANALYSIS

Statute of Limitations

Respondent contends that the federal statute of limitations
bars

Smith's

Effective

claims.

Death

Section

Penalty Act

101

of

("AEDPA")

the

Antiterrorism

amended

28

U.S.C.

§

and

2244

to establish a one-year period of limitation for the filing of a

petition

for

pursuant

to

U.S.C.

1.

a

writ

the

§ 2244(d)

of

habeas

judgment

of

a

corpus
state

by

a

person

court.

in

custody

Specifically,

now reads:

A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a
State court.
The limitation period shall run
from the

(A)

latest

of—

the date on which the judgment became
final
by
the
conclusion
of
direct
review or the expiration of the time
for seeking such review;

(B)

the date on which the impediment to
filing an application created by State
action
or

in

laws

violation
of

the

of

the

United

Constitution
States

is

removed, if the applicant was prevented
from filing by such State action;
(C)

the

date

on

which

the

constitutional

right asserted was initially recognized
by the Supreme Court, if the right has
been newly recognized by the Supreme
Court and made retroactively applicable
to cases on collateral review;

(D)

or

the date on which the factual predicate
of the claim or claims presented could
have
been
discovered
through
the
exercise of due diligence.

28

2.

The
time
during
which
a
properly
filed
application for State post-conviction or other
collateral review with respect to the pertinent
judgment or claim is pending shall not be counted
toward
any
period
of
limitation
under
this
subsection.

28 U.S.C.

§ 2244(d).

Because

the

Court

of

Appeals

of

petition for appeal on December 10,

Virginia

2009,

Braxton,

277

F.3d 701,

704

Smith's

his conviction became

final for the purposes of the AEDPA on Monday,
Hill v.

denied

(4th Cir.

January 11, 2010.
2002)

("[T]he one-

year limitation period begins running when direct review of the
state

conviction

direct

review

is

completed

has

expired

§ 2244(d)(1)(A)); Va.
had

one

year,

or

petition.

§ 2254

Petition on

expired.

Petition
10,

2011

28

is

January 10,

filed

prior

.

to

time

seeking

28

U.S.C.

11,

Smith then

2011,

to

Smith

file

a

filed the

before the one-year period

suggests

failed

However,

it

for

(citing

§ 2244(d)(1).

2011,

the

."

January

Smith

if

the

5:14(a)2 (2010).

Respondent

Petition.

timely

system

R.

U.S.C.

untimely because

§ 2254

when

.

Tuesday,

Nevertheless,

"considered
mailing

See

.

Sup. Ct.

until

§ 2254

or

is

a

to
§

that

sign the
2254

deposited

running

of

the

in
the

§

January

petition

the

2254

is

prison

statute

of

2 This rule requires appellants to file a notice of appeal
within thirty days after the entry of the judgment in the Court
of Appeals of Virginia.
Va. Sup. Ct. R. 5:14 (a).

limitations,

even if it does not comply with Rule 2 of the Rules

Governing Section 2254 Cases[3] or it lacks the requisite filing
fee or in forma pauperis

form."

2007

n.8

WL

rules

4232732,

and

§ 2254

at

cases).

Petition

*2

Thus,

as

Dean v.

(E.D.

Respondent's

barred

by

the

No.

Nov.

Va.

Johnson,

2007)

27,

request

statute

to

of

2:07cv320,

(citing

dismiss

the

limitations

is

should dismiss

the

denied.

B.

Non-exhaustion

Respondent

action

for

also

lack

of

suggests

that

exhaustion.

the Court

Before

a

state

prisoner

bring a § 2254 petition in federal district court,
must

of

first

the

have

"exhausted

State."

28

the

U.S.C.

remedies

available

§ 2254 (b) (1) (A) .

can

the prisoner
in

the

State

courts

exhaustion

"''is rooted in considerations of federal-state comity,'" and in
the

congressional

exhaustion

of

determination

adequate

state

policies of federalism.'"
473, 479

475,

(E.D. Va. 2005)

491-92

& n.10

via

federal

remedies

Slavek v.

will

Hinkle,

(quoting Preiser v.

