SLS 20RS-160 ORIGINAL
2020 Regular Session
SENATE BILL NO. 360
BY SENATOR CONNICK
CRIMINAL JUSTICE. Provides a non-DNA-based factually innocent standard for seeking
post conviction relief. (8/1/20)
1 AN ACT
2 To amend and reenact Code of Criminal Procedure Articles 927, 930.3, 930.4, and 930.8,
3 and to enact Code of Criminal Procedure Articles 926.2, 926.3, and 930.10, to
4 provide relative to post conviction relief; to provide for a factual innocence,
5 non-DNA-based claim for post conviction relief; to provide relative to the standard,
6 the procedure, and the grounds for granting a claim; and to provide for related
7 matters.
8 Be it enacted by the Legislature of Louisiana:
9 Section 1. Code of Criminal Procedure Articles 927, 930.3, 930.4, and 930.8 are
10 hereby amended and reenacted and Code of Criminal Procedure Articles 926.2, 926.3, and
11 930.10 are hereby enacted to read as follows:
12 Art. 926.2. Factual innocence
13 A. A petitioner may seek post conviction relief on the grounds that he is
14 factually innocent of the crime for which he was convicted. A petitioner's first
15 claim of factual innocence pursuant to this Article that would otherwise be
16 barred from review on the merits by the time limitation provided in Article
17 930.8(A) or the procedural objections provided in Article 930.4 shall not be
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1 barred if the claim is contained in an application for post conviction relief filed
2 on or before December 31, 2021. This exception to Articles 930.8(A) and 930.4
3 shall only apply to the claim of factual innocence brought under this Article and
4 shall not apply to any other claims raised by the petitioner. After
5 December 31, 2021, applications for post conviction relief filed pursuant to this
6 Article shall be subject to Articles 930.8(A) and 930.4.
7 B. To prove factual innocence under this Article, a petitioner must
8 present new, reliable, material, noncumulative, and exculpatory scientific,
9 physical, or nontestimonial documentary evidence that was not known or
10 discoverable at or prior to trial and that, when viewed in light of all of the
11 relevant evidence, proves by clear and convincing evidence that had the new
12 evidence been presented at trial no rational jury would have found the
13 petitioner guilty beyond a reasonable doubt of either the offense of conviction
14 or of any responsive offense. Recantations of trial witnesses shall not be
15 sufficient to meet this burden.
16 C. The court may deny post conviction relief under this Article without
17 an answer by the state or by summary disposition, but shall not grant post
18 conviction relief under this Article without an answer by the state and first
19 affording the state and the petitioner an evidentiary hearing, which the state
20 may affirmatively waive in writing. The denial of a claim of factual innocence
21 made under this Article shall thereafter serve as a bar to further applications
22 for post conviction relief in accordance with Articles 930.8(A) or 930.4.
23 D. Notwithstanding any provision of law to the contrary, the provisions
24 of Article 930.8(B) shall apply to any application for post conviction relief
25 brought under this Article.
26 E. A grant of post conviction relief under this Article shall in no way
27 prevent the petitioner from being retried for the offense of conviction, for a
28 lesser offense based on the same facts, or for any other offense.
29 Art. 926.3. Motion for testing of evidence
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1 Upon motion of the state or upon joint motion of the state and the
2 petitioner, the district court may order the testing or examination of any
3 evidence relevant to the offense of conviction in the custody and control of the
4 clerk of court, the state, or the investigating law enforcement agency.
5 Art. 927. Procedural objections; answer
6 A. If an application alleges a claim which, if established, would entitle the
7 petitioner to relief, the court shall order the custodian, through the district attorney
8 in the parish in which the defendant was convicted, to file any procedural objections
9 he may have, or an answer on the merits if there are no procedural objections, within
10 a specified period not in excess of thirty days. However, if the petitioner is seeking
11 relief predicated upon a claim of factual innocence under Article 926.2, the
12 court shall permit the district attorney one hundred twenty days to file any
13 procedural objections he may have, or an answer on the merits if there are no
14 procedural objections. If procedural objections are timely filed, no answer on the
15 merits of the claim may be ordered until such objections have been considered and
16 rulings thereon have become final.
17 * * *
18 Art. 930.3. Grounds
19 If the petitioner is in custody after sentence for conviction for an offense,
20 relief shall be granted only on the following grounds:
21 * * *
22 (8) The petitioner is determined by clear and convincing evidence to be
23 factually innocent under Article 926.2.
24 Art. 930.4. Repetitive applications
25 * * *
26 G. Notwithstanding any provision of law to the contrary, the state may
27 affirmatively waive any procedural objection pursuant to this Article. Such
28 waiver shall be expressed in writing and filed by the state into the district court
29 record.
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1 * * *
2 Art. 930.8. Time limitations; exceptions; prejudicial delay
3 A. No application for post conviction relief, including applications which
4 seek an out-of-time appeal, shall be considered if it is filed more than two years after
5 the judgment of conviction and sentence has become final under the provisions of
6 Article 914 or 922, unless any of the following apply:
7 * * *
8 (5) The petitioner qualifies for the exception to timeliness in Article
9 926.1(A).
10 (6) The petitioner qualifies for the exception to timeliness in Article
11 926.2(A).
12 * * *
13 D. Notwithstanding any provision of law to the contrary, the state may
14 affirmatively waive any objection to the timeliness of the application for post
15 conviction relief filed by the petitioner. Such waiver shall be expressed in
16 writing and filed by the state into the district court record.
