Requests for DNA testing; clarify that they are excepted from bar on second or successive motions for post-conviction relief.

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To: Judiciary B
MISSISSIPPI LEGISLATURE REGULAR SESSION 2026

By: Representative Shanks

HOUSE BILL NO. 945

AN ACT TO AMEND SECTIONS 99-39-23 AND 99-39-27, MISSISSIPPI 1
CODE OF 1972, TO CLARIFY THAT REQUESTS FOR DNA TESTING ARE 2
EXCEPTED FROM THE BAR ON SECOND OR SUCCESSIVE MOTIONS FOR 3
POST-CONVICTION RELIEF; TO BRING FORWARD SECTION 99-39-5, 4
MISSISSIPPI CODE OF 1972, FOR PURPOSES OF POSSIBLE AMENDMENT; AND 5
FOR RELATED PURPOSES. 6
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI: 7
SECTION 1. Section 99-39-23, Mississippi Code of 1972, is 8
amended as follows: 9
99-39-23. (1) If an evidentiary hearing is required, the 10
judge may appoint counsel for a petitioner who qualifies for the 11
appointment of counsel under Section 99-15-15. 12
(2) The hearing shall be conducted as promptly as 13
practicable, having regard for the need of counsel for both 14
parties for adequate time for investigation and preparation. 15
(3) The parties shall be entitled to subpoena witnesses and 16
compel their attendance, including, but not being limited to, 17
subpoenas duces tecum. 18
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(4) The court may receive proof by affidavits, depositions, 19
oral testimony or other evidence and may order the petitioner 20
brought before it for the hearing. 21
(5) If the court finds in favor of the petitioner, it shall 22
enter an appropriate order with respect to the conviction or 23
sentence under attack, and any supplementary orders as to 24
rearraignment, retrial, custody, bail, discharge, correction of 25
sentence or other matters that may be necessary and proper. The 26
court shall make specific findings of fact, and state expressly 27
its conclusions of law, relating to each issue presented. 28
(6) The order as provided in subsection (5) of this section 29
or any order dismissing the petitioner's motion or otherwise 30
denying relief under this article is a final judgment and shall be 31
conclusive until reversed. It shall be a bar to a second or 32
successive motion under this article. Excepted from * * * the 33
prohibition on second or successive motions is a motion filed 34
under Section 99-19-57(2), raising the issue of the convict's 35
supervening mental illness before the execution of a sentence of 36
death. A dismissal or denial of a motion relating to mental 37
illness under Section 99-19-57(2) shall be res judicata on the 38
issue and shall likewise bar any second or successive motions on 39
the issue. 40
Likewise excepted from * * * the prohibition on second or 41
successive motions are those cases in which the petitioner can 42
demonstrate either: (i) that there has been an intervening 43
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decision of the Supreme Court of either the State of Mississippi 44
or the United States which would have actually adversely affected 45
the outcome of his conviction or sentence * * *; (ii) that he has 46
evidence, not reasonably discoverable at the time of trial, which 47
is of such nature that it would be practically conclusive that, if 48
it had been introduced at trial, it would have caused a different 49
result in the conviction or sentence; or (iii) that, even if the 50
petitioner pled guilty or nolo contendere, or confessed or 51
admitted to a crime, there exists biological evidence not tested, 52
or, if previously tested, that can be subjected to additional DNA 53
testing that would provide a reasonable likelihood of more 54
probative results, and that testing would demonstrate by 55
reasonable probability that the petitioner would not have been 56
convicted or would have received a lesser sentence if favorable 57
results had been obtained through such forensic DNA testing at the 58
time of the original prosecution. * * * Likewise excepted are 59
those cases in which the petitioner has filed a prior petition and 60
has requested DNA testing under this article, provided the 61
petitioner asserts new or different grounds for relief related to 62
DNA testing not previously presented or the availability of more 63
advanced DNA technology. 64
Likewise excepted are those cases in which the petitioner 65
claims that his sentence has expired or his probation, parole or 66
conditional release has been unlawfully revoked. 67
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(7) No relief shall be granted under this article unless the 68
petitioner proves by a preponderance of the evidence that he is 69
entitled to the relief. 70
(8) Proceedings under this section shall be subject to the 71
provisions of Section 99-19-42. 72
(9) In cases resulting in a sentence of death and upon a 73
determination of indigence, appointment of post-conviction counsel 74
shall be made by the Office of Capital Post-Conviction Counsel 75
upon order entered by the Supreme Court promptly upon announcement 76
of the decision on direct appeal affirming the sentence of death. 77
The order shall direct the trial court to immediately determine 78
indigence and whether the inmate will accept counsel. 79
SECTION 2. Section 99-39-27, Mississippi Code of 1972, is 80
amended as follows: 81
