WEST virginia legislature
2021 regular session
Introduced
House Bill 2678
By Delegate Steele
[Introduced February 23, 2021; Referred to the Committee on the Judiciary]
A BILL to amend and reenact §53-4A-1 of the Code of West Virginia, 1931, as amended, relating to the use of scientific evidence in a trial; providing for a limitation on when a hearing or trial may be determined finally adjudicated when relevant forensic scientific evidence was not able to be presented at the time of trial; providing for a limitation on when a hearing or trial may be determined finally adjudicated when relevant forensic scientific evidence exists that undermines the evidence used by the state at trial; providing for a requirement that there must be a reasonable probability that the relevant forensic scientific evidence would have changed the outcome of the trial; providing for definitions; providing for a contention or contentions may not be considered to have been waived when relevant forensic scientific evidence exists that was not able to be presented at the time of trial; providing for a contention or contentions may not be considered to have been waived when relevant forensic scientific evidence exists that undermines the evidence relied upon by the State at trial; providing for a reasonable probability that the relevant forensic evidence would have changed the outcome of the trial; providing for no additional liabilities for an expert who repudiates his or her original opinion or whose opinion is later undermined by scientific or technological advancements; and providing for other technical changes.
Be it enacted by the Legislature of West Virginia:
ARTICLE 4A. POST-CONVICTION HABEAS CORPUS.
§53-4A-1. Right to habeas corpus for post-conviction review; jurisdiction; when contention deemed finally adjudicated or waived; effect upon other remedies.
(a) Any person convicted of
a crime and incarcerated under sentence of imprisonment therefor who contends
that there was such a denial or infringement of his or her rights as to
render the conviction or sentence void under the Constitution of the United
States or the Constitution of this state, or both, or that the court was
without jurisdiction to impose the sentence, or that the sentence exceeds the
maximum authorized by law, or that the conviction or sentence is otherwise
subject to collateral attack upon any ground of alleged error heretofore
available under the common law or any statutory provision of this state, may,
without paying a filing fee, file a petition for a writ of habeas corpus ad
subjiciendum, and prosecute the same it, seeking release from
such illegal imprisonment, correction of the sentence, the setting aside of the
plea, conviction and sentence, or other relief, if and only if such the
contention or contentions and the grounds in fact or law relied upon in support
thereof have not been previously and finally adjudicated or waived in the
proceedings which resulted in the conviction and sentence, or in a proceeding
or proceedings on a prior petition or petitions filed under the provisions of
this article, or in any other proceeding or proceedings which the petitioner
has instituted to secure relief from such conviction or sentence. Any such
petition shall be filed with the clerk of the Supreme Court of Appeals, or the
clerk of any circuit court, said Supreme Court of Appeals and all circuit
courts of this state having been granted original jurisdiction in habeas corpus
cases by the Constitution of this state, or with the clerk of any court of
record of limited jurisdiction having criminal jurisdiction in this state.
Jurisdiction is hereby conferred upon each and every such court of
record of limited jurisdiction having criminal jurisdiction (hereinafter for
convenience of reference referred to simply as a “statutory court”) to refuse
or grant writs of habeas corpus ad subjiciendum in accordance with the
provisions of this article and to hear and determine any contention or
contentions and to pass upon all grounds in fact or law relied upon in support
thereof in any proceeding on any such writ made returnable thereto in
accordance with the provisions of this article. All proceedings in accordance
with this article shall be civil in character and shall under no circumstances
be regarded as criminal proceedings or a criminal case.
(b)(1) For the
purposes of this article, a contention or contentions and the grounds in fact
or law relied upon in support thereof shall be deemed determined to
have been previously and finally adjudicated only when at some point in the
proceedings which resulted in the conviction and sentence, or in a proceeding
or proceedings on a prior petition or petitions filed under the provisions of
this article, or in any other proceeding or proceedings instituted by the
petitioner to secure relief from his or her conviction or sentence,
there was a decision on the merits thereof after a full and fair hearing
thereon and the time for the taking of an appeal with respect to such the
decision has not expired or has expired, as the case may be, or the right of
appeal with respect to such decision has been exhausted, unless said decision
upon the merits is clearly wrong.
