Present: Lemons, C.J., Goodwyn, Millette, and Powell, JJ., and Russell and Lacy, S.JJ.
ARSEAN LAMONE HICKS
v. Record No. 131945 OPINION BY SENIOR JUSTICE ELIZABETH B. LACY DIRECTOR, DEPARTMENT February 26, 2015 OF CORRECTIONS
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Everett A. Martin, Jr., Judge
In this appeal, Arsean Lamone Hicks challenges the trial
court’s judgment that his petition for a writ of habeas corpus
based on an alleged violation of the prosecution's duty to
disclose exculpatory material under Brady v. Maryland, 373 U.S.
83 (1963), was untimely filed because it was not filed within
the one year limitations period provided in Code § 8.01-
654(A)(2).
FACTS AND PROCEEDINGS
In December of 1999, Hicks, then 16 years old, lived with
his legal guardian, Haskell Corry, in Norfolk, Virginia. Hicks
shared a bedroom with Larry Roscoe. On December 26, 1999,
Hicks, Roscoe, and two other persons robbed a pizza delivery
driver. During the robbery, Roscoe pointed his gun at the
driver’s head while Hicks took $50 from the driver’s pocket and
the other men took the pizzas. On December 27, 1999, Hicks
committed a second armed robbery of a pizza delivery driver. Two days later, on December 29, 1999, Hicks, Farrell
Richardson and Kenny Riddick agreed to rob another pizza
delivery driver. Hicks, wearing a mask and armed with Roscoe’s
gun, took the driver’s money and the pizzas. Hicks then drove
away in the delivery driver’s vehicle. Later that evening,
Hicks, Richardson and Riddick discussed robbing the Open House
Diner in Norfolk, Virginia. Just before 2:00 a.m. on December
30, 1999, Richardson and Riddick entered the Open House Diner.
After a few moments, Hicks, again wearing a mask and armed with
Roscoe’s gun, entered the diner, jumped across the counter, and
announced the robbery. He ordered an employee to open the cash
register. As Hicks was removing money from the register, Lisa
Bailey, an off-duty federal police officer, approached him
displaying her badge in an attempt to prevent the robbery.
Hicks shot and killed the officer. Hicks and Richardson fled
the diner.
Riddick, who had remained in the diner, was questioned by
the Norfolk Police officers when they arrived on the scene.
Based on Riddick’s statements, the officers obtained a search
warrant for Hicks’ residence and yard. The police recovered a 9
millimeter handgun from the closet in the bedroom shared by
Hicks and Roscoe. The officers also recovered pizza boxes from
the establishments whose delivery drivers were robbed and items
2 belonging to the delivery driver whose car was stolen by Hicks.
Subsequent testing showed that the handgun found in the bedroom
Hicks shared with Roscoe was the weapon that fired the bullet
killing Officer Bailey at the Open House Diner.
Hicks confessed to the December 26 and 27 robberies and was
convicted in two separate jury trials. Hicks pled guilty to the
December 29 carjacking, robbery and two counts of using a
firearm in the commission of those felonies. Hicks subsequently
pled not guilty to the Open House Diner crimes and, following a
jury trial, was convicted of first degree murder, use of a
firearm in the commission of murder, robbery, use of a firearm
in the commission of robbery and conspiracy to commit robbery.
Hicks’ appeals of these convictions were unsuccessful and direct
review concluded on January 9, 2004. On July 24, 2013, Hicks,
appearing pro se and in forma pauperis, filed a petition for a
writ of habeas corpus with regard to his convictions for the
Open House Diner crimes. That petition is the subject of this
appeal.
In his petition, Hicks alleged that on October 12, 2012, he
received a sworn affidavit executed by Roscoe on November 28,
2006, stating that Roscoe had “admitted to Detective Ford that
the gun, shoes, coat and mask were mine when I gave him a
recorded statement at the [police operations center]. [A]t no
3 time did anyone touch or use my items which I also stated [there
was] no way possible any of them could have committed those
crimes if these items are said to have been used.” Roscoe had
given this affidavit to Richardson, who, according to
Richardson’s affidavit “sat on it” for several years before
giving it to Hicks’ girlfriend, who, in turn, mailed it to Hicks
in October of 2012.
