Brown v. Warden (ORDER)

VIRGINIA:
In the Supreme Court of Virginia held at the Supreme Court Building
in the City of Richmond on Thursday the 11th day of April, 2019.
PRESENT: All the Justices
Sherman Brown, 	Petitioner,
against 	Record No. 161421
Bernard W. Booker, Warden, Green Rock Correctional Center, 	Respondent.
Upon a Petition for a Writ of Habeas Corpus
Upon consideration of the petition for a writ of habeas corpus, the respondent’s
motion to dismiss, and the record, the Court is of the opinion that the motion should be
granted and the petition should be dismissed.
I. BACKGROUND AND MATERIAL PROCEEDINGS
On May 25, 1970, Sherman Brown was convicted by a jury of the murder of a
four-year-old child and was sentenced to death. This Court affirmed Brown’s conviction,
holding it was amply supported by the evidence, and affirmed his sentence. Brown v.
Commonwealth, 212 Va. 515 (1971). In 1973, after his death sentence was vacated as a
result of Furman v. Georgia, 408 U.S. 238 (1972), Brown was resentenced by a jury to
life imprisonment.
In 2016, Brown filed a petition for a writ of actual innocence pursuant to Code
§§ 19.2-327.1 to -327.6, which govern writs of actual innocence based on biological
evidence. We dismissed Brown’s petition, holding the Court had no authority to issue a
writ of actual innocence based on the DNA test results proffered by Brown, because the
tests were conducted by a private laboratory and were not certified by the
Commonwealth’s Department of Forensic Science. In re: Brown, 295 Va. 202, 226
(2018). Further, even if the Court were authorized to consider the private laboratory’s
results, Brown failed to prove by clear-and-convincing evidence that no rational
factfinder would find him guilty of murder in light of the totality of the evidence before
the Court. Id. at 229.

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Simultaneous with the filing of his petition for a writ of actual innocence, Brown
submitted the present petition for a writ of habeas corpus. Brown asserts that new
evidence, based on advances in forensic science, reveals flaws in hair and fiber evidence
admitted at his trial and that new DNA evidence, the same evidence relied upon in his
petition for a writ of actual innocence, exculpates him. Brown contends the admission of
flawed hair and fiber evidence violated his right to a fair trial. Brown acknowledges his
petition is untimely under Code § 8.01-654(A)(2) (governing time for filing habeas
corpus petitions attacking a criminal conviction or sentence). However, Brown asserts
that, if applied to him, this statutory limitation period would violate the bar against
suspension of the writ of habeas corpus as set forth in the Suspension Clause of Article I,
Section 9 of the Constitution of Virginia, because his claims are based on newly-
discovered evidence and could not have been brought within the time permitted under the
statute. We agree with Brown’s concession that his petition is untimely under Code
§ 8.01-654(A)(2), but reject his argument that the limitation period violates the
Suspension Clause and dismiss the petition.
II. ANALYSIS
Since 1998 Code § 8.01-654(A)(2) has provided that a habeas corpus petition
attacking a criminal conviction or sentence, as here, must “be filed within two years from
the date of final judgment in the trial court or within one year from either final disposition
of the direct appeal in state court or the time for filing such appeal has expired, whichever
is later.”1 However, because Brown was convicted before July 1, 1998, when the statute
became effective, he had until July 1, 1999, to file a timely petition for a writ of habeas
corpus. See Haas v. Lee, 263 Va. 273, 277 (2002) (petitioners convicted prior to the
effective date of Code § 8.01-654(A)(2) afforded one year from effective date to file
petition for writ of habeas corpus). Brown did not file his habeas petition until October 7,
2016, long after the limitation period expired.
1 Code § 8.01-229 provides for tolling of the limitation period for reasons not
applicable here. See Hicks v. Dir., Dep’t of Corr., 289 Va. 288, 298 (2015) (failure to
disclose exculpatory evidence may toll limitation period pursuant to Code § 8.01-
229(D)).

3
Brown argues that the Suspension Clause bars application of the statute of
limitations to his petition because his claims, based on allegedly newly discovered
evidence, could not have been brought within the limitation period. Assuming without
deciding that Brown’s claims could not have been brought before the limitation period
expired, we reject his argument that the statutory limitation period operates as a
suspension of the writ of habeas corpus in contravention of Article I, Section 9 of the
Constitution of Virginia.2
The Suspension Clause states that “the privilege of the writ of habeas corpus shall
not be suspended unless when, in cases of invasion or rebellion, the public safety may
require.” Va. Const. art. I, § 9. The Court has not previously addressed whether a
particular statutory provision constitutes suspension of the writ. In addressing the issue
now, we look to the limited subject matter to which habeas corpus review extended when
our Suspension Clause was first adopted and conclude statutory limits on Brown’s ability
to raise his present claims are constitutional. See Edwards v. Vesilind, 292 Va. 510, 524
(2016) (Interpreting the Speech and Debate Clause and stating that “[t]he Clause was not
introduced into the Constitution of Virginia devoid of history or context, nor should it be
interpreted as if it had.”).
At common law, a “habeas court’s role was most extensive in cases of pretrial and
noncriminal detention, where there had been little or no previous judicial review of the
cause for detention.” Boumediene v. Bush, 553 U.S. 723, 780 (2008). As particularly
relevant here, its use as a post-conviction remedy was limited to challenging the
jurisdiction of the sentencing court. Felker v. Turpin, 518 U.S. 651, 663-64 (1996). In
England, the use of the writ for those “detained for criminal or supposed criminal matters
was defined and regulated by the Habeas Corpus Act of 1679.” See 1 A.E. Dick Howard,
Commentaries on the Constitution of Virginia 160 (1974).
The writ was available in Virginia prior to 1830 but did not gain constitutional
protection in Virginia until the Suspension Clause appeared as Article III, Section 11 of
2 Although Brown asserts he could not have discovered his claim before 2015, we
note that many of the advances in forensic science upon which Brown relies were
available prior to 1999. Indeed, Brown cites to studies from 1988 and 1997 in support of
his argument that the fiber evidence at his trial was flawed.

