Smith v. Commonwealth of Virginia
Filing
26
MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 9/10/13. Copy sent: Yes(tdai, )
IN THE UNITED
STATES
DISTRICT
COURT
FOR THE 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
U.S.C.
of
Petition"
habeas
corpus
(ECF No.
pursuant
8).)
to
28
In his § 2254 Petition,
§
2254
("§ 2254
Smith makes the
following claims:
Claim 1
Counsel
failed
use
performed
to
them
witness.
witness,
obtain
to
impeach
These
who
deficiently
Smith's
records
because
school
the
and
Commonwealth's
would
identified
he
records
show
Smith
that she knew him from school,
that
by
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.)
By Memorandum Opinion and Order entered on
September 17, 2012,
the Court denied Respondent's initial Motion
to Dismiss and directed Respondent to file a response addressing
the merits
of Smith's
claims.
(ECF No.
19.)
Respondent
has
moved to dismiss on the grounds that Smith defaulted his claims1
and that
No.
22)
his
3,
claims
5-9.)
lack merit.
For
the
(Mem.
reasons
Supp.
that
Mot.
follow,
Dismiss
the
Court
(ECF
will
dismiss Smith's claims as lacking in merit.
I.
In
Virginia
the
Circuit
PROCEDURAL
Court
("Circuit Court"),
for
HISTORY
the
County
by
a
convicted
felon.
the Circuit Court entered final
December
years
10,
the
(Va. Ct. App.
Dec.
v.
Smith,
On June 8,
2009
judgment and sentenced Smith to
Court
Smith's petition for appeal.
09-2
Commonwealth
imprisonment.
2009,
George,
and possession of a
(Va. Cir. Ct. Dec. 16, 2008).
No. CR07000115-00
twenty-five
Prince
a jury convicted Smith of burglary,
use of a firearm in commission of a robbery,
firearm
of
(State
of
Appeals
Smith v.
10, 2009).
R.
Ct.
of
140-41.)
Virginia
Commonwealth,
On
denied
No.
1100-
Smith pursued no appeal in
1 Respondent moves to dismiss on the ground that Smith's
claims are unexhausted and defaulted because he never presented
these claims to the Supreme Court of Virginia and that court
would find them barred from review now. (Mem. Supp. Mot. Dismiss
2-4.)
Respondent argues that Martinez v. Ryan, 132 S. Ct. 1309
(2012),
fails
to
excuse
the
default
in
this
Smith never filed a state habeas petition.
the
Court's
belief
that
the
claims
instance
(Id. 3-4.)
are
because
Despite
unexhausted
and
defaulted, in light of Martinez and Trevino v. Thaler, 113 S.
Ct. 1911 (2013), and the evident lack of merit of the underlying
claims,
judicial
economy
dictates
that
the
court
address
the
merits Smith's claims.
See Daniels v. Hinkle, No. 3:11CV675,
2012 WL 2792199, at *1 (E.D. Va. July 9, 2012) (citing Yeatts v.
Angelone,
166 F.3d 255, 261 (4th Cir. 1999)).
the Supreme Court of Virginia,
he
filed
a
subsequent
nor does the record indicate that
habeas
petition
in
any
Virginia
state
court.
II.
To
INEFFECTIVE ASSISTANCE OF COUNSEL
demonstrate
convicted
ineffective
defendant
representation
performance
show
was
deficient
prejudiced
the
466 U.S.
668,
prong
Strickland,
of
must
687
"^strong presumption'
and
of
first,
second,
defense.
(1984).
the
assistance
counsel,
that
that
Strickland
a
counsel's
the
v.
deficient
Washington,
To satisfy the deficient performance
convicted defendant
that
counsel's
must
strategy and
overcome
tactics
the
fall
^within the wide range of reasonable professional assistance.'"
Burch v.
Corcoran,
273
F.3d
Strickland,
466
U.S.
at
Strickland,
the
577,
prejudice
588
689).
(4th Cir.
The
component,
second
requires
2001)
(quoting
component
a
of
convicted
defendant to "show that there is a reasonable probability that,
but
for
counsel's
unprofessional
errors,
proceeding would have been different.
is
a
probability
outcome."
sufficient
Strickland,
466
to
the
of
the
A reasonable probability
undermine
U.S.
result
at
ineffective assistance of counsel claims,
confidence
694.
In
in
the
analyzing
it is not necessary to
determine whether counsel performed deficiently if the claim is
readily dismissed for lack of prejudice.
Id. at 697.
In
Smith's
who
Claim
school
testified
Smith
claims
never
attended
the
One,
records
that
that
faults
to
she
school
school
fruitless
Anderson
Smith
impeach
might
with
knew
Smith.
less
than
with Smith,
was
to
Teobie
Smith
demonstrate
that
Smith
failing
Anderson,
from
that
obtain
school.
