Case No. CL19-7159
Liam A. Curry Assistant Attorney General Virginia State Bar No. 87438 OFFICE OF THE ATTORNEY GENERAL Criminal Litigation Section 202 North 9th Street Richmond, Virginia 23219 (804) 786-2071 Phone (804) 371-0151 Fax firstname.lastname@example.org
Upon mature consideration of Petitioner's Motion to Set-Aside a Void Judgment, respondent's Motion to Dismiss, and Petitioner's Reply to Respondent's Motion to Dismiss, controlling legal authority and a review of the record, the Court dismisses petitioner's "Motion to Set Aside a Void Conviction" for the following reasons:
Tyrone Wheatley is challenging his May 17, 2002 convictions in this Court for second degree murder (CR01-1628-00) and illegal use of a firearm (CR01-1628-01). This Court sentenced Wheatley to a total of thirty-three years in prison with fifteen years suspended. The Court of Appeals of Virginia denied Wheatley's petition for appeal on September 26, 2002. (Record No. 1418-02-1). Wheatley's appeal to the Supreme Court of Virginia was refused on March 13, 2003. (Record No. 022307).
Wheatley was also convicted of malicious wounding, abduction, conspiracy and two counts of illegal use of a firearm. Case Nos. CR01-4964-00 through -04. He was sentenced to a total of twenty-five years in prison. His motion does not challenge the validity of these convictions. --------
On April 25, 2002, Wheatley executed a state habeas petition, which this Court dismissed on September 5, 2002. (CL02-1087 and CL02-1095). He did not appeal to the Supreme Court of Virginia. Wheatley executed a federal habeas petition on December 2, 2003, which the federal district court dismissed on December 23, 2004. (Civil Action No. 1:03cv1565). Wheatley did not appeal to the United States Court of Appeals for the Fourth Circuit. Wheatley executed a second state habeas petition on January 25, 2005, which he filed in the Virginia Supreme Court. The Supreme Court dismissed the petition as untimely on March 10, 2005, citing Code § 8.01-654(A)(2). Wheatley's petition for a rehearing was denied on April 29, 2005. (Record No. 050292).
On March 19, 2013, Wheatley filed a "Motion to Void Judgment and Demand for Dismissal" in this Court. By order entered April 22, 2013, this Court denied and dismissed his motion as untimely, citing Code § 8.01-428(D). (CL13002384-00).
On or around July 18, 2019, Wheatley filed a "Motion to Set Aside a Void Judgment" in this Court. In support thereof, he alleges that counsel's "conduct prevented a fair submission of the controversy to the court — resulting in extrinsic fraud when he fraudulently pretended to represent Wheatley and connived at his defeat." Pet. at 5. This general claim contains the following specific allegations of ineffective assistance of counsel.
A. Counsel "failed to challenge venue in a pre-trial motion."
B. Counsel "failed to make an adequate investigation when he did not hire a Forensic Pathologist."
C. Counsel "failed to move to withdraw Wheatley's guilty plea after the court could not determine where the victim died."
Rule 1:1(a) provides that final judgments, orders, and decrees remain under the trial court's control for twenty-one days after entry, and no longer. At the expiration of that twenty-one day period, the trial court loses jurisdiction to disturb a final judgment, order, or decree except for the limited authority conferred by Code § 8.01-428. See In Re: Department of Corrections, 222 Va. 454, 463-64, 281 S.E.2d 857, 862 (1981).
Virginia Code § 8.01-428 provides:
A. Default judgments and decrees pro confesso; summary procedure. Upon motion of the plaintiff or judgment debtor and after reasonable notice to the opposite party, his attorney of record or other agent, the court may set aside a judgment by default or a decree pro confesso upon the following grounds: (i) fraud on the court, (ii) a void judgment, (iii) on proof of an accord and satisfaction, or (iv) on proof that the defendant was, at the time of service of process or entry of judgment, a servicemember as defined in 50 U.S.C. § 3911. Such motion on the ground of fraud on the court shall be made within two years from the date of the judgment or decree.
