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 § 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 (§ 19.2-157 et seq.) and Article 4 (§ 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 § 19.2-327.12 or any subsequent oral argument, the Attorney General shall notify the victim or the victim's representative of the hearing. The victim or victim's representative shall have the right to attend any such hearing. For purposes of this subsection, "victim" means the same as that term is defined in subsection B of § 19.2-11.01.
2004, c. 1024; 2013, cc. 170, 180; 2020, cc. 993, 994; 2021, Sp. Sess. I, cc. 344, 345; 2022, c. 625; 2023, c. 719.
Notes of Decisions
Cited in
48
cases (
11 in the last 5 years), 2004–2025 · leading case:
Turner v. Commonwealth, 694 S.E.2d 251 (Va. Ct. App. 2010).
Turner v. Commonwealth, 694 S.E.2d 251 (Va. Ct. App. 2010).
· cites it 87× “See Code §§ 19.2-327.11 to 19.2-327.14. Having examined the entire record, [15] we conclude that Turner has not met his statutory burden.”
Gary Linwood Bush v. Commonwealth of Virginia, 813 S.E.2d 582 (Va. Ct. App. 2018).
· cites it 35× “This Court may grant a writ for actual innocence "only upon a finding that the petitioner has proven by clear and convincing evidence all of the allegations contained in clauses (iv) through (viii) of subsection A of [Code] § 19.2-327.11, and upon a finding that no rational…”
Carpitcher v. Com., 641 S.E.2d 486 (Va. 2007).
· cites it 28× “In considering the term "material" in the present context of Code § 19.2-327.11, we must determine and give effect to the intent of the legislature.”
Turner v. Commonwealth, 680 S.E.2d 312 (Va. Ct. App. 2009).
· cites it 52× “See Code §§ 19.2-327.11 to 19.2-327.14. This analysis is not as simple as merely accepting the circuit court's determination that Brown testified credibly that he acted alone when he physically committed the murder and that Turner played no role in the restraint of Evans as…”
Thomas Haynesworth v. Commonwealth of Virginia, 717 S.E.2d 817 (Va. Ct. App. 2011).
· cites it 63× “” Code § 19.2-327.11. This broad requirement is clarified later in the section by the statement that, “[h]uman 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.”
Johnson v. Commonwealth, 641 S.E.2d 480 (Va. 2007).
· cites it 15× “Each such petitioner must establish by clear and convincing evidence "all of the allegations contained in clauses (iv) through (viii) of subsection A of [Code] § 19.2-327.11." Code § 19.2-327.13. The provisions of Code § 19.”
In Re Carpitcher, 624 S.E.2d 700 (Va. Ct. App. 2006).
· cites it 16× “According to Code § 19.2-327.11, the petition for a writ of actual innocence must allege, inter alia, that the newly-discovered evidence: (1) “was previously unknown or unavailable to the petitioner or his trial attorney of record at the time the conviction became final in the…”
Turner v. Com., 717 S.E.2d 111 (Va. 2011).
· cites it 10× “To obtain a writ of actual innocence, Turner must prove that the newly-discovered evidence 1) "was previously unknown or unavailable to the petitioner or his trial attorney of record at the time the conviction became final in the circuit court;" Code § 19.”
Johnathan Christopher Montgomery v. Commonwealth of Virginia, 751 S.E.2d 692 (Va. Ct. App. 2013).
· cites it 18× “This Court may grant the petition “upon a finding that the petitioner has proven by clear and convincing evidence all of the allegations contained in clauses (iv) through (viii) of subsection A of Code § 19.2-327.11, and upon a finding that no rational trier of fact could have…”
Copeland v. Commonwealth, 664 S.E.2d 528 (Va. Ct. App. 2008).
· cites it 4× “To succeed, Copeland must prove by clear and convincing evidence that, among other things, the after-discovered information was “previously unknown or unavailable to the petitioner or his trial attorney of record at the time the conviction became final in the circuit court,”…”
Moore v. Commonwealth, 671 S.E.2d 429 (Va. Ct. App. 2009).
