PRESENT: Hassell, C.J., Lacy, Keenan, Lemons, Koontz, and Agee, 

JJ., and Stephenson, S.J. 

ALECK J. CARPITCHER 

v. Record No. 060638 OPINION BY JUSTICE BARBARA MILANO KEENAN 

 March 2, 2007 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

This appeal arises from the Court of Appeals’ dismissal of 

a petition for a writ of actual innocence based on nonbiological evidence, in which a petitioner sought relief based 

on recantation evidence provided by the victim of the crimes who 

had given contrary testimony at the petitioner’s trial. We 

primarily consider whether the Court of Appeals correctly 

applied the statutory provisions governing such petitions, Code 

§§ 19.2-327.10 through –327.14. 

In August 1999, Aleck Jacob Carpitcher was convicted by a 

jury in the Circuit Court of Roanoke County (circuit court) of 

aggravated sexual battery, in violation of Code § 18.2-

67.3(A)(1), of taking indecent liberties with a minor, in 

violation of Code § 18.2-370.3, and of three counts of animate 

object sexual penetration, in violation of Code § 18.2-67.2. 

The circuit court sentenced Carpitcher to a total of 73 years’ 

imprisonment, with 35 years of that total sentence suspended.1

 1 The circuit court also suspended the $20,000 fine fixed by 

the jury.

1
The alleged victim of these offenses was H.L., who was ten 

years old at the time of the charged offenses and was the 

Commonwealth’s primary witness at Carpitcher’s trial.2 H.L. 

testified at the trial that between January and May 1998, 

Carpitcher asked her on one occasion to touch his penis, removed 

her underwear and inserted his finger into her vagina on three 

occasions, and routinely grabbed her vagina or buttocks when he 

was alone with her in her mother’s bedroom. H.L. admitted that 

she did not like Carpitcher and that she was jealous of his 

relationship with her mother. H.L. further testified that she 

did not tell her mother about Carpitcher’s actions because she 

was afraid that Carpitcher would hurt H.L. or her mother. 

Following his conviction, Carpitcher filed a petition for 

appeal in the Court of Appeals, which refused the petition in an 

unpublished memorandum opinion on the ground that H.L.’s 

testimony was not inherently incredible. Carpitcher v. 

Commonwealth, Record No. 2104-99-3 (February 22, 2000). This 

Court also refused Carpitcher’s petition for appeal. Carpitcher 

v. Commonwealth, Record No. 001281 (November 7, 2000). 

In March 2000, in conversations with her mother and her 

therapist, H.L. recanted her testimony that Carpitcher had 

committed the various acts she described at trial. In April 

 2

 Because this case involves sexual abuse of a minor, we 

refer to the victim by pseudonym. 

2
2000, H.L. wrote a letter to Governor James S. Gilmore, III, 

stating that she had falsely accused Carpitcher and requesting 

that he be released from prison. 

Also in April 2000, in an interview with Carpitcher’s 

attorney, H.L. again recanted her trial testimony, claiming that 

Carpitcher never touched her. However, she maintained that he 

once asked her to touch his penis. H.L. also stated that her 

mother told her that unless H.L. “[told] the truth” and recanted 

her testimony, she would be forced to live with her father 

against her wishes. 

In October 2000, H.L. wrote a statement in which she 

claimed that her trial testimony was not true, that Carpitcher 

never touched her, and that she accused him of sexually abusing 

her because she was jealous of his relationship with her mother 

and she wanted to make him “go away.” On another occasion, H.L. 

recanted her trial testimony in a sworn statement. 

In November 2004, Carpitcher filed in the Court of Appeals 

a petition for a writ of actual innocence based on nonbiological evidence under Code §§ 19.2-327.10 through –327.14. 

He alleged that upon consideration of H.L.’s recantation, no 

rational trier of fact could have found him guilty of the crimes 

for which he was convicted. The Commonwealth responded by 

filing a motion to dismiss, arguing that H.L.’s recantation was 

3
the product of duress and was otherwise insufficient to support 

an award of a writ of actual innocence. 

