RICHMOND, Va. (WRIC) — An innocence request from Terrence Richardson, one of the men serving life in prison despite being acquitted of killing a Waverly police officer in 1998, will go before a state appeals court next month.

Richardson and Ferrone Claiborne said fear of facing the death penalty in the killing of officer Allen W. Gibson led them to plead guilty to lesser charges in 1999 to avoid trial in state court.

Prosecutors brought the case to federal court, where a judge sentenced them to life after the jury found them guilty of drug crimes but not guilty of murdering Gibson.

The men contend they did not kill Gibson with his own handgun over two decades ago in a wooded area behind an apartment complex and questions have emerged over their case.

Jarrett Adams, the attorney for Richardson and Claiborne, filed a petition for a writ of actual innocence in the Virginia Court of Appeals on behalf of Richardson to vacate his involuntary manslaughter conviction in state court.

Before he left office, former Attorney General Mark Herring’s team prepared and filed a 78-page brief supporting Richardson’s innocence claim.

New Attorney General Jason Miyares reversed the state’s opinion after taking office, prompting Adams to question Miyares’ authority to change the position and ask the court to order Herring or his team to argue in support of the state’s earlier position during a hearing set for Feb. 22.

Miyares’ office asserts the state no longer adheres to arguments cited by Herring and Adams. The initial hearing date was pushed back to give Miyares’ office a chance to file a brief reversing the state’s earlier support. The appeals court will now hear arguments in the case on May 6.

After the hearing next month, the court could grant Richardson’s request, deny his petition or possibly order an evidentiary hearing. While any decision won’t release the men immediately, Adams believes the court’s approval would eventually lead to their freedom.

Gibson told a state trooper who arrived at the scene after he was shot that the gun “just went off” during a struggle with two men, one of which had dreadlocks. Richardson and Claiborne did not have dreadlocks at the time of their arrest and the lawyer asserts there are other suspects who could have been responsible.

Fearing a potential death sentence after facing capital murder charges in Gibson’s death, Richardson and Claiborne said they pleaded guilty to lesser charges in 1999 to avoid trial in Sussex County Circuit Court.

Richardson received a five-year sentence for involuntary manslaughter and Claiborne pled guilty to being an accessory after the fact.

In 2001, federal prosecutors pursued charges of drug trafficking in connection to Gibson’s death.

The jury in federal court found the men guilty of the drug crimes but acquitted them in the murder. The judge in the case, however, decided to use their pleas in state court to sentence them to life.

Claiborne pleaded guilty to a misdemeanor in state court, so his charges are not eligible for a writ of innocence.

“Even if the federal acquittals were a proper part of an amended petition in this case, Petitioner’s acquittal of murder by the federal jury has no relevance to his state guilty plea to involuntary manslaughter,” Brandon Wrobleski, special assistant to Miyares for investigations, wrote in a Feb. 7 letter to the appeals court.