· cites it 18× “The statutes governing writs of actual innocence based on non-biological evidence considered as a whole, and Code § 19.2-327.11 in particular, were not intended to provide relief to individuals who merely produce evidence contrary to the evidence presented at their criminal…”
Darnell Phillips v. Commonwealth of Virginia, 820 S.E.2d 892 (Va. Ct. App. 2018).
· cites it 5× “This Court may grant a writ of actual innocence "only upon a finding that the petitioner has proven by clear and convincing evidence all of the allegations contained in clauses (iv) through (viii) of subsection A of [Code] § 19.2-327.11, and upon a finding that no rational trier…”
— Va. Code Ann. § 19.2-327.11(A) — 23 cases
Gary Linwood Bush v. Commonwealth of Virginia, 813 S.E.2d 582 (Va. Ct. App. 2018).
“This Court may grant a writ for actual innocence "only upon a finding that the petitioner has proven by clear and convincing evidence all of the allegations contained in clauses (iv) through (viii) of subsection A of [Code] § 19.2-327.11, and upon a finding that no rational…”
Johnathan Christopher Montgomery v. Commonwealth of Virginia, 751 S.E.2d 692 (Va. Ct. App. 2013).
“This Court may grant the petition “upon a finding that the petitioner has proven by clear and convincing evidence all of the allegations contained in clauses (iv) through (viii) of subsection A of Code § 19.2-327.11, and upon a finding that no rational trier of fact could have…”
Darnell Phillips v. Commonwealth of Virginia, 820 S.E.2d 892 (Va. Ct. App. 2018).
“This Court may grant a writ of actual innocence "only upon a finding that the petitioner has proven by clear and convincing evidence all of the allegations contained in clauses (iv) through (viii) of subsection A of [Code] § 19.2-327.11, and upon a finding that no rational trier…”
Thomas Haynesworth v. Commonwealth of Virginia, 717 S.E.2d 817 (Va. Ct. App. 2011).
“” Code § 19.2-327.11. This broad requirement is clarified later in the section by the statement that, “[h]uman 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.”
— Va. Code Ann. § 19.2-327.11(A)(i) — 2 cases
Johnathan Christopher Montgomery v. Commonwealth of Virginia, 751 S.E.2d 692 (Va. Ct. App. 2013).
“This Court may grant the petition “upon a finding that the petitioner has proven by clear and convincing evidence all of the allegations contained in clauses (iv) through (viii) of subsection A of Code § 19.2-327.11, and upon a finding that no rational trier of fact could have…”
— Va. Code Ann. § 19.2-327.11(A)(ii) — 1 case
Johnathan Christopher Montgomery v. Commonwealth of Virginia, 751 S.E.2d 692 (Va. Ct. App. 2013).
“This Court may grant the petition “upon a finding that the petitioner has proven by clear and convincing evidence all of the allegations contained in clauses (iv) through (viii) of subsection A of Code § 19.2-327.11, and upon a finding that no rational trier of fact could have…”
— Va. Code Ann. § 19.2-327.11(A)(iv) — 18 cases
Gary Linwood Bush v. Commonwealth of Virginia, 813 S.E.2d 582 (Va. Ct. App. 2018).
“This Court may grant a writ for actual innocence "only upon a finding that the petitioner has proven by clear and convincing evidence all of the allegations contained in clauses (iv) through (viii) of subsection A of [Code] § 19.2-327.11, and upon a finding that no rational…”
Turner v. Commonwealth, 694 S.E.2d 251 (Va. Ct. App. 2010).
“See Code §§ 19.2-327.11 to 19.2-327.14. Having examined the entire record, [15] we conclude that Turner has not met his statutory burden.”
Copeland v. Commonwealth, 664 S.E.2d 528 (Va. Ct. App. 2008).
“To succeed, Copeland must prove by clear and convincing evidence that, among other things, the after-discovered information was “previously unknown or unavailable to the petitioner or his trial attorney of record at the time the conviction became final in the circuit court,”…”
Carpitcher v. Com., 641 S.E.2d 486 (Va. 2007).