The Court of Appeals determined that additional evidence 

was necessary and accordingly certified the following issues to 

the circuit court for hearing: 

(1) Whether the victim in this case has recanted the 

testimony she gave at trial in any material way with regard 

to the culpability of the petitioner and (2) if such 

material recantation of her trial testimony has taken 

place, whether or not such recantation is the product of 

duress, undue influence or inappropriate pressure from 

others. 

The circuit court conducted a hearing on the issues 

certified by the Court of Appeals. H.L., who was 17 years old 

at the time of the hearing, testified that her testimony at 

Carpitcher’s criminal trial was false and that Carpitcher had 

never touched her or made any sexual advances toward her. 

In its findings of fact certified to the Court of Appeals, 

the circuit court concluded that H.L. was no longer a credible 

witness because she had testified inconsistently about the same 

issues on three separate occasions.3 The circuit court was 

unable to determine which version of H.L.’s testimony was true. 

The circuit court further found that H.L. was “threatened, 

intimidated, and coerced to comply with the subtle and not so 

 3

 In addition to her testimony in Carpitcher’s trial and her 

testimony at the hearing on Carpitcher’s petition for a writ of 

actual innocence, H.L. also testified in a hearing pursuant to 

Carpitcher’s unsuccessful habeas corpus petition. See

Carpitcher v. Warden, Record No. 032922 (April 19, 2004). 

4
subtle, demands that she change her trial testimony.” As a 

result, the circuit court could not determine whether H.L.’s 

recantation was true. 

Carpitcher filed a brief in the Court of Appeals objecting 

to the circuit court’s certified findings of fact, and filed a 

motion seeking leave to file an additional brief. The Court of 

Appeals denied Carpitcher’s motion to submit an additional 

brief, concluding that the record provided an adequate basis on 

which to resolve the merits of the case. 

The Court of Appeals held that H.L.’s recantation would be 

“material,” within the meaning of Code § 19.2-327.11(A)(vii), 

only if Carpitcher proved by clear and convincing evidence 

either that H.L.’s recantation was “true” or that her testimony 

at trial was perjured. In determining that Carpitcher failed to 

meet this burden of proof, the Court of Appeals gave “great 

weight” to the circuit court’s finding that because H.L. was not 

a credible witness, the circuit court could not determine which 

version of H.L.’s testimony was truthful. The Court of Appeals 

also found that H.L.’s trial testimony was not perjured, and

noted that there was “additional evidence, discovered posttrial, that tend[ed] to corroborate H.L.’s trial testimony.” 

Following its review of the record, the Court of Appeals 

dismissed Carpitcher’s petition. Carpitcher filed a petition 

requesting rehearing or rehearing en banc, which the Court of 

5
Appeals denied. In re: Carpitcher, Record No. 2755-04-03 (March 

1, 2006). Carpitcher appeals. 

In reviewing the Court of Appeals’ judgment, we first 

observe that the Court of Appeals considers petitions for a writ 

of actual innocence based on non-biological evidence under its 

original, rather than its appellate, jurisdiction. See Code 

§ 19.2-327.10. Upon consideration of such a petition and the 

supporting materials permitted by Code §§ 19.2-327.10 through –

321.13, the Court of Appeals may 1) dismiss the petition for 

reasons of evidentiary insufficiency, 2) grant the writ and 

vacate the conviction upon clear and convincing evidence 

satisfying the designated statutory requirements, or 3) find the 

petitioner guilty of a lesser included offense and remand the 

case to the circuit court for resentencing. Code § 19.2-327.13. 

This is the first occasion we have had to state the 

standard of review we will apply in this Court to an appeal of a 

final judgment of the Court of Appeals disposing of a petition 

for a writ of actual innocence based on non-biological evidence. 

