Call Now - Free Consultation (304) 932-8775

Experienced Habeas Corpus Lawyer

Habeas Corpus Cases in West Virginia

If you or a loved one were found guilty of a crime and sentenced to incarceration, in addition to a direct criminal appeal, a person incarcerated under a term of imprisonment may file a petition for writ of habeas corpus.  A petition for writ of habeas corpus compels the government to bring an individual before the court to determine the legality of the person’s incarceration.  West Virginia law provides a specific post-conviction procedure that is guaranteed by the West Virginia Constitution.  A habeas corpus proceeding is a civil case.  It is not part of the original criminal case.

Habeas Corpus Cases Concern Constitutional Claims

A petition for writ of habeas corpus provides a mechanism to challenge constitutional violations.

Importantly, a habeas corpus case is not a substitute for a direct criminal appeal.  Only constitutional claims may be raised.  Even then, a citizen filing a habeas case must raise all constitutional claims he or she desires to pursue.  In most circumstances, failure to raise a particular claim will result in the waiver of the claim.

West Virginia habeas cases should raise all state and federal constitutional claims a citizen desires to pursue.  An example of claims that can be raised include: ineffective assistance of counsel; coerced confession; involuntary guilty plea; denial of the right to speedy trial; mental competency; double jeopardy violations; prejudicial statements by the prosecutor or judge; excessive sentence; and mistaken advice of counsel.  These are just examples and do not constitute an exhaustive list.


West Virginia circuit courts and the West Virginia Supreme Court of Appeals have concurrent, original jurisdiction over habeas proceedings.


Generally, habeas cases may be brought in the circuit court where the citizen is incarcerated or in the county where the citizen was convicted and sentenced.  Circuit courts have authority to transfer habeas cases to a different circuit court.

Filing a Habeas Corpus Case

The West Virginia Rules Governing Post-Conviction Habeas Corpus Proceedings set forth the procedure that must be followed when filing a case.  The initial petition should utilize the form provided by the West Virginia Supreme Court of Appeals.  It must state the claims for relief, a summary of the facts supporting the claims, and a specific statement of the relief requested.

Upon filing the petition, the circuit court will conduct an initial review to determine whether venue is appropriate and whether the petitioner has asserted claims upon which relief can be granted.  If the claims have been previously determined or waived, or if the petition is factually insufficient, a circuit court can summarily dismiss the habeas corpus petition.  If the petitioner raised viable claims, the circuit court may order the government to file an answer to the claims raised.

In the discretion of the circuit court, it may grant a citizen’s request for discovery from the government or other parties.  For example, a court can permit subpoenas to third parties for documents and depositions.  A circuit court can require the government to produce documents and answer written questions or interrogatories.

In many cases, circuit courts permit an evidentiary hearing where the citizen can offer evidence to support his or her habeas petition.  This evidence can include testimony from witnesses.  There is no jury.  The circuit court judge is the fact finder.

Upon submitting evidence, the circuit court will issue a final order.  Circuit courts have broad discretion when granting relief.

The final order of the circuit court can be appealed to the West Virginia Supreme Court of Appeals.  Assuming the citizen is afforded no relief in state court, so long as certain time frames are met, the citizen may thereafter seek relief through a federal habeas corpus case.

Experienced Habeas Corpus Lawyer

Habeas proceedings are complex.  Only constitutional claims can be raised.  Moreover, it is critical that all viable constitutional claims be asserted.  Claims not raised are generally forever waived.  Procedures in habeas corpus cases present ample opportunity for cases to be dismissed if viable claims are not asserted.  It is important that you have an experienced West Virginia habeas corpus lawyer on your side.  Your habeas corpus lawyer must pay close attention to the details of the original criminal case.

Barney Law PLLC has experience representing clients in habeas corpus cases in West Virginia and has obtained habeas corpus relief resulting in a client’s early release from prison.   Though we are located in Teays Valley, West Virginia, we provide habeas corpus representation in counties throughout West Virginia.