“In considering the term "material" in the present context of Code § 19.2-327.11, we must determine and give effect to the intent of the legislature.”
Turner v. Commonwealth, 680 S.E.2d 312 (Va. Ct. App. 2009).
“See Code §§ 19.2-327.11 to 19.2-327.14. This analysis is not as simple as merely accepting the circuit court's determination that Brown testified credibly that he acted alone when he physically committed the murder and that Turner played no role in the restraint of Evans as…”
— Va. Code Ann. § 19.2-327.11(A)(iv)(2) — 1 case
Turner v. Com., 717 S.E.2d 111 (Va. 2011).
“To obtain a writ of actual innocence, Turner must prove that the newly-discovered evidence 1) "was previously unknown or unavailable to the petitioner or his trial attorney of record at the time the conviction became final in the circuit court;" Code § 19.”
— Va. Code Ann. § 19.2-327.11(A)(iv)(a) — 9 cases
— Va. Code Ann. § 19.2-327.11(A)(v)(a) — 2 cases
— Va. Code Ann. § 19.2-327.11(A)(vi) — 16 cases
Gary Linwood Bush v. Commonwealth of Virginia, 813 S.E.2d 582 (Va. Ct. App. 2018).
“This Court may grant a writ for actual innocence "only upon a finding that the petitioner has proven by clear and convincing evidence all of the allegations contained in clauses (iv) through (viii) of subsection A of [Code] § 19.2-327.11, and upon a finding that no rational…”
Turner v. Commonwealth, 694 S.E.2d 251 (Va. Ct. App. 2010).
“See Code §§ 19.2-327.11 to 19.2-327.14. Having examined the entire record, [15] we conclude that Turner has not met his statutory burden.”
Copeland v. Commonwealth, 664 S.E.2d 528 (Va. Ct. App. 2008).
“To succeed, Copeland must prove by clear and convincing evidence that, among other things, the after-discovered information was “previously unknown or unavailable to the petitioner or his trial attorney of record at the time the conviction became final in the circuit court,”…”
Carpitcher v. Com., 641 S.E.2d 486 (Va. 2007).
“In considering the term "material" in the present context of Code § 19.2-327.11, we must determine and give effect to the intent of the legislature.”
Turner v. Commonwealth, 680 S.E.2d 312 (Va. Ct. App. 2009).
“See Code §§ 19.2-327.11 to 19.2-327.14. This analysis is not as simple as merely accepting the circuit court's determination that Brown testified credibly that he acted alone when he physically committed the murder and that Turner played no role in the restraint of Evans as…”
— Va. Code Ann. § 19.2-327.11(A)(vi)(a) — 5 cases
— Va. Code Ann. § 19.2-327.11(A)(vii) — 31 cases
Turner v. Commonwealth, 694 S.E.2d 251 (Va. Ct. App. 2010).
“See Code §§ 19.2-327.11 to 19.2-327.14. Having examined the entire record, [15] we conclude that Turner has not met his statutory burden.”
Carpitcher v. Com., 641 S.E.2d 486 (Va. 2007).
“In considering the term "material" in the present context of Code § 19.2-327.11, we must determine and give effect to the intent of the legislature.”
Turner v. Commonwealth, 680 S.E.2d 312 (Va. Ct. App. 2009).
“See Code §§ 19.2-327.11 to 19.2-327.14. This analysis is not as simple as merely accepting the circuit court's determination that Brown testified credibly that he acted alone when he physically committed the murder and that Turner played no role in the restraint of Evans as…”
Gary Linwood Bush v. Commonwealth of Virginia, 813 S.E.2d 582 (Va. Ct. App. 2018).
“This Court may grant a writ for actual innocence "only upon a finding that the petitioner has proven by clear and convincing evidence all of the allegations contained in clauses (iv) through (viii) of subsection A of [Code] § 19.2-327.11, and upon a finding that no rational…”
Thomas Haynesworth v. Commonwealth of Virginia, 717 S.E.2d 817 (Va. Ct. App. 2011).
