4.2 Habeas Corpus

• Library: Appellate Practice - Virginia and Federal Courts (Virginia CLE) (2016 Ed.)

4.2 HABEAS CORPUS

4.201 In General. In Virginia, authority to issue writs of habeas corpus lies only in the circuit courts and the Supreme Court, and the Supreme Court has appellate jurisdiction in all habeas cases filed in the circuit courts. Virginia Code section 17.1-404 provides that in cases over which the Court of Appeals would have appellate jurisdiction, it also has original jurisdiction to issue writs of habeas corpus. The Court of Appeals has held, however, that "only 'the circuit court which entered the original judgment order of conviction' may issue a writ for one held under criminal process." ⁵ And Virginia Code section 17.1-406(B) denies the Court of Appeals appellate jurisdiction of every "final decision, judgment or order of a circuit court involving a petition for a writ of habeas corpus." The Supreme Court therefore has exclusive appellate jurisdiction in habeas cases; and the provision in section 17.1-404 which purports to grant the Court of Appeals original jurisdiction in such cases is effectively nullified by Virginia Code section 8.01-654, at least in criminal cases, as indicated by Bullock. The Court of Appeals arguably would have original jurisdiction under section 17.1-404 to issue a habeas writ in a domestic custody case—a case in which it would have appellate jurisdiction—but that possibility is probably nothing more than theoretical.

Under section 8.01-654, a writ of "habeas corpus ad subjiciendum" ⁶ is available only to one who "is detained without lawful authority." The Supreme Court has interpreted that language to require physical incarceration. Where a petitioner is serving a period of supervised probation but is not in physical custody, for example, habeas corpus is not an available remedy for an alleged constitutional deficiency in the trial. ⁷

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Former case law limited habeas corpus jurisdiction to cases in which issuance of the writ would result in the petitioner's immediate release from custody. ⁸ The Supreme Court abrogated that rule in Carroll v. Johnson, ⁹ holding that a circuit court had jurisdiction to entertain a habeas petition seeking a 288-day reduction of a 13-year sentence. The Court also emphasized the limited scope of its new rule:

Our decision today does not dramatically expand habeas corpus jurisdiction. Our holding only concerns cases in which an order, entered in the petitioner's favor, interpreting a conviction or a sentence, will, as a matter of law and standing alone, directly impact...