Based on this information, Hicks asserted that the Norfolk
Commonwealth Attorney suppressed or failed to disclose Roscoe’s
recorded statement referenced in the affidavit and that the
affidavit contained exculpatory evidence in violation of Hicks’
due process rights under the Constitution of the United States
and Article I, Section 11 of the Constitution of Virginia, as
defined in Brady. In response, the Commonwealth filed a motion
to dismiss, arguing that Code § 8.01-654(A)(2) requires that a
petition for habeas corpus be filed within two years from the
date of final judgment in the trial court or 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. Because Hicks’ petition was filed more than nine
years after his conviction was final, the Commonwealth concluded
the petition was untimely and should be dismissed.
4 Hicks opposed the Commonwealth’s motion to dismiss, stating
that applying the statutory limitations period without exception
constitutes a suspension of the writ of habeas corpus in
violation of Article I, Section 11 of the Constitution of
Virginia. Hicks contended that the limitations statute is not
absolute, arguing that in Hines v. Kuplinski, 267 Va. 1, 591
S.E.2d 692 (2004) the same issue was raised and, while not
directly decided because the petitioner in Hines did not meet
the factual predicate for a late filing based on previously
unknown information, the Court nevertheless engaged in the
applicable analysis. Because the Court engaged in the analysis,
Hicks contended that the “only logical conclusion therefore is
that had Hines been able to prove that the basis of his claim
was not previously available . . . the Court would have held
that applying the limitations period would be unconstitutional.”
The trial court ultimately dismissed Hicks’ petition,
holding that it was not timely filed under Code § 8.01-654(A)(2)
and that the application of the limitations statute to petitions
for a writ of habeas corpus did not suspend the writ of habeas
corpus in violation of Article I, Section 11 of the Constitution
of Virginia. We awarded Hicks an appeal.
5 ANALYSIS
Hicks raises three assignments of error. In his first two
assignments of error he asserts that the trial court erred in
ruling that habeas corpus relief was not available to him based
on a claim of newly discovered withheld exculpatory evidence
because it was untimely. His third assignment of error recites
that applying the limitations period of Code § 8.01-654(A)(2) to
Hicks’ claim violates the bar against suspension of the writ of
habeas corpus contained in Article I, Section 9 of the
Constitution of Virginia. We will consider these claims in
order.
Hicks first argues that his petition was timely filed under
Code § 8.01-229(D). That section provides in pertinent part:
When the filing of an action is obstructed by a defendant’s . . . using any other direct or indirect means to obstruct the filing of an action, then the time that such obstruction has continued shall not be counted as any part of the period within which the action must be brought.
This section, Hicks argues, operates as an exception to the
limitations period established in Code § 8.01-654(A)(2). Habeas
corpus is a civil action, and Hicks contends that the
Commonwealth, as the responding party or defendant, had and
continued to withhold exculpatory evidence which was unknown to
Hicks until October 12, 2012. Hicks argues that the one year
period for filing his petition for habeas corpus began to run at 6 that point and his petition filed on July 24, 2013, was filed
within one year of that date.
The Commonwealth asserts that Supreme Court Rule 5:25 bars
our consideration of this argument because it was not raised
before the habeas court. Hicks acknowledges that, proceeding
pro se and in forma pauperis, he did not specifically cite Code
§ 8.01-229(D) to the habeas court, but argues that by asserting
he filed the petition within one year of learning of the
withheld exculpatory evidence he “disclosed the foundation for
statutory tolling” and his argument “functionally mirrored the
text of the tolling statute.” Hicks also contends that even if
his arguments did not preserve the issue for appeal, we should
apply the ends of justice exception to Rule 5:25 and consider
application of Code § 8.01-229(D) here.
We disagree with Hicks’ assertion that his arguments were
sufficient to alert the habeas court to the tolling provisions
of Code § 8.01-229(D). As reflected in the record, Hicks’
arguments to support timely filing within one year of learning
of the Roscoe affidavit were directed to the provisions in Code
§ 8.01-654(B)(2), which addresses the filing of successive
petitions based on newly acquired information. There was no
suggestion that any other statute was the source for tolling the
limitations period contained in Code § 8.01-654(A)(2).
