Williams v. Landon

336 S.E.2d 907 (1985)

Frank WILLIAMS
v.
Robert N. LANDON, Dir., Department of Corrections, State of Virginia.

Record No. 0142-85.

Court of Appeals of Virginia.

Argued June 18, 1985. Decided November 19, 1985.

Frank Williams, pro se.

Russell C. Williams, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen. of Virginia, on brief), for appellee.

Present: DUFF, HODGES, and MOON, JJ.

MOON, Judge.

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 § 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.

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."

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, 92 S.Ct. 234, 30 L.Ed.2d 182 (1971). Therefore, for failure to timely file the notice of appeal, the appeal is dismissed.

Dismissed.