PRESENT:   All the Justices

CLIFFORD LEE SIGMON, NO. 1147304
                                              OPINION BY
v.   Record No. 121216             CHIEF JUSTICE CYNTHIA D. KINSER
                                            April 18, 2013
DIRECTOR OF THE
DEPARTMENT OF CORRECTIONS

            UPON A PETITION FOR A WRIT OF HABEAS CORPUS

     In this petition for a writ of habeas corpus filed under

this Court's original jurisdiction, we first hold that a

petition for a writ of habeas corpus and a direct appeal from a

final judgment of conviction can proceed simultaneously in this

Court.   With regard to the claims of ineffective assistance of

counsel raised in the petition, we conclude that the petitioner

failed to prove that, but for his counsel's alleged errors, the

outcome of his trial would have been different.    Therefore, we

will dismiss the petition.

     Clifford Lee Sigmon was convicted in the Circuit Court of

Amherst County of petit larceny, third or subsequent offense, in

violation of Code §§ 18.2-96 and -104; and breaking and entering

with the intent to commit larceny, in violation of Code §§ 18.2-

90 and -91.   In an order dated January 4, 2012, the circuit

court sentenced Sigmon to 12 months in jail, suspended; and 20

years of imprisonment, all but five years suspended,

respectively.
     Sigmon, represented by counsel, appealed the circuit

court's judgment to the Court of Appeals of Virginia, which

denied his appeal on July 12, 2012 by unpublished order.       Sigmon

v. Commonwealth, Record No. 0185-12-3 (July 12, 2012).       Sigmon

then timely filed a petition for appeal in this Court

challenging the judgment of the Court of Appeals. 1    Sigmon also

filed a pro se petition for a writ of habeas corpus in this

Court, challenging the legality of his confinement and asserting

claims of ineffective assistance of counsel.      The Director of

the Department of Corrections (the Director) moved to dismiss

Sigmon's petition.

     Because Sigmon's petition for a writ of habeas corpus and

his direct appeal were pending simultaneously in this Court, we

directed Sigmon and the Director to address the following

question: 2

              Is a petition for a writ of habeas corpus
              filed in this Court prior to the conclusion
              of the petitioner's direct appeal of his
              criminal conviction premature, requiring
              dismissal of the petition without prejudice,
     1
       As he did in the Court of Appeals, Sigmon raises two
issues on appeal: (1) whether a blank check is a thing of value
under Code § 18.2-96; and (2) whether the evidence was
sufficient to sustain his convictions. See Sigmon v.
Commonwealth, Record No. 121321, Pet. for Appeal (filed Aug. 6,
2012).
     2
      The Court appointed counsel to represent Sigmon in this
habeas corpus proceeding.

                                    2
          or may the petition for writ of habeas
          corpus and the direct appeal proceed
          simultaneously?

     While the precise origin of the writ of habeas corpus is

unknown, it is believed to have been in use before the date of

the Magna Carta.    Rollin C. Hurd, A Treatise on the Right of

Personal Liberty, and on the Writ of Habeas Corpus and the

Practice Connected with It: With a View of the Law of

Extradition of Fugitives 144 (1858).    "From its earliest known

appearance to the present, habeas corpus has been a judicial

order directing a person to have the body of another before a

tribunal at a certain time and place."    Daniel J. Meador, Habeas

Corpus and Magna Carta:    Dualism of Power and Liberty 7 (1966).

The purpose of a writ of habeas corpus is to "test the validity

of detention, and, for this purpose, the law permits a prisoner

to mount a collateral attack upon his conviction or sentence."

Howard v. Warden of Buckingham Corr. Ctr., 232 Va. 16, 19, 348

S.E.2d 211, 213 (1986); see also Buchanan v. Buchanan, 170 Va.

458, 464, 197 S.E. 426, 429 (1938) ("The primary object of

habeas corpus is to determine the legality of the restraint

under which a person is held.").

     The writ of habeas corpus "was claimed as the birthright of

every Englishman, and our ancestors brought it with them as such

to this country."    United States ex rel. Wheeler v. Williamson,


                                   3
28 F. Cas. 686, 688 (E.D. Pa. 1855).      Sometimes referred to as

the "most celebrated writ in the English law," Click v. Click,

127 S.E. 194, 195 (W. Va. 1925), it has been preserved in our

federal and state constitutions.       In the Commonwealth, "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 (1971); see also U.S. Const. art. 1, § 9, cl.

