No.

21- __

In The
Supreme Court Of The
United States
BRIAN DAVID HILL,
Petitioner,

v.

COMMONWEALTH OF VIRGINIA,
Respondent,

On Petition for a Writ of Certiorari to

the Supreme Court of Virginia

PETITION FOR A WRIT OF

CERTIORARI

Brian David Hill

Pro Se
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MARTINSVILLE, VIRGINIA 24112
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i
I. Questions Presented

Where the Virginia Supreme Court didn’t think

that the Petition for Writ of Habeas Corpus should

apply to the case of Brian David Hill being convicted

of Indecent Exposure under Virginia Code § 18.2-387

because he was not under State Custody even though

he asserted “Actual Innocence” as one of the grounds

for his Petition which could constitute cruel and

unusual punishment inflicted and deprived

Petitioner of Due Process of Law?

Where the Virginia Supreme Court had failed

to recognize that Petitioner was in fact serving an

additional sentence of 9 months of imprisonment and

additional years of Federal Supervised Release as a

repercussion or result of his wrongful conviction of

Indecent Exposure under Virginia Code § 18.2-387

but only kept its focus on whether he was serving a

State Sentence for a wrongful conviction that he was

challenging on at least one ground of “Actual

Innocence” that is not supposed to be procedurally

ii
barred according to past Supreme Court decisions on

Habeas Corpus decisions on Federal and State cases?

Where the Virginia Supreme Court dismissed

the Petition for Appeal over appealing the Circuit

Court of Martinsville’s denial of the Petition for the

Writ of Habeas Corpus even though Petitioner had a

strong showing that he may be factually innocent of

his charge of Indecent Exposure under Virginia Code

§ 18.2-387 and that had the Virginia Supreme Court

provided such relief by granting the Petition for

Appeal then it could have led to an evidentiary

hearing in the Circuit Court which may have led to

an actual innocence verdict?

Where case law precedent in this very Court

contradicts the Supreme Court of Virginia’s opinion

and decision on December 21, 2020, that the Supreme

Court’s job is to keep in uniformity with other top

Appeals Courts decisions and State Supreme Court

decisions under the Supremacy Clause of the U.S.

Constitution?

Where the “due process of law” clause of the

U.S. Constitution, Amendment XIV, regarding the

iii
State’s obligation to follow the United States

Constitution including the Due Process Clause is

being deprived by the Commonwealth of Virginia and

by the Circuit Court of Martinsville and where

judgments/orders that may not even have valid

jurisdiction to have ever been entered is being

allowed and actual innocence is completely being

overlooked which deprives Petitioner of being allowed

to prove Factual Innocence to his State charge and

Conviction which ultimately caused a revocation of

Petitioner’s Supervised Release on September 12,

2019, in the U.S. District Court for the Middle

District of North Carolina?

Where the Virginia Supreme Court had failed

to recognize the U.S. Constitution’s miscarriage of

justice exception for habeas corpus procedural defects

and that actual innocence claim to a wrongful

conviction in a state court should be an exception to a

state procedural or jurisdictional defect?

iv
 II. Table of Contents
I

I. Questions Presented ........................................ ii

II. Table of Contents ............................................ v
III. Table of Authorities ...................................... vi
IV. Petition for Writ Of Certiorari ..................... 1
V. Opinions Below ............................................... 3
VI. Jurisdiction .................................................... 5
VII. Constitutional Provisions Involved ............ 6
VIII. Statement of the Case ................................ 7
1. The Writ of Habeas Corpus by Mr. Hill ......... 13
2. The Supreme Court of Virginia receives
the Petition for Appeal, brief or letter in
opposition, and then a reply to the opposition
filing ...................................................................... 15
IX. REASONS FOR GRANTING THE WRIT ... 18
A. To avoid erroneous deprivations of the
right to due process by the Circuit Court’s
duty under Amendment XIV of the U.S.
Constitution to not deprive a person of liberty,
property, and life without due process of law. ..... 18
B. To keep in uniformity with the past
opinions of this Supreme Court and making
sure that the Supreme Court of Virginia’s
Habeas Corpus decisions keep in uniformity
with the “Actual Innocence” and miscarriage
of justice exception to prevent cruel and
unusual punishment inflicted upon an
innocent man/woman in violation of the
Amendments VIII and XIV of the U.S.
Constitution. ........................................................ 20
C. To avoid a miscarriage of justice and cruel
and unusual punishment inflicted by the
Circuit Court of Martinsville by convicting
an innocent man and giving him no
opportunity to demonstrate factual
innocence and blocking him from being
allowed relief upon showing a colorable claim
of actual innocence. ............................................. 27
v
X. CONCLUSION ................................................ 30

