Sigmon v. Director ( 2013 )

PRESENT: All the Justices
CLIFFORD LEE SIGMON, NO. 1147304
OPINION BY
v. Record No. 121216 CHIEF JUSTICE CYNTHIA D. KINSER
April 18, 2013
DIRECTOR OF THE
DEPARTMENT OF CORRECTIONS
UPON A PETITION FOR A WRIT OF HABEAS CORPUS
In this petition for a writ of habeas corpus filed under
this Court's original jurisdiction, we first hold that a
petition for a writ of habeas corpus and a direct appeal from a
final judgment of conviction can proceed simultaneously in this
Court. With regard to the claims of ineffective assistance of
counsel raised in the petition, we conclude that the petitioner
failed to prove that, but for his counsel's alleged errors, the
outcome of his trial would have been different. Therefore, we
will dismiss the petition.
Clifford Lee Sigmon was convicted in the Circuit Court of
Amherst County of petit larceny, third or subsequent offense, in
violation of Code §§ 18.2-96 and -104; and breaking and entering
with the intent to commit larceny, in violation of Code §§ 18.2-
90 and -91. In an order dated January 4, 2012, the circuit
court sentenced Sigmon to 12 months in jail, suspended; and 20
years of imprisonment, all but five years suspended,
respectively.
Sigmon, represented by counsel, appealed the circuit
court's judgment to the Court of Appeals of Virginia, which
denied his appeal on July 12, 2012 by unpublished order. Sigmon
v. Commonwealth, Record No. 0185-12-3 (July 12, 2012). Sigmon
then timely filed a petition for appeal in this Court
challenging the judgment of the Court of Appeals. 1 Sigmon also
filed a pro se petition for a writ of habeas corpus in this
Court, challenging the legality of his confinement and asserting
claims of ineffective assistance of counsel. The Director of
the Department of Corrections (the Director) moved to dismiss
Sigmon's petition.
Because Sigmon's petition for a writ of habeas corpus and
his direct appeal were pending simultaneously in this Court, we
directed Sigmon and the Director to address the following
question: 2
Is a petition for a writ of habeas corpus
filed in this Court prior to the conclusion
of the petitioner's direct appeal of his
criminal conviction premature, requiring
dismissal of the petition without prejudice,
1
As he did in the Court of Appeals, Sigmon raises two
issues on appeal: (1) whether a blank check is a thing of value
under Code § 18.2-96; and (2) whether the evidence was
sufficient to sustain his convictions. See Sigmon v.
Commonwealth, Record No. 121321, Pet. for Appeal (filed Aug. 6,
2012).
2
The Court appointed counsel to represent Sigmon in this
habeas corpus proceeding.
2
or may the petition for writ of habeas
corpus and the direct appeal proceed
simultaneously?
While the precise origin of the writ of habeas corpus is
unknown, it is believed to have been in use before the date of
the Magna Carta. Rollin C. Hurd, A Treatise on the Right of
Personal Liberty, and on the Writ of Habeas Corpus and the
Practice Connected with It: With a View of the Law of
Extradition of Fugitives 144 (1858). "From its earliest known
appearance to the present, habeas corpus has been a judicial
order directing a person to have the body of another before a
tribunal at a certain time and place." Daniel J. Meador, Habeas
Corpus and Magna Carta: Dualism of Power and Liberty 7 (1966).
The purpose of a writ of habeas corpus is to "test the validity
of detention, and, for this purpose, the law permits a prisoner
to mount a collateral attack upon his conviction or sentence."
Howard v. Warden of Buckingham Corr. Ctr., 232 Va. 16, 19, 348
S.E.2d 211, 213 (1986); see also Buchanan v. Buchanan, 170 Va.
458, 464, 197 S.E. 426, 429 (1938) ("The primary object of
habeas corpus is to determine the legality of the restraint
under which a person is held.").
The writ of habeas corpus "was claimed as the birthright of
every Englishman, and our ancestors brought it with them as such
to this country." United States ex rel. Wheeler v. Williamson,
3
28 F. Cas. 686, 688 (E.D. Pa. 1855). Sometimes referred to as
the "most celebrated writ in the English law," Click v. Click,
127 S.E. 194, 195 (W. Va. 1925), it has been preserved in our
federal and state constitutions. In the Commonwealth, "the writ
of habeas corpus shall not be suspended unless when, in cases of
invasion or rebellion, the public safety may require." Va.
