HB1432: Writ of actual innocence; revises one of allegations necessary to petition.
HOUSE BILL NO. 1432
Be it enacted by the General Assembly of Virginia:
1. That 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:
19.2-327.3. 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, and that 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;
(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 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 would have found proof of
guilt beyond a reasonable doubt; and (viii) for any conviction that became
final in the circuit 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 (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 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 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 or innocence 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 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 Supreme 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 would
have found proof of guilt beyond a reasonable doubt, grant the writ, and vacate
the conviction, or in the event that the Court finds that no rational trier of
fact could would
have found sufficient evidence beyond a reasonable doubt as to one or more
elements of the offense for which the petitioner was convicted, but the Court
finds that there remains in the original trial record evidence sufficient to
find the petitioner guilty beyond a reasonable doubt of a lesser included
offense, the court Court
shall modify the conviction 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 person seeking relief. If a writ
vacating a conviction is granted, the Court shall forward a copy of the writ to
the circuit court, where an order of expungement shall be immediately granted.
19.2-327.11. 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, and that such conviction was upon a plea of not
guilty; (ii) that the petitioner is actually innocent of the crime for which he
was convicted; (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 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 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 would
have found proof of guilt 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 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 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 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 innocence 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
19.2-163.3 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.
19.2-327.13. 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 would have found proof of
guilt beyond a reasonable doubt, grant the writ, and vacate the conviction, or
in the event that the Court finds that no rational trier of fact could would
have found sufficient evidence beyond a reasonable doubt as to one or more
elements of the offense for which the petitioner was convicted, but the Court
finds that there remains in the original trial record evidence sufficient to
find the petitioner guilty beyond a reasonable doubt of a lesser included offense,
the court Court
shall modify the order of conviction 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 person seeking relief. If a
writ vacating a conviction 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.