PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette, Mims, and
Powell, JJ., and Russell, S.J.

MICHAEL HAAS
                                              OPINION BY
v.   Record No. 110599            SENIOR JUSTICE CHARLES S. RUSSELL
                                           January 13, 2012
COMMONWEALTH OF VIRGINIA

               FROM THE COURT OF APPEALS OF VIRGINIA

      This is an appeal from a judgment of the Court of Appeals

dismissing a petition for a writ of actual innocence based on

non-biological evidence.    By his sole assignment of error, the

petitioner contends that the Court of Appeals abused its

discretion by making evidentiary findings and dismissing his

petition without first referring the case to the circuit court

for an evidentiary hearing.

                         Facts and Proceedings

      On July 22, 1994, Michael Haas was convicted at a bench

trial in the Circuit Court of Powhatan County of sodomy

committed upon his two sons in 1992 and 1993, when they were

eleven and nine years of age, respectively.      He was sentenced to

life imprisonment in each case.    He appealed his convictions to

the Court of Appeals and to this Court and both appeals were

denied.   In 2000, Haas filed a petition for a writ of habeas

corpus in the circuit court which was dismissed as time-barred.

This Court awarded him an appeal of that ruling but ultimately
affirmed it by a published opinion.    Haas v. Lee, 263 Va. 273,

278, 560 S.E.2d 256, 258 (2002).

        Haas then filed a petition for a writ of habeas corpus in

the United States District Court for the Eastern District of

Virginia claiming that he was entitled to equitable tolling of

the statute of limitations because he was actually innocent.      He

attached to his petition an affidavit from his elder son

recanting his trial testimony, an affidavit from his daughter

that the boys' trial testimony was false, and an affidavit from

a physician questioning the reliability of the expert medical

testimony the Commonwealth had presented at trial.       The district

court declined to grant equitable tolling of the statute of

limitations because even in light of the affidavits, Haas had

failed to show that under all the circumstances it was more

likely than not that no reasonable fact-finder would have

convicted him of sodomizing his two sons.    Haas v. Lee, Civil

No. 3:02CV572 (E.D. Va. 2003) (unpublished).     Haas appealed that

decision to the United States Court of Appeals for the Fourth

Circuit, which dismissed the appeal by an unpublished order in

2004.     Haas v. Warden, No. 03-7703 (4th Cir. 2004).

        On May 11, 2010, Haas filed in the Court of Appeals a

petition for a writ of actual innocence based on non-biological

evidence pursuant to Code § 19.2-327.10.    Attached to the

petition were affidavits by his two sons, then adults in their

                                   2
late twenties, recanting the testimony they had given at trial,

and an affidavit by their elder sister, recanting her trial

testimony and stating that the boys' testimony had been

suggested and coached by their mother and a counselor named

Susan Boyles.   Also attached were affidavits by two physicians

questioning the reliability of the expert medical testimony the

Commonwealth had presented at trial.

     The Commonwealth filed a motion to dismiss the petition.

Attached was an affidavit by Gregory A. Neal, the Sheriff of

Powhatan County, as to individual interviews he had conducted

with the younger son and the elder daughter in 1994, including

transcripts of the interviews.   Also attached were affidavits by

the children's mother, Haas' former wife, and by Susan Boyles,

that they had never coached or rehearsed the children's

testimony or encouraged them to lie at their father's trial.

     After a review of the petition, the motion to dismiss, the

petitioner's reply to the motion, the attached affidavits and

exhibits, the parties' briefs and the records of the prior

proceedings in the case, a panel of the Court of Appeals denied

Haas' request to refer the case to the circuit court for an

evidentiary hearing.   By an order entered March 1, 2011 that

included a detailed review of the record, the Court of Appeals

granted the Commonwealth's motion to dismiss the petition for a

writ of actual innocence.   We awarded Haas an appeal.

                                 3
                               Analysis

        Chapter 19.3 of Title 19.2 of the Code, captioned "Issuance

of Writ of Actual Innocence Based on Nonbiological Evidence,"

was adopted by the General Assembly in 2004.    2004 Acts ch.

