Code of Virginia

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Code of Virginia
Title 8.01. Civil Remedies and Procedure
Chapter 25. Extraordinary Writs
6/22/2021

Article 3. Habeas Corpus.

§ 8.01-654. When and where petition filed; what petition to contain.

A. 1. A petition for a writ of habeas corpus ad subjiciendum may be filed in the Supreme Court or any circuit court showing by affidavits or other evidence that the petitioner 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. 1. With respect to any such petition filed by a petitioner whose detention originated under criminal process, and subject to the provisions of subsection C of this section and of § 17.1-310, only the circuit court that entered the original judgment or order resulting in the detention complained of in the petition shall have authority to issue writs of habeas corpus. If a district court entered the original judgment or order resulting in the detention complained of in the petition, only the circuit court for the city or county wherein the district court sits shall have authority to issue writs of habeas corpus. Hearings on such petition, where granted in the circuit court, may be held at any circuit court within the same circuit as the circuit court in which the petition was filed, as designated by the judge thereof.

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. The provisions of this section shall not apply to a petitioner's first petition for a writ of habeas corpus when the sole allegation of such petition is that the petitioner was deprived of the right to pursue an appeal from a final judgment of conviction or probation revocation, except that such petition shall contain all facts pertinent to the denial of appeal that are known to the petitioner at the time of the filing, and such petition shall certify that the petitioner has filed no prior habeas corpus petitions attacking the conviction or probation revocation.

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.

4. In the event the allegations of illegality of the petitioner's detention can be fully determined on the basis of recorded matters, the court may make its determination whether such writ should issue on the basis of the record.

5. The court shall give findings of fact and conclusions of law following a determination on the record or after hearing, to be made a part of the record and transcribed.

6. If petitioner alleges as a ground for illegality of his detention the inadequacy of counsel, he shall be deemed to waive his privilege with respect to communications between such counsel and himself to the extent necessary to permit a full and fair hearing for the alleged ground.

C. 1. With respect to any such petition filed by a petitioner held under the sentence of death, and subject to the provisions of this subsection, the Supreme Court shall have exclusive jurisdiction to consider and award writs of habeas corpus. The circuit court which entered the judgment order setting the sentence of death shall have authority to conduct an evidentiary hearing on such a petition only if directed to do so by order of the Supreme Court.

2. Hearings conducted in a circuit court pursuant to an order issued under the provisions of subdivision 1 of this subsection shall be limited in subject matter to the issues enumerated in the order.

3. The circuit court shall conduct such a hearing within 90 days after the order of the Supreme Court has been received and shall report its findings of fact and recommend conclusions of law to the Supreme Court within 60 days after the conclusion of the hearing. Any objection to the report of the circuit court must be filed in the Supreme Court within 30 days after the report is filed.

Code 1950, § 8-596; 1958, c. 215; 1968, c. 487; 1977, c. 617; 1978, c. 124; 1995, c. 503; 1998, c. 577; 2005, c. 836; 2019, cc. 8, 48.

§ 8.01-654.1. Limitation on consideration of petition filed by prisoner sentenced to death.

No petition for a writ of habeas corpus filed by a prisoner held under a sentence of death shall be considered unless it is filed within sixty days after the earliest of: (i) denial by the United States Supreme Court of a petition for a writ of certiorari to the judgment of the Supreme Court of Virginia on direct appeal, (ii) a decision by the United States Supreme Court affirming imposition of the sentence of death when such decision is in a case resulting from a granted writ of certiorari to the judgment of the Supreme Court of Virginia on direct appeal, or (iii) the expiration of the period for filing a timely petition for certiorari without a petition being filed.

However, notwithstanding the time restrictions otherwise applicable to the filing of a petition for a writ of habeas corpus, an indigent prisoner may file such a petition within 120 days following appointment, made under § 19.2-163.7, of counsel to represent him.

1995, c. 503; 1998, c. 199.

§ 8.01-654.2. Presentation of claim of intellectual disability by person sentenced to death before April 29, 2003.

