Davis v. Johnson

PRESENT: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Agee, JJ., and Lacy, S.J.

RODNEY C. DAVIS

v. Record No. 070376 OPINION BY
JUSTICE BARBARA MILANO KEENAN
November 2, 2007

GENE M. JOHNSON, DIRECTOR,
VIRGINIA DEPARTMENT OF CORRECTIONS

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Kathleen H. MacKay, Judge

In this appeal, a petitioner challenges a circuit court’s

judgment dismissing with prejudice his petition for a writ of

habeas corpus. The primary issue we consider is whether the

circuit court abused its discretion in denying the petitioner’s

request to dismiss his claims without prejudice, pursuant to

Bowman v. Washington, 269 Va. 1, 605 S.E.2d 585 (2004), when

petitioner was awarded a belated appeal of his criminal

convictions to the Court of Appeals.

In 2004, Rodney C. Davis pleaded guilty in the Circuit

Court of Fairfax County to two counts of distribution of

cocaine. The circuit court found Davis guilty as charged and

sentenced him to serve two concurrent terms of five years and

four months’ imprisonment.

Davis later filed a petition for a writ of habeas corpus in

the circuit court under Code § 8.01-654(B), in which he asserted
18 claims. Davis’ first four claims involved allegations of

ineffective assistance of counsel.

In claim (a), Davis alleged that his trial counsel failed

to prepare properly for trial, failed to interview witnesses,

and failed to conduct proper legal research. In claim (b),

Davis alleged that his trial counsel failed to prepare

adequately for trial and failed to provide Davis with competent

advice about Davis’ decision to plead guilty, and that Davis’

guilty pleas were not intelligently made.

In claim (c), Davis alleged that his trial counsel failed

to introduce mitigation evidence during the sentencing phase of

trial. In claim (d), Davis alleged that his trial counsel, as

well as counsel retained after trial, failed to advise Davis

about his right to appeal and failed to file a timely appeal.

In claims (e) through (j), Davis asserted various claims of

prosecutorial misconduct. In claims (k) and (l), Davis alleged

that the probation officer filed an inaccurate pre-sentence

report. In claims (m) through (r), Davis alleged that the trial

judge acted in violation of Davis’ constitutional rights.

The Commonwealth filed an answer and motion to dismiss

Davis’ petition, opposing claims (a) through (c) and claims (e)

through (r). However, with regard to claim (d), the

Commonwealth conceded that Davis should be permitted to file a

belated appeal to the Court of Appeals.

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 Davis filed a reply brief in support of his petition,

asserting additional claims and alleged facts in support of

those claims. Davis attached to this reply brief affidavits and

letters from his mother and friends relating their impressions

of the conduct of Davis’ counsel and the circumstances of his

trial.

On October 26, 2006, the circuit court entered an order

that granted Davis’ original petition with respect to claim (d),

allowing Davis to pursue a belated appeal to the Court of

Appeals. The circuit court dismissed the remaining claims in

Davis’ petition with prejudice.

The circuit court dismissed claims (a) through (c), which

contained allegations of ineffective assistance of counsel, on

several grounds. The circuit court determined that these claims

failed to state a ground for relief under the tests set forth in

Strickland v. Washington, 466 U.S. 668, 687 (1984), and Hill v.

Lockhart, 474 U.S. 52, 59 (1985). The circuit court also held

that claims (a) through (c) were “too conclusory” to demonstrate

that Davis suffered prejudice as a result of counsel’s alleged

ineffective assistance. Finally, the circuit court, citing

Anderson v. Warden, 222 Va. 511, 516, 281 S.E.2d 885, 888

(1981), held that claims (a) through (c) were “wholly

inconsistent” with the representations Davis made at the time of

his guilty pleas about the adequacy of his trial counsel and the

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intelligent and voluntary nature of his guilty pleas. The

circuit court dismissed on several grounds claims (e) through

(r), which alleged prosecutorial misconduct and errors by the

probation officer and trial judge. The court concluded that 1)

these claims were not supported by sufficient factual

allegations and, thus, were precluded under the holding in Penn

v. Smyth, 188 Va. 367, 370-71, 49 S.E.2d 600, 601 (1948); 2)

Davis was bound by his representations at trial about the

adequacy of his trial counsel and the voluntary nature of his

guilty pleas, based on this Court’s holding in Anderson; and 3)

these non-jurisdictional issues were barred under Slayton v.