99-39-27. (1) The application for leave to proceed in the 82
trial court filed with the Supreme Court under Section 99-39-7 83
shall name the State of Mississippi as the respondent. 84
(2) The application shall contain the original and two (2) 85
executed copies of the motion proposed to be filed in the trial 86
court together with such other supporting pleadings and 87
documentation as the Supreme Court by rule may require. 88
(3) The prisoner shall serve an executed copy of the 89
application upon the Attorney General simultaneously with the 90
filing of the application with the court. 91
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(4) The original motion, together with all files, records, 92
transcripts and correspondence relating to the judgment under 93
attack, shall promptly be examined by the court. 94
(5) Unless it appears from the face of the application, 95
motion, exhibits and the prior record that the claims presented by 96
those documents are not procedurally barred under Section 99-39-21 97
and that they further present a substantial showing of the denial 98
of a state or federal right, the court shall by appropriate order 99
deny the application. The court may, in its discretion, require 100
the Attorney General upon sufficient notice to respond to the 101
application. 102
(6) The court, upon satisfaction of the standards set forth 103
in this article, is empowered to grant the application. 104
(7) In granting the application the court, in its 105
discretion, may: 106
(a) Where sufficient facts exist from the face of the 107
application, motion, exhibits, the prior record and the state's 108
response, together with any exhibits submitted with those 109
documents, or upon stipulation of the parties, grant or deny any 110
or all relief requested in the attached motion. 111
(b) Allow the filing of the motion in the trial court 112
for further proceedings under Sections 99-39-13 through 99-39-23. 113
(8) No application or relief shall be granted without the 114
Attorney General being given at least five (5) days to respond. 115
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(9) The dismissal or denial of an application under this 116
section is a final judgment and shall be a bar to a second or 117
successive application under this article. Excepted from * * * 118
the prohibition on second or successive applications is an 119
application filed under Section 99-19-57(2), raising the issue of 120
the offender's supervening mental illness before the execution of 121
a sentence of death. A dismissal or denial of an application 122
relating to mental illness under Section 99-19-57(2) shall be res 123
judicata on the issue and shall likewise bar any second or 124
successive applications on the issue. Likewise excepted 125
from * * * the prohibition are those cases in which the prisoner 126
can demonstrate either: (i) that there has been an intervening 127
decision of the Supreme Court of either the State of Mississippi 128
or the United States that would have actually adversely affected 129
the outcome of his conviction or sentence * * *; (ii) that he has 130
evidence, not reasonably discoverable at the time of trial, that 131
is of such nature that it would be practically conclusive that, if 132
it had been introduced at trial, it would have caused a different 133
result in the conviction or sentence * * * or (iii) that, even if 134
the petitioner pled guilty or nolo contendere, or confessed or 135
admitted to a crime, there exists biological evidence not tested, 136
or, if previously tested, that can be subjected to additional DNA 137
testing that would provide a reasonable likelihood of more 138
probative results, and that testing would demonstrate by 139
reasonable probability that the petitioner would not have been 140
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convicted or would have received a lesser sentence if favorable 141
results had been obtained through such forensic DNA testing at the 142
time of the original prosecution. Likewise excepted are those 143
cases in which the petitioner has filed a prior application and 144
has requested DNA testing under this article, provided the 145
petitioner asserts new or different grounds for relief related to 146
DNA testing not previously presented or the availability of more 147
advanced DNA technology. 148
Likewise * * * excepted are those cases in which the prisoner 149
claims that his sentence has expired or his probation, parole or 150
conditional release has been unlawfully revoked. 151
(10) Proceedings under this section shall be subject to the 152
provisions of Section 99-19-42. 153
(11) Post-conviction proceedings in which the defendant is 154
under sentence of death shall be governed by rules established by 155
the Supreme Court as well as the provisions of this section. 156
SECTION 3. Section 99-39-5, Mississippi Code of 1972, is 157
brought forward as follows: 158
99-39-5. (1) Any person sentenced by a court of record of 159
the State of Mississippi, including a person currently 160
incarcerated, civilly committed, on parole or probation or subject 161
to sex offender registration for the period of the registration or 162
for the first five (5) years of the registration, whichever is the 163
shorter period, may file a motion to vacate, set aside or correct 164