2.   Pursuant to Code § 8.01-654(A)(1), the "writ of habeas

corpus ad subjiciendum shall be granted forthwith by the Supreme

Court or any circuit court, to any person who shall apply for

the same by petition, showing by affidavits or other evidence

probable cause to believe that he is detained without lawful

authority."

      Habeas corpus "is designed to challenge the civil right of

the validity of the petitioner's detention" and is therefore "a

civil and not a criminal proceeding."      Smyth v. Godwin, 188 Va.

753, 760, 51 S.E.2d 230, 233 (1949); see also Ex parte Tom Tong,

108 U.S. 556, 559-60 (1883) (Habeas corpus "is a new suit

brought by [the petitioner] to enforce a civil right, which he

claims, as against those who are holding him in custody, under

the criminal process.").   It is not "a continuation of the

criminal prosecution," Smyth, 188 Va. at 760, 51 S.E.2d at 233,

and "may not be used as a substitute for an appeal or writ of


                                   4
error."    Brooks v. Peyton, 210 Va. 318, 321, 171 S.E.2d 243, 246

(1969); accord Slayton v. Parrigan, 215 Va. 27, 29, 205 S.E.2d

680, 682 (1974).

     As both parties acknowledge, none of the statutes

addressing habeas corpus, see Code §§ 8.01-654 through -668,

expressly or implicitly prohibits a petitioner from seeking

habeas corpus relief in this Court prior to completing a direct

appeal from a final judgment of conviction.     Those statutes

prescribe only a limitation as to the time period in which a

petition for a writ of habeas corpus must be filed.     Except in

cases in which a death sentence was imposed,

            [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.

Code § 8.01-654(A)(2).    Before the enactment of Code § 8.01-

654(A)(2), which became effective on July 1, 1998, 3 a petitioner

could seek habeas corpus relief at any time provided the

respondent was not prejudiced in its ability to reply because of

the petitioner's delay in filing.      Haas v. Lee, 263 Va. 273,

275, 560 S.E.2d 256, 257 (2002).



     3
         See 1998 Acts ch. 577; Code § 1-214(A).
                                   5
     Relying on our decisions in Bowman v. Washington, 269 Va.

1, 605 S.E.2d 585 (2004), and Davis v. Johnson, 274 Va. 649, 652

S.E.2d 114 (2007), Sigmon argues that in the absence of statutes

to the contrary, this Court should exercise its discretion to

dismiss without prejudice a habeas corpus petition filed in this

Court prior to the disposition of any pending direct appeal

challenging the criminal conviction.   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.   269 Va. at 1, 605 S.E.2d at 585.    The

petitioner asked the circuit court to permit him to file a

belated appeal to the Court of Appeals of Virginia and to

dismiss his remaining claims without prejudice.   Id.     The

circuit court granted the requested relief as to the belated

appeal but dismissed the other claims with prejudice.      Id.

     Prior to the amendment of Code § 8.01-654(B)(2) in 2005,

see 2005 Acts ch. 836, a petitioner was barred from asserting in

a subsequent petition for a writ of habeas corpus new claims

based on facts of which the petitioner had knowledge at the time




                                 6
of filing the previous petition. 4       A petitioner could, however,

reassert claims previously dismissed without prejudice.        Id. at

1-2, 605 S.E.2d at 585.       Because the petitioner in Bowman had

requested that his remaining habeas claims be dismissed without

prejudice so as to preserve them while he pursued his direct

appeal, we concluded that the circuit court abused its

discretion by dismissing those remaining claims with prejudice.

Id.

       Similarly, the circuit court in Davis granted the

petitioner's habeas corpus claim seeking a belated appeal from a

final judgment of conviction and also adjudicated the merits of

his other claims of ineffective assistance of counsel,

dismissing them with prejudice.      274 Va. at 652, 652 S.E.2d at

115.       On appeal, however, we found no abuse of discretion by the

circuit court.       Id. at 654, 652 S.E.2d at 117.   Noting the 2005

amendment to Code § 8.01-654(B)(2), we explained that our

decision in Bowman "did not suggest that a circuit court must[,]

in every case[,] dismiss without prejudice all additional habeas

corpus claims accompanying a successful request for a belated

appeal."       Id.

