Present: Carrico, C.J., Hassell, Keenan, Koontz, Kinser, and
Lemons, JJ., and Compton, S.J.
MICAH LAVAL DORSEY OPINION BY
SENIOR JUSTICE A. CHRISTIAN COMPTON
v. Record No. 000566 April 20, 2001
RONALD J. ANGELONE, DIRECTOR,
DEPARTMENT OF CORRECTIONS
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Charles E. Poston, Judge
In this habeas corpus appeal, the dispositive question is
whether the trial court correctly ruled that a prisoner's second
petition for a writ of habeas corpus was procedurally barred
under Code § 8.01-654(B)(2), which controls the filing of
successive habeas petitions.
On March 13, 1987, appellant Micah Laval Dorsey was
sentenced to a total of 55 years' confinement for convictions of
five felonies. He did not appeal the judgment.
On November 15, 1993, the prisoner filed in the original
jurisdiction of this Court a petition for a writ of habeas
corpus. The sole ground for relief was a claim that he was
being denied "the proper amount of goodtime credits affecting
his initial discretionary parole eligibility date."
On January 20, 1994, this Court granted the petitioner's
motion for leave "to withdraw the petition for writ of habeas
corpus" and ordered that "the same is considered withdrawn and
the rule discharged."
On June 10, 1999, the prisoner filed a second habeas
petition, this time in the trial court, naming the appellee as
respondent. In that petition, he assigned seven grounds for
relief. One ground alleged denial of the right of appeal due to
attorney error, and the remaining six grounds alleged denial of
effective assistance of counsel, for various reasons.
In a motion to dismiss on behalf of the respondent, the
Attorney General contended the habeas petition was procedurally
barred by Code § 8.01-654(B)(2). He argued that when a prisoner
has been granted leave to withdraw a habeas petition, any
subsequent petition filed by the prisoner must be limited to the
claims raised in the first petition. Alternatively, the
Attorney General alleged there was no merit to the petitioner's
substantive allegations.
Following receipt of affidavits addressed to the
substantive claims and following argument of counsel, the trial
court denied the habeas petition. The court ruled that the
petition was procedurally barred and that the substantive claims
had no merit. We awarded the prisoner this appeal from the
trial court's December 1999 order dismissing the petition.
On appeal, the prisoner contends the trial court erred by
dismissing the petition as a second or subsequent petition when
2
the initial petition "merely challenged Dorsey's time
computation, and was voluntarily withdrawn." The prisoner also
contends the trial court erred in dismissing his substantive
claims.
We disagree with the prisoner on the procedural issue.
Thus, we do not reach the substantive questions.
Code § 8.01-654(B)(2) provides:
"[A petition for habeas corpus] shall contain all
allegations the facts of which are known to petitioner
at the time of filing and such petition shall
enumerate all previous applications and their
disposition. No writ shall be granted on the basis of
any allegation the facts of which petitioner had
knowledge at the time of filing any previous
petition."
The statutory language is plain and unambiguous, clearly
limiting the right of a prisoner to file successive petitions
for writs of habeas corpus. The key provisions of this
statutory language focus on "the time of filing" the first
habeas petition.
The statutory language could not be more explicit; it means
what it says. At the time of filing the initial petition, the
prisoner must include "all" claims the facts of which are known
to the prisoner. And, no habeas relief will be granted based
upon "any" allegation the facts of which the prisoner had
knowledge at the time of filing any previous petition.
3
In this case, the significant facts are that the prisoner
filed a prior habeas petition that was withdrawn pursuant to his
motion. The prior petition only challenged the computation of
goodtime credits relating to his March 1987 felony sentences.
In the present petition, the prisoner does not attack again
the time computation. Instead, he mounts seven new challenges
to his detention, the facts of which he is bound to have had
knowledge "at the time of filing" the first petition.
Code § 8.01-654(B)(2) bars this subsequent habeas petition
raising new claims relating to the March 1987 judgment that
never were raised in the prior petition. Because the prior
petition was voluntarily withdrawn, the prisoner was entitled to
file another petition. However, that second petition was
required to have been limited to the ground assigned in the
first petition and could not include new and different
allegations relating to the March 1987 judgment.
Consequently, we hold that the trial court did not err in
dismissing the present habeas petition as procedurally barred,
and the judgment below will be
Affirmed.
JUSTICE LEMONS, concurring.
Despite results that are undoubtedly harsh and despite
inconsistency with prior practice of the Court, I must concur
with the majority opinion. As the majority opinion states, the
4
text of § 8.01-654(B)(2) “could not be more explicit.” In the
absence of legislative history or context that suggests
otherwise, the plain meaning of the text must guide our
statutory interpretation.
The majority opinion holds that:
At the time of filing the initial petition,
the prisoner must include “all” claims the
facts of which are known to the prisoner.
