HB223: Writ of actual innocence; juvenile adjudicated delinquent of felony charge may petition court.
Be it enacted by the General Assembly of Virginia:
1. That §§ 19.2-327.1, 19.2-327.2, 19.2-327.3, 19.2-327.5, and 19.2-327.10 through 19.2-327.13 of the Code of Virginia are amended and reenacted as follows:
§ 19.2-327.1. Motion by a convicted felon or person adjudicated delinquent for scientific analysis of newly discovered or previously untested scientific evidence; procedure.
A. Notwithstanding any other provision of law or rule of
court, any person convicted of a felony or any person who as a juvenile was adjudicated delinquent by a judge of a juvenile
and domestic relations district court of an offense that
would be a felony if committed by an adult may, by motion
to the circuit court (i) that
entered the original conviction or (ii) in the case
of a juvenile adjudication of delinquency, of the jurisdiction where the
adjudication of delinquency was entered, apply for a new
scientific investigation of any human biological evidence related to the case
that resulted in the felony conviction or adjudication of
delinquency if: (i) (a) the evidence was not known
or available at the time the conviction or adjudication of
delinquency became final in the circuit court or the
evidence was not previously subjected to testing because the testing procedure
was not available at the Department of Forensic Science at the time the
conviction or adjudication of
delinquency became final in the circuit court; (ii) (b)
the evidence is subject to a chain of custody sufficient to establish that the
evidence has not been altered, tampered with, or substituted in any way; (iii) (c)
the testing is materially relevant, noncumulative, and necessary and may prove
the convicted person's actual
innocence of the convicted person or the person adjudicated
delinquent; (iv) (d) the testing requested
involves a scientific method employed by the Department of Forensic Science;
and (v) (e)
the convicted person convicted or adjudicated delinquent has
not unreasonably delayed the filing of the petition after the evidence or the
test for the evidence became available at the Department of Forensic Science.
B. The petitioner shall assert categorically and with specificity, under oath, the facts to support the items enumerated in subsection A and (i) the crime for which the person was convicted or adjudicated delinquent, (ii) the reason or reasons the evidence was not known or tested by the time the conviction or adjudication of delinquency became final in the circuit court, and (iii) the reason or reasons that the newly discovered or untested evidence may prove the actual innocence of the person convicted or adjudicated delinquent. Such motion shall contain all relevant allegations and facts that are known to the petitioner at the time of filing and shall enumerate and include all previous records, applications, petitions, appeals and their dispositions.
C. The petitioner shall serve a copy of such motion upon the attorney for the Commonwealth. The Commonwealth shall file its response to the motion within 30 days of the receipt of service. The court shall, no sooner than 30 and no later than 90 days after such motion is filed, hear the motion. Motions made by a petitioner under a sentence of death shall be given priority on the docket.
D. The court shall, after a hearing on the motion, set forth its findings specifically as to each of the items enumerated in subsections A and B and either (i) dismiss the motion for failure to comply with the requirements of this section or (ii) dismiss the motion for failure to state a claim upon which relief can be granted or (iii) order that the testing be done by the Department of Forensic Science based on a finding of clear and convincing evidence that the requirements of subsection A have been met.
E. The court shall order the tests to be performed by the Department of Forensic Science and prescribe in its order, pursuant to standards and guidelines established by the Department, the method of custody, transfer, and return of evidence submitted for scientific investigation sufficient to insure and protect the Commonwealth's interest in the integrity of the evidence. The results of any such testing shall be furnished simultaneously to the court, the petitioner and his attorney of record and the attorney for the Commonwealth. The Department of Forensic Science shall give testing priority to cases in which a sentence of death has been imposed. The results of any tests performed and any hearings held pursuant to this section shall become a part of the record.
F. Nothing in this section shall constitute grounds to delay
setting an execution date pursuant to § 53.1-232.1 or to grant a stay of
execution that has been set pursuant to clause (iii) or clause (iv)
of § 53.1-232.1 (iii) or (iv).
G. An action under this section or the performance of any attorney representing the petitioner under this section shall not form the basis for relief in any habeas corpus proceeding or any other appeal. Nothing in this section shall create any cause of action for damages against the Commonwealth or any of its political subdivisions or any officers, employees or agents of the Commonwealth or its political subdivisions.
H. In any petition filed pursuant to this chapter, the defendant petitioner is entitled to
representation by counsel subject to the provisions of Article 3 (§ 19.2-157 et seq.) of Chapter 10 of
this title.
§ 19.2-327.2. Issuance of writ of actual innocence based on biological evidence.
