Petition for Writ of Certiorari — Tony Knox, Petitioner v. Harold W. Clarke, Director, Virginia Department of Corrections

APPENDIX A

VIRGINIA:

Jn the Sup'teine Cawtt af Vi't9ià1a fte&t at the Sup'teme Ccwtt .&ti&linq in the

(itq al .Riciunond an Wedneod.aj the lot dai of (luzuot, 2018.

Appellant,

Tony Knox,

against

Record No. 171575

Circuit Court No. CL 17-2750

Appellee.

Director, Department of Corrections,

From the Circuit Court of the City of Virginia Beach

Upon review of the record in this case and consideration of the argument

submitted in support of the granting of an appeal, the Court is of the opinion there is no

reversible error in the judgment complained of Accordingly, the Court refuses the petition for

appeal.

/

A Copy,

Teste:

.erk

By:

la

APPENDIX B

VIRGINIA:

IN THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH

TONY KNOX,

Petitioner

V.

Civil No. CL17-2750

DIRECTOR OF THE DEPARTMENT

OF CORRECTIONS,

Respondent

FINAL ORDER

Upon mature consideration of the petition of Tony Knox for a writ of habeas corpus, the

motion of the Respondent and authorities cited therein, a review of the record in the present case

and the records in Criminal Case Nos. CR98002019-12 and -12; CR98002435-00, -05, -11, -12,

and -13; CR98002435-02, -04, -06,-07, -08, and -10; and Civil Case No. CL99-2988, which are

hereby made a part of the record in this matter, this Court finds:

Tony Knox is in custody pursuant to this Court's December 9, 1998 judgment wherein he

was convicted of 13 felonies. On December 2, 1998, Knox pled guilty to seven felonies and was

convicted of robbery, use of a firearm in the commission of robbery, attempted robbery, and grand

larceny (4 counts). (Case Nos. CR98002019-12 and -12; CR98002435-00, -05, -11, -12, and -13).

Also on December 2, 1998, Knox pled not guilty to six felonies, and was convicted of all six

felonies by the Court: attempted malicious wounding (3 counts) and use of a firearm in the

commission of attempted malicious wounding (3 counts). (Case Nos. CR9800243 5-02, -04, 7-06.

-

07.. -08, and -10). The Court sentenced him to a total of 44 years in prison, with 22 years suspended

on all 13 felonies.

lb

Knox's first petition for appeal was dismissed by the Court of Appeals on April 9, 1999.

(Record No. 0028-99-1). Knox filed a habeas petition in this Court and was granted a belated

appeal. (Case No. CL99-2988). The Court of Appeals granted Knox's second petition for appeal,

and then affirmed his convictions on May 1, 2001. (Record No. 0533-00-1).

The Virginia

Supreme Court refused his subsequent petition for appeal on August 21, 2001. (Record No.

011199).

On June 5, 2017, Knox executed the present petition for a writ of habeas corpus challenging

the sentences imposed for his firearm convictions and alleges as follows:

I.

Virginia Code § 18.2-53.1 is so vague it violated Petitioner's 14th Amendment

right to due process when the Virginia Beach Circuit Court sentenced Petitioner

under § 18.2-53.1 with multiple consecutive sentences. (Mem. at 1, 2).

E.

Petitioner's 14th Amendment claim is a novel claim that establishes cause to

overcome the procedural default bar in a post-conviction proceeding because the

issue raised by Petitioner is one of first, impression. (Mem. at 1, 3).

THE PETITION Is UNTIMELY

Virginia Code § 8,01-654(A)(2) provides in relevant part that a "habeas corpus petition

attacking a criminal conviction or sentence.. shall 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 thne for filing such appeal has expired, whichever is later." The statute of

limitations, therefore, lapsed in August 2002, which is one year after the Virginia Supreme Court

was refused Knox's petition for appeal. Section 8.01-654(A)(2) "contains no exception allowing a

The prior habeas petition asserted that: the evidence was insufficient; the Court erred in

denying his motion to withdraw his plea; his attorney was ineffective for failing to investigate his

case; his attorney was ineffective for not perfecting his appeal; he was denied his right to appeal;

and the use of a statement that Knox alleged had been illegally obtained. Knox prevailed on the

claims in which he sought a belated appeal, and the other claims were denied by order entered

January 18, 2000.

