### §3600. DNA testing

(a) In General.—Upon a written motion by an individual sentenced to imprisonment or death pursuant to a conviction for a Federal offense (referred to in this section as the "applicant"), the court that entered the judgment of conviction shall order DNA testing of specific evidence if the court finds that all of the following apply:

(1) The applicant asserts, under penalty of perjury, that the applicant is actually innocent of—

(A) the Federal offense for which the applicant is sentenced to imprisonment or death; or

(B) another Federal or State offense, if—

(i) evidence of such offense was admitted during a Federal sentencing hearing and exoneration of such offense would entitle the applicant to a reduced sentence or new sentencing hearing; and

(ii) in the case of a State offense—

(I) the applicant demonstrates that there is no adequate remedy under State law to permit DNA testing of the specified evidence relating to the State offense; and

(II) to the extent available, the applicant has exhausted all remedies available under State law for requesting DNA testing of specified evidence relating to the State offense.

(2) The specific evidence to be tested was secured in relation to the investigation or prosecution of the Federal or State offense referenced in the applicant's assertion under paragraph (1).

(3) The specific evidence to be tested—

(A) was not previously subjected to DNA testing and the applicant did not knowingly fail to request DNA testing of that evidence in a prior motion for postconviction DNA testing; or

(B) was previously subjected to DNA testing and the applicant is requesting DNA testing using a new method or technology that is substantially more probative than the prior DNA testing.

(4) The specific evidence to be tested is in the possession of the Government and has been subject to a chain of custody and retained under conditions sufficient to ensure that such evidence has not been substituted, contaminated, tampered with, replaced, or altered in any respect material to the proposed DNA testing.

(5) The proposed DNA testing is reasonable in scope, uses scientifically sound methods, and is consistent with accepted forensic practices.

(6) The applicant identifies a theory of defense that—

(A) is not inconsistent with an affirmative defense presented at trial; and

(B) would establish the actual innocence of the applicant of the Federal or State offense referenced in the applicant's assertion under paragraph (1).

(7) If the applicant was convicted following a trial, the identity of the perpetrator was at issue in the trial.

(8) The proposed DNA testing of the specific evidence may produce new material evidence that would—

(A) support the theory of defense referenced in paragraph (6); and

(B) raise a reasonable probability that the applicant did not commit the offense.

(9) The applicant certifies that the applicant will provide a DNA sample for purposes of comparison.

(10) The motion is made in a timely fashion, subject to the following conditions:

(A) There shall be a rebuttable presumption of timeliness if the motion is made within 60 months of enactment of the Justice For All Act of 2004 or within 36 months of conviction, whichever comes later. Such presumption may be rebutted upon a showing—

(i) that the applicant's motion for a DNA test is based solely upon information used in a previously denied motion; or

(ii) of clear and convincing evidence that the applicant's filing is done solely to cause delay or harass.

(B) There shall be a rebuttable presumption against timeliness for any motion not satisfying subparagraph (A) above. Such presumption may be rebutted upon the court's finding—

(i) that the applicant was or is incompetent and such incompetence substantially contributed to the delay in the applicant's motion for a DNA test;

(ii) the evidence to be tested is newly discovered DNA evidence;

(iii) that the applicant's motion is not based solely upon the applicant's own assertion of innocence and, after considering all relevant facts and circumstances surrounding the motion, a denial would result in a manifest injustice; or

(iv) upon good cause shown.

(C) For purposes of this paragraph—

(i) the term "incompetence" has the meaning as defined in section 4241 of title 18, United States Code;

(ii) the term "manifest" means that which is unmistakable, clear, plain, or indisputable and requires that the opposite conclusion be clearly evident.

(b) Notice to the Government; Preservation Order; Appointment of Counsel.—

(1) Notice.—Upon the receipt of a motion filed under subsection (a), the court shall—

(A) notify the Government;

(B) allow the Government a reasonable time period to respond to the motion; and

(C) order the Government to—

(i) prepare an inventory of the evidence related to the case; and

(ii) issue a copy of the inventory to the court, the applicant, and the Government.

(2) Preservation order.—To the extent necessary to carry out proceedings under this section, the court shall direct the Government to preserve the specific evidence relating to a motion under subsection (a).

(3) Appointment of counsel.—The court may appoint counsel for an indigent applicant under this section in the same manner as in a proceeding under section 3006A(a)(2)(B).

(c) Testing Procedures.—

(1) In general.—The court shall direct that any DNA testing ordered under this section be carried out by the Federal Bureau of Investigation.

(2) Exception.—Notwithstanding paragraph (1), the court may order DNA testing by another qualified laboratory if the court makes all necessary orders to ensure the integrity of the specific evidence and the reliability of the testing process and test results.