Notwithstanding any other provision of law, any person under sentence of death whose sentence became final in the circuit court before April 29, 2003, and who desires to have a claim of his intellectual disability presented to the Supreme Court, shall do so by one of the following methods: (i) if the person has not commenced a direct appeal, he shall present his claim of intellectual disability by assignment of error and in his brief in that appeal, or if his direct appeal is pending in the Supreme Court, he shall file a supplemental assignment of error and brief containing his claim of intellectual disability, or (ii) if the person has not filed a petition for a writ of habeas corpus under subsection C of § 8.01-654, he shall present his claim of intellectual disability in a petition for a writ of habeas corpus under such subsection, or if such a petition is pending in the Supreme Court, he shall file an amended petition containing his claim of intellectual disability. A person proceeding under this section shall allege the factual basis for his claim of intellectual disability. The Supreme Court shall consider a claim raised under this section and if it determines that the claim is not frivolous, it shall remand the claim to the circuit court for a determination of intellectual disability; otherwise the Supreme Court shall dismiss the petition. The provisions of §§ 19.2-264.3:1.1 and 19.2-264.3:1.2 shall govern a determination of intellectual disability made pursuant to this section. If the claim is before the Supreme Court on direct appeal and is remanded to the circuit court and the case wherein the sentence of death was imposed was tried by a jury, the circuit court shall empanel a new jury for the sole purpose of making a determination of intellectual disability.

If the person has completed both a direct appeal and a habeas corpus proceeding under subsection C of § 8.01-654, he shall not be entitled to file any further habeas petitions in the Supreme Court and his sole remedy shall lie in federal court.

2003, cc. 1031, 1040; 2017, cc. 86, 212.

§ 8.01-655. Form and contents of petition filed by prisoner.

A. Every petition filed by a prisoner seeking a writ of habeas corpus must be filed on the form set forth in subsection B. The failure to use such form and to comply substantially with such form shall entitle the court to which such petition is directed to return such petition to the prisoner pending the use of and substantial compliance with such form. The petitioner shall be responsible for all statements contained in the petition and any false statement contained therein, if the same be knowingly or wilfully made, shall be a ground for prosecution and conviction of perjury as provided for in § 18.2-434.

B. Every petition filed by a prisoner seeking a writ of habeas corpus shall be filed on a form to be approved and provided by the office of the Attorney General, the contents of which shall be substantially as follows:

IN THE............................................................… COURT

..........................................................................…

Full name and prisonerCase No............................…

number (if any) of(To be supplied by

Petitionerthe Clerk of the

-vs-Court)

..........................................................................…

..........................................................................…

Name and Title of Respondent

PETITION FOR WRIT OF HABEAS CORPUS

Instructions--Read Carefully

In order for this petition to receive consideration by the Court, it must
be legibly handwritten or typewritten, signed by the petitioner and verified
before a notary or other officer authorized to administer oaths. It must set
forth in concise form the answers to each applicable question. If necessary,
petitioner may finish his answer to a particular question on an additional
page. Petitioner must make it clear to which question any such continued
answer refers. The petitioner may also submit exhibits.

Since every petition for habeas corpus must be sworn to under oath, any
false statement of a material fact therein may serve as the basis of
prosecution and conviction for perjury under § 18.2-434. Petitioners should,
therefore, exercise care to assure that all answers are true and correct.

When the petition is completed, the original and two copies (total of

three) should be mailed to the clerk of the court. The petitioner shall keep
one copy.

NOTICE

The granting of a writ of habeas corpus does not entitle the petitioner to
dismissal of the charges for conviction of which he is being detained, but may
gain him no more than a new trial.

..........................................................................…

Place of detention:....................................................…

A. Criminal Trial

1. Name and location of court which imposed the sentence from which you
seek relief:
..........................................................................…
....................................................................…..…

2. The offense or offenses for which sentence was imposed (include
indictment number or numbers if known):
a...................................................................…
b...................................................................…
c...................................................................…

3. The date upon which sentence was imposed and the terms of the sentence:
a...................................................................…
b...................................................................…
c...................................................................…

4. Check which plea you made and whether trial by jury: Plea of guilty:
.......; Plea of not guilty:.......; Trial by jury:......; Trial by judge
without jury:...…

5. The name and address of each attorney, if any, who represented you at
your criminal trial:
..........................................................................…
..........................................................................…
6. Did you appeal the conviction?......................................…
7. If you answered "yes" to 6, state: the result and the date in your
appeal or petition for certiorari:
a...................................................................…
b...................................................................…
citations of the appellate court opinions or orders:
a...................................................................…
b...................................................................…

8. List the name and address of each attorney, if any, who represented you
on your appeal:
..........................................................................…
..........................................................................…