2b

petition to be filed after the expiration of these limitations periods." See Hines v. Kuplinski, 267

Va. 1, 1-2, 591 SE. 2d 692, 693 (2004) (emphasis added). The present petition was executed over

14 years after the conclusion of direct appeal and will be dismissed as untimely.2

KNox's CLAIMS ARE ALSO DEFAULTED

Knox's claims are premised upon the Virginia Supreme Court's 2012 decision in Brown

v. Commonwealth, which overruled Bullock v. Commonwealth, 48 Va. App. 359, 378, 631

S.E.2d 334, 343 (2006). it is apparent from Bullock and Brown that Knox's vagueness argument

regarding § 18.2-53.1 is not "novel." The defendant's in Brown and Bullock relied upon the

discretion of the trial court to run a sentence concurrent with another sentence, the authority for

which has existed by statute in Virginia since 1934. Knox could have asked this Court at his

2

Knox's claims rest primarily upon a 2012 opinion of the Virginia Supreme Court, Brown v.

Commonwealth, 284 Va. 538, 733 S.E.2d 638 (2012). The rule enunciated in Brown is a legal

one; it did not change the factual circumstances of Knox's case. A judicial decision is not a

factual matter that forms the basis of a claim for relief See Shannon v. Newland. 410 F.3d 1083,

1089 (9th Cir. 2005) (court decision establishing abstract proposition of law arguably helpful to

petitioner's claim does not constitute "factual predicate" for that claim), cert. denied, 546 U.S.

1171(2006); see also Hasan v. Galaza, 254 F.3d 1150, 1154 n. 3(9th Cir. 2001) ("[t]ime begins

[to run] when the prisoner knows (or through diligence could discover) the important facts, not

when the prisoner recognizes their legal significance.").

-

The discretion to run a sentence concurrently with another unless prohibited by another statute

has existed since 1934. "Under the amendment of 1934 the court is given express power to order

sentences to run concurrently, but in the absence of express direction, they still run

consecutively." See Hudson v. Youell, 179 Va. 442, 451, 19 S.E.2d 705. 709 (1942). The

statute is currently codified at § 19.2-308; see also Robertson v. Superintendent of the Wise

Correctional Unit, 248 Va. 232, 234-235, 445 S.E.2d 116, 117 (1994) ("Multiple sentences to

confinement 'shall not run concurrently, unless expressly ordered by the court', Code § 19.2-308,

and 'in the absence of express direction, they still run consecutively, Hudson v. Youell, 179 Va.

442, 451, 19 S.E.2d 705, 709, cert. denied, 317 U.S. 630 (1942) (construing statutory ancestor of

§ 19.2-308).").

3b

sentencing to run his sentences concurrently, just as both Brown and Bullock did at their

sentencings.4

If this Court had held that it could not run the sentences concurrently. as the trial courts in

Brown and Bullock did, Knox could have then proceeded in the same manner as both Brown and

Bullock and sought relief on appeal. Other than Brown, Knox does not point to anything that was

not available to him at his trial and sentencing in 1998 but that was available to either Bullock or

Brown. In short, the necessary tools were available to Knox, but he simply did not object and his

failure to do so constitutes a default, which precludes him from invoking habeas relief. See

Spencer v. Commonwealth, 238 Va. 295, 302, 384 S.E.2d 785, 790 (1989) (defaulting "vagueness"

argument under Rule 5:25 because it was not raised at trial); see also Riner v. Commonwealth, 40

Va. App. 440, 456-457, 579 S.E.2d 671, 679 (2003) ("fact that the law in effect at the time of a trial

sets out a particular method for proceeding does not prevent a defendant from arguing that method

should be different and does not excuse him from registering an objection in order to comply with

Rule 5A:18.") (citing Commonwealth v. Jerman, 263 Va. 88, 92- 94, 556 S.E.2d 754, 756-58

(2002) (footnote omitted)). To be sure, Brown did not have the "benefit" of Brown and yet Brown

still raised the issue and prevailed.

A petition for writ of habeas corpus is not a substitute for an appeal or a writ of error.

Slayton v. Parrigan, 215 Va. 27, 29, 205 S.E.2d 680, 682 (1974), cert. denied. 419 U.S. 1108

'

In Bullock, the defendant argued that the trial court had the discretion to modify his sentences

for his § 18.2-53.1 firearm convictions because they "could be suspended in whole or in part

under Code § 16.1-272(A)(1) or be set to run concurrently with each other." 48 Va. App. at 363,

631 S.E.2d at 336. In Brown, the defendant asked the circuit court to exercise its discretion to

run sentences concurrently. Brown, 284 Va. at 541-42, 733 S.E.2d at 639-40 (noting that

"{g]enerally, circuit courts have the authority to exercise discretion to run sentences

concurrently.") (citing Va. Code § 19.2-308.).

