Smith v. Commonwealth of Virginia

Filing 35

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 5/31/13. Copy sent: Yes(tdai, )

IN THE UNITED

STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

FREDERICK J.

SMITH,

JR.,

Petitioner,
v.

Civil Action No.

3:12CV148

COMMONWEALTH OF VIRGINIA,

Respondent.
MEMORANDUM OPINION

By Memorandum Opinion and Final Order entered on
2013,

the Court found Frederick J. Smith,

petition

barred

dismissed
871519,
before

the

at

the

action.

*6

the

by

(E.D.

Court

pursuant

to

No. 28),

on

to File

R.

statute

of

v.

Virginia,

Mar.

8,

2013).

Smith's

Civ.

Motion

P.

59(e)

The

for

matter

and

2013

WL

now

comes

Reconsideration

filed

(("Rule

Request Leave to Amend

§ 2254

limitations

3:12CV148,

8,

59(e)

Motion")

ECF

(("Motion to Amend")

and Notice of Appeal/Request for Extension of Time

(ECF No.

30) .
I.

Smith's

Jr.'s 28 U.S.C.

Smith

Va.

Motion to

ECF No. 29),

Fed.

one-year

March

brief

Motion

MOTION TO AMEND

to

Amend

seeks

to

add

one

claim

of

"inadequate factfinding procedure employed by trial court" and

one claim that the trial court "failed to ensure the competency
of

counsel."

(Mot.

Amend

1.)

Smith

states

that

both

claims

were

"detailed in

the

attached memorandum

in

support."

(Id.)

Leave to amend is appropriately denied where the amendment would
be futile.
Cir.

See United States v.

2000).

barred

by

the

Virginia,

2013) .

The

Court

§ 2254

Petition

claims

are

to

Accordingly,

WL

reason,

by

28

the

Smith's

(4th

2254

Petition

as

Smith

v.

Mar.

8,

at

§

317

limitations.

of

*6

(E.D.

Va.

any attempt by Smith to amend his
would also

one-year

U.S.C.

209 F.3d 314,

Smith's

871519,

add claims

barred
under

statute

2013

For the same

petitions

dismissed

one-year

3:12CV148,

Pittman,

§

to

futile,

statute

2254.

Motion

be

See

Amend

of

28

the new

limitations

U.S.C.

(ECF

as

No.

§

for

2244(d).

29)

will

be

denied.

II.

The

Fourth

Circuit

under Rule 59(e):
controlling law;

at

trial;

manifest

(4th
F.

Co.,

he

(3)

1993)
1406,

130 F.R.D.

Motion,
is

(2)

to

to

injustice."

Cir.

Supp.

or

"(1)

RULE 59(e) MOTION

recognizes

three

account

correct

a

for

new evidence not

clear

Hutchinson v.

(D. Md.

625,

626

relief

error

of

Staton,

994

v.

law

available

or

prevent

F.2d 1076,

Koppers

Co.,

1081

771

1991); Atkins v. Marathon LeTourneau

(S.D.

Smith briefly states,
entitled to

for

to accommodate an intervening change in

(citing Weyerhaeuser Corp.
1419

grounds

equitable

Miss.

without
tolling

1990)).

In his Rule 59(e)

supporting argument,
and

is

actually

that

innocent,

and then proceeds to rehash the merits of his claims brought in
his §

2254

Petition.

Smith

fails

to

demonstrate

a

clear

error

of

other basis for granting relief under Rule 59(e).

law

or

any

Smith failed

to file a timely § 2254 Petition and the statute of limitations

bars the action.

Accordingly,

Smith's Rule 59(e) Motion will be

denied.

Smith

also

filed a Notice

of

Appeal/Request

for

Extension

of Time to File Notice of Appeal seeking an extension of time in

which to file his Notice of Appeal.
certain

motions,

including

a

When a party timely files

Rule

59(e)

Motion,

"the

time

to

file an appeal runs . . . from the entry of the order disposing
of the last such remaining motion."

Thus,

the

Court's

time

to

disposal

file

of

an

Smith's

Fed.

appeal
Rule

runs
59(e)

Smith's Notice of Appeal /Request for
(ECF No.

30)

The

R. App.

from

P.

the

Motion.

4(a) (4) (A) .

date

of

the

Accordingly,

Extension of Time to

File

will be denied.

Clerk

is

directed

to

send

a

copy

Robert E.

of

this

Memorandum

Payne

Opinion to Smith.
And

it is

so ORDERED.

/,/
^rf.

Date:

^

^^T^/^/p

Richmond,

Virginia

/US

Senior United States District Judge