Present: Lemons, C.J., Goodwyn, Millette, and Powell, JJ., and
Russell and Lacy, S.JJ.

ARSEAN LAMONE HICKS

v.   Record No. 131945                OPINION BY SENIOR JUSTICE
                                          ELIZABETH B. LACY
DIRECTOR, DEPARTMENT                      February 26, 2015
OF CORRECTIONS

             FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                     Everett A. Martin, Jr., Judge

      In this appeal, Arsean Lamone Hicks challenges the trial

court’s judgment that his petition for a writ of habeas corpus

based on an alleged violation of the prosecution's duty to

disclose exculpatory material under Brady v. Maryland, 373 U.S.

83 (1963), was untimely filed because it was not filed within

the one year limitations period provided in Code § 8.01-

654(A)(2).

                         FACTS AND PROCEEDINGS

      In December of 1999, Hicks, then 16 years old, lived with

his legal guardian, Haskell Corry, in Norfolk, Virginia.     Hicks

shared a bedroom with Larry Roscoe.    On December 26, 1999,

Hicks, Roscoe, and two other persons robbed a pizza delivery

driver.   During the robbery, Roscoe pointed his gun at the

driver’s head while Hicks took $50 from the driver’s pocket and

the other men took the pizzas.    On December 27, 1999, Hicks

committed a second armed robbery of a pizza delivery driver.
     Two days later, on December 29, 1999, Hicks, Farrell

Richardson and Kenny Riddick agreed to rob another pizza

delivery driver.    Hicks, wearing a mask and armed with Roscoe’s

gun, took the driver’s money and the pizzas.   Hicks then drove

away in the delivery driver’s vehicle.   Later that evening,

Hicks, Richardson and Riddick discussed robbing the Open House

Diner in Norfolk, Virginia.   Just before 2:00 a.m. on December

30, 1999, Richardson and Riddick entered the Open House Diner.

After a few moments, Hicks, again wearing a mask and armed with

Roscoe’s gun, entered the diner, jumped across the counter, and

announced the robbery.   He ordered an employee to open the cash

register.    As Hicks was removing money from the register, Lisa

Bailey, an off-duty federal police officer, approached him

displaying her badge in an attempt to prevent the robbery.

Hicks shot and killed the officer.    Hicks and Richardson fled

the diner.

     Riddick, who had remained in the diner, was questioned by

the Norfolk Police officers when they arrived on the scene.

Based on Riddick’s statements, the officers obtained a search

warrant for Hicks’ residence and yard.   The police recovered a 9

millimeter handgun from the closet in the bedroom shared by

Hicks and Roscoe.   The officers also recovered pizza boxes from

the establishments whose delivery drivers were robbed and items

                                  2
belonging to the delivery driver whose car was stolen by Hicks.

Subsequent testing showed that the handgun found in the bedroom

Hicks shared with Roscoe was the weapon that fired the bullet

killing Officer Bailey at the Open House Diner.

     Hicks confessed to the December 26 and 27 robberies and was

convicted in two separate jury trials.   Hicks pled guilty to the

December 29 carjacking, robbery and two counts of using a

firearm in the commission of those felonies.   Hicks subsequently

pled not guilty to the Open House Diner crimes and, following a

jury trial, was convicted of first degree murder, use of a

firearm in the commission of murder, robbery, use of a firearm

in the commission of robbery and conspiracy to commit robbery.

Hicks’ appeals of these convictions were unsuccessful and direct

review concluded on January 9, 2004.   On July 24, 2013, Hicks,

appearing pro se and in forma pauperis, filed a petition for a

writ of habeas corpus with regard to his convictions for the

Open House Diner crimes.   That petition is the subject of this

appeal.

     In his petition, Hicks alleged that on October 12, 2012, he

received a sworn affidavit executed by Roscoe on November 28,

2006, stating that Roscoe had “admitted to Detective Ford that

the gun, shoes, coat and mask were mine when I gave him a

recorded statement at the [police operations center].   [A]t no

                                 3
time did anyone touch or use my items which I also stated [there

was] no way possible any of them could have committed those

crimes if these items are said to have been used.”    Roscoe had

given this affidavit to Richardson, who, according to

Richardson’s affidavit “sat on it” for several years before

giving it to Hicks’ girlfriend, who, in turn, mailed it to Hicks

in October of 2012.

