{"formats":[{"name":"JSON","format":"json","url":"\/downloads\/2026\/code-json\/8.01-658.json"},{"name":"Plain Text","format":"text","url":"\/downloads\/2026\/code-text\/8.01-658.txt"},{"name":"XML","format":"xml","url":"\/downloads\/2026\/code-xml\/8.01-658.xml"},{"name":"HTML","format":"html","url":"\/downloads\/2026\/code-html\/8.01-658.html"}],"law_id":377746,"edition_id":2,"section_id":377746,"structure_id":53684,"section_number":"8.01-658","catch_line":"When and from whom response required; dismissal of habeas petition without prejudice","history":"Code 1950, \u00a7 8-599; 1977, c. 617; 2015, c. 554; 2019, cc. 8, 48.","full_text":"A\n\nExcept 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.\n\nB\n\nWhen the petition challenges a criminal conviction or sentence:\n\n1\n\nIf 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.\n\n2\n\nIf 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.\n\n3\n\nIf 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.\n\nC\n\nThe 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.\n\nD\n\nIf 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.\n\n","order_by":null,"text":{"0":{"id":1409082,"text":"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.","type":"section","prefixes":["A"],"prefix":"A","entire_prefix":"A","prefix_anchor":"A","level":1,"next_prefix":"B"},"1":{"id":1409083,"text":"When the petition challenges a criminal conviction or sentence:","type":"section","prefixes":["B"],"prefix":"B","entire_prefix":"B","prefix_anchor":"B","level":1,"prior_prefix":"A","next_prefix":"B1"},"2":{"id":1409084,"text":"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.","type":"section","prefixes":["B","1"],"prefix":"1","entire_prefix":"B1","prefix_anchor":"B1","level":2,"prior_prefix":"B","next_prefix":"B2"},"3":{"id":1409085,"text":"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.","type":"section","prefixes":["B","2"],"prefix":"2","entire_prefix":"B2","prefix_anchor":"B2","level":2,"prior_prefix":"B1","next_prefix":"B3"},"4":{"id":1409086,"text":"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.","type":"section","prefixes":["B","3"],"prefix":"3","entire_prefix":"B3","prefix_anchor":"B3","level":2,"prior_prefix":"B2","next_prefix":"C"},"5":{"id":1409087,"text":"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.","type":"section","prefixes":["C"],"prefix":"C","entire_prefix":"C","prefix_anchor":"C","level":1,"prior_prefix":"B3","next_prefix":"D"},"6":{"id":1409088,"text":"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.","type":"section","prefixes":["D"],"prefix":"D","entire_prefix":"D","prefix_anchor":"D","level":1,"prior_prefix":"C"}},"ancestry":[{"id":53684,"edition_id":2,"name":"Habeas Corpus","identifier":"3","label":"article","depth":3,"order_by":1,"parent_id":53681,"metadata":{"child_laws":15,"child_structures":0},"date_created":"2026-08-02 03:20:38","date_modified":"2026-08-02 12:28:26","permalink":{"id":1506395,"object_type":"structure","relational_id":53684,"identifier":"3","token":"8.01\/25\/3","url":"\/8.01\/25\/3\/","edition_id":2,"permalink":0,"preferred":1}},{"id":53681,"edition_id":2,"name":"Extraordinary Writs","identifier":"25","label":"chapter","depth":2,"order_by":55,"parent_id":53558,"metadata":{"child_laws":36,"child_structures":3},"date_created":"2026-08-02 03:20:35","date_modified":"2026-08-02 12:28:26","permalink":{"id":1506305,"object_type":"structure","relational_id":53681,"identifier":"25","token":"8.01\/25","url":"\/8.01\/25\/","edition_id":2,"permalink":0,"preferred":1}},{"id":53558,"edition_id":2,"name":"Civil