United States District Court, E.D. Virginia, Alexandria Division
AMES C. CACHERIS, UNITED STATES DISTRICT JUDGE
Tony Bryan Smith, a Virginia inmate proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his conviction of aggravated malicious wounding and conspiracy to commit first degree murder in the Circuit Court of the City of Virginia Beach. On July 6, 2015, respondent filed a Motion to Dismiss and Rule 5 Answer, along with a supporting brief. Smith was provided the opportunity to file responsive materials, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) and Local Rule 7K, and after receiving an extension of time he filed a reply on September 23, 2015. Accordingly, the matter is now ripe for disposition. For the reasons that follow, respondent's Motion to Dismiss will be granted, and the petition will be dismissed, with prejudice. Petitioner's Motion for Judgment, in which he asks that his petition be granted based on the allegedly untimely filing of respondent's Motion to Dismiss, will be denied.
On January 13, 2011, following a jury trial, Smith was convicted of aggravated malicious wounding and conspiracy to commit first degree murder. Case Nos. CR09-1079 and CR09-1108. By Order entered May 13, 2011, he was sentenced to serve fifty (50) years in prison. The facts underlying the convictions were described by the Virginia Court of Appeals as follow:
Detectives Tim Jones, Sean Coerse, and Thomas Shattuck investigated the March 1, 2008 murder of Lattrelle Thornton, who lived in Virginia Beach with appellant's sister, Pamela Campbell.Appellant, a civilian, lived on a military base in Texas (Fort Hood) with his wife, who was in the military.
On December 18, 2008, Shattuck accompanied Jones to Fort Hood to speak with appellant. After arriving at the base, Shattuck and Jones went to appellant's apartment and spoke with him. Shattuck described the visit as friendly, cordial, and consensual. At the end of the interview, appellant allowed the detectives to take a buccal sample of his DNA. Later that day, Shattuck and Jones met with appellant and appellant's mother, who was visiting the base at the time. The second visit was amicable, as well.
After further investigation, Shattuck and Jones returned to the base on January 27, 2009 to arrest appellant. As soon as the detectives arrived at the base, they met with military police officials and explained the results of their investigation and their intent to arrest appellant. Army CID Special Agent Klopfenstein acted as a liaison officer for Shattuck and Jones. Detective Coerse remained in Virginia Beach and obtained an arrest warrant for appellant, a copy of which he immediately faxed to Army officials in Texas. After obtaining the warrant, Klopfenstein devised a 'tactical plan' on how to approach appellant's residence. Shattuck and Jones accompanied Klopfenstein and four military police officers to appellant's residence on the base. Army personnel arrested appellant and transported him to the base's CID building, where Shattuck and Jones interviewed him. After being advised of his rights pursuant to Miranda v. Arizona. 384 U.S. 436 (1966), appellant confessed to the crimes. Appellant was then transferred to the custody of Bell County, Texas authorities, where he waived his right to extradition. The detectives transported appellant to Virginia the next day.
Smith v. Commonwealth. R. No. 1287-11-1 (Va. Ct. App. Jan. 26, 2012), slip op. at 2-3. On the appeal, Smith assigned the sole claim that the trial court erred in denying his motion to suppress because "his arrest was unlawful and in violation of his Fourth Amendment right against unreasonable search and seizure." A single judge of the Court of Appeals of Virginia denied the petition for appeal on January 26, 2012, id, and a three-judge panel subsequently concurred in that result on April 12, 2012.
Smith sought further review by the Supreme Court of Virginia, assigning two errors: (1) the trial court erred in denying his motion to suppress because his arrest was unlawful and violated his Fourth Amendment right against unreasonable search and seizure; and (2) the trial court erred in denying his motion to suppress and the Court of Appeals erred in affirming that ruling because the police lacked the authority to arrest him on a military installation. After considering the record and pleadings, the Supreme Court of Virginia dismissed the petition for appeal as to the first assignment of error because it did not properly challenge a ruling by the Court of Appeals, and refused the appeal as to the second assignment of error. Smith v. Commonwealth. R. No. 120774 (Va. Nov. 27, 2012).
Smith thereafter petitioned the Circuit Court for the City of Virginia Beach for a writ of habeas corpus, raising the following claims:
A. He was denied effective assistance of counsel because his attorney failed to:
1. (a) Present testimony from witnesses Muldez, Mason and Foley; (b) interview witnesses Rubbo and Pruette and Dr. Ponce and Dr. Gray; (c) consult an expert in communications; (d) challenge the indictment on the ground that it did not match the evidence; (e) prepare petitioner to testify; and (f) present evidence about insurance policies and beneficiaries.
2. Argue on appeal that the evidence was insufficient to sustain the malicious wounding conviction because it failed to establish permanent and significant impairment of the victim, since she died; 3. (a) Prepare for the preliminary and suppression hearings; (b) prepare for the cross-examination of Jones; (c) challenge petitioner's confession on the ground that the recorder malfunctioned; and (d) challenge the sufficiency of the arrest warrant and the military's authority to arrest him.
4. Consult with petitioner about the supplemental motion to suppress; and 5. Challenge the arrest warrant.
6. The trial court violated his right of confrontation when a witness who was present during the trial was made unavailable and when the court refused to allow the witness to review her prior testimony before she testified.
B. His right to due process was violated when:
1. He was convicted based on evidence that tended to show he was hired to kill the victim, which was evidence of capital murder ...