B. Habeas Corpus

9. Before this petition did you file with respect to this conviction any
other petition for habeas corpus in either a State or federal court?......…
10. If you answered "yes" to 9, list with respect to each petition: the
name and location of the court in which each was filed:
a.........................................…......................…
b...................................................................…
the disposition and the date:
a...................................................................…
b...................................................................…
the name and address of each attorney, if any, who represented you on
your habeas corpus:
a...................................................................…
b...................................................................…

11. Did you appeal from the disposition of your petition for habeas corpus?
12. If you answered "yes" to 11, state: the result and the date of each
petition:
a...................................................................…
b...................................................................…
citations of court opinions or orders on your habeas corpus petition:
a...................................................................…
b...................................................................…
the name and address of each attorney, if any, who represented you on
appeal of your habeas corpus:
a...................................................................…
b...................................................................…

C. Other Petitions, Motions or Applications

13. List all other petitions, motions or applications filed with any court
following a final order of conviction and not set out in A or B. Include the
nature of the motion, the name and location of the court, the result, the
date, and citations to opinions or orders. Give the name and address of each
attorney, if any, who represented you.
a...................................................................…
b...................................................................…
c...................................................................…

D. Present Petition

14. State the grounds which make your detention unlawful, including the
facts on which you intend to rely:
a...................................................................…
b............…...................................................…
c...................................................................…
15. List each ground set forth in 14, which has been presented in any other
proceeding:
a...................................................................…
b...................................................................…
c...................................................................…
List the proceedings in which each ground was raised:
a...................................................................…
b...................................................................…
c...................................................................…
16. If any ground set forth in 14 has not been presented to a court, list
each ground and the reason why it was not:
a...................................................................…
b...................................................................…
c...................................................................…

.............................................…

Signature of Petitioner

.............................................…

Address of Petitioner

STATE OF VIRGINIA

CITY/COUNTY OF...................................…

The petitioner being first duly sworn, says:

1. He signed the foregoing petition;

2. The facts stated in the petition are true to the best of his
information and belief.

.............................................…

Signature of Petitioner

Subscribed and sworn to before me

this....… day of........................., 20...…

....................................…
Notary Public

My commission expires:......................…

The petition will not be filed without payment of court costs unless the
petitioner is entitled to proceed in forma pauperis and has executed the
affidavit in forma pauperis.

The petitioner who proceeds in forma pauperis shall be furnished, without
cost, certified copies of the arrest warrants, indictment and order of his
conviction at his criminal trial in order to comply with the instructions of
this petition.

AFFIDAVIT IN FORMA PAUPERIS

STATE OF VIRGINIA

CITY/COUNTY OF.............................…

The petitioner being duly sworn, says:

1. He is unable to pay the costs of this action or give security
therefor;
2. His assets amount to a total of $....................…

.............................................…

Signature of Petitioner

Subscribed and sworn to before me

this....… day of........................., 20...…

....................................…
Notary Public

My commission expires:..................…

Code 1950, § 8-596.1; 1968, c. 359; 1977, c. 617.

§ 8.01-656. Repealed.

Repealed by Acts 2019, cc. 8 and 48, cl. 2.

§ 8.01-658. When and from whom response required; dismissal of habeas petition without prejudice.

A. Except as may be provided in the Rules of Supreme Court of Virginia, no response to a petition for a writ of habeas corpus shall be required except upon an order of the court, directed to the person in whose custody the petitioner is detained or on the person having the immediate or potential custody of him, and made returnable as soon as may be before the court ordering the same.

B. When the petition challenges a criminal conviction or sentence:

1. If the petitioner is in jail, prison, or other actual physical restraint due to the conviction or sentence he is attacking, the named respondent shall be (i) the Director of the Department of Corrections or the warden or superintendent of the state correctional facility where the petitioner is detained if the petitioner has been committed to, or is subject to transfer to, the Department of Corrections or (ii) the sheriff or superintendent of a local or regional jail facility if the petitioner's sentence will be served in such local or regional jail facility.

2. If the petitioner is on probation or parole due to the conviction or sentence he is attacking, the named respondent shall be the probation or parole officer responsible for supervising the applicant or the official in charge of the parole or probation agency.

3. If a petitioner has a suspended sentence and is not under supervision by a probation or parole officer, the respondent shall be (i) the local sheriff if the judgment of conviction the petitioner challenges has a suspended sentence of less than one year or (ii) the Director of the Department of Corrections if the judgment of conviction the petitioner challenges has a suspended sentence of one year or more.

