§ 8.01-658.When and from whom response required; dismissal of habeas petition without prejudice.

Chapter 25. Extraordinary Writs · Article 3. Habeas Corpus · Last amended 2019 · Last verified July 16, 2026

In one sentenceSection 8.01-658 tells a habeas petitioner whom to name as respondent based on custody status — prison or jail officials, a probation or parole officer, or a sheriff — and requires dismissal without prejudice if the petitioner cannot fix a wrong respondent, while letting courts transfer unresolved factual disputes to the sentencing circuit court.

Full Text of § 8.01-658

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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'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'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.

End

Plain-English Summary

No one has to answer a habeas corpus petition unless a court orders it. Section 8.01-658 makes that order run to the person who has the petitioner in custody, or who has immediate or potential custody, and it is returnable as soon as the ordering court directs.

Who counts as that custodian depends on where the petitioner stands. If the conviction or sentence being challenged has landed the petitioner in actual physical custody, the respondent is the Director of the Department of Corrections, or the warden or superintendent of the facility holding him, or the sheriff or superintendent of the local or regional jail where his sentence will be served. If he is on probation or parole, the respondent is his supervising officer or the head of the supervising agency. If his sentence is suspended and he is not under supervision, the respondent is the local sheriff for a suspended sentence under one year, or the Director of the Department of Corrections for one of a year or more.

Naming the wrong respondent is not fatal on its own — the court may allow the petitioner to amend the petition — but if the petitioner does not fix it within the time the court allows, the court must dismiss the petition without prejudice. And when a petition raises factual questions that the existing record cannot resolve, the court where the petition was filed may transfer it to the circuit court where the underlying case happened, or, if the petition was filed in the Supreme Court, may require that circuit court to hold an evidentiary hearing under the Rules of Supreme Court of Virginia.

Frequently Asked Questions

Does the state have to respond to every habeas corpus petition?

No. Except as the Rules of Supreme Court of Virginia may provide, no response is required unless the court orders one, directed to the person who has custody of the petitioner.

Who do I name as respondent if I am incarcerated?

The Director of the Department of Corrections, or the warden or superintendent of the state facility holding you, or the sheriff or superintendent of the local or regional jail where your sentence will be served.

Who do I name as respondent if I am on probation or parole?

The probation or parole officer responsible for supervising you, or the official in charge of the parole or probation agency.

What happens if I name the wrong respondent?

The court may allow you to amend the petition to name a proper respondent; if you fail to do so within the time the court allows, the court must dismiss the petition without prejudice.

What happens if my petition raises factual disputes the existing record cannot settle?

The court may transfer the petition to the circuit court where the underlying judicial proceeding occurred, or, if the petition was filed in the Supreme Court, may require that circuit court to conduct an evidentiary hearing.

Amendment History

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

Source & verification. Section text and amendment history are reproduced verbatim from the Code of Virginia, published by the Code of Virginia, Virginia Division of Legislative Automated Systems. Last verified July 16, 2026. · Official source

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