6
 III. Table of Authorities

Cases

Sawyer v. Whitley, 505 U.S. 333 (1992)....7

Kuhlmann v. Wilson, 477 U.S. 436…..7

Murray v. Carrier, 477 U.S. 478, 479-80 (1986)….7, 16-17, 18, 22

Escamilla v. Superintendent, 290 Va. 374, 380-81 (2015)

…………………………………………………………………….….5

Kuhlmann v. Wilson, 477 U.S. 436, 438 (1986)

…………………………………………………………………….….7

In re Davis, 130 S. Ct. 1, 2 (2009)…………………...8, 17, 18, 22

Bousley v. United States, 523 US. 614, 622-23

(1998)……………………………………………………….16, 18, 22

Sawyer v. Whitley, 505 U.S. 333 (1992) ……………….16, 18, 22

Kuhlmann v. Wilson, 477 U.S. 436, 438 (1986)..……………..22

Trop v. Dulles, 356 U.S. 86,100 (1958) (plurality opinion)…..………...19

Gregg v. Georgia, 428 U.S. 153, 169-170 (1976) (plurality

opinion)…………………………………………………….………..19

Herrera v. Collins, 506 U.S. 390, 427 (1993)……………..…...19

Romick v. Commonwealth, No. 1580-12-4, 2013 WL 6094240,

at *2 (Va. Ct. App. Nov. 19, 2013)(unpublished)……………...24

Price v. Commonwealth, 201 S.E.2d 798, 800 (Va. 1974) ………….…24

Copeland v. Commonwealth, 525 S.E.2d 9, 10 (Va. App.

2000)……………………………………………………...………....23
vii
vii
1
1
Morales v. Commonwealth, 525 S.E.2d 23, 24 (Va. App.

2000)……………………………………………………....………...23

Moses v. Commonwealth, 611 S.E.2d 607, 608 (Va. App. 2005)(en

banc)……………………………………………………….…………23

Kuhlmann v. Wilson, 477 U.S. 436, 438

(1986)…………………………………………..……………….17, 18

Herrera v. Collins, 506 U.S. 390, 432 n.2 (1993)

…………………………………………..…………………..……….18

Robinson v. California, 370 U.S. 660, 667 (1962)

…………………………………………………..……………………18

Rules

Rule 13(1) of the U.S. Supreme Court……...……...………5-6

Rule 13, paragraph 1 of the Supreme Court……..........……2

Statutes

28 U.S. Code § 1257 .....................................................................5

28 U.S.C. § 2101 ..........................................................................6

Virginia Code § 8.01-654 .............................................................5

Virginia Code § 18.2-387………………...1, 10, 11, 21, 23, 27, 28

Virginia Code Article 3. Habeas Corpus, Title 8.01.

Civil Remedies and Procedure ....................................................1-2

V.A. Code § 8.01-677.1.................................................................14

Va. Code § 18.2-372 .....................................................................25

viii
viii
1
1
42 U.S. Code § 407 .......................................................................29

Constitutional Provisions

United States Constitution, Amendment VIII ......................... 6

United States Constitution, Amendment XIV ......................... 6

ix
ix
1
1
IV. Petition for Writ Of Certiorari

Brian David Hill (“Petitioner”, “Appellant”, “Mr.

Hill”), an criminal defendant in a S t a te Ch a r g e

(S ep t e m b e r 2 1, 2 0 1 8 ) , C on v i c t i on (D e c e m b e r

2 1, 2 0 1 8 ) in th e G e n e r a l D i st r i c t C o u r t , a n d

r e a ff i r m ed C on vi c t i on ( No v e m b e r 1 8 , 2 0 1 9 )

in th e C i r c u i t C ou r t o f In d e c en t E xp o su r e

u n d e r Vi r g i n i a C od e § 1 8. 2 - 3 8 7 in th e C i r c u i t

C ou r t of M a r t i n sv il l e ( “ Ci r c u i t C ou r t ” ) w h i le

currently serving a sentence of supervised release by

and through the United States Probation Office for

the Western District of Virginia by order of the

Middle District of North Carolina, respectfully

petitions this court for a writ of certiorari to review

the judgment of the Supreme Court of Virginia,

denying and refusing the Petition for Appeal of

requesting that the Supreme Court of Virginia grant

full appellate review over a judge of the Circuit Court

of Martinsville denying and dismissing a Virginia

Petition for Writ of Habeas Corpus under the

statutory clauses in Virginia Code Article 3. Habeas

1
Corpus, Title 8.01. Civil Remedies and Procedure in

the very petition asking for relief, and the Circuit

Court as well as the Supreme Court of Virginia had

overlooked the ground of Actual Innocence and had

overlooked the authoritative case law of this very

Court which had ruled that actual innocence can

overcome any procedural default/defect but the

Habeas Corpus petition was before the Circuit Court.

