Smith v. Commonwealth of Virginia

Filing 56

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 9/10/2015. Copy mailed to Pro Se Petitioner. (jsmi, )

IN THE

UNITED

FOR THE

STATES

DISTRICT

COURT

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 March 8,
2013,

the Court found Frederick J.

petition

barred

dismissed

the

by

the

action.

871519, at *5-6

P.

59(e)

one-year
Smith

v.

(E.D. Va. Mar.

8,

and Order entered June 3,

Civ.

Smith,

Motion.

2013,

60(b)(6)

Opinion

entered

(ECF Nos.

and

Final

2013) .

found

prior
this

denial

Rule

of

59(e)

unauthorized 28 U.S.C.

§

limitations

and

3:12CV148,

2013

WL

Rule

Motion

By Memorandum Opinion

the Court denied Smith's Fed.

49-50).

Order

his

2254

By Memorandum Opinion

35-36.)

Finally,

entered

Court dismissed Smith's Second Rule 59(e)
Court's

of

§

the Court denied Smith's Fed. R.

{ECF Nos.

Motion.

statute
Virginia,

and Order entered August 26, 2014,
R.

J r . ' s 28 U.S.C.

March

in

25,

2015,

the

Motion challenging the

60(b) (6)
was

by Memorandum

Motion.
fact

a

The

Court

successive,

2254 petition and in the alternative.

failed to satisfy the criteria for granting a Rule 59(e) motion.
{ECF Nos.

52-53.)

In this seemingly unending cycle,
filed

yet

FOR RECONSIDERATION"

that

the

Court

as

brought

pursuant

Rule

of

Civil

one

{"Third Rule

his Third Rule 59(e)

finding

that

he

circumstances'
.

2.)

.

.

[the]

Motion,

failed

exist

to

59(e)

Federal

Motion,"

ECF No.

54.)

In

Smith argues that the Court erred

to

that

demonstrate
warrants

that

the

statute of limitations."

"'extraordinary

equitable

tolling

(Second Rule 59(e)

Mot.

Smith then provides rambling reasons why the Court erred in

dismissing his § 2254 petition,
Second Rule 59(e)
and

Smith

"MOTION

Procedure 59(e).

of

2 015,

another

construes

in

on April 10,

his

"actual

default.

(Id.

his Rule 60(b)

Motion,

and his

Motion citing statute of limitations language
innocence"

which

may

excuse

a

procedural

at 2-5.)

The United States Court of Appeals for the Fourth Circuit
recognizes three grounds for relief under Rule 59(e):
accommodate

an

account

for

correct

a

Hutchinson

intervening

new

clear
v.

evidence

error

Staton,

(citing Weyerhaeuser
1419

(D.

Md.

1991) ;

of

change

controlling

not

available

law

or

994

Corp.

in

F.2d
v.

Atkins

prevent
1076,

Koppers
v.

at

Marathon

to

law;

(2)

to

or

(3)

to

trial;

manifest

1081
Co.,

"(1)

771

(4th
F.

injustice."
Cir.

1993)

Supp.

1406,

LeTourneau

Co. ,

130

F.R.D.

625,

626

{S.D.

Miss.

1990)).

Smith fails

to demonstrate

any basis for granting relief from the denial of his Second Rule
59(e) Motion under the above three grounds.
To the extent Smith again intends to challenge the Court's
August

20,

2014

denial

motion under Rule

59(e)

twenty-eight

days

Motion.

To

the

60(b) (6)

challenge

"[a]

motion

Southern Pines,
Re id V.

extent

his

Rule

the
he

attempts

[Rule]

60(b)(6)

circumstances.'"

Angelone,

F.3d 269,

may

MLC

his vague claim to the contrary,

370

his

Rule
not

Rule

(4th Cir.

(4th Cir.

another

v.

Rule

Motion,

granted

LLC

than

60(b)(6)

60(b) (6)

be

Auto.,

Smith's

filed more

bring yet

his

277 n.5

369 F.3d 363,

of

to

of

Motion,

it was

dismissal

to the denial

532

60(b)(6)

is untimely as

after

under

'extraordinary

of

absent

Town

of

2008)

(quoting

2004)).

Despite

Smith fails to demonstrate any

such extraordinary circumstances that would warrant vacating the
prior dismissal of his Rule 60(b) Motion.

An appeal may not be taken from the final order in a § 2254

proceeding unless a
("COA").

unless a

a

28

U.S.C.

§

prisoner makes

constitutional

requirement
debate

judge issues a

is

whether

2253(c)(1)(A).

satisfied
for

A

COA

will

not

issue

"a substantial showing of the denial of

right."

(or,

certificate of appealability

28
only

that

U.S.C.
when

matter,

§

2253(c)(2).

''reasonable
agree

that)

This

jurists
the

could

petition

should

have

been

issues

presented

resolved

were

proceed further.'"

fails

to

a

'adequate

Slack v.

(quoting Barefoot v.
Smith

in

to

880,

or

that

encouragement

529 U.S.

463 U.S.

this

manner

deserve

McDaniel,

Estelle,

meet

different

893

473,

484

& n.4

the

to

(2000)

(1983)).

standard.

A

certificate

send

of

this

of

appealability will be denied.
The

Clerk

is

directed

to

a

copy

Memorandum

Opinion to Smith.
And i t i s so ORDERED.

/s/
Robert E. Payne
Senior United States District Judge
Date:

Richmond, Virginia