The judgment before us in this appeal is based partly on factual 

findings certified by the circuit court in response to the Court 

of Appeals’ order referring certain factual issues pursuant to 

Code § 19.2-327.12. Such factual findings are similar to 

circuit court findings made under Code § 8.01-654(C) in habeas 

corpus cases in which we have original jurisdiction and have 

6
referred factual issues to the circuit court for an evidentiary 

hearing. Therefore, we will apply to the factual findings 

contained in the record of the Court of Appeals a standard of 

review similar to the standard we apply to factual findings 

entered in our original jurisdiction habeas corpus proceedings. 

We will be bound by the factual findings in the present record, 

as approved by the Court of Appeals, unless they are plainly 

wrong or without evidence to support them. See Yarbrough v. 

Warden, 269 Va. 184, 195, 609 S.E.2d 30, 36 (2005); Lovitt v. 

Warden, 266 Va. 216, 229, 585 S.E.2d 801, 808 (2003), cert.

denied, 541 U.S. 1006 (2004); Hedrick v. Warden, 264 Va. 486, 

496, 570 S.E.2d 840, 847 (2002). 

We apply a different standard of review, however, to the 

Court of Appeals’ conclusions of law and its conclusions based 

on mixed questions of law and fact. Such conclusions, in 

accordance with general principles of appellate review, are 

subject to our de novo consideration. See Uninsured Employer’s 

Fund v. Gabriel, 272 Va. 659, 662-63, 636 S.E.2d 408, 411 

(2006); Collins v. First Union Nat’l Bank, 272 Va. 744, 749, 636 

S.E.2d 442, 446 (2006); Yarbrough, 269 Va. at 195, 609 S.E.2d at 

36, Lovitt, 266 Va. at 229, 585 S.E.2d at 808. 

Carpitcher argues that the Court of Appeals erred in 

requiring him to prove either that H.L.’s recantation was “true” 

or that her trial testimony was false. Carpitcher asserts that 

7
Code §§ 19.2-327.10 through -327.14 do not place this rigorous 

burden on a petitioner, but merely require that the new evidence 

be material and such that no rational trier of fact considering 

the evidence could have found the petitioner guilty. Carpitcher 

asserts that he has satisfied this statutory requirement because 

the circuit court could not determine which version of H.L.’s 

testimony was true and, thus, no rational trier of fact could 

have found Carpitcher guilty beyond a reasonable doubt. We 

disagree with Carpitcher’s arguments. 

To obtain a writ of actual innocence under the provisions 

of Code §§ 19.2-327.10 through –327.14, a petitioner must allege 

and prove, among other things, that the newly-discovered 

evidence 

(1) “was previously unknown or unavailable to the 

petitioner or his trial attorney of record at the time 

the conviction became final in the circuit court;” 

Code § 19.2-327.11(A)(iv); 

(2) “is such as could not, by the exercise of diligence, 

have been discovered or obtained before the 

expiration of 21 days following entry of the final 

order of conviction by the court;” Code § 19.2-

327.11(A)(vi); 

(3) “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;” Code § 19.2-

327.11(A)(vii); and 

(4) “is not merely cumulative, corroborative or 

collateral.” Code § 19.2-327.11(A)(viii). 

8
The petitioner bears the burden of proving these four elements 

by clear and convincing evidence. Code § 19.2-327.13. 

 The third element listed above, the “materiality 

requirement,” is the only element of proof at issue in this 

appeal. The term “material” can have many different meanings, 

depending on the context in which the word is used. For 

example, when the admissibility of evidence is at issue, the 

term “material” means that the evidence tends to prove a matter 

that is properly at issue in the case. Brugh v. Jones, 265 Va. 

136, 139, 574 S.E.2d 282, 284 (2003). 

In contrast, when considering whether evidence in a 

criminal prosecution was subject to disclosure as being 

exculpatory under the holding in Brady v. Maryland, 373 U.S. 83 

(1963), the term “material” refers to evidence that would have 

created a “reasonable probability that, had the evidence been 

disclosed to the defense, the result of the proceeding would 

have been different.” United States v. Bagley, 473 U.S. 667, 

682 (1985); Workman v. Commonwealth, 272 Va. 633, 664, 636 

S.E.2d 368, 374 (2006). Other different meanings of the term 

“material” further illustrate this point. See e.g., Orndorff v. 

