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Habeas Corpus:


The writ of habeas corpus is an extraordinary remedy designed to test the validity and legality of detention or incarceration. Habeas is not a substitute for a direct criminal appeal. Only claims of constitutional deprivations are cognizable on habeas.

Habeas litigation is a highly specialized area of the law, and it can be extremely frustrating and time consuming. Nonetheless, it often represents the last chance a person has to request judicial review of their case.

The primary areas of that are frequent topics of habeas cases are: Ineffective Assistance of Counsel (IAC); Conflicts of Interest; Due Process and Fair Trial Rights; Brady Violations and Other Prosecutorial Misconduct; Juror Misconduct; Judicial Bias; Jurisdictional Errors; and Other Constitutional Violations.

Statute of Limitations:

The state habeas statute of limitations in Virginia Code Section 8.01-654(A)(2) (non-capital cases) requires that habeas petitioners file within two years from the date of the final order in the trial court or within one year from the final denial of the direct appeal in state court, whichever is later.

The one-year federal habeas statute of limitations in 28 U.S.C. 2244(d)(1) (non-capital cases) starts to run after direct appeals have been exhausted, including a direct appeal to the United States Supreme Court, if any. The federal statute of limitations is tolled (i.e., does not run) while a petitioner pursues a state habeas case. See 28 U.S.C. 2244(d)(2).

To be safe, all potential habeas petitioners should file within one year of the date that the Virginia Supreme Court denies the direct appeal, because such action likely will preserve a petitioner's right to pursue habeas relief in federal court. If there is no appeal (such as when convictions are based on a guilty plea), petitioners should file within one year of the date of the sentencing order from the trial court, although filing within such a time frame can be difficult.

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NEW LAW - Motion for a Delayed Appeal and Amendment to the Habeas Statute

Effective July 1, 2005, the Virginia Legislature finally has provided a separate procedure for pursuing a delayed appeal. Countless criminal appeals have been dismissed over the years due to attorney error and overly strict filing rules. Worse still was the fact that the only method to correct these errors was to file a habeas petition, and such habeas cases could ruin an inmate's chances at meaningful habeas review on the merits.

Now, the law has changed to provide a separate procedure for a Motion for a Delayed Appeal, and the habeas statute has been amended as well. The new statutes are Va. Code Section 19.2-321.1 (motion for delayed appeal to the Va. Court of Appeals) and Va. Code Section 19.2-321.2 (for the Va. Supreme Court). The two versions are basically the same. To be successful, the motion must allege that the appeal has been dismissed or never initiated due to error by someone other than the criminal defendant. The motion must be filed within six months after the appeal has been dismissed or the circuit court judgment has become final, whichever is later.

The new statutes give power to the prosecutors to agree (and the motion will be granted) or disagree that the defendant has met the requirements (and the motion will be denied). In the event that the motion is denied, the criminal defendant may file a habeas petition seeking a delayed appeal only. This is a major change in the law. If the habeas petition seeking a delayed appeal only is not successful, or, after the delayed appeal has concluded, a second habeas petition may be filed on other issues. In so doing, the change has modified existing case law which has served as a ridiculous procedural bar to so many habeas petitions over the years.

The amended section of the habeas statute in Va. Code Section 8.01-654(B)(2), reads as follows: "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 . . . ."

The only potential downside with the changes to the law is the calculation of deadlines for substantive habeas petitions (both state and federal) could be more complicated. It is expected that the clock will stop running while a motion or habeas petition for a delayed appeal is pending, as well as while the delayed appeal (if granted) is pursued. The question will be whether the time before and after will count against the strict habeas deadlines for both state and federal court. When in doubt, file early.

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For additional detailed information about habeas corpus, see recent and previous editions of Legal Notes. Use the navigation to the left or click here: Publications

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David B. Hargett and W. Todd Watson are attorneys licensed to practice law in the Commonwealth of Virginia.