Notwithstanding any other provision of law or rule of court,
upon a petition of a person who was convicted of a felony upon a plea of not
guilty, or for any person, regardless of the plea, sentenced to death, or
convicted of (i) a Class 1 felony, (ii) a Class 2 felony,
or (iii) any felony for which the maximum penalty is imprisonment for life, or upon the
petition of a person who as a juvenile was adjudicated delinquent by a judge of
the juvenile and domestic
relations district
court,
regardless of his plea,
of an offense that would be a felony if committed by an adult, the
Supreme Court shall have the authority to issue writs of actual innocence under
this chapter. The writ shall lie to the circuit court that entered the felony
conviction; or, in the case of a juvenile adjudication of delinquency, to the circuit court of the
jurisdiction where the adjudication was entered,
and that court shall have the authority to conduct hearings, as provided for in
§ 19.2-327.5, on such a petition as directed by order from the Supreme Court.
§ 19.2-327.3. Contents and form of the petition based on previously unknown or untested human biological evidence of actual innocence.
A. The petitioner shall allege categorically and with
specificity, under oath, the following: (i) the crime for which the petitioner
was convicted or
the offense for which the petitioner was adjudicated delinquent,
and that, if a conviction, such
conviction was upon a plea of not guilty or that the person is under a sentence
of death or convicted of (1) (a) a Class 1 felony, (2) (b)
a Class 2 felony or (3) (c) any felony for which the
maximum penalty is imprisonment for life; (ii) that the petitioner is actually
innocent of the crime for which he was convicted or
adjudicated delinquent; (iii) an exact description of the
human biological evidence and the scientific testing supporting the allegation
of innocence; (iv) that the evidence was not previously known or available to
the petitioner or his trial attorney of record at the time the conviction
became final in the circuit court or adjudication of
delinquency became final in the juvenile and domestic relations district court,
or if known, the reason that the evidence was not subject to the scientific
testing set forth in the petition; (v) the date the test results under §
19.2-327.1 became known to the petitioner or any attorney of record; (vi) that
the petitioner or his attorney of record has filed the petition within 60 days
of obtaining the test results under § 19.2-327.1; (vii) the reason or reasons
the evidence will prove that no rational trier of fact could have found proof
of guilt or delinquency beyond a
reasonable doubt; and (viii) for any conviction that became final in the
circuit court or adjudication of
delinquency that became final in the juvenile and domestic relations district
court after June 30, 1996, that the evidence was not
available for testing under § 9.1-1104. The Supreme Court may issue a stay of
execution pending proceedings under the petition. Nothing in this chapter shall
constitute grounds to delay setting an execution date pursuant to § 53.1-232.1
or to grant a stay of execution that has been set pursuant to clause (iii) or clause (iv) of
§ 53.1-232.1 (iii) or (iv).
B. Such petition shall contain all relevant allegations of facts that are known to the petitioner at the time of filing and shall enumerate and include all previous records, applications, petitions, appeals and their dispositions. A copy of any test results shall be filed with the petition. The petition shall be filed on a form provided by the Supreme Court. If the petitioner fails to submit a completed form, the court may dismiss the petition or return the petition to the prisoner pending the completion of such form. The petitioner shall be responsible for all statements contained in the petition. Any false statement in the petition, if such statement is knowingly or willfully made, shall be a ground for prosecution and conviction of perjury as provided for in § 18.2-434.
C. The Supreme Court shall not accept the petition unless it is accompanied by a duly executed return of service in the form of a verification that a copy of the petition and all attachments has been served on the attorney for the Commonwealth of the jurisdiction where the conviction or adjudication of delinquency occurred and the Attorney General or an acceptance of service signed by these officials, or any combination thereof. The Attorney General shall have 30 days after receipt of the record by the clerk of the Supreme Court in which to file a response to the petition. The response may contain a proffer of any evidence pertaining to the guilt of the defendant that is not included in the record of the case, including evidence that was suppressed at trial.
D. The Supreme Court may, when the case has been before a trial or appellate court, inspect the record of any trial or appellate court action, and the Court may, in any case, award a writ of certiorari to the clerk of the respective court below, and have brought before the Court the whole record or any part of any record.
E. In any petition filed pursuant to this chapter, the defendant petitioner is entitled to
representation by counsel subject to the provisions of Article 3 (§ 19.2-157 et
seq.) of Chapter 10 of this title.
§ 19.2-327.5. Relief under writ.