Remedies and Procedure","identifier":"8.01","label":"title","depth":1,"order_by":12,"parent_id":null,"metadata":{"child_laws":1095,"child_structures":142},"date_created":"2026-08-02 03:18:32","date_modified":"2026-08-02 12:28:09","permalink":{"id":1504031,"object_type":"structure","relational_id":53558,"identifier":"8.01","token":"8.01","url":"\/8.01\/","edition_id":2,"permalink":0,"preferred":1}}],"structure_contents":[{"id":377743,"structure_id":53684,"section_number":"8.01-654","catch_line":"When and where petition filed; what petition to contain","url":"\/8.01-654\/","token":"8.01\/25\/3\/8.01-654","metadata":false},{"id":377742,"structure_id":53684,"section_number":"8.01-654.1","catch_line":"Repealed","url":"\/8.01-654.1\/","token":"8.01\/25\/3\/8.01-654.1","metadata":false},{"id":377744,"structure_id":53684,"section_number":"8.01-655","catch_line":"Form and contents of petition filed by prisoner","url":"\/8.01-655\/","token":"8.01\/25\/3\/8.01-655","metadata":{"court_decisions":{"0":{"name":"Lahey v. Johnson","case_number":"110552","citation":null,"date":"2012-01-13","url":"https:\/\/www.courtlistener.com\/opinion\/1057952\/lahey-v-johnson\/","abstract":" .\u202f.\u202f. PRESENT: All the Justices .\u202f.\u202f. ","court_html":"SCV<\/abbr>"},"1":{"name":"Jerome Gordon v. Daniel Braxton","case_number":"13-7040","citation":"780 F.3d 196","date":"2015-03-03","url":"https:\/\/www.courtlistener.com\/opinion\/2969043\/jerome-gordon-v-daniel-braxton\/","abstract":" .\u202f.\u202f. Reversed and remanded by published opinion. Judge DIAZ wrote the opinion, in which Judge NIEMEYER .\u202f.\u202f. ","court_html":"Court of Appeals for the Fourth Circuit"},"2":{"name":"Johnson v. Clerk, Wise County Circuit Court (ORDER)","case_number":"1240012","citation":null,"date":"2024-08-15","url":"https:\/\/www.courtlistener.com\/opinion\/10041279\/johnson-v-clerk-wise-county-circuit-court-order\/","abstract":" .\u202f.\u202f. VIRGINIA: .\u202f.\u202f. ","court_html":"SCV<\/abbr>"},"3":{"name":" .\u202f.\u202f. Thomas W. Mallory, Jr. v. David K. Smith, Warden James S. .\u202f.\u202f. ","case_number":"93-6545","citation":"27 F.3d 991","date":"1994-06-30","url":"https:\/\/www.courtlistener.com\/opinion\/672877\/thomas-w-mallory-jr-v-david-k-smith-warden-james-s-gilmore-iii\/","abstract":" .\u202f.\u202f. Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Justice POWELL and Judge .\u202f.\u202f. ","court_html":"Court of Appeals for the Fourth Circuit"}}}},{"id":377745,"structure_id":53684,"section_number":"8.01-656","catch_line":"Repealed","url":"\/8.01-656\/","token":"8.01\/25\/3\/8.01-656","metadata":false},{"id":377746,"structure_id":53684,"section_number":"8.01-658","catch_line":"When and from whom response required; dismissal of habeas petition without prejudice","url":"\/8.01-658\/","token":"8.01\/25\/3\/8.01-658","metadata":false},{"id":377747,"structure_id":53684,"section_number":"8.01-659","catch_line":"Repealed","url":"\/8.01-659\/","token":"8.01\/25\/3\/8.01-659","metadata":false},{"id":377764,"structure_id":53684,"section_number":"8.01-660","catch_line":"When affidavits may be read","url":"\/8.01-660\/","token":"8.01\/25\/3\/8.01-660","metadata":false},{"id":377765,"structure_id":53684,"section_number":"8.01-661","catch_line":"Facts proved may be made part of record","url":"\/8.01-661\/","token":"8.01\/25\/3\/8.01-661","metadata":false},{"id":377766,"structure_id":53684,"section_number":"8.01-662","catch_line":"Judgment of court or judge trying it; payment of costs and expenses when petition denied","url":"\/8.01-662\/","token":"8.01\/25\/3\/8.01-662","metadata":{"court_decisions":{"0":{"name":"Kenneth A. Stokes, Jr. v. Commonwealth of Virginia","case_number":"0090121","citation":"61 Va. App. 388","date":"2013-01-15","url":"https:\/\/www.courtlistener.com\/opinion\/1061488\/kenneth-a-stokes-jr-v-commonwealth-of-virginia\/","abstract":" .