SB 958 — Writs of actual innocence; statue of limitations for filing of a petition.

SESSION ENROLLED VIRGINIA ACTS OF ASSEMBLY ––-- 2023 SESSION CHAPTER E719 An Act to amend and reenact §§ 19.2-327.10:1 and 19.2-327.11 of the Code of Virginia, relating to writs of actual innocence.

R O [S 958] Approved LMarch L27, 2023 Be it enacted by the General Assembly of Virginia:

That §§ 19.2-327.10:1 and 19.2-327.11 of the Code of Virginia are amended and reenacted as E follows:

D§ prisoner;19.2-327.10:1.

bondPetition hearing.ition for writ of actual innocence joined by Attorney General;

release of Theprisoner; Attorney General may join in a petition for a writ of actual innocence made pursuant to § 19.2-327.10 after providing written notice of such intent to the local attorney for the Commonwealth in the jurisdiction of conviction or adjudication of delinquency.

Whenbond suchhearing. petition is so joined, the petitioner may file a copy of the petition and attachments thereto and the Attorney General's answer with the circuit court that entered the felony conviction or adjudication of delinquency and move the court for a hearing to consider release of the person on bail pursuant to Chapter 9 (§ 19.2-119Bet seq.).

UponThe hearingAttorney andGeneral may join in a petition for gooda causewrit shown,of actual innocence made pursuant to § 19.2-327.10 after providing written notice of such intent to the courtlocal attorney for the Commonwealth petitioner may orderfile a copy of the personpetition releasedand fromattachments custodythereto sub5ectand underthe §Attorney 19.2-327.13.ditionsGeneral's answerhe with the circuit court that entered the felony conviction or adjudication of baildelinquency soand established,move pendingthe court for a rulinghearing byto theconsider Courtrelease of Appealsthe onEtheperson writon §bail 19.2-327.11.pursuant to Chapter 9 (§ 19.2-119 et seq.).

ContentsUpon hearing and formfor ofgood cause shown, the petitioncourt basedmay onorder previouslythe unknownperson orreleased unavailablefrom Rcustody evidencesubject to the terms and conditions of actualbail innocence.so established, pending a ruling by the Court of Appeals on the writ under § 19.2-327.13.

§ 19.2-327.11.

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

(iii) an exact description of (a) the previously unknown or unavailable evidence supporting the allegation of innocence or (b) the previously untested evidence previouslyand unknown or unavailable to the petitionerscientific ortesting hissupporting trial attorney of record at the timeallegation the conviction or adjudication of delinquencyinnocence; became final in the circuit court or (b) if known, the reason that the evidence was not subject to scientific testing set forth in the petition;

(iv)(a) 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 or (b) if known, the reason that the evidence was not subject to scientific testing set forth in the petition;

(vi)(a) that the previously unknown or unavailable evidence is such as could not, by the exercise of diligence, have been discovered or obtained before the time the conviction or adjudication of delinquency became final in the circuit court or (b) that the testing procedure was not available at the time the conviction or adjudication of delinquency became final in the circuit court;

(vii) that the previously unknown, unavailable, ordicationor 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;

timeB. of filing;

Such petition shall contain all relevant allegations of facts that are known to the petitioner at the time of filing;

and shall the 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 an acceptance of service signed by these officials, or any combination thereof.

In cases brought by of 2 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 of 2 attorney for the Commonwealth of the jurisdiction where the conviction or adjudication of delinquency occurred and the Attorney General.