UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JEFFREY S. ADKINS,
Petitioner-Appellant,

v.
                                                                         No. 95-6103
ATTORNEY GENERAL OF THE
COMMONWEALTH OF VIRGINIA;
EDWARD W. MURRAY,
Respondents-Appellees.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James H. Michael, Jr., Senior District Judge.
(CA-93-215-R)

Argued: June 3, 1996

Decided: September 24, 1996

Before WIDENER, WILKINS, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Philip Joseph Walsh, BROMLEY, GREENE & WALSH,
Falls Church, Virginia, for Appellant. Robert H. Anderson, III, Assis-
tant Attorney General, OFFICE OF THE ATTORNEY GENERAL,
Richmond, Virginia, for Appellees. ON BRIEF: James F. Bromley,
BROMLEY, GREENE & WALSH, Falls Church, Virginia, for
Appellant. James S. Gilmore, III, Attorney General, OFFICE OF THE
ATTORNEY GENERAL, Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Jeffrey S. Adkins appeals from the district court's denial of his
petition for writ of habeas corpus. On appeal Adkins argues that the
district court incorrectly determined that Clark v. Commonwealth, 353
S.E.2d 790 (Va. Ct. App. 1987), does not apply to the facts of his
case. Because we agree that Clark does not apply, we affirm.

I.

Adkins was arrested on October 3, 1989, for ten offenses arising
out of allegations that he (while armed) broke into a cabin, robbed the
two couples staying there, and sexually assaulted the women. At a
preliminary hearing on December 7, 1989, probable cause was found
on the ten charges in the arrest warrant,1 and the case was submitted
to a grand jury. On January 22, 1990, the grand jury returned a
sixteen-count indictment against Adkins. The indictment included the
ten counts that were the subject of the December 7 preliminary hear-
ing and six additional counts that are the subject of this appeal.2

On May 31, 1990, a jury tried and convicted Adkins on the six
counts that are the subject of this appeal, and he was sentenced to a
term of two life sentences plus forty-five years. On June 15, 1990,
Adkins was tried and convicted on the remaining ten counts.

The Virginia Court of Appeals reversed and dismissed the ten
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1 These charges were robbery (four counts), breaking and entering (one
count), use of a firearm during the commission of a felony (four counts),
and sodomy by force (one count).
2 The six counts that are the subject of this appeal are abduction (four
counts), aggravated sexual battery (one count), and wearing a mask dur-
ing the commission of a felony (one count).

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counts of conviction from the June 15 trial based upon a violation of
Adkins' statutory right to a speedy trial.3 The court noted in its opin-
ion that Adkins did not contest his convictions for the six crimes from
the separate May 31 trial. Adkins v. Commonwealth, 414 S.E.2d 188,
188 n.1 (Va. Ct. App. 1992).

On March 19, 1993, Adkins filed a petition for writ of habeas cor-
pus in the Roanoke Division of the Western District of Virginia. See
28 U.S.C. § 2254. Judge Kiser dismissed most of Adkins' petition and
transferred the case to the Charlottesville Division where it came
before Judge Michael. The principal claim remaining in Adkins' peti-
tion was the one for ineffective assistance of counsel. Adkins argued
that his counsel rendered ineffective assistance by failing to address
Clark v. Commonwealth, 353 S.E.2d 790 (Va. Ct. App. 1987), on
Adkins' direct appeal to the Virginia Court of Appeals. In Clark the
Virginia Court of Appeals said that "if a defendant is not brought to
trial within the required time, he should be discharged from any future
prosecution `for the offense charged and for any other offense
required to be joined with that offense.'" 353 S.E.2d at 791 (citation
omitted). Adkins contended that the six convictions now at issue
arose out of the same criminal episode as the other ten convictions
already dismissed by the Court of Appeals on speedy trial grounds.
Therefore, Adkins claimed that his counsel was ineffective for failing
to argue for reversal of his convictions on all sixteen counts as viola-
tive of the speedy trial act.

