                                                                    Tuesday                28th

               December, 2004.


In Re: Mario Russell Pierce,                                                                      Petitioner.

                    Record No. 2530-04-1


                                   Upon a Petition for a Writ of Actual Innocence

                            Before Chief Judge Fitzpatrick, Judges Elder and Humphreys


        Mario Russell Pierce 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 rape and taking indecent liberties

with a child, of which he was convicted in the Circuit Court of the City of Hampton on September 22,

1999.

        Pierce maintains evidence proving his innocence would have been contained within a Physical

Evidence Recovery Kit (PERK) performed upon the victim by a forensic nurse. During proceedings

pursuant to Code § 19.2-327.1 for biological testing of the PERK materials, the Commonwealth stated

that no PERK had been obtained from the victim. The Commonwealth further stated the vaginal swabs

taken from the victim, for purposes of testing for sexually transmitted diseases, had been destroyed on

August 4, 2000.

        To be entitled to a writ of actual innocence pursuant to Chapter 19.3 of Title 19.2, the petitioner

must assert the existence of evidence, previously unknown or unavailable to him, that proves “no

rational trier of fact could have found proof of guilt beyond a reasonable doubt[.]” Code § 19.2-327(A).

“Evidence is ‘[s]omething (including testimony, documents and tangible objects) that tends to prove or

disprove the existence of an alleged fact . . . .’” In re Rhodes, 44 Va. App. 14, 15, 602 S.E.2d 408, 409
(2004) (citation omitted). Pierce’s discovery that no PERK was completed on the victim and that the

vaginal swabs had been destroyed does not constitute evidence proving his innocence.

       Moreover, Pierce’s claim for relief involves only the unavailability of biological testing upon

physical evidence taken from the victim. “Human biological evidence may not be used as the sole basis

for seeking relief” under Chapter 19.3 of Title 19.2.

       Accordingly, Pierce is not entitled to the writ and his petition is summarily dismissed.

       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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