(3) Costs.—The costs of any DNA testing ordered under this section shall be paid—

(A) by the applicant; or

(B) in the case of an applicant who is indigent, by the Government.

(d) Time Limitation in Capital Cases.—In any case in which the applicant is sentenced to death—

(1) any DNA testing ordered under this section shall be completed not later than 60 days after the date on which the Government responds to the motion filed under subsection (a); and

(2) not later than 120 days after the date on which the DNA testing ordered under this section is completed, the court shall order any post-testing procedures under subsection (f) or (g), as appropriate.

(e) Reporting of Test Results.—

(1) Results.—

(A) In general.—The results of any DNA testing ordered under this section shall be simultaneously disclosed to the court, the applicant, and the Government.

(B) Results exclude applicant.—

(i) In general.—If a DNA profile is obtained through testing that excludes the applicant as the source and the DNA complies with the Federal Bureau of Investigation's requirements for the uploading of crime scene profiles to the National DNA Index System (referred to in this subsection as "NDIS"), the court shall order that the law enforcement entity with direct or conveyed statutory jurisdiction that has access to the NDIS submit the DNA profile obtained from probative biological material from crime scene evidence to determine whether the DNA profile matches a profile of a known individual or a profile from an unsolved crime.

(ii) NDIS search.—The results of a search under clause (i) shall be simultaneously disclosed to the court, the applicant, and the Government.

(2) NDIS.—The Government shall submit any test results relating to the DNA of the applicant to NDIS.

(3) Retention of dna sample.—

(A) Entry into ndis.—If the DNA test results obtained under this section are inconclusive or show that the applicant was the source of the DNA evidence, the DNA sample of the applicant may be retained in NDIS.

(B) Match with other offense.—If the DNA test results obtained under this section exclude the applicant as the source of the DNA evidence, and a comparison of the DNA sample of the applicant results in a match between the DNA sample of the applicant and another offense, the Attorney General shall notify the appropriate agency and preserve the DNA sample of the applicant.

(C) No match.—If the DNA test results obtained under this section exclude the applicant as the source of the DNA evidence, and a comparison of the DNA sample of the applicant does not result in a match between the DNA sample of the applicant and another offense, the Attorney General shall destroy the DNA sample of the applicant and ensure that such information is not retained in NDIS if there is no other legal authority to retain the DNA sample of the applicant in NDIS.

(f) Post-Testing Procedures; Inconclusive and Inculpatory Results.—

(1) Inconclusive results.—If DNA test results obtained under this section are inconclusive, the court may order further testing, if appropriate, or may deny the applicant relief.

(2) Inculpatory results.—If DNA test results obtained under this section show that the applicant was the source of the DNA evidence, the court shall—

(A) deny the applicant relief; and

(B) on motion of the Government—

(i) make a determination whether the applicant's assertion of actual innocence was false, and, if the court makes such a finding, the court may hold the applicant in contempt;

(ii) assess against the applicant the cost of any DNA testing carried out under this section;

(iii) forward the finding to the Director of the Bureau of Prisons, who, upon receipt of such a finding, may deny, wholly or in part, the good conduct credit authorized under section 3632 on the basis of that finding;

(iv) if the applicant is subject to the jurisdiction of the United States Parole Commission, forward the finding to the Commission so that the Commission may deny parole on the basis of that finding; and

(v) if the DNA test results relate to a State offense, forward the finding to any appropriate State official.

(3) Sentence.—In any prosecution of an applicant under chapter 79 for false assertions or other conduct in proceedings under this section, the court, upon conviction of the applicant, shall sentence the applicant to a term of imprisonment of not less than 3 years, which shall run consecutively to any other term of imprisonment the applicant is serving.

(g) Post-Testing Procedures; Motion for New Trial or Resentencing.—

(1) In general.—Notwithstanding any law that would bar a motion under this paragraph as untimely, if DNA test results obtained under this section exclude the applicant as the source of the DNA evidence, the applicant may file a motion for a new trial or resentencing, as appropriate. The court shall establish a reasonable schedule for the applicant to file such a motion and for the Government to respond to the motion.

(2) Standard for granting motion for new trial or resentencing.—The court shall grant the motion of the applicant for a new trial or resentencing, as appropriate, if the DNA test results, when considered with all other evidence in the case (regardless of whether such evidence was introduced at trial), establish by compelling evidence that a new trial would result in an acquittal of—

(A) in the case of a motion for a new trial, the Federal offense for which the applicant is sentenced to imprisonment or death; and

(B) in the case of a motion for resentencing, another Federal or State offense, if evidence of such offense was admitted during a Federal sentencing hearing and exoneration of such offense would entitle the applicant to a reduced sentence or a new sentencing proceeding.

