Lahey v. Johnson ( 2012 )

PRESENT: All the Justices
MARK F. LAHEY
OPINION BY
v. Record No. 110552 ELIZABETH A. McCLANAHAN
January 13, 2012
GENE M. JOHNSON, DIRECTOR
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Victor V. Ludwig, Judge
Mark F. Lahey challenges on appeal the circuit court's
order dismissing his petition for a writ of habeas corpus as
time-barred under the statute of limitations set forth in Code
§ 8.01-654(A)(2). Lahey submitted his habeas petition for
filing on the last day of the limitations period, but did not
complete payment of the filing fee until days later. The
circuit court dismissed the petition as untimely under Code
§ 8.01-654(A)(2) upon determining that, under the express
requirements of Code § 8.01-655, the petition could not be
filed, or deemed filed, without proper payment of the filing
fee. We agree with the circuit court and will affirm its
judgment.
BACKGROUND
In 2006, Lahey was convicted of two counts of attempted
first degree murder and was sentenced to 18 years' imprisonment.
The Court of Appeals and this Court refused Lahey's petitions
for appeal on June 7, 2007 and December 27, 2007 respectively.
Therefore, the last day for Lahey to file a petition for a writ
of habeas corpus was December 29, 2008. ∗ Code § 8.01-654(A)(2).
On December 29, 2008, the circuit court clerk's office
received by mail from Lahey's counsel a petition for a writ of
habeas corpus accompanied by a check in the amount of $32 for
the filing fee. The same day, a deputy clerk emailed Lahey's
counsel to advise him that the proper filing fee was $37, and
that the fee submitted was $5 short. Lahey's counsel mailed a
$5 check to the clerk's office on December 30, 2008. Due to the
holidays and the weekend, the clerk's office received the $5
check on January 5, 2009, at which time the petition was
"stamped and filed."
Appellee, Gene M. Johnson, Director of the Virginia
Department of Corrections (the Director), moved to dismiss
Lahey's habeas petition as untimely filed under the statute of
limitations contained in Code § 8.01-654(A)(2). The Director
asserted that the deadline for filing the petition was December
29, 2008; and that, while the clerk's office received the
petition on that date, the clerk's office did not file it
because Lahey failed to submit the proper filing fee at that
time. Payment of the filing fee, the Director argued, was a
"precondition to filing" under Code § 8.01-655, as the statute
∗
Because December 27, 2008 was a Saturday, the filing
deadline was not until Monday, December 29, 2008. Code § 1-210.
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expressly provided that the petition was "not [to] be filed
without payment of court costs," Code § 8.01-655(B). Thus,
Lahey's habeas petition was time-barred, according to the
Director, as it was not filed until January 5, 2009, when the
clerk's office received payment for the remainder of the filing
fee.
In response, Lahey conceded that December 29, 2008 was the
last day of the limitations period under Code § 8.01-654(A)(2)
for filing his habeas petition. He argued, however, that the
petition was filed, or alternatively should be deemed filed,
when it was received in the clerk's office on that date for
purposes of the statute of limitations - even though the filing
fee was not paid in full, and the clerk's office did not accept
the petition for filing, until January 5, 2009. According to
Lahey, no Virginia habeas related statute required payment of
the filing fee as a precondition to filing a habeas petition;
and he was at least in "substantial compliance" with the terms
of Code § 8.01-655 when he submitted the initial payment of $32
with his petition, which was all the statute required. Lahey
further argued that his petition otherwise should be considered
"conditionally filed" on December 29, 2008 until he later
"addressed and paid the $5 deficiency."
Following a hearing on the Director's motion, the circuit
court ordered dismissal of Lahey's habeas petition upon
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concluding that the petition was time-barred under Code § 8.01-
654(A)(2). In its letter opinion, the court explained that
payment of the filing fee was a "mandatory predicate" for filing
the petition under Code § 8.01-655. Thus, "Lahey did not timely
file his petition because he did not timely pay the [f]ee."
ANALYSIS
On appeal, Lahey assigns error to the judgment of the
circuit court on the grounds that (i) the court erred in
dismissing his habeas petition as time-barred "when the petition
and $32 were timely but the filing fee was short by $5"; and
(ii) the court erred in ruling that "the full filing fee was
'mandatory' or 'jurisdictional," instead of "apply[ing]
substantial compliance, equitable tolling, or the concept of
conditional filing."
Lahey's assignments of error present issues of law
regarding the construction and application of Code §§ 8.01-
654(A)(2) and 8.01-655(B). We review such issues de novo.
Kummer v. Donak, 282 Va. 301, 304, 715 S.E.2d 7, 9 (2011);
Antisdel v. Ashby, 279 Va. 42, 47, 688 S.E.2d 163, 166 (2010).
Code § 8.01-654(A)(2) sets forth Virginia's statute of
limitations governing the filing of habeas petitions, and
provides, in relevant part: "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
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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." (Emphasis added.)
Code § 8.01-655 then addresses numerous substantive and
procedural matters related to the filing of a habeas petition,
including the directive that "[t]he petition will not be filed
without payment of court costs unless the petitioner is entitled
to proceed in forma pauperis and has executed the affidavit in
forma pauperis." Code § 8.01-655(B) (emphasis added).
