                                                                    Tuesday                 14th

               December, 2004.


In Re: Jose Antonio Lima,                                                                          Petitioner.

                    Record No. 2710-04-4


                               Upon a Petition for a Writ of Actual Innocence

                      Before Chief Judge Fitzpatrick, Judges Elder and Humphreys


       Jose Antonio Lima petitions this Court for a Writ of Actual Innocence pursuant to Chapter 19.3

of Title 19.2 of the Code of Virginia. In support of his request for such writ Lima contends he is

actually innocent of the offenses for which he was convicted. Lima asserts instances of trial court error,

prosecutorial misconduct, and ineffective assistance of counsel, as well as insufficient evidence at trial,

support his claim of innocence. However, Lima does not proffer any newly-discovered evidence that

would prove his innocence. Therefore, this petition is summarily dismissed.

       The Court of Appeals derives its power to issue writs of actual innocence pursuant to Code

§ 19.2-327.10, et seq. Code § 19.2-327.11 states that

               [t]he petitioner shall allege categorically and with specificity . . . (iii) an
               exact description of the previously unknown or unavailable evidence
               supporting the allegation of innocence; (iv) that such evidence was
               previously unknown or unavailable to the petitioner or his trial attorney of
               record at the time the conviction became final in the circuit court; (v) the
               date the previously unknown or unavailable evidence became known or
               available to the petitioner, and the circumstances under which it was
               discovered; (vi) that the previously unknown or unavailable evidence is
               such as could not, by the exercise of diligence, have been discovered or
               obtained before the expiration of 21 days following entry of the final order
               of conviction by the court; (vii) the previously unknown or unavailable
               evidence is material and when considered with all of the other evidence in
               the current record, will prove that no rational trier of fact could have found
               proof of guilt beyond a reasonable doubt; and (viii) the previously
                unknown or unavailable evidence is not merely cumulative, corroborative
                or collateral.

(Emphasis added.) Thus, the writ of actual innocence can only be issued based on previously unknown

or unavailable evidence that could not be discovered or obtained prior to the trial court’s loss of

jurisdiction.

        Lima does not claim to have discovered any new evidence that demonstrates he is actually

innocent of the crimes for which he was convicted. In his petition, Lima claims evidence became

known or available in May 2004, but only alleges that what is new is that he has a better understanding

of the English language and the judicial system. Such progress is not “evidence” proving or disproving

any fact in issue as to whether Lima committed the crimes for which he was convicted. The Court can

only assume that there is no newly discovered evidence and Lima is trying to obtain an appeal of right

through a petition for a writ of actual innocence. The remedy of the writ of actual innocence, however,

requires the late discovery of previously unknown or unavailable evidence that could not have been

gained through diligent efforts at the time of trial and that would cause no rational trier of fact to find the

petitioner guilty had it been available. Code § 19.2-327.11.

        Accordingly, because there is no proffer of evidence that was previously unknown or

unavailable, as required by Code § 19.2-327.11, this petition is summarily dismissed. The issue

addressed herein is of first impression and the members of the bar may benefit from the directives

herein, the clerk is directed to publish this order.


                                            A Copy,

                                                       Teste:

                                                                   Clerk




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