(h) Other Laws Unaffected.—

(1) Post-conviction relief.—Nothing in this section shall affect the circumstances under which a person may obtain DNA testing or post-conviction relief under any other law.

(2) Habeas corpus.—Nothing in this section shall provide a basis for relief in any Federal habeas corpus proceeding.

(3) Not a motion under section 2255.—A motion under this section shall not be considered to be a motion under section 2255 for purposes of determining whether the motion or any other motion is a second or successive motion under section 2255.

(Added Pub. L. 108–405, title IV, §411(a)(1), Oct. 30, 2004, 118 Stat. 2279; amended Pub. L. 114–324, §11(a), Dec. 16, 2016, 130 Stat. 1956.)

#### **Editorial Notes**

#### References in Text

Enactment of the Justice For All Act of 2004, referred to in subsec. (a)(10)(A), is the enactment of Pub. L. 108–405, which was approved Oct. 30, 2004.

#### Amendments

2016—Subsec. (a). Pub. L. 114–324, §11(a)(1), substituted "sentenced to" for "under a sentence of" in introductory provisions.

Subsec. (a)(1)(A). Pub. L. 114–324, §11(a)(1), substituted "sentenced to" for "under a sentence of".

Subsec. (a)(1)(B)(i). Pub. L. 114–324, §11(a)(2)(A), struck out "death" after "Federal".

Subsec. (a)(3)(A). Pub. L. 114–324, §11(a)(2)(B), struck out dash after "the applicant did not" and cl. (ii) designation before "knowingly fail" and struck out cl. (i) which read as follows: "knowingly and voluntarily waive the right to request DNA testing of that evidence in a court proceeding after the date of enactment of the Innocence Protection Act of 2004; or".

Subsec. (b)(1)(C). Pub. L. 114–324, §11(a)(3), added subpar. (C).

Subsec. (e)(1). Pub. L. 114–324, §11(a)(4)(A), amended par. (1) generally. Prior to amendment, text read as follows: "The results of any DNA testing ordered under this section shall be simultaneously disclosed to the court, the applicant, and the Government."

Subsec. (e)(2). Pub. L. 114–324, §11(a)(4)(B), substituted "to NDIS" for "to the National DNA Index System (referred to in this subsection as 'NDIS')".

Subsec. (g)(2)(A). Pub. L. 114–324, §11(a)(1), substituted "sentenced to" for "under a sentence of".

Subsec. (g)(2)(B). Pub. L. 114–324, §11(a)(5), struck out "death" after "during a Federal".

#### **Statutory Notes and Related Subsidiaries**

#### Effective Date

Pub. L. 108–405, title IV, §411(c), Oct. 30, 2004, 118 Stat. 2284, provided that: "This section [enacting this chapter and provisions set out as a note under this section] and the amendments made by this section shall take effect on the date of enactment of this Act [Oct. 30, 2004] and shall apply with respect to any offense committed, and to any judgment of conviction entered, before, on, or after that date of enactment."

#### Short Title of 2004 Amendment

Pub. L. 108–405, title IV, §401, Oct. 30, 2004, 118 Stat. 2278, provided that: "This title [enacting this chapter and sections 14136e and 14163 to 14163e of Title 42, The Public Health and Welfare, amending section 2513 of Title 28, Judiciary and Judicial Procedure, and enacting provisions set out as notes under this section and section 14136 of Title 42] may be cited as the 'Innocence Protection Act of 2004'."

#### System for Reporting Motions

Pub. L. 108–405, title IV, §411(b), Oct. 30, 2004, 118 Stat. 2284, provided that:

"(1) Establishment.—The Attorney General shall establish a system for reporting and tracking motions filed in accordance with section 3600 of title 18, United States Code.

"(2) Operation.—In operating the system established under paragraph (1), the Federal courts shall provide to the Attorney General any requested assistance in operating such a system and in ensuring the accuracy and completeness of information included in that system.

"(3) Report.—Not later than 2 years after the date of enactment of this Act [Oct. 30, 2004], the Attorney General shall submit a report to Congress that contains—

"(A) a list of motions filed under section 3600 of title 18, United States Code, as added by this title;

"(B) whether DNA testing was ordered pursuant to such a motion;

"(C) whether the applicant obtained relief on the basis of DNA test results; and

"(D) whether further proceedings occurred following a granting of relief and the outcome of such proceedings.

"(4) Additional information.—The report required to be submitted under paragraph (3) may include any other information the Attorney General determines to be relevant in assessing the operation, utility, or costs of section 3600 of title 18, United States Code, as added by this title, and any recommendations the Attorney General may have relating to future legislative action concerning that section."