(1973)).

habeas

laws

'best

"that

serve

359 F.

Rodriguez,

Supp.

the

2d

411 U.S.

The purpose of exhaustion is "to

give the State an initial opportunity to pass upon and correct
alleged violations of its prisoners' federal rights."
Connor,

404

U.S.

270,

275

(1971)

(internal

Picard v.

quotation

marks

3 Rule 2 of the Rules Governing Section 2254 Cases requires,
inter alia,

that petitioners sign their § 2254 petitions under

penalty of perjury.

Rules Governing § 2254 Cases R. 2(c)(5).

omitted).

Exhaustion has two aspects.

First,

a petitioner must

utilize all available state remedies before he or she can apply
for federal habeas relief.

838,

844-48

all

available

petitioner

(1999).

As

state

"shall

See 0'Sullivan v.

to

whether

remedies,

not

be

the

deemed

a

have

available in the courts of the State
under the law of the State to raise,
the question presented."

The

have

offered

address

"To

second

the

the

state

must

court

discretionary

of

state's

the

State

'fairly
(including
review),

a

federal nature of the claim."
(2004)

habeas

remedies

a

on

claim

supreme

to

federal

habeas.

^opportunity,'

in

each

court

alerting

to

opportunity

adequate

petitioner

appropriate

with

that

powers

court

Baldwin v. Reese,

the

to

of
the

541 U.S. 27, 29

(quoting Duncan v. Henry, 513 U.S. 364, 365-66 (1995)).

Smith

§ 2254

requires

necessary

his

thereby

a

§ 2254(c).

advanced

state

that

by any available procedure,

claims

present'

exhausted

exhausted the

an

the

has

notes

courts

with

526 U.S.

. . . if he has the right

exhaustion

constitutional

provide

prisoner

aspect

28 U.S.C.

petitioner

statute

to

Boerckel,

never

presented either

Petition

Commonwealth

of

to

the

Virginia,

of

Supreme

the

Court

therefore,

has

claims

of
not

stated

in

Virginia.
been

the

The

given

"an

initial opportunity to pass upon and correct alleged violations
of

its

prisoners'

(internal

federal

quotation marks

rights."
omitted).

Picard,
Thus,

404

U.S.

Smith has

at

275

failed to

exhaust

Part

his

state

11(C),

court

dismissal

remedies.

without

However,

prejudice

as

for

explained supra

lack of

is not appropriate because Virginia's statute of
habeas
state

petitions
court.

See

circumstances,
presented

342,

364

152,

Dismiss

Cir.

2006)

from
§

(1996)).

claims

been

met."

have

Virginia,
Hedrick

Gray

Accordingly,

12)

claims

Under

of

(citing

these

8.01-654 (A) (2) .

Smith's
Court

bringing

limitations for

v.

v.

not
the

in

these

fairly

exhaustion

True,

443

F.3d

Netherland,

518

U.S.

Respondent's

Motion

to

will be denied.

Procedural Default

The
state

Ann.

Supreme

(Docket No.

C.

Code

"technically

(4th

161-62

Smith

though

the

is

bars

Va.

even

to

requirement

now

exhaustion

doctrine

court

of

clearly

habeas petitioner's

procedural
and

default

expressly

claim on

provides

bases

its

that

"[i]f

dismissal

a state procedural

rule,

of

a
a

and that

procedural rule provides an independent and adequate ground for

the dismissal,

the habeas petitioner has procedurally defaulted

his federal habeas claim."
(4th Cir.

32

1998)

(1991)).

Breard v.

(citing Coleman v.

A

federal

habeas

Pruett,

134 F.3d 615,

Thompson, 501 U.S.

petitioner

also

722,

619
731-

procedurally

defaults claims when the "petitioner fails to exhaust available
state remedies

and

'the court to which the petitioner would be

required to

present

requirement

would

his

now

claims

in

order

find the claims
7

to meet

the exhaustion

procedurally barred.'"

Id.

(quoting

pleading

Coleman,

501

U.S.

at

proving

that

a

claim

and

rests with the state.

707,

716

cause
this

(4th Cir.

and

Jones

2010)

prejudice

Court

cannot

Harris v. Reed,

a

review

Respondent

the

merits

If

present

the

This

Court,

1999);

default

F.3d

showing

of

claim.

defaulted

(E.D.