Commonwealth, 271 Va. 486, 504, 628 S.E.2d 344, 354 (2006) (in 

motion for new trial evidence is “material” if it “ ‘ought to 

produce opposite results on the merits’ at another trial”) 

(quoting Lewis v. Commonwealth, 209 Va. 602, 608-09, 166 S.E.2d 

9
248, 253 (1969)); Stottlemyer v. Ghramm, 268 Va. 7, 12, 597 

S.E.2d 191, 193 (2004) (matter is “material” such that witness 

may be impeached if “ 'cross-examining party would be entitled 

to prove it in support of his case’ ”) (quoting Allen v. 

Commonwealth, 122 Va. 834, 842, 94 S.E. 783, 786 (1918)); 

Montgomery Mut. Ins. Co. v. Riddle, 266 Va. 539, 543, 587 S.E.2d 

513, 515 (2003) (matter is “material” to insurance policy under 

Code § 38.2-309 if matter is “of such a nature that knowledge of 

the item would affect a person’s decision-making process”); Holz 

v. Commonwealth, 220 Va. 876, 881, 263 S.E.2d 426, 429 (1980) 

(perjured testimony is “material” if it is relevant to main 

issue at trial or collateral issue). 

In considering the term “material” in the present context 

of Code § 19.2-327.11, we must determine and give effect to the 

intent of the legislature. Boynton v. Kilgore, 271 Va. 220, 

227, 623 S.E.2d 922, 925 (2006); Chase v. DaimlerChrysler Corp., 

266 Va. 544, 547, 587 S.E.2d 521, 522 (2003); Commonwealth v. 

Zamani, 256 Va. 391, 395, 507 S.E.2d 608, 609 (1998). We 

consider the words the legislature has employed, the subject 

matter of the statutes governing writs of actual innocence based 

on non-biological evidence, the statutes’ apparent object, and 

the legislative purpose in enacting the statutes. See Esteban 

v. Commonwealth, 266 Va. 605, 609, 587 S.E.2d 523, 526 (2003); 

Commonwealth v. Bruhn, 264 Va. 597, 602, 570 S.E.2d 866, 869 

10
(2002); Lucy v. County of Albemarle, 258 Va. 118, 129-30, 516 

S.E.2d 480, 485 (1999); Mapp v. Holland, 138 Va. 519, 527-28, 

122 S.E. 430, 432-33 (1924). 

We also examine the words of the particular statute at 

issue, Code § 19.2-327.11, in its entirety rather than by 

isolating particular words or phrases. Cummings v. Fulghum, 261 

Va. 73, 77, 540 S.E.2d 494, 496 (2001); Earley v. Landsidle, 257 

Va. 365, 369, 514 S.E.2d 153, 155 (1999). Our application of 

these principles renders Code § 19.2-327.11 harmonious with its 

legislative purpose and avoids any construction defeating that 

purpose. Esteban, 266 Va. at 609, 587 S.E.2d at 526; Lucy, 258 

Va. at 130, 516 S.E.2d at 485; Mapp, 138 Va. at 528, 122 S.E. at 

433. 

The statutory provisions at issue reflect an obvious 

legislative purpose. By enacting these provisions, the General 

Assembly intended to provide relief only to those individuals 

who can establish that they did not, as a matter of fact, commit 

the crimes for which they were convicted. The statutes 

governing writs of actual innocence based on non-biological 

evidence considered as a whole, and Code § 19.2-327.11 in 

particular, were not intended to provide relief to individuals 

who merely produce evidence contrary to the evidence presented 

at their criminal trial. 

