PRESENT: All the Justices

MARK F. LAHEY
                                             OPINION BY
v.   Record No. 110552                ELIZABETH A. McCLANAHAN
                                          January 13, 2012
GENE M. JOHNSON, DIRECTOR

              FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
                       Victor V. Ludwig, Judge

       Mark F. Lahey challenges on appeal the circuit court's

order dismissing his petition for a writ of habeas corpus as

time-barred under the statute of limitations set forth in Code

§ 8.01-654(A)(2).   Lahey submitted his habeas petition for

filing on the last day of the limitations period, but did not

complete payment of the filing fee until days later.     The

circuit court dismissed the petition as untimely under Code

§ 8.01-654(A)(2) upon determining that, under the express

requirements of Code § 8.01-655, the petition could not be

filed, or deemed filed, without proper payment of the filing

fee.   We agree with the circuit court and will affirm its

judgment.

                             BACKGROUND

       In 2006, Lahey was convicted of two counts of attempted

first degree murder and was sentenced to 18 years' imprisonment.

The Court of Appeals and this Court refused Lahey's petitions

for appeal on June 7, 2007 and December 27, 2007 respectively.
Therefore, the last day for Lahey to file a petition for a writ

of habeas corpus was December 29, 2008. ∗     Code § 8.01-654(A)(2).

        On December 29, 2008, the circuit court clerk's office

received by mail from Lahey's counsel a petition for a writ of

habeas corpus accompanied by a check in the amount of $32 for

the filing fee.      The same day, a deputy clerk emailed Lahey's

counsel to advise him that the proper filing fee was $37, and

that the fee submitted was $5 short.      Lahey's counsel mailed a

$5 check to the clerk's office on December 30, 2008.      Due to the

holidays and the weekend, the clerk's office received the $5

check on January 5, 2009, at which time the petition was

"stamped and filed."

        Appellee, Gene M. Johnson, Director of the Virginia

Department of Corrections (the Director), moved to dismiss

Lahey's habeas petition as untimely filed under the statute of

limitations contained in Code § 8.01-654(A)(2).      The Director

asserted that the deadline for filing the petition was December

29, 2008; and that, while the clerk's office received the

petition on that date, the clerk's office did not file it

because Lahey failed to submit the proper filing fee at that

time.       Payment of the filing fee, the Director argued, was a

"precondition to filing" under Code § 8.01-655, as the statute


        ∗
       Because December 27, 2008 was a Saturday, the filing
deadline was not until Monday, December 29, 2008. Code § 1-210.

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expressly provided that the petition was "not [to] be filed

without payment of court costs," Code § 8.01-655(B).   Thus,

Lahey's habeas petition was time-barred, according to the

Director, as it was not filed until January 5, 2009, when the

clerk's office received payment for the remainder of the filing

fee.

       In response, Lahey conceded that December 29, 2008 was the

last day of the limitations period under Code § 8.01-654(A)(2)

for filing his habeas petition.   He argued, however, that the

petition was filed, or alternatively should be deemed filed,

when it was received in the clerk's office on that date for

purposes of the statute of limitations - even though the filing

fee was not paid in full, and the clerk's office did not accept

the petition for filing, until January 5, 2009.   According to

Lahey, no Virginia habeas related statute required payment of

the filing fee as a precondition to filing a habeas petition;

and he was at least in "substantial compliance" with the terms

of Code § 8.01-655 when he submitted the initial payment of $32

with his petition, which was all the statute required. Lahey

further argued that his petition otherwise should be considered

"conditionally filed" on December 29, 2008 until he later

"addressed and paid the $5 deficiency."

       Following a hearing on the Director's motion, the circuit

court ordered dismissal of Lahey's habeas petition upon


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concluding that the petition was time-barred under Code § 8.01-

654(A)(2).   In its letter opinion, the court explained that

payment of the filing fee was a "mandatory predicate" for filing

the petition under Code § 8.01-655.     Thus, "Lahey did not timely

file his petition because he did not timely pay the [f]ee."

                             ANALYSIS

     On appeal, Lahey assigns error to the judgment of the

circuit court on the grounds that (i) the court erred in

dismissing his habeas petition as time-barred "when the petition

and $32 were timely but the filing fee was short by $5"; and

(ii) the court erred in ruling that "the full filing fee was

'mandatory' or 'jurisdictional," instead of "apply[ing]

substantial compliance, equitable tolling, or the concept of

conditional filing."

     Lahey's assignments of error present issues of law

regarding the construction and application of Code §§ 8.01-

654(A)(2) and 8.01-655(B).   We review such issues de novo.

Kummer v. Donak, 282 Va. 301, 304, 715 S.E.2d 7, 9 (2011);

Antisdel v. Ashby, 279 Va. 42, 47, 688 S.E.2d 163, 166 (2010).

     Code § 8.01-654(A)(2) sets forth Virginia's statute of

limitations governing the filing of habeas petitions, and

provides, in relevant part: "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


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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."    (Emphasis added.)

     Code § 8.01-655 then addresses numerous substantive and

procedural matters related to the filing of a habeas petition,

including the directive that "[t]he petition will not be filed

without payment of court costs unless the petitioner is entitled

to proceed in forma pauperis and has executed the affidavit in

forma pauperis."    Code § 8.01-655(B) (emphasis added).

