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Bowman v. Washington

Supreme Court of Virginia
Dec 3, 2004
269 Va. 1 (Va. 2004)

Summary

In Bowman, the Supreme Court of Virginia held that the state habeas court abused its discretion when it agreed that the petitioner should be awarded a belated appeal but then refused the petitioner's request to dismiss the petitioner's remaining claims without prejudice to allow the petitioner to refile his claims following completion of his belated direct appeal.

Summary of this case from Johnson v. Johnson

Opinion

Record No. 040213.

December 3, 2004.

Upon an appeal from a judgment rendered by the Circuit Court of Stafford County, No. CL03000360.


Upon consideration of the record, the briefs, and the argument of counsel, the Court is of opinion that there is merit in the petitioner's procedural argument.

The petition for a writ of habeas corpus alleged that petitioner was denied the effective assistance of counsel for several reasons, including that his counsel was ineffective for failing to file a timely petition for appeal to the Court of Appeals. The petition also alleged various other errors.

In his "Memorandum in Opposition to Motion to Dismiss" filed in the circuit court, the petitioner asked the circuit court to allow him to file a belated appeal to the Court of Appeals, and to dismiss his remaining claims without prejudice. The warden agreed that the petitioner through no fault of his own was denied his right of appeal to the Court of Appeals, but requested that the petitioner's remaining claims be dismissed with prejudice. The circuit court entered a final order directing the Commonwealth to request that the Court of Appeals grant petitioner leave to pursue a belated appeal from his criminal conviction in the circuit court. However, the circuit court also dismissed the petitioner's remaining claims with prejudice.

The circuit court's dismissal of these remaining claims with prejudice was an abuse of the court's discretion. Although Code § 8.01-654 bars a petitioner from raising new claims in a subsequent petition for habeas corpus, Dorsey v. Angelone, 261 Va. 601, 604, 544 S.E.2d 350, 352 (2001), the statute does not prevent a petitioner from reasserting claims that have been dismissed without prejudice in a prior proceeding. See Daniels v. Warden, 266 Va. 399, 403, 588 S.E.2d 382, 384 (2003). Had the circuit court granted the petitioner's request to have his remaining claims dismissed without prejudice, he would have been able to pursue and conclude his direct appeal and obtain any appropriate relief before litigating the merits of his collateral action.

Accordingly, the part of the circuit court's order addressing the petitioner's belated appeal to the Court of Appeals is affirmed, and the part of the circuit court's order dismissing the petitioner's remaining claims with prejudice is reversed. The cause is remanded to the circuit court for entry of an order dismissing the petitioner's remaining habeas corpus claims without prejudice.

It is ordered that the Circuit Court of Stafford County allow counsel for the appellant a fee of $725 for services rendered the appellant on this appeal, in addition to counsel's costs and necessary direct out-of-pocket expenses.

This order shall be certified to the Circuit Court of Stafford County and shall be published in the Virginia Reports.


Summaries of

Bowman v. Washington

Supreme Court of Virginia
Dec 3, 2004
269 Va. 1 (Va. 2004)

In Bowman, the Supreme Court of Virginia held that the state habeas court abused its discretion when it agreed that the petitioner should be awarded a belated appeal but then refused the petitioner's request to dismiss the petitioner's remaining claims without prejudice to allow the petitioner to refile his claims following completion of his belated direct appeal.

Summary of this case from Johnson v. Johnson

observing that Va. Code § 8.01-654 does not prevent a petitioner from reasserting claims in a second habeas petition that were dismissed without prejudice in a prior habeas proceeding

Summary of this case from Johnson v. Johnson

In Bowman, the petitioner filed a petition for a writ of habeas corpus in circuit court and asserted numerous claims of ineffective assistance of counsel, including a claim that his attorney was ineffective for failing to file a timely petition for appeal challenging his criminal conviction.

Summary of this case from Sigmon v. Dir. of the Dep't of Corr.

In Bowman, the petitioner requested leave to file a belated appeal, and he also asked that his remaining claims be dismissed without prejudice.

Summary of this case from Davis v. Johnson
Case details for

Bowman v. Washington

Case Details

Full title:Alexander F. Bowman, Appellant, v. Gerald K. Washington, Warden, Appellee

Court:Supreme Court of Virginia

Date published: Dec 3, 2004

Citations

269 Va. 1 (Va. 2004)
605 S.E.2d 585

Citing Cases

Davis v. Johnson

2. The claim that the circuit court abused its discretion when it refused to dismiss the remaining habeas…

Johnson v. Johnson

Petitioner appealed that habeas decision to the Supreme Court of Virginia. In his petition for appeal,…