Smith v. Commonwealth of Virginia, No. 3:2012cv00148 - Document 52 (E.D. Va. 2015)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 3/24/15. Copy sent: Yes(tdai, )
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Smith v. Commonwealth of Virginia Doc. 52 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, Dockets.Justia.com 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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