2006 Code of Virginia § 19.2-327.3 - Contents and form of the petition based on previously unknown or untested human biological evidenc...

19.2-327.3. Contents and form of the petition based on previously unknownor untested human biological evidence of actual innocence.

A. The petitioner shall allege categorically and with specificity, underoath, 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 isunder a sentence of death or convicted of (1) a Class 1 felony, (2) a Class 2felony or (3) any felony for which the maximum penalty is imprisonment forlife; (ii) that the petitioner is actually innocent of the crime for which hewas convicted; (iii) an exact description of the human biological evidenceand the scientific testing supporting the allegation of innocence; (iv) thatthe evidence was not previously known or available to the petitioner or histrial attorney of record at the time the conviction became final in thecircuit court, or if known, the reason that the evidence was not subject tothe scientific testing set forth in the petition; (v) the date the testresults under 19.2-327.1 became known to the petitioner or any attorney ofrecord; (vi) that the petitioner or his attorney of record has filed thepetition within 60 days of obtaining the test results under 19.2-327.1;(vii) that the petitioner is currently incarcerated; (viii) the reason orreasons the evidence will prove that no rational trier of fact could havefound proof of guilt beyond a reasonable doubt; and (ix) for any convictionthat became final in the circuit court after June 30, 1996, that the evidencewas not available for testing under 9.1-1104. The Supreme Court may issue astay of execution pending proceedings under the petition. 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 to 53.1-232.1 (iii) or (iv).

B. Such petition shall contain all relevant allegations of facts that areknown to the petitioner at the time of filing and shall enumerate and includeall previous records, applications, petitions, appeals and theirdispositions. 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 thepetitioner fails to submit a completed form, the court may dismiss thepetition or return the petition to the prisoner pending the completion ofsuch form. The petitioner shall be responsible for all statements containedin the petition. Any false statement in the petition, if such statement isknowingly or willfully made, shall be a ground for prosecution and convictionof perjury as provided for in 18.2-434.

C. The Supreme Court shall not accept the petition unless it is accompaniedby a duly executed return of service in the form of a verification that acopy of the petition and all attachments has been served on the attorney forthe Commonwealth of the jurisdiction where the conviction occurred and theAttorney General or an acceptance of service signed by these officials, orany combination thereof. The Attorney General shall have 30 days afterreceipt of the record by the clerk of the Supreme Court in which to file aresponse to the petition. The response may contain a proffer of any evidencepertaining to the guilt of the defendant that is not included in the recordof the case, including evidence that was suppressed at trial.

D. The Supreme Court may, when the case has been before a trial or appellatecourt, inspect the record of any trial or appellate court action, and theCourt may, in any case, award a writ of certiorari to the clerk of therespective court below, and have brought before the Court the whole record orany part of any record.

E. In any petition filed pursuant to this chapter, the defendant is entitledto representation by counsel subject to the provisions of Article 3 (19.2-157 et seq.) of Chapter 10 of this title.

(2001, cc. 873, 874; 2003, c. 131; 2005, cc. 868, 881.)