United States District Court, Western District of Virginia, Roanoke Division
Norman K. Moon United States District Judge
Petitioner Sidney Smith, a Virginia inmate proceeding pro se, filed this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his 2009 convictions and sentence in Tazewell County Circuit Court. The court notified Smith that his petition appeared to be untimely filed under 28 U.S.C. § 2244(d) and granted him an opportunity to provide additional information on that issue, which he has done. After review of this additional information, the petition, and court records available online, I conclude that the petition must be summarily dismissed as untimely filed.
Smith, depressed after a separate from his girlfriend, drank alcohol and consumed Xanax pills with his friend, Bobby Elder, on August 14, 2006. Smith began cutting his arms with a buck hunting knife. Elder’s wife tried to convince Smith to give her the knife, and when he would not do so, she called the police.
Officer Gary Childress of the Richlands Police Department arrived at the scene and ordered Smith to drop the knife. According to Childress, Smith merely cursed the officer and continued cutting himself. Childress testified that Smith advanced toward him and was close enough to touch when Childress shot him once in the chest, which stopped Smith’s advance.
Rescue personnel tended Smith’s wounds and transported him to the local hospital, where he later underwent surgery to repair damage caused by the gunshot. Two months later, Smith was charged with attempted capital murder and assault on rescue personnel.
Smith initially pleaded not guilty in Tazewell County Circuit Court and proceeded to trial. Part way through the Commonwealth’s case, however, counsel advised Smith that it was in his best interest to change his plea to no contest and pursue a plea agreement, to avoid the life sentence plus five years to which he would have been subject if convicted after trial. Smith allegedly begged counsel to call witnesses to support his version of events-that Smith’s knife had become slick with his blood, causing him to drop it, and as he dropped to his knees to retrieve the knife, Childress shot him. Counsel allegedly refused to pursue this defense, and Smith decided to plead no contest. The Circuit Court accepted the change of plea, found Smith guilty of both charges, and sentenced him to a total of 42 years in prison. Judgment was entered on June 29, 2009. Smith did not appeal. On January 31, 2011, Smith filed a petition for a writ of habeas corpus in the Supreme Court of Virginia, which was dismissed on June 21, 2011.
More than two years later, in November 2013, in response to Smith’s written request, counsel sent Smith his case file. While pouring through the case records, Smith discovered his own medical records, subpoenaed by the Commonwealth and provided to counsel before trial, allegedly without Smith’s knowledge. According to Smith, the records show that Smith’s entrance wound in his chest was higher on his body than the exit wound in his lower back, indicating that the bullet traveled in a downward trajectory.
Smith filed a second habeas corpus petition in the Supreme Court of Virginia on October 8, 2014, attaching his surgical records. He argued that counsel was ineffective for failing to investigate and argue from the medical records the defense theory that Smith was shot while on his knees and thus could not be guilty of attempting to murder Childress. The Court rejected Smith’s petition on December 1, 2014, as untimely filed under state law.
Smith signed and dated his federal habeas petition on January 14, 2015. In the petition, he alleges that his trial counsel provided ineffective assistance by failing to investigate and use Smith’s available hospital records at trial to argue Smith’s innocence. Smith also seeks to renew his motion for appointment of counsel and his motion to stay the case and expand the record.
A person in custody under the judgment of a state court has one year to file a federal habeas corpus petition. See 28 U.S.C. § 2244(d)(1). Generally, this period begins to run from the date on which the judgment of conviction becomes final, which occurs when petitioner has exhausted his opportunities to seek direct review. § 2244(d)(1)(A). If the district court gives petitioner notice that the petition appears to be untimely and allows him an opportunity to provide any argument and evidence regarding timeliness, and petitioner fails to make the requisite showing, the district court may summarily dismiss the petition. See Hill v. Braxton, 277 F.3d 701, 707 (4th Cir. 2002).
Smith did not file his § 2254 petition within the statutory period defined in § 2244(d)(1)(A). His conviction became final on July 29, 2011, upon expiration of the thirty-day window for him to appeal the circuit court’s judgment to the Court of Appeals of Virginia. See Virginia Code §8.01-675.3. On that date, Smith’s one-year period under § 2244(d)(1)(A) began to run, and it expired on July 30, 2012. Smith filed his current petition more than two years later, in January 2015.
Smith argues that his federal habeas claims should be deemed timely under the filing period defined in § 2244(d)(1)(D), based on the date when he discovered new facts about his innocence. Smith claims that the earliest he could have discovered the trajectory evidence in his ...