17 * * *
18 Art. 930.10 Departure from this Title
19 Upon joint motion of the petitioner and the district attorney, the district
20 court may deviate from the provisions of this Title.
The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by Yoursheka D. George.
DIGEST
SB 360 Original 2020 Regular Session Connick
Present law provides that a person in custody may file a petition for post conviction relief
seeking to have the conviction and sentence set aside.
Present law provides that a person convicted of a felony prior to August 31, 2020, may file
an application for post conviction relief requesting DNA testing of an unknown sample
secured in relation to the offense for which he was convicted.
Present law requires an application for post conviction relief to allege that the applicant is
factually innocent of the crime for which he was convicted. Present law does not provide for
a non-DNA-based factually innocent claim.
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Proposed law retains present law and creates an additional claim for post conviction relief
for non-DNA-based factual innocence.
Proposed law provides that a petitioner's first claim of non-DNA-based factual innocence
that would otherwise be barred from review on the merits by present law time limitations or
procedural objections for repetitive applications shall not be barred if the claim is filed on
or before December 31, 2021. Provides that the exception to present law shall only apply to
the claim of factual innocence brought under proposed law and shall not apply to any other
claims raised by the petitioner. Provides that after December 31, 2021, applications for post
conviction relief filed under proposed law shall be subject to present law time limitations
and procedural objections.
Proposed law requires a petitioner to present new, reliable, material, noncumulative, and
exculpatory scientific, physical, or nontestimonial documentary evidence that was not known
or discoverable at or prior to trial and that, when viewed in light of all of the relevant
evidence, proves by clear and convincing evidence that had the new evidence been presented
at trial no rational jury would have found the petitioner guilty beyond a reasonable doubt of
either the offense of conviction or of any responsive offense. Provides that recantations of
trial witnesses shall not be sufficient to meet the petitioner's burden of proof.
Proposed law authorizes a court to deny the claim for post conviction relief without an
answer by the state or by summary disposition, but prohibits the court from granting the
claim without an answer by the state and first affording the state and the petitioner an
evidentiary hearing, which the state may affirmatively waive in writing. Provides that a
denial of the claim shall thereafter serve as a bar to further applications for post conviction
relief in accordance with present law regarding time limitations and procedural objections
for repetitive applications.
Proposed law provides that in accordance with present law the court shall dismiss an
application if the state can show it was materially prejudiced in its ability to respond to,
negate, or rebut the allegations of the petition caused by events not under the control of the
state which have transpired since the date of original conviction.
Proposed law provides that a grant of post conviction relief under proposed law shall in no
way prevent the petitioner from being retried for the offense of conviction, for a lesser
offense based on the same facts, or for any other offense.
Proposed law provides that upon motion of the state or upon joint motion of the state and the
petitioner, the district court may order the testing or examination of any evidence relevant
to the offense of conviction in the custody and control of the clerk of court, the state, or the
investigating law enforcement agency.
Present law provides that if an application alleges a claim which, if established, would entitle
the petitioner to relief, the court shall order the custodian, through the district attorney in the
parish in which the defendant was convicted, to file any procedural objections he may have,
or an answer on the merits if there are no procedural objections, within a specified period
not in excess of 30 days.
Proposed law retains present law but provides an exception for a response to a petitioner's
claim under proposed law to allow the district attorney 120 days to file any procedural
objections or answer on the merits.
Present law regarding procedural objections to post conviction relief applications, provides:
(1)Unless required in the interest of justice, any claim for relief that was fully litigated
in an appeal from the proceedings leading to the judgment of conviction and
sentence shall not be considered.
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(2)If the application alleges a claim of which the petitioner had knowledge and
inexcusably failed to raise in the proceedings leading to conviction, the court shall
deny relief.
(3)If the application alleges a claim which the petitioner raised in the trial court and
inexcusably failed to pursue on appeal, the court shall deny relief.
(4)A successive application shall be dismissed if it fails to raise a new or different claim
or if it raises a new or different claim that was inexcusably omitted from a prior
application.
Present law provides that if the court considers dismissing an application for failure of the
petitioner to raise the claim in the proceedings leading to conviction, failure to urge the
claim on appeal, or failure to include the claim in a prior application, the court shall order
the petitioner to state reasons for his failure. If the court finds that the failure was excusable,
it shall consider the merits of the claim.
Proposed law retains present law and authorizes the state to affirmatively waive any
procedural objections. Requires that such waiver be expressed in writing and filed by the
state into the district court record.
Present law provides that no application for post conviction relief, including applications
which seek an out-of-time appeal, shall be considered if it is filed more than two years after
the judgment of conviction and sentence has become final under the provisions of present
law. Present law provides certain enumerated exceptions to the two-year time limitation.
Proposed law retains present law and adds two more exceptions for a petitioner who asserts
a claim based on present law DNA or proposed law non-DNA-based factual innocence.
Proposed law authorizes the state to affirmatively waive any objection to the timeliness of
an application for post conviction relief provided such waiver is expressed in writing and
filed by the state into the district court record.
Proposed law grants discretion to the district court, upon the joint motion of the petitioner
and the district attorney, to deviate from the provisions of post conviction relief law.
Effective August 1, 2020.
(Amends C.Cr.P. Arts. 927, 930.3, 930.4 and 930.8; adds C.Cr.P. Arts. 926.2, 926.3, and
930.10)
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