7 Accordingly, unless we can determine that the ends of justice
provision of Rule 5:25 applies here, we must conclude that the
rule precludes our consideration of Hicks’ argument that Code §
8.01-229(D) tolled the limitations period for filing his habeas
corpus petition.
Ends of Justice Exception
We apply the ends of justice exception to Rule 5:25 in
limited circumstances. Gheorghiu v. Commonwealth, 280 Va. 678,
689, 701 S.E.2d 407, 413-14 (2010)(citing Ali v. Commonwealth,
280 Va. 665, 671, 701 S.E.2d 64, 68 (2010); Charles v.
Commonwealth, 270 Va. 14, 17, 20, 613 S.E.2d 432, 433, 435
(2005); Jimenez v. Commonwealth, 241 Va. 244, 249-50, 402 S.E.2d
678, 680 (1991); Ball v. Commonwealth, 221 Va. 754, 758, 273
S.E.2d 790, 793 (1981)). Applying the exception is appropriate
when there is error as contended by the appellant and when the
failure to apply the exception would result in a grave
injustice. Gheorghiu, 280 Va. at 689, 701 S.E.2d at 413.
1. Error
The Commonwealth argues that there was no error in the
trial court’s judgment because Code § 8.01-229(D) does not apply
to the limitations period established for the filing of
petitions for habeas corpus relief. In support of its position,
the Commonwealth offers a number of arguments. First, the
8 Commonwealth contends that statutes of limitations must be
strictly enforced “unless the General Assembly has clearly
created an exception to their application,” Casey v. Merck &
Co., 283 Va. 411, 416, 722 S.E.2d 842, 845 (2012), and Code §
8.01-654(A)(2) contains no exceptions. Furthermore, according
to the Commonwealth, Code § 8.01-654(A)(2) is a specific
statute, while Code § 8.01-229(D) is a statute of general
application, and as a result the general statute cannot prevail
over the provisions of the more specific statute. Daniels v.
Warden, 266 Va. 399, 402, 588 S.E.2d 382, 384 (2003).
We do not find this argument persuasive. The lack of an
exception to the limitations period within Code § 8.01-654(A)(2)
does not preclude application of an exception contained in
another statute. That is precisely what the General Assembly
has done in Code § 8.01-229 with regard to many other provisions
in the Code of Virginia containing specific statutes of
limitations. Section 8.01-229, entitled in part as “Suspension
or tolling of statute of limitations” contains multiple
subsections identifying instances in which limitations periods
established in other parts of the Code may be tolled. See,
e.g., Code § 8.01-229(A)(providing tolling based on certain
disabilities, such as infancy or adjudicated incapacitation);
9 -229(B)(providing tolling when person entitled to file an action
dies before filing or when person against whom an action may be
filed dies before the action is filed); -229(C)(providing
tolling when the commencement of an action is suspended due to
an injunction); and -229(E)(providing tolling under certain
circumstances when an action is dismissed without determining
the merits, abates or is nonsuited). The Commonwealth’s logic
would vitiate application of virtually every subsection in the
statute because they each deal with limitations periods
established elsewhere.
Next, the Commonwealth asserts, even if Code § 8.01-229(D)
provided an exception to the more specific habeas limitations
statute, it is not available in this case because its
application requires a showing that the defendant’s obstruction
be in the nature of moral turpitude, relying on Newman v.
Walker, 270 Va. 291, 296, 618 S.E.2d 336, 340 (2005). According
to the Commonwealth, Hicks’ Brady claim arises from an
inadvertent act of the prosecutor, not from an intentional act
implicating moral turpitude.
