United States District Court, E.D. Virginia, Norfolk Division
UNITED STATES MAGISTRATE JUDGE'S REPORT AND
J. KRASK UNITED STATES MAGISTRATE JUDGE.
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
STATEMENT OF THE CASE
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.
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.
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
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 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)]." Id. at
17; see also Id. at 33-34.
state petition further alleged that his trial
counsel 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 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.
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). Id. at 4-5. The
circuit court also dismissed Smith's remaining claims.
Id. at 5-24.
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.
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),  because they did not address the circuit
court's ruling. ECF No. 12-6. The Supreme Court
accordingly dismissed those assignments of ...