Hicks v. Dir., Dep't of Corr. ( 2015 )


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  • Present: Lemons, C.J., Goodwyn, Millette, and Powell, JJ., and
    Russell and Lacy, S.JJ.
    ARSEAN LAMONE HICKS
    v.   Record No. 131945                OPINION BY SENIOR JUSTICE
    ELIZABETH B. LACY
    DIRECTOR, DEPARTMENT                      February 26, 2015
    OF CORRECTIONS
    FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
    Everett A. Martin, Jr., Judge
    In this appeal, Arsean Lamone Hicks challenges the trial
    court’s judgment that his petition for a writ of habeas corpus
    based on an alleged violation of the prosecution's duty to
    disclose exculpatory material under Brady v. Maryland, 
    373 U.S. 83
    (1963), was untimely filed because it was not filed within
    the one year limitations period provided in Code § 8.01-
    654(A)(2).
    FACTS AND PROCEEDINGS
    In December of 1999, Hicks, then 16 years old, lived with
    his legal guardian, Haskell Corry, in Norfolk, Virginia.     Hicks
    shared a bedroom with Larry Roscoe.    On December 26, 1999,
    Hicks, Roscoe, and two other persons robbed a pizza delivery
    driver.   During the robbery, Roscoe pointed his gun at the
    driver’s head while Hicks took $50 from the driver’s pocket and
    the other men took the pizzas.    On December 27, 1999, Hicks
    committed a second armed robbery of a pizza delivery driver.
    Two days later, on December 29, 1999, Hicks, Farrell
    Richardson and Kenny Riddick agreed to rob another pizza
    delivery driver.    Hicks, wearing a mask and armed with Roscoe’s
    gun, took the driver’s money and the pizzas.   Hicks then drove
    away in the delivery driver’s vehicle.   Later that evening,
    Hicks, Richardson and Riddick discussed robbing the Open House
    Diner in Norfolk, Virginia.   Just before 2:00 a.m. on December
    30, 1999, Richardson and Riddick entered the Open House Diner.
    After a few moments, Hicks, again wearing a mask and armed with
    Roscoe’s gun, entered the diner, jumped across the counter, and
    announced the robbery.   He ordered an employee to open the cash
    register.    As Hicks was removing money from the register, Lisa
    Bailey, an off-duty federal police officer, approached him
    displaying her badge in an attempt to prevent the robbery.
    Hicks shot and killed the officer.    Hicks and Richardson fled
    the diner.
    Riddick, who had remained in the diner, was questioned by
    the Norfolk Police officers when they arrived on the scene.
    Based on Riddick’s statements, the officers obtained a search
    warrant for Hicks’ residence and yard.   The police recovered a 9
    millimeter handgun from the closet in the bedroom shared by
    Hicks and Roscoe.   The officers also recovered pizza boxes from
    the establishments whose delivery drivers were robbed and items
    2
    belonging to the delivery driver whose car was stolen by Hicks.
    Subsequent testing showed that the handgun found in the bedroom
    Hicks shared with Roscoe was the weapon that fired the bullet
    killing Officer Bailey at the Open House Diner.
    Hicks confessed to the December 26 and 27 robberies and was
    convicted in two separate jury trials.   Hicks pled guilty to the
    December 29 carjacking, robbery and two counts of using a
    firearm in the commission of those felonies.   Hicks subsequently
    pled not guilty to the Open House Diner crimes and, following a
    jury trial, was convicted of first degree murder, use of a
    firearm in the commission of murder, robbery, use of a firearm
    in the commission of robbery and conspiracy to commit robbery.
    Hicks’ appeals of these convictions were unsuccessful and direct
    review concluded on January 9, 2004.   On July 24, 2013, Hicks,
    appearing pro se and in forma pauperis, filed a petition for a
    writ of habeas corpus with regard to his convictions for the
    Open House Diner crimes.   That petition is the subject of this
    appeal.
    In his petition, Hicks alleged that on October 12, 2012, he
    received a sworn affidavit executed by Roscoe on November 28,
    2006, stating that Roscoe had “admitted to Detective Ford that
    the gun, shoes, coat and mask were mine when I gave him a
    recorded statement at the [police operations center].   [A]t no
    3
    time did anyone touch or use my items which I also stated [there
    was] no way possible any of them could have committed those
    crimes if these items are said to have been used.”    Roscoe had
    given this affidavit to Richardson, who, according to
    Richardson’s affidavit “sat on it” for several years before
    giving it to Hicks’ girlfriend, who, in turn, mailed it to Hicks
    in October of 2012.
