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2021 Regular Session
SENATE BILL NO. 186
BY SENATOR SMITH
Prefiled pursuant to Article III, Section 2(A)(4)(b)(i) of the Constitution of Louisiana.
CRIMINAL JUSTICE. Provides for post conviction relief with regard to successful "actual
innocence" claims. (8/1/21)
1 AN ACT
2 To amend and reenact Code of Criminal Procedure Article 930.3 and 930.8(A)(1) and to
3 enact Code of Criminal Procedure Articles 926.2, 926.3, 930.4(G), 930.8(A)(5) and
4 (6) and (D), and 930.10, relative to post conviction relief; to provide for a petitioner's
5 claim of factual innocence; to provide for exceptions; to provide for evidence; to
6 provide for appointment of judges; to provide for motions of testing evidence; to
7 provide for grounds for relief; to provide for burden of proof; to provide for joint
8 motions; to provide for waiver; to provide for time limitations; and to provide for
9 related matters.
10 Be it enacted by the Legislature of Louisiana:
11 Section 1. Code of Criminal Procedure Article 930.3 and 930.8(A)(1) are hereby
12 amended and reenacted and Code of Criminal Procedure Articles 926.2, 926.3, 930.4(G),
13 930.8(A)(5) and (6) and (D), and 930.10 are hereby enacted to read as follows:
14 Art. 926.2. Factual innocence
15 A. A petitioner, who has been convicted of an offense, may seek post
16 conviction relief on the grounds that he is factually innocent of the offense for
17 which he was convicted. A petitioner's first claim of factual innocence pursuant
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1 to this Article that would otherwise be barred from review on the merits by the
2 time limitation provided in Article 930.8 or the procedural objections provided
3 in Article 930.4 shall not be barred if the claim is contained in an application for
4 post conviction relief filed on or before December 31, 2022, and if the petitioner
5 was convicted after a trial completed to verdict. This exception to Articles 930.4
6 and 930.8 shall only apply to the claim of factual innocence brought under this
7 Article and shall not apply to any other claims raised by the petitioner. An
8 application for post conviction relief filed pursuant to this Article by a
9 petitioner who pled guilty or nolo contendere to the offense of conviction or filed
10 by any petitioner after December 31, 2022, shall be subject to Articles 930.4 and
11 930.8.
12 B.(1)(a) To assert a claim of factual innocence under this Article, a
13 petitioner must present new, reliable, and noncumulative evidence that would
14 be legally admissible at trial and that was not known or discoverable at or prior
15 to trial and that is either:
16 (i) Scientific, forensic, physical, or nontestimonial documentary evidence.
17 (ii) Testimonial evidence that is corroborated by evidence of the type
18 described in Part (i) of this Subparagraph.
19 (b) To prove entitlement to relief under this Article, the petitioner must
20 present evidence that satisfies all of the criteria in Subsubparagraph (B)(1)(a)
21 of this Article and that, when viewed in light of all of the relevant evidence,
22 including the evidence that was admitted at trial and any evidence that may be
23 introduced by the state in any response that it files or at any evidentiary
24 hearing, proves by clear and convincing evidence that, had the new evidence
25 been presented at trial, no rational juror would have found the petitioner guilty
26 beyond a reasonable doubt of either the offense of conviction or of any felony
27 offense that was a responsive verdict to the offense of conviction at the time of
28 the conviction.
29 (2) A recantation of prior sworn testimony may be considered if
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1 corroborated by the evidence required by Subsubparagraph (B)(1)(a) of this
2 Article. However, a recantation of prior sworn testimony cannot form the sole
3 basis for relief pursuant to this Article.
4 (3) If the petitioner pled guilty or nolo contendere to the offense of
5 conviction, in addition to satisfying all of the criteria in Paragraph (B) of this
6 Article and in any other applicable provision of law, the petitioner shall show
7 both of the following to prove entitlement to relief:
8 (a) That, by reliable evidence, he consistently maintained his innocence
9 until his plea of guilty or nolo contendere.
10 (b) That he could not have known of or discovered his evidence of factual
11 innocence prior to pleading guilty or nolo contendere.
12 C.(1) A grant of post conviction relief pursuant to this Article shall not
13 prevent the petitioner from being retried for the offense of conviction, for a
14 lesser offense based on the same facts, or for any other offense.
15 (2) If the petitioner waives his right to a jury trial and elects to be tried
16 by a judge, the district judge who granted post conviction relief pursuant to this
17 Article shall be recused and the case shall be allotted to a different judge in
18 accordance with applicable law and rules of court.
