PRESENT: Lacy, Keenan, Koontz, Kinser, and Lemons, JJ., and
Carrico 1 and Compton, S.JJ.
DERRICK GEORGE HENRY
v. Record No. 021542 OPINION BY JUSTICE ELIZABETH B. LACY
February 28, 2003
WARDEN, RIVERSIDE REGIONAL JAIL
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Learned D. Barry, Judge
Derrick George Henry was convicted of possession of cocaine
with intent to distribute in violation of Code § 18.2-248.
Henry's conviction was affirmed by the Court of Appeals. Henry
v. Commonwealth, 32 Va. App. 547, 529 S.E.2d 796 (2000). This
Court denied Henry's petition for appeal by order on October 26,
2000. 2
Henry filed a petition for a writ of habeas corpus in the
trial court asserting that he was illegally detained because his
detention was based on "evidence that was seized pursuant to a
search warrant that was illegally executed by means of a 'no
knock' entry." The trial court granted the Commonwealth's
motion to dismiss the petition. We awarded Henry an appeal and,
because we conclude that the issue raised by Henry in this
1
Chief Justice Carrico presided and participated in the
hearing and decision of this case prior to the effective date of
his retirement on January 31, 2003.
2
Henry's first petition for appeal to the Court of Appeals
was dismissed for failure to file a transcript. Pursuant to a
previous petition for a writ of habeas corpus, he was granted a
belated appeal.
habeas corpus petition was decided on direct appeal, we will
affirm the judgment of the trial court.
The facts relevant to this appeal as recited by the Court
of Appeals are as follows. On February 12, 1997, five police
officers went to serve a search warrant for an apartment in
Richmond. As the officers approached the front porch, they saw
two men, Manuel and Hawkins, coming out the front door. Id. at
550, 529 S.E.2d at 798. Two officers pursued and apprehended
Manuel. As Hawkins was closing the door to the apartment, the
other officers " 'started announcing' their identity and
purpose." Id. Immediately after Hawkins closed the door,
another officer turned the knob and found that the door was
unlocked. At that point, two officers entered the apartment
"yelling, 'search warrant, police, everybody down.' " Id.
Contemporaneously, Officer Payne attempted to stop Hawkins
on the front porch. Id. When Hawkins refused to stop, a
struggle between the two men ensued in the front yard. Id.
According to Officer Payne, "the noise outside was so loud that
officers in a marked unit a block or two away 'heard us yelling'
and 'came to our assistance.' " Id. at 551, 529 S.E.2d at 798.
Thereafter, the officers arrested Henry, who was found in the
apartment.
In this appeal, Henry asserts, as he did in the trial
court, that the "no-knock" search was not justified because,
2
inter alia, there was no evidence that the occupants of the
apartment were aware of the officers' presence and no evidence
that they would have attempted to escape or destroy evidence.
Therefore, Henry argues, there was an insufficient basis for the
officers reasonably to have believed that knocking and
announcing their entry would have been dangerous or futile and
that the loud disturbance in the front yard of the apartment was
"simply not sufficient to serve as a basis for a reasonable
suspicion."
This issue was the very issue decided by both the trial
court, and the Court of Appeals in Henry's direct appeal of his
conviction. The Court of Appeals specifically opined that
[b]ased on the loud disturbance taking place in
front of appellant's residence and the fact that
three of the five officers were involved in
apprehending two recalcitrant suspects outside the
premises to be searched, we find the Commonwealth
sufficiently established that the officers had a
reasonable suspicion that knocking and announcing
their presence would be dangerous or futile.
Id. at 553, 529 S.E.2d at 799.
We have held that a claim that could have been raised at
the criminal trial or on direct appeal is not cognizable in
habeas corpus because to do so would circumvent the trial and
appellate process for non-jurisdictional defects. Slayton v.
Parrigan, 215 Va. 27, 30, 205 S.E.2d 680, 682 (1974). In Hawks
v. Cox, 211 Va. 91, 175 S.E.2d 271 (1970), the petitioner raised
3
issues that had been addressed and resolved in the petitioner's
previous petitions for habeas corpus. We held that, "[a]bsent a
change of circumstances, previous determination of the issues by
either state or federal courts will be conclusive." Id. at 95,
175 S.E.2d at 274. The natural corollary to these decisions is
that a non-jurisdictional issue raised and decided either in the
trial or on direct appeal from the criminal conviction will not
be considered in a habeas corpus proceeding.
Therefore, we will affirm the judgment of the trial court
dismissing Henry's petition for a writ of habeas corpus because
the issue raised by the petition was addressed and resolved in
the trial and direct appeal of his criminal conviction and,
therefore, is not cognizable in a habeas corpus proceeding. 3
Affirmed.
3
To the extent Henry is raising a "new" claim by arguing
that the police officers "created" the exigent circumstances and
therefore the no-knock entry was improper, that claim is barred
under the holding in Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d
680 (1974).
4