Parrigan, 215 Va. 27, 29, 205 S.E.2d 680, 682 (1974), because

the claims could have been raised at trial and on direct appeal.

Davis filed a timely motion in the circuit court asking

that the court “change its [October 26, 2006] order [and]

dismiss without prejudice” his remaining claims based on this

Court’s holding in Bowman. The Commonwealth opposed Davis’

motion.

The circuit court denied Davis’ request that the court

change the terms of its October 26, 2006 order. The circuit

court further held that Davis’ claim (d) was now moot because

Davis had been awarded a belated appeal of his criminal

convictions, and dismissed Davis’ petition with prejudice.

Davis appeals from the circuit court’s judgment.

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 Initially, we consider Davis’ contention that the circuit

court erred in failing to adequately consider his supplemental

pleading, entitled “Opposition to Motion to Dismiss,” in which

he augmented the facts and arguments stated in his initial

petition. Appended to this “Opposition to Motion to Dismiss”

were several letters and affidavits that Davis submitted for the

circuit court’s consideration.

We find no merit in Davis’ argument because the record

before us explicitly refutes his claim. In its October 26, 2006

order dismissing with prejudice Davis’ claims (a) through (c)

and (e) through (r) (the remaining habeas corpus claims), the

circuit court held that “the affidavits and letters filed by the

Petitioner in his Opposition to Motion to Dismiss do not create

the requisite reasonable probability of a different result.”

Thus, the specific language of the October 26, 2006 order

demonstrates that the circuit court considered the contents of

Davis’ supplemental pleading but ultimately found that the

remaining habeas corpus claims had no merit.

Davis argues, nevertheless, that the circuit court abused

its discretion when it refused to dismiss the remaining habeas

corpus claims without prejudice. Davis contends that under the

holding in Bowman, when a habeas petitioner’s request for a

belated appeal is granted, his remaining claims should be

dismissed without prejudice so that he may appeal his criminal

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convictions before being required to litigate the merits of a

collateral attack on those convictions.

In response, the Commonwealth argues that this Court’s

holding in Bowman emphasized the discretionary nature of a

circuit court’s authority to resolve habeas corpus claims.

According to the Commonwealth, the facts and procedural history

of Davis’ case demonstrate that the circuit court properly

exercised its discretion in dismissing with prejudice the

remaining habeas corpus claims.

In considering this issue, we take the opportunity to

discuss our holding in Bowman and the scope of a circuit court’s

discretionary authority to dismiss habeas corpus claims, with or

without prejudice, when a petitioner has been awarded a belated

appeal of his criminal convictions. In Bowman, the petitioner

requested leave to file a belated appeal, and he also asked that

his remaining claims be dismissed without prejudice. Bowman,

269 Va. at 1, 605 S.E.2d at 585. The circuit court agreed that

a belated appeal should be awarded but refused the petitioner’s

request to dismiss his remaining claims without prejudice. Id.

We held that the circuit court abused its discretion in

refusing the petitioner’s request to dismiss his remaining

claims without prejudice. Id. at 1-2, 605 S.E.2d at 585-86. In

reaching this conclusion in Bowman, we made certain observations

concerning the nature of habeas corpus relief in our courts.

