Va. Sup. Ct. R. 5A:5

(a) Original Jurisdiction Proceedings Other Than Actual Innocence Petitions. ‒ With

the exception of petitions for the issuance of writs of actual innocence under paragraph

(b) of this Rule, all proceedings before this Court pursuant to its original jurisdiction will

be conducted in accordance with the procedure prescribed by Rule 5:7 of the Rules of the

Supreme Court.

(b) Petition for a Writ of Actual Innocence. ‒

(1) Scope. Any person convicted of a felony or any person who was

adjudicated delinquent by a circuit court of an offense that would be a felony if

committed by an adult, may file in this Court a petition under Code § 19.2-327.10

et seq. seeking a writ of actual innocence based on nonbiological evidence.

(2) Form and Contents of Petition. The petition must be filed using Form 10

in the Appendix of Forms following Part 5A and must include all allegations and

documents required by subsections A and B of Code § 19.2-327.11. Under Code

§ 19.2-327.11(B) “relevant documents” include, but not be limited to, any orders

of conviction, adjudication of delinquency, and sentencing orders being

challenged, any appellate dispositions on direct review or any habeas corpus

orders (issued by any federal or state court), and any prior petitions filed under

Code § 19.2-327.10 et seq. in this Court or under Code § 19.2-327.2 et seq. in the

Supreme Court.

(3) Parties. All pleadings must name as the petitioner the person convicted of

a felony or adjudicated delinquent who is seeking relief. The pleadings must

identify the Commonwealth, represented by the Attorney General, as respondent.

(4) Filing Fee. The petition must be accompanied by either (i) a $50.00 filing

fee, or (ii) an in forma pauperis affidavit demonstrating that the petitioner cannot

afford the filing fee. An affidavit seeking in forma pauperis status must list all

assets and liabilities of petitioner, including the current balance of any inmate

account maintained by correctional facility.

(5) Appointment of Counsel. If the Court does not summarily dismiss the

petition, the Court will appoint counsel for any indigent petitioner who requests

the appointment of counsel and satisfies the indigency criteria of Code § 19.2-

159. In the Court’s discretion, counsel may be appointed at an earlier stage of the

proceeding at the petitioner’s request upon a showing of requisite indigency. All

requests for the appointment of counsel must be made on the form provided by

this Court.

(6) Service of Petition and Return of Service. Prior to filing a petition, the

petitioner must serve the petition, along with all attachments, on the Attorney

General and on the Commonwealth’s Attorney for the jurisdiction where the

conviction or adjudication of delinquency occurred. When represented by

counsel, the petitioner must file with the petition either (i) a duly executed return

of service in the form of a verification that a copy of the petition and all

attachments have been served, or (ii) an acceptance of service signed by either or

both of the parties to be served, or (iii) a combination of the two. When

unrepresented by counsel, the petitioner must file with the petition a certificate

that a copy of the petition and all attachments have been sent, by certified mail, to

the Attorney General and the Commonwealth’s Attorney for the jurisdiction

where the conviction or adjudication of delinquency occurred.

(7) Response. If this Court does not summarily dismiss the petition, the court

will provide written notice to all parties directing the Commonwealth, within 60

days after receipt of such notice, to file a response to the petition pursuant to Code

§ 19.2-327.11(C). For good cause shown, the 60-day deadline may be extended

by this Court. The Commonwealth’s response may include any information

pertinent to the petitioner’s guilt, delinquency, or innocence, including proffers of

evidence outside the trial court record and evidence previously suppressed at trial.

(8) Reply. The petitioner may file a reply to the Commonwealth’s response

only if directed to do so by this Court.

(9) Evidentiary Hearing. This Court may order the circuit court that entered

the conviction or adjudication of delinquency to conduct an evidentiary hearing

and to certify factual findings pursuant to Code § 19.2-327.12. Such findings,

however, will be limited to the specific questions addressed by this Court in its

certification order. In the circuit court, the petitioner and the Commonwealth

must be afforded an opportunity to present evidence and to examine witnesses on

matters relevant to the certified questions.

(10) Oral Argument. Unless otherwise directed by this Court, oral argument

will only be allowed on the final decision whether to grant or deny the writ under

Code § 19.2-327.13.

(11) Appeal. The petitioner or the Commonwealth may petition for appeal to

the Supreme Court from any adverse final decision issued by this Court under

Code § 19.2-327.13 to issue or deny a writ of actual innocence. Such an appeal is

initiated by the filing of a notice of appeal pursuant to Rule 5:14.