* * *
D. Other judgments or proceedings. This section does not limit the power of the court to entertain at any time an independent action to relieve a party from any judgment or proceeding, or to grant relief to a defendant not served with process as provided in § 8.01-322, or to set aside a judgment or decree for fraud upon the court.
There are strong policy reasons favoring certainty of results in judicial proceedings. Accordingly, we attach a high degree of finality to judgments, whether obtained by default or otherwise. Rule 1:1 implements that policy, and we apply it rigorously, unless a statute creates a clear exception to its operation. For the same reason, we have consistently construed Code § 8.01-428 and its predecessors, which create exceptions to the finality of judgments, narrowly.Id. (Citations omitted).
An otherwise final judgment is subject to collateral attack if secured by extrinsic fraud. Extrinsic fraud "consists of 'conduct which prevents a fair submission of the controversy to the court' and, therefore, renders the results of the proceeding null and void." Peet v. Peet, 16 Va. App. 323, 326-27, 429 S.E.2d 487, 490 (1993) (citing Jones v. Willard, 224 Va. 602, 607, 299 S.E.2d 504, 508 (1983)). When extrinsic fraud exists, "the unsuccessful party is really prevented, by the fraudulent contrivance of his adversary, from having a trial [of the issue] . . . .'" McClung v. Folks, 126 Va. 259, 270, 101 S.E. 345, 348 (1919). "A collateral challenge to a judgment obtained by extrinsic fraud is allowed because such fraud perverts the judicial processes and prevents the court or non-defrauding party from discovering the fraud through the regular adversarial process." Peet, 16 Va. App. at 327, 429 S.E.2d at 490. Examples of extrinsic fraud include: "[k]eeping the unsuccessful party away from the court by a false promise of a compromise, or purposely keeping him in ignorance of the suit; or where an attorney fraudulently pretends to represent a party, and connives at his defeat; or being regularly employed, corruptly sells out his client's interest." McClung v. Folks, 126 Va. at 270, 101 S.E. at 348. In contrast, "[t]he judgment of a court, procured by intrinsic fraud, i.e., by perjury, forged documents, or other incidents of trial related to issues material to the judgment, is voidable by direct attack at any time before the judgment becomes final." Jones v. Willard, 224 Va. 602, 607, 299 S.E.2d 504, 508 (1983).
"'The charge of fraud is one easily made and viewed with skepticism. The burden is upon the party alleging it to establish its existence, not by doubtful and inconclusive evidence, but clearly and conclusively. Fraud cannot be presumed.'" Aviles v. Aviles, 14 Va. App. 360, 366, 416 S.E.2d 716, 719 (1992) (citation omitted). "The mischief of retrying every case in which the judgment or decree rendered on false testimony, given by perjured witnesses, or on contracts or documents whose genuineness or validity was an issue, and which are afterward ascertained to be forged or fraudulent, would be greater, by reason of the endless nature of the strife, than any compensation arising from doing justice in individual cases." McClung v. Folks, 126 Va. at 271, 101 S.E. at 348. Thus, the party alleging fraud "has the burden of proving '(1) a false representation, (2) of a material fact, (3) made intentionally and knowingly, (4) with intent to mislead, (5) reliance by the party misled, and (6) resulting damage to the party misled.'" Batrouny v. Batrouny, 13 Va. App. 441, 443, 412 S.E.2d 721, 723 (1991) (quoting Winn v. Aleda Constr. Co., 227 Va. 304, 308, 315 S.E.2d 193, 195 (1984)); see also Jennings v. Jennings, 26 Va. App. 530, 495 S.E.2d 544 (1998) (in seeking to set aside the court's conviction order, it is petitioner's burden to prove fraud by clear and convincing evidence).