\u202f.\u202f. ELDER, J., .\u202f.\u202f. ","court_html":"COA<\/abbr>"},"1":{"name":"E.C. v. Virginia Dep't of Juvenile Justice","case_number":"110523","citation":null,"date":"2012-03-02","url":"https:\/\/www.courtlistener.com\/opinion\/1057925\/ec-v-virginia-dept-of-juvenile-justice\/","abstract":" .\u202f.\u202f. Present: Kinser, C.J., Lemons, Goodwyn, Millette, and .\u202f.\u202f. ","court_html":"SCV<\/abbr>"},"2":{"name":"Smith v. Brown","case_number":"Record 141487.","citation":"781 S.E.2d 744","date":"2016-02-12","url":"https:\/\/www.courtlistener.com\/opinion\/3177027\/smith-v-brown\/","abstract":" .\u202f.\u202f. Opinion by Justice D. ARTHUR KELSEY. .\u202f.\u202f. ","court_html":"SCV<\/abbr>"},"3":{"name":"Yeatts v. Murray","case_number":"Record 940635","citation":"455 S.E.2d 18","date":"1995-03-03","url":"https:\/\/www.courtlistener.com\/opinion\/1219071\/yeatts-v-murray\/","abstract":" .\u202f.\u202f. 455 S.E.2d 18 (1995) .\u202f.\u202f. ","court_html":"SCV<\/abbr>"},"4":{"name":"Hill v. Commonwealth","case_number":"Record No. 0932-86-2","citation":"379 S.E.2d 134","date":"1989-04-04","url":"https:\/\/www.courtlistener.com\/opinion\/1205495\/hill-v-commonwealth\/","abstract":" .\u202f.\u202f. Opinion .\u202f.\u202f. ","court_html":"COA<\/abbr>"},"5":{"name":"Walker v. Mitchell","case_number":"Record 811936; Record 812038","citation":"299 S.E.2d 698","date":"1983-01-21","url":"https:\/\/www.courtlistener.com\/opinion\/1333232\/walker-v-mitchell\/","abstract":" .\u202f.\u202f. 299 S.E.2d 698 (1983) .\u202f.\u202f. ","court_html":"SCV<\/abbr>"}}}},{"id":377767,"structure_id":53684,"section_number":"8.01-663","catch_line":"Judgment conclusive","url":"\/8.01-663\/","token":"8.01\/25\/3\/8.01-663","metadata":false},{"id":377768,"structure_id":53684,"section_number":"8.01-664","catch_line":"How and when Supreme Court summoned to try appeal therefrom","url":"\/8.01-664\/","token":"8.01\/25\/3\/8.01-664","metadata":false},{"id":377769,"structure_id":53684,"section_number":"8.01-665","catch_line":"When execution of judgment suspended; when prisoner admitted to bail","url":"\/8.01-665\/","token":"8.01\/25\/3\/8.01-665","metadata":false},{"id":377770,"structure_id":53684,"section_number":"8.01-666","catch_line":"When and by whom writs of habeas corpus ad testificandum granted","url":"\/8.01-666\/","token":"8.01\/25\/3\/8.01-666","metadata":false},{"id":377771,"structure_id":53684,"section_number":"8.01-667","catch_line":"Transmission of records to federal court","url":"\/8.01-667\/","token":"8.01\/25\/3\/8.01-667","metadata":false},{"id":377772,"structure_id":53684,"section_number":"8.01-668","catch_line":"Writ de homine abolished","url":"\/8.01-668\/","token":"8.01\/25\/3\/8.01-668","metadata":false}],"previous_section":{"id":377745,"structure_id":53684,"section_number":"8.01-656","catch_line":"Repealed","url":"\/8.01-656\/","token":"8.01\/25\/3\/8.01-656","metadata":false},"next_section":{"id":377747,"structure_id":53684,"section_number":"8.01-659","catch_line":"Repealed","url":"\/8.01-659\/","token":"8.01\/25\/3\/8.01-659","metadata":false},"metadata":false,"official_url":"https:\/\/law.lis.virginia.gov\/vacode\/8.01-658\/","history_text":"

