10.2 Habeas Corpus

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

10.2 HABEAS CORPUS⁵

10.201 A Very Brief History. "From its earliest known appearance to the present, habeas corpus has been a judicial order directing a person to

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have the body of another before a tribunal at a certain time and place." ⁶"The purpose of a writ of habeas corpus is to test the validity of detention, and, for this purpose, the law permits a prisoner to mount a collateral attack upon his conviction or sentence." ⁷ "There is no higher duty of a court, under our constitutional system, than the careful processing and adjudication of petitions for writs of habeas corpus." ⁸ "While the precise origin of the writ of habeas corpus is unknown, it is believed to have been in use before the date of the Magna Carta." ⁹ Referred to as the "most celebrated writ in the English law," it has been preserved in our federal and state constitutions. ¹⁰

Habeas corpus "is designed to challenge the civil right of the validity of the petitioner's detention" and is therefore "a civil and not a criminal proceeding." ¹¹ "The writ of habeas corpus has always been regarded 'as a palladium of liberty' and recognized as one of 'the greatest and most effective remedies known to the law.'" ¹² Habeas "is not now and never has been a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose—the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty." ¹³ The habeas corpus statutes are remedial in nature and are to be liberally construed. ¹⁴ "In the Commonwealth, the writ of habeas corpus shall not be suspended unless when, in cases of invasion or rebellion, the public safety may require." ¹⁵

10.202 Courts with the Authority to Issue a Writ of Habeas Corpus. General district courts have no authority to issue a writ 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

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habeas corpus." ¹⁶ But the general district courts do have a broad exception to the 21-day rule, allowing that within 60 days from the date of conviction of any person in a general district court or juvenile and domestic relations district court for an offense not felonious, the case may be reopened for good cause shown. ¹⁷

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. ¹⁸ In most cases it is "logical and appropriate" for the trial judge to hear the petition for the writ. ¹⁹ The trial judge has the advantage of having seen the trial and heard the evidence. ²⁰ "Absent a specific showing of bias or prejudice," the trial judge should not be disqualified from presiding over the habeas corpus proceeding. ²¹

The Court of Appeals has "discretionary" jurisdiction to entertain an original petition for a writ of habeas corpus filed by an inmate who wishes to challenge the validity of his detention in "appropriate cases." ²² Va. Code § 17.1-404 provides "in such cases over which the court would have appellate jurisdiction, the court shall have original jurisdiction to issue writs of . . . habeas corpus." ²³ Further, the Court of Appeals has found that "absent exceptional circumstances" it should not consider a petition for a writ of habeas corpus when an "adequate remedy may be had in the circuit courts." ²⁴ It is hard to conceive of a circumstance in which the Court of Appeals would entertain a petition for a writ of habeas corpus and history bears this out, as the court has yet to reach the merits of a petition since 1986. ²⁵

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The Supreme Court of Virginia duplicates the jurisdiction of the circuit courts. ²⁶

Whether to file in a circuit court or the Supreme Court of Virginia is a strategic choice that counsel must make considering all the factors of the particular case. The vast majority of petitions are filed in the circuit court for three reasons. First, because the trial judge is most familiar with the case. Second, because of the perception that the circuit court is more likely to grant an evidentiary hearing and the reality that a circuit court is a more appropriate forum for the taking of evidence. And third, because if one files in the circuit court, a petitioner theoretically gets the benefit of possibly winning in either the circuit court or on appeal to the Supreme Court of Virginia.

10.203 The Rules That Apply. Numerous rules of the Supreme Court of Virginia apply to habeas proceedings and will be cited below. Part 3 of the rules of the Supreme Court of Virginia, practice and procedure in civil actions, "shall not apply in petitions for writ of habeas corpus." ²⁷ Part 4 of the rules of the Supreme Court of Virginia, pretrial procedures, "shall apply . . . for writs of habeas corpus." ²⁸ There are also a number of statutes that apply; the main statutes are Va. Code §§ 8.01-654 and 8.01-655.

