1     
POSTCONVICTION REMEDIES AMENDMENTS

2     
2020 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Brady Brammer

5     
Senate Sponsor: ____________

6     

7     LONG TITLE
8     General Description:
9          This bill modifies the Postconviction Remedies Act.
10     Highlighted Provisions:
11          This bill:
12          ▸     adds a lower standard for a petitioner to show prejudice when a prosecutor
13     knowingly failed to correct false testimony;
14          ▸     modifies the circumstances under which a post-conviction petition may be
15     precluded;
16          ▸     provides that post-conviction remedies petitions based on factual innocence or
17     requesting DNA testing are not subject to procedural or time bars;
18          ▸     modifies the factors that a judge may consider when determining whether to appoint
19     pro bono counsel;
20          ▸     modifies the timeline for when a court provides certain notices to an individual who
21     is sentenced to death and whose sentence has been affirmed;
22          ▸     modifies the circumstances under which a petitioner who is sentenced to death and
23     whose sentence has been affirmed may decline appointment of counsel;
24          ▸     eliminates the time requirement in which a court shall appoint counsel before
25     requiring a petitioner who is sentenced to death and whose sentence has been
26     affirmed to proceed without counsel or dismissing the petitioner's postconviction
27     action; and
28          ▸     makes technical and conforming changes.
29     Money Appropriated in this Bill:
30          None
31     Other Special Clauses:
32          None
33     Utah Code Sections Affected:
34     AMENDS:
35          78B-9-104, as last amended by Laws of Utah 2018, Chapter 221
36          78B-9-106, as last amended by Laws of Utah 2017, Chapter 447
37          78B-9-107, as last amended by Laws of Utah 2017, Chapter 447
38          78B-9-109, as last amended by Laws of Utah 2008, Chapter 288 and renumbered and
39     amended by Laws of Utah 2008, Chapter 3
40          78B-9-202, as last amended by Laws of Utah 2011, Chapter 165
41          78B-9-301, as last amended by Laws of Utah 2018, Chapter 86
42          78B-9-402, as last amended by Laws of Utah 2013, Chapter 46
43     

44     Be it enacted by the Legislature of the state of Utah:
45          Section 1. Section 78B-9-104 is amended to read:
46          78B-9-104. Grounds for relief -- Retroactivity of rule.
47          (1) Unless precluded by Section 78B-9-106 or 78B-9-107, [a person] an individual
48     who has been convicted and sentenced for a criminal offense may file an action in the district
49     court of original jurisdiction for post-conviction relief to vacate or modify the conviction or
50     sentence upon the following grounds:
51          (a) the conviction was obtained or the sentence was imposed in violation of the United
52     States Constitution or Utah Constitution;
53          (b) the conviction was obtained or the sentence was imposed under a statute that is in
54     violation of the United States Constitution or Utah Constitution, or the conduct for which the
55     petitioner was prosecuted is constitutionally protected;
56          (c) the sentence was imposed or probation was revoked in violation of the controlling
57     statutory provisions;
58          (d) the petitioner had ineffective assistance of counsel in violation of the United States
59     Constitution or Utah Constitution;
60          (e) newly discovered material evidence exists that requires the court to vacate the
61     conviction or sentence, because:
62          (i) neither the petitioner nor petitioner's counsel knew of the evidence at the time of
63     trial or sentencing or in time to include the evidence in any previously filed post-trial motion or
64     post-conviction proceeding, and the evidence could not have been discovered through the
65     exercise of reasonable diligence;
66          (ii) the material evidence is not merely cumulative of evidence that was known;
67          (iii) the material evidence is not merely impeachment evidence; and
68          (iv) viewed with all the other evidence, the newly discovered material evidence
69     demonstrates that no reasonable trier of fact could have found the petitioner guilty of the
70     offense or subject to the sentence received; or
71          (f) the petitioner can prove entitlement to relief under a rule announced by the United
72     States Supreme Court, the Utah Supreme Court, or the Utah Court of Appeals after conviction
73     and sentence became final on direct appeal, and that:
74          (i) the rule was dictated by precedent existing at the time the petitioner's conviction or
75     sentence became final; or
76          (ii) the rule decriminalizes the conduct that comprises the elements of the crime for
77     which the petitioner was convicted; or
78          (g) the petitioner committed any of the following offenses while subject to force, fraud,
79     or coercion, as defined in Section 76-5-308:
80          (i) Section 58-37-8, possession of a controlled substance;
81          (ii) Section 76-10-1304, aiding prostitution;
82          (iii) Section 76-6-206, criminal trespass;
83          (iv) Section 76-6-413, theft;
84          (v) Section 76-6-502, possession of forged writing or device for writing;
85          (vi) Sections 76-6-602 through 76-6-608, retail theft;
86          (vii) Subsection 76-6-1105(2)(a)(i)(A), unlawful possession of another's identification
87     document;
88          (viii) Section 76-9-702, lewdness;
89          (ix) Section 76-10-1302, prostitution; or
90          (x) Section 76-10-1313, sexual solicitation.