Pursuant to Rule 13, paragraph 1 of the Supreme

Court rules, The Supreme Court of Virginia (“SCV”)

under case no. #200267, is the highest State Court of

last resort of making a final decision over the

originating case under Circuit Court case no.

CL19000331-00 where the Petition for Writ of Habeas

Corpus, was originally filed and the Supreme Court’s

final decision is very case that is being appealed to the

United States Supreme Court to undo a miscarriage

of justice, protect the Actual Innocence rights of

Petitioner under the United States Constitution

requesting relief. Petition for Appeal was filed on

February 19, 2020. Reply to Brief in Opposition was

filed on March 30, 2020. SCV conducted an oral

2
 argument in front of a panel of Justices on December

1, 2020. The SCV had refused the Petition for Appeal

on December 21, 2020, with an opinion that Petitioner

was not in State Custody and was procedurally barred

from filing Writ of Habeas Corpus and therefore there

had no jurisdiction for an appeal of that decision.

Petitioner felt that the decision of the

State’s/Commonwealth’s Supreme Court had

conflicted with the U.S. Supreme Court on Habeas

Corpus decisions regarding actual innocence and filed

a “Petition for Rehearing” on December 30, 2020.

Petition was considered and was refused on February

5, 2021. So, the petition for rehearing was denied on

February 5, 2021. Under this Court’s rules of 90-days

of the final decision of the Court of last resort,

Petitioner believes this was timely filed since the

petition for rehearing denial was the last final

decision of the court of last resort.

IV. Opinions Below

The decision by the SCV denying/refusing Mr.

Hill’s petition for appeal asking for review over the

3
Circuit Court denying and dismissing Mr. Hill’s

petition for Writ of Habeas Corpus based on at least

one ground asserting “actual innocence” is reported

in an u n p u blish ed op in ion as Brian David Hill v.

Commonwealth of Virginia, SCV record case No.

200267 (December 21, 2020) by the panel of three

Justices after hearing oral argument on December 1,

2020. Mr. Hill filed a petition for rehearing dated

December 20, 2020. The SCV refused Mr. Hill’s

petition for rehearing on February 5, 2021. That order

was unpublished and stated that “On consideration of

the petition of the appellant to set aside the judgment

rendered herein on December 21, 2020 and grant a

rehearing thereof, the prayer of the said petition is

denied.”

The order on December 21, 2020 had stated that

“Upon review of the record in this case and

consideration of the argument submitted in support of

the granting of an appeal, the Court refuses the

petition for appeal. Brian David Hill challenges the

judgment of the Circuit Court of the City of

Martinsville dismissing his petition for a writ of

4
 habeas corpus. On November 18, 2019, Hill filed a

petition for a writ of habeas corpus in the circuit court

challenging his misdemeanor conviction for indecent

exposure. In his petition, Hill indicated that on

November 15, 2019, he received a sentence of 30 days

in jail and that, at the time of filing, he was not in

custody or under any type of probation or suspended

sentence from his indecent exposure conviction.

Because Hill had fully served his sentence at the time

when he filed his petition, the circuit court lacked

jurisdiction to award habeas relief under Code § 8.01-

654. See Escamilla v. Superintendent, 290 Va. 374,

380-81 (2015) (holding that detention is jurisdictional

in habeas corpus, and jurisdiction must exist at the

time the petition is filed). Accordingly, the Court is of

the opinion there is no reversible error in the

judgment below.”

V. Jurisdiction

Mr. Hill’s petition for r e hearing to the SCV was

denied on February 5, 2021. Mr. Hill invokes this

Court's jurisdiction under 28 U.S. Code § 1257 and Rule

5
 13(1), having timely filed this petition for a writ of

certiorari within n i n e ty days after entry of the final

judgment of the Supreme Court of Virginia’s under 28

U.S.C. § 2101. The SCV is the court of last resort in the

State/Commonwealth of Virginia. The petition for

Certiorari affects the Constitutional right and

Constitutional issues of the U.S. Constitution.

VI. Constitutional Provisions Involved

United States Constitution, Amendment XIV:

“All persons born or naturalized in the United

States and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein
they reside. No State shall make or enforce any law
which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.”

United States Constitution, Amendment VIII:

“Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual
punishments inflicted.”

6
VIII. Statement of the Case

Decades ago, this Court held in Sawyer v.