(2) For the purposes of this article, and notwithstanding any other provision of this article, a contention or contentions may not be considered to be previously and finally adjudicated when either relevant forensic scientific evidence exists (A) that was not available to be offered by a petitioner at the time of the petitioner’s conviction; or, (B) which undermines forensic scientific evidence relied on by the state at trial; and there is a reasonable probability there would be a different outcome at trial. “Forensic science” is the application of scientific or technical practices to the recognition, collection, analysis, and interpretation of evidence for criminal and civil law or regulatory issues. “Forensic scientific evidence” includes scientific or technical knowledge; a testifying forensic analyst’s or expert’s scientific or technical knowledge or opinion; reports, testimony, or both offered by experts or forensic analysts; scientific standards; or a scientific method or technique upon which the relevant forensic scientific evidence is based. “Scientific knowledge” includes the knowledge of the general scientific community and all field of scientific knowledge on which those fields or disciplines rely and may not be limited to practitioners or proponents of a particular scientific or technical field or discipline.
(c) For the purposes of
this article, a contention or contentions and the grounds in fact or law relied
upon in support thereof shall be deemed considered to have been
waived when the petitioner could have advanced, but intelligently and knowingly
failed to advance, such contention or contentions and grounds before trial, at
trial, or on direct appeal (whether or not said the petitioner
actually took an appeal), or in a proceeding or proceedings on a prior petition
or petitions filed under the provisions of this article, or in any other proceeding
or proceedings instituted by the petitioner to secure relief from his or her
conviction or sentence, unless such the contention or contentions
and grounds are such that, under the Constitution of the United States or the
Constitution of this state, they cannot be waived under the circumstances
giving rise to the alleged waiver. When any such contention or contentions and
grounds could have been advanced by the petitioner before trial, at trial, or
on direct appeal (whether or not said the petitioner actually
took an appeal), or in a proceeding or proceedings on a prior petition or
petitions filed under the provisions of this article, or in any other
proceeding or proceedings instituted by the petitioner to secure relief from
his or her conviction or sentence, but were not in fact so advanced,
there shall be a rebuttable presumption that the petitioner intelligently and
knowingly failed to advance such the contention or contentions
and grounds. For the purposes of this article, and notwithstanding any other
provision of this article, a contention or contentions may not be considered to
have been waived when either relevant forensic scientific evidence exists that
was not available to be offered by a petitioner at the time of the petitioner’s
conviction or which undermines forensic scientific evidence relied on by the state
at trial; and there is a reasonable probability there would be a different
outcome at trial.
(d) This section does not create additional liabilities, beyond those already recognized, for an expert who repudiates his or her original opinion provided at a hearing or trial or whose opinion has been undermined by later scientific research or technological advancements.
(d)(e) For the
purposes of this article, and notwithstanding any other provisions of this
article, no such contention or contentions and grounds shall may be
deemed considered to have been previously and finally adjudicated
or to have been waived where, subsequent to any decision upon the merits
thereof or subsequent to any proceeding or proceedings in which said the
question otherwise may have been waived, any court whose decisions are binding
upon the Supreme Court of Appeals of this state or any court whose decisions
are binding upon the lower courts of this state holds that the Constitution of
the United States or the Constitution of West Virginia, or both, impose upon
state criminal proceedings a procedural or substantive standard not theretofore
recognized, if and only if such the standard is intended to be
applied retroactively and would thereby affect the validity of the petitioner’s
conviction or sentence.
(e)(f) The writ
of habeas corpus ad subjiciendum provided for in this article is not a
substitute for nor does it affect any remedies which are incident to the
criminal proceedings in the trial court or any remedy of direct review of the
conviction or sentence, but such the writ comprehends and takes
the place of all other common law and statutory remedies, including, but not
limited to, the writ of habeas corpus ad subjiciendum provided for in §53-4-1 et
seq. of this code, which have heretofore been available for challenging the
validity of a conviction or sentence and shall be used exclusively in lieu
thereof: Provided, That nothing contained in this article shall may
operate to bar any proceeding or proceedings in which a writ of habeas corpus
ad subjiciendum is sought for any purpose other than to challenge the legality
of a criminal conviction or sentence of imprisonment therefor. A petition for a
writ of habeas corpus ad subjiciendum in accordance with the provisions of this
article may be filed at any time after the conviction and sentence in the
criminal proceedings have been rendered and imposed and the time for the taking
of an appeal with respect thereto has expired or the right of appeal with
respect thereto has been exhausted.
NOTE: The purpose of this bill is to provide for a limitation on when a hearing or trial may be determined finally adjudicated when relevant forensic scientific evidence was not able to be presented at the time of trial, and, providing for a limitation on when a hearing or trial may be considered finally adjudicated when relevant forensic scientific evidence exists that undermines the evidence used by the state at trial.
Strike-throughs indicate language that would be stricken from a heading or the present law, and underscoring indicates new language that would be added.