Smith v. Commonwealth of Virginia

Filing 52

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 3/24/15. Copy sent: Yes(tdai, )

I
IN THE

UNITED

FOR THE

STATES DISTRICT

COURT

L

E

MAR 2 5 2015

EASTERN DISTRICT OF VIRGINIA

Richmond Division

CLERK, U.S. DISTRICTCOURT
RICHMOND, VA

FREDERICK J.

SMITH,

JR.,

Petitioner,
Civil Action No.

3:12CV148

Civil Action No.

v.

3:15CV182

COMMONWEALTH OF VIRGINIA,

Respondent.
MEMORANDUM OPINION

By Memorandum Opinion and Final
2013,

the Court found Frederick J.

petition

barred

dismissed

871519,

the

at

by

the

*5-6

(E.D.

Smith

Va.

and Order entered June 3,

Civ.

P. 59(e)

Motion.

Mar.

60(b)(6)

Motion.

the

Court's

Rule 59(e)
his

motion

denial

Motion,"
as

one

of

of

§ 2254

limitations

3:12CV148,

and

2013

35-36.)

R.

By Memorandum Opinion

the Court denied Smith's Fed.

49-50).

Rule

ECF No. 51.)

WL

By Memorandum Opinion

the Court denied Smith's Fed.

pursuant

his

brought

statute
Virginia,

2014,

(ECF Nos.

Jr.'s 28 U.S.C.

8, 2013) .

(ECF No.

"MOTION FOR RECONSIDERATION"
of

v.

2013,

and Order entered August 26,
R.

Smith,

one-year

action.

Order entered on March 8,

Smith has

to

Fed.

60(b)(6)

R.

now

Civ.

Motion.

Despite Smith's

pursuant

to

continues to attack his state conviction.

Rule

filed a

P.

59(e)

("Second

labeling of

59(e),

Smith

As explained below,

Smith's

Second

Rule

59(e)

Motion

must

be

treated

as

a

successive, unauthorized 28 U.S.C. § 2254 petition.
The Antiterrorism and Effective Death Penalty Act
restricted

the

second

successive

or

jurisdiction

of

the

applications

district

for

of 1996

courts

federal

to

habeas

hear

corpus

relief by prisoners attacking the validity of their convictions
and sentences by establishing a "gatekeeping mechanism."

v.

Turpin,

518 U.S.

omitted).

651,

657

Specifically,

(1996)

(internal quotation marks

"[b]efore

a

second

or

successive

application permitted by this section is filed in the

court,

the

applicant

shall

move

in

Felker

the

appropriate

district

court

of

appeals for an order authorizing the district court to consider
the application."

The
avoid

Fourth

the

bar

28 U.S.C.

Circuit
on

convictions

and

States

Accordingly,
attacking

review

sentences

convictions

to

340

"district

applications

applicant

has

'evade

instructed

successive

Winestock,

v.

§ 2244(b)(3)(A).

by

and

when

the

collateral

inventive

F.3d

courts

must

failing

to

against

inmates

attacks

labeling.

200,

sentences]

bar

that

206

treat
as

do

(4th

on

See
Cir.

[motions

successive

so

may

would

relitigation

not

their

United
2003) .

directly
collateral

allow

of

the

claims

presented in a prior application or the bar against litigation
of claims not presented in a prior application.'"

Id.

(quoting

Calderon v. Thompson,

523 U.S.

United

I:09cr414,

States,

965842,
"have

at

*2

Nos.

(E.D.

Va.

Mar.

applied Winestock's

538,

553

(1998));

l:14cv363,

4,

2015)

see Williams v.

l:14cv460,

2015

WL

(explaining that courts

'straightforward guide'

to determine

that a Rule 59 (e)" is a successive petition) .

In his

Second Rule

"factually

(Second

innocent

Rule

citing

the

Motion,

Smith argues

of

the

underlying

Mot.

59(e)

reasons why the

59(e)

2.)

Smith

then

standard

of

review

for

Court's

U.S.

failure

to

Constitution."

and errors
Crosby,

correct

(Id.)

U.S.

524,

is

rambling

§ 22 54 petition

such habeas

petitions,

his

counsel's deficiency,

"cumulative

violations

of

the

Smith again attacks his conviction

occurring during his

545

he

convictions."

provides

Court erred in dismissing his

innocence to excuse a procedural default,
the

State

that

530-32

state

(2005)

trial.

See Gonzalez

(construing

v.

a motion as

a

successive "habeas corpus application" if it "seeks vindication"

of a
of

"claim"

the

title

directed
§ 2254

the

to

on
file

the

motion) .

the

Second Rule

Petition.

Fourth

Thus,

for relief from the criminal judgment,

the

Circuit
§

2254

The

to

Court has

hear

Petition

want of jurisdiction.

Accordingly,
59(e)

not

Smith's
(ECF

No.

the

Motion

regardless

Clerk will

as

a

be

successive

received authorization from

successive
51)

will

§
be

2254

Petition.

dismissed

for

Even

if

Smith's

§ 2254 Petition,
59(e)

Circuit

59(e):
law;

(3)

to

The

United

recognizes

States

three

correct

a

clear

Court

grounds

error

1419

of

Hutchinson v. Staton,

(citing Weyerhaeuser

F.R.D.

considered

a

successive

of

for

Appeals

relief

for

under

the

Rule

to account for new evidence not available at trial;

injustice."

1406,

not

"(1) to accommodate an intervening change in controlling

(2)

1993)

was

the Court would deny the motion under the Rule

standard.

Fourth

motion

(D. Md.

625,

626

1991);

(S.D.

Corp.

or

prevent

994 F.2d 1076,
v.

Atkins v.

Miss.

law

Koppers

manifest

1081 (4th Cir.

Co.,

771

F.

Supp.

Marathon LeTourneau Co.,

1990)).

or

Smith fails

130

to demonstrate

any basis for granting relief under the above three grounds.
An appeal may not be taken from the final order in a § 2254
proceeding unless a judge issues a certificate of appealability
("COA").

28

U.S.C.

§

unless a prisoner makes

a

constitutional

requirement

is

2253(c)(1)(A).

whether

right."

(or,

should

have

issues

presented

been

for

proceed further.'"

(quoting Barefoot v.

28
only

that

resolved

were

COA

will

not

issue

"a substantial showing of the denial of

satisfied

debate

A

U.S.C.
when

a

'adequate

Slack v.

Estelle,

2253(c)(2).

"reasonable

matter,

in

§

agree

different

to

McDaniel,

463 U.S.

the

manner

or

could

petition
that

encouragement

529 U.S.

880,

jurists

that)

deserve

This

893

473,

484

& n.4

the

to

(2000)

(1983)).

Smith

fails

to

meet

this

standard.

A

certificate

of

appealability will be denied.

The Clerk is directed to send a copy of this Memorandum
Opinion to Smith.
And it is so ordered.

M

/?/•

Robert E. Payne

^

Date: /lLc»t& 74,^P*^
Richmond, Virginia

Senior United States District Judge