Jenkins v. Director of Virginia Center

Decision Date13 January 2006
Docket NumberRecord No. 050374.
Citation624 S.E.2d 453
CourtVirginia Supreme Court

David B. Hargett (Hargett & Watson, on brief), Richmond, for petitioner

Pamela A. Sargent, Senior Assistant Attorney General (Judith Williams Jagdmann, Attorney General; Frank S. Ferguson, Deputy Attorney General, on brief), for respondent.

Present: All the Justices.



The primary issue that we consider in this habeas corpus proceeding invoking this Court's original jurisdiction is whether petitioner, who was committed to an institution pursuant to Virginia's Sexually Violent Predators Act, is entitled to effective assistance of counsel during the appeal of the civil commitment judgment.


Jim Murrow Jenkins, petitioner, was convicted in the Accomack County Circuit Court in 1994 of one count of forcible sodomy, two counts of aggravated sexual battery, and one count of carnal knowledge. He received a sentence of 10 years, and he was released on parole in October 1999.

Subsequently, Jenkins was convicted of a sexual offense in Maryland and his parole was revoked. He was returned to the custody of the Virginia Department of Corrections.

On October 9, 2003, the Department of Corrections notified the Attorney General that Jenkins qualified for consideration under the Virginia Sexually Violent Predators Act. Petitioner, who was scheduled to be released from prison on October 31, 2003, had scored a four or five on the Rapid Risk Assessment for Sexual Offender Recidivism Test, and he had predicate convictions of one count of forcible sodomy and two counts of aggravated sexual battery.

The Attorney General filed a petition seeking commitment of Jenkins as a sexually violent predator. Pursuant to former Code § 37.1-70.7 that was in effect at the time of petitioner's incarceration, the circuit court was required to conduct a hearing to determine whether there was probable cause to continue to hold Jenkins in prison beyond his scheduled release date, pending the outcome of a trial under the Sexually Violent Predators Act.1 A probable cause hearing was scheduled for October 28, 2003. That morning, Jenkins obtained a shaving razor and mutilated himself by cutting his testicles and flushing them in the toilet.

The Attorney General requested that the circuit court detain Jenkins in prison until the date of the rescheduled probable cause hearing. Jenkins objected, and the court refused to do so. Jenkins was released from custody of the Department of Corrections on October 31, 2003. The circuit court scheduled a probable cause hearing for November 17, 2003, and ordered Jenkins to appear.

Jenkins appeared at the probable cause hearing, and at the conclusion of the Attorney General's evidence, the circuit court ruled that probable cause existed to believe that Jenkins was a sexually violent predator. The circuit court entered an order that placed Jenkins in the custody of the Department of Corrections.

At the conclusion of a trial, the circuit court held that Jenkins was a sexually violent predator and that no lesser restrictive alternative to full commitment existed. Jenkins was placed in the custody of the Commissioner of the Department of Mental Health, Mental Retardation and Substance Abuse Services.

On February 12, 2005, Jenkins filed a notice of appeal from the circuit court's judgment. However, his trial counsel failed to file timely trial transcripts as required by Rule 5:11(a). Consequently, this Court dismissed Jenkins' appeal.

Jenkins filed with the Clerk of this Court a petition for a writ of habeas corpus against the Director of the Virginia Center for Behavioral Rehabilitation. We placed this proceeding on our privileged docket, and we requested that counsel address the question whether petitioner was denied effective assistance of counsel because trial counsel failed to perfect his appeal of the civil commitment order. Additionally, petitioner challenges whether the circuit court had subject matter jurisdiction to commit him as a sexually violent predator because he was not incarcerated at the time of the probable cause hearing held pursuant to former Code § 37.1-70.7.


Former Code § 37.1-103,2 in effect when Jenkins filed his petition of habeas corpus, stated:

"Any person held in custody as mentally ill may by petition for a writ of habeas corpus have the question of the legality of his detention determined by a court of competent jurisdiction. Upon the petition, after notice to the authorities of the hospital or other institution in which such person is confined, the court shall in some courtroom of such county or city, or in some other convenient public place in such county or city determine whether such person is mentally ill and whether he should be detained."

