RICHMOND, Va. (WRIC) — Terrence Richardson’s bid to have the full Virginia Court of Appeals rehear his innocence petition was denied, a decision his attorney criticized and said he would appeal to the state’s Supreme Court.

Richardson is one of two men serving life in prison in connection to the 1998 killing of Waverly police officer Allen W. Gibson despite being acquitted of murder in federal court. In 2021, he filed a petition called a writ of actual innocence to have his involuntary manslaughter conviction overturned by the state appeals court.

A three-judge panel of the court heard Richardson’s plea to be exonerated and a challenge from the Virginia Attorney General’s Office, ruling in June that Richardson did not satisfy the requirements for a writ of actual innocence and not granting a request for an evidentiary hearing in the case.

Richardson’s lawyer, Jarrett Adams, filed a petition to set aside the ruling and have the full 17-judge state appeals court rehear the innocence plea.

On Thursday, a majority of the court denied the request “on the grounds that there is no dissent in the panel decision, no member of the panel has certified that the decision is in conflict with a prior decision of the Court, nor has a majority of the Court determined that it is appropriate to grant the petition for rehearing.”

Adams told 8News on Friday that the next step in the process is to file an appeal with the Supreme Court of Virginia within 30 days.

“At least five appellate Judges found that Mr. Richardson deserved to have his claims heard by the entire appellate court,” Adams said in a statement. “If our system cares nothing about innocence, the fabric of our constitution, which is knitted by Due Process, comes apart at its seams.”

Five of the 17 judges dissented: Daniel E. Ortiz, Doris Henderson Causey, Frank K. Friedman, Vernida R. Chaney and Lisa M. Lorish. Judge Ortiz wrote in his dissent that Richardson’s appeal and petition raised issues that deserve the full court’s attention.

“Particularly, the full court should address the application of the approbate/reprobate doctrine to the Commonwealth’s position after a change in the administration,” Ortiz wrote, pointing to the attorney general’s office supporting Richardson’s effort under Democrat Mark Herring but reversing course once Republican Jason Miyares took office.

The judges in dissent also argued that the full court should review Richardson’s case “to address how an alleged violation of Brady v. Maryland, 373 U.S. 83 (1963) and a witness’s refusal or unavailability to speak with the defense should impact our analysis under Code § 19.2-327.11’s diligence requirement.”

Under the U.S. Supreme Court ruling in Brady v. Maryland, prosecutors are required to disclose any exculpatory evidence or materials to defense attorneys. 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.”

Adams presented three pieces of evidence to the panel of 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 the other suspect in the case, Ferrone Claiborne.

The panel ruled that Richardson and his trial counsel had ample time to look into records that showed the eyewitness, a nine-year-old at the time of Gibson’s killing, had been subpoenaed to testify and talk with the child or her parents before his involuntary manslaughter conviction was finalized.

Adams argued in May that the child’s father did not make her available to Richardson’s trial counsel, but state lawyers told the three-judge panel that the defense attorney was aware the child made a statement.

“The full court should also address how a federal acquittal for a crime arising out of the same facts as a state court guilty plea should affect our analysis of whether a reasonable factfinder would have convicted a defendant in the state court case,” Ortiz wrote in the dissent.

Richardson and 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 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.