    Based on this information, Hicks asserted that the Norfolk
    Commonwealth Attorney suppressed or failed to disclose Roscoe’s
    recorded statement referenced in the affidavit and that the
    affidavit contained exculpatory evidence in violation of Hicks’
    due process rights under the Constitution of the United States
    and Article I, Section 11 of the Constitution of Virginia, as
    defined in Brady.     In response, the Commonwealth filed a motion
    to dismiss, arguing that Code § 8.01-654(A)(2) requires that a
    petition for habeas corpus be filed within two years from the
    date of final judgment in the trial court or within one year
    from either final disposition of the direct appeal in state
    court or the time for filing such appeal has expired, whichever
    is later.   Because Hicks’ petition was filed more than nine
    years after his conviction was final, the Commonwealth concluded
    the petition was untimely and should be dismissed.
    4
    Hicks opposed the Commonwealth’s motion to dismiss, stating
    that applying the statutory limitations period without exception
    constitutes a suspension of the writ of habeas corpus in
    violation of Article I, Section 11 of the Constitution of
    Virginia.   Hicks contended that the limitations statute is not
    absolute, arguing that in Hines v. Kuplinski, 
    267 Va. 1
    , 
    591 S.E.2d 692
    (2004) the same issue was raised and, while not
    directly decided because the petitioner in Hines did not meet
    the factual predicate for a late filing based on previously
    unknown information, the Court nevertheless engaged in the
    applicable analysis.   Because the Court engaged in the analysis,
    Hicks contended that the “only logical conclusion therefore is
    that had Hines been able to prove that the basis of his claim
    was not previously available . . . the Court would have held
    that applying the limitations period would be unconstitutional.”
    The trial court ultimately dismissed Hicks’ petition,
    holding that it was not timely filed under Code § 8.01-654(A)(2)
    and that the application of the limitations statute to petitions
    for a writ of habeas corpus did not suspend the writ of habeas
    corpus in violation of Article I, Section 11 of the Constitution
    of Virginia.   We awarded Hicks an appeal.
    5
    ANALYSIS
    Hicks raises three assignments of error.   In his first two
    assignments of error he asserts that the trial court erred in
    ruling that habeas corpus relief was not available to him based
    on a claim of newly discovered withheld exculpatory evidence
    because it was untimely.    His third assignment of error recites
    that applying the limitations period of Code § 8.01-654(A)(2) to
    Hicks’ claim violates the bar against suspension of the writ of
    habeas corpus contained in Article I, Section 9 of the
    Constitution of Virginia.   We will consider these claims in
    order.
    Hicks first argues that his petition was timely filed under
    Code § 8.01-229(D).   That section provides in pertinent part:
    When the filing of an action is obstructed by a
    defendant’s . . . using any other direct or indirect
    means to obstruct the filing of an action, then the
    time that such obstruction has continued shall not be
    counted as any part of the period within which the
    action must be brought.
    This section, Hicks argues, operates as an exception to the
    limitations period established in Code § 8.01-654(A)(2).   Habeas
    corpus is a civil action, and Hicks contends that the
    Commonwealth, as the responding party or defendant, had and
    continued to withhold exculpatory evidence which was unknown to
    Hicks until October 12, 2012.   Hicks argues that the one year
    period for filing his petition for habeas corpus began to run at
    6
    that point and his petition filed on July 24, 2013, was filed
    within one year of that date.
    The Commonwealth asserts that Supreme Court Rule 5:25 bars
    our consideration of this argument because it was not raised
    before the habeas court.   Hicks acknowledges that, proceeding
    pro se and in forma pauperis, he did not specifically cite Code
    § 8.01-229(D) to the habeas court, but argues that by asserting
    he filed the petition within one year of learning of the
    withheld exculpatory evidence he “disclosed the foundation for
    statutory tolling” and his argument “functionally mirrored the
    text of the tolling statute.”   Hicks also contends that even if
    his arguments did not preserve the issue for appeal, we should
    apply the ends of justice exception to Rule 5:25 and consider
    application of Code § 8.01-229(D) here.
    We disagree with Hicks’ assertion that his arguments were
    sufficient to alert the habeas court to the tolling provisions
    of Code § 8.01-229(D).   As reflected in the record, Hicks’
    arguments to support timely filing within one year of learning
    of the Roscoe affidavit were directed to the provisions in Code
    § 8.01-654(B)(2), which addresses the filing of successive
    petitions based on newly acquired information.   There was no
    suggestion that any other statute was the source for tolling the
    limitations period contained in Code § 8.01-654(A)(2).
