19.2-327.1 - Motion by a convicted felon for scientific analysis of newly discovered or previously untested scientific evidence; procedure.
§ 19.2-327.1. Motion by a convicted felon for scientific analysis of newlydiscovered or previously untested scientific evidence; procedure.
A. Notwithstanding any other provision of law or rule of court, any personconvicted of a felony may, by motion to the circuit court that entered theoriginal conviction, apply for a new scientific investigation of any humanbiological evidence related to the case that resulted in the felonyconviction if: (i) the evidence was not known or available at the time theconviction became final in the circuit court or the evidence was notpreviously subjected to testing because the testing procedure was notavailable at the Department of Forensic Science at the time the convictionbecame final in the circuit court; (ii) the evidence is subject to a chain ofcustody sufficient to establish that the evidence has not been altered,tampered with, or substituted in any way; (iii) the testing is materiallyrelevant, noncumulative, and necessary and may prove the convicted person'sactual innocence; (iv) the testing requested involves a scientific methodemployed by the Department of Forensic Science; and (v) the convicted personhas not unreasonably delayed the filing of the petition after the evidence orthe test for the evidence became available at the Department of ForensicScience.
B. The petitioner shall assert categorically and with specificity, underoath, the facts to support the items enumerated in subsection A and (i) thecrime for which the person was convicted, (ii) the reason or reasons theevidence was not known or tested by the time the conviction became final inthe circuit court, and (iii) the reason or reasons that the newly discoveredor untested evidence may prove the actual innocence of the person convicted.Such motion shall contain all relevant allegations and facts that are knownto the petitioner at the time of filing and shall enumerate and include allprevious records, applications, petitions, appeals and their dispositions.
C. The petitioner shall serve a copy of such motion upon the attorney for theCommonwealth. The Commonwealth shall file its response to the motion within30 days of the receipt of service. The court shall, no sooner than 30 and nolater than 90 days after such motion is filed, hear the motion. Motions madeby a petitioner under a sentence of death shall be given priority on thedocket.
D. The court shall, after a hearing on the motion, set forth its findingsspecifically as to each of the items enumerated in subsections A and B andeither (i) dismiss the motion for failure to comply with the requirements ofthis section or (ii) dismiss the motion for failure to state a claim uponwhich relief can be granted or (iii) order that the testing be done by theDepartment of Forensic Science based on a finding of clear and convincingevidence that the requirements of subsection A have been met.
E. The court shall order the tests to be performed by the Department ofForensic Science and prescribe in its order, pursuant to standards andguidelines established by the Department, the method of custody, transfer,and return of evidence submitted for scientific investigation sufficient toinsure and protect the Commonwealth's interest in the integrity of theevidence. The results of any such testing shall be furnished simultaneouslyto the court, the petitioner and his attorney of record and the attorney forthe Commonwealth. The Department of Forensic Science shall give testingpriority to cases in which a sentence of death has been imposed. The resultsof any tests performed and any hearings held pursuant to this section shallbecome a part of the record.
F. Nothing in this section shall constitute grounds to delay setting anexecution date pursuant to § 53.1-232.1 or to grant a stay of execution thathas been set pursuant to § 53.1-232.1 (iii) or (iv).
G. An action under this section or the performance of any attorneyrepresenting the petitioner under this section shall not form the basis forrelief in any habeas corpus proceeding or any other appeal. Nothing in thissection shall create any cause of action for damages against the Commonwealthor any of its political subdivisions or any officers, employees or agents ofthe Commonwealth or its political subdivisions.
H. 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; 2005, cc. 868, 881.)