WRIT OF ACTUAL INNOCENCE

Pursuant to Va. Code Ann. §19.2-327.2, et seq., one possible post-conviction remedy is a writ of actual innocence. An individual may file a petition for writ of actual innocence if they pleaded not guilty and were convicted of a felony, or, regardless of the plea, if they were sentenced to death or convicted of a Class 1 or 2 felony, or another felony which calls for a maximum sentence of life imprisonment. Va. Code Ann. §19.2-327.2. While subsection 327.2 does not expressly state that a petition for a writ of innocence under that subsection must be based upon the introduction of newly discovered evidence, subsection 327.3 does state as such, and further requires that such newly discovered evidence be in the form of human biological evidence (such as DNA test results). Va. Code Ann. §19.2-327.3.

 

A petition for writ of actual innocence may be based on non-biological evidence but may only be pursued by an individual who was convicted upon a plea of not guilty. Va. Code Ann. §19.2-327.10. A petition for a writ of actual innocence based on previously unavailable evidence must set forth all relevant information regarding the crime for which the petitioner was convicted, a statement of actual innocence, a description of the evidence and, in the case of biological evidence, the testing procedures utilized, and a statement that the evidence was not previously known or available. Va. Code Ann. §§19.2- 327.3(A), 19.2-327.11(A). The petition must also set forth the reason why no reasonable trier of fact could have found the petitioner guilty, based on the new evidence. Va. Code Ann. §§19.2-327.3(A)(viii), 19.2-327.11(A)(vii).

 

In the case of biological evidence, such a petition must be filed within 60 days after the testing results were obtained. Va. Code Ann. §19.2-327.3(A)(vi). In the case of non-biological evidence, the petition must assert that the evidence could not have been obtained within 21 days after the entry of the judgment of conviction. Va. Code Ann. §19.2-327.11(A)(vi). Aside from these provisions, there is no statutory time limitation on when a petition for writ of actual innocence may be filed.