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Shortt v. Director, Virginia Department of Corrections

United States District Court, W.D. Virginia, Roanoke Division

February 27, 2017

GARY SHORTT, Petitioner,
v.
DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS, Respondent.

          Gary Shortt, Pro Se Petitioner

          Eugene Murphy, Senior Assistant Attorney General, Richmond, Virginia, for Respondent.

          OPINION

          James P. Jones United States District Judge

         In this 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.

         I. Background.

         As a 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 26, 2001.

         Sentencing on the forgery, robbery, and grand larceny charges took place as scheduled, with Judge Mullins presiding and Patterson as Shortt's counsel.[1] 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.

         On 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.

         Shortt, 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.

         Shortt 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.

         On January 19, 2016, Shortt filed a Petition for a Writ of Habeas Corpus in this court, asserting the following due process claims:

A. He had no notice of the probation revocation hearing;
B. His counsel for the probation revocation hearing was not present;
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 ...

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