91          (2) The court may not grant relief from a conviction or sentence unless in light of the
92     facts proved in the post-conviction proceeding, viewed with the evidence and facts introduced
93     at trial or during sentencing:
94          (a) the petitioner establishes that there would be a reasonable likelihood of a more
95     favorable outcome [in light of the facts proved in the post-conviction proceeding, viewed with
96     the evidence and facts introduced at trial or during sentencing.]; or
97          (b) if the petitioner challenges the conviction or the sentence on grounds that the
98     prosecutor knowingly failed to correct false testimony at trial or sentencing, the petitioner
99     establishes that the false testimony, in any reasonable likelihood, could have affected the
100     judgment of the fact finder.
101          (3) (a) The court may not grant relief from a conviction based on a claim that the
102     petitioner is innocent of the crime for which convicted except as provided in [Title 78B,
103     Chapter 9,] Part 3, Postconviction Testing of DNA, or Part 4, Postconviction Determination of
104     Factual Innocence.
105          (b) Claims under Part 3, Postconviction Testing of DNA or Part 4, Postconviction
106     Determination of Factual Innocence of this chapter may not be filed as part of a petition under
107     this part, but shall be filed separately and in conformity with the provisions of Part 3,
108     Postconviction Testing of DNA or Part 4, Postconviction Determination of Factual Innocence.
109          Section 2. Section 78B-9-106 is amended to read:
110          78B-9-106. Preclusion of relief -- Exception.
111          (1) A [person] petitioner is not eligible for relief under this chapter upon any ground
112     that:
113          (a) may still be raised on direct appeal or by a post-trial motion;
114          (b) was raised or addressed in the trial court, at trial, or on appeal;
115          (c) could have been but was not raised in the trial court, at trial, or on appeal;
116          (d) was raised or addressed in any previous request for post-conviction relief or could
117     have been, but was not, raised in a previous request for post-conviction relief; or
118          (e) is barred by the limitation period established in Section 78B-9-107.
119          (2) (a) The state may raise any of the procedural bars or time bar at any time, including
120     during [the state's] an appeal from an order granting or denying post-conviction relief, unless
121     the court determines that the state should have raised the time bar or procedural bar at an earlier
122     time.
123          (b) Any court may raise a procedural bar or time bar on [its] the court's own motion,
124     provided that [it] the court gives the parties notice and an opportunity to be heard.
125          (3) (a) Notwithstanding Subsection (1)(c), a [person] petitioner may be eligible for
126     relief on a basis that the ground could have been but was not raised in the trial court, at trial, or
127     on appeal, if the failure to raise that ground was due to ineffective assistance of counsel; or
128          (b) Notwithstanding Subsections (1)(c) and (1)(d), a [person] petitioner may be eligible
129     for relief on a basis that the ground could have been but was not raised in the trial court, at trial,
130     on appeal, or in a previous request for post-conviction relief, if the failure to raise that ground
131     was due to force, fraud, or coercion as defined in Section 76-5-308.
132          (4) This section authorizes a merits review only to the extent required to address the
133     exception set forth in Subsection (3).
134          (5) This section does not apply to a petition filed under Part 3, Postconviction Testing
135     of DNA, or Part 4, Postconviction Determination of Factual Innocence.
136          Section 3. Section 78B-9-107 is amended to read:
137          78B-9-107. Statute of limitations for postconviction relief -- Exception.
138          (1) A petitioner is entitled to relief only if the petition is filed within one year after the
139     day on which the cause of action has accrued.