Whitley, 505 U.S. 333 (1992) that “Generally, a

habeas petitioner must show cause and prejudice

before a court will reach the merits of a successive,

abusive, or defaulted claim. Even if he cannot meet

this standard, a court may hear the merits of such

claims if failure to hear them would result in a

miscarriage of justice. See, e.g., Kuhlmann v. Wilson,

477 U.S. 436. The miscarriage of justice exception

applies where a petitioner is "actually innocent" of the

crime of which he was convicted or the penalty which

was imposed.”. Murray v. Carrier , 477 U.S. 478, 479-

80 (1986) (“However, in an extraordinary case,

where a constitutional violation has probably

resulted in the conviction of one who is actually

innocent, a federal habeas court may grant the writ

even in the absence of a showing of cause for the

procedural default.”).

Kuhlmann v. Wilson , 477 U.S. 436, 438 (1986)

(“Balancing the State's interests in finality of

7
convictions and the prisoner's interest in access to a

forum compels the conclusion that the "ends of

justice" are served by successive review only where

the petitioner supplements his constitutional claim

with a colorable showing of factual innocence. The

prisoner must make his evidentiary showing even

though — as argued in this case — the evidence of

guilt may have been unlawfully admitted.”)

In re Davis, 130 S. Ct. 1, 2 (2009) (“Justice

SCALIA would pretermit all of these unresolved

legal questions on the theory that we must treat

even the most robust showing of actual innocence

identically on habeas review to an accusation of

minor procedural error. Without briefing or

argument, he concludes that Congress chose to

foreclose relief and that the Constitution permits

this.”)

Different sets of case rulings from this

Supreme Court all make different legal opinions

over the same issues regarding the Constitution of

the United States of America and Habeas Corpus

relief. That actual innocence claims, especially a

8
colorable showing of actual innocence should

overcome any minor procedural bar or jurisdictional

bar/defect. Actual innocence is legal innocence

where no law was broken and no crime was

committed under the law as charged.

There were a lot of authoritative decisions by

the same U.S. Supreme Court ruling time and time

again that actual innocence claim in a Habeas

Corpus petition is such an exception to a

procedurally defaulted petition or claim through

writ of habeas corpus. The petition filed by

Petitioner was timely filed, around the same time

after the criminal conviction was entered by the

Circuit Court of Martinsville. The only reason it was

procedurally barred was because the SCV had

decided that Petitioner was not in State Custody

and was not on State Probation or State

Imprisonment at the time such petition was filed

and therefore the SCV invoked that there was no

jurisdiction to entertain any Writs of Habeas

Corpus filed by Petitioner or entertain such appeals.

However, Petitioner had asserted in his Writ of

9
Habeas Corpus that at the time the petition was

filed, Petitioner was ordered to spend nine months

of Federal Imprisonment as a result of his State

Charge of Indecent Exposure under Virginia Code §

18.2-387 on September 21, 2018, and had used his

conviction in General District Court of Martinsville

on December 21, 2018, as reason to revoke his

Federal Supervised Release in the Middle District of

North Carolina in the U.S. District Court. See

Document #200, Oct 7, 2019, "JUDGMENT ON

REVOCATION OF PROBATION/SUPERVISED

RELEASE.", Case no. 1:13-cr-435-1. That

imprisonment order was brought up in a photocopy

of that judgment in the Petition for Writ of Habeas

Corpus timely filed in the Circuit Court of the City

of Martinsville. Also, the Supervised Release was

extended (“IT IS FURTHER ORDERED that

supervised, release of nine (9) years is re-imposed

under the same terms and conditions as previously

imposed.”, See Document #200, Case no. 1:13-cr-

435-1) and thus Petitioner had directly been given

an imprisonment directly caused by the State

10
Charge and criminal conviction and Petitioner was

mandated to report to Federal Prison on December

6, 2019, at the time that the Writ of Habeas Corpus

was filed directly caused by the State Charge and

Conviction in General District Court which was

appealed to trial de novo in the Circuit Court.

This case presents very important questions of

exceptional circumstances as to whether the Supreme Court

of Virginia (“SCV”) should have denied or refused the Petition

for Appeal of Petitioner seeking Judicial review of the SCV

over Petitioner’s timely filed Writ of Habeas Corpus (“WHC”)

being considered but denied and dismissed on November 20,

2019, not giving the Commonwealth Attorney Glen Andrew

Hall, Esq. an opportunity to file their response to the actual

innocence claims and other claims made by Petitioner in his

WHC petition filed on November 18, 2019, and yet the Circuit

Court had quickly decided within a few days to dismiss the

WHC petition while overlooking the case law authorities from

this Supreme Court as well as the other case law and evidence

cited regarding Petitioner’s legal innocence to his charge and

conviction of Indecent Exposure under Virginia Code § 18.2-

387. Should Courts be allowed to quickly dismiss the

11
Petition for the Writ of Habeas Corpus without any

evidentiary hearing and without reviewing over any

evidence or claims when such quick and rash decision

would create a miscarriage of justice regarding an

innocent man/woman when it asks for appropriate

relief to prevent a Court from wrongfully convicting

an innocent man who had been given additional

imprisonment and additional Federal Supervised

Release sentence as a result of being wrongfully

convicted in State Court when Petitioner had

asserted that he was actually innocent of his charge

and conviction?

