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2009 SESSION
Be it enacted by the General Assembly of Virginia:
1. That §§ 19.2-327.2, 19.2-327.3, and 19.2-327.5 of the Code of Virginia are amended and reenacted as follows:
§ 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 incarcerated 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, 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; 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, 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 Class 1 felony,
(2) a Class 2 felony or (3) 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)
that the petitioner is currently incarcerated; (viii) the reason or
reasons the evidence will prove that no rational trier of fact could have found
proof of guilt beyond a reasonable doubt; and (ix) (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 § 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 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 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 (ix) (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 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 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 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.