the judgment or sentence, a motion to request forensic DNA testing 165
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of biological evidence, or a motion for an out-of-time appeal if 166
the person claims: 167
(a) That the conviction or the sentence was imposed in 168
violation of the Constitution of the United States or the 169
Constitution or laws of Mississippi; 170
(b) That the trial court was without jurisdiction to 171
impose sentence; 172
(c) That the statute under which the conviction and/or 173
sentence was obtained is unconstitutional; 174
(d) That the sentence exceeds the maximum authorized by 175
law; 176
(e) That there exists evidence of material facts, not 177
previously presented and heard, that requires vacation of the 178
conviction or sentence in the interest of justice; 179
(f) That there exists biological evidence secured in 180
relation to the investigation or prosecution attendant to the 181
petitioner's conviction not tested, or, if previously tested, that 182
can be subjected to additional DNA testing, that would provide a 183
reasonable likelihood of more probative results, and that testing 184
would demonstrate by reasonable probability that the petitioner 185
would not have been convicted or would have received a lesser 186
sentence if favorable results had been obtained through such 187
forensic DNA testing at the time of the original prosecution. 188
(g) That his plea was made involuntarily; 189
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(h) That his sentence has expired; his probation, 190
parole or conditional release unlawfully revoked; or he is 191
otherwise unlawfully held in custody; 192
(i) That he is entitled to an out-of-time appeal; or 193
(j) That the conviction or sentence is otherwise 194
subject to collateral attack upon any grounds of alleged error 195
heretofore available under any common law, statutory or other 196
writ, motion, petition, proceeding or remedy. 197
(2) A motion for relief under this article shall be made 198
within three (3) years after the time in which the petitioner's 199
direct appeal is ruled upon by the Supreme Court of Mississippi 200
or, in case no appeal is taken, within three (3) years after the 201
time for taking an appeal from the judgment of conviction or 202
sentence has expired, or in case of a guilty plea, within three 203
(3) years after entry of the judgment of conviction. Excepted 204
from this three-year statute of limitations are those cases in 205
which the petitioner can demonstrate either: 206
(a) (i) That there has been an intervening decision of 207
the Supreme Court of either the State of Mississippi or the United 208
States which would have actually adversely affected the outcome of 209
his conviction or sentence or that he has evidence, not reasonably 210
discoverable at the time of trial, which is of such nature that it 211
would be practically conclusive that had such been introduced at 212
trial it would have caused a different result in the conviction or 213
sentence; or 214
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(ii) That, even if the petitioner pled guilty or 215
nolo contendere, or confessed or admitted to a crime, there exists 216
biological evidence not tested, or, if previously tested, that can 217
be subjected to additional DNA testing that would provide a 218
reasonable likelihood of more probative results, and that testing 219
would demonstrate by reasonable probability that the petitioner 220
would not have been convicted or would have received a lesser 221
sentence if favorable results had been obtained through such 222
forensic DNA testing at the time of the original prosecution. 223
(b) Likewise excepted are those cases in which the 224
petitioner claims that his sentence has expired or his probation, 225
parole or conditional release has been unlawfully revoked. 226
Likewise excepted are filings for post-conviction relief in 227
capital cases which shall be made within one (1) year after 228
conviction. 229
(3) This motion is not a substitute for, nor does it affect, 230
any remedy incident to the proceeding in the trial court, or 231
direct review of the conviction or sentence. 232
(4) Proceedings under this article shall be subject to the 233
provisions of Section 99-19-42. 234
(5) For the purposes of this article: 235
(a) "Biological evidence" means the contents of a 236
sexual assault examination kit and any item that contains blood, 237
semen, hair, saliva, skin tissue, fingernail scrapings, bone, 238
bodily fluids or other identifiable biological material that was 239
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ST: Requests for DNA testing; clarify that they
are excepted from bar on second or successive
motions for post-conviction relief.
collected as part of the criminal investigation or may reasonably 240
be used to incriminate or exculpate any person for the offense. 241
This definition applies whether that material is catalogued 242
separately, such as on a slide, swab or in a test tube, or is 243
present on other evidence, including, but not limited to, 244
clothing, ligatures, bedding or other household material, drinking 245
cups, cigarettes or other items; 246
(b) "DNA" means deoxyribonucleic acid. 247
SECTION 4. This act shall take effect and be in force from 248
and after July 1, 2026. 249