Const. art. I, § 9 (1971); see also U.S. Const. art. 1, § 9, cl.
2. Pursuant to Code § 8.01-654(A)(1), the "writ of habeas
corpus ad subjiciendum shall be granted forthwith by the Supreme
Court or any circuit court, to any person who shall apply for
the same by petition, showing by affidavits or other evidence
probable cause to believe that he is detained without lawful
authority."
Habeas corpus "is designed to challenge the civil right of
the validity of the petitioner's detention" and is therefore "a
civil and not a criminal proceeding." Smyth v. Godwin, 188 Va.
753, 760, 51 S.E.2d 230, 233 (1949); see also Ex parte Tom Tong,
108 U.S. 556, 559-60 (1883) (Habeas corpus "is a new suit
brought by [the petitioner] to enforce a civil right, which he
claims, as against those who are holding him in custody, under
the criminal process."). It is not "a continuation of the
criminal prosecution," Smyth, 188 Va. at 760, 51 S.E.2d at 233,
and "may not be used as a substitute for an appeal or writ of
4
error." Brooks v. Peyton, 210 Va. 318, 321, 171 S.E.2d 243, 246
(1969); accord Slayton v. Parrigan, 215 Va. 27, 29, 205 S.E.2d
680, 682 (1974).
As both parties acknowledge, none of the statutes
addressing habeas corpus, see Code §§ 8.01-654 through -668,
expressly or implicitly prohibits a petitioner from seeking
habeas corpus relief in this Court prior to completing a direct
appeal from a final judgment of conviction. Those statutes
prescribe only a limitation as to the time period in which a
petition for a writ of habeas corpus must be filed. Except in
cases in which a death sentence was imposed,
[a] habeas corpus petition attacking a
criminal conviction or sentence . . . shall
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.
Code § 8.01-654(A)(2). Before the enactment of Code § 8.01-
654(A)(2), which became effective on July 1, 1998, 3 a petitioner
could seek habeas corpus relief at any time provided the
respondent was not prejudiced in its ability to reply because of
the petitioner's delay in filing. Haas v. Lee, 263 Va. 273,
275, 560 S.E.2d 256, 257 (2002).
3
See 1998 Acts ch. 577; Code § 1-214(A).
5
Relying on our decisions in Bowman v. Washington, 269 Va.
1, 605 S.E.2d 585 (2004), and Davis v. Johnson, 274 Va. 649, 652
S.E.2d 114 (2007), Sigmon argues that in the absence of statutes
to the contrary, this Court should exercise its discretion to
dismiss without prejudice a habeas corpus petition filed in this
Court prior to the disposition of any pending direct appeal
challenging the criminal conviction. In Bowman, the petitioner
filed a petition for a writ of habeas corpus in circuit court
and asserted numerous claims of ineffective assistance of
counsel, including a claim that his attorney was ineffective for
failing to file a timely petition for appeal challenging his
criminal conviction. 269 Va. at 1, 605 S.E.2d at 585. The
petitioner asked the circuit court to permit him to file a
belated appeal to the Court of Appeals of Virginia and to
dismiss his remaining claims without prejudice. Id. The
circuit court granted the requested relief as to the belated
appeal but dismissed the other claims with prejudice. Id.
Prior to the amendment of Code § 8.01-654(B)(2) in 2005,
see 2005 Acts ch. 836, a petitioner was barred from asserting in
a subsequent petition for a writ of habeas corpus new claims
based on facts of which the petitioner had knowledge at the time
6
of filing the previous petition. 4 A petitioner could, however,
reassert claims previously dismissed without prejudice. Id. at
1-2, 605 S.E.2d at 585. Because the petitioner in Bowman had
requested that his remaining habeas claims be dismissed without
prejudice so as to preserve them while he pursued his direct
appeal, we concluded that the circuit court abused its
discretion by dismissing those remaining claims with prejudice.
Id.
Similarly, the circuit court in Davis granted the
petitioner's habeas corpus claim seeking a belated appeal from a
final judgment of conviction and also adjudicated the merits of
his other claims of ineffective assistance of counsel,
dismissing them with prejudice. 274 Va. at 652, 652 S.E.2d at
115. On appeal, however, we found no abuse of discretion by the
circuit court. Id. at 654, 652 S.E.2d at 117. Noting the 2005
amendment to Code § 8.01-654(B)(2), we explained that our
decision in Bowman "did not suggest that a circuit court must[,]
in every case[,] dismiss without prejudice all additional habeas
corpus claims accompanying a successful request for a belated
appeal." Id.
