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.