dismissing habeas appeal because notice of appeal was not filed within mandatory 30-day period after circuit court's final orderSummary of this case from Perkins v. Clarke
44866 No. 0142-85
Argued June 18, 1985
Decided November 19, 1985
(1) Court of Appeals — Notice of Appeal — Filing. — Rule 5A:6(a) provides that a notice of appeal must be filed with the clerk of the trial court and a copy sent to opposing counsel and the clerk of the Court of Appeals within 30 days after the entry of final judgment or other appealable order or decree.
(2) Court of Appeals — Notice of Appeal — Filing. — The times prescribed for filing the notice of appeal are mandatory and apply to habeas corpus petitioners.
Frank Williams, for appellant.
Russell C. Williams, Assistant Attorney General (Gerald L. Baliles, Attorney General of Virginia, on brief), for appellee.
Appellant appealed the order of the circuit court which had dismissed his petition for a writ of habeas corpus. The circuit court ruled that allegations of fact upon which he relied were known to him at the time he filed previous petitions challenging his conviction and that his present petition, therefore, should be dismissed pursuant to Code Sec. 8.01-654(B)(2). On appeal, the Commonwealth argued that the appeal should be dismissed because the appellant failed to timely file a notice of appeal (Circuit Court for the City of Richmond, William E. Spain, Judge Designate).
The Court of Appeals dismissed the appeal. The Court held that since appellant failed to timely file his notice of appeal, the appeal must be dismissed.
Appellant, Frank Williams, appeals pro se from a decision of the Circuit Court for the City of Richmond dismissing his habeas corpus petition pursuant to Code Sec. 8.01-654(B)(2) on the ground that the allegation of facts upon which petitioner relied were known to him when he filed previous petitions. The Commonwealth claims the appeal must be dismissed because Williams failed to timely file the notice of appeal in accordance with our rules. We agree.
(1) Williams' petition was dismissed in the Circuit Court for the City of Richmond on November 29, 1984. Williams filed his notice of appeal dated January 5, 1985, with the Circuit Court Clerk for the City of Richmond on January 8, 1985. A copy of that notice was not filed with the clerk of the Court of Appeals until February 4, 1985. Rule 5A:6(a) provides:
No appeal shall be allowed unless, within 30 days after entry of final judgment or other appealable order or decree, counsel files with the clerk of the trial court a notice of appeal, and at the same time mails or delivers a copy of such notice to all opposing counsel and the clerk of the Court of Appeals.
Rule 5A:3 provides: "The times prescribed for filing the notice of appeal (Rule 5A:6 . . .) . . . are mandatory."
(2) Habeas corpus petitioners must follow the rules of court just as all other parties desiring an appeal. Meade v. Cox, 310 F. Supp. 233, 239 (W.D. Va. 1970), aff'd, 438 F.2d 323 (4th Cir.), cert. denied, 404 U.S. 910 (1971). Therefore, for failure to timely file the notice of appeal, the appeal is dismissed.
Duff, J., and Hodges, J., concurred.