                                 CODE OF VIRGINIA

WHEN AND FROM WHOM RESPONSE REQUIRED; DISMISSAL OF HABEAS PETITION WITHOUT
PREJUDICE (§ 8.01-658)

A. 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.

B. When the petition challenges a criminal conviction or sentence:

   1. 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&#8217;s sentence will be
   served in such local or regional jail facility.

   2. 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.

   3. 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.

C. 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.

D. If the court in which the petition was filed determines that the
petitioner&#8217;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.

HISTORY: Code 1950, § 8-599; 1977, c. 617; 2015, c. 554; 2019, cc. 8, 48.