4
Pursuant to the 2005 amendment to Code § 8.01-654(B)(2), a
petitioner is no longer precluded from asserting new claims in a
subsequent petition for a writ of habeas corpus when the sole
claim in the first petition was a denial of the right of appeal
from a final judgment of conviction. See 2005 Acts ch. 836.
7
Instead, the discretionary nature of the
circuit court's authority permits a circuit
court to evaluate a petitioner's additional
claims. If the circuit court is able to
determine from the record that these claims
are insufficient as a matter of law, or are
procedurally barred as a matter of law, the
circuit court retains the discretionary
authority to dismiss those deficient claims
with prejudice. If, however, the additional
claims cannot be resolved as a matter of law
on the face of the record, the circuit court
should dismiss those claims without
prejudice to enable a petitioner to reassert
the same claims in a later petition after
his belated appeal is concluded.
Id.
The decisions in Bowman and Davis signify that it lies
within the sound discretion of the court whether to adjudicate
all habeas corpus claims when ruling on a claim for a belated
appeal. However, contrary to Sigmon's argument, those cases are
not dispositive of the question we posed to the parties in this
case: whether a petition for a writ of habeas corpus and a
direct appeal can proceed simultaneously in this Court. We now
answer that question affirmatively.
The writ of habeas corpus has always been regarded "'as a
palladium of liberty'" and recognized as one of "'the greatest
and most effective remedies known to the law.'" Click, 127 S.E.
at 195 (citations omitted). Moreover, Code § 8.01-654(A)(1)
commands that when a petitioner shows that he or she is detained
without lawful authority, the "writ of habeas corpus ad
8
subjiciendum shall be granted forthwith." (Emphasis added.) We
find no justification to dismiss without prejudice a petition
for a writ of habeas corpus filed in this Court merely because a
direct appeal is also pending either in the Court of Appeals or
in this Court. Indeed, such a procedure would ignore the fact
that claims of ineffective assistance of counsel are not
reviewable on direct appeal and thus can be raised only in a
habeas corpus proceeding. See Johnson v. Commonwealth, 259 Va.
654, 675, 529 S.E.2d 769, 781 (2000); Roach v. Commonwealth, 251
Va. 324, 335 n.4, 468 S.E.2d 98, 105 n.4 (1996); Walker v.
Commonwealth, 224 Va. 568, 570-71, 299 S.E.2d 698, 699-700
(1983). A petitioner with a meritorious claim of ineffective
assistance of counsel should not be forced either to forego all
direct appeal remedies in order to seek habeas corpus relief
immediately after a criminal conviction, or to wait until the
completion of any direct appeal remedies before pursuing the
habeas corpus claim. Thus, Sigmon's petition for a writ of
habeas corpus can proceed simultaneously with his direct appeal
in this Court. Cf. Walker, 224 Va. at 570, 299 S.E.2d at 699
(direct appeal of conviction and appeal from denial of a habeas
corpus petition both pending before the Court simultaneously).
We turn now to the merits of his habeas corpus claims.
Before addressing them, we will summarize the pertinent evidence
9
presented at Sigmon's trial for petit larceny and breaking and
entering with the intent to commit larceny. The victim, William
L. Higginbotham, testified that he and Sigmon are cousins and
that although they have known each other since childhood, he had
not seen Sigmon for at least 20 years. Higginbotham related
that on the day in question, May 29, 2011, Sigmon came to his
house two times. According to Higginbotham, he felt
uncomfortable during the first encounter because Sigmon asked
him for money. Higginbotham did not give Sigmon a definite
answer but merely told Sigmon he would "try to see what [he]
could do."
Higginbotham testified that Sigmon returned to his house
about 30 to 45 minutes later. Higginbotham decided to "try to
give the impression that no one was home," so he concealed
himself in a closet and did not respond to Sigmon's knocking on
the door. Higginbotham observed Sigmon enter the house
uninvited, rummage through the drawers of a computer desk, take
a blank check from a checkbook lying on the desk, and then
leave. Higginbotham later placed a "hold" on the check, which
was never cashed.
