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Smith v. Clarke

United States District Court, E.D. Virginia, Norfolk Division

May 18, 2018

MARK SMITH, #1042696, Petitioner,
v.
HAROLD W. CLARKE, Director of the Virginia Department of Corrections, Respondent.

          UNITED STATES MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          ROBERT J. KRASK UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Mark Smith's pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, and the respondent's motion to dismiss. This matter was referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 72 of the Rules of the United States District Court for the Eastern District of Virginia. For the following reasons, the Court RECOMMENDS that respondent's motion to dismiss, ECF No. 10, be GRANTED.

         I. STATEMENT OF THE CASE

         Mark Smith ("Smith") is an inmate currently housed at the Buckingham Correctional Center in Dillwyn, Virginia, part of the Virginia Department of Corrections. ECF No. 1 at 1. Smith was tried by jury in the Circuit Court for Accomack County. Id. at 1-2. He was convicted and sentenced on June 20, 2013 to 23 years in prison, comprising 15 years for second degree murder, 3 years for use of a firearm in the commission of a felony, and 5 years for discharging a firearm. Id. at 1.

         Smith appealed his convictions to the Court of Appeals of Virginia. ECF No. 12-1 at 29- 33. The appellate court summarized the evidence as follows:

[T]he evidence proved that on February 25, 2012, Sensair Paul hosted a party at his residence. He testified that [Smith] arrived at the party "with a couple of guys." [Smith] was looking for his daughter and pushed Paul. Paul explained [Smith] appeared intoxicated and that he "didn't want to push [Smith] back Paul's friend, Vladimir Sadin, came to Paul's aid. Paul testified [Smith] pulled a gun from his pants and shot Sadin at least twice. Paul identified the weapon as a black .45 caliber gun. Paul and other party guests fled to Paul's room. Paul saw [Smith's] companion outside shooting at the house.
. . . .
Paul positively identified [Smith] as the man who shot and killed the victim. He testified he knew [Smith] and was standing right next to him when he fired the gun. He also saw [Smith] outside the residence with the weapon as he entered a car and fled the scene.

Id. at 30.

         The Court of Appeals denied Smith's appeal on April 9, 2014. Id. at 29-33. Smith appealed his case to the Supreme Court of Virginia, which refused his appeal on October 31, 2014. ECF No. 12-1 at 34. Smith did not file for a writ of certiorari with the United States Supreme Court. ECF No. 1 at 3.

         Smith filed a timely petition for a writ of habeas corpus in the Circuit Court for Accomack County on October 28, 2015. ECF No. 1 at 5-6; ECF No. 12-2 at 6. Smith's state habeas petition alleged that his appellate counsel[1] was ineffective for: (1) failing to communicate and for a conflict of interest; (2) giving false and misleading advice concerning the issues preserved for appeal and for failing to investigate the law; and (3) failing to raise issues preserved for appeal. ECF No. 12-2 at 12-38. Smith listed as one of the preserved issues which appellate counsel failed to appeal that "[t]he Commonwealth violated Petitioner's Due Process Rights [specifically, a defendant's rights under Brady v. Maryland, 373 U.S. 83 (1963)] by nondisclosure of exculpatory statements of Shaniqua Smith [(Smith's daughter)]."[2] Id. at 17; see also Id. at 33-34.

         Smith's state petition further alleged that his trial counsel[3] was ineffective for: (1) failing to investigate and provide Smith with a copy of the criminal complaint and police report; (2) failing to interview and subpoena witnesses for trial; (3) failing to renew a motion for discovery due to the prosecutor's failure to comply, failing to request in camera inspection of material that Smith believed should have been discoverable, and for failing to inspect and copy information the prosecutor possessed that Smith believed was helpful to his case; and (4) failing to request the personnel files of a police officer for impeachment purposes. Id. at 40-44. Finally, Smith's petition alleges that his preliminary hearing counsel[4] was ineffective for: (1) failing to investigate or inform Smith of the evidence against him; (2) failing to interview and call witnesses in Smith's defense at the preliminary hearing; (3) failing to cross-examine the investigator at the preliminary hearing about a third-party's statement; (4) laboring under a conflict of interest; and (5) failing to allow Smith to testify at the preliminary hearing. Id. at 45-46;ECFNo. 12-3 at 1-2.

         On April 18, 2016, the circuit court granted Smith leave to amend his petition and add two more claims: (1) appellate counsel was ineffective for failing to raise on appeal the trial court's failure to instruct the jury on the abolition of parole; and (2) trial counsel was ineffective for failing to request an instruction during the penalty phase that parole has been abolished in Virginia. ECF No. 12-4 at 3-4. After granting leave to add these latter claims, the circuit court found them time-barred, pursuant to Virginia Code § 8.01-654(A)(2).[5] Id. at 4-5. The circuit court also dismissed Smith's remaining claims. Id. at 5-24.

         Smith appealed to the Supreme Court of Virginia, assigning six errors. ECF No. 12-5. They were: (1) the circuit court erred in refusing to rule on or consider Smith's motion for discovery and motion for subpoena duces tecum; (2) the circuit court erred in refusing to consider Smith's affidavits and the affidavit of Alexis Snead; (3) the circuit court erred in denying Smith's amended claims as time-barred; (4) appellate counsel was ineffective for failing to communicate, having a conflict of interest, giving false and misleading information, failing to investigate the law, failing to raise preserved issues, and filing a defective brief; (5) trial counsel was ineffective for failing to fully investigate, provide Smith with the criminal complaint and police report, subpoena witnesses for trial, seek pretrial review, and request in camera inspection; and (6) preliminary hearing counsel was ineffective for failing to fully investigate, failing to provide Smith with the evidence against him, not allowing Smith to testify at the preliminary hearing, failing to interview and call witnesses at the preliminary hearing, and for having a conflict of interest. Id. at 4. As part of assignment of error four, Smith also alleged that appellate counsel was ineffective for failing to appeal based on the nondisclosure of Shaniqua Smith's statement. ECF No. 12-5 at 28-29.

         On May 17, 2017, the Supreme Court of Virginia found assignments of error four through six to be insufficient pursuant to Rule 5:17(c)(1)(iii), [6] because they did not address the circuit court's ruling. ECF No. 12-6. The Supreme Court accordingly dismissed those assignments of ...


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