C. The petitioner shall name a proper party respondent, and if he fails to do so, the court may allow amendment of the petition. If the petitioner fails to amend the petition by naming a proper party respondent in the time provided by the court, the court in which the petition is filed shall dismiss the habeas petition without prejudice.

D. If the court in which the petition was filed determines that the petitioner's allegations present a case for the determination of unrecorded matters of fact relating to a previous judicial proceeding in any circuit court, the court may transfer the petition to the circuit court in which such judicial proceeding occurred, or if the petition was filed in the Supreme Court, the Court may require the circuit court in which such judicial proceeding occurred to conduct an evidentiary hearing, in accordance with such procedures as may be set forth in the Rules of Supreme Court of Virginia.

Code 1950, § 8-599; 1977, c. 617; 2015, c. 554; 2019, cc. 8, 48.

§ 8.01-659. Repealed.

Repealed by Acts 2019, cc. 8 and 48, cl. 2.

§ 8.01-660. When affidavits may be read.

In the discretion of the court or judge before whom the petitioner is brought, the affidavits of witnesses taken by either party, on reasonable notice to the other, may be read as evidence.

Code 1950, § 8-601; 1977, c. 617.

§ 8.01-661. Facts proved may be made part of record.

All the material facts proved shall, when it is required by either party, be made a part of the proceedings and entered by the clerk among the records of the court.

Code 1950, § 8-602; 1977, c. 617.

§ 8.01-662. Judgment of court or judge trying it; payment of costs and expenses when petition denied.

After hearing the matter both upon the response and any other evidence, the court shall either discharge or remand the petitioner, grant him any other relief to which he is entitled, or admit him to bail and adjudge the cost of the proceeding, including the charge for transporting the prisoner, provided, however, that if the petition is denied, the costs and expenses of the proceeding and the attorney fees of any attorney appointed to represent the petitioner shall be assessed against the petitioner. If such cost, expenses, and fees are collected, they shall be paid to the Commonwealth.

When relief is granted upon a petition for a writ of habeas corpus, the order granting relief on the writ shall be served on the respondent and the petitioner. Service may, in the court's discretion, be accomplished by personal service or by transmitting a certified copy of the order to the parties via regular or certified mail, a third-party commercial carrier, or electronic delivery.

Code 1950, § 8-603; 1968, c. 482; 1977, c. 617; 2019, cc. 8, 48.

§ 8.01-663. Judgment conclusive.

Any such judgment entered of record shall be conclusive, unless the same be reversed, except that the petitioner shall not be precluded from bringing the same matter in question in an action for false imprisonment.

Code 1950, § 8-605; 1977, c. 617.

§ 8.01-664. How and when Supreme Court summoned to try appeal therefrom.

If, during the recess of the Supreme Court, the Governor or the Chief Justice of the Court should think the immediate revision of any such judgment to be proper, he may summon the Court for that purpose, to meet on any day to be fixed by him.

Code 1950, § 8-606; 1977, c. 617.

§ 8.01-665. When execution of judgment suspended; when prisoner admitted to bail.

When the prisoner is remanded, the execution of the judgment shall not be suspended by a petition for appeal or by a writ of error, or for the purpose of applying for such writ. When he is ordered to be discharged, and the execution of the judgment is suspended for the purpose of petitioning for appeal to the Court of Appeals or applying for a writ of error from the Supreme Court, the court making such suspending order may admit the prisoner to bail until the expiration of the time allowed for filing a petition for appeal or applying for the writ of error, or, in case the petition for appeal is filed or the writ of error is allowed, until the decision of the Court of Appeals or the Supreme Court thereon is duly certified.

Code 1950, § 8-607; 1977, c. 617; 1984, c. 703.

§ 8.01-666. When and by whom writs of habeas corpus ad testificandum granted.

Writs of habeas corpus ad testificandum may be granted by any circuit court in the same manner and under the same conditions and provisions as are prescribed by this chapter as to granting the writ of habeas corpus ad subjiciendum so far as the same are applicable.

Code 1950, § 8-608; 1977, c. 617.

§ 8.01-667. Transmission of records to federal court.

Whenever any habeas corpus case is pending in a federal court, upon written request of the Attorney General or any assistant attorney general, a court of this Commonwealth shall transmit to such federal court such records as may be requested.

Code 1950, § 8-608.1; 1975, c. 389; 1977, c. 617.

§ 8.01-668. Writ de homine abolished.

The writ de homine replegiando is abolished.

Code 1950, § 8-609; 1977, c. 617.