Judge Michael concluded that Clark does not apply to the facts of
Adkins' case and therefore held that he suffered no prejudice from his
counsel's failure to raise Clark. Accordingly, Adkins' petition was
dismissed, and this appeal followed.
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3 The statutory provision governing speedy trials in Virginia provides
that a defendant in custody must be tried within five months from the
date of a finding "that there is probable cause to believe that the accused
has committed a felony." See Va. Code Ann. § 19.2-243. Probable cause
for the ten counts of conviction that were reversed was found at the pre-
liminary hearing on December 7, 1989. Thus, a trial was required by
May 7, 1990, over a month before the trial began. Probable cause for the
remaining six counts was found by the grand jury on January 22, 1990,
requiring commencement of trial by June 22. As noted, trial on the six
counts occurred on May 31.

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II.

On appeal Adkins argues, as he did below, that his counsel ren-
dered ineffective assistance by failing to address Clark before the Vir-
ginia Court of Appeals. To demonstrate ineffective assistance of
counsel, a petitioner must show (1) deficient performance and (2)
resulting prejudice. See Strickland v. Washington, 466 U.S. 668, 693
(1984). If Clark does not apply to Adkins' case, his ineffective assis-
tance claim must fail because he would be unable to demonstrate prej-
udice. We hold that Clark does not apply to Adkins' case.

In Clark the defendant was charged with attempted robbery, use of
a firearm, and unlawfully wearing a mask. The indictments were later
dismissed because the Commonwealth failed to bring the defendant
to trial within five months as required by Virginia's speedy trial act.
In the month following dismissal, the Commonwealth indicted the
defendant for conspiracy to commit the three substantive offenses
which had been dismissed. The defendant claimed that the speedy
trial act also barred prosecution of the conspiracy charge. Clark, 353
S.E.2d at 791. The court in Clark held that"the discharge from prose-
cution for the substantive offenses also bars the Commonwealth from
prosecuting the defendant for conspiracy charges based on the same
offenses . . . ." Id. at 792.

Adkins argues that Clark applies to his case because it must be read
broadly to mean that:

         If the offenses which a defendant is charged with are "re-
         lated" in a manner that satisfies [Supreme Court of Virginia]
         Rule 3A:6(b), the defendant's right to a speedy trial requires
         that if one or more of the offenses is dismissed on the
         ground of denial of a speedy trial, the other "related"
         offenses must also be dismissed for the same reason. 4
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4 Rule 3A:6(b) of the Rules of the Supreme Court of Virginia provides:

           Joinder of Offenses. -- Two or more offenses, any of which
          may be a felony or misdemeanor, may be charged in separate
          counts of an indictment or information if the offenses are based
          on the same act or transaction, or on two or more acts or transac-
          tions that are connected or constitute parts of a common scheme
          or plan.

(Emphasis added.)

                    4
Reply Br. of Appellant at 5.

We need not decide here how broadly Clark might be read, but we
can say that Clark does not reach so far as to apply to the facts of
Adkins' case. We believe that the thrust of Clark is to prevent a pros-
ecutor "from `circumvent[ing] speedy trial' requirements by unduly
delaying trial on one charge and subsequently proceeding on another
closely related charge . . . .'" 353 S.E.2d at 791 (quoting 2 ABA
Standards of Criminal Justice § 12-4.1 at 12.45 (2d ed. 1980)). Here,
the prosecutor was not attempting a second bite at the apple, nor was
he attempting to circumvent the speedy trial requirements. Adkins
was indicted on the six counts at issue here only six weeks after prob-
able cause was found on the first ten charges. He was tried and con-
victed on the six charges within five months as required by the speedy
trial act. His trial on the remaining ten charges (that were ultimately
dismissed) followed two weeks later. Under these circumstances, we
cannot conclude that the prosecutor was attempting to circumvent the
speedy trial requirements. Accordingly, we hold that Clark does not
extend to Adkins' case.

Because Clark is inapplicable to Adkins' case, Adkins was not
prejudiced by his counsel's failure to argue Clark to the Virginia
Court of Appeals. Adkins' ineffective assistance claim must therefore
fail, and the judgment of the district court is affirmed.5

AFFIRMED




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5 We have considered Adkins' other arguments and find them to be
without merit.

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