19.2-327.11 - Contents and form of the petition based on previously unknown or unavailable evidence of actual innocence.
§ 19.2-327.11. Contents and form of the petition based on previously unknownor unavailable evidence of actual innocence.
A. The petitioner shall allege categorically and with specificity, underoath, all of the following: (i) the crime for which the petitioner wasconvicted, and that such conviction was upon a plea of not guilty; (ii) thatthe petitioner is actually innocent of the crime for which he was convicted;(iii) an exact description of the previously unknown or unavailable evidencesupporting the allegation of innocence; (iv) that such evidence waspreviously unknown or unavailable to the petitioner or his trial attorney ofrecord at the time the conviction became final in the circuit court; (v) thedate the previously unknown or unavailable evidence became known or availableto the petitioner, and the circumstances under which it was discovered; (vi)that the previously unknown or unavailable evidence is such as could not, bythe exercise of diligence, have been discovered or obtained before theexpiration of 21 days following entry of the final order of conviction by thecourt; (vii) the previously unknown or unavailable evidence is material andwhen considered with all of the other evidence in the current record, willprove that no rational trier of fact could have found proof of guilt beyond areasonable doubt; and (viii) the previously unknown or unavailable evidenceis not merely cumulative, corroborative or collateral. Nothing in thischapter shall constitute grounds to delay setting an execution date pursuantto § 53.1-232.1 or to grant a stay of execution that has been set pursuant toclause (iii) or clause (iv) of § 53.1-232.1 or to delay or stay any otherpost-conviction appeals or petitions to any court. Human biological evidencemay not be used as the sole basis for seeking relief under this writ but maybe used in conjunction with other evidence.
B. Such petition shall contain all relevant allegations of facts that areknown to the petitioner at the time of filing, shall be accompanied by allrelevant documents, affidavits and test results, and shall enumerate andinclude all relevant previous records, applications, petitions, appeals andtheir dispositions. The petition shall be filed on a form provided by theSupreme Court. If the petitioner fails to submit a completed form, the Courtof Appeals may dismiss the petition or return the petition to the petitionerpending the completion of such form. Any false statement in the petition, ifsuch statement is knowingly or willfully made, shall be a ground forprosecution of perjury as provided for in § 18.2-434.
C. In cases brought by counsel for the petitioner, the Court of Appeals shallnot accept the petition unless it is accompanied by a duly executed return ofservice in the form of a verification that a copy of the petition and allattachments have been served on the attorney for the Commonwealth of thejurisdiction where the conviction occurred and the Attorney General, or anacceptance of service signed by these officials, or any combination thereof.In cases brought by petitioners pro se, the Court of Appeals shall not acceptthe petition unless it is accompanied by a certificate that a copy of thepetition and all attachments have been sent, by certified mail, to theattorney for the Commonwealth of the jurisdiction where the convictionoccurred and the Attorney General. If the Court of Appeals does not summarilydismiss the petition, it shall so notify in writing the Attorney General, theattorney for the Commonwealth, and the petitioner. The Attorney General shallhave 60 days after receipt of such notice in which to file a response to thepetition that may be extended for good cause shown; however, nothing shallprevent the Attorney General from filing an earlier response. The responsemay contain a proffer of any evidence pertaining to the guilt of thepetitioner that is not included in the record of the case, including evidencethat was suppressed at trial.
D. The Court of Appeals may inspect the record of any trial or appellatecourt action, and the Court may, in any case, award a writ of certiorari tothe clerk of the respective court below, and have brought before the Courtthe 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 previouslyunknown or unavailable evidence, even if true, would fail to qualify for thegranting of relief under this chapter, the Court may dismiss the petitionsummarily, without any hearing or a response from the Attorney General.
E. In any petition filed pursuant to this chapter that is not summarilydismissed, the defendant is entitled to representation by counsel subject tothe provisions of Article 3 (§ 19.2-157 et seq.) and Article 4 (§ 19.2-163.1et seq.) of Chapter 10 of this title. The Court of Appeals may, in itsdiscretion, appoint counsel prior to deciding whether a petition should besummarily dismissed.
(2004, c. 1024.)