     Based on this information, Hicks asserted that the Norfolk

Commonwealth Attorney suppressed or failed to disclose Roscoe’s

recorded statement referenced in the affidavit and that the

affidavit contained exculpatory evidence in violation of Hicks’

due process rights under the Constitution of the United States

and Article I, Section 11 of the Constitution of Virginia, as

defined in Brady.     In response, the Commonwealth filed a motion

to dismiss, arguing that Code § 8.01-654(A)(2) requires that a

petition for habeas corpus 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.   Because Hicks’ petition was filed more than nine

years after his conviction was final, the Commonwealth concluded

the petition was untimely and should be dismissed.




                                   4
     Hicks opposed the Commonwealth’s motion to dismiss, stating

that applying the statutory limitations period without exception

constitutes a suspension of the writ of habeas corpus in

violation of Article I, Section 11 of the Constitution of

Virginia.   Hicks contended that the limitations statute is not

absolute, arguing that in Hines v. Kuplinski, 267 Va. 1, 591

S.E.2d 692 (2004) the same issue was raised and, while not

directly decided because the petitioner in Hines did not meet

the factual predicate for a late filing based on previously

unknown information, the Court nevertheless engaged in the

applicable analysis.   Because the Court engaged in the analysis,

Hicks contended that the “only logical conclusion therefore is

that had Hines been able to prove that the basis of his claim

was not previously available . . . the Court would have held

that applying the limitations period would be unconstitutional.”

     The trial court ultimately dismissed Hicks’ petition,

holding that it was not timely filed under Code § 8.01-654(A)(2)

and that the application of the limitations statute to petitions

for a writ of habeas corpus did not suspend the writ of habeas

corpus in violation of Article I, Section 11 of the Constitution

of Virginia.   We awarded Hicks an appeal.




                                 5
                              ANALYSIS

     Hicks raises three assignments of error.   In his first two

assignments of error he asserts that the trial court erred in

ruling that habeas corpus relief was not available to him based

on a claim of newly discovered withheld exculpatory evidence

because it was untimely.    His third assignment of error recites

that applying the limitations period of Code § 8.01-654(A)(2) to

Hicks’ claim violates the bar against suspension of the writ of

habeas corpus contained in Article I, Section 9 of the

Constitution of Virginia.   We will consider these claims in

order.

     Hicks first argues that his petition was timely filed under

Code § 8.01-229(D).   That section provides in pertinent part:

     When the filing of an action is obstructed by a
     defendant’s . . . using any other direct or indirect
     means to obstruct the filing of an action, then the
     time that such obstruction has continued shall not be
     counted as any part of the period within which the
     action must be brought.

This section, Hicks argues, operates as an exception to the

limitations period established in Code § 8.01-654(A)(2).   Habeas

corpus is a civil action, and Hicks contends that the

Commonwealth, as the responding party or defendant, had and

continued to withhold exculpatory evidence which was unknown to

Hicks until October 12, 2012.   Hicks argues that the one year

period for filing his petition for habeas corpus began to run at
                                  6
that point and his petition filed on July 24, 2013, was filed

within one year of that date.

     The Commonwealth asserts that Supreme Court Rule 5:25 bars

our consideration of this argument because it was not raised

before the habeas court.   Hicks acknowledges that, proceeding

pro se and in forma pauperis, he did not specifically cite Code

§ 8.01-229(D) to the habeas court, but argues that by asserting

he filed the petition within one year of learning of the

withheld exculpatory evidence he “disclosed the foundation for

statutory tolling” and his argument “functionally mirrored the

text of the tolling statute.”   Hicks also contends that even if

his arguments did not preserve the issue for appeal, we should

apply the ends of justice exception to Rule 5:25 and consider

application of Code § 8.01-229(D) here.

     We disagree with Hicks’ assertion that his arguments were

sufficient to alert the habeas court to the tolling provisions

of Code § 8.01-229(D).   As reflected in the record, Hicks’

arguments to support timely filing within one year of learning

of the Roscoe affidavit were directed to the provisions in Code

§ 8.01-654(B)(2), which addresses the filing of successive

petitions based on newly acquired information.   There was no

suggestion that any other statute was the source for tolling the

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

                                 7
Accordingly, unless we can determine that the ends of justice

provision of Rule 5:25 applies here, we must conclude that the

rule precludes our consideration of Hicks’ argument that Code §

8.01-229(D) tolled the limitations period for filing his habeas

corpus petition.

