Petition for a Writ of Actual Innocence
Judges Petty, Athey and Senior Judge Clements
Thomas Waller filed a petition with 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 petition, Waller
contends Toghill v. Commonwealth, 289 Va. 220
(2015), an opinion by the Supreme Court considering the
application of Lawrence v. Texas, 539 U.S. 558
(2003), to Virginia's statutory prohibition against
sodomy, should be applied retroactively to the facts of his
case. Waller argues that, as a result of Lawrence,
Toghill "decriminalized the speech and conduct
by Waller that culminated in his felony conviction in
1999." Accordingly, he reasons that because of the
change in the law he is entitled to a writ of actual
innocence. We disagree. "Chapter 19.3 solely allows
review of previously unknown or unavailable non-biological
evidence." In Re: Rhodes, 44 Va.App.
14, 15 (2004). Waller's petition fails to allege the
existence of any newly discovered evidence. Accordingly, we
summarily dismiss Waller's petition. See Code
October 1998, a Roanoke police detective was working
undercover in Wasena Park, conducting morals investigations.
As the detective stood in the park near the river, Waller
approached from behind, walked past the detective, and stood
on a rocky embankment about twenty feet away. After a moment,
the detective walked down the embankment and stood near
Waller. The detective began a casual conversation with
Waller. During the conversation, Waller asked the detective
if he wanted to engage in oral sodomy. The detective
suggested that they move to "another spot in the
park." Once there Waller turned, grabbed the detective,
and attempted to unzip the detective's pants. At that
time the detective arrested Waller.
convicted Waller of solicitation to commit sodomy, in
violation of Code §§ 18.2-29 and 18.2-361(A), and
Waller was sentenced to sixty days in jail and a $1, 500.00
fine. Waller appealed his conviction to this Court and sought
leave to consolidate his case with that of nine other
defendants. His request was granted, and his conviction was
subsequently affirmed in the consolidated appeal. See
DePriest v. Commonwealth, 33 Va.App. 754, 757 (2000).
Waller "now seeks a Writ of Actual Innocence because his
conduct has been decriminalized retroactively." Waller
argues that under the U.S. Supreme Court's holding in
Lawrence v. Texas, 539 U.S. 558 (2003), and that of
the Supreme Court of Virginia in Toghill v.
Commonwealth, 289 Va. 220 (2015), sodomy is not a crime
unless it involves minors, non-consensual activity,
prostitution, or public conduct; thus, he reasons that he is
entitled to a writ of actual innocence.
§ 19.2-327.10 confers original jurisdiction upon this
Court to consider a petition for a writ of actual innocence
based on non-biological evidence." Phillips v.
Commonwealth, 69 Va.App. 555, 562 (2018) (quoting
Bush v. Commonwealth, 68 Va.App. 797, 803 (2018)).
This Court's authority to issue a writ of actual
innocence, however, "is limited. It can only be
exercised 'in such cases and in such
manner as may be provided by the General
Assembly.'" In Re: Brown, 295 Va. 202, 209
(2018) (quoting Va. Const. art. VI, § 1). Chapter 19.3
of Title 19.2 of the Code of Virginia provides both the
authority and the statutory boundaries given by the General
Assembly for granting of a writ of actual innocence.
The plain and obvious reading of the Chapter indicates the
legislature's intent that the issuance of a Writ of
Actual Innocence be based solely on new findings of fact from
newly discovered non-biological evidence. Nowhere in the
Chapter does the Code invite retroactive interpretation and
application of the legal effect of decisions of law.
Rhodes, 44 Va.App. at 15-16. Petitions that fall
"outside of these statutory boundaries," must be
submitted to the Governor of Virginia, who is vested with the
power of executive clemency. Brown, 295 Va. at 209.
Rhodes, this Court summarily dismissed a petition
for a writ of actual innocence based on a claim that an
opinion of this Court issued after the petitioner's
conviction "should be applied to his case."
Rhodes, 44 Va.App. at 15. We noted that the
applicable statutes make "clear that the legislature
intended this writ to be issued solely upon consideration of
newly discovered evidence that was not available at
the time of trial but that 'is material and, when
considered with all of the other evidence in the current
record, will prove that no rational trier of fact
[would] have found proof of guilt beyond a reasonable
doubt[.]'" Id. (quoting Code §
19.2-327.11). The petitioner had not asked this Court to
consider any "new evidence requiring findings of
fact." Id. "Because [the petitioner] only
advance[d] an argument on the legal effect of [the
subsequently issued opinion] in support of his petition, a
ground not contemplated by the Code, we summarily dismiss[ed]
his petition." Id. at 16.
Waller argues that the legal holdings of Lawrence
and Toghill should be applied to the facts of his
case. As in Rhodes, Waller does not ask this Court
to consider any newly discovered evidence that was not
available at the time of trial. Waller "only advances an
argument on the legal effect" of subsequent judicial
decisions, "a ground not contemplated by the Code."
See id. at 16. Accordingly, as in Rhodes,
we summarily dismiss Waller's petition.