This Court Lacks Jurisdiction to Set Aside Wheatley's Convictions
The Court finds that it is without jurisdiction to vacate Wheatley's convictions under Rule 1:1 because the claims raised in the instant motion do not allege misconduct that tampered with the judiciary's machinery and subverted the integrity of the court itself. See McClung v. Folks, 126 Va. at 270, 101 S.E. at 348. The Court finds that the acts about which Wheatley complains - that counsel failed to challenge venue, failed to hire a forensic pathologist, and failed to move to withdraw his guilty pleas - do not demonstrate that he was kept away from the court or that counsel fraudulently pretended to represent Wheatley, as required to state a claim of extrinsic fraud. Instead, the Court finds that Wheatley's motion relies upon facts known to him at the time he entered his plea and at sentencing. The Court finds, therefore, that his motion fails to state a claim of extrinsic fraud upon which relief could be granted under Code § 8.01-428(D).
The Court also finds Wheatley has not alleged facts that would suggest that his attorney colluded with the prosecution or connived to his defeat in any way. Contrary to his claims, the record reflects that Wheatley entered knowing, intelligent, and voluntary guilty pleas pursuant to a plea agreement in the trial court. In that plea agreement, Wheatley asserted that he was "entirely satisfied" with the services of his attorney and that he decided for himself to plead guilty because he was, in fact, guilty of the crimes charged. The Court finds that Wheatley's representations that he was pleading guilty because he was in fact guilty of the crimes charged and that he was entirely satisfied with the services of his attorney belie his claims that counsel was conniving to his defeat. In addition, the Court finds that Wheatley has failed to offer a valid reason why he should he permitted to controvert his prior statements that he made under oath. See Anderson v. Warden, 222 Va. 511, 516, 281 S.E.2d 885, 888 (1981) (holding that "the truth and accuracy of the defendant's representations as to the voluntariness of his guilty plea and the adequacy of his counsel "will be considered conclusively established by the trial proceedings, unless the prisoner offers a valid reason why he should be permitted to controvert his prior statements"). Because Wheatley's allegations do not satisfy the requirements of extrinsic fraud, his motion to set aside a void judgment is denied. See Peet, 16 Va. App. at 327, 429 S.E.2d at 490.
To the extent that Wheatley intended to file a petition for writ of habeas corpus, the Court finds that his petition is both time barred and successive. This Court entered the order of final judgment in Wheatley's criminal matters on May 17, 2002, and his criminal appeal became final on March 13, 2013. Thus, the Court finds that any habeas petition would now be barred by the statute of limitations. See Va. Code § 8.01-654(A)(2) (habeas must be filed within two years 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). In addition, the Court finds that Wheatley knew the facts of these claims when he filed his first two habeas petitions, but did not raise these specific claims in his prior petitions for a writ of habeas corpus. "No writ shall be granted on the basis of any allegation the facts' of which petitioner had knowledge at the time of filing any previous petition." Va. Code § 8.01-654 (B)(2); Dorsey v. Angelone, 261 Va. 601, 604, 544 S.E.2d 350, 352 (2001). The Court finds that Wheatley is not entitled to raise claims he failed to properly raise in those contexts in a motion to vacate.
None of Wheatley's claims involve extrinsic fraud. Accordingly, the Court finds that this action is not reviewable under Rule 1:1(a) and is dismissed on that ground. The Court finds that the record is sufficient and no hearing is necessary to determine this case.
The Court thus is of the opinion that the motion to vacate should be denied and dismissed; it is therefore
ADJUDGED and ORDERED that the motion to vacate be, and is hereby, denied and dismissed.
It is further ORDERED that Wheatley's endorsement on this Order is dispensed with pursuant to Rule 1:13 of the Supreme Court of Virginia.
The Clerk is directed to forward a certified copy of this Order to the movant, Tyrone Wheatley, and Liam A. Curry, Assistant Attorney General, counsel for the respondent.
Entered this 4th day of November, 2019
Mary Jane Hall
Judge I ask for this: /s/_________
Liam A. Curry
Assistant Attorney General
Virginia State Bar No. 87438
OFFICE OF THE ATTORNEY GENERAL
Criminal Litigation Section
202 North 9th Street
Richmond, Virginia 23219
(804) 786-2071 Phone
(804) 371-0151 Fax