4b

(1975) Brooks v. Peyton, 210 Va. 318, 321-22, 171 S.E.2d 243, 246 (1969). "A prisoner is not

entitled to use habeas corpus to circumvent the trial and appellate processes for an inquiry into an

alleged non-jurisdictional defect of a judgment of conviction." Morrisette v. Warden of the Sussex

I State Prison, 270 Va. 188, 188, 613 S.E.2d 551, 554 (2005) (citing Slayton, 215 Va. at 30, 205

S.E.2d at 682. ). Accordingly, Knox's claims are not only untimely and successive, but they are

also defaulted under the rule of Slayton v. Parrigan, and will be dismissed for that reason as well.

Further, Brown did not find the statute was "vague," and Knox's "novel" argument has no

merit. Due process requires that penal statutes be written so that people of common intelligence are

on notice of the particular types of conduct that the statute prohibits. See, e.g., United States v.

Lanier, 520 U.S. 259, 267 (1997). "The

...

principle is that no [person] shall be held criminally

responsible for conduct which [that person] could not reasonably understand to be proscribed." Id.

at 265 (quoting Bouie v. City of Columbia, 378 U.S. 347, 351 (1964) (internal quotation omitted)).

The Supreme Court has noted "the vagueness doctrine bars enforcement of 'a statute which either

forbids or requires the doing of an act in terms so vague that [people] of common intelligence must

necessarily guess at its meaning and differ as to its application." 520 U.S. at 266 (citation

omitted).

Criminal statutes, however, are not unconstitutional simply because the language may

contribute to interpretations in which reasonable minds may differ on particular applications, and

the statute is sufficiently definite if "the common-sense meaning" is clear. United States v. Powell,

423 U.S. 87, 93(1975). Knox misconceives the "void for vagueness doctrine" he seeks to invoke.

"The fact that [the General Assembly] might, without difficulty, have chosen '[c]learer and more

precise language' equally capable of achieving the end which it sought does not mean that the

statute which it in fact drafted is unconstitutionally vague." Powell, 423 U.S. at 94 (citation

5b

omitted). Knox has not articulated any basis for his vagueness claim other than the subsequent

Brown opinion, and he certainly did not raise his concerns in a timely manner at trial and pursue

them on appeal. While "vague sentencing provisions may pos[e] constitutional questions if they do

not state with sufficient clarity the consequences of violating a given criminal statute," there is no

such issue where the statute "unambiguously specifies the activity proscribed and the penalties

available upon Conviction." United States v. Batchelder, 442 U.S. 114, 123 (1979). In Knox's

case, the penalty was expressly proscribed by statute. Knox does not assert he did not understand or

know the penalty for violating the use of a firearm in the commission of a felony. Instead he seeks

to expand vagueness from the clarity of the proscribed punishment to encompass the exercise of a

court's discretion to run a given statutorily proscribed punishment concurrent or consecutive with

other statutorily proscribed punishments that have likewise been imposed. However, a court's

decision to run a sentence concurrent or consecutive is an issue of discretion, not notice.5

While the exercise of discretion in imposing a sentence often results in disparities, such a

disparity does not amount to a violation of due process.

Judicial discretion naturally leads to discrepancies in sentencing.... But even

wide sentencing discretion in the abstract is not a violation of due process or equal

protection. As we held in [United States v.] Marshall, [908 F.2d 1312, 1321 (7th

Cir. 1990) (en banc), affid sub nom. Chapman v. United States, 500 U.S. 453

(1991)], the issue is the appropriateness of the sentence given the defendant's

crime: "Discretion, even if it ends in grossly unequal treatment according to

culpability, does not entitle a guilty defendant to avoid a sentence appropriate to

his own crime." j4; see Williams v. Illinois, 399 U.S. 235 (1970) ("Sentencing

judges are vested with wide discretion in the exceedingly difficult task of

determining the appropriate punishment in the countless variety of situations that

appear.

The Constitution permits qualitative differences in meting out

punishment and there is no requirement that two persons convicted of the same

offense receive identical sentences.") (emphasis added).