12
1. The Writ of Habeas Corpus by Mr. Hill

On November 18, 2019, in case no. CL19000331-00

in the Circuit Court of the City of Martinsville in Virginia,

Brian Hill filed a 201 page “PETITION FOR WRIT OF

HABEAS CORPUS" filed by Brian David Hill. No response

was entered as of yet by the Commonwealth’s Attorney

Glen Andrew Hall, Esquire. That petition had directly cited

this Court’s ruling under Bousley v. United States, 523 US.

614, 622-23 (1998). Even asserted in such petition the

miscarriage of justice argument that “It is a cruel and

unusual punishment to inflict any penalties against an

innocent man or woman.” That right there invoked the

Eighth Amendment of the U.S. Constitution in the petition

for WHC in the Circuit Court.

On November 20, 2019, the Judicial Officer,

Hon. Giles Carter Greer of the Circuit Court had filed

a quick judgment without an opinion dismissing the

Writ of Habeas Corpus petition without explanation

as to why it was dismissed and without an evidentiary

hearing. It was dismissed very quickly and would not

have given a Court a reasonable amount of time to

determine if a petition did have jurisdiction, merit,

13
and whether the actual innocence claim and newly

discovered evidence could overcome any procedural

defects and jurisdictional defects which may result.

The order had said “UPON CONSIDERATION of the

petitioner’s Petition for Writ of Habeas Corpus, it is

ORDERED that said petition be, and the same is

hereby, DISMISSED.”.

On November 20, 2019, Brian Hill filed a timely

Notice of Appeal to appeal the decision to dismiss

Petitioner’s petition for Writ of Habeas Corpus. The

“NOTICE OF APPEAL” was transmitted to the Court of

Appeals of Virginia. Case was opened up under Record No.

0079-20-3.

On February 14, 2020, the Court of Appeals of

Virginia had entered an order that they didn’t have

the jurisdiction to hear Writ of Habeas Corpus appeal

and had transferred the Notice of Appeal and Mr.

Hill’s Petition for Appeal to the SCV. It said “It appears

that this Court does not have jurisdiction over this case.

Accordingly, the case hereby is transferred to the Supreme

Court of Virginia pursuant to Code § 8.01-677.1.”

14
 2. The Supreme Court of Virginia receives the
Petition for Appeal, brief or letter in opposition, and
then a reply to the opposition filing

On February 19, 2020, the Supreme Court of

Virginia had received the Petition for Appeal, and opened

up case no. 200267. Record was received on February 14,

2020.

The “Reply to Brief in Opposition” was filed on

March 30, 2020. The opposition letter was that the Attorney

General of Virginia had asserted that Petitioner cannot

challenge his conviction on actual innocence because he was

no longer in State Custody. The reply was meant to assert

that actual innocence overcomes such procedural defects

and again asserted the U.S. Supreme Court’s case law on

“actual Innocence” and the miscarriage of justice exception

under the U.S. Constitution to defective Habeas petitions.

On December 1, 2020, a panel of Justices in the

Supreme Court of Virginia held an oral argument of

Petitioner to present his oral arguments about why his

petition should be granted by the panel of three Justices of

SCV.

15
 On December 21, 2020, the Supreme Court of

Virginia had refused the Petition for Appeal.

On December 30, 2020, Brian Hill filed a Petition for

Rehearing again asserting that it’s decision and opinion

contradicts the authoritative case laws of the U.S. Supreme

Court concerning actual innocence and writs of habeas

corpus and the eighth Amendment’s prohibition on cruel

and unusual punishments inflicted where any punishment

of an innocent man or woman is cruel and unusual

punishment and that Habeas Corpus should not be

procedurally closed on somebody making a colorable

showing of factual innocence/actual innocence.

On February 5, 2021, the Supreme Court of Virginia

had refused the petition for rehearing. That creates the

final decision and thus Petitioner is respectfully requesting

that the U.S. Supreme Court grants Certiorari and

conducts a review of that erroneous decision. That decision

of the highest appellate Court of Virginia, a State Supreme

Court, conflicts with the case law decisions of this Court.

Again, see this Court’s decisions under Bousley v.

United States, 523 US. 614, 622-23 (1998), Sawyer v.

Whitley, 505 U.S. 333 (1992), Murray v. Carrier, 477 U.S.