Va.

Smith

attempted

affirmative

however,

where

v.

may

it

of

justice,
See

3, 2010).

to

return to

sponte

166 F.3d 255,

3:09cv00167,

2010

WL

That is the case here.

state

court

to

raise

limitations

for

state

his

§ 8.01-

654(A)(2),

the

petitions.4

Virginia Code § 8.01-654(A)(2) states, in pertinent

part,

of

raise

significantly

they would be barred by Virginia Code
statute

of

would

Mahon,

Mar.

sua

defense

Angelone,

Yeatts v.

Trisler

at *3

claims,

a

591

a

of

raise

advance judicial efficiency.

772811,

Prison,

Absent

of

defaulted

miscarriage

not

does

of procedural

Cir.

burden

(1989).

the

(4th

The

procedurally

cases) .

262

default.

261

is

fundamental

255,

procedural

issue

n.l).

Sussex I State

(citing

or

489 U.S.

v.

735

habeas

that:

A

habeas

corpus

petition

conviction or sentence

years

from

the

date

attacking

a

criminal

. . . shall be filed within two

of

final

judgment

in

the

trial

court or within one year from either final disposition
of the direct appeal in state court or the time for
filing such appeal has expired, whichever is later.

This statute of limitations is an adequate and independent
state procedural rule.
Supp. 2d 584,

587-88

Sparrow v.

(E.D.

Va.

Dir.,

2006).
8

Dep't of Corr.,

439 F.

Va.

Code

Ann.

§

8.01-654 (A) (2)

(West

2011).

Smith

failed

to

file a petition for a writ of habeas corpus in any state court,
and Virginia Code § 8.01-654(A)(2)

a

petition

at

this

late

now bars him from filing such

date.5

Thus,

Smith's

claims

are

procedurally defaulted.
D.

Obtaining Review Despite Default

This Court may review a petitioner's procedurally defaulted

claims if the petitioner establishes either cause and prejudice
or actual innocence.

context

means

sufficient

to

an

Breard,

"objective

thwart

claims in state court.
Cir.

2007)

2004)).

an

134

F.3d at

factor

actual

Polk,

(citing Richmond v. Polk,

It

is

Smith's

183 n.10

(4th Cir. 2000).

to

"Cause" in this

to

the

defense"

correctly

file

476 F.3d 206,

375 F.3d 309,

responsibility

prejudice and/or actual innocence.

F.3d 172,

external

attempt

McNeill v.

620.

to

324

assert

the

214

(4th

(4th Cir.

cause

and

See Burket v. Angelone,

208

Smith has yet to address

either.

5 The Circuit Court entered final judgment in Smith's case
on June 8, 2009.
(State Ct. R. 140-41.)
On December 10, 2009,
the Court of Appeals of Virginia denied Smith's petition for
appeal.
Smith v. Commonwealth, No. 1100-09-2 (Va. Ct. App. Dec.
10, 2009).
Thereafter, Smith had 30 days, or until Monday,
January 11, 2010, to file a notice of appeal in the Supreme
Court
of Virginia.
Va.
Sup.
Ct.
R.
5:14
(West
2009).
Accordingly, Smith had until Wednesday, June 8, 2011, the later
of two years from the date of final judgment in the Circuit
Court and one year from the time to continue his direct appeal
expired, to file a state habeas petition.
Va. Code Ann. § 8.01654(A) (2) .

III.

For
(Docket

cause,

the
No.

foregoing
12)

within

will

thirty

CONCLUSION

reasons,

be

Respondent's

denied.

(30)

Smith will

days

of

the

Motion
be

entry

to

Dismiss

ordered to

hereof,

show

why

claims should not be dismissed as procedurally defaulted.

his

Smith

is warned that failure to comply with this order will result in
the dismissal of his § 2254 Petition.

The

Clerk

is

directed

to

send

Fed R. Civ.

a

copy

of

P. 41(b).

the

Memorandum

Opinion to Smith and counsel for Respondent.
An appropriate Order shall issue.

/s/

Robert E.

/££/

Payne

Senior United States District Judge
Richmond, Virginia
Date:

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