Anderson
reasonably eschewed
Smith
the
How she
urges
here.
individual
who
knew Smith before
little impact on her unwaivering identification
of Smith as the burglar.
was
known
Counsel
tactic
that
for
witness,
would
committed the robbery and burglary.
the burglary has
a
have
records
impeachment
clearly
counsel
certain
Anderson readily acknowledged that she
about
when,
and
if,
she
attended
school
but she was certain that she knew him.
Anderson testified that,
during the burglary,
when she and
her two children were held at gunpoint by one of the burglars in
her daughter's bedroom, the burglar's mask slipped, and
it was a familiar face.
I seen him at school,
I seen
him in the community, and it was so shocking to me I
couldn't say nothing but the name that I knew him by.
I was like "Boo-Boo, why would you do this with my
kids here?
Why you doing this in front of my kids?"
And as soon as I said the name that I knew him by, he
disappeared.
(Dec.
16,
2008 Tr.
55.)
Anderson further testified that she and
Smith were "in the same age bracket" and "Petersburg is a small
city."
(Id. )
knew his name,
the
burglary,
She explained that she knew him "in passing,"
and had
but
seen him as recently as a month before
"never
had
any
direct
dealings
with
him."
(Id.
at 55,
together,
When asked where she and Smith attended school
Anderson
together,
one
76.)
explained
that
they
"never
had
classes
but ... in junior high or high school it's more than
grade
Peabody
level
Middle
acknowledged
Peterburg
And
School."
that
High
importantly,
....
she
Anderson
(Id.
did
School
I think it
with
at
not
testified
77.)
believe
her.
had to
Peabody or
Anderson
that
(Id.
that
be
at
she
had
Smith
77,
a
readily
attended
79.)
clear
More
view
of
Smith's face the night of the burglary because the light was on
in her daughter's bedroom.
(Id. at 56, 69, 74.)
She identified
Smith as the burglar in a photo-display in less than ten seconds
and again in the courtroom.
Because
light
Smith
of Anderson's
(Id. at 56-60.)
demonstrates
unwaivering
no
deficiency
identification
of
of
counsel
Smith,
in
Claim
One will be dismissed.
In
Claim
Two,
Smith
faults
counsel
for
failing
to
have
Smith tried separately on the charge of possession of a firearm
by a convicted felon.
Smith claims that counsel "didn[']t get
my posses[s]ion of a firearm after being convicted of a felony
set aside so that the jury wouldn[']t hear it, even after I told
him it would hurt me."
(§ 2254
Pet.
7.)
He claims that the
"jury threw out the 2 robberies and gave me 25 years for the gun
and B&E."
(Id.)
While he fails to expressly so to state,
the
Court
understands
that
Smith
faults
counsel
for
allowing
the
jury to hear that he was a convicted felon.
The
Commonwealth
conviction
Dismiss.
of
8;
put
possession
Dec.
16,
forth
of
2008
evidence
cocaine
Tr.
in
of
1998.
(Br.
108-09.)
In
overwhelming evidence of showing that Smith was
of
a
firearm
Smith
in
the
demonstrates
no
be
of
prejudice
request
that
firearm
by
a
convicted
felon.
into
a
house
night,
broke
Smith
commission
tried
at
a
felony
from
and
a
baby,
at
gun
point
while
to
of
the
the
burglary,
failure
possession
be
to
of
a
individual
police,
and
a six-year-old child,
demanding
unequivocally identified Smith as one of the
individual who pointed
Mot.
guilty of using
another
pretending
subsequently held a family of two adults,
and
light
and
the
prior
Supp.
counsel's
separately on
Smith
Smith's
money.
Anderson
burglars
and the
a gun at her and her children.
Thus,
Smith fails to demonstrate that a reasonable probability exists
of a different result at his trial if counsel had requested that
Smith
be
tried
separately
on
the
felon
in
possession
of
a
firearm count.
III.
For
the
foregoing
Dismiss (ECF No.
21)
reasons,
CONCLUSION
Respondent's
will be granted.
will be denied and the action dismissed.
Second
Motion
to
Smith's § 2254 petition
An appeal may not be
taken from the final order in a § 2254 proceeding unless a judge
issues
a
certificate
§ 2253(c)(1)(A).
A
of
appealability
COA will not
("COA").
issue unless
28
U.S.C.
a prisoner makes
"a substantial showing of the denial of a constitutional right."
28 U.S.C.
§ 2253(c)(2).
A petitioner satisfies this requirement
only when "reasonable jurists could debate whether
matter,
agree that)
the petition should have been resolved in a
different manner or that the issues presented were
deserve encouragement
529 U.S.
473,
880,
& n.4
893
484
(or, for that
to proceed further.'"
(2000)
(1983)).
^adequate to
Slack v.
McDaniel,
(quoting Barefoot v.
Estelle,
Smith
this
fails
to meet
463 U.S.
standard.
A
certificate of appealability will therefore be denied.
The
Clerk
is
directed
to
send
a
copy
of
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: September
/(?, 2013
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