Smith v. Commonwealth of Virginia, No. 3:2011cv00006 - Document 26 (E.D. Va. 2013)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 9/10/13. Copy sent: Yes(tdai, )
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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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