The dispositive statutory provisions are thus limited to
the following: the habeas petition "shall be filed" within the
applicable limitations period, Code § 8.01-654(A)(2); however,
the petition "will not be filed without payment of court costs"
(where the petitioner is not proceeding in forma pauperis).
Code § 8.01-655(B).
The last day for Lahey to file his habeas petition was
December 29, 2008. He submitted his petition to the circuit
court clerk's office for filing on that date with insufficient
payment of the filing fee, and he did not complete the payment
until days later. Nor did he submit his petition seeking in
forma pauperis status. On those facts, we agree with the
circuit court that Lahey's habeas petition was time-barred under
Code §§ 8.01-654(A)(2) because (a) the filing of the petition
was conditioned upon proper payment of the filing fee (i.e., the
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court cost) under Code § 8.01-655(B), and (b) Lahey did not
complete payment of the filing fee until after the limitations
period for filing the petition under Code § 8.01-654(A)(2) had
expired.
Challenging the circuit court's ruling, Lahey asserts that
Code § 8.01-655 requires only "substantial compliance" with its
provisions. He then argues that his payment of $32 of the $37
filing fee, along with submission of his habeas petition, on the
last day of the limitations period should be held to meet this
standard. Lahey's reliance on this standard is misplaced. As
the circuit court correctly concluded in rejecting this
argument, the statute utilizes this standard only in reference
to compliance with the required contents of the habeas petition.
Code § 8.01-655(A) states in this regard: "Every petition filed
by a prisoner seeking a writ of habeas corpus must be filed on
the form set forth in subsection B. The failure to use such
form and to comply substantially with such form shall entitle
the court to which such petition is directed to return such
petition to the prisoner pending the use of and substantial
compliance with such form."
By contrast, the filing provision at issue under Code
§ 8.01-655(B) is unequivocal in providing, through plain and
unambiguous language, that the petition "will not be filed
without payment of court costs" where, as here, the petitioner
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is not seeking in forma pauperis status. To hold that this
provision requires something less than complete payment of the
full filing fee to achieve filing of the habeas petition would
amount to this Court rewriting the statute under the guise of
statutory construction. " 'When the legislature has spoken
plainly it is not the function of courts to change or amend its
enactments under the guise of construing them. The province of
[statutory] construction lies wholly within the domain of
ambiguity, and that which is plain needs no interpretation.' "
Doss v. Jamco, Inc., 254 Va. 362, 370, 492 S.E.2d 441, 445
(1997) (quoting Winston v. City of Richmond, 196 Va. 403, 407-
08, 83 S.E.2d 728, 731 (1954)).
For the same reasons, we reject Lahey's argument that the
circuit court should have otherwise deemed his habeas petition
filed on the last day of the limitations period until he paid
the balance of the filing fee days later by applying some
principle of "equitable tolling" or "conditional filing." The
express language of the Code § 8.01-655(B) filing provision does
not contain any terms open for interpretation as such a savings
provision. In making this argument, Lahey points to various
rules of this Court, none of which address the statute's filing
provision. See Rules 3:2, 3:3, 3A:25 and 5:5. To the extent,
however, that any of those rules could be construed as
conflicting with the statute, the statute would "prevail[] over
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[them]." Turner v. Commonwealth, 221 Va. 513, 519-20, 273
S.E.2d 36, 40 (1980) ("The Constitution of Virginia, Art. VI,
§ 5, prohibits the promulgation of any court rule 'in conflict
with the general law as the same shall, from time to time, be
established by the General Assembly.' "); see Pulliam v. Coastal
Emergency Servs. of Richmond, Inc., 257 Va. 1, 21-23, 509 S.E.2d
307, 319 (1999) (same); see also Code § 8.01-3(D) ("In the case
of any variance between a rule and an enactment of the General
Assembly such variance shall be construed so as to give effect
to such enactment").
Finally, we reject Lahey's contention that a habeas
petition can be found to have been "filed" for purposes of the
limitations period under Code § 8.01-654(A)(2) simply upon its
submission to the clerk's office, even if it was not "filed" for
purposes of Code § 8.01-655(B) due to a petitioner's failure to
pay the full filing fee. Reading Code §§ 8.01-654 and 8.01-655
in pari materia, we are convinced the legislature was addressing
the same action when it used the term "filed" in each of these
related statutes. See Evans v. Evans, 280 Va. 76, 83 n.2, 695
S.E.2d 173, 176 n.2 (2010) ("Because [the two statutes at issue]
clearly address the same subject matter, we construe them
together under the 'in pari materia' canon of construction.").
Thus, if a habeas petition does not qualify for filing due to a
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lack of full payment under Code § 8.01-655(B), then, as a matter
of law, it is not "filed" for purposes of Code § 8.01-654(A)(2).
CONCLUSION
For the reasons stated, Lahey's habeas petition was time-
barred under Code § 8.01-654(A)(2). Accordingly, we will affirm
the judgment of the circuit court.
Affirmed.
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