11
With this legislative purpose in mind, we hold that to be 

“material,” within the meaning of Code § 19.2-327.11(A)(vii), 

evidence supporting a petition for a writ of actual innocence 

based on non-biological evidence must be true. Manifestly, 

evidence that is false cannot be “material” under the terms of 

the statute. 

The type of evidence at issue here, recantation evidence, 

plainly illustrates the necessity of this particular 

construction of the statute. If we were to permit evidence that 

may not be true to support a writ of actual innocence, we would 

be required to grant every petition seeking relief from a 

conviction when a trial witness, whose testimony was essential 

to establishing one or more elements of a crime, has completely 

recanted her trial testimony. Such a construction of the 

statute would defeat the legislative intent of restricting 

relief only to those individuals who can establish that they did 

not commit the crime for which they have been convicted. 

We therefore turn to consider whether the Court of Appeals 

erred in holding that Carpitcher failed to meet his burden of 

proof under the statute. We observe that recantation evidence 

is generally questionable in character and is widely viewed by 

courts with suspicion because of the obvious opportunities and 

temptations for fraud. Fout v. Commonwealth, 199 Va. 184, 192, 

98 S.E.2d 817, 823 (1957); Lewis v. Commonwealth, 193 Va. 612, 

12
625, 70 S.E.2d 293, 301 (1952); United States v. Johnson, 487 

F.2d 1278, 1279 (4th Cir. 1973) (per curiam); cf. United States 

v. Bynum, 3 F.3d 769, 773 (4th Cir. 1993). 

Unless proven true, recantation evidence merely amounts to 

an attack on a witness’ credibility by the witness herself. See

Odum v. Commonwealth, 225 Va. 123, 131, 301 S.E.2d 145, 149 

(1983); Lewis, 193 Va. at 626, 70 S.E.2d at 302. As we stated 

in Lewis, in approving a circuit court’s denial of a motion for 

a new trial based on recantation evidence, “while we know from 

[her] lips that this witness spoke falsely on one occasion, this 

does not establish that [her] testimony at the trial was false 

and the [later] statements . . . were true.” 193 Va. at 626, 70 

S.E.2d at 302. 

Here, the circuit court was unable to determine whether 

H.L.’s recantation was true, and concluded that she was 

“threatened, intimidated and coerced” to change her trial 

testimony. Relying on the circuit court’s findings of fact, the 

Court of Appeals held that Carpitcher did not meet his burden of 

proving that the recantation testimony was true. 

We conclude that the Court of Appeals did not err in 

holding that Carpitcher was required, and failed, to prove that 

H.L.’s recantation was true. On the present record, H.L.’s 

recantation testimony did no more than establish that she spoke 

falsely on one or more occasions. Therefore, we hold that 

13
H.L.’s recantation testimony was not “material” to the issue of 

actual innocence, within the meaning of Code § 19.2-

327.11(A)(vii). 

We decline to engage in the additional analysis conducted 

by the Court of Appeals addressing the related question whether 

H.L. committed perjury at Carpitcher’s criminal trial. We hold 

that such analysis is not part of the “materiality” inquiry 

under Code § 19.2-327.11(A)(vii), which focuses on the truth of 

the evidence presented in support of the petition for a writ of 

actual innocence based on non-biological evidence. 

Carpitcher argues, nevertheless, that because the Court of 

Appeals and the circuit court could not determine which, if any, 

version of H.L.’s testimony was true, Carpitcher met his burden 

of proving that he is entitled to relief because “no rational 

trier of fact could have found proof of guilt beyond a 

reasonable doubt” on the current record. Code § 19.2-

327.11(A)(vii). We disagree. 

The requirements of Code § 19.2-327.11(A)(vii) are stated 

in the conjunctive, requiring proof that “the previously unknown 

or unavailable 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.” Id. (emphasis added). Therefore, to meet 

this statutory burden, Carpitcher was required to prove both 

14
that the recantation evidence was true and that, when considered 

with all the other evidence in the current record, no rational 

trier of fact could have found him guilty of the crimes. 