    7
    Accordingly, unless we can determine that the ends of justice
    provision of Rule 5:25 applies here, we must conclude that the
    rule precludes our consideration of Hicks’ argument that Code §
    8.01-229(D) tolled the limitations period for filing his habeas
    corpus petition.
    Ends of Justice Exception
    We apply the ends of justice exception to Rule 5:25 in
    limited circumstances.   Gheorghiu v. Commonwealth, 
    280 Va. 678
    ,
    689, 
    701 S.E.2d 407
    , 413-14 (2010)(citing Ali v. Commonwealth,
    
    280 Va. 665
    , 671, 
    701 S.E.2d 64
    , 68 (2010); Charles v.
    Commonwealth, 
    270 Va. 14
    , 17, 20, 
    613 S.E.2d 432
    , 433, 435
    (2005); Jimenez v. Commonwealth, 
    241 Va. 244
    , 249-50, 
    402 S.E.2d 678
    , 680 (1991); Ball v. Commonwealth, 
    221 Va. 754
    , 758, 
    273 S.E.2d 790
    , 793 (1981)).   Applying the exception is appropriate
    when there is error as contended by the appellant and when the
    failure to apply the exception would result in a grave
    injustice.   
    Gheorghiu, 280 Va. at 689
    , 701 S.E.2d at 413.
    1. Error
    The Commonwealth argues that there was no error in the
    trial court’s judgment because Code § 8.01-229(D) does not apply
    to the limitations period established for the filing of
    petitions for habeas corpus relief.     In support of its position,
    the Commonwealth offers a number of arguments.    First, the
    8
    Commonwealth contends that statutes of limitations must be
    strictly enforced “unless the General Assembly has clearly
    created an exception to their application,” Casey v. Merck &
    Co., 
    283 Va. 411
    , 416, 
    722 S.E.2d 842
    , 845 (2012), and Code §
    8.01-654(A)(2) contains no exceptions.   Furthermore, according
    to the Commonwealth, Code § 8.01-654(A)(2) is a specific
    statute, while Code § 8.01-229(D) is a statute of general
    application, and as a result the general statute cannot prevail
    over the provisions of the more specific statute.   Daniels v.
    Warden, 
    266 Va. 399
    , 402, 
    588 S.E.2d 382
    , 384 (2003).
    We do not find this argument persuasive.   The lack of an
    exception to the limitations period within Code § 8.01-654(A)(2)
    does not preclude application of an exception contained in
    another statute.   That is precisely what the General Assembly
    has done in Code § 8.01-229 with regard to many other provisions
    in the Code of Virginia containing specific statutes of
    limitations.   Section 8.01-229, entitled in part as “Suspension
    or tolling of statute of limitations” contains multiple
    subsections identifying instances in which limitations periods
    established in other parts of the Code may be tolled.   See,
    e.g., Code § 8.01-229(A)(providing tolling based on certain
    disabilities, such as infancy or adjudicated incapacitation);
    9
    -229(B)(providing tolling when person entitled to file an action
    dies before filing or when person against whom an action may be
    filed dies before the action is filed); -229(C)(providing
    tolling when the commencement of an action is suspended due to
    an injunction); and -229(E)(providing tolling under certain
    circumstances when an action is dismissed without determining
    the merits, abates or is nonsuited).   The Commonwealth’s logic
    would vitiate application of virtually every subsection in the
    statute because they each deal with limitations periods
    established elsewhere.
    Next, the Commonwealth asserts, even if Code § 8.01-229(D)
    provided an exception to the more specific habeas limitations
    statute, it is not available in this case because its
    application requires a showing that the defendant’s obstruction
    be in the nature of moral turpitude, relying on Newman v.
    Walker, 
    270 Va. 291
    , 296, 
    618 S.E.2d 336
    , 340 (2005).    According
    to the Commonwealth, Hicks’ Brady claim arises from an
    inadvertent act of the prosecutor, not from an intentional act
    implicating moral turpitude.
    The Commonwealth correctly argues that in previous cases we
    have said that to invoke the tolling provision of Code § 8.01-
    229(D), the obstruction by the defendant “‘must consist of
    affirmative acts of misrepresentation’” and that “‘[t]he fraud
    10
    which will relieve the bar of the statute must be of that
    character which involves moral turpitude, and must have the
    effect of debarring or deterring the plaintiff from his
    action.’”   Culpeper Nat'l Bank v. Tidewater Improvement Co., 
    119 Va. 73
    , 84, 
    89 S.E. 118
    , 121 (1916).   However, none of our cases
    addressing the nature of the obstruction necessary to invoke
    Code § 8.01-229(D) involved a petition for habeas corpus based
    on a Brady violation.
