James Robert Altizer v. Commonwealth of Virginia, 63 Va. App. 317

Altizer was convicted in 2009 in Montgomery County Circuit Court of forcible sodomy of a ten‑year‑old (bench trial) based primarily on the victim’s testimony; no physical evidence was presented.
Defense witnesses contradicted aspects of the victim’s account (dates, layout, who was present); trial court credited the victim and found Altizer guilty.
Postconviction appeals and a habeas petition were unsuccessful; Altizer filed a petition for a writ of actual innocence (July 10, 2013) under Va. Code §§ 19.2‑327.10–.14.
Altizer submitted three affidavits alleging the victim fabricated the allegation or had motive to lie (statements by other boys, alleged family motive, and testimony about Altizer’s hearing ability).
The Court of Appeals had to interpret a July 1, 2013 statutory amendment that changed the standard from "no rational trier of fact could have found" to "would have found" proof of guilt beyond a reasonable doubt, then decide whether the affidavits met the statutory burden.

Issue	Altizer's Argument	Commonwealth's Argument	Held
Proper meaning/effect of amendment from "could" to "would"	Amendment relaxes standard; makes it easier to obtain a writ	If any change, it is minor; standard effectively unchanged	Amendment is ambiguous but read in context it did not change statute’s purpose; requires showing factual innocence (no rational trier would find guilt)
Whether Altizer’s affidavits are "previously unknown or unavailable" and material	Affidavits newly discovered, show victim lied and had motive; would have changed outcome	Affidavits only impeach victim’s credibility and do not prove innocence	Affidavits do not prove factual innocence; they only attack credibility and are insufficient
Whether impeachment evidence alone can support a writ of actual innocence	Impeachment that undermines credibility shows verdict unreliable	Statute requires evidence proving petitioner did not commit the crime, not merely impeaching testimony	Newly discovered evidence that merely impeaches unrecanted testimony is insufficient to obtain a writ
Whether remand for evidentiary hearing was required	Seeks remand to develop facts and testimony supporting affidavits	No remand necessary because statutory burden not met on face of petition	No remand; petition dismissed for failure to establish evidence sufficient to justify writ

Taylor v. Commonwealth, 44 Va. App. 179, 604 S.E.2d 103 (review of appeals timing and law in effect when action begun)
Carpitcher v. Commonwealth, 273 Va. 335, 641 S.E.2d 486 (actual innocence relief limited to those who did not in fact commit the offense)
Haynesworth v. Commonwealth, 59 Va. App. 197, 717 S.E.2d 817 (discussion of deference to trial factfinder and limits on new‑evidence petitions)
Haskins v. Commonwealth, 44 Va. App. 1, 602 S.E.2d 402 (trial as preferred mechanism for testing evidence quality)
Johnson v. Commonwealth, 273 Va. 315, 641 S.E.2d 480 (trial court’s role in assessing witness demeanor and credibility)
Ambrogi v. Koontz, 224 Va. 381, 297 S.E.2d 660 (statutory construction to effect legislative purpose)
Appalachian Power Co. v. State Corp. Comm’n, 284 Va. 695, 733 S.E.2d 250 (apply plain meaning when statute unambiguous)
Kiser v. A.W. Chesterton Co., 285 Va. 12, 736 S.E.2d 910 (give effect to words chosen by legislature)
Va. Broad. Corp. v. Commonwealth, 286 Va. 239, 749 S.E.2d 313 (statutory ambiguity and interpretation principles)
Doulgerakis v. Commonwealth, 61 Va. App. 417, 737 S.E.2d 40 (use of legislative history when statute ambiguous)
In re Barron, 44 Va. App. 536, 605 S.E.2d 777 (evidence that merely corroborates Commonwealth insufficient for writ)
In re Lima, 44 Va. App. 571, 605 S.E.2d 794 (evidence collateral to factual innocence does not support writ)