RICHMOND, Va. (WRIC) — Terrence Richardson, one of two men serving life in prison in connection to the killing of a Virginia police officer despite being acquitted of murder, wants his innocence petition reheard before the entire Virginia Court of Appeals after a three-judge panel of the court denied his appeal.

Richardson filed a petition with the state appeals court last April to have his involuntary manslaughter conviction in the 1998 fatal shooting of Waverly police officer Allen W. Gibson overturned. A federal judge later took Richardson’s conviction in state court into consideration when sentencing him to life in prison.

In May, the three-judge panel of the state appeals court heard Richardson’s plea to be exonerated in the case and a challenge from the Virginia Attorney General’s Office.

The panel ruled in an opinion on June 21 that Richardson did not satisfy the requirements to be granted a petition for a writ of actual innocence. The court also did not grant a request from Richardson’s attorney for an evidentiary hearing in the case.

To be granted a writ of actual innocence, a petitioner must prove by a preponderance of the evidence, “that the previously unknown or unavailable evidence 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.”

Richardson and Ferrone Claiborne were indicted on capital murder charges in the fatal shooting of officer Gibson, a 25-year-old who was shot with his own gun in the woods near an apartment complex in the town of Waverly, Virginia.

Citing fear of the death penalty, Richardson pleaded guilty to involuntary manslaughter and received a five-year prison sentence in 2000 and Claiborne pleaded guilty to being an accessory after the fact.

Federal prosecutors brought Richardson and Claiborne to court in 2001 on charges related to the case, where a jury found them guilty of drug crimes but acquitted them in the murder of Gibson. But the judge used their guilty pleas in Sussex County Circuit Court when sentencing them to life in prison.

Richardson’s attorney, Jarrett Adams, presented three pieces of evidence to the state appeals court in May that he claimed were not available before because it was withheld by law enforcement, including an eyewitness statement pointing to another suspect who did not match the description of Richardson or Claiborne.

Gibson told responding officers before he died that he was shot during a scuffle with two Black men while trying to intervene in an active drug deal in the woods, describing one who had dreadlocks and another as having short hair. At the time of the shooting, Richardson had cornrows and Claiborne did not have hair.

Adams argued to the panel that the eyewitness, who was nine years old at the time, made a statement that the person she saw also had dreadlocks.

The appeals court ruled that Richardson and his trial counsel had ample time to look into records that showed the nine-year-old witness had been subpoenaed to testify and talk with the child or her parents before his involuntary manslaughter conviction was finalized.

State lawyers with the attorney general’s office, which changed its support for Richardson’s innocence plea after Republican Jason Miyares took office, argued that Richardson’s trial counsel in 1998 was aware of the eyewitness.

The court’s opinion states that Richardson and his trial counsel failed to show an “exercise of diligence” concerning the witness. Adams later told 8News that assertion punishes Richardson and Claiborne because the trial attorney “wasn’t Superman” and could not get into contact with the witness or her parents.

Adams also presented evidence that the eyewitness later identified another man in a photo array lineup and someone who made a 911 tip call identified the same man as the perpetrator.

The court ruled the assertion that the witness identified the man was not supported because “the individual’s face is simply not visible” in the photo array submitted.

In a petition for a rehearing with the full 17-judge Virginia Court of Appeals, Adams claims that the three-judge panel’s decision not only absolves the commonwealth for not turning over all vital evidence to Richardson and Claiborne “but it also incentivizes law enforcement to withhold exculpatory evidence from both defendants and prosecutors.”

The petition, which was filed on July 5, also asserts that the eyewitness was not “constitutionally obliged” to speak with Richardson or his trial lawyer and that “no amount of diligence could uncover evidence law enforcement willfully concealed.”