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Id. We noted that in Dorsey v. Angelone, 261 Va. 601, 604, 544

S.E.2d 350, 352 (2001), we held that Code § 8.01-654

unambiguously bars a petitioner from raising new claims in a

second or subsequent petition for habeas corpus relief that were

known to the petitioner when he filed his first petition.*

Bowman, 269 Va. at 1-2, 605 S.E.2d at 585-86. We further

observed in Bowman that Code § 8.01-654 does not prevent a

petitioner from reasserting claims that were dismissed without

prejudice in a prior proceeding. Id.

Our decision in Bowman, however, 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. Such a rule effectively would

nullify a circuit court’s discretion by mandating the same

result in every case in which additional claims have been

asserted.

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

*
In 2005, after our opinion in Bowman was issued, Code
§ 8.01-654(B)(2) was amended to allow a petitioner to file a
second or subsequent petition raising new claims when his first

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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.

Based on these principles, we hold that there is no merit

in Davis’ assertion that our decision in Bowman required that

the circuit court dismiss the remaining habeas corpus claims

without prejudice, irrespective of their legal merit or

procedural deficiencies. This determination, however, does not

end our consideration of Davis’ appeal.

Davis advances an alternative argument, in which he asserts

that the circuit court nevertheless abused its discretion by

dismissing the remaining habeas corpus claims with prejudice as

either legally insufficient or procedurally barred. Arguing

that the remaining habeas corpus claims had legal merit, Davis

asserts that he adequately pleaded claims under the Supreme

Court’s holdings in Strickland and Hill. Davis also contends

that the circuit court erred in applying our decisions in Penn

petition contained only an allegation that he was denied the
right to pursue a direct appeal. 2005 Acts ch. 836.

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and Slayton when the court dismissed the remaining habeas corpus

claims with prejudice.

We are unable to consider the merits of these arguments,

however, because Davis has failed to assign error to an

independent basis for the circuit court’s judgment that applied

our decision in Anderson. See Adams Outdoor Adver., L.P. v.

Board of Zoning Appeals, 274 Va. 189, 197, 645 S.E.2d 271, 275

(2007); Sheets v. Castle, 263 Va. 407, 412, 559 S.E.2d 616, 619

(2002); Parker-Smith v. STO Corp., 262 Va. 432, 440-41, 551

S.E.2d 615, 620 (2001). In Anderson, we held that the truth and

accuracy of a defendant’s representations concerning the

adequacy of his counsel and the voluntary nature of his guilty

plea will be deemed conclusively established by the trial

proceedings, unless the petitioner presents a valid reason why

he should be allowed to controvert his prior statements.

Anderson, 222 Va. at 516, 281 S.E.2d at 888.

In dismissing Davis’ habeas corpus allegations (a) through

(c), the circuit court’s order of October 26, 2006 relied on our

holding in Anderson, stating that “the petitioner’s present

self-serving complaints about [trial counsel] are blatantly and

wholly inconsistent with what Davi[s] said when he pled guilty.”

Because Davis does not challenge this independent ground for the

circuit court’s holding that he failed to demonstrate prejudice

resulting from his counsel’s assistance at trial as required by

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Strickland and Hill, we do not address Davis’ other challenges

in his assignments of error to the dismissal of his claims (a)

through (c). See Adams Outdoor Adver., 274 Va. at 197, 645

S.E.2d at 275; Sheets, 263 Va. at 412, 559 S.E.2d at 619;

Parker-Smith, 262 Va. at 440-41, 551 S.E.2d at 620.

In the October 26, 2006 order, the circuit court also

relied on our holding in Anderson as an independent basis for

the court’s dismissal of Davis’ claims (e) through (r). Because

Davis does not assign error to this independent basis for the

circuit court’s judgment, we likewise do not consider his

assignments of error relating to those claims. See Adams

Outdoor Adver., 274 Va. at 197, 645 S.E.2d at 275; Sheets, 263

Va. at 412, 559 S.E.2d at 619; Parker-Smith, 262 Va. at 440-41,

551 S.E.2d at 620.

For these reasons, we will affirm the circuit court’s

judgment.

Affirmed.

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