VIRGINIA:
In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond, on Friday, the 3rd day of
December 2004.
Alexander F. Bowman, Appellant,
against Record No. 040213
Circuit Court No. CL03000360
Gerald K. Washington, Warden, Appellee.
Upon an appeal from a judgment rendered by the Circuit
Court of Stafford County.
Upon consideration of the record, the briefs, and the argument
of counsel, the Court is of opinion that there is merit in the
petitioner’s procedural argument.
The petition for a writ of habeas corpus alleged that
petitioner was denied the effective assistance of counsel for
several reasons, including that his counsel was ineffective for
failing to file a timely petition for appeal to the Court of
Appeals. The petition also alleged various other errors.
In his "Memorandum in Opposition to Motion to Dismiss" filed in
the circuit court, the petitioner asked the circuit court to allow
him to file a belated appeal to the Court of Appeals, and to dismiss
his remaining claims without prejudice. The warden agreed that the
petitioner through no fault of his own was denied his right of
appeal to the Court of Appeals, but requested that the petitioner's
remaining claims be dismissed with prejudice. The circuit court
entered a final order directing the Commonwealth to request that the
Court of Appeals grant petitioner leave to pursue a belated appeal
from his criminal conviction in the circuit court. However, the
circuit court also dismissed the petitioner’s remaining claims with
prejudice.
The circuit court’s dismissal of these remaining claims with
prejudice was an abuse of the court’s discretion. Although Code
§ 8.01-654 bars a petitioner from raising new claims in a subsequent
petition for habeas corpus, Dorsey v. Angelone, 261 Va. 601, 604,
544 S.E.2d 350, 352 (2001), the statute does not prevent a
petitioner from reasserting claims that have been dismissed without
prejudice in a prior proceeding. See Daniels v. Warden, 266 Va.
399, 403, 588 S.E.2d 382, 384 (2003). Had the circuit court granted
the petitioner’s request to have his remaining claims dismissed
without prejudice, he would have been able to pursue and conclude
his direct appeal and obtain any appropriate relief before
litigating the merits of his collateral action.
Accordingly, the part of the circuit court’s order addressing
the petitioner’s belated appeal to the Court of Appeals is affirmed,
and the part of the circuit court’s order dismissing the
petitioner’s remaining claims with prejudice is reversed. The cause
is remanded to the circuit court for entry of an order dismissing
the petitioner’s remaining habeas corpus claims without prejudice.
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It is ordered that the Circuit Court of Stafford County allow
counsel for the appellant a fee of $725 for services rendered the
appellant on this appeal, in addition to counsel’s costs and
necessary direct out-of-pocket expenses.
This order shall be certified to the Circuit Court of Stafford
County and shall be published in the Virginia Reports.
A Copy,
Teste:
Patricia H. Kreuger, Clerk
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