§ 7-12-403 — Petition for exoneration based on factual innocence; conduct of proceedings

(a) A person who has been convicted of a felony offense
may petition the district court in the county in which the
person was convicted for a hearing to establish that the person
is factually innocent of the crime or crimes of which the person
was convicted.
(b) The petition shall contain an assertion of factual
innocence under oath by the petitioner and shall aver, with
supporting affidavits or other credible documents, that:
(i) Newly discovered evidence exists that, if
credible, establishes a bona fide issue of factual innocence;
(ii) The specific evidence identified by the
petitioner establishes innocence and is material to the case and
the determination of factual innocence;
(iii) The material evidence identified by the
petitioner is not merely cumulative of evidence that was known,
is not reliant solely upon recantation of testimony by a witness
against the petitioner and is not merely impeachment evidence;
(iv) When viewed with all other evidence in the case,
whether admitted during trial or not, the newly discovered
evidence demonstrates that the petitioner is factually innocent;
and
(v) Newly discovered evidence claimed in the petition
is distinguishable from any claims made in prior petitions.
(c) The court shall review the petition in accordance with
the procedures in W.S. 7-12-404, and make a finding whether the
petition has satisfied the requirements of subsection (b) of
this section. If the court finds the petition does not meet all
the requirements of subsection (b) of this section, it shall
dismiss the petition without prejudice and send notice of the
dismissal to the petitioner, the district attorney, and the
attorney general.
(d) The petition shall also contain an averment that:
(i) Neither the petitioner nor the petitioner's
counsel knew of the evidence at the time of trial or sentencing
or in time to include the evidence in any previously filed
post-trial motion or post-conviction petition, and the evidence
could not have been discovered by the petitioner or the
petitioner's counsel through the exercise of reasonable
diligence; or
(ii) A court has found ineffective assistance of
counsel for failing to exercise reasonable diligence in
uncovering the evidence.
(e) Upon entry of a finding that the petition is
sufficient under subsection (b) of this section, the court shall
then review the petition to determine if subsection (d) of this
section has been satisfied. If the court finds that the
requirements of subsection (d) of this section have not been
satisfied, it may dismiss the petition without prejudice and
give notice to the petitioner, the district attorney and the
attorney general of the dismissal, or the court may waive the
requirements of subsection (d) if the court finds the petition
should proceed to hearing and that there is other evidence that
could have been discovered through the exercise of reasonable
diligence by the petitioner or the petitioner's counsel at
trial, and the other evidence:
(i) Was not discovered by the petitioner or the
petitioner's counsel;
(ii) Is material upon the issue of factual innocence;
and
(iii) Has never been presented to a court.
(f) A person who has already obtained post-conviction
relief that vacated or reversed the person's conviction or
sentence may also file a petition under this act in the same
manner and form as described above, if no retrial or appeal
regarding this offense is pending.
(g) If some or all of the newly discovered evidence
alleged in a petition filed under this act is biological
evidence subject to DNA testing, the petitioner shall seek DNA
testing pursuant to W.S. 7-19-401 through 7-19-406. Separate
petitions may be filed simultaneously in the same court.
(h) Except as provided in this act, and unless otherwise
inconsistent with the provisions of this act, the petition and
all subsequent proceedings shall be governed by the Wyoming
Rules of Civil Procedure and the Wyoming Rules of Evidence and
shall include the underlying criminal case number.
(j) Once a petition is filed under this section, attorneys
for the state, law enforcement officers and crime laboratory
personnel shall preserve the evidence that is the subject of the
petition and shall preserve information to determine the
sufficiency of the chain of custody of the evidence.