Terence Richardson of ‘Waverly Two’ innocence petition denied by Court of Appeals of Virginia

SUSSEX COUNTY, Va. (WRIC) -- Terence Richardson -- one of the two men known as “the Waverly Two," who were acquitted of a Waverly police officer's 1998 murder but still sentenced to life in prison -- was denied a writ of actual innocence in the Court of Appeals of Virginia on Tuesday.

Richardson had spent decades there for Allen Gibson's murder, despite a federal jury finding both him and Ferrone Claiborne, the second of the Waverly Two, not guilty. A rare legal maneuver by the federal judge allowed him to sentence them to life in prison for their federal drug convictions because of their previous state pleas and his personal certainty of their guilt.

Richardson's sentence was commuted -- along with that of Claiborne -- on Jan. 17 by then-president Joe Biden, shortly before he left office. Richardson was released from FCI Petersburg Medium prison on March 5 and Claiborne was released about a month later, on April 8.

That commutation was separate from a previously filed petition for writ of actual innocence, which is essentially an attempt to reverse his conviction.

Three Court of Appeals of Virginia judges denied the writ on Tuesday, May 13, in which the Commonwealth rejected three of Richard's claims, also arguing that his accepted guilty plea technically functions as a confession.

The 55-page order first points to the court's issues with a reported handwritten statement by eyewitness Shannequia Gay, who the Commonwealth noted was nine years old at the time. Gay identified the officer's killer as a man with dreads. Richardson, witnesses and video at the time of his arrest, show his hair was styled in cornrows that ended just below the neck at the time.

In regard to Gay's statement, the order said Richardson failed to satisfy the diligence requirement of the actual innocence statute because "the record shows that Richardson and his trial counsel had ample time to investigate the subpoena" served on Gay, "to talk to Shannequia about what she saw, or to work with her parents to do so -- all before Richardson's conviction became final." His conviction became final in March of 2000 once he was sentenced for his guilty plea.

In addition, the Commonwealth rejected Richardson's claim regarding the photo array identification procedure by state investigators, during which Gay reportedly identified an initial subject named Leonard Newby as the "man with dreads." Newby was never investigated by officials.

The Commonwealth also rejected Richardson's claim regarding the anonymous 911 call placed to Sussex County Emergency Services identifying Newby as the officer's killer, as there is no recording of the call and no way to track down the anonymous caller.

The denial specifically stated that Richardson "failed to show by a preponderance of the evidence for the 911 message is 'material'" because he did not show that "the content of the message is 'true.'"

The order also points to Richardson's acceptance of a guilty plea, citing the federal sentencing hearing during which then-assistant U.S. Attorney David J. Novac argued that through this plea, "Richardson has admitted that he participated in this killing" of the officer.

Richardson and Claiborne, however, have said they both accepted the guilty plea because their attorneys told them they could get the death penalty if they lost at trial. Both have continuously maintained their innocence.

ALL COVERAGE: Not Guilty, Sentenced to Life: Case against Ferrone Claiborne and Terence Richardson

This action follows the Court of Appeals of Virginia being forced by Virginia's Supreme Court to grant Richardson an evidentiary hearing in the case. The Court of Appeals initially rejected Richardson's bid for an evidentiary hearing, siding with Attorney General Jason Miyares. Months after taking office, Miyares reversed the Commonwealth's previous position of supporting Richardson's petition for a writ of actual innocence.

8News reached out to Miyares' office for comment. In January, we were previously told his office could not comment on pending litigation and thus directed our later inquiries to Gov. Glenn Youngkin, who had previously expressed "outrage" and "utter disbelief" at Biden's clemency actions for the Waverly Two. His office did not respond to previous requests, but 8News made a new request in light of the court's latest decision.

Jarrett Adams, attorney for the Waverly Two, provided the following statement to 8News regarding this decision:

"Mr. Richardson is thankful that he is home, but disappointed by the decision. We will be appealing this decision and requesting that the entire court hear argument of diligence, because if this still stands, a defendant's attorney has to be a superhero and mind reader, along with his practice of law." Jarrett Adams, attorney for Terence Richardson and Ferrone Claiborne

The Court of Appeals of Virginia's rejection of Richardson's petition for a writ of actual innocence is available in full below: