The deadlines (statute of limitations) are strict for Virginia state court habeas. For the vast majority of people in Virginia, you have one year from the time that your direct appeal concluded or two years from the time your case became final, if you did not file a direct appeal. In other words, you have one year to file a habeas petition if you appealed your case or two years if you did not. Unlike federal habeas petitions, there is only one exception to the statute of limitations in Virginia. That means you have to begin preparing your petition early so that you'll have time to investigate and draft a winning argument.
What Is the Difference Between a Direct Appeal and A Habeas Corpus Petition?
One of the most important differences is that you are entitled to court appointed counsel on direct appeal, but not in most habeas petitions. A direct appeal is filed with the Virginia Court of Appeals and the Virginia Supreme Court and alleges some error committed by the trial judge during, before, or after trial. A habeas corpus petition generally challenges a mistake made by your own attorney or misconduct by the prosecutor. That's not a perfect explanation, but that is generally the difference between the two.
What Is the One Exception to The Statute of Limitations for Virginia State Habeas Petitions?
There is one exception to the statute of limitations for Virginia state court habeas petitions. That exception is found in Hicks v. Director, Department of Corrections. The exception In Hicks allows you to file a state habeas petition outside the statute of limitations period if the Commonwealth hides evidence from you or otherwise obstructs your ability to file a timely petition for habeas corpus. In Hicks, the Commonwealth withdraw Brady material (material evidence that tended to show the defendant did not commit the charged offense). The Supreme Court of Virginia held that when the Commonwealth violates Brady, the statute of limitations for Virginia state habeas petitions can be tolled.