Hembrick v. Murray

By JUDGE WILLIAM R. SHELTON The Court has reviewed [the] petition for a habeas corpus and finds that it must be denied. The Supreme Court of Virginia has established that the Virginia habeas statutes are limited in applicability to those situations where the defendant is actually incarcerated at the time of the request. In the case of Blair v. Peyton, the court states that "the habeas corpus statutes are designed to provide relief in the form of a ‘discharge’ (Code Section 8-603) . from the ‘person in whose custody’ (Code Section 8-598) a petitioner is ‘detained without lawful authority’ (Code Section 8-596)." Blair v. Peyton, 210 Va. 415, 417 (1970). See also Morgan v. Juvenile and Domestic Relation Court, 491 F.2d 456 (4th Cir. 1974). In Blair the Court denied the defendant’s request for a habeas because the request was argued after the defendant was released from jail. In the case at hand the defendant’s petition has indicated that the defendant is not currently incarcerated but is instead out on bond pending appeal. This Court feels that pursuant to the court’s opinion in Blair it would be improper for this Court to grant a writ of habeas corpus where the defendant is not presently incarcerated.