HB 422 — Writ of actual innocence; previously unknown or unavailable nonbiological evidence, etc.

SESSION ENROLLED VIRGINIA ACTS OF ASSEMBLY ––-- 2022 SESSION CHAPTER E625 An Act to amend and reenact § 19.2-327.11 of the Code of Virginia, relating to writ of actual N innocence;

contents and form of peRition.petition.

O [H 422] Approved LApril L11, 2022 Be it enacted by the General Assembly of Virginia:

E § 19.2-327.11.

Contents and form of the petition based on previously unknown or unavailable Devidence eviA.of actual innocence.

A.

(ii) that the petitioner is actually innocent of the crime for which he was convicted or the offenseor forunavailable whichevidence hesupporting wasthe adjudicatedallegation delinquent;of innocence or (b) the previously untested evidenceown and the scientific testing supporting the allegation of innocence;

(iii)(iv)(a) anthat exactsuch descriptionevidence ofwas (a) the previously unknown or unavailable evidenceto supportingthe petitioner or his trial attorney of record at the allegationtime the conviction or adjudication of innocencedelinquency became final in the circuit court or (b) if known, the previouslyreason untestedthat the evidence andwas thenot subject to scientific testing supportingset theforth allegationin ofthe innocence;petition;

(iv)(a)(v) that such evidence was previously unknown or unavailable to the petitionerdate or(a) his trial attorney of record at the timeHthe conviction or adjudication of delinquency became final in the circuit court or (b) if known, th4 reason previously unknown or unavailable evidence became known or available to the petitioner and thee2(a) the circumstances under which it was discovered or (b) the results of the scientific testing of previously untested evidence became known to the petitioner or any attorney of record;

(vii) that the previously unknown, unavailable, or untested evidence is material and, when considered with all of the other evidence in the current record, will prove that no rational trier of fact would have found proof of guilt or delinquency beyond a reasonable doubt;

and (viii) that thetrierthe of previously unknown, unavailable, or untested evidence is not merely cumulative, corroborative, or collateral.

and shall enumerate and include all relevant previous records, applications, petitions, and appeals and their dispositions.

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 petitionersan proacceptance se, the Court of Appealsservice shallsigned not accept the petition unless it is accompanied by athese certificateofficials, 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 adjudicationany ofcombination delinquencythereof. occurred and the Attorney General.

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.

The response may contain a proffer of any evidence pertaining includingto evidencethe thatguilt wasor suppresseddelinquency ator trial.petitionerinnocence of the petitioner that is not included in the record of the case, D.including evidence that was suppressed at trial.

TheD. Court of Appeals may inspect the record of any trial or appellate court action, and the Court of 2 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,The inCourt the judgment of theAppeals Court,may inspect the petitionrecord failsof toany statetrial a claim, or ifappellate thecourt assertionsaction, ofand previouslythe unknown,Court unavailable,may, orin untestedany evidence,case, evenaward ifa true,writ wouldof failcertiorari to qualify for the grantingclerk of reliefthe underrespective thiscourt chapter,below, theand Courthave maybrought dismissbefore the petitionCourt summarily,the withoutwhole anyrecord hearing or aany responsepart fromof theany Attorneyrecord. General.

If, in the judgment of the Court, the of 2 petition fails to state a claim, or if the assertions of previously unknown, unavailable, or untested 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.