140          (2) For purposes of this section, the cause of action accrues on the [latest] later of the
141     following dates:
142          (a) the last day for filing an appeal from the entry of the final judgment of conviction, if
143     no appeal is taken;
144          (b) the entry of the decision of the appellate court [which] that has jurisdiction over the
145     case, if an appeal is taken;
146          (c) the last day for filing a petition for writ of certiorari in the Utah Supreme Court or
147     the United States Supreme Court, if no petition for writ of certiorari is filed;
148          (d) the entry of the denial of the petition for writ of certiorari or the entry of the
149     decision on the petition for certiorari review, if a petition for writ of certiorari is filed;
150          (e) the date on which petitioner knew or should have known, in the exercise of
151     reasonable diligence, of evidentiary facts on which the petition is based; or
152          (f) the date on which the new rule described in Subsection 78B-9-104(1)(f) is
153     established.
154          (3) (a) The limitations period is tolled for any period during which the petitioner was
155     prevented from filing a petition due to state action in violation of the United States
156     Constitution, due to physical or mental incapacity, or for claims arising under Subsection
157     78B-9-104(1)(g), due to force, fraud, or coercion as defined in Section 76-5-308.
158          (b) The petitioner has the burden of proving by a preponderance of the evidence that
159     the petitioner is entitled to relief under this Subsection (3).
160          (4) The statute of limitations is tolled during the pendency of the outcome of a petition
161     asserting:
162          (a) exoneration through DNA testing under Section 78B-9-303; or
163          (b) factual innocence under Section [78B-9-401] 78B-9-402.
164          (5) Sections 77-19-8, 78B-2-104, and 78B-2-111 do not extend the limitations period
165     established in this section.
166          (6) This section does not apply to a petition filed under Part 3, Postconviction Testing
167     of DNA, or Part 4, Postconviction Determination of Factual Innocence.
168          Section 4. Section 78B-9-109 is amended to read:
169          78B-9-109. Appointment of pro bono counsel.
170          (1) (a) If any portion of the petition is not summarily dismissed, the court may, upon
171     the request of an indigent petitioner, appoint counsel on a pro bono basis to represent the
172     petitioner in the post-conviction court or on post-conviction appeal.
173          (b) Counsel who represented the petitioner at trial or on the direct appeal may not be
174     appointed to represent the petitioner under this section.
175          (2) In determining whether to appoint counsel, the court [shall] may consider the
176     following factors:
177          [(a) whether the petition or the appeal contains factual allegations that will require an
178     evidentiary hearing; and]
179          [(b) whether the petition involves complicated issues of law or fact that require the
180     assistance of counsel for proper adjudication.]
181          (a) whether the petitioner is incarcerated;
182          (b) the likelihood that an evidentiary hearing will be necessary;
183          (c) the likelihood that an investigation will be necessary;
184          (d) the complexity of the factual and legal issues;
185          (e) the apparent capacity of the petitioner to litigate the case; and
186          (f) any other factor relevant to the particular case.
187          (3) An allegation that counsel appointed under this section was ineffective cannot be
188     the basis for relief in any subsequent post-conviction petition.
189          Section 5. Section 78B-9-202 is amended to read:
190          78B-9-202. Appointment and payment of counsel in death penalty cases.
191          (1) [A person] An individual who has been sentenced to death and whose conviction
192     and sentence has been affirmed on appeal shall be advised in open court, on the record, in a
193     hearing [scheduled no less than 30 days prior to the signing of the death warrant] held as soon
194     as reasonably practicable after remittitur from the supreme court, of the provisions of this
195     chapter allowing challenges to the conviction and death sentence and the appointment of
196     counsel for indigent petitioners.
197          (2) (a) (i) If a petitioner requests the court to appoint counsel, the court shall determine
198     whether the petitioner is indigent and make findings on the record regarding the petitioner's
199     indigency.
200          (ii) If the court finds that the petitioner is indigent, [it shall, subject to the provisions of
201     Subsection (5),] the court shall promptly appoint counsel who is qualified to represent
202     petitioners in [postconviction] post-conviction death penalty cases as required by Rule 8 of the
203     Utah Rules of Criminal Procedure.
204          (iii) Counsel who represented the petitioner at trial or on the direct appeal may not be
205     appointed to represent the petitioner under this section.
206          (b) A petitioner who wishes to reject the offer of counsel shall be advised on the record
207     by the court of the consequences of the rejection, and the court shall make detailed findings
208     that the petitioner is competent to knowingly and voluntarily waive counsel, before the court
209     may accept the rejection.
