PRESENT: Lacy, Keenan, Koontz, Kinser, and Lemons, JJ., and 

Carrico1 and Compton, S.JJ. 

DERRICK GEORGE HENRY 

v. Record No. 021542 OPINION BY JUSTICE ELIZABETH B. LACY 

 February 28, 2003 

WARDEN, RIVERSIDE REGIONAL JAIL 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Learned D. Barry, Judge 

 Derrick George Henry was convicted of possession of cocaine 

with intent to distribute in violation of Code § 18.2-248. 

Henry's conviction was affirmed by the Court of Appeals. Henry 

v. Commonwealth, 32 Va. App. 547, 529 S.E.2d 796 (2000). This 

Court denied Henry's petition for appeal by order on October 26, 

2000.2

 Henry filed a petition for a writ of habeas corpus in the 

trial court asserting that he was illegally detained because his 

detention was based on "evidence that was seized pursuant to a 

search warrant that was illegally executed by means of a 'no 

knock' entry." The trial court granted the Commonwealth's 

motion to dismiss the petition. We awarded Henry an appeal and, 

because we conclude that the issue raised by Henry in this 

 1

 Chief Justice Carrico presided and participated in the 

hearing and decision of this case prior to the effective date of 

his retirement on January 31, 2003. 

2

 Henry's first petition for appeal to the Court of Appeals 

was dismissed for failure to file a transcript. Pursuant to a 

previous petition for a writ of habeas corpus, he was granted a 

belated appeal.
habeas corpus petition was decided on direct appeal, we will 

affirm the judgment of the trial court. 

 The facts relevant to this appeal as recited by the Court 

of Appeals are as follows. On February 12, 1997, five police 

officers went to serve a search warrant for an apartment in 

Richmond. As the officers approached the front porch, they saw 

two men, Manuel and Hawkins, coming out the front door. Id. at 

550, 529 S.E.2d at 798. Two officers pursued and apprehended 

Manuel. As Hawkins was closing the door to the apartment, the 

other officers " 'started announcing' their identity and 

purpose." Id. Immediately after Hawkins closed the door, 

another officer turned the knob and found that the door was 

unlocked. At that point, two officers entered the apartment 

"yelling, 'search warrant, police, everybody down.' " Id.

 Contemporaneously, Officer Payne attempted to stop Hawkins 

on the front porch. Id. When Hawkins refused to stop, a 

struggle between the two men ensued in the front yard. Id. 

According to Officer Payne, "the noise outside was so loud that 

officers in a marked unit a block or two away 'heard us yelling' 

and 'came to our assistance.' " Id. at 551, 529 S.E.2d at 798. 

Thereafter, the officers arrested Henry, who was found in the 

apartment. 

 In this appeal, Henry asserts, as he did in the trial 

court, that the "no-knock" search was not justified because, 

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inter alia, there was no evidence that the occupants of the 

apartment were aware of the officers' presence and no evidence 

that they would have attempted to escape or destroy evidence. 

Therefore, Henry argues, there was an insufficient basis for the 

officers reasonably to have believed that knocking and 

announcing their entry would have been dangerous or futile and 

that the loud disturbance in the front yard of the apartment was 

"simply not sufficient to serve as a basis for a reasonable 

suspicion." 

 This issue was the very issue decided by both the trial 

court, and the Court of Appeals in Henry's direct appeal of his 

conviction. The Court of Appeals specifically opined that 

 [b]ased on the loud disturbance taking place in 

front of appellant's residence and the fact that 

three of the five officers were involved in 

apprehending two recalcitrant suspects outside the 

premises to be searched, we find the Commonwealth 

sufficiently established that the officers had a 

reasonable suspicion that knocking and announcing 

their presence would be dangerous or futile. 

Id. at 553, 529 S.E.2d at 799. 

 We have held that a claim that could have been raised at 

the criminal trial or on direct appeal is not cognizable in 

habeas corpus because to do so would circumvent the trial and 

appellate process for non-jurisdictional defects. Slayton v. 

Parrigan, 215 Va. 27, 30, 205 S.E.2d 680, 682 (1974). In Hawks 

v. Cox, 211 Va. 91, 175 S.E.2d 271 (1970), the petitioner raised 

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issues that had been addressed and resolved in the petitioner's 

previous petitions for habeas corpus. We held that, "[a]bsent a 

change of circumstances, previous determination of the issues by 

either state or federal courts will be conclusive." Id. at 95, 

175 S.E.2d at 274. The natural corollary to these decisions is 

that a non-jurisdictional issue raised and decided either in the 

trial or on direct appeal from the criminal conviction will not 

be considered in a habeas corpus proceeding. 

 Therefore, we will affirm the judgment of the trial court 

dismissing Henry's petition for a writ of habeas corpus because 

the issue raised by the petition was addressed and resolved in 

the trial and direct appeal of his criminal conviction and, 

therefore, is not cognizable in a habeas corpus proceeding.3

Affirmed.

 3

 To the extent Henry is raising a "new" claim by arguing 

that the police officers "created" the exigent circumstances and 

therefore the no-knock entry was improper, that claim is barred 

under the holding in Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 

680 (1974). 

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