    A claim for relief based on an alleged Brady violation is
    unlike any claim addressed in our previous cases involving Code
    § 8.01-229(D).    The failure to disclose in a Brady claim is more
    than a simple omission or act obstructing the filing of a civil
    action; it is the core element of the claim for relief itself,
    which results in injury to the litigant.   Disclosure of
    exculpatory evidence is an affirmative duty not dependent on a
    request from the accused, applying to impeachment as well as
    affirmative evidence, and this duty is violated whether the
    failure to produce the exculpatory information was intentional
    or inadvertent.    Strickler v. Greene, 
    527 U.S. 263
    , 281-82
    (1999).   Furthermore, as particularly relevant here, the Brady
    doctrine encompasses “evidence ‘known only to police
    investigators and not to the prosecutor,’” 
    id. at 280-81,
    and
    requires its disclosure.
    11
    The Commonwealth’s reasoning that the failure to disclose
    in this case was insufficient to invoke the statutory tolling
    provisions would preclude application of Code § 8.01-229(D) in
    every instance in which a government actor other than the
    prosecutor engaged in acts of nondisclosure.   Such an
    interpretation of Code § 8.01-229(D) would afford a safe haven
    for nondisclosure, which is inconsistent with the elements of
    the Brady doctrine and undermines the importance of Brady in our
    criminal justice system.   For these reasons, we conclude that in
    a claim for habeas corpus relief based on a Brady violation, the
    failure to disclose exculpatory evidence qualifies as
    obstruction by the defendant that prevents the filing of the
    claim for purposes of Code § 8.01-229(D).
    Finally, the Commonwealth argues that Hicks’ petition is
    untimely even under Code § 8.01-229(D) because Hicks learned of
    Roscoe’s statement no later than March 24, 2009, based on
    statements contained in a motion filed by Hicks for recovery and
    testing of DNA.   The motion to which the Commonwealth refers
    sought DNA testing of a shoe recovered at Hicks’ residence that
    matched the shoe impression left on the counter at the murder
    scene.   In that motion Hicks refers to a “confession” Larry
    Roscoe gave to Hicks.   Nothing in this motion mentions the
    recorded statement allegedly given to the investigating
    12
    detective or Roscoe’s exclusive possession of certain items,
    which are the subject of the allegedly withheld evidence.
    Therefore, we reject the Commonwealth’s argument that the
    tolling provision of Code § 8.01-229(D) does not apply because
    Hicks was aware of the evidence allegedly withheld more than one
    year before he filed his habeas corpus petition.
    In summary, we conclude that the tolling provision of Code
    § 8.01-229(D) is applicable to the limitations period of Code
    § 8.01-654(A)(2) and, therefore, it was error to conclude that
    Hicks’ petition for habeas corpus was untimely.
    2.    Grave Injustice
    Before we apply the ends of justice exception of Rule 5:25,
    however, we must determine whether the failure to apply the
    exception would result in a grave injustice.   
    Gheorghiu, 280 Va. at 689
    , 701 S.E.2d at 413.   Under the facts of this case, Hicks
    would suffer a grave injustice if his Brady claim was
    meritorious but barred from consideration by Rule 5:25.    There
    are three components of a violation of the Brady rule of
    disclosure:
    a) The evidence not disclosed to the accused must
    be favorable to the accused, either because it is
    exculpatory, or because it may be used for
    impeachment; b) the evidence not disclosed must
    have been withheld by the Commonwealth either
    willfully or inadvertently; and c) the accused
    must have been prejudiced.
    13
    Workman v. Commonwealth, 
    272 Va. 633
    , 644-45, 
    636 S.E.2d 368
    ,
    374 (2006)(quoting 
    Strickler, 527 U.S. at 281-82
    )(citations and
    internal quotation marks omitted).   We also have recognized that
    “[t]he question is not whether the defendant would more likely
    than not have received a different verdict with the evidence,
    but whether in its absence he received a fair trial, understood
    as a trial resulting in a verdict worthy of confidence.”     
    Id. (quoting Kyles
    v. Whitley, 
    514 U.S. 419
    , 434 (1995)).   A
    reviewing court must determine whether the withheld favorable
    evidence “could reasonably be taken to put the whole case in
    such a different light as to undermine confidence in the
    verdict,” 
    Strickler, 527 U.S. at 290
    (citation and internal
    quotation marks omitted); that is, whether such evidence was
    material.