210          (3) (a) Attorney fees and litigation expenses incurred in providing the representation
211     provided for in this section and that the court has determined are reasonable shall be paid from
212     state funds by the Division of Finance according to rules established pursuant to Title 63G,
213     Chapter 3, Utah Administrative Rulemaking Act.
214          [(a)] (b) In determining whether the requested funds are reasonable, the court should
215     consider:
216          (i) the extent to which the petitioner requests funds to investigate and develop evidence
217     and legal arguments that duplicate the evidence presented and arguments raised in the criminal
218     proceeding; and
219          (ii) whether the petitioner has established that the requested funds are necessary to
220     develop evidence and legal arguments that are reasonably likely to support [postconviction]
221     post-conviction relief.
222          [(b)] (c) (i) The court may authorize payment of attorney fees at a rate of $125 per hour
223     up to a maximum of $60,000.
224          (ii) The court may exceed the maximum only upon a showing of good cause as
225     established in Subsections [(3)(e) and (f)] (3)(f) and (g).
226          [(c)] (d) (i) The court may authorize litigation expenses up to a maximum of $20,000.
227          (ii) The court may exceed the maximum only upon a showing of good cause as
228     established in Subsections [(3)(e) and (f)] (3)(f) and (g).
229          [(d)] (e) (i) The court may authorize the petitioner to apply ex parte for the funds
230     permitted in Subsections [(3)(b) and (c)] (3)(c) and (d) upon a motion to proceed ex parte and
231     if the petitioner establishes the need for confidentiality.
232          (ii) The motion to proceed ex parte must be served on counsel representing the state,
233     and the court may not grant the motion without giving the state an opportunity to respond.
234          [(e)] (f) In determining whether good cause exists to exceed the maximum sums
235     established in Subsections [(3)(b) and (c)] (3)(c) and (d), the court shall consider:
236          (i) the extent to which the work done to date and the further work identified by the
237     petitioner duplicates work and investigation performed during the criminal case under review;
238     and
239          (ii) whether the petitioner has established that the work done to date and the further
240     work identified is reasonably likely to develop evidence or legal arguments that will support
241     [postconviction] post-conviction relief.
242          [(f)] (g) The court may permit payment in excess of the maximum amounts established
243     in Subsections [(3)(b) and (c)] (3)(c) and (d) only on the petitioner's motion, provided that:
244          (i) (A) if the court has granted a motion to file ex parte applications under Subsection
245     (3)[(d)](e), the petitioner shall serve the motion to exceed the maximum amounts on an
246     assistant attorney general employed in a division other than the one in which the attorney is
247     employed who represents the state in the [postconviction] post-conviction case; or
248          (B) if the court has not granted a motion to file ex parte applications, [then] the
249     petitioner must serve the attorney representing the state in the [postconviction matter]
250     post-conviction case with the motion to exceed the maximum funds;
251          (ii) if the motion proceeds under Subsection (3)[(f)](e)(i), the designated assistant
252     attorney general may not disclose to the attorney representing the state in the [postconviction
253     matter] post-conviction case any material the petitioner provides in support of the motion
254     except upon a determination by the court that the material is not protected by or that the
255     petitioner has waived the attorney client privilege or work product doctrine; and
256          (iii) the court gives the state an opportunity to respond to the request for funds in
257     excess of the maximum amounts provided in Subsections [(3)(b) and (c)] (3)(c) and (d).
258          (4) Nothing in this chapter shall be construed as creating the right to the effective
259     assistance of [postconviction] post-conviction counsel, and relief may not be granted on any
260     claim that [postconviction] post-conviction counsel was ineffective.
261          [(5) If within 60 days of the request for counsel the court cannot find counsel willing to
262     accept the appointment, the court shall notify the petitioner and the state's counsel in writing.
263     In that event, the petitioner may elect to proceed pro se by serving written notice of that
264     election on the court and state's counsel within 30 days of the court's notice that no counsel
265     could be found. If within 30 days of its notice to the petitioner the court receives no notice that
266     the petitioner elects to proceed pro se, the court shall dismiss any pending postconviction
267     actions and vacate any execution stays, and the state may initiate proceedings under Section
268     77-19-9 to issue an execution warrant.]
269          [(6)] (5) (a) Subject to Subsection (2)(a) the court shall appoint counsel to represent the
270     petitioner for the first petition filed after the direct appeal.
