118 STAT. 2280 PUBLIC LAW 108–405—OCT. 30, 2004 ‘‘(6) The applicant identifies a theory of defense that— ‘‘(A) is not inconsistent with an affirmative defense presented at trial; and ‘‘(B) would establish the actual innocence of the applicant of the Federal or State offense referenced in the applicant’s assertion under paragraph (1). ‘‘(7) If the applicant was convicted following a trial, the identity of the perpetrator was at issue in the trial. ‘‘(8) The proposed DNA testing of the specific evidence may produce new material evidence that would— ‘‘(A) support the theory of defense referenced in para graph (6); and ‘‘(B) raise a reasonable probability that the applicant did not commit the offense. ‘‘(9) The applicant certifies that the applicant will provide a DNA sample for purposes of comparison. ‘‘(10) The motion is made in a timely fashion, subject to the following conditions: ‘‘(A) There shall be a rebuttable presumption of timeli ness if the motion is made within 60 months of enactment of the Justice For All Act of 2004 or within 36 months of conviction, whichever comes later. Such presumption may be rebutted upon a showing— ‘‘(i) that the applicant’s motion for a DNA test is based solely upon information used in a previously denied motion; or ‘‘(ii) of clear and convincing evidence that the applicant’s filing is done solely to cause delay or harass. ‘‘(B) There shall be a rebuttable presumption against timeliness for any motion not satisfying subparagraph (A) above. Such presumption may be rebutted upon the court’s finding— ‘‘(i) that the applicant was or is incompetent and such incompetence substantially contributed to the delay in the applicant’s motion for a DNA test; ‘‘(ii) the evidence to be tested is newly discovered DNA evidence; ‘‘(iii) that the applicant’s motion is not based solely upon the applicant’s own assertion of innocence and, after considering all relevant facts and circumstances surrounding the motion, a denial would result in a manifest injustice; or ‘‘(iv) upon good cause shown. ‘‘(C) For purposes of this paragraph— ‘‘(i) the term ‘incompetence’ has the meaning as defined in section 4241 of title 18, United States Code; ‘‘(ii) the term ‘manifest’ means that which is unmistakable, clear, plain, or indisputable and requires that the opposite conclusion be clearly evident. ‘‘(b) NOTICE TO THE GOVERNMENT; PRESERVATION ORDER; APPOINTMENT OF COUNSEL.— ‘‘(1) NOTICE.—Upon the receipt of a motion filed under subsection (a), the court shall— ‘‘(A) notify the Government; and ‘‘(B) allow the Government a reasonable time period to respond to the motion.
�
