United States District Court, W.D. Virginia, Roanoke Division
February 10, 2014
WILLIAM ORLANDO SMITH, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MICHAEL F. URBANSKI, District Judge.
William Orlando Smith, a Virginia inmate proceeding pro se, filed a Rule 60(b), Fed. R. Civ. P., motion to vacate a void judgment of the Supreme Court of Virginia, which the court construed as a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Petitioner challenges his criminal judgment entered by the Circuit Court of Chesterfield County in March 2005 for rape and abduction with intent to defile. Court records indicate that Petitioner previously filed a § 2254 petition about the same judgment in Smith v. Clarke, Civil Action No. 2:11-cv-00162 (E.D. Va. Oct. 25, 2011), that was dismissed with prejudice. Thus, Petitioner's current petition is a subsequent one, falling under the prohibition in 28 U.S.C. § 2244(b) against a second or successive petition. Pursuant to this section, a federal district court may consider a second or successive § 2254 petition only upon certification from a United States Court of Appeals that claims in the subsequent petition meet certain criteria. Because Petitioner has not submitted any evidence that he has obtained such certification by the Fourth Circuit Court of Appeals, the court dismisses the petition without prejudice as successive and denies as moot Petitioner's motion to proceed in forma pauperis. Based upon the finding that Petitioner has not made a substantial showing of a denial of a constitutional right as required by 28 U.S.C. § 2253(c), a certificate of appealability is denied.