       4
       Pursuant to the 2005 amendment to Code § 8.01-654(B)(2), a
petitioner is no longer precluded from asserting new claims in a
subsequent petition for a writ of habeas corpus when the sole
claim in the first petition was a denial of the right of appeal
from a final judgment of conviction. See 2005 Acts ch. 836.

                                     7
           Instead, the discretionary nature of the
           circuit court's authority permits a circuit
           court to evaluate a petitioner's additional
           claims. If the circuit court is able to
           determine from the record that these claims
           are insufficient as a matter of law, or are
           procedurally barred as a matter of law, the
           circuit court retains the discretionary
           authority to dismiss those deficient claims
           with prejudice. If, however, the additional
           claims cannot be resolved as a matter of law
           on the face of the record, the circuit court
           should dismiss those claims without
           prejudice to enable a petitioner to reassert
           the same claims in a later petition after
           his belated appeal is concluded.

Id.

      The decisions in Bowman and Davis signify that it lies

within the sound discretion of the court whether to adjudicate

all habeas corpus claims when ruling on a claim for a belated

appeal.   However, contrary to Sigmon's argument, those cases are

not dispositive of the question we posed to the parties in this

case: whether a petition for a writ of habeas corpus and a

direct appeal can proceed simultaneously in this Court.   We now

answer that question affirmatively.

      The writ of habeas corpus has always been regarded "'as a

palladium of liberty'" and recognized as one of "'the greatest

and most effective remedies known to the law.'"   Click, 127 S.E.

at 195 (citations omitted).   Moreover, Code § 8.01-654(A)(1)

commands that when a petitioner shows that he or she is detained

without lawful authority, the "writ of habeas corpus ad
                                 8
subjiciendum shall be granted forthwith."   (Emphasis added.)     We

find no justification to dismiss without prejudice a petition

for a writ of habeas corpus filed in this Court merely because a

direct appeal is also pending either in the Court of Appeals or

in this Court.   Indeed, such a procedure would ignore the fact

that claims of ineffective assistance of counsel are not

reviewable on direct appeal and thus can be raised only in a

habeas corpus proceeding.   See Johnson v. Commonwealth, 259 Va.

654, 675, 529 S.E.2d 769, 781 (2000); Roach v. Commonwealth, 251

Va. 324, 335 n.4, 468 S.E.2d 98, 105 n.4 (1996); Walker v.

Commonwealth, 224 Va. 568, 570-71, 299 S.E.2d 698, 699-700

(1983).   A petitioner with a meritorious claim of ineffective

assistance of counsel should not be forced either to forego all

direct appeal remedies in order to seek habeas corpus relief

immediately after a criminal conviction, or to wait until the

completion of any direct appeal remedies before pursuing the

habeas corpus claim.   Thus, Sigmon's petition for a writ of

habeas corpus can proceed simultaneously with his direct appeal

in this Court.   Cf. Walker, 224 Va. at 570, 299 S.E.2d at 699

(direct appeal of conviction and appeal from denial of a habeas

corpus petition both pending before the Court simultaneously).

     We turn now to the merits of his habeas corpus claims.

Before addressing them, we will summarize the pertinent evidence


                                 9
presented at Sigmon's trial for petit larceny and breaking and

entering with the intent to commit larceny.    The victim, William

L. Higginbotham, testified that he and Sigmon are cousins and

that although they have known each other since childhood, he had

not seen Sigmon for at least 20 years.    Higginbotham related

that on the day in question, May 29, 2011, Sigmon came to his

house two times.    According to Higginbotham, he felt

uncomfortable during the first encounter because Sigmon asked

him for money.    Higginbotham did not give Sigmon a definite

answer but merely told Sigmon he would "try to see what [he]

could do."

     Higginbotham testified that Sigmon returned to his house

about 30 to 45 minutes later.    Higginbotham decided to "try to

give the impression that no one was home," so he concealed

himself in a closet and did not respond to Sigmon's knocking on

the door.    Higginbotham observed Sigmon enter the house

uninvited, rummage through the drawers of a computer desk, take

a blank check from a checkbook lying on the desk, and then

leave.   Higginbotham later placed a "hold" on the check, which

was never cashed.