Former Code § 37.1-104,3 in effect when Jenkins filed his petition for writ of habeas corpus, stated:

"If the person mentioned in § 37.1-103 is held in custody and actually confined in any hospital or other institution, he may file his petition in the circuit court of the county or the city in which such hospital or other institution is located or in the circuit court of the county or the city adjoining the county or city in which such hospital or other institution is located."

Former Code § 37.1-104.1,4 also in effect when Jenkins filed his petition for habeas corpus, stated:

"In all cases, other than those provided for in § 37.1-104, the person may file his petition in the circuit court of the county or the city in which he resides, or in which he was certified to be mentally ill, or in which an order was entered authorizing his retention for continued hospitalization, pursuant to Chapter 2, Art. 1 (§ 37.1-63 et seq.) of this title."

Code § 8.01-654 states in relevant part:

"A. 1. The writ of habeas corpus ad subjiciendum shall be granted forthwith by the Supreme Court or any circuit court, to any person who shall apply for the same by petition, showing by affidavits or other evidence probable cause to believe that he is detained without lawful authority.

"2. A petition for writ of habeas corpus ad subjiciendum, other than a petition challenging a criminal conviction or sentence, shall be brought within one year after the cause of action accrues. A habeas corpus petition attacking a criminal conviction or sentence, except as provided in § 8.01-654.1 for cases in which a death sentence has been imposed, 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.

. . . . .

"[B.]2. Such petition shall contain all allegations the facts of which are known to petitioner at the time of filing and such petition shall enumerate all previous applications and their disposition. 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. . . .

"3. Such petition may allege detention without lawful authority through challenge to a conviction, although the sentence imposed for such conviction is suspended or is to be served subsequently to the sentence currently being served by petitioner."

Contrary to the Director's assertions, Jenkins was not required to file his petition for writ of habeas corpus in the circuit court where he was adjudicated as a sexually violent predator. As we have repeatedly stated:

"While in the construction of statutes the constant endeavor of the courts is to ascertain and give effect to the intention of the legislature, that intention must be gathered from the words used, unless a literal construction would involve a manifest absurdity. Where the legislature has used words of a plain and definite import the courts cannot put upon them a construction which amounts to holding the legislature did not mean what it has actually expressed."

Barr v. Town & Country Properties, Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990) (quoting Watkins v. Hall, 161 Va. 924, 930, 172 S.E. 445, 447 (1934)); accord Davis v. Tazewell Place Associates, 254 Va. 257, 260-61, 492 S.E.2d 162, 164 (1997); Abbott v. Willey, 253 Va. 88, 91, 479 S.E.2d 528, 530 (1997).

Applying this basic principle of statutory construction, we hold that Jenkins was entitled to file his petition with the Clerk of this Court. There is simply no language in former Code § 37.1-104 that required Jenkins to file his petition for habeas corpus in the circuit court that adjudicated him as a sexually violent predator. Additionally, Code § 8.01-654, which the Director does not discuss in his brief, authorizes the petitioner to file his petition for writ of habeas corpus in this Court. Code § 8.01-654 also prescribes the statute of limitations and numerous requisites that a habeas corpus petitioner, including Jenkins, must satisfy.


Former Code § 37.1-70.7,5 in effect during Jenkins' sexually violent predator proceedings, stated:

"A. Upon the filing of a petition alleging that a person is a sexually violent predator, the circuit court shall schedule a hearing within thirty days to determine whether probable cause exists to believe that the person named in the petition is a sexually violent predator. A copy of the petition shall be personally served on the person named in the petition, his attorney, and his guardian or committee, if applicable. In addition, a written explanation of the sexually violent predator involuntary commitment process and the statutory protections associated with the process shall be given to the person at the time the petition is served.

"B. Prior to any hearing under this section, the judge shall ascertain if the person whose commitment is sought is represented by counsel, and if he is not represented by counsel, the judge...

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    ...on a court by the litigants and the lack of subject matter jurisdiction may be raised at any time." Jenkins v. Director, Va. Ctr. for Behav. Rehab., 271 Va. 4, 13, 624 S.E.2d 453, 458 (2006) (citations omitted); accord Nelson v. Warden, 262 Va. 276, 281, 552 S.E.2d 73, 75 (2001); Morrison v......
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