And, no habeas relief will be granted based
upon “any” allegations the facts of which
the prisoner had knowledge at the time of
filing any previous petition.
The majority opinion changes prior practice and
interpretation of the Court. For example, the Court previously
has granted a first petition for writ of habeas corpus alleging
only that counsel failed to file an appeal in a timely manner.
Thereafter, after an unsuccessful appeal, and despite the
prisoner’s failure to allege any other basis for the first
petition, the Court has permitted a second petition alleging
trial-related claims.
If a prisoner were to challenge by petition for writ of
habeas corpus only the conditions of confinement or the
calculation of credits for time served in a local jail, the
majority opinion will preclude a second petition that raises
trial-related claims for the first time. Finally, as in this
case, a prisoner permitted to withdraw a petition prior to
adjudication will be precluded from refiling on any basis other
5
than those alleged in the withdrawn petition. Previously, the
Court has permitted such withdrawal “without prejudice” and has
considered refiled petitions adding additional claims.
Arguably, so long as the statute of limitations has not
expired, the majority opinion would permit the amendment of a
petition to add new claims, a practice previously permitted by
the Court, but prohibit the withdrawal of a petition and
refiling with new claims. The distinction between the two
procedures is without practical significance.
The hypotheticals posited above reflect the consequences of
the plain meaning of the text of Code § 8.01-654. If, as
suggested by the dissent, the General Assembly did not intend
such results, it, most likely, will reconsider the provisions of
the statute.
JUSTICE KOONTZ, dissenting.
I respectfully dissent. I have long labored under the
impression that there could be no dispute that “to withdraw” a
legal pleading, such as a petition for a writ of habeas corpus,
essentially meant to remove or eliminate the pleading from
consideration by a court; the pleading becomes a nullity.
Today, however, the majority in this appeal concludes that a
“voluntarily withdrawn” 1993 petition nevertheless constitutes a
“first petition” that causes a 1999 petition to become a “second
6
petition” for purposes of the prohibition against “successive”
habeas petitions under Code § 8.01-654(B)(2). In my view, the
majority breathes new life into that which has been nullified,
and by an unwarranted narrow application of this statute defeats
a merits adjudication of Micah Laval Dorsey’s 1999 claims.
Although Code § 8.01-654 makes no reference to, or
provision for, a habeas petition being voluntarily withdrawn by
a prisoner, we granted Dorsey’s motion to withdraw his 1993
petition which raised a claim that he was being denied the
proper amount of “goodtime credits” relevant to a determination
of his discretionary parole eligibility date. We ordered that
this petition be considered “withdrawn.” No adjudication of the
merits of that petition was made. Thus, the majority now
properly holds that because the 1993 petition was withdrawn,
Dorsey “was entitled to file another petition” in 1999. Yet,
the majority further holds that the language in subsection
(B)(2) that “[n]o writ shall be granted on the basis of any
allegations of facts of which petitioner had knowledge at the
time of filing any previous petition” defeats consideration of
the merits of the allegations in the petition Dorsey is
permitted to file. This is so, the majority reasons, because
Dorsey is bound to have had knowledge of the facts regarding his
detention that are alleged in his 1999 petition at the time of
filing the 1993 petition.
7
I can find nothing in the statutory language of Code
§ 8.01-654, and specifically subsection (B)(2), that even
suggests a legislative intent that supports the reasoning of the
majority. Rather, Code § 8.01-654 surely contemplates that a
timely habeas petition filed by a prisoner receive a merits
adjudication. Treating claims that are obviated without an
adjudication on the merits as a bar to hearing all other claims
on the merits is inconsistent with this legislative intent.
Moreover, the prohibition against the so-called “successive”
petitions is clearly intended to bring finality to judgments of
criminal convictions or sentences and to prevent a prisoner from
creating undue delay in the process of collateral review of
those judgments. That purpose is not hindered by declining to
treat a voluntarily withdrawn habeas petition as a first or
prior petition for purposes of concluding that the present
petition is a second or successive petition.
Finally, although the federal habeas scheme is different
from that expressed in Code § 8.01-654(B)(2), it bears noting
that apparently under the federal rule regarding the prohibition
against successive habeas petitions a different result would be
mandated in the present case. See Slack v. McDaniel, 529 U.S.
473, 487 (2000) (prior habeas petition unadjudicated on the
merits is not a prior petition triggering the bar on subsequent
or successive petitions for habeas relief).
8
For these reasons, I would hold that Code § 8.01-654(B)(2)
has no application to Dorsey’s 1999 habeas petition because his
1993 petition was voluntarily withdrawn without a merits
adjudication and, thus, the 1999 petition was not a second or
successive petition contemplated by that statute. Accordingly,
I would further consider the merits of the allegations in
Dorsey’s 1999 petition.
9