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Perry v. Clarke

United States District Court, E.D. Virginia, Alexandria Division

December 19, 2018

Gregory Perry, Petitioner,
v.
Harold W. Clarke, Respondent.

          MEMORANDUM OPINION

          Liam O'Grady, United States District Judge

         Gregory 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.

         I. Background

         On 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.

         Although 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 facts:[1]

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 unlawful wounding.
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 1-2.

         The 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, 209 (2003).
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 ยง 19.2-243 is tolled during the time reasonably specified by the court to carry out the terms of ...

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