Holman v. Page, 95 F.3d 481, 486 (7th Cir. 1996).

ci

APPENDIX C

VIRGINIA:

Jn the Sup'teme eowt af Vi'tqiAia fie&1 at the Sup'eme Cau'd .i3uitding in the

(ity, a? .9icf,nwad an ghwoc1at the 4th ctay of (9ctck't, 2018.

Tony Knox,

against

Appellant,

Record No. 171575

Circuit Court No. CL17-2750

Director, Department of Corrections,

Appellee.

Upon a Petition for Rehearing

On consideration of the petition of the appellant to set aside the judgment

rendered herein on the 1st day of August, 2018 and grant a rehearing thereof, the prayer of the

said petition is denied.

A Copy,

Teste:

Patricia L. Harrington, Clerk

By:

Deputy Clerk

I

APPENDIX D

U.S.C.A. Const. Amend. XIV

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of the State wherein they reside. No State shall make or

enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to

any person within its jurisdiction the equal protection of the laws.

Id

APPENDIX E

VA Code § 18.2-53.1. Use or display of firearm in committing felony

It shall be unlawful for any person to use or attempt to use any pistol, shotgun, rifle, or other

firearm or display such weapon in a threatening manner while committing or attempting to commit

murder, rape, forcible sodomy, inanimate or animate object sexual penetration as defined in § 18.267.2, robbery, carjacking, burglary, malicious wounding as defined in § 18.2-51, malicious bodily

injury to a law-enforcement officer as defined in § 18.2-51.1, aggravated malicious wounding as

defined in § 18.2-51.2, malicious wounding by mob as defined in § 18.2-41 or abduction. Violation of

this section shall constitute a separate and distinct felony and any person found guilty thereof shall be

sentenced to a mandatory minimum term of imprisonment of three years for a first conviction, and to a

mandatory minimum term of five years for a second or subsequent conviction under the provisions of

this section. Such punishment shall be separate and apart from, and shall be made to run consecutively

with, any punishment received for the commission of the primary felony.

le

APPENDIX F

VA Code § 18.2-12.1: Mandatory minimum punishment; definition

"Mandatory minimum" wherever it appears in this Code means, for purposes of imposing

punishment upon a person convicted of a crime, that the court shall impose the entire term of

confinement, the full amount of the fine and the complete requirement of community service prescribed

by law. The court shall not suspend in full or in part any punishment described as mandatory minimum

punishment.

;

if

APPEND G

1)

there.

I have a duty to protect the community

2

3

and a duty to temper what I do with some

something that's fair to everybody.

S

--

I

appreciate the fact that you received your

GED.

It didn't go unnoticed that your mother

A's and

also testified that you had gotten all

all of

were doing really well in school before

C

LC

this happened.

There are a lot of charges here and I am

11

going to go down the list. We all know

12

I'll start will the firearm charges.

13

first use of a firearm

14

the commission of a robbery

15

sentence you to three years.

--

and I guess that's in

there isn't

--

I'm going to

I guess

On the

17

don't know if I asked

18

why we shouldn't proceed at this point?

--

and

On the

16

--

--

--

--

I

is there any reason

19

MRS. CRUMP: No, ma'am.

20

THE COURT: Three years on the first use

21

e use of

of a firearm charge. On the other thre

22

years

a firearm charges, it's going to be five

23

years on

on each charge for a total of eighteen

24

s, we

the firearms charges; and as counsel know

25

with

cannot suspend that or run it concurrent

RONALD GRAHAM AND ASSOCIATES, INC.

Virginia Beach, Virginia

Phone (757) 490-1100

126

everything.

L-

2

3

Going down the list of the other

charges

--

on the robbery charge, I'm going to

sentence you to ten years.

On the attempted robbery charge, I'm

going to sentence you to three years.

On the grand larceny charges, I'm going

to sentence you to one year each for a total of

9

four years

10

On the attempted malicious wounding

11

charges, I'm going to sentence you to three

12

years on each one of those for a total of nine

13

years; and if my mathematics is correct, that

14

is -a total of twenty-six years.

15

I thought about what I was going to do

16

with the rest of this time as we went through,

17

and --I -- understand you have mandatory--time; and

18

to some people, they would argue that that is

19

severe, to other people they would argue that

20

when people use guns they deserve a severe

21

punishment. It's not for me to make a judgment

22

about that.

23

general assembly has decided and that is the

24

way that has to be.

25

It's for me

--

that is what

I do believe that you should serve some

RONALD GRAHAM AND ASSOCIATES, INC.

Virginia Beach, Virginia

Phone (757) 490-1100

2g