## Facts

- In 1970, Sherman Brown was convicted of murdering a four-year-old child; a jury sentenced him to death, and the conviction was affirmed on direct review.
- After the death penalty was vacated in the wake of *Furman v. Georgia*, Brown was resentenced in 1973 to life imprisonment.
- Decades later, Brown pursued postconviction relief based on asserted advances in forensic science affecting hair and fiber evidence used at trial and on new DNA testing that he claimed was exculpatory.
- Brown filed a habeas corpus petition in the Supreme Court of Virginia while also pursuing a statutory actual-innocence petition based on biological evidence.
- The warden moved to dismiss the habeas petition as untimely under Virginia Code § 8.01-654(A)(2).
- Brown conceded the petition was outside the statutory limitations period but argued that enforcing the time bar against claims based on newly discovered evidence would violate Article I, § 9 of the Virginia Constitution (the Suspension Clause).

## Issues

1. Whether Brown’s habeas petition was untimely under Virginia Code § 8.01-654(A)(2).
2. Whether applying § 8.01-654(A)(2)’s limitations period to bar Brown’s petition violates the Virginia Constitution’s Suspension Clause (Article I, § 9) when the petition relies on allegedly newly discovered forensic and DNA evidence.

## Decision

- The Supreme Court of Virginia granted the warden’s motion to dismiss and dismissed the habeas petition.
- The Court held the petition was untimely under Virginia Code § 8.01-654(A)(2).
- The Court rejected Brown’s claim that enforcing the limitations period constituted an unconstitutional suspension of the writ of habeas corpus under Article I, § 9 of the Virginia Constitution.

## Legal Principles

- Virginia Code § 8.01-654(A)(2) imposes an enforceable statute of limitations on habeas petitions challenging criminal convictions or sentences.
- A statutory limitation period that regulates the timing of habeas review does not, by itself, amount to a “suspension” of the writ prohibited by Article I, § 9 of the Virginia Constitution.
- The mere assertion that claims depend on newly discovered forensic evidence does not exempt a petitioner from § 8.01-654(A)(2)’s time bar absent an applicable statutory or constitutional basis for avoiding the limitation.

## Conclusion

The Supreme Court of Virginia dismissed Brown’s habeas petition as untimely and held that applying the habeas limitations period in § 8.01-654(A)(2) does not violate the Virginia Constitution’s Suspension Clause, even where the petitioner asserts newly discovered forensic or DNA evidence.


Brown v. Booker, 826 S.E.2d 304 (Va. 2019)