                     Ends of Justice Exception

     We apply the ends of justice exception to Rule 5:25 in

limited circumstances.   Gheorghiu v. Commonwealth, 280 Va. 678,

689, 701 S.E.2d 407, 413-14 (2010)(citing Ali v. Commonwealth,

280 Va. 665, 671, 701 S.E.2d 64, 68 (2010); Charles v.

Commonwealth, 270 Va. 14, 17, 20, 613 S.E.2d 432, 433, 435

(2005); Jimenez v. Commonwealth, 241 Va. 244, 249-50, 402 S.E.2d

678, 680 (1991); Ball v. Commonwealth, 221 Va. 754, 758, 273

S.E.2d 790, 793 (1981)).   Applying the exception is appropriate

when there is error as contended by the appellant and when the

failure to apply the exception would result in a grave

injustice.   Gheorghiu, 280 Va. at 689, 701 S.E.2d at 413.

                             1. Error

     The Commonwealth argues that there was no error in the

trial court’s judgment because Code § 8.01-229(D) does not apply

to the limitations period established for the filing of

petitions for habeas corpus relief.     In support of its position,

the Commonwealth offers a number of arguments.    First, the

                                 8
Commonwealth contends that statutes of limitations must be

strictly enforced “unless the General Assembly has clearly

created an exception to their application,” Casey v. Merck &

Co., 283 Va. 411, 416, 722 S.E.2d 842, 845 (2012), and Code §

8.01-654(A)(2) contains no exceptions.   Furthermore, according

to the Commonwealth, Code § 8.01-654(A)(2) is a specific

statute, while Code § 8.01-229(D) is a statute of general

application, and as a result the general statute cannot prevail

over the provisions of the more specific statute.   Daniels v.

Warden, 266 Va. 399, 402, 588 S.E.2d 382, 384 (2003).

     We do not find this argument persuasive.   The lack of an

exception to the limitations period within Code § 8.01-654(A)(2)

does not preclude application of an exception contained in

another statute.   That is precisely what the General Assembly

has done in Code § 8.01-229 with regard to many other provisions

in the Code of Virginia containing specific statutes of

limitations.   Section 8.01-229, entitled in part as “Suspension

or tolling of statute of limitations” contains multiple

subsections identifying instances in which limitations periods

established in other parts of the Code may be tolled.   See,

e.g., Code § 8.01-229(A)(providing tolling based on certain

disabilities, such as infancy or adjudicated incapacitation);




                                 9
-229(B)(providing tolling when person entitled to file an action

dies before filing or when person against whom an action may be

filed dies before the action is filed); -229(C)(providing

tolling when the commencement of an action is suspended due to

an injunction); and -229(E)(providing tolling under certain

circumstances when an action is dismissed without determining

the merits, abates or is nonsuited).   The Commonwealth’s logic

would vitiate application of virtually every subsection in the

statute because they each deal with limitations periods

established elsewhere.

     Next, the Commonwealth asserts, even if Code § 8.01-229(D)

provided an exception to the more specific habeas limitations

statute, it is not available in this case because its

application requires a showing that the defendant’s obstruction

be in the nature of moral turpitude, relying on Newman v.

Walker, 270 Va. 291, 296, 618 S.E.2d 336, 340 (2005).    According

to the Commonwealth, Hicks’ Brady claim arises from an

inadvertent act of the prosecutor, not from an intentional act

implicating moral turpitude.

     The Commonwealth correctly argues that in previous cases we

have said that to invoke the tolling provision of Code § 8.01-

229(D), the obstruction by the defendant “‘must consist of

affirmative acts of misrepresentation’” and that “‘[t]he fraud

                               10
which will relieve the bar of the statute must be of that

character which involves moral turpitude, and must have the

effect of debarring or deterring the plaintiff from his

action.’”   Culpeper Nat'l Bank v. Tidewater Improvement Co., 119

Va. 73, 84, 89 S.E. 118, 121 (1916).   However, none of our cases

addressing the nature of the obstruction necessary to invoke

Code § 8.01-229(D) involved a petition for habeas corpus based

on a Brady violation.

