Hines v. KuplinskiHines v. Kuplinski
On December 5, 1994, the Circuit Court of York County entered final judgment convicting Hines of rape in violation of
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 time for filing such appeal has expired, whichever is later.
The statute contains no exception allowing a petition to be filed after the expiration of these limitations periods. Hines contends that, if applied to him, this section violates the bar against suspension of the writ of habeas corpus,
Hines’ argument fails in this case because the record does not support the predicate for his claimed right to a late filed petition: that he was unable to discover the basis for his claims of ineffective assistance of counsel within the period provided by
Hines’ ineffective assistance of counsel claim is based on his allegation that counsel advised him that his criminal conviction could be challenged at any time on the basis of newly discovered evidence. Hines asserts that he learned that his counsels’ advice was wrong only when he attempted to file a motion for a new trial in 1999.2 However, Hines was aware of the information he characterizes as newly discovered evidence within two years of his conviction. The delay in filing
During his criminal trial, Hines admitted having sex with the victim but maintained that the sex was consensual. The “newly discovered evidence” upon which Hines relied as the basis for a new trial consisted of the testimony of two persons, Jennifer Pearson and T.J. Tuck. Pearson and Tuck allegedly would testify that shortly after the July 1993 incident, the victim told Pearson and Tuck that “she had engaged in consensual sex that evening” with Hines. Hines was aware of these witnesses and their potential testimony well before 1999.
During preparation for trial in 1994, Hines’ mother was informed that Pearson and Tuck “had information that could help” Hines. Mrs. Hines’ attempt to set up a meeting with Pearson was unsuccessful but she told Hines’ counsel of the potential witnesses. Neither Pearson nor Tuck was contacted. In May 1995, less than a year after Hines’ conviction, Pearson contacted Mrs. Hines and told her of the victim‘s alleged statement of consensual sex. Mrs. Hines contacted Hines’ attorney and, although counsel told her she needed a second witness, neither Hines nor Mrs. Hines attempted to locate Tuck at that time. Finding Tuck “became a priority” for Mrs. Hines when Hines was arrested for forgery in 1997. At that point, Mrs. Hines was concerned that Hines’ ten-year suspended sentence for rape would be revoked because of the new charges and that he would be sent to prison. Mrs. Hines did locate Tuck in March 1999, two days before the hearing in which Hines’ suspended sentence for the rape was indeed revoked and he was incarcerated.
This record shows that Hines could have discovered the basis for his habeas claim well within the limitations period established by
Because the record does not support Hines’ assertion that he could not have discovered the grounds for his claim of habeas corpus within the period established by
Accordingly, the judgment of the circuit court dismissing the petition for habeas corpus is affirmed. The appellant shall pay to the appellee thirty dollars damages.
This order shall be certified to the said circuit court and shall be published in the Virginia Reports.
A Copy,
Teste:
Patricia H. Krueger, Clerk