16
478, 479-80 (1986), Kuhlmann v. Wilson, 477 U.S. 436, 438

(1986), and In re Davis, 130 S. Ct. 1, 2 (2009). This Court

had placed a very large emphasis on the “actual innocence”

claim and “miscarriage of justice” exception to defaulted

Habeas Corpus petitions under the Eighth Amendment’s

prohibition on cruel and unusual punishments inflicted

and/or under the Due Process Clause of the Fourteenth

Amendment. The Amendment XIV of the Constitution

requires that States also have Due Process of Law when a

criminal defendant’s liberty and/or property is being taken

away as a result of an adverse decision in a criminal charge

and wrongful conviction, especially an innocent person.

II II II

17
IX. REASONS FOR GRANTING THE WRIT

A. To avoid erroneous deprivations of the right to

due process by the Circuit Court’s duty under
Amendment XIV of the U.S. Constitution to not
deprive a person of liberty, property, and life
without due process of law.

In Bousley v. United States, 523 US. 614, 622-

23 (1998), Sawyer v. Whitley, 505 U.S. 333 (1992),

Murray v. Carrier, 477 U.S. 478, 479-80 (1986),

Kuhlmann v. Wilson, 477 U.S. 436, 438 (1986), and In

re Davis, 130 S. Ct. 1, 2 (2009), this Court adopted

the usage of the “actual innocence” and “miscarriage

of justice” exceptions to any procedurally defaulted or

defective Petitions for Writ of Habeas Corpus.

Herrera v. Collins, 506 U.S. 390, 432 n.2 (1993)

(“It also may violate the Eighth Amendment to

imprison someone who is actually innocent. See

Robinson v. California, 370 U.S. 660, 667 (1962)

("Even one day in prison would be a cruel and unusual

punishment for the crime of having a common cold").”)

This Court had reasoned in that decision with the

argument “It also may violate the Eighth Amendment

to imprison someone who is actually innocent.”

18
Punishing somebody who is innocent of a crime is

cruel and unusual punishment and is contrary to what

a Court of Law should be doing, only punishing the

guilty who have been found guilty of violating a law.

The Eighth Amendment prohibits cruel and unusual

punishments. The amendment was originally drafted to

prohibit torture and other barbaric methods of punishment.

Gregg v. Georgia, 428 U.S. 153, 169-170 (1976) (plurality

opinion). However, the Eighth Amendment has been

“interpreted in a flexible and dynamic manner” to reflect

evolving standards of decency. Id. at 171. The penalty “must

accord with ‘the dignity of man,’ which is the basic concept

underlying the Eighth Amendment.” Id.at 173, quoting

Trop v. Dulles, 356 U.S. 86,100 (1958) (plurality opinion).

There can hardly be a punishment more violative of the

dignity of man than the execution of an innocent person.

Herrera v. Collins, 506 U.S. 390, 427 (1993) (“We

granted certiorari on the question whether it violates due

process or constitutes cruel and unusual punishment for a

State to execute a person who, having been convicted of

murder after a full and fair trial, later alleges that newly

discovered evidence shows him to be "actually innocent."”)

19
B. To keep in uniformity with the past opinions of
this Supreme Court and making sure that the
Supreme Court of Virginia’s Habeas Corpus
decisions keep in uniformity with the “Actual
Innocence” and miscarriage of justice exception
to prevent cruel and unusual punishment
inflicted upon an innocent man/woman in
violation of the Amendments VIII and XIV of
the U.S. Constitution.

This Court has the ability to use its authority to

grant the Petition for Writ of Certiorari to keep the

uniformity of not just this Court’s decisions regarding

usage of the “actual innocence” and “miscarriage of

justice” exception to a procedurally defaulted petition for

writ of habeas corpus to prevent a criminal conviction

from causing a deprivation of Due Process rights and

protections under Amendment XIV and Amendment

VIII’s prohibition on cruel and unusual punishments

inflicted upon an innocent person who had made a

colorable showing of actual innocence to a crime charged

and wrongfully convicted, especially when all

States/Commonwealths of the Union, Federal

Supremacy Clause of the U.S. Constitution, have to

abide by the U.S. Constitution pursuant to the

20
Amendment XIV requiring all States to not deprive a

U.S. citizen of life, liberty, or property without Due

Process of Law, and that a State may not “deny to any

person within its jurisdiction the equal protection of the

laws.” (citation partly omitted and reformatted). The

Commonwealth of Virginia, the Circuit Court of

Martinsville, and the decision of the Supreme Court of

Virginia throwing out Habeas Corpus relief requested on

the ground of actual innocence is unequal,

discriminatory, and creates criminal conviction

consequences that Virginia claims cannot be challenged

in any way, shape, or form simply because he technically

is not under State Custody as they have claimed while

being made aware that he faced Revocation of his

Federal Sentence of Supervised Release if he is not found

actually innocent of his state charge and Conviction,

which is a miscarriage of justice and deprived an

innocent man of permanent acquittal for his conviction

of the Virginia charge of Indecent Exposure under

Virginia Code § 18.2-387.

