                                 CODE OF VIRGINIA

CONTENTS AND FORM OF THE PETITION BASED ON PREVIOUSLY UNKNOWN OR UNAVAILABLE
EVIDENCE OF ACTUAL INNOCENCE (§ 19.2-327.11)

A. The petitioner shall allege categorically and with specificity, under oath,
all of the following: (i) the crime for which the petitioner was convicted or
the offense for which the petitioner was adjudicated delinquent; (ii) that the
petitioner is actually innocent of the crime for which he was convicted or the
offense for which he was adjudicated delinquent; (iii) an exact description of
(a) the previously unknown or unavailable evidence supporting the allegation of
innocence or (b) the previously untested evidence and the scientific testing
supporting the allegation of innocence; (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; (v) the date (a) the previously
unknown or unavailable evidence became known or available to the petitioner and
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; (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, 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 the previously unknown, unavailable, or untested evidence is not
merely cumulative, corroborative, or collateral. Nothing in this chapter shall
constitute grounds to delay or stay any other appeals following conviction or
adjudication of delinquency, 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, and 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 &#xA7; 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 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 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
Court of Appeals may summarily dismiss any second or subsequent petition for
failure to identify new or different evidence in support of the factual
innocence claim or, if new and different grounds are alleged, failure of the
petitioner to assert those grounds in a prior petition filed pursuant to this
section under circumstances that constitute an abuse of the writ. 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 delinquency 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, 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.

E. In any petition filed pursuant to this chapter that is not summarily
dismissed, the petitioner is entitled to representation by counsel subject to
the provisions of Article 3 (&#xA7; 19.2-157 et seq.) and Article 4 (&#xA7;
19.2-163.3 et seq.) of Chapter 10. The Court of Appeals may, in its discretion,
appoint counsel prior to deciding whether a petition should be summarily
dismissed.

F. Upon the scheduling of a hearing pursuant to &#xA7; 19.2-327.12 or any
subsequent oral argument, the Attorney General shall notify the victim or the
victim&#8217;s representative of the hearing. The victim or victim&#8217;s
representative shall have the right to attend any such hearing. For purposes of
this subsection, &#8220;victim&#8221; means the same as that term is defined in
subsection B of &#xA7; 19.2-11.01.

HISTORY: 2004, c. 1024; 2013, cc. 170, 180; 2020, cc. 993, 994; 2021, Sp. Sess.
I, cc. 344, 345; 2022, c. 625; 2023, c. 719.