     A claim for relief based on an alleged Brady violation is

unlike any claim addressed in our previous cases involving Code

§ 8.01-229(D).    The failure to disclose in a Brady claim is more

than a simple omission or act obstructing the filing of a civil

action; it is the core element of the claim for relief itself,

which results in injury to the litigant.   Disclosure of

exculpatory evidence is an affirmative duty not dependent on a

request from the accused, applying to impeachment as well as

affirmative evidence, and this duty is violated whether the

failure to produce the exculpatory information was intentional

or inadvertent.    Strickler v. Greene, 527 U.S. 263, 281-82

(1999).   Furthermore, as particularly relevant here, the Brady

doctrine encompasses “evidence ‘known only to police

investigators and not to the prosecutor,’” id. at 280-81, and

requires its disclosure.

                                 11
     The Commonwealth’s reasoning that the failure to disclose

in this case was insufficient to invoke the statutory tolling

provisions would preclude application of Code § 8.01-229(D) in

every instance in which a government actor other than the

prosecutor engaged in acts of nondisclosure.   Such an

interpretation of Code § 8.01-229(D) would afford a safe haven

for nondisclosure, which is inconsistent with the elements of

the Brady doctrine and undermines the importance of Brady in our

criminal justice system.   For these reasons, we conclude that in

a claim for habeas corpus relief based on a Brady violation, the

failure to disclose exculpatory evidence qualifies as

obstruction by the defendant that prevents the filing of the

claim for purposes of Code § 8.01-229(D).

     Finally, the Commonwealth argues that Hicks’ petition is

untimely even under Code § 8.01-229(D) because Hicks learned of

Roscoe’s statement no later than March 24, 2009, based on

statements contained in a motion filed by Hicks for recovery and

testing of DNA.   The motion to which the Commonwealth refers

sought DNA testing of a shoe recovered at Hicks’ residence that

matched the shoe impression left on the counter at the murder

scene.   In that motion Hicks refers to a “confession” Larry

Roscoe gave to Hicks.   Nothing in this motion mentions the

recorded statement allegedly given to the investigating

                                12
detective or Roscoe’s exclusive possession of certain items,

which are the subject of the allegedly withheld evidence.

Therefore, we reject the Commonwealth’s argument that the

tolling provision of Code § 8.01-229(D) does not apply because

Hicks was aware of the evidence allegedly withheld more than one

year before he filed his habeas corpus petition.

     In summary, we conclude that the tolling provision of Code

§ 8.01-229(D) is applicable to the limitations period of Code

§ 8.01-654(A)(2) and, therefore, it was error to conclude that

Hicks’ petition for habeas corpus was untimely.

                       2.    Grave Injustice

     Before we apply the ends of justice exception of Rule 5:25,

however, we must determine whether the failure to apply the

exception would result in a grave injustice.   Gheorghiu, 280 Va.

at 689, 701 S.E.2d at 413.   Under the facts of this case, Hicks

would suffer a grave injustice if his Brady claim was

meritorious but barred from consideration by Rule 5:25.    There

are three components of a violation of the Brady rule of

disclosure:

     a) The evidence not disclosed to the accused must
     be favorable to the accused, either because it is
     exculpatory, or because it may be used for
     impeachment; b) the evidence not disclosed must
     have been withheld by the Commonwealth either
     willfully or inadvertently; and c) the accused
     must have been prejudiced.

                                 13
Workman v. Commonwealth, 272 Va. 633, 644-45, 636 S.E.2d 368,

374 (2006)(quoting Strickler, 527 U.S. at 281-82)(citations and

internal quotation marks omitted).   We also have recognized that

“[t]he question is not whether the defendant would more likely

than not have received a different verdict with the evidence,

but whether in its absence he received a fair trial, understood

as a trial resulting in a verdict worthy of confidence.”     Id.

(quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)).   A

reviewing court must determine whether the withheld favorable

evidence “could reasonably be taken to put the whole case in

such a different light as to undermine confidence in the

verdict,” Strickler, 527 U.S. at 290 (citation and internal

quotation marks omitted); that is, whether such evidence was

material.