The record of this law\u2019s original creation isn\u2019t available online. It has been modified 3 times. Those modifications are cataloged by \u201cThe Acts of Assembly,\u201d a state publication, by year and chapter. Those modifications that can be read on the General Assembly\u2019s website will be linked accordingly. Those modifications are as follows: in 1977, chapter 617; in 2015, chapter 554<\/a>; in 2019, chapters 8<\/a> and 48<\/a>.<\/p>","references":false,"refers_to":false,"permalink":{"id":1506413,"object_type":"law","relational_id":377746,"identifier":"8.01-658","token":"8.01\/25\/3\/8.01-658","url":"\/8.01-658\/","edition_id":2,"permalink":0,"preferred":1},"url":"\/8.01-658\/","token":"8.01\/25\/3\/8.01-658","dublin_core":{"Title":"When and from whom response required; dismissal of habeas petition without prejudice","Type":"Text","Format":"text\/html","Identifier":"\u00a7 8.01-658","Relation":"Code of Virginia"},"html":"\n\t\t\t\t\t\t

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

B.<\/span> When the petition<\/span> challenges a criminal conviction<\/span> or sentence: <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

1.<\/span> If the petitioner is in jail, prison, or other actual physical restraint due to the conviction<\/span> 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<\/span> or superintendent of a local or regional jail facility if the petitioner’s sentence will be served in such local or regional jail facility. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

2.<\/span> If the petitioner is on probation<\/span> or parole<\/span> due to the conviction<\/span> or sentence he is attacking, the named respondent shall be the probation<\/span> or parole<\/span> officer responsible for supervising the applicant or the official in charge of the parole<\/span> or probation<\/span> agency. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

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

C.<\/span> The petitioner shall name a proper party<\/span> respondent, and if he fails to do so, the court<\/span> may allow amendment of the petition<\/span>. If the petitioner fails to amend<\/span> the petition<\/span> by naming a proper party<\/span> respondent in the time provided by the court<\/span>, the court<\/span> in which the petition<\/span> is filed shall dismiss the habeas petition<\/span> without prejudice. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

D.<\/span> If the court<\/span> in which the petition<\/span> was filed determines that the petitioner’s allegations<\/span> present a case for the determination of unrecorded matters of fact<\/span> relating to a previous judicial proceeding in any circuit<\/span> court<\/span>, the court<\/span> may transfer the petition<\/span> to the circuit<\/span> court<\/span> in which such judicial proceeding occurred, or if the petition<\/span> was filed in the Supreme Court<\/span>, the Court<\/span> may require the circuit<\/span> court<\/span> in which such judicial proceeding occurred to conduct an evidentiary hearing<\/span>, in accordance with such procedures as may be set forth in the Rules of Supreme Court<\/span> of Virginia. <\/i><\/a><\/p><\/section>","plain_text":" CODE OF VIRGINIA\n\nWHEN AND FROM WHOM RESPONSE REQUIRED; DISMISSAL OF HABEAS PETITION WITHOUT\nPREJUDICE (\u00a7 8.01-658)\n\nA. Except as may be provided in the Rules of Supreme Court of Virginia, no\nresponse to a petition for a writ of habeas corpus shall be required except upon\nan order of the court, directed to the person in whose custody the petitioner is\ndetained or on the person having the immediate or potential custody of him, and\nmade returnable as soon as may be before the court ordering the same.\n\nB. When the petition challenges a criminal conviction or sentence:\n\n 1. If the petitioner is in jail, prison, or other actual physical restraint\n due to the conviction or sentence he is attacking, the named respondent shall\n be (i) the Director of the Department of Corrections or the warden or\n superintendent of the state correctional facility where the petitioner is\n detained if the petitioner has been committed to, or is subject to transfer\n to, the Department of Corrections or (ii) the sheriff or superintendent of a\n local or regional jail facility if the petitioner’s sentence will be\n served in such local or regional jail facility.\n\n 2. If the petitioner is on probation or parole due to the conviction or\n sentence he is attacking, the named respondent shall be the probation or\n parole officer responsible for supervising the applicant or the official in\n charge of the parole or probation agency.\n\n 3. If a petitioner has a suspended sentence and is not under supervision by a\n probation or parole officer, the respondent shall be (i) the local sheriff if\n the judgment of conviction the petitioner challenges has a suspended sentence\n of less than one year or (ii) the Director of the Department of Corrections if\n the judgment of conviction the petitioner challenges has a suspended sentence\n of one year or more.\n\nC. The petitioner shall name a proper party respondent, and if he fails to do\nso, the court may allow amendment of the petition. If the petitioner fails to\namend the petition by naming a proper party respondent in the time provided by\nthe court, the court in which the petition is filed shall dismiss the habeas\npetition without prejudice.\n\nD. If the court in which the petition was filed determines that the\npetitioner’s allegations present a case for the determination of\nunrecorded matters of fact relating to a previous judicial proceeding in any\ncircuit court, the court may transfer the petition to the circuit court in which\nsuch judicial proceeding occurred, or if the petition was filed in the Supreme\nCourt, the Court may require the circuit court in which such judicial proceeding\noccurred to conduct an evidentiary hearing, in accordance with such procedures\nas may be set forth in the Rules of Supreme Court of Virginia.\n\nHISTORY: Code 1950, \u00a7 8-599; 1977, c. 617; 2015, c. 554; 2019, cc. 8, 48.","edition":{"id":2,"name":"2026","slug":"2026","date_created":"2026-07-16 18:40:23","date_modified":"2026-08-02 15:14:36","current":1,"order_by":2,"last_import":"2026-08-02 12:37:30"}}