19 (3) If the district judge denied post conviction relief pursuant to this
20 Article and an appellate court later reversed the ruling of the district judge and
21 granted post conviction relief pursuant to this Article, and if the petitioner
22 waives his right to a jury trial and elects to be tried by a judge, upon the
23 petitioner's motion the district judge who denied post conviction relief shall be
24 recused and the case shall be allotted to a different judge in accordance with
25 applicable law and rules of court.
26 Art. 926.3. Motion for testing of evidence
27 A. Upon motion of the state or the petitioner, the district court may
28 order the testing or examination of any evidence relevant to the offense of
29 conviction in the custody and control of the clerk of court, the state, or the
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1 investigating law enforcement agency.
2 B. If the motion is made by the petitioner and the state does not expressly
3 consent to the testing or examination, a motion made under this Article shall
4 only be granted following a contradictory hearing at which the petitioner must
5 establish that good cause exists for the testing or examination. If the state does
6 not expressly consent to the testing or examination and the motion made under
7 this Article is granted following the contradictory hearing, the district attorney
8 and investigating law enforcement agency shall not be ordered to bear any of
9 the costs associated with the testing or examination.
10 * * *
11 Art. 930.3. Grounds
12 If the petitioner is in custody after sentence for conviction for an offense,
13 relief shall be granted only on the following grounds:
14 (1) The conviction was obtained in violation of the constitution of the United
15 States or the state of Louisiana;.
16 (2) The court exceeded its jurisdiction;.
17 (3) The conviction or sentence subjected him to double jeopardy;.
18 (4) The limitations on the institution of prosecution had expired;.
19 (5) The statute creating the offense for which he was convicted and sentenced
20 is unconstitutional; or.
21 (6) The conviction or sentence constitute the ex post facto application of law
22 in violation of the constitution of the United States or the state of Louisiana.
23 (7) The results of DNA testing performed pursuant to an application granted
24 under Article 926.1 proves by clear and convincing evidence that the petitioner is
25 factually innocent of the crime for which he was convicted.
26 (8) The petitioner is determined by clear and convincing evidence to be
27 factually innocent under Article 926.2.
28 Art. 930.4. Repetitive applications
29 * * *
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1 G. Notwithstanding any provision of this Title to the contrary, the state
2 may affirmatively waive any procedural objection pursuant to this Article. Such
3 waiver shall be express and in writing and filed by the state into the district
4 court record.
5 * * *
6 Art. 930.8. Time limitations; exceptions; prejudicial delay
7 A. No application for post conviction relief, including applications which
8 seek an out-of-time appeal, shall be considered if it is filed more than two years after
9 the judgment of conviction and sentence has become final under the provisions of
10 Article 914 or 922, unless any of the following apply:
11 (1) The application alleges, and the petitioner proves or the state admits, that
12 the facts upon which the claim is predicated were not known to the petitioner or his
13 prior attorneys. Further, the petitioner shall prove that he exercised diligence in
14 attempting to discover any post-conviction claims that may exist. "Diligence" for the
15 purposes of this Article is a subjective inquiry that must take into account the
16 circumstances of the petitioner. Those circumstances shall include but are not limited
17 to the educational background of the petitioner, the petitioner's access to formally
18 trained inmate counsel, the financial resources of the petitioner, the age of the
19 petitioner, the mental abilities of the petitioner, or whether the interests of justice will
20 be served by the consideration of new evidence. New facts discovered pursuant to
21 this exception shall be submitted to the court within two years of discovery. If the
22 petitioner pled guilty or nolo contendere to the offense of conviction and is
23 seeking relief pursuant to Code of Criminal Procedure Article 926.2 and five
24 years or more have elapsed since the petitioner pled guilty or nolo contendere
25 to the offense of conviction, he shall not be eligible for the exception provided
26 for by this Subparagraph.
27 * * *
28 (5) The petitioner qualifies for the exception to timeliness in Article
29 926.1.
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1 (6) The petitioner qualifies for the exception to timeliness in Article
2 926.2.
3 * * *
4 D. Notwithstanding any provision of this Title to the contrary, the state
5 may affirmatively waive any objection to the timeliness under Paragraph A of
6 this Article of the application for post conviction relief filed by the petitioner.
7 Such waiver shall be express and in writing and filed by the state into the
8 district court record.
9 * * *
10 Art. 930.10. Departure from this Title; post conviction plea agreements
11 A. Upon joint motion of the petitioner and the district attorney, the
12 district court may deviate from any of the provisions of this Title.