Because Carpitcher failed to meet his burden of establishing the 

first component of this two-part statutory burden, he failed to 

satisfy his burden of proof under the statute. 

Carpitcher also argues that the Court of Appeals erred in 

relying on additional evidence that was not in the record at his 

criminal trial as a basis for the Court’s dismissal of 

Carpitcher’s petition. We do not reach the merits of this 

argument because the Court of Appeals did not rely on the 

additional evidence in reaching its conclusion that Carpitcher

did not meet his burden of establishing that H.L.’s recantation 

was true. The Court of Appeals referenced this additional 

evidence only in its analysis whether H.L.’s trial testimony was 

perjured, which we have held is not part of the “materiality” 

analysis under Code § 19.2-327(A)(vii). 

Carpitcher next argues that the Court of Appeals denied him 

procedural due process in refusing to permit him to file an 

additional brief challenging the circuit court’s certified 

findings of fact. Carpitcher asserts that although he did not 

have a statutory right to file a brief challenging the circuit 

court’s factual findings, he had a due process right to do so 

because the circuit court’s factual findings were a crucial 

15
factor in the Court of Appeals’ consideration of his case. We 

disagree with Carpitcher’s arguments. 

The constitutional guarantee of procedural due process 

affords a litigant the right to reasonable notice and a 

meaningful opportunity to be heard. Willis v. Mullett, 263 Va. 

653, 659, 561 S.E.2d 705, 709 (2002); Etheridge v. Medical Ctr. 

Hosps., 237 Va. 87, 97, 376 S.E.2d 525, 530 (1989); Parratt v. 

Taylor, 451 U.S. 527, 540 (1981). Under Code § 19.2-327.12, the 

Court of Appeals may order the circuit court in which the order 

of conviction was entered to conduct a hearing on any issues 

that the Court of Appeals determines require further development 

of the facts. After conducting an evidentiary hearing, the 

circuit court is required to make certified findings of fact and 

submit them to the Court of Appeals. Id.

We consider the provisions of this statute in the larger 

framework of Code §§ 19.2-327.10 through –327.14. Pursuant to 

these statutes, the Court of Appeals is the court of original 

jurisdiction for consideration of petitions for a writ of actual 

innocence. Although the General Assembly has not afforded 

petitioners filing such claims a statutory right to contest the 

circuit court’s factual findings in the Court of Appeals before 

the Court of Appeals enters judgment in the case, the guarantee 

of procedural due process is nevertheless satisfied under the 

statutory scheme because a petitioner may request a rehearing by 

16
the panel rendering judgment on the petition, or a rehearing en 

banc, challenging the Court of Appeals’ application of the 

circuit court’s factual findings.4 In addition, the circuit 

court’s factual findings may be challenged on appeal to this 

Court, affording a petitioner another meaningful opportunity to 

be heard on the issue whether those findings are plainly wrong 

or without evidentiary support. 

Although the procedural due process guarantee does not 

afford a petitioner the right to file pre-judgment briefing in 

the Court of Appeals challenging a circuit court’s factual 

findings, the Court of Appeals may exercise its discretion to 

permit additional briefing of this nature. In the present case, 

the Court of Appeals did not abuse its discretion by refusing 

Carpitcher’s request to file additional pre-judgment briefing 

because the circuit court’s findings were evaluative in nature, 

addressing H.L.’s veracity and whether her recantation testimony 

was the product of duress. Any briefing challenging these 

evaluations would have been unlikely to have provided analysis 

of substantive benefit to the Court. 

For these reasons, we hold that the Court of Appeals did 

not err in concluding that Carpitcher failed to meet his 

statutory burden of proof and in dismissing Carpitcher’s 

 4 See Rules 5A:33A and 5A:34A. In fact, as stated above, 

Carpitcher filed a petition for rehearing or rehearing en banc 

in the Court of Appeals. 

17
petition for a writ of actual innocence. Accordingly, we will 

affirm the Court of Appeals’ judgment. 

Affirmed.

18