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
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