“” Code § 19.2-327.11. This broad requirement is clarified later in the section by the statement that, “[h]uman 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.”
— Va. Code Ann. § 19.2-327.11(A)(viii) — 23 cases
Gary Linwood Bush v. Commonwealth of Virginia, 813 S.E.2d 582 (Va. Ct. App. 2018).
“This Court may grant a writ for actual innocence "only upon a finding that the petitioner has proven by clear and convincing evidence all of the allegations contained in clauses (iv) through (viii) of subsection A of [Code] § 19.2-327.11, and upon a finding that no rational…”
Turner v. Commonwealth, 694 S.E.2d 251 (Va. Ct. App. 2010).
“See Code §§ 19.2-327.11 to 19.2-327.14. Having examined the entire record, [15] we conclude that Turner has not met his statutory burden.”
Carpitcher v. Com., 641 S.E.2d 486 (Va. 2007).
“In considering the term "material" in the present context of Code § 19.2-327.11, we must determine and give effect to the intent of the legislature.”
Turner v. Commonwealth, 680 S.E.2d 312 (Va. Ct. App. 2009).
“See Code §§ 19.2-327.11 to 19.2-327.14. This analysis is not as simple as merely accepting the circuit court's determination that Brown testified credibly that he acted alone when he physically committed the murder and that Turner played no role in the restraint of Evans as…”
Turner v. Com., 717 S.E.2d 111 (Va. 2011).
“To obtain a writ of actual innocence, Turner must prove that the newly-discovered evidence 1) "was previously unknown or unavailable to the petitioner or his trial attorney of record at the time the conviction became final in the circuit court;" Code § 19.”
— Va. Code Ann. § 19.2-327.11(A)(viii)(a) — 1 case
— Va. Code Ann. § 19.2-327.11(C) — 9 cases
Turner v. Commonwealth, 694 S.E.2d 251 (Va. Ct. App. 2010).
“See Code §§ 19.2-327.11 to 19.2-327.14. Having examined the entire record, [15] we conclude that Turner has not met his statutory burden.”
Moore v. Commonwealth, 671 S.E.2d 429 (Va. Ct. App. 2009).
“The statutes governing writs of actual innocence based on non-biological evidence considered as a whole, and Code § 19.2-327.11 in particular, were not intended to provide relief to individuals who merely produce evidence contrary to the evidence presented at their criminal…”
In Re Carpitcher, 624 S.E.2d 700 (Va. Ct. App. 2006).
“According to Code § 19.2-327.11, the petition for a writ of actual innocence must allege, inter alia, that the newly-discovered evidence: (1) “was previously unknown or unavailable to the petitioner or his trial attorney of record at the time the conviction became final in the…”
— Va. Code Ann. § 19.2-327.11(D) — 8 cases
Turner v. Commonwealth, 694 S.E.2d 251 (Va. Ct. App. 2010).
“See Code §§ 19.2-327.11 to 19.2-327.14. Having examined the entire record, [15] we conclude that Turner has not met his statutory burden.”
— Va. Code Ann. § 19.2-327.11(a)(iv) — 2 cases
— Va. Code Ann. § 19.2-327.11(vi) — 2 cases
Gary Linwood Bush v. Commonwealth of Virginia, 813 S.E.2d 582 (Va. Ct. App. 2018).
“This Court may grant a writ for actual innocence "only upon a finding that the petitioner has proven by clear and convincing evidence all of the allegations contained in clauses (iv) through (viii) of subsection A of [Code] § 19.2-327.11, and upon a finding that no rational…”
— Va. Code Ann. § 19.2-327.11(vii) — 2 cases
Thomas Haynesworth v. Commonwealth of Virginia, 717 S.E.2d 817 (Va. Ct. App. 2011).
“” Code § 19.2-327.11. This broad requirement is clarified later in the section by the statement that, “[h]uman 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.”
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.