The original instrument and the following digest, which constitutes no part of the
legislative instrument, were prepared by Alan Miller.
DIGEST
SB 186 Original 2021 Regular Session Smith
Proposed law authorizes a petitioner convicted of an offense and who claimed factual innocence at
trial 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
December 31, 2022.
Proposed law requires that for a claim of factual innocence to succeed, a petitioner must present new,
reliable, material, relevant, noncumulative, and exculpatory scientific, physical, or nontestimonial
documentary evidence:
(1)That would be legally admissible at trial;
(2)That is not inconsistent with any defense that was offered or advanced by the petitioner at
trial;
(3)That was not known or discoverable at or prior to trial; and
(4)That, when viewed in light of all of the relevant evidence, including the evidence that was
admitted at trial, 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 at the time of the conviction.
Proposed law prohibits a recantation of prior sworn testimony from forming the basis of a petitioner's
claim of factual innocence.
Proposed law would not prevent, after a granting of post conviction relief on the basis of factual
innocence, 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 requires that any retrial or any proceedings in the case subsequent to the granting of
post conviction relief be heard by a judge other than the judge who granted post conviction relief,
with the new judge being appointed in the following manner:
(1)In a court having one judge, the La. Supreme Court shall appoint a district judge of an
adjoining district, or shall appoint a judge ad hoc. (2)In a court having two judges, the other judge of that court shall be appointed.
(3)In a court having more than two judges, another judge of that court shall be appointed
through a random process as provided by the local rules of court.
Proposed law prohibits any limit to the right of the state or of the petitioner to seek recusal of any
appointed judge pursuant to the provisions of present law.
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 requires that a motion made only by the petitioner, may only be granted following a
contradictory hearing at which the petitioner is required to establish that good cause exists for 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.
Proposed law retains present law and adds another ground for relief if the petitioner is determined
by clear and convincing evidence to be factually innocent under proposed law.
Proposed law authorizes the district attorney and the petitioner, with the approval of the district
court, to jointly enter into any post conviction plea agreement for the purpose of amending the
petitioner's conviction, sentence, or habitual offender status. Proposed law provides that the terms
of any post conviction plea agreement be in writing, be filed into the district court record, and be agreed to by the district attorney and the petitioner in open court. Proposed law requires the court,
prior to accepting the post conviction plea agreement, to 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.
Proposed law allows the state the option to affirmatively waive any procedural objection, if the
waiver is express, in writing, and filed into the district court record.
Present law prohibits any application for post conviction relief, including applications which seek
an out-of-time appeal, from being considered if it is filed more than two years after the judgment of
conviction, but within two years of discovery, and sentence has become final under the provisions
of present law, unless any of the following apply:
(1)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 or his prior attorneys. Further,
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. Those
circumstances include but are not limited to:
(a) The educational background of the petitioner.
(b) The petitioner's access to formally trained inmate counsel.
(c)The financial resources of the petitioner.
(d)The age of the petitioner.
(e)The mental abilities of the petitioner.
(f)Whether the interests of justice will be served by the consideration of new evidence.
(2)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.
(3)The application would already be barred by the provisions of present law, but the application
is filed on or before October 1, 2001, and the date on which the application was filed is
within three years after the judgment of conviction and sentence has become final.
(4)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 post-conviction relief.
Effective August 1, 2021.
(Amends C.Cr.P. Art. 930.3; adds C.Cr.P. Art. 926.2, 926.3, 930.4(G), 930.8(A)(5) and (6) and (D),
and 930.10)