This Court made multiple important decisions

regarding the usage of actual innocence, factual

21
innocence, and a colorable showing of innocence, as well

as the miscarriage of justice exception to a procedurally

defaulted Habeas Corpus petition. Again, see Bousley v.

United States, 523 US. 614, 622-23 (1998), Sawyer v. Whitley,

505 U.S. 333 (1992), Murray v. Carrier, 477 U.S. 478, 479-80

(1986), Kuhlmann v. Wilson, 477 U.S. 436, 438 (1986), and In

re Davis, 130 S. Ct. 1, 2 (2009). The decision on December 21,

2020, and the refusal of Petition for Rehearing on February 5,

2021, shows a conflict creating a permanent miscarriage of

justice against an innocent man when the original criminal

judgment entered on November 18, 2019, in the Circuit Court

of Martinsville (“Case no. CR19000009-00 (11/18/2019

ORDER)”) had shown that Petitioner never plead guilty to his

charge but had simply withdrawn his appeal but had asked

the Circuit Court to retain allowing him to overturn his

criminal conviction in another way because of ineffective

assistance of trial counsel refusing to file anything showing

the actual innocence of Petitioner. Petitioner never plead

guilty to his charge, that is a fact in his criminal case. The

Supreme Court of Virginia should have picked up on that in

the Record of his Criminal Case for his Writ of Habeas Corpus

challenging that conviction and one such ground asserted was

22
his Actual Innocence aka Legal Innocence. He never violated

Virginia Code § 18.2-387. That SCV should have taken special

notice of the actual innocence claim and should not have

dismissed the appeal.

Petitioner had made a clear demonstration that he

can prove factual innocence and make a colorable

showing of actual innocence. He provided legal

arguments that in order to be convicted of Indecent

Exposure under Virginia Code § 18.2-387, the Petitioner

must have acted intentionally to conduct such unlawful

behavior. No such evidence of intent exists. Petitioner

had explained about the case laws and what is legally

required to be guilty of violating criminal Code § 18.2–

387.

“The ‘obscenity’ element of Code § 18.2–387 may

be satisfied when: (1) the accused admits to possessing

such intent, Moses v. Commonwealth, 611 S.E.2d 607,

608 (Va. App. 2005)(en banc); (2) the defendant is visibly

aroused, Morales v. Commonwealth, 525 S.E.2d 23, 24

(Va. App. 2000); (3) the defendant engages in

masturbatory behavior, Copeland v. Commonwealth,

525 S.E.2d 9, 10 (Va. App. 2000); or (4) in other

23
circumstances when the totality of the circumstances

supports an inference that the accused had as his

dominant purpose a prurient interest in sex, Hart, 441

S.E.2d at 707–08. The mere exposure of a naked body is

not obscene. See Price v. Commonwealth, 201 S.E.2d

798, 800 (Va. 1974) (finding that `[a] portrayal of nudity

is not, as a matter of law, a sufficient basis for finding

that [it] is obscene’).” Romick v. Commonwealth, No.

1580-12-4, 2013 WL 6094240, at *2 (Va. Ct. App. Nov.

19, 2013)(unpublished)(internal citations reformatted).

While the evidence may show that Appellant was

naked in public at night, as stated why he was charged,

nudity, without more, is not obscene under Virginia law.

Rather, “[t]he word `obscene’ where it appears in this

article shall mean that which, considered as a whole, has

as its dominant theme or purpose an appeal to the

prurient interest in sex, that is a shameful or morbid

interest in nudity, sexual conduct, sexual excitement,

excretory functions or products thereof or

sadomasochistic abuse, and which goes substantially

beyond customary limits of candor in description or

representation of such matters and which, taken as a

24
 whole, does not have serious literary, artistic, political

or scientific value.” Va. Code § 18.2-372 (emphasis

added). While Virginia does not appear to have

established a clean definition of criminal intent, Black’s

Law Dictionary defines it as “[a]n intent to commit an

actus reus without any justification, excuse, or other

defense.”