Upon consideration of the petition, the response by the Commonwealth, previous records of the case, the record of any hearing held under this chapter and the record of any hearings held pursuant to § 19.2-327.1, and if applicable, any findings certified from the circuit court pursuant to § 19.2-327.4, the Court shall either dismiss the petition for failure to state a claim or assert grounds upon which relief shall be granted; or upon a hearing the Court shall (i) dismiss the petition for failure to establish allegations sufficient to justify the issuance of the writ, or (ii) only upon a finding of clear and convincing evidence that the petitioner has proven all of the allegations contained in clauses (iv) through (viii) of subsection A of § 19.2-327.3, and upon a finding that no rational trier of fact could have found proof of guilt or delinquency beyond a reasonable doubt, grant the writ, and vacate the conviction or adjudication of delinquency, or in the event that the Court finds that no rational trier of fact could have found sufficient evidence beyond a reasonable doubt as to one or more elements of the offense for which the petitioner was convicted or adjudicated delinquent, but the Court finds that there remains in the original trial record evidence sufficient to find the petitioner guilty or delinquent beyond a reasonable doubt of a lesser included offense, the court shall modify the conviction or adjudication of delinquency accordingly and remand the case to the circuit court for resentencing. The burden of proof in a proceeding brought pursuant to this chapter shall be upon the convicted or delinquent person seeking relief. If a writ vacating a conviction or adjudication of delinquency is granted, the Court shall forward a copy of the writ to the circuit court, where an order of expungement shall be immediately granted.
§ 19.2-327.10. Issuance of writ of actual innocence based on nonbiological evidence.
Notwithstanding any other provision of law or rule of court,
upon a petition of a person who was convicted of a felony upon a plea of not
guilty, or the petition of
a person who as a juvenile was adjudicated delinquent, regardless of his plea, by a judge of the juvenile and domestic relations district
court of an offense that
would be a felony if committed by an adult, the Court of
Appeals shall have the authority to issue writs of actual innocence under this
chapter. Only one such writ based upon such conviction may be filed by a
petitioner. The writ shall lie to the court that entered the conviction; or, in the case of a
juvenile adjudication of delinquency, to the circuit court of the jurisdiction where the adjudication was entered,
and that court shall have the authority to conduct hearings, as provided for in
this chapter, on such a petition as directed by order from the Court of
Appeals. In accordance with §§ 17.1-411 and 19.2-317, either party may appeal a
final decision of the Court of Appeals to the Supreme Court of Virginia. Upon
an appeal from the Court of Appeals, the Supreme Court of Virginia shall have
the authority to issue writs in accordance with the provisions of this chapter.
§ 19.2-327.11. Contents and form of the petition based on previously unknown or unavailable evidence of actual innocence.
A. The petitioner shall allege categorically and with
specificity, under oath, all of the following: (i) the crime for which the
petitioner was convicted or the
offense for which the petitioner was adjudicated delinquent, and that, if a conviction,
such conviction was upon a plea of not guilty; (ii) that the petitioner is
actually innocent of the crime for which he was convicted or the
offense for which he was adjudicated delinquent;
(iii) an exact description of the previously unknown or unavailable evidence
supporting the allegation of innocence; (iv) that such evidence was previously
unknown or unavailable to the petitioner or his trial attorney of record at the
time the conviction or adjudication of
delinquency became final in the circuit court; (v) the date
the previously unknown or unavailable evidence became known or available to the
petitioner, and the circumstances under which it was discovered; (vi) that the
previously unknown or unavailable evidence is such as could not, by the
exercise of diligence, have been discovered or obtained before the expiration
of 21 days following entry of the final order of conviction or
adjudication of delinquency by the court; (vii) the
previously unknown or unavailable evidence is material and when considered with
all of the other evidence in the current record, will prove that no rational
trier of fact could have found proof of guilt or
delinquency beyond a reasonable doubt; and (viii) the
previously unknown or unavailable evidence is not merely cumulative,
corroborative or collateral. Nothing in this chapter shall constitute grounds
to delay setting an execution date pursuant to § 53.1-232.1 or to grant a stay
of execution that has been set pursuant to clause (iii) or clause (iv) of §
53.1-232.1 or to delay or stay any other post-conviction appeals
following
conviction or adjudication of delinquency, or petitions to any
court. Human biological evidence may not be used as the sole basis for seeking
relief under this writ but may be used in conjunction with other evidence.
B. Such petition shall contain all relevant allegations of facts that are known to the petitioner at the time of filing, shall be accompanied by all relevant documents, affidavits and test results, and shall enumerate and include all relevant previous records, applications, petitions, appeals and their dispositions. The petition shall be filed on a form provided by the Supreme Court. If the petitioner fails to submit a completed form, the Court of Appeals may dismiss the petition or return the petition to the petitioner pending the completion of such form. Any false statement in the petition, if such statement is knowingly or willfully made, shall be a ground for prosecution of perjury as provided for in § 18.2-434.
