Upon consideration of the petition, the response by the Commonwealth, previous records of the case, the record of any hearing held under this chapter, and, if applicable, any findings certified from the circuit court pursuant to an order issued under this chapter, the Court of Appeals, if it has not already summarily dismissed the petition, shall either dismiss the petition for failure to state a claim or assert grounds upon which relief shall be granted, or the Court shall (i) dismiss the petition for failure to establish previously unknown, unavailable, or untested evidence sufficient to justify the issuance of the writ, or (ii) only upon a finding that the petitioner has proven by a preponderance of the evidence all of the allegations contained in clauses (iv) through (viii) of subsection A of § 19.2-327.11, and upon a finding that no rational trier of fact would have found proof of guilt or delinquency beyond a reasonable doubt, grant the writ, and vacate the conviction or finding of delinquency, or in the event that the Court finds that no rational trier of fact would have found sufficient evidence beyond a reasonable doubt as to one or more elements of the offense for which the petitioner was convicted or adjudicated delinquent, but the Court finds that there remains in the original trial record evidence sufficient to find the petitioner guilty or delinquent beyond a reasonable doubt of a lesser included offense, the Court shall modify the order of conviction or delinquency accordingly and remand the case to the circuit court that entered the conviction or adjudication of delinquency for resentencing. The burden of proof in a proceeding brought pursuant to this chapter shall be upon the convicted or delinquent person seeking relief. If a writ vacating a conviction or adjudication of delinquency is granted, and no appeal is made to the Supreme Court, or the Supreme Court denies the Commonwealth's petition for appeal or upholds the decision of the Court of Appeals to grant the writ, the Court of Appeals shall forward a copy of the writ to the circuit court, where an order of expungement shall be immediately granted.
2004, c. 1024; 2007, cc. 465, 824, 883, 905; 2013, cc. 170, 180; 2020, cc. 993, 994.
Notes of Decisions
Gary Linwood Bush v. Commonwealth of Virginia, 813 S.E.2d 582 (Va. Ct. App. 2018).
· cites it 18× “Under Code § 19.2-327.13, the decision to grant or dismiss a petition for a writ of actual innocence requires this Court to consider "the petition, the response by the Commonwealth, previous records of the case, the record of any hearing held under this chapter and, if…”
Turner v. Commonwealth, 694 S.E.2d 251 (Va. Ct. App. 2010).
· cites it 24× “" Code § 19.2-327.13 then provides, in relevant part: [u]pon consideration of the petition, the response by the Commonwealth, previous records of the case, the record of any hearing held under this chapter and, if applicable, any findings certified from the circuit court…”
Turner v. Commonwealth, 680 S.E.2d 312 (Va. Ct. App. 2009).
· cites it 16× “We therefore grant petitioner's request for a writ of actual innocence, vacate his convictions for murder and abduction with intent to defile, find him guilty of being an accessory after the fact, and remand the matter to the circuit court with instructions to modify the order…”
Thomas Haynesworth v. Commonwealth of Virginia, 717 S.E.2d 817 (Va. Ct. App. 2011).
· cites it 31× “The Court has considered the petitions, the response by the Commonwealth, the records of these cases, and the record of the oral argument before the en banc Court on September 27, 2011, and finds that these petitions should be granted under Code § 19.2-327.13. Accordingly, this…”
Carpitcher v. Com., 641 S.E.2d 486 (Va. 2007).
· cites it 4× “Code § 19.2-327.13. This is the first occasion we have had to state the standard of review we will apply in this Court to an appeal of a final judgment of the Court of Appeals disposing of a petition for a writ of actual innocence based on non-biological evidence.”
Darnell Phillips v. Commonwealth of Virginia, 820 S.E.2d 892 (Va. Ct. App. 2018).
· cites it 6× “" Code § 19.2-327.13. 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.”
In Re Carpitcher, 624 S.E.2d 700 (Va. Ct. App. 2006).
· cites it 8× “See Code § 19.2-327.13®. I. On August 30, 1999, a jury convicted Carpitcher of aggravated sexual battery, in violation of Code § 18.”
James Robert Altizer v. Commonwealth of Virginia, 757 S.E.2d 565 (Va. Ct. App. 2014).
· cites it 8× “” Code § 19.2-327.13. Otherwise, this Court “shall [] dismiss the petition for failure to establish previously unknown or unavailable evidence sufficient to justify the issuance of the writ” Id.”
Johnathan Christopher Montgomery v. Commonwealth of Virginia, 751 S.E.2d 692 (Va. Ct. App. 2013).
· cites it 8× “See Code § 19.2-327.13. Thus, if this Court grants Montgomery’s petition and issues a writ of actual innocence, the pardon is ineffective and moot from that moment because the conviction would no longer exist and there would be nothing for the Governor to pardon.”
Copeland v. Commonwealth, 664 S.E.2d 528 (Va. Ct. App. 2008).
· cites it 2× “Having independently examined the record presented to us, we conclude the unique circumstances of this case make it prudent to accept the Attorney General’s concession without “further development of the facts” under Code § 19.2-327.12. Accordingly, we grant the requested writ…”
Johnson v. Commonwealth, 641 S.E.2d 480 (Va. 2007).
· cites it 4× “Code § 19.2-327.13. The provisions of Code § 19.”
In Re Barron, 605 S.E.2d 777 (Va. Ct. App. 2004).
· cites it 6× “Upon consideration of the petition, the response of the Attorney General, the reply filed by petitioner’s counsel, and the records of prior proceedings in the case, this Court dismisses the petition pursuant to Code § 19.2-327.13 for the following reasons: Facts Adduced at Trial…”
— Va. Code Ann. § 19.2-327.13(i) — 1 case
— Va. Code Ann. § 19.2-327.13(ii) — 6 cases
Darnell Phillips v. Commonwealth of Virginia, 820 S.E.2d 892 (Va. Ct. App. 2018).
“" Code § 19.2-327.13. 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.”
Thomas Haynesworth v. Commonwealth of Virginia, 717 S.E.2d 817 (Va. Ct. App. 2011).
“The Court has considered the petitions, the response by the Commonwealth, the records of these cases, and the record of the oral argument before the en banc Court on September 27, 2011, and finds that these petitions should be granted under Code § 19.2-327.13. Accordingly, this…”
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