United States District Court, W.D. Virginia, Roanoke Division
Shortt, Pro Se Petitioner
Murphy, Senior Assistant Attorney General, Richmond,
Virginia, for Respondent.
P. Jones United States District Judge
pro se Petition for a Writ of Habeas Corpus under 28 U.S.C.
§ 2254, the petitioner Gary Shortt, a Virginia inmate,
contends that his due process rights were violated in
connection with a state probation revocation proceeding.
After review of the record, I conclude that the
respondent's Motion to Dismiss must be granted, because
Shortt's petition is untimely filed, procedurally barred,
and without merit.
result of convictions in the Tazewell County Circuit Court in
1998 and 1999, Shortt incurred a lengthy suspended sentence.
Probation Officer John Flynn wrote the state circuit judge,
Donald Mullins, on January 27, 2000, requesting a probation
revocation hearing because Shortt had failed drug tests,
failed to maintain his employment, failed to notify his
probation officer of his failure to maintain employment, and
left the state of Virginia without permission. Judge Mullins
approved the request. On July 26, 2000, authorities arrested
Shortt and committed him to the Tazewell County jail. On
August 18, 2000, attorney Shea Cook was appointed as counsel
for the probation revocation hearing. The probation
revocation hearing was originally set for August 29, 2000,
but was continued. Before the revocation hearing was held,
however, a Tazewell County grand jury indicted Shortt on
multiple new felony counts. Attorney Rich Patterson was
appointed to represent Shortt on the new charges, and on
February 23, 2001, Shortt pleaded guilty to robbery, use of a
firearm in a robbery, forty-nine counts of forgery, and two
counts of grand larceny. Sentencing was scheduled for June
on the forgery, robbery, and grand larceny charges took place
as scheduled, with Judge Mullins presiding and Patterson as
Shortt's counsel. On the same day, the court also held
Shortt's probation revocation hearing; however,
Shortt's probation revocation counsel (Cook) was not
notified. Instead, Patterson appeared on Shortt's behalf
in both the sentencing and the probation revocation hearings.
Judge Mullins found Shortt guilty of violating the terms and
conditions of his probation and revoked Shortt's
suspended sentences. Shortly after the hearing, Judge Mullins
retired from office without entering any written orders.
December 10, 2001, Circuit Judge Charles Smith entered a
formal probation revocation order. On April 12, 2002, Circuit
Judge Michael Moore entered an amended order of probation
revocation that was made nunc pro tunc to December 10, 2001.
Judge Moore's amendment included the indictment numbers
for the suspended sentences, which Judge Smith had failed to
include in his December 10, 2001 order.
through counsel, filed a petition for a writ of habeas corpus
in the Tazewell County Circuit Court on November 4, 2003. On
October 5, 2009, the court granted habeas relief on two of
the nine claims that he raised: the court corrected an
improper determination of credit for time served and allowed
a delayed appeal of the probation revocation judgment. On
March 30, 2010, Shortt appealed to the Supreme Court of
Virginia regarding his seven dismissed habeas claims, but the
court dismissed the petition for appeal on December 10, 2010,
as not timely filed.
filed a belated direct appeal of the probation revocation
judgment to the Court of Appeals of Virginia, which the court
denied on October 26, 2011. Shortt then filed an appeal to
the Supreme Court of Virginia, but the court refused the
appeal on April 4, 2012.
January 19, 2016, Shortt filed a Petition for a Writ of
Habeas Corpus in this court, asserting the following due
A. He had no notice of the probation revocation hearing;
B. His counsel for the probation revocation hearing was not
C. No specific finding was made of which condition of
probation was violated;
D. The revocation orders were entered by a judge different
from the one who made the ...