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 the record of any hearings held pursuant to § 19.2-327.1, and if applicable, any findings certified from the circuit court pursuant to § 19.2-327.4, the Supreme Court shall either dismiss the petition for failure to state a claim or assert grounds upon which relief shall be granted; or upon a hearing the Court shall (i) dismiss the petition for failure to establish allegations sufficient to justify the issuance of the writ or (ii) only upon a finding by a preponderance of the evidence that the petitioner has proven all of the allegations contained in clauses (iv) through (viii) of subsection A of § 19.2-327.3, 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 adjudication 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 conviction or adjudication of delinquency accordingly and remand the case to the circuit court 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, the Court shall forward a copy of the writ to the circuit court, where an order of expungement shall be immediately granted.
2001, cc. 873, 874; 2007, cc. 465, 824, 883, 905; 2009, cc. 139, 320; 2013, cc. 170, 180; 2020, cc. 993, 994.
Notes of Decisions
Cited in
9
cases (
2 in the last 5 years), 2018–2025 · leading case:
In Re: Brown, 810 S.E.2d 444 (Va. 2018).
In Re: Brown, 810 S.E.2d 444 (Va. 2018).
· cites it 22× “beyond a reasonable doubt," Code § 19.2-327.5. Reviewing this case under our original jurisdiction, we dismiss Brown's petition for two reasons.”
In Re: Watford, 809 S.E.2d 651 (Va. 2018).
· cites it 8× “10 Thus, the Commonwealth asserts that, because the DNA evidence does not conclusively eliminate Watford as a perpetrator, he cannot establish a valid basis for relief under Code § 19.2-327.5 and, therefore, his guilty plea must stand.”
Gary Linwood Bush v. Commonwealth of Virginia, 813 S.E.2d 582 (Va. Ct. App. 2018).
· cites it 2× “" Code § 19.2-327.5 (emphasis added). In other words, a petitioner's evidence must do more than establish the theoretical possibility that a rational fact finder would choose to acquit; it must establish such a high probability of acquittal, that this Court is reasonably certain…”
In re: Phillips, 822 S.E.2d 1 (Va. 2018).
· cites it 4× “Pursuant to Code § 19.2-327.5, this Court must either dismiss a petition for a writ of actual innocence "for failure to state a claim or assert grounds upon which relief shall be granted," or, if the petition is procedurally sufficient, hear oral argument on the matter before…”
In Re: Hargrove (Va. 2025).
· cites it 17× “” Code § 19.2-327.5. The petitioner bears the burden of proof.”
In Re: Watford (Va. 2018).
· cites it 8× “10 Thus, the Commonwealth asserts that, because the DNA evidence does not conclusively eliminate Watford as a perpetrator, he cannot establish a valid basis for relief under Code § 19.2-327.5 and, therefore, his guilty plea must stand.”
Gary Linwood Bush v. Commonwealth of Virginia (Va. Ct. App. 2018).
· cites it 2× “” Code § 19.2-327.5 (emphasis added). In other words, a petitioner’s evidence must do more than establish the theoretical possibility that a rational fact finder would choose to acquit; it must establish such a high probability of acquittal, that this Court is reasonably certain…”
In Re: Scott, 824 S.E.2d 1 (Va. 2019).
· cites it 2× “Code § 19.2-327.5 (emphases added). Here, it is uncontested that Scott has pled the threshold allegations required by Code § 19.”
Forness v. Commonwealth (Va. 2023).
· cites it 2× “Code § 19.2-327.5. Yet, under the majority’s analysis, the meaning of innocent is different for “otherwise dismissed” than for nolle prosequi, acquittal, and actual innocence.”
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