VIRGINIA:

      In the Supreme Court of Virginia Held at the Supreme Court
Building in the City of Richmond on Friday, the 16th day of January,
2004.

Daniel E. Hines,                                           Appellant,

 Against     Record No. 022678
             Circuit Court No. 00-7969

John R. Kuplinski, Administrator
 of Virginia Peninsula Regional Jail,                      Appellee.

          Upon an appeal from a judgment rendered by the Circuit
     Court of York County.


     Upon consideration of the record, briefs, and argument of

counsel, the Court is of opinion that there is no error in the

judgment of the circuit court dismissing Daniel E. Hines' petition

for a writ of habeas corpus because it was not filed within the

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

     On December 5, 1994, the Circuit Court of York County entered

final judgment convicting Hines of rape in violation of Code § 18.2-

61 and imposing a ten-year suspended sentence. Hines did not appeal

that judgment.   On June 15, 2000, Hines filed a petition for a writ
of habeas corpus claiming that he was denied effective assistance of

counsel because his trial attorneys erroneously told him that he

could challenge his conviction on the basis of newly discovered

evidence at any time in the future.   The Commonwealth filed a motion

to dismiss the petition because it was not filed within the two-year

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

circuit court sustained the Commonwealth's motion and dismissed the

petition.

     Code § 8.01-654(A)(2) 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 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, Art. I, § 9 of the

Constitution of Virginia, because he was not able to discover the

basis for his claims of ineffective assistance of counsel within

the time period provided for filing a petition. 1

     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

Code § 8.01-654(A)(2).

     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


     1
       Article I, § 9 states: "[T]he privilege of the writ of
habeas corpus shall not be suspended unless when, in cases of
invasion or rebellion, the public safety may require."
                                  2
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 Hines' petition for habeas corpus

occurred because he did not seek to take any action on that

information until 1999.

       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

       2
           Rule 1:1 requires that a challenge to a final judgment be

                                      3
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 Code § 8.01-654(A)(2).    Hines knew of the witnesses and the

substance of their testimony no later than May 1995.    Had Hines

taken any action to seek to establish his innocence in a new trial

based on this information at that time, he would have discovered

his trial counsels' alleged error well within two years of his

December 5, 1994 conviction for rape.    Counsels' allegedly

erroneous advice cannot serve to excuse Hines' delay in seeking

exoneration when the basis for such exoneration was known to him.

        Because the record does not support Hines' assertion that he

could not have discovered the grounds for his claim of habeas




brought within 21 days after the entry of the judgment.
                                  4
corpus within the period established by Code § 8.01-654(A)(2), we

need not address Hines' constitutional argument.

     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




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