FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK. Everett A. Martin, Jr., Judge.
Present: Lemons, C.J., Goodwyn, Millette, and Powell, JJ., and Russell and Lacy, S.JJ. OPINION BY SENIOR JUSTICE ELIZABETH B. LACY.
[289 Va. 292] ELIZABETH
B. LACY, SENIOR JUSTICE.
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, 83 S.Ct. 1194, 10 L.Ed.2d 215 (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. [289 Va. 293] 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 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 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" [289 Va. 294] 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.
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 ...