271          (b) For all other petitions, counsel may not be appointed at public expense for a
272     petitioner, except to raise claims:
273          [(a)] (i) based on newly discovered evidence as defined in Subsection
274     78B-9-104(1)(e)(i); or
275          [(b)] (ii) based on Subsection 78B-9-104(1)(f) that could not have been raised in any
276     previously filed post trial motion or [postconviction] post-conviction proceeding.
277          Section 6. Section 78B-9-301 is amended to read:
278          78B-9-301. Postconviction testing of DNA -- Petition -- Sufficient allegations --
279     Notification of victim.
280          (1) As used in this part:
281          (a) "DNA" means deoxyribonucleic acid.
282          (b) "Factually innocent" means the same as that term is defined in Section [78B-9-402]
283     78B-9-401.5.
284          (2) A person convicted of a felony offense may at any time file a petition for
285     postconviction DNA testing in the trial court that entered the judgment of conviction if the
286     person asserts factual innocence under oath and the petition alleges:
287          (a) evidence has been obtained regarding the person's case that is still in existence and
288     is in a condition that allows DNA testing to be conducted;
289          (b) the chain of custody is sufficient to establish that the evidence has not been altered
290     in any material aspect;
291          (c) the person identifies the specific evidence to be tested and states a theory of
292     defense, not inconsistent with theories previously asserted at trial, that the requested DNA
293     testing would support;
294          (d) the evidence was not previously subjected to DNA testing, or if the evidence was
295     tested previously, the evidence was not subjected to the testing that is now requested, and the
296     new testing may resolve an issue not resolved by the prior testing;
297          (e) the proposed DNA testing is generally accepted as valid in the scientific field or is
298     otherwise admissible under Utah law;
299          (f) the evidence that is the subject of the request for testing:
300          (i) has the potential to produce new, noncumulative evidence; and
301          (ii) there is a reasonable probability that the defendant would not have been convicted
302     or would have received a lesser sentence if the evidence had been presented at the original trial;
303     and
304          (g) the person is aware of the consequences of filing the petition, including:
305          (i) those specified in Sections 78B-9-302 and 78B-9-304; and
306          (ii) that the person is waiving any statute of limitations in all jurisdictions as to any
307     felony offense the person has committed which is identified through DNA database
308     comparison.
309          (3) The petition under Subsection (2) shall comply with Rule 65C, Utah Rules of Civil
310     Procedure, including providing the underlying criminal case number.
311          (4) After a petition is filed under this section, prosecutors, law enforcement officers,
312     and crime laboratory personnel have a duty to cooperate in preserving evidence and in
313     determining the sufficiency of the chain of custody of the evidence which may be subject to
314     DNA testing.
315          (5) (a) (i) A person who files a petition under this section shall serve notice upon the
316     office of the prosecutor who obtained the conviction, and upon the Utah attorney general.
317          (ii) The attorney general shall, within 30 days after receipt of service of a copy of the
318     petition, or within any additional period of time the court allows, answer or otherwise respond
319     to all proceedings initiated under this part.
320          (b) After the attorney general responds under Subsection (5)(a), the petitioner has the
321     right to reply to the response of the attorney general.
322          (c) After the attorney general and the petitioner have filed a response and reply in
323     compliance with Subsection (5)(b), the court shall order DNA testing if it finds by a
324     preponderance of the evidence that all criteria of Subsection (2) have been met.
325          (6) (a) If the court grants the petition for testing, the DNA test shall be performed by
326     the Utah State Crime Laboratory within the Criminal Investigations and Technical Services
327     Division created in Section 53-10-103, unless the person establishes that the state crime
328     laboratory has a conflict of interest or does not have the capability to perform the necessary
329     testing.
330          (b) If the court orders that the testing be conducted by any laboratory other than the
331     state crime laboratory, the court shall require that the testing be performed:
332          (i) under reasonable conditions designed to protect the state's interests in the integrity
333     of the evidence; and
334          (ii) according to accepted scientific standards and procedures.
335          (7) (a) DNA testing under this section shall be paid for from funds appropriated to the
336     Department of Public Safety under Subsection 53-10-407(4)(d)(ii) from the DNA Specimen
337     Restricted Account created in Section 53-10-407 if:
338          (i) the court ordered the DNA testing under this section;
339          (ii) the Utah State Crime Laboratory within the Criminal Investigations and Technical
340     Services Division has a conflict of interest or does not have the capability to perform the
341     necessary testing; and
342          (iii) the petitioner who has filed for postconviction DNA testing under Section
343     78B-9-201 is serving a sentence of imprisonment and is indigent.