     The dispositive statutory provisions are thus limited to

the following: the habeas petition "shall be filed" within the

applicable limitations period, Code § 8.01-654(A)(2); however,

the petition "will not be filed without payment of court costs"

(where the petitioner is not proceeding in forma pauperis).

Code § 8.01-655(B).

     The last day for Lahey to file his habeas petition was

December 29, 2008.    He submitted his petition to the circuit

court clerk's office for filing on that date with insufficient

payment of the filing fee, and he did not complete the payment

until days later.    Nor did he submit his petition seeking in

forma pauperis status.    On those facts, we agree with the

circuit court that Lahey's habeas petition was time-barred under

Code §§ 8.01-654(A)(2) because (a) the filing of the petition

was conditioned upon proper payment of the filing fee (i.e., the


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court cost) under Code § 8.01-655(B), and (b) Lahey did not

complete payment of the filing fee until after the limitations

period for filing the petition under Code § 8.01-654(A)(2) had

expired.

     Challenging the circuit court's ruling, Lahey asserts that

Code § 8.01-655 requires only "substantial compliance" with its

provisions.   He then argues that his payment of $32 of the $37

filing fee, along with submission of his habeas petition, on the

last day of the limitations period should be held to meet this

standard.   Lahey's reliance on this standard is misplaced.   As

the circuit court correctly concluded in rejecting this

argument, the statute utilizes this standard only in reference

to compliance with the required contents of the habeas petition.

Code § 8.01-655(A) states in this regard: "Every petition filed

by a prisoner seeking a writ of habeas corpus must be filed on

the form set forth in subsection B.   The failure to use such

form and to comply substantially with such form shall entitle

the court to which such petition is directed to return such

petition to the prisoner pending the use of and substantial

compliance with such form."

     By contrast, the filing provision at issue under Code

§ 8.01-655(B) is unequivocal in providing, through plain and

unambiguous language, that the petition "will not be filed

without payment of court costs" where, as here, the petitioner


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is not seeking in forma pauperis status.   To hold that this

provision requires something less than complete payment of the

full filing fee to achieve filing of the habeas petition would

amount to this Court rewriting the statute under the guise of

statutory construction.   " 'When the legislature has spoken

plainly it is not the function of courts to change or amend its

enactments under the guise of construing them.    The province of

[statutory] construction lies wholly within the domain of

ambiguity, and that which is plain needs no interpretation.' "

Doss v. Jamco, Inc., 254 Va. 362, 370, 492 S.E.2d 441, 445

(1997) (quoting Winston v. City of Richmond, 196 Va. 403, 407-

08, 83 S.E.2d 728, 731 (1954)).

     For the same reasons, we reject Lahey's argument that the

circuit court should have otherwise deemed his habeas petition

filed on the last day of the limitations period until he paid

the balance of the filing fee days later by applying some

principle of "equitable tolling" or "conditional filing."    The

express language of the Code § 8.01-655(B) filing provision does

not contain any terms open for interpretation as such a savings

provision.   In making this argument, Lahey points to various

rules of this Court, none of which address the statute's filing

provision.   See Rules 3:2, 3:3, 3A:25 and 5:5.   To the extent,

however, that any of those rules could be construed as

conflicting with the statute, the statute would "prevail[] over


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[them]."   Turner v. Commonwealth, 221 Va. 513, 519-20, 273

S.E.2d 36, 40 (1980) ("The Constitution of Virginia, Art. VI,

§ 5, prohibits the promulgation of any court rule 'in conflict

with the general law as the same shall, from time to time, be

established by the General Assembly.' "); see Pulliam v. Coastal

Emergency Servs. of Richmond, Inc., 257 Va. 1, 21-23, 509 S.E.2d

307, 319 (1999) (same); see also Code § 8.01-3(D) ("In the case

of any variance between a rule and an enactment of the General

Assembly such variance shall be construed so as to give effect

to such enactment").

     Finally, we reject Lahey's contention that a habeas

petition can be found to have been "filed" for purposes of the

limitations period under Code § 8.01-654(A)(2) simply upon its

submission to the clerk's office, even if it was not "filed" for

purposes of Code § 8.01-655(B) due to a petitioner's failure to

pay the full filing fee.   Reading Code §§ 8.01-654 and 8.01-655

in pari materia, we are convinced the legislature was addressing

the same action when it used the term "filed" in each of these

related statutes.   See Evans v. Evans, 280 Va. 76, 83 n.2, 695

S.E.2d 173, 176 n.2 (2010) ("Because [the two statutes at issue]

clearly address the same subject matter, we construe them

together under the 'in pari materia' canon of construction.").

Thus, if a habeas petition does not qualify for filing due to a




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lack of full payment under Code § 8.01-655(B), then, as a matter

of law, it is not "filed" for purposes of Code § 8.01-654(A)(2).

                           CONCLUSION

     For the reasons stated, Lahey's habeas petition was time-

barred under Code § 8.01-654(A)(2). Accordingly, we will affirm

the judgment of the circuit court.

                                                        Affirmed.




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