    Hicks bases his Brady claim on statements contained in an
    affidavit executed by Roscoe in which Roscoe stated that he gave
    a recorded statement to the investigating detective indicating
    that the gun, shoes, coat and mask were his and that no one else
    touched or used the items and that as a result, it was not
    possible that the items could have been used in the crimes.
    Hicks argues that this statement was exculpatory because it
    “proves that only Larry Roscoe could have committed [the Open
    House Diner crimes]” and “had [the jury] known of Roscoe’s
    14
    statement, they would never have found” Hicks guilty beyond a
    reasonable doubt.   Taking Hicks’ allegations as true, Morris v.
    Smyth, 
    202 Va. 832
    , 833, 
    120 S.E.2d 465
    , 466 (1961), we
    acknowledge that the information in Roscoe’s affidavit, on its
    face, is exculpatory.   While the Commonwealth raises some
    question about the existence of a recorded statement, for
    purposes of this analysis we will assume that Roscoe’s recorded
    statement exists, contains the statements alleged by Hicks and
    that the Commonwealth failed to disclose it.   With those
    assumptions, the final question remains whether the allegedly
    nondisclosed evidence was material.
    In determining materiality we are guided by the following
    principles:
    [A] showing of materiality does not require
    demonstration by a preponderance that disclosure of
    the suppressed evidence would have resulted
    ultimately in the defendant's acquittal (whether
    based on the presence of reasonable doubt or
    acceptance of an explanation for the crime that
    does not inculpate the defendant). Second,
    materiality is not a sufficiency of the evidence
    test. A defendant need not demonstrate that after
    discounting the inculpatory evidence in light of
    the undisclosed evidence, there would not have been
    enough left to convict. Third, a harmless error
    analysis is unnecessary once materiality has been
    determined. Fourth, suppressed evidence must be
    considered collectively, not item by item.
    
    Workman, 272 Va. at 645
    , 636 S.E.2d at 375 (internal quotation
    marks, alterations, and citations omitted).
    15
    Applying these factors to the evidence in this case, which
    includes transcripts from Hicks’ criminal trial, we cannot
    conclude that the suppression of Roscoe’s statement undermines
    confidence in the outcome of Hicks’ trial.    At his jury trial
    for the Open House Diner crimes, Hicks testified that he pled
    guilty to committing the December 29, 1999 pizza delivery
    robbery and carjacking crimes, which occurred only hours before
    the Open House Diner crimes.   Hicks testified that he wore a
    mask and used Roscoe’s gun in the commission of those crimes.
    There was no dispute at Hicks’ trial that the gun recovered at
    Hicks’ residence belonged to Roscoe and that Roscoe’s gun was
    the weapon used to murder Officer Bailey.    Hicks’ trial
    testimony conclusively established that Hicks not only had
    access to the murder weapon – Roscoe’s gun – but also that he
    had actual possession and control of it just hours before the
    murder of Officer Bailey.   Hicks’ own testimony and the forensic
    evidence presented to the jury at trial is inconsistent with
    Roscoe’s statements.
    Furthermore, Hicks also testified that Roscoe did not
    commit the Open House Diner crimes because another man, known
    only as “Moe,” committed the crimes.
    The jury also heard Hicks’ recorded confession to the Open
    House Diner crimes, as given to the investigating officers.
    16
    Although Hicks argued at trial that the confession was coerced,
    the verdict demonstrates that the jury did not find Hicks’
    coercion claim credible.
    Based on this record, the allegedly withheld evidence could
    not reasonably be taken “to put the whole case in such a
    different light” that confidence in the guilty verdict is
    undermined.    
    Strickler, 527 U.S. at 290
    ; 
    Kyles, 514 U.S. at 434
    .
    Therefore, we hold that such evidence was not material.    Because
    the allegedly nondisclosed evidence was not material, Hicks
    fails to establish that he was prejudiced and, therefore, has
    failed to prove a necessary component to his Brady claim.
    Consequently, the failure to apply the ends of justice exception
    would not result in a grave injustice to Hicks, and we will not
    apply the ends of justice exception to Rule 5:25 in this case.
    In light of our holding that the tolling provision of Code
    § 8.01-229(D) is applicable to the limitations period in Code §
    8.01-654(A)(2), we need not address Hicks’ third assignment of
    error.
    CONCLUSION
    For the reasons stated, we will affirm the judgment of the
    trial court.
    Affirmed.
    17