344          (b) Under this Subsection (7), costs of DNA testing include those necessary to
345     transport the evidence, prepare samples for analysis, analyze the evidence, and prepare reports
346     of findings.
347          (8) If the person is serving a sentence of imprisonment and is indigent, the state shall
348     pay for the costs of the testing under this part, but if the result is not favorable to the person the
349     court may order the person to reimburse the state for the costs of the testing, pursuant to
350     Subsections 78B-9-302(4) and 78B-9-304(1)(b).
351          (9) Any victim of the crime regarding which the person petitions for DNA testing, who
352     has elected to receive notice under Section 77-38-3 shall be notified by the state's attorney of
353     any hearing regarding the petition and testing, even though the hearing is a civil proceeding.
354          Section 7. Section 78B-9-402 is amended to read:
355          78B-9-402. Petition for determination of factual innocence -- Sufficient
356     allegations -- Notification of victim -- Payment to surviving spouse.
357          (1) A person who has been convicted of a felony offense may petition the district court
358     in the county in which the person was convicted for a hearing to establish that the person is
359     factually innocent of the crime or crimes of which the person was convicted.
360          (2) (a) The petition shall contain an assertion of factual innocence under oath by the
361     petitioner and shall aver, with supporting affidavits or other credible documents, that:
362          (i) newly discovered material evidence exists that, if credible, establishes that the
363     petitioner is factually innocent;
364          (ii) the specific evidence identified by the petitioner in the petition establishes
365     innocence;
366          (iii) the material evidence is not merely cumulative of evidence that was known;
367          (iv) the material evidence is not merely impeachment evidence; and
368          (v) viewed with all the other evidence, the newly discovered evidence demonstrates
369     that the petitioner is factually innocent.
370          (b) (i) The court shall review the petition in accordance with the procedures in
371     Subsection (9)(b), and make a finding that the petition has satisfied the requirements of
372     Subsection (2)(a).
373          (ii) If the court finds the petition does not meet all the requirements of Subsection
374     (2)(a), [it] the court shall dismiss the petition without prejudice and send notice of the dismissal
375     to the petitioner and the attorney general.
376          (3) (a) The petition shall also contain an averment that:
377          (i) neither the petitioner nor the petitioner's counsel knew of the evidence at the time of
378     trial or sentencing or in time to include the evidence in any previously filed post-trial motion or
379     postconviction motion, and the evidence could not have been discovered by the petitioner or
380     the petitioner's counsel through the exercise of reasonable diligence; or
381          (ii) a court has found ineffective assistance of counsel for failing to exercise reasonable
382     diligence in uncovering the evidence.
383          (b) (i) Upon entry of a finding that the petition is sufficient under Subsection (2)(a), the
384     court shall then review the petition to determine if Subsection (3)(a) has been satisfied.
385          (ii) If the court finds that the requirements of Subsection (3)(a) have not been satisfied,
386     [it] the court may dismiss the petition without prejudice and give notice to the petitioner and
387     the attorney general of the dismissal, or the court may waive the requirements of Subsection
388     (3)(a) if the court finds the petition should proceed to hearing based upon the strength of the
389     petition, and that there is other evidence that could have been discovered through the exercise
390     of reasonable diligence by the petitioner or the petitioner's counsel at trial, and the other
391     evidence:
392          [(i)] (A) was not discovered by the petitioner or the petitioner's counsel;
393          [(ii)] (B) is material upon the issue of factual innocence; and
394          [(iii)] (C) has never been presented to a court.
395          (4) (a) If the conviction for which the petitioner asserts factual innocence was based
396     upon a plea of guilty, the petition shall contain the specific nature and content of the evidence
397     that establishes factual innocence.
398          (b) The court shall review the evidence and may dismiss the petition at any time in the
399     course of the proceedings, if the court finds that the evidence of factual innocence relies solely
400     upon the recantation of testimony or prior statements made by a witness against the petitioner,
401     and the recantation appears to the court to be equivocal or selfserving.
402          (5) A person who has already obtained postconviction relief that vacated or reversed
403     the person's conviction or sentence may also file a petition under this part in the same manner
404     and form as described above, if no retrial or appeal regarding this offense is pending.
405          (6) If some or all of the evidence alleged to be exonerating is biological evidence
406     subject to DNA testing, the petitioner shall seek DNA testing pursuant to Section 78B-9-301.