4
the Constitution of 1830.3 Although there “is little available evidence to cast light on the
meaning of” the Clause, id. at 165, by the time it was adopted, the scope of the writ,
insofar as it lay to challenge the validity of a criminal conviction, remained as it did at
common law, limited to challenging the jurisdiction of the sentencing court. As this
Court explained:
The writ of habeas corpus is not a writ of error. It deals, not with mere
errors or irregularities, but only with such radical defects as render a
proceeding absolutely void. It brings up the body of the prisoner with the
cause of his commitment, and the court can inquire into the sufficien[cy]
of that cause; but, if he be detained in prison by virtue of a judgment of a
court of competent jurisdiction, that judgment is in itself sufficient cause.
An imprisonment under a judgment cannot be unlawful unless that
judgment be an absolute nullity, and it is not a nullity if the court or
magistrate rendering it had jurisdiction to render it.
Ex Parte Marx, 86 Va. 40, 43-44 (1889); see also Swain v. Pressley, 430 U.S. 372, 384–
85 (1977) (Burger, C. J., concurring) (“The scope of the writ during the 17th and 18th
centuries has been described as follows: [O]nce a person had been convicted by a
superior court of general jurisdiction, a court disposing of a habeas corpus petition could
not go behind the conviction for any purpose other than to verify the formal jurisdiction
of the committing court.”) (quoting Oaks, Legal History in the High Court - Habeas
Corpus, 64 Mich. L. Rev. 451, 468 (1966)); State ex rel. Glover v. State, 660 So. 2d
1189, 1196 (La. 1995) (“Traditionally, the writ of habeas corpus was used to: (1) insure
that necessary pre-trial procedures were followed; (2) examine whether the person had
been committed pursuant to judicial process; and (3) ascertain whether the committing
court had jurisdiction.”) (citations omitted) abrogated on other grounds by State ex rel.
Olivieri v. State, 779 So.2d 735, 741-42 (La. 2001). Of course, were Brown challenging
the jurisdiction of the circuit court to convict or sentence him that claim remains
cognizable in a petition for a writ of habeas corpus without regard to the limitation
period. See Singh v. Mooney, 261 Va. 48, 52 (2001) (an order that is void ab initio for
lack of jurisdiction may be challenged “anywhere, at any time, or in any manner.”).
3 In the initial iteration, the Clause did not include an “unless” clause. That was
adopted in the Reconstruction revision of 1867-68, and the Clause was moved to its
current location in Article I in 1969. Id. at 164-65.

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Here, however, Brown challenges only the reliability of the evidence adduced at
his trial – not the subject matter jurisdiction of the sentencing court to address his case –
and he attempts to present new evidence which, he contends, shows he is actually
innocent. The use of the writ to challenge non-jurisdictional claims of the sort alleged by
Brown was unknown to the drafters of our Suspension Clause, and they could not have
intended to protect a convicted prisoner’s ability to raise them. See Felker, 518 U.S. at
663 (noting “[t]he writ of habeas corpus known to the Framers was quite different from
that which exists today”). Accordingly, Brown’s inability to now question and present
new evidence bearing on his factual guilt or innocence does not violate the Suspension
Clause.
In so holding, we join numerous other states which have rejected similar
challenges to their own limitation periods. See Flanigan v. State, 3 P.3d 372, 374-76
(Alaska Ct. App. 2000) (rejecting petitioner’s argument that habeas time bar violated
Alaska Constitution because petitioner did not plead a claim within scope of common law
writ, which permitted challenges to convictions only on grounds of lack of jurisdiction);
Glover, 660 So. 2d at 1196 (holding limitation period on application for post-conviction
relief did not “suspend the writ of habeas corpus because ‘suspension,’ insofar as . . . this
state’s constitution is concerned, refers to suspension of the traditional common law writ
of habeas corpus”); In re Pers. Restraint of Runyan, 853 P.2d 424, 429-32 (Wash. 1993)
(limitation period not unconstitutional suspension of writ where exception existed for
void convictions, which was sufficient to preserve narrow constitutional scope of habeas
relief, which was limited to scope of writ as it existed at common law); cf. Potts v. State,
833 S.W.2d 60, 61-62 (Tenn. 1992) (stating purpose of writ is to challenge void
judgments and habeas corpus cannot be used to collaterally attack a facially valid
conviction; thus, limitation period for filing a petition for post-conviction relief pursuant
to state statute, which permitted petitioners to challenge convictions as void or voidable
due to a constitutional violation, could not violate suspension clause); Passanisi v.
Director, Nev. Dep’t of Prisons, 769 P.2d 72, 74 (Nev. 1989) (rejecting suspension clause
challenge to prerequisite for filing habeas corpus petition because “[t]he legislature may .
. . impose a reasonable regulation on the writ of habeas corpus, so long as the traditional
efficacy of the writ is not impaired”).

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Finally, to the extent Brown attempts to raise a freestanding claim of actual
innocence or argue his innocence should exempt him from the limitation period, we reject
both contentions. Habeas corpus is not a vehicle for raising claims of actual innocence,
nor does the statute of limitations include any exception for claims of innocence. Even if
such an exception existed, we previously rejected Brown’s actual innocence claim. See
Brown, 295 Va. at 234. Nothing in Brown’s present petition persuades us that we should
revisit that decision.
Accordingly, the petition is dismissed.
Dismissed.
This order shall be published in the Virginia Reports.
A Copy,
Teste:
Douglas B. Robelen, Clerk