In summary, in order to show that Appellant

violated Va. Code § 18.2-372 by committing the offense

of indecent exposure under Virginia law, the

Commonwealth was required to prove, among other

things, that Appellant had the intent to display or

expose himself in a way which has, as its dominant

theme or purpose, appeal to the prurient interest in sex,

as further defined above, without any justification,

excuse, or other defense.1 The Commonwealth failed to

do so. Rather, the Commonwealth’s evidence, presented

through its own witnesses, showed Appellant as

someone who was running around naked between

1
For the reasons stated above, the Commonwealth’s burden was to prove every
element of the offense, including the mens rea, beyond a reasonable doubt. However,
even if, arguendo, this Court were to find that the Commonwealth’s burden was only a
preponderance of the evidence, the Commonwealth has still failed to carry its burden.
25
midnight and 3:00 a.m. and taking pictures of himself

because he believed that someone was going to hurt his

family if he did not do so.

The General District Court did not hear, however,

any evidence of Appellant having his dominant theme,

or purpose being an appeal to the prurient interest in

sex. For example, there was no evidence of Appellant

making any sexual remarks, being aroused,

masturbating, or enjoying his conduct, sexually or

otherwise. If a person was purposing to expose himself

in public because he or she found it sexually arousing, it

would be logical that he or she would pick a place and

time where he or she would expect to encounter lots of

members of the public. Appellant did not do that.

Rather, he was running around between midnight and

3:00 a.m. and the witnesses to his nudity were few.

Hence, the statements Appellant made to police and his

conduct both indicate that, in the light most favorable to

the Commonwealth, he was naked in public while

having a psychiatric episode, but without the intent

necessary to commit indecent exposure under Virginia

law. Consequently, the General District Court erred, as

26
 a matter of law, when it found that Appellant had

violated Virginia Code § 18.2-387 by committing the

Virginia state law offense of indecent exposure as per

Virginia Code § 18.2-387.

Appellant never actually plead guilty when he

filed his “Motion to Withdraw Appeal” and the Judge

marked out any notion of it, no guilty plea at all and any

note of such was stricken from the final conviction.

Petitioner still retained the right to overturn his

criminal conviction on the ground of actual innocence

and any newly discovered evidence. A strong showing of

actual innocence warrants granting of the Writ of

Habeas Corpus in the Circuit Court or an evidentiary

hearing before making a decision on granting or denying

the Petition. The Supreme Court of Virginia should have

clearly taken that into consideration before making such

erroneous decision to refuse the Petition for Appeal and

the Petition for Rehearing.

C. To avoid a miscarriage of justice and cruel and

unusual punishment inflicted by the Circuit
Court of Martinsville by convicting an innocent
man and giving him no opportunity to
demonstrate factual innocence and blocking
him from being allowed relief upon showing a
colorable claim of actual innocence.
27
 This Court has the ability to use its authority to

grant the Petition for Writ of Certiorari to review over

an erroneous decision which had caused a permanent

miscarriage of justice against Petitioner Brian David

Hill, permanently convicting him of his charge of

Indecent Exposure under Virginia Code § 18.2-387,

despite never pleading guilty. Petitioner for a fact never

actually plead guilty which led to such a criminal

conviction on November 18, 2019. The Judge even

marked out any such note and allowed Petitioner to

retain that he could later challenge his criminal

conviction by other methods such as a Writ of Actual

Innocence but that form of relief mainly applies to felony

convictions and the charge of Indecent Exposure under

Virginia Code § 18.2-387 is only a misdemeanor but that

misdemeanor had caused severe consequences for his

Federal Supervised Release sentence in the Middle

District of North Carolina. Severe consequences such as

9 months of imprisonment, additional years of

Supervised Release with the Federal Judge ordering

“supervised, release of nine (9) years is re-imposed under

the same terms and conditions as previously imposed”.

28
Then there is another repercussion caused by such

miscarriage of justice such as having the Petitioner owe

a legal debt to the Circuit Court of Martinsville for in the

thousands of dollars not for restitution but for legal costs

throughout his State criminal case billed by both the

Prosecutor’s legal costs and court appointed lawyer’s

legal costs accrued throughout the entire criminal

prosecution of the State case knowing that his only

source of income is his Supplemental Security Income

disability disbursement under 42 U.S. Code § 407. His

SSI should have been protected from any such demand

to pay legal fees or legal debts to a State Court. So, he is

risking his SSI being garnished or taken by order of the

Circuit Court upon not being acquitted of his wrongful

conviction. That can deprive him of paying rent and

deprive him of life and liberty as he suffers under a

permanent disability or disabilities to even receive SSI.

So, he suffers three or more times even after serving his

State Sentence, so he is being punished over and over

again as a result of his wrongful conviction on November

18, 2019 in the Circuit Court. All of that was included on

Record in the Writ of Habeas Corpus in the Circuit

29
Court. So, the miscarriage of justice and wrongful

repercussions and his actual innocence were all brought

up in his petition. The Supreme Court