13 B. Notwithstanding the provisions of Code of Criminal Procedure Article
14 930.3 or any provision of law to the contrary, the district attorney and the
15 petitioner may, with the approval of the district court, jointly enter into any
16 post conviction plea agreement for the purpose of amending the petitioner's
17 conviction, sentence, or habitual offender status. The terms of any post
18 conviction plea agreement pursuant to this Paragraph shall be in writing, shall
19 be filed into the district court record, and shall be agreed to by the district
20 attorney and the petitioner in open court. The court shall, prior to accepting the
21 post conviction plea agreement, address the petitioner personally in open court,
22 inform him of and determine that he understands the rights that he is waiving
23 by entering into the post conviction plea agreement, and determine that the plea
24 is voluntary and is not the result of force or threats, or of promises apart from
25 the post conviction plea agreement.
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The original instrument was prepared by Alan Miller. The following digest,
which does not constitute a part of the legislative instrument, was prepared
by Alden A. Clement, Jr.
DIGEST
SB 186 Engrossed 2021 Regular Session Smith
Proposed law authorizes a petitioner convicted of an offense to seek post conviction relief
on the grounds that he is factually innocent. Proposed law does not prohibit a petitioner's
first claim of factual innocence that would otherwise be barred from review on the merits
by the time limitation or the procedural objections provided in present law if the claim is
contained in an application for post conviction relief filed on or before 12/31/22, and if the
petitioner was convicted after a trial completed to verdict. Proposed law further provides that
an application for post conviction relief filed pursuant to proposed law by a petitioner who
pled guilty or nolo contendere after 12/31/22 is subject to present law and proposed law
relative to repetitive applications and time limitations.
Proposed law provides that to assert a claim of factual innocence under proposed law, a
petitioner must present new, reliable, and noncumulative evidence that would be legally
admissible at trial and that was not known or discoverable at or prior to trial and that is
either:
1. Scientific, forensic, physical, or nontestimonial documentary evidence.
2. Testimonial evidence that is corroborated by evidence of a scientific, forensic, or
physical nature.
Proposed law provides that to prove entitlement to relief under proposed law, the petitioner
must present evidence that satisfies all of the criteria provided for in proposed law and that,
when viewed in light of all of the relevant evidence, including the evidence that was
admitted at trial and any evidence that may be introduced by the state in any response that
it files or at any evidentiary hearing, proves by clear and convincing evidence that, had the
new evidence been presented at trial, no rational juror would have found the petitioner guilty
beyond a reasonable doubt of either the offense of conviction or of any felony offense that
was a responsive verdict to the offense of conviction at the time of the conviction.
Proposed law provides that a recantation of prior sworn testimony may be considered if
corroborated by the evidence required by proposed law, but a recantation of prior sworn
testimony cannot form the sole basis for relief pursuant to proposed law.
Proposed law provides that if the petitioner pled guilty or nolo contendere to the offense of
conviction, in addition to satisfying all of the criteria in proposed law and in any other
applicable provision of present law, the petitioner must show both of the following to prove
entitlement to relief:
1. That, by reliable evidence, he consistently maintained his innocence until his plea
of guilty or nolo contendere.
2. That he could not have known of or discovered his evidence of factual innocence
prior to pleading guilty or nolo contendere.
Proposed law provides that a grant of post conviction relief pursuant to proposed law does
not 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 if the petitioner waives his right to a jury trial and elects to be
tried by a judge, the district judge who granted post conviction relief pursuant to proposed
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law will be recused and the case will be allotted to a different judge in accordance with
applicable present law and rules of court.
Proposed law provides that if the district judge denied post conviction relief pursuant to
proposed law and an appellate court later reversed the ruling of the district judge and granted
post conviction relief pursuant to proposed law, and if the petitioner waives his right to a
jury trial and elects to be tried by a judge, upon the petitioner's motion the district judge who
denied post conviction relief will be recused and the case will be allotted to a different judge
in accordance with applicable present law and rules of court.
Proposed law authorizes the district court, upon motion of the state or the petitioner, to 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. Proposed law further provides that if the motion is made by the petitioner, it can be
granted only after a contradictory hearing at which the petitioner is required to establish that
good cause exists for the testing or examination. Proposed law further provides that if the
state does not expressly consent to the testing or examination and the motion made pursuant
to proposed law is granted, the district attorney and investigation law enforcement agency
cannot be ordered to bear any costs of the testing or examination.
Present law requires that if the petitioner is in custody after sentence for conviction for an
offense, relief be granted only on any of the following grounds:
1. The conviction was obtained in violation of the constitution of the United States or
the state of Louisiana.