Sigmon testified at trial and admitted that he went to
Higginbotham's house twice on the day in question. He also
admitted that he entered the house the second time uninvited,
10
after receiving no response to his knocking and calling for
Higginbotham. He further acknowledged that he took the blank
check. Sigmon claimed, however, that he took the check solely
to get Higginbotham's telephone number so he would not need to
leave Higginbotham a note. Sigmon also testified that he tore
off the part of the check containing the telephone number and
threw the remaining portion away. Sigmon admitted that he had
been released from prison in December 2010 and had been
convicted of a "bunch" of felonies.
In his habeas corpus petition, Sigmon alleges that he was
denied effective assistance of counsel on the following grounds:
(1) that counsel failed to meet with him until 30 minutes prior
to trial and to discuss trial strategy or possible defenses to
the charges; (2) that counsel failed to investigate the charges;
(3) that counsel failed to prepare for trial and to interview
and/or subpoena witnesses, in particular John Gilbert Huffman
and Peggy Sue Vaughan, petitioner's fiancée; (4) that counsel
failed to discuss with petitioner whether he should request a
trial by jury; (5) that counsel failed to present exculpatory
evidence at trial; (6) that counsel failed to request a
continuance of the trial because counsel was not prepared to
proceed; and (7) that counsel incorrectly informed the trial
11
court that petitioner wished to change his plea from not guilty
to guilty.
In this collateral attack on his convictions, Sigmon has
the burden to prove by a preponderance of the evidence his
claims of ineffective assistance of counsel. Jerman v. Dir.,
267 Va. 432, 438, 593 S.E.2d 255, 258 (2004); Green v. Young,
264 Va. 604, 608, 571 S.E.2d 135, 138 (2002). To prevail on
those claims, he must satisfy both parts of a two-part test
established in Strickland v. Washington, 466 U.S. 668, 687
(1984). First, Sigmon must show that his counsel's "performance
was deficient," which means "counsel made errors so serious that
counsel was not functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment." Id. Second, he must prove
that counsel's "deficient performance prejudiced the defense,"
that is to say "counsel's errors were so serious as to deprive
the defendant of a fair trial." Id.
As explained in Strickland, a court is not required to
determine "whether counsel's performance was deficient before
examining the prejudice suffered by the defendant as a result of
the alleged deficiencies." Id. at 697. Instead, a court can
proceed directly to the prejudice prong of the two-part test
"[i]f it is easier to dispose of an ineffectiveness claim on the
12
ground of lack of sufficient prejudice." Id. We will do so in
this case.
Upon reviewing the record, including the transcript of
Sigmon's trial and his counsel's affidavit, the Court concludes
Sigmon has not demonstrated that "there is a reasonable
probability that, but for counsel's [alleged] errors, the result
of the proceeding would have been different." Id. at 694.
Sigmon failed to provide affidavits or other evidence to show
what additional trial strategies and defenses were available if
counsel had met with him more often and engaged in additional
trial preparation; what additional investigation of the charges
would have revealed; what testimony John Gilbert Huffman, Peggy
Sue Vaughan and any other witnesses would have provided if
counsel had interviewed and subpoenaed them to testify at trial;
what factors informed his decision to have a bench trial and
what additional information from his counsel would have prompted
him to request a jury trial; what exculpatory evidence counsel
should have introduced at trial; what further evidence and/or
defenses could have been developed if counsel had requested a
continuance of the trial; and how any miscommunication about
whether he wished to change his plea affected the trial court's
finding of guilt on the charges. As the Director states in his
motion to dismiss, Sigmon's claims are facially lacking under
13
the prejudice prong of the two-part test because Sigmon fails
even to assert, much less demonstrate, that but for counsel's
alleged errors, the result of his trial would have been
different.
Furthermore, Higginbotham's account of Sigmon's entering
his house the second time without permission, taking the blank
check out of the checkbook, and leaving with it is
uncontradicted. Sigmon admitted to these actions but claimed he
took the check merely to get Higginbotham's telephone number.
His counsel argued that the blank check had no value until it
was signed and endorsed, that there was no evidence that Sigmon
used the check in any manner, and that he lacked the intent to
steal anything of value. Sigmon has identified no alternative
defense that counsel should have pursued at trial.
In sum, Sigmon failed to satisfy the prejudice prong of the
two-part Stickland test. Therefore, we will dismiss Sigmon's
petition for a writ of habeas corpus.
Dismissed.
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