                                                                     Tuesday                5th

               October, 2004.


In Re: Hiep Bui,                                                                                  Petitioner.

                    Record No. 1829-04-4


                                Upon a Petition for a Writ of Actual Innocence

                        Before Chief Judge Fitzpatrick, Judges Elder and Humphreys


       Hiep Bui petitions this Court for a Writ of Actual Innocence pursuant to Chapter 19.3 of Title

19.2 of the Code of Virginia. He contends he is innocent of the crime of robbery, of which he was

convicted in the Circuit Court of Fairfax County on April 23, 1996.

       The arrest warrant indicated the offense occurred on or about October 31, 1995. The arrest

warrant was amended on February 1, 1996 to state the offense was committed on October 28, 1995. In

2000, Bui obtained a copy of a police document entitled “Criminal Incident Information.” The

document indicated the “date of occurrence” was October 29, 1995.

       To the extent Bui’s argument can be construed to challenge the amendment of the warrant and

the sufficiency of the evidence presented at trial, such claims provide no valid basis for relief in the

present proceeding. Chapter 19.3 solely allows review of previously unknown or unavailable

non-biological evidence. Amendment of the document charging Bui with the offense, and the

sufficiency of the evidence to prove his guilt, were matters upon which he was fully capable of seeking

appellate review.

       Nor does Bui’s discovery of the police document indicating October 29, 1995 as the date of the

offense entitle him to relief. Code § 19.2-327.11(A)(vii) requires the “previously unknown or

unavailable” evidence of innocence to “prove that no rational trier of fact could have found proof of
guilt beyond a reasonable doubt.” Bui’s petition fails to explain how the existence of the police

document indicating a different date of the offense would have affected the evidence proving his guilt.

Because Bui has failed to demonstrate no rational trier of fact could have found him guilty, he is not

eligible for the writ. Accordingly, we summarily dismiss the petition.

       Because the issues addressed herein are of first impression and potential litigants and members

of the bar may benefit from the directives herein, we direct the Clerk to publish this order.


                                          A Copy,

                                                  Teste:

                                                                 Clerk




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