C. In cases brought by counsel for the petitioner, the Court
of Appeals shall not accept the petition unless it is accompanied by a duly
executed return of service in the form of a verification that a copy of the
petition and all attachments have been served on the attorney for the
Commonwealth of the jurisdiction where the conviction or adjudication of
delinquency
occurred and the Attorney General, or an acceptance of service signed by these
officials, or any combination thereof. In cases brought by petitioners pro se,
the Court of Appeals shall not accept the petition unless it is accompanied by
a certificate that a copy of the petition and all attachments have been sent,
by certified mail, to the attorney for the Commonwealth of the jurisdiction
where the conviction or adjudication of delinquency
occurred and the Attorney General. If the Court of Appeals does not summarily
dismiss the petition, it shall so notify in writing the Attorney General, the
attorney for the Commonwealth, and the petitioner. The Attorney General shall
have 60 days after receipt of such notice in which to file a response to the
petition that may be extended for good cause shown; however, nothing shall
prevent the Attorney General from filing an earlier response. The response may
contain a proffer of any evidence pertaining to the guilt or delinquency
of the petitioner that is not included in the record of the case, including
evidence that was suppressed at trial.
D. The Court of Appeals may inspect the record of any trial or appellate court action, and the Court may, in any case, award a writ of certiorari to the clerk of the respective court below, and have brought before the Court the whole record or any part of any record. If, in the judgment of the Court, the petition fails to state a claim, or if the assertions of previously unknown or unavailable evidence, even if true, would fail to qualify for the granting of relief under this chapter, the Court may dismiss the petition summarily, without any hearing or a response from the Attorney General.
E. In any petition filed pursuant to this chapter that is not
summarily dismissed, the defendant is entitled to representation by counsel
subject to the provisions of Article 3 (§ 19.2-157 et seq.) and Article 4 (§
19.2-163.1 et seq.) of Chapter 10 of this title.
The Court of Appeals may, in its discretion, appoint counsel prior to deciding
whether a petition should be summarily dismissed.
§ 19.2-327.12. Determination by Court of Appeals for findings of fact by the circuit court.
If the Court of Appeals determines from the petition, from any hearing on the petition, from a review of the records of the case, or from any response from the Attorney General that a resolution of the case requires further development of the facts, the court may order the circuit court (i) in which the order of conviction was originally entered or (ii) in the case of a juvenile adjudication of delinquency, of the jurisdiction where the adjudication of delinquency was entered, to conduct a hearing within 90 days after the order has been issued to certify findings of fact with respect to such issues as the Court of Appeals shall direct. The record and certified findings of fact of the circuit court shall be filed in the Court of Appeals within 30 days after the hearing is concluded. The petitioner or his attorney of record, the attorney for the Commonwealth and the Attorney General shall be served a copy of the order stating the specific purpose and evidence for which the hearing has been ordered.
§ 19.2-327.13. Relief under writ.
Upon consideration of the petition, the response by the Commonwealth, previous records of the case, the record of any hearing held under this chapter and, if applicable, any findings certified from the circuit court pursuant to an order issued under this chapter, the Court of Appeals, if it has not already summarily dismissed the petition, shall either dismiss the petition for failure to state a claim or assert grounds upon which relief shall be granted; or the Court shall (i) dismiss the petition for failure to establish previously unknown or unavailable evidence sufficient to justify the issuance of the writ, or (ii) only upon a finding that the petitioner has proven by clear and convincing evidence all of the allegations contained in clauses (iv) through (viii) of subsection A of § 19.2-327.11, and upon a finding that no rational trier of fact could have found proof of guilt or delinquency beyond a reasonable doubt, grant the writ, and vacate the conviction or finding of delinquency, or in the event that the Court finds that no rational trier of fact could have found sufficient evidence beyond a reasonable doubt as to one or more elements of the offense for which the petitioner was convicted or found delinquent, but the Court finds that there remains in the original trial record evidence sufficient to find the petitioner guilty or delinquent beyond a reasonable doubt of a lesser included offense, the court shall modify the order of conviction or delinquency accordingly and remand the case to the circuit court or juvenile and domestic relations district court, as appropriate, for resentencing. The burden of proof in a proceeding brought pursuant to this chapter shall be upon the convicted or delinquent person seeking relief. If a writ vacating a conviction or adjudication of delinquency is granted, and no appeal is made to the Supreme Court, or the Supreme Court denies the Commonwealth's petition for appeal or upholds the decision of the Court of Appeals to grant the writ, the Court of Appeals shall forward a copy of the writ to the circuit court, where an order of expungement shall be immediately granted.