10.204 There Is No Right to Counsel in a Habeas Proceeding.²⁹ Although there is no right to counsel, "where a petition 'presents a triable issue of fact the clear presentation of which requires an ability to organize factual data or to call witnesses and elicit testimony in a logical fashion it is much the better practice to assign counsel.'" ³⁰ In addition, most inmates have

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an attorney available to them pursuant to Va. Code § 53.1-40. ³¹ 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." ³²

10.205 Indigent Petitioner Has a Right to a Copy of the Court File and Transcripts. If transcripts and the court record are necessary to the preparation and prosecution of the petition for a writ of habeas corpus, equal protection demands that the petitioner be furnished them without cost. ³³ A motion for transcripts, therefore, should be very specific as to the need for transcripts. In practice, most courts will find it necessary to only provide "certified copies of the arrest warrants, indictment and the order of conviction at his criminal trial." ³⁴

10.206 Calculating the Statute of Limitations. "A habeas corpus petition attacking a criminal conviction or sentence . . . 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." ³⁵ The petition will be timely as long as it is filed on or before the latter of these two dates. So for a plea in which there is no appeal, the deadline will usually be two years from final judgment. Final judgment is the date that the judge signs the sentencing order. ³⁶ In an appeal from a trial, the latter date will normally be the final disposition on direct appeal. The final disposition includes a petition for rehearing in the Supreme Court of Virginia but does not include a petition for writ of certiorari to the United States Supreme Court.

Trap for the Unwary. Beware the federal habeas deadline. ³⁷ A federal habeas petition is due one year from final disposition of the direct appeal (which does include a petition

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for certiorari). That time is tolled while a properly filed state habeas petition is pending. ³⁸ The calculation can be complicated, and there are numerous ways that a petitioner could be time-barred in federal court. For example, if a state habeas petitioner does not appeal and uses his or her two years from the final judgment, his or her state habeas petition will be timely, but he or she will be time-barred from later filing a federal habeas petition.

Very limited exceptions exist to the Virginia statute of limitations. The only recognized exception is for claims that allege the prosecution breached its duty to disclose exculpatory material under Brady v. Maryland. ³⁹ The tolling provision of Va. Code § 8.01-229(D) is applicable to the limitations period of Va. Code § 8.01-654(A)(2) where the petitioner has alleged a Brady violation. ⁴⁰ In such cases the petitioner must bring the claim within one year of discovery of the Brady violation. There is an argument for time-barred petitioners that because the statute contains no other exceptions allowing a petition to be filed after the expiration of the limitations periods, the statute could violate the "bar against suspension of the writ of habeas corpus, Art. I, § 9 of the Constitution of Virginia," ⁴¹ but the Supreme Court of Virginia has never addressed the issue.

A petitioner may litigate a habeas petition simultaneously with a direct appeal. ⁴²

10.207 Jurisdictional Requirement—Petitioner Must Be in Custody. The "sine qua non" of habeas corpus jurisdiction is custody. ⁴³ In Virginia "custody" is defined as "detention without lawful authority." ⁴⁴ "Habeas corpus is a writ of inquiry granted to determine whether a person is illegally detained." ⁴⁵ "Detention is jurisdictional in habeas corpus, and

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therefore a prerequisite to any consideration of a habeas petition." ⁴⁶ "The statutory phrase 'detained without lawful authority' allows a petitioner to challenge the lawfulness of the entire duration of his or her detention so long as an order entered in the petitioner's favor will result in a court order that, on its face and standing alone, will directly impact the duration of the petitioner's confinement." ⁴⁷ "A petitioner who enjoys physical freedom but remains subject to a sentence not yet fully served, such as a suspended sentence, supervised parole, or probation, is under detention." ⁴⁸ "An individual is detained so long as he was sentenced to a term of incarceration and the Commonwealth retains active power over him that could result in immediate physical detention." ⁴⁹

The petitioner must be in custody at...