Va. R. Sup. Ct. 5:7

As amended through April 19, 2024

Rule 5:7 - Petitions for Writs of Habeas Corpus, Mandamus, and Prohibition

(a)Petition for Writ of Habeas Corpus. - An application to this Court for a writ of habeas corpus under its original jurisdiction must be by petition filed in the office of the clerk of this Court, as provided for in Rule 5:1B.

(1) When Petition Must be Filed. The petition for a writ of habeas corpus challenging a criminal conviction or sentence must be filed within two years from the date of the 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. All other petitions for a writ of habeas corpus must be filed within one year after the cause of action accrues.

(2) What the Petition Must Contain. The petition must be notarized and must state whether the petitioner believes that the taking of evidence is necessary for the proper disposition of the petition. A memorandum of law citing relevant authorities must accompany each petition. All petitions must comply with the requirements of Code § 8.01-655. Where a petition for a writ of habeas corpus is filed by counsel, counsel must file as an exhibit a single copy of the complete record of the proceedings that resulted in the detention the petition challenges. The record must comply with the form and content requirements of Rule 5:7(a)(5), and counsel may seek leave to provide less than the complete record as provided for in Rule 5:7(a)(6).

(3) Service of Petitions; Service of Papers after Initial Process. Except as provided herein, service of process must be accomplished in accordance with Chapter 8 of Title 8.01. Service of all papers filed after the petition must be accomplished in accordance with Rule 1:12.

(i) Non-Public Officials. A petition must be accompanied by a return of service executed by the appropriate officer evidencing service of a copy thereof on the respondent or by an acceptance of service signed by the respondent.

(ii) Public Officials. When habeas corpus is directed to a public official, service must be made on the respondent and must also be made on or accepted by the Attorney General or an Assistant Attorney General. A petition must be accompanied by a return of service executed by the appropriate officer evidencing service of a copy thereof on the respondent or by an acceptance of service signed by the respondent.

(iii) Prisoners Pro Se. In cases brought by prisoners pro se, a copy of the petition must be forwarded to the respondent by first class mail, and the application must contain a certificate at the end stating as follows:

I hereby certify that on the ____day of ______________, 20____,

I mailed a copy of the foregoing application to the respondent(s), ______________, by first class mail.

_______________

Petitioner

(4) When to Respond to a Petition; Reply. No responsive pleading to a petition filed by a prisoner acting pro se is required except as ordered by this Court. For all other petitions, a responsive pleading must be filed with the clerk of this Court within 40 days after service of the petition. The deadline for counsel for the petitioner to file a reply to a responsive pleading is 30 days from the date the responsive pleading is due.

(5) Contents of the Response. In one responsive pleading, the respondent may move to dismiss on any appropriate ground, including the failure to state facts upon which relief should be granted, and, in the alternative, may set forth grounds of defense as in an action at law. The answer must state whether, in the opinion of the respondent, the taking of evidence is necessary for the proper disposition of the petition. A memorandum of law citing the relevant authorities must accompany each responsive pleading. In any case in which the respondent states an opinion that the taking of evidence is not necessary for the proper disposition of a petition for a writ of habeas corpus, the respondent must file as separate exhibits:

(i) a single copy of the complete record of the proceedings that resulted in the detention the petition challenges, provided that such complete record has not previously been provided by counsel for petitioner. When criminal proceedings resulted in the challenged detention, the record of those proceedings must include:

(1) a copy of the documents and exhibits filed or lodged in the office of the clerk of the trial court;

(2) a copy of each instruction marked "given" or "refused" and initialed by the judge;

(3) a copy of each exhibit offered in evidence, whether admitted or not, except for drugs, guns and other weapons, ammunition, blood vials and other bio-hazard type materials, money, jewelry, articles of clothing, and bulky items such as large graphs and maps;

(4) a copy of each order entered by the trial court;

(5) a copy of any opinion or memorandum decision rendered by the judge of the trial court;

(6) a copy of any transcript that was filed with the circuit court, or a copy of any videotape recording of any proceeding in those circuit courts authorized by this Court to use videotape recordings.

(7) These records must be compiled as follows:

(a) with a table of contents listing each paper included in the record and the page on which it begins;

(b) each paper constituting a part of the record in chronological order;

(c) each page of the record must be numbered at the bottom; and

(d) transcripts and exhibits may be included in separate volumes or envelopes identified by the table of contents, except that any exhibit that cannot be conveniently placed in a volume or envelope must be identified by a tag. Each such volume or envelope must include, on its cover or inside, a descriptive list of exhibits contained therein.

(ii) copies of any other document on which the respondent relies to assert that the taking of evidence is not necessary.

(6) Leave to respond without providing a complete record. In any case in which the respondent states an opinion that the complete record of the proceedings that resulted in the detention the petition challenges is not necessary for the proper disposition of the petition, the respondent may move for leave to provide less than all of the record. Such leave must be sought no later than 14 days prior to the filing of a responsive pleading. In any case where leave is granted, the Court may direct the respondent to provide any additional portion of the record at any time.

(7) Length. Except by permission of a Justice of this Court, no petition, including the accompanying memorandum of law, or a response thereto, including its accompanying memorandum of law, may exceed the longer of 50 pages or 8,750 words. No reply filed to a responsive pleading may exceed the longer of 10 pages or 1,750 words. Page and word limits do not include appendices, exhibits, cover page, table of contents, table of authorities, signature blocks, or certificate.

(8) Number of Copies. For prisoners filing pro se and other petitioners exempted from the electronic filing requirements under Rule 5:1B(b), only one paper copy of a petition and any other document need be filed.

