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VIRGINIA PETITION FOR WRIT OF HABEAS CORPUS

The principal post-conviction remedy under Virginia law is the writ of habeas corpus, which is authorized and regulated by Va. Code Ann. §8.01-654, et seq. This statute provides that the writ shall be granted to any incarcerated individual who shows "by affidavits or other evidence probable cause to believe that he is detained without lawful authority." at §8.01-654(A)(1).

 

Virginia's habeas corpus statute includes several requirements that must be met. One of the most important is its statute of limitations. A petition for a writ of habeas corpus under Virginia law must "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." Va. Code Ann. §8.01-654(A)(2).

 

In addition, the Virginia habeas corpus statute includes important procedural requirements. Under Virginia law, the failure to raise a claim, where it was possible to do so, at trial, on direct appeal, or in a prior state habeas proceeding ordinarily bars consideration of that claim in a Virginia habeas corpus action. Va. Code Ann. §8.01- 654(B)(2). Therefore, while the Virginia statute does not impose a per se ban on successive habeas corpus actions, it severely limits them by providing that no relief shall be granted on the basis of any allegation the facts of which were known to the petitioner at the time of filing a previous habeas petition. A Virginia habeas corpus action also may not be used to re-litigate issues that already have been raised and decided on direct appeal or in a prior state-court habeas action.