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 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 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), 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.