     Sigmon testified at trial and admitted that he went to

Higginbotham's house twice on the day in question.    He also

admitted that he entered the house the second time uninvited,


                                 10
after receiving no response to his knocking and calling for

Higginbotham.   He further acknowledged that he took the blank

check.   Sigmon claimed, however, that he took the check solely

to get Higginbotham's telephone number so he would not need to

leave Higginbotham a note.   Sigmon also testified that he tore

off the part of the check containing the telephone number and

threw the remaining portion away.    Sigmon admitted that he had

been released from prison in December 2010 and had been

convicted of a "bunch" of felonies.

     In his habeas corpus petition, Sigmon alleges that he was

denied effective assistance of counsel on the following grounds:

(1) that counsel failed to meet with him until 30 minutes prior

to trial and to discuss trial strategy or possible defenses to

the charges; (2) that counsel failed to investigate the charges;

(3) that counsel failed to prepare for trial and to interview

and/or subpoena witnesses, in particular John Gilbert Huffman

and Peggy Sue Vaughan, petitioner's fiancée; (4) that counsel

failed to discuss with petitioner whether he should request a

trial by jury; (5) that counsel failed to present exculpatory

evidence at trial; (6) that counsel failed to request a

continuance of the trial because counsel was not prepared to

proceed; and (7) that counsel incorrectly informed the trial




                                11
court that petitioner wished to change his plea from not guilty

to guilty.

     In this collateral attack on his convictions, Sigmon has

the burden to prove by a preponderance of the evidence his

claims of ineffective assistance of counsel.     Jerman v. Dir.,

267 Va. 432, 438, 593 S.E.2d 255, 258 (2004); Green v. Young,

264 Va. 604, 608, 571 S.E.2d 135, 138 (2002).     To prevail on

those claims, he must satisfy both parts of a two-part test

established in Strickland v. Washington, 466 U.S. 668, 687

(1984).   First, Sigmon must show that his counsel's "performance

was deficient," which means "counsel made errors so serious that

counsel was not functioning as the 'counsel' guaranteed the

defendant by the Sixth Amendment."     Id.   Second, he must prove

that counsel's "deficient performance prejudiced the defense,"

that is to say "counsel's errors were so serious as to deprive

the defendant of a fair trial."    Id.

     As explained in Strickland, a court is not required to

determine "whether counsel's performance was deficient before

examining the prejudice suffered by the defendant as a result of

the alleged deficiencies."   Id. at 697.     Instead, a court can

proceed directly to the prejudice prong of the two-part test

"[i]f it is easier to dispose of an ineffectiveness claim on the




                                  12
ground of lack of sufficient prejudice." Id.    We will do so in

this case.

     Upon reviewing the record, including the transcript of

Sigmon's trial and his counsel's affidavit, the Court concludes

Sigmon has not demonstrated that "there is a reasonable

probability that, but for counsel's [alleged] errors, the result

of the proceeding would have been different."   Id. at 694.

Sigmon failed to provide affidavits or other evidence to show

what additional trial strategies and defenses were available if

counsel had met with him more often and engaged in additional

trial preparation; what additional investigation of the charges

would have revealed; what testimony John Gilbert Huffman, Peggy

Sue Vaughan and any other witnesses would have provided if

counsel had interviewed and subpoenaed them to testify at trial;

what factors informed his decision to have a bench trial and

what additional information from his counsel would have prompted

him to request a jury trial; what exculpatory evidence counsel

should have introduced at trial; what further evidence and/or

defenses could have been developed if counsel had requested a

continuance of the trial; and how any miscommunication about

whether he wished to change his plea affected the trial court's

finding of guilt on the charges.    As the Director states in his

motion to dismiss, Sigmon's claims are facially lacking under


                               13
the prejudice prong of the two-part test because Sigmon fails

even to assert, much less demonstrate, that but for counsel's

alleged errors, the result of his trial would have been

different.

     Furthermore, Higginbotham's account of Sigmon's entering

his house the second time without permission, taking the blank

check out of the checkbook, and leaving with it is

uncontradicted.   Sigmon admitted to these actions but claimed he

took the check merely to get Higginbotham's telephone number.

His counsel argued that the blank check had no value until it

was signed and endorsed, that there was no evidence that Sigmon

used the check in any manner, and that he lacked the intent to

steal anything of value.   Sigmon has identified no alternative

defense that counsel should have pursued at trial.

     In sum, Sigmon failed to satisfy the prejudice prong of the

two-part Stickland test.   Therefore, we will dismiss Sigmon's

petition for a writ of habeas corpus.

                                                          Dismissed.




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