407          (7) Except as provided in Subsection (9), the petition and all subsequent proceedings
408     shall be in compliance with and governed by Rule 65C, Utah Rules of Civil Procedure, and
409     shall include the underlying criminal case number.
410          (8) After a petition is filed under this section, prosecutors, law enforcement officers,
411     and crime laboratory personnel shall cooperate in preserving evidence and in determining the
412     sufficiency of the chain of custody of the evidence which is the subject of the petition.
413          (9) (a) A person who files a petition under this section shall serve notice of the petition
414     and a copy of the petition upon the office of the prosecutor who obtained the conviction and
415     upon the Utah attorney general.
416          (b) (i) The assigned judge shall conduct an initial review of the petition.
417          (ii) If it is apparent to the court that the petitioner is either merely relitigating facts,
418     issues, or evidence presented in previous proceedings or presenting issues that appear frivolous
419     or speculative on their face, the court shall dismiss the petition, state the basis for the dismissal,
420     and serve notice of dismissal upon the petitioner and the attorney general.
421          (iii) If, upon completion of the initial review, the court does not dismiss the petition, it
422     shall order the attorney general to file a response to the petition.
423          (iv) The attorney general shall, within 30 days after [receipt of] the day on which the
424     attorney general receives the court's order, or within any additional period of time the court
425     allows, answer or otherwise respond to all proceedings initiated under this part.
426          (c) (i) After the time for response by the attorney general under Subsection (9)(b) has
427     passed, the court shall order a hearing if [it] the court finds the petition meets the requirements
428     of Subsections (2) and (3) and finds there is a bona fide and compelling issue of factual
429     innocence regarding the charges of which the petitioner was convicted.
430          (ii) No bona fide and compelling issue of factual innocence exists if the petitioner is
431     merely relitigating facts, issues, or evidence presented in a previous proceeding or if the
432     petitioner is unable to identify with sufficient specificity the nature and reliability of the newly
433     discovered evidence that establishes the petitioner's factual innocence.
434          (d) (i) If the parties stipulate that the evidence establishes that the petitioner is factually
435     innocent, the court may find the petitioner is factually innocent without holding a hearing.
436          (ii) If the state will not stipulate that the evidence establishes that the petitioner is
437     factually innocent, no determination of factual innocence may be made by the court without
438     first holding a hearing under this part.
439          (10) The court may not grant a petition for a hearing under this part during the period
440     in which criminal proceedings in the matter are pending before any trial or appellate court,
441     unless stipulated to by the parties.
442          (11) Any victim of a crime that is the subject of a petition under this part, and who has
443     elected to receive notice under Section 77-38-3, shall be notified by the state's attorney of any
444     hearing regarding the petition.
445          (12) (a) A petition to determine factual innocence under this part, or Part 3,
446     Postconviction Testing of DNA, shall be filed separately from any petition for postconviction
447     relief under Part 1, General Provisions.
448          (b) Separate petitions may be filed simultaneously in the same court.
449          (13) The procedures governing the filing and adjudication of a petition to determine
450     factual innocence apply to all petitions currently filed or pending in the district court and any
451     new petitions filed on or after June 1, 2012.
452          (14) (a) As used in this Subsection (14) and in Subsection (15):
453          (i) "Married" means the legal marital relationship established between [a man and a
454     woman and] two individuals as recognized by the [laws of this state; and] law.
455          (ii) "Spouse" means [a person] an individual married to the petitioner at the time the
456     petitioner was found guilty of the offense regarding which a petition is filed and who has since
457     then been continuously married to the petitioner until the petitioner's death.
458          (b) A claim for determination of factual innocence under this part is not extinguished
459     upon the death of the petitioner.
460          (c) (i) If any payments are already being made to the petitioner under this part at the
461     time of the death of the petitioner, or if the finding of factual innocence occurs after the death
462     of the petitioner, the payments due under Section 78B-9-405 shall be paid according to the
463     schedule under Section 78B-9-405 to the petitioner's surviving spouse.
464          (ii) Payments cease upon the death of the spouse.
465          (15) The spouse under Subsection (14) forfeits all rights to receive any payment under
466     this part if the spouse is charged with a homicide established by a preponderance of the
467     evidence that meets the elements of any felony homicide offense in Title 76, Chapter 5,
468     Offenses Against the Person, except automobile homicide, applying the same principles of
469     culpability and defenses as in Title 76, Utah Criminal Code, including Title 76, Chapter 2,
470     Principles of Criminal Responsibility.