(9) Calling up the Record. If this Court determines that any portion of the underlying trial or appellate record is necessary for a proper determination of the merits of the petition, the clerk of this Court is authorized to request the record and, to the extent necessary, the preparation of any transcripts, and the clerk of the trial court, commission, or the Court of Appeals as appropriate must prepare the requested transcripts and transmit it forthwith upon request without the necessity of an order.

(b)Petitions for Writs of Mandamus and Prohibition. - An application for a writ of mandamus or a writ of prohibition under the original jurisdiction of this Court must be by petition filed in the office of the clerk of this Court, as provided for in Rule 5:1B.

(1) What the Petition Must Contain. The petition must be notarized and must state whether the petitioner believes that the taking of evidence is necessary for the proper disposition of the petition. A memorandum of law citing relevant authorities must accompany each petition.

(2) Service of Petitions; Service of Papers after Initial Process.

(i) Generally. A petition must be accompanied by a return of service executed by the appropriate officer evidencing service of a copy thereof on the respondent or by an acceptance of service signed by the respondent. Except in cases brought by prisoners acting pro se, service of process must be accomplished in accordance with Chapter 8 of Title 8.01. Service of all papers filed after the petition must be served in accordance with Rule 1:12.

(ii) Prisoners Pro Se. In cases brought by prisoners pro se, a copy of the petition must be forwarded to the respondent by first class mail, and the application must contain a certificate at the end stating as follows:

I hereby certify that on the ___ day of ___, 20__, I mailed a copy of the foregoing application to the respondent(s), ______________, by first class mail.

_____________

Petitioner

(3) Limitations for Petitions for Mandamus. A petition for writ of mandamus filed by or on behalf of a person confined in a state correctional facility must be brought within one year after the cause of action accrues.

(4) Petitions for Mandamus or Prohibition Against a Judge. A petition for writ of mandamus or writ of prohibition against a judge must not bear the name of the judge but must be entitled, "In re, Petitioner." When the Attorney General determines, with the concurrence of the judge, that it is impracticable or unnecessary for the Attorney General to represent the judge, the judge may be represented pro forma by counsel for the party opposing the relief, who must appear in the name of the party and not that of the judge. Or, in the alternative, the Attorney General may provide for the appointment of special counsel to represent the judge, in accordance with the provisions of Code §§ 2.2-507 or 2.2-510.

(5) When to Respond to a Petition; Reply. No responsive pleading is required for a petition filed by a prisoner acting pro se except as ordered by this Court. For all other petitions, a responsive pleading must be filed with the clerk of this Court within 21 days after service of the petition or the filing thereof, whichever date is later. The deadline for counsel for the petitioner or a pro se petitioner to file a reply to a responsive pleading is 14 days from the date the responsive pleading is due.

(6) Contents of the Response. In one responsive pleading, the respondent may move to dismiss on any appropriate ground, including the failure to state facts upon which relief should be granted, and, in the alternative, may set forth an answer as in an action at law. The answer must state whether, in the opinion of the respondent, the taking of evidence is necessary for the proper disposition of the petition. A memorandum of law citing the relevant authorities should accompany each responsive pleading.

(7) Length. Except by permission of a Justice of this Court, no petition, including the accompanying memorandum of law, or a response thereto, including its accompanying memorandum of law, may exceed the longer of 50 printed pages or 8,750 words. No reply filed to a responsive pleading may exceed the longer of 10 printed pages or 1,750 words. This page or word limit does not include appendices, exhibits, cover page, table of contents, table of authorities, signature blocks, or certificate.

(c)When this Court May Act on a Petition. - This Court may act on any petition for a writ of habeas corpus, mandamus, or prohibition before a responsive pleading or reply of the petitioner is filed. This Court may by order shorten the period within which a responsive pleading must or reply may be filed.

(d)Further Proceedings on Petitions. - Further proceedings will be in accordance with the orders of this Court or a Justice thereof to whom this Court may delegate authority to determine all procedural matters. If this Court or the designated Justice determines that evidence is desirable, (1) depositions may be taken according to a schedule agreed upon by counsel and filed in the office of the clerk of this Court or, in the absence of agreement, according to a schedule determined by this Court or the designated Justice, or (2) the Court may order the circuit court in which the judicial proceeding resulting in petitioner's detention occurred to conduct an evidentiary hearing. Such hearings will be limited in subject matter to the issues enumerated in the order. The circuit court must conduct such a hearing within 90 days after the order has been received and must report its findings of fact to this Court within 60 days after the conclusion of the hearing. The Court may extend these deadlines upon a motion filed by either party and supported by good cause. Any objection to the report must be filed in this Court within 30 days after the report is filed.

(e)Amendment of Petition. - If the statute of limitations has not expired, a petitioner may move-at any time before a ruling is rendered on the merits of the petition as initially filed-for leave of this Court to substitute an amended petition. This amendment can include additional claims not presented in the petition as initially filed. Any such motion must attach a copy of the proposed amended petition.

(f)Filing Fee. - The petition must be accompanied by either (i) the filing fee required by statute, or (ii) an in forma pauperis affidavit demonstrating that the petitioner cannot afford the filing fee. For mandamus petitions filed by pro se inmates, the Court may require the petitioner to provide a certified copy of the petitioner's inmate trust account for the preceding 12 months.

Va. Sup. Ct. 5:7

Amended by Order dated March 1, 2011; effective 5/2/2011; amended January 1, 2018, effective 4/1/2018; amended April 6, 2018, Effective 6/5/2018; amended by Order dated Friday, April 26, 2019, effective 7/1/2019; amended by order dated September 3, 2020, effective 9/3/2020; amended by order dated November 23, 2020, effective 3/1/2021; amended by order dated April 1, 2021, effective 6/1/2021; amended by order dated November 1, 2021, effective 1/1/2022.