     Hicks bases his Brady claim on statements contained in an

affidavit executed by Roscoe in which Roscoe stated that he gave

a recorded statement to the investigating detective indicating

that the gun, shoes, coat and mask were his and that no one else

touched or used the items and that as a result, it was not

possible that the items could have been used in the crimes.

Hicks argues that this statement was exculpatory because it

“proves that only Larry Roscoe could have committed [the Open

House Diner crimes]” and “had [the jury] known of Roscoe’s

                               14
statement, they would never have found” Hicks guilty beyond a

reasonable doubt.   Taking Hicks’ allegations as true, Morris v.

Smyth, 202 Va. 832, 833, 120 S.E.2d 465, 466 (1961), we

acknowledge that the information in Roscoe’s affidavit, on its

face, is exculpatory.   While the Commonwealth raises some

question about the existence of a recorded statement, for

purposes of this analysis we will assume that Roscoe’s recorded

statement exists, contains the statements alleged by Hicks and

that the Commonwealth failed to disclose it.   With those

assumptions, the final question remains whether the allegedly

nondisclosed evidence was material.

     In determining materiality we are guided by the following

principles:

     [A] showing of materiality does not require
     demonstration by a preponderance that disclosure of
     the suppressed evidence would have resulted
     ultimately in the defendant's acquittal (whether
     based on the presence of reasonable doubt or
     acceptance of an explanation for the crime that
     does not inculpate the defendant). Second,
     materiality is not a sufficiency of the evidence
     test. A defendant need not demonstrate that after
     discounting the inculpatory evidence in light of
     the undisclosed evidence, there would not have been
     enough left to convict. Third, a harmless error
     analysis is unnecessary once materiality has been
     determined. Fourth, suppressed evidence must be
     considered collectively, not item by item.

Workman, 272 Va. at 645, 636 S.E.2d at 375 (internal quotation

marks, alterations, and citations omitted).

                                15
     Applying these factors to the evidence in this case, which

includes transcripts from Hicks’ criminal trial, we cannot

conclude that the suppression of Roscoe’s statement undermines

confidence in the outcome of Hicks’ trial.    At his jury trial

for the Open House Diner crimes, Hicks testified that he pled

guilty to committing the December 29, 1999 pizza delivery

robbery and carjacking crimes, which occurred only hours before

the Open House Diner crimes.   Hicks testified that he wore a

mask and used Roscoe’s gun in the commission of those crimes.

There was no dispute at Hicks’ trial that the gun recovered at

Hicks’ residence belonged to Roscoe and that Roscoe’s gun was

the weapon used to murder Officer Bailey.    Hicks’ trial

testimony conclusively established that Hicks not only had

access to the murder weapon – Roscoe’s gun – but also that he

had actual possession and control of it just hours before the

murder of Officer Bailey.   Hicks’ own testimony and the forensic

evidence presented to the jury at trial is inconsistent with

Roscoe’s statements.

     Furthermore, Hicks also testified that Roscoe did not

commit the Open House Diner crimes because another man, known

only as “Moe,” committed the crimes.

     The jury also heard Hicks’ recorded confession to the Open

House Diner crimes, as given to the investigating officers.

                                16
Although Hicks argued at trial that the confession was coerced,

the verdict demonstrates that the jury did not find Hicks’

coercion claim credible.

     Based on this record, the allegedly withheld evidence could

not reasonably be taken “to put the whole case in such a

different light” that confidence in the guilty verdict is

undermined.    Strickler, 527 U.S. at 290; Kyles, 514 U.S. at 434.

Therefore, we hold that such evidence was not material.    Because

the allegedly nondisclosed evidence was not material, Hicks

fails to establish that he was prejudiced and, therefore, has

failed to prove a necessary component to his Brady claim.

Consequently, the failure to apply the ends of justice exception

would not result in a grave injustice to Hicks, and we will not

apply the ends of justice exception to Rule 5:25 in this case.

     In light of our holding that the tolling provision of Code

§ 8.01-229(D) is applicable to the limitations period in Code §

8.01-654(A)(2), we need not address Hicks’ third assignment of

error.

                             CONCLUSION

     For the reasons stated, we will affirm the judgment of the

trial court.

                                                           Affirmed.




                                 17