2. The court exceeded its jurisdiction.
3. The conviction or sentence subjected him to double jeopardy.
4. The limitations on the institution of prosecution had expired.
5. The statute creating the offense for which he was convicted and sentenced is
unconstitutional.
6. The conviction or sentence constitute the ex post facto application of law in violation
of the constitution of the United States or the state of Louisiana.
7. The results of DNA testing performed pursuant to an application granted under
present law proves by clear and convincing evidence that the petitioner is factually
innocent of the crime for which he was convicted.
Present law provides that, 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 will not be considered.
Proposed law retains present law and adds that another ground for relief is that the petitioner
is determined by clear and convincing evidence to be factually innocent under proposed law.
Present law provides that no application for post conviction relief will be considered if filed
more than two years after the judgment of conviction and sentence have become final under
present law, unless the application alleges, and the petitioner proves or the state admits, that
the facts upon which the claim is predicated were not known to the petitioner.
Proposed law retains present law and adds that, if the petitioner pled guilty or nolo
contendere to the offense of conviction and is seeking relief pursuant to proposed law
relative to claims of factual innocence and five years or more have elapsed since the
petitioner pled guilty or nolo contendere to the offense of conviction, he is not eligible for
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the exception to timeliness provided for by present law.
Present law provides that the petitioner is required to prove that he exercised diligence in
attempting to discover any post-conviction claims that may exist. "Diligence" for the
purposes of present law is a subjective inquiry that must take into account the circumstances
of the petitioner, including the educational background of the petitioner, the petitioner's
access to formally trained inmate counsel, the financial resources of the petitioner, the age
of the petitioner, the mental abilities of the petitioner, and whether the interests of justice
will be served by the consideration of new evidence.
Proposed law retains present law.
Present law provides that no application for post conviction relief will be considered if filed
more than two years after the judgment of conviction and sentence have become final under
present law, unless:
1. The claim asserted in the petition is based upon a final ruling of an appellate court
establishing a theretofore unknown interpretation of constitutional law and petitioner
establishes that this interpretation is retroactively applicable to his case, and the
petition is filed within one year of the finality of such ruling.
2. The application would already be barred by the provisions of present law, but the
application is filed on or before 10/1/01, and the date on which the application was
filed is within three years after the judgment of conviction and sentence has become
final.
3. The person asserting the claim has been sentenced to death.
Proposed law retains present law and adds the following circumstances:
1. The petitioner qualifies for the exception to timeliness in present law relative to
DNA testing.
2. The petitioner qualifies for the exception to timeliness in proposed law relative to
factual innocence.
Proposed law allows the state to affirmatively waive any objection to the timeliness of the
application for post conviction relief filed by the petitioner, if the waiver is express and in
writing and filed by the state into the district court record.
Proposed law provides that upon joint motion of the petitioner and the district attorney, the
district court may deviate from any provision of present law or proposed law relative to post
conviction relief.
Proposed law provides that, notwithstanding any provision of present law or proposed law,
the district attorney and the petitioner may, with the approval of the district court, jointly
enter into any post conviction plea agreement for the purpose of amending the petitioner's
conviction, sentence, or habitual offender status, which agreement must be in writing, filed
into the district court record, and agreed to by the district attorney and the petitioner in open
court. Proposed law further provides that the court, prior to accepting the post conviction
plea agreement, must address the petitioner personally in open court, inform him of and
determine that he understands the rights that he is waiving by entering into the post
conviction plea agreement, and determine that the plea is voluntary and is not the result of
force or threats, or of promises apart from the post conviction plea agreement itself.
Effective August 1, 2021.
(Amends C.Cr.P. Art. 930.3 and 930.8(A)(1); adds C.Cr.P. Art. 926.2, 926.3, 930.4(G),
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930.8(A)(5) and (6) and (D), and 930.10)
Summary of Amendments Adopted by Senate
Committee Amendments Proposed by Senate Committee on Judiciary C to the
original bill
1. Adds proposed law relative to post conviction relief that are specific to a
petitioner who pleaded guilty or nolo contendere.
2. Provides relative to scientific, forensic, physical, and certain testimonial
evidence in support of a factual innocence claim under proposed law.
3. Provides that a recantation of prior sworn testimony of the petitioner can be
considered under certain circumstances.
4. Provides relative to costs of testing or examination of evidence pursuant to
proposed law.
5. Deletes provisions of proposed law relative to joint post conviction plea
agreements.
6. Adds proposed law relative to post conviction plea agreements.
7. Makes technical changes to proposed law.
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