United States District Court, E.D. Virginia, Alexandria Division
O'Grady, United States District Judge
Perry, a former Virginia inmate proceeding pro se, filed this
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, challenging a conviction of unlawful wounding
entered in the Circuit Court of Chesterfield County. The
matter comes before the Court on a Motion to Dismiss the
petition filed by the respondent, to which petitioner has
filed a response in opposition. For the reasons which follow,
the Motion to Dismiss will be granted, and the petition will
be dismissed, with prejudice.
February 9, 2015, following a jury trial, Perry was convicted
of unlawful wounding and was sentenced to serve three years
and six months in prison. No. CR14F02202-01; Resp. Ex. 1. The
Court of Appeals of Virginia denied his appeal by a per
curiam order on January 13, 2016. Perrv v.
Commonwealth. R. No. 0497-15-2 (4th Cir. Jan. 13, 2016);
Resp. Ex. 2. A three-judge panel subsequently denied review,
and rehearing en banc was denied on March 4, 2016.
Id. On May 18, 2017, the Supreme Court of Virginia
affirmed the conviction. Perrv v. Commonwealth. R.
No. 160530 (Va. May 18, 2017); Resp. Ex. 3.
the Supreme Court of Virginia awarded Perry three assignments
of error, two were affirmatively abandoned in his opening
brief. Accordingly, the sole issue considered on the appeal
was whether the Court of Appeals erred in finding that Perry
was not denied his statutory right to a speedy trial under
Va. Code § 19.2-243. In considering that question, the
Supreme Court recited the following pertinent
Perry was charged with malicious wounding. At his
arraignment, he waived his right to counsel. Although Perry
waived a preliminary hearing on June 14, 2014, the general
district court held a preliminary hearing on July 28, found
probable cause, and certified the charge to the grand jury.
On August 13, Perry filed a motion in circuit court for the
appointment of counsel, and Charles J. Homiller, Jr., was
appointed to represent Perry on August 29. A grand jury
subsequently indicted Perry on the malicious wounding charge,
and the trial court set a November 5 hearing date.
On September 17, 2014, the trial court entered a consent
order granting a continuance of the November 5 hearing until
December 4. The order indicated that Homiller and the
Commonwealth agreed to the continuance anticipating that a
five-day bench trial would begin at that time. The order
states that "Counsel represents ... that the defendant
agrees to the requested date and manner of trial."
Approximately a month later, Perry wrote the
Commonwealth's Attorney and the trial court advising that
he "recently became aware of the continuance," but
had not consented to it, and sought to reinstate that
November 5 hearing date. Perry also stated his intent to
discharge Homiller and proceed pro se.
The trial court convened a hearing on November 26, 2014, and
granted Homiller's motion to withdraw. Perry again
expressed his intent to represent himself. He stated that he
did not want a continuance, and the trial court set the next
hearing date for December 4, stating it would consider
motions and proceed to trial if time allowed.
On December 4, 2014, Perry requested a jury trial but
objected to any continuance. The trial court granted the
request for a jury trial but determined that a continuance
was necessary to empanel a jury. After consulting the trial
court's calendar and the Commonwealth, the trial was set
for February 9, 2015. Perry maintained his objection to any
continuance after his statutory speedy trial deadline of
December 29, 2014. Also on December 4, Perry offered sixteen
pro se motions. Perry again declined counsel, requesting
stand-by counsel instead. The court appointed T. Noel Brooks,
who was present at the courthouse, to serve as stand-by
counsel, and the court then proceeded to hear Perry's
motions. After these motions were concluded, Perry requested
appointed counsel, and Brooks agreed to continue as counsel.
On January 30, 2015, Brooks moved to withdraw citing
"irreconcilable differences." Brooks further
explained that the motion for withdrawal was due to ethical
considerations and his refusal to file motions desired by
Perry that he did not believe were warranted. The court
granted the motion to withdraw and refused Perry's
request to have new counsel appointed, noting that he had
been unable to work with two attorneys and had twice offered
to represent himself.
The jury trial was held on February 9, 2015. Perry moved to
dismiss on speedy trial grounds, which the court denied. The
jury convicted Perry of the lesser-included offense of
The Court of Appeals denied Perry's petition for appeal,
finding that Perry, by counsel, had agreed to the continuance
on December 4, 2014, and concluding that the trial court
correctly held that the delay from December 4, 2014, to
February 9, 2015, was chargeable to Perry.
Perry v. Commonwealth. R. No. 160350, slip op. At
Supreme Court of Virginia rejected Perry's claim that his
statutory right to a speedy trial was violated:
On appeal, a statutory speedy trial challenge presents a
mixed question of law and fact: the law as set forth in Code
§ 19.2-243, and the facts concerning pretrial delays.
The Court reviews legal questions de novo, while giving
deference to the trial court's factual findings.
Harris v. Commonwealth. 266 Va. 32, 581 S.E.2d 206,
Virginia's speedy trial statute provides for, in the case
of an incarcerated individual, a trial within five months of
the date the general district court finds probable cause to
believe the defendant has committed a felony, or five months
from the indictment in the case of waiver of the preliminary
hearing. Code § 19.2-243. As an initial matter, because
a preliminary hearing was convened despite Perry's
waiver, we accept Perry's calculation of the speedy trial
deadline from July, as of the finding of probable cause,
rather than from the date of the later September indictment.
The provisions of Code § 19.2-243 do not apply to a
"continuance granted on the motion of the accused or his
counsel, or by the concurrence of the accused or his
counsel." §19.2-243(4). As to the first
continuance, the sole record memorializing the continuance is
a consent order signed by Homiller on Perry's behalf,
entered without objection. This alone is sufficient to toll
the five-month speedy trial period for the purposes of the
statute. Code § 19.2-243(4); see also Commonwealth
v. Gregory.263 Va. 134, 144, 557 S.E.2d 715, 720-21
(2002) ("[W]hen a defendant ... acquiesces in an order
that effectively continues a case, the five-month speedy
trial period of Code § 19.2-243 is tolled during the
time reasonably specified by the court to carry out the terms