The Commonwealth correctly argues that in previous cases we
have said that to invoke the tolling provision of Code § 8.01-
229(D), the obstruction by the defendant “‘must consist of
affirmative acts of misrepresentation’” and that “‘[t]he fraud
10 which will relieve the bar of the statute must be of that
character which involves moral turpitude, and must have the
effect of debarring or deterring the plaintiff from his
action.’” Culpeper Nat'l Bank v. Tidewater Improvement Co., 119
Va. 73, 84, 89 S.E. 118, 121 (1916). However, none of our cases
addressing the nature of the obstruction necessary to invoke
Code § 8.01-229(D) involved a petition for habeas corpus based
on a Brady violation.
A claim for relief based on an alleged Brady violation is
unlike any claim addressed in our previous cases involving Code
§ 8.01-229(D). The failure to disclose in a Brady claim is more
than a simple omission or act obstructing the filing of a civil
action; it is the core element of the claim for relief itself,
which results in injury to the litigant. Disclosure of
exculpatory evidence is an affirmative duty not dependent on a
request from the accused, applying to impeachment as well as
affirmative evidence, and this duty is violated whether the
failure to produce the exculpatory information was intentional
or inadvertent. Strickler v. Greene, 527 U.S. 263, 281-82
(1999). Furthermore, as particularly relevant here, the Brady
doctrine encompasses “evidence ‘known only to police
investigators and not to the prosecutor,’” id. at 280-81, and
requires its disclosure.
11 The Commonwealth’s reasoning that the failure to disclose
in this case was insufficient to invoke the statutory tolling
provisions would preclude application of Code § 8.01-229(D) in
every instance in which a government actor other than the
prosecutor engaged in acts of nondisclosure. Such an
interpretation of Code § 8.01-229(D) would afford a safe haven
for nondisclosure, which is inconsistent with the elements of
the Brady doctrine and undermines the importance of Brady in our
criminal justice system. For these reasons, we conclude that in
a claim for habeas corpus relief based on a Brady violation, the
failure to disclose exculpatory evidence qualifies as
obstruction by the defendant that prevents the filing of the
claim for purposes of Code § 8.01-229(D).
Finally, the Commonwealth argues that Hicks’ petition is
untimely even under Code § 8.01-229(D) because Hicks learned of
Roscoe’s statement no later than March 24, 2009, based on
statements contained in a motion filed by Hicks for recovery and
testing of DNA. The motion to which the Commonwealth refers
sought DNA testing of a shoe recovered at Hicks’ residence that
matched the shoe impression left on the counter at the murder
scene. In that motion Hicks refers to a “confession” Larry
Roscoe gave to Hicks. Nothing in this motion mentions the
recorded statement allegedly given to the investigating
12 detective or Roscoe’s exclusive possession of certain items,
which are the subject of the allegedly withheld evidence.
Therefore, we reject the Commonwealth’s argument that the
tolling provision of Code § 8.01-229(D) does not apply because
Hicks was aware of the evidence allegedly withheld more than one
year before he filed his habeas corpus petition.
In summary, we conclude that the tolling provision of Code
§ 8.01-229(D) is applicable to the limitations period of Code
§ 8.01-654(A)(2) and, therefore, it was error to conclude that
Hicks’ petition for habeas corpus was untimely.
2. Grave Injustice
Before we apply the ends of justice exception of Rule 5:25,
however, we must determine whether the failure to apply the
exception would result in a grave injustice. Gheorghiu, 280 Va.
at 689, 701 S.E.2d at 413. Under the facts of this case, Hicks
would suffer a grave injustice if his Brady claim was
meritorious but barred from consideration by Rule 5:25. There
are three components of a violation of the Brady rule of
disclosure:
a) The evidence not disclosed to the accused must be favorable to the accused, either because it is exculpatory, or because it may be used for impeachment; b) the evidence not disclosed must have been withheld by the Commonwealth either willfully or inadvertently; and c) the accused must have been prejudiced.
13 Workman v. Commonwealth, 272 Va. 633, 644-45, 636 S.E.2d 368,
374 (2006)(quoting Strickler, 527 U.S. at 281-82)(citations and
internal quotation marks omitted). We also have recognized that
“[t]he question is not whether the defendant would more likely
than not have received a different verdict with the evidence,
but whether in its absence he received a fair trial, understood
as a trial resulting in a verdict worthy of confidence.” Id.
(quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)). A
reviewing court must determine whether the withheld favorable
evidence “could reasonably be taken to put the whole case in
such a different light as to undermine confidence in the
verdict,” Strickler, 527 U.S. at 290 (citation and internal
quotation marks omitted); that is, whether such evidence was
material.
Hicks bases his Brady claim on statements contained in an
affidavit executed by Roscoe in which Roscoe stated that he gave
a recorded statement to the investigating detective indicating
that the gun, shoes, coat and mask were his and that no one else
touched or used the items and that as a result, it was not
possible that the items could have been used in the crimes.
Hicks argues that this statement was exculpatory because it
“proves that only Larry Roscoe could have committed [the Open
House Diner crimes]” and “had [the jury] known of Roscoe’s
14 statement, they would never have found” Hicks guilty beyond a
reasonable doubt. Taking Hicks’ allegations as true, Morris v.
Smyth, 202 Va. 832, 833, 120 S.E.2d 465, 466 (1961), we
acknowledge that the information in Roscoe’s affidavit, on its
face, is exculpatory. While the Commonwealth raises some
question about the existence of a recorded statement, for
purposes of this analysis we will assume that Roscoe’s recorded
statement exists, contains the statements alleged by Hicks and
that the Commonwealth failed to disclose it. With those
assumptions, the final question remains whether the allegedly
nondisclosed evidence was material.
In determining materiality we are guided by the following
principles:
[A] showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal (whether based on the presence of reasonable doubt or acceptance of an explanation for the crime that does not inculpate the defendant). Second, materiality is not a sufficiency of the evidence test. A defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict. Third, a harmless error analysis is unnecessary once materiality has been determined. Fourth, suppressed evidence must be considered collectively, not item by item.
Workman, 272 Va. at 645, 636 S.E.2d at 375 (internal quotation
marks, alterations, and citations omitted).
15 Applying these factors to the evidence in this case, which
includes transcripts from Hicks’ criminal trial, we cannot
conclude that the suppression of Roscoe’s statement undermines
confidence in the outcome of Hicks’ trial. At his jury trial
for the Open House Diner crimes, Hicks testified that he pled
guilty to committing the December 29, 1999 pizza delivery
robbery and carjacking crimes, which occurred only hours before
the Open House Diner crimes. Hicks testified that he wore a
mask and used Roscoe’s gun in the commission of those crimes.
There was no dispute at Hicks’ trial that the gun recovered at
Hicks’ residence belonged to Roscoe and that Roscoe’s gun was
the weapon used to murder Officer Bailey. Hicks’ trial
testimony conclusively established that Hicks not only had
access to the murder weapon – Roscoe’s gun – but also that he
had actual possession and control of it just hours before the
murder of Officer Bailey. Hicks’ own testimony and the forensic
evidence presented to the jury at trial is inconsistent with
Roscoe’s statements.
Furthermore, Hicks also testified that Roscoe did not
commit the Open House Diner crimes because another man, known
only as “Moe,” committed the crimes.
The jury also heard Hicks’ recorded confession to the Open
House Diner crimes, as given to the investigating officers.
16 Although Hicks argued at trial that the confession was coerced,
the verdict demonstrates that the jury did not find Hicks’
coercion claim credible.
Based on this record, the allegedly withheld evidence could
not reasonably be taken “to put the whole case in such a
different light” that confidence in the guilty verdict is
undermined. Strickler, 527 U.S. at 290; Kyles, 514 U.S. at 434.
Therefore, we hold that such evidence was not material. Because
the allegedly nondisclosed evidence was not material, Hicks
fails to establish that he was prejudiced and, therefore, has
failed to prove a necessary component to his Brady claim.
Consequently, the failure to apply the ends of justice exception
would not result in a grave injustice to Hicks, and we will not
apply the ends of justice exception to Rule 5:25 in this case.
In light of our holding that the tolling provision of Code
§ 8.01-229(D) is applicable to the limitations period in Code §
8.01-654(A)(2), we need not address Hicks’ third assignment of
error.
CONCLUSION
For the reasons stated, we will affirm the judgment of the
trial court.
Affirmed.