1024.    That chapter, consisting of Code §§ 19.2-327.10 through

19.2-327.14, confers original jurisdiction upon the Court of

Appeals to entertain petitions for such writs.    The chapter also

specifies the form and contents required in such petitions, the

procedures to be followed in deciding such cases, the relief

that may be granted, and provides for appeals to this Court.

        The standard of review we apply in deciding appeals under

this chapter requires that we will be bound by factual findings

contained in the record before us that are approved by the Court

of Appeals unless they are plainly wrong or without evidence to

support them, but we will review de novo the Court of Appeals'

conclusions of law and conclusions based on mixed questions of

law and fact.    Turner v. Commonwealth, 282 Va. 227, 246, 717

S.E.2d 111, 121 (2011); Carpitcher v. Commonwealth, 273 Va. 335,

342-43, 641 S.E.2d 486, 490-91 (2007).

        Code § 19.2-327.11(A) requires the petitioner seeking such

a writ to allege under oath (1) the crime of which he was

convicted and that the conviction was upon a plea of not guilty,

(2) that he was actually innocent of the crime, (3) an exact

description of the previously unknown or unavailable evidence

                                   4
supporting his claim of innocence, (4) that such evidence was

unknown or unavailable to petitioner or his attorney when the

conviction became final in the trial court, (5) the date the

evidence became available and the circumstances under which it

was discovered, (6) that the evidence was such as could not, by

the exercise of due diligence, have been discovered before the

expiration of 21 days after the entry of the final order of

conviction, (7) that the 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 (8) that the evidence is

not merely cumulative, corroborative or collateral.

     Code § 19.2-327.12 provides, in pertinent part:

     If the Court of Appeals determines from the
     petition, from any hearing on the petition,
     from a review of the records of the case, or
     from any response from the Attorney General
     that a resolution of the case requires
     further development of the facts, the court
     may order the circuit court in which the
     order of conviction was originally entered
     to conduct a hearing within 90 days after
     the order has been issued to certify
     findings of fact with respect to such issues
     as the Court of Appeals shall direct.

In the present case, the Court of Appeals determined that no

further development of the facts was required in order to

resolve the case and denied Haas' request that the case be

returned to the circuit court for an evidentiary hearing.    Haas


                                5
concedes that the decision whether to order such a hearing lay

within the discretion of the Court of Appeals, but contends

that, in the circumstances of this case, the Court's refusal of

his request amounted to an abuse of discretion.

     Code § 19.2-327.13 provides, in pertinent part:

     Upon consideration of the petition, the response by the
     Commonwealth, previous records of the case, the record of
     any hearing held under this chapter and, if applicable, any
     findings certified from the circuit court pursuant to an
     order issued under this chapter, the Court of Appeals, if
     it has not already summarily dismissed the petition, shall
     either dismiss the petition for failure to state a claim or
     assert grounds upon which relief shall be granted; or the
     Court shall (i) dismiss the petition for failure to
     establish previously unknown or unavailable evidence
     sufficient to justify the issuance of the writ, or (ii)
     only upon a finding that the petitioner has proven by clear
     and convincing evidence all of the allegations contained in
     clauses (iv) through (viii) of subsection A of § 19.2-
     327.11, and upon a finding that no rational trier of fact
     could have found proof of guilt beyond a reasonable doubt,
     grant the writ. . . . The burden of proof in a proceeding
     brought pursuant to this chapter shall be upon the
     convicted person seeking relief.

Thus, while the Court of Appeals is vested with authority to

refer a case brought under this chapter back to the circuit

court for an evidentiary hearing if, in its discretion, it deems

that the facts require further development, it is not required

to do so.   The Court of Appeals is vested with broad discretion

in determining whether the facts require further development.

Turner, 282 Va. at 247, 717 S.E.2d at 121; Johnson v.

Commonwealth, 273 Va. 315, 325, 641 S.E.2d 480, 486 (2007).



                                 6
     The provisions of Code § 19.2-327.13, quoted above, give

the Court of Appeals clear authority to decide such a petition

on the basis of matters contained in the record. 1   Those may

include the record of the original trial as well as records of

all post-trial proceedings including the petition for a writ of

actual innocence.

