Whether Virginia's ruling as to Va. Code § 19.2-327.10 violates the rights of Hood, and those similarly situated, under the Due Process, Equal Protection and Petition Clauses

QUESTIONS PRESENTED | In Virginia, anyone who was convicted of a felony has the right to demonstrate their innocence with new evidence through a petition for a writ of actual innocence. The controlling actual innocence statute grants the court subject matter jurisdiction “upon a petition of a person who was convicted of a felony.” Va. Code § 19.2-327.10, App. 31. But Virginia’s ruling as to the | term ‘was convicted’ excludes those who first obtain habeas relief, from then demonstrating their | innocence. Such statutory interpretation directly conflicts with this Court in Lewis v. United | States, 445 U.S. 55 (1980), the federal courts of appeals in United States v. Roberson, 752 F.3d 517 (1st Cir. 2014) as well as the plain and unambiguous language of the statute itself. To effect this definition of “was convicted,” Virginia employed an unprecedented “legal fiction” to hold that Hood’s felony conviction “was no conviction at all” because Hood’s habeas , relief rendered the conviction a “Jegal nullity” that is “treated as though [it] never occurred” — this, despite that the court only vacated Hood’s felony sentence. App. 8. This novel legal fiction violates more than a century of precedent established in Humphries v. District of Columbia, 174 U.S. 190 (1899) and Union Refrigerator Transit Co. v. Kentucky, 199 U.S. 194 (1905). The ruling forces anyone who was wrongfully convicted, and discovers evidence of their innocence post-habeas, to surrender one fundamental right (to demonstrate their innocence with | new evidence) in order to assert another fundamental right (petition for a writ of habeas corpus). The Questions Presented are: (1) Whether Virginia’s ruling as to Va. Code § 19.2-327.10 violates the rights of Hood, and those similarly situated, under the Due Process, Equal Protection and Petition Clauses, and: (2) Whether Virginia’s use of a legal fiction to deny the historical fact of a criminal conviction, predicate to actual innocence review, violates the Due Process and Equal Protection rights of those who are actually innocent but wrongly convicted. . : .