     The Court of Appeals, in proceedings under this chapter,

acts as a court of original jurisdiction.   It therefore has the

same authority to weigh and evaluate documentary and physical

evidence as a trial court would have.   Where a new witness has

been found, who has not previously testified and who could not

with due diligence have been discovered before the conviction

became final, reference to the circuit court for an evidentiary

hearing might be appropriate because of a trial judge's unique

ability to see and hear the witness first hand and to evaluate

his credibility from his appearance and demeanor while

testifying.   Witnesses who testified at the original trial, but

later decide to recant their testimony, stand on a different

footing.




     1
       That authority is the equivalent of the authority
conferred on this Court, when acting as a court of original
jurisdiction in habeas corpus cases, to make its decision on the
basis of the record when the Court determines that the issue
"can be fully determined on the basis of recorded matters."
Code § 8.01-654 (B)(4).
                                 7
     Traditionally, courts view recantations with "great

suspicion."    Dobbert v. Wainwright, 468 U.S. 1231, 1233-34

(1984).   "Skepticism about recantations is especially applicable

in cases of child sexual abuse where recantation is a recurring

phenomenon."    United States v. Provost, 969 F.2d 617, 621 (8th

Cir. 1992).    We have observed: "Recantation evidence is

generally questionable in character and is widely viewed by

courts with suspicion because of the obvious opportunities and

temptations for fraud.    Unless proven true, recantation evidence

merely amounts to an attack on a witness' credibility by the

witness herself."    Carpitcher, 273 Va. at 346, 641 S.E.2d at 492

(citations omitted); see also Turner, 282 Va. at 248, 717 S.E.2d

at 122.

     Such skepticism increases with the passage of time.

Recantation evidence appearing long after the trial has ended

places the opposing party at a disadvantage similar to that

which justifies statutes of limitations.    Memories may have

faded, witnesses may have disappeared or become incapable of

testifying, physical evidence may be unrecoverable 2 and the




     2
       The present case illustrates that concern. The
Commonwealth's expert medical witnesses at trial presented
photographs of the rectal examinations they had made of the
boys, showing graphic evidence of chronic sexual abuse. In
deciding the case, the trial judge commented: "[T]hese pictures
here do speak volumes in my opinion." For reasons unexplained,
                                  8
recanting witness may have had ample time to acquire an

extraneous motive to falsify his original testimony.

       In Carpitcher, the defendant was convicted of sexual

assault on a child.    The victim, who had been the Commonwealth's

principal witness at trial, later recanted her testimony and the

defendant filed a petition for a writ of actual innocence in the

Court of Appeals based upon the victim's recantation.      The Court

of Appeals, in that case, referred the issue to the circuit

court for an evidentiary hearing.       273 Va. at 341, 641 S.E.2d at

489.   After hearing the victim's testimony, the circuit court

reported to the Court of Appeals that the witness had given

three versions of the facts and that she was no longer a

credible witness.     Id. at 341, 641 S.E.2d at 490.   The circuit

court concluded that it could not determine whether the victim's

recantation was true.     Id.   The Court of Appeals held that the

recantation evidence would only be "material" within the meaning

of Code § 19.2-327.11(A) if the defendant proved by clear and

convincing evidence that the recantation was "true."       Id. at

342, 641 S.E.2d at 490.    We affirmed, holding that although the

term "material" has different meanings in other contexts, within

the context of Code § 19.2-327.11(A), "evidence supporting a

petition for a writ of actual innocence based on non-biological



the photographs no longer appear in the record and were not
before the Court of Appeals.
                                    9
evidence must be true.    Manifestly, evidence that is false

cannot be 'material' under the terms of the statute."     Id. at

345, 641 S.E.2d at 492.

     The testimony of the boys at trial in the instant case was

graphic and explicit.    The trial judge, having seen and heard

them and having observed their demeanor, stated: "They were

scared and worried, they [were] children and I would suspect

their testimony to be pretty much as it came out here today.

There was no equivocation, there was no hesitation, both of them

said their father, as awful as it might be and hard as [it] is,

yes, their father [sodomized them].   And I believe it.   And I

find the defendant guilty of each charge."

     The boys' testimony was abundantly corroborated.     Prior to

the trial in 1994, Sheriff Neal, then an investigator with the

Sheriff's Department, interviewed the boys individually, without

their mother's presence.   They told him that their father slept

in their beds with them and sodomized them as often as once a

week over a long period.   The younger son told him that he kept

his mattress pushed up against the wall, and slightly up the

wall, so he would not fall into the "crack" between the mattress

and the wall while his father was "pounding" him.   The mother

and the elder brother confirmed seeing the mattress in that

position.   Haas admitted that he sometimes slept with the boys

and confirmed that his younger son pushed his mattress up

                                 10
against the wall.   The mother testified to finding blood on the

younger boy's sheets.

       Susan Dodson, the boys' maternal aunt, testified to several

rambling telephone calls she received from Haas.    In the last of

these, she said that Haas' speech was slurred, but he said:

"[H]ell yeah, I did it, I'd do it again, I screwed the kids, you

can go to hell with the rest of them because you can't prove

it."   She confirmed the truth of this testimony in a recent

affidavit filed as an exhibit with the Attorney General's motion

to dismiss Haas' petition.

       The trial judge found most persuasive the testimony of four

physicians the Commonwealth presented at trial.    Haas' counsel

made no objection to their qualifications and the court

qualified all four to give expert testimony.   They examined the

boys in 1994, over a year after the alleged sexual abuse had

occurred.   Two were residents in pediatrics at the Medical

College of Virginia and two were board-certified pediatricians

with extensive experience in child sex-abuse cases.   The younger

boy was examined under anesthesia but gave an account of his

experiences consistent with sexual abuse.   The rectal

examinations of both boys were markedly abnormal.   The younger

boy's examination revealed a jagged appearance resulting from

tearing tissue later healed but leaving marked scarring.   The

older boy showed enlargement and a marked decrease of sphincter

                                 11
tone.    The physicians all testified that these findings were

consistent with chronic penetration from the outside.      The

photographs of the conditions revealed by these examinations

"spoke volumes" in the opinion of the trial court.

        In deciding the issue presented by Haas' petition, the

Court of Appeals had to weigh the records of the prior

proceedings, including all of the foregoing evidence, against

the physicians' affidavits attached to Haas' petition.      These

affidavits were entitled to little weight because the physicians

giving the affidavits, unlike those who testified, never

examined either the injuries inflicted on the victims or the

contemporaneous photographs showing those injuries.      Further,

the evidence of the physicians' affidavits was not newly

discovered and such as to have been unavailable to the

petitioner, by the exercise of due diligence, before the

expiration of 21 days following the entry of the final order of

conviction.    At trial, Haas offered medical testimony, which the

trial court found unpersuasive, taking issue with the

Commonwealth's medical evidence.       The physicians' affidavits

attached to Haas' petition are, therefore, merely cumulative or

corroborative of the defense evidence rejected by the trial

court.

        Haas had the burden of proving to the Court of Appeals, by

clear and convincing evidence, that the children's recantations

                                  12
are true, that the evidence upon which he relies could not have

been timely discovered by the exercise of due diligence and is

not merely cumulative, corroborative or collateral, and that,

weighing all the evidence in the record against that which he

contends to be newly discovered and previously unavailable, no

rational trier of fact could have found him guilty beyond a

reasonable doubt.   Code § 19.2-327.13.

     The Court of Appeals was entitled to assume that the

witnesses called by Haas in support of his petition would

testify consistently with their affidavits, accord to that

evidence the weight, if any, to which it was entitled, and

balance that against the weight of all other evidence in the

record.   Having thus weighed the evidence, the Court of Appeals

found that Haas had failed to carry his burden of proof and,

accordingly, granted the Commonwealth's motion to dismiss his

petition.

                            Conclusion

     For the reasons stated, we conclude that the Court of

Appeals did not abuse its discretion in declining to refer the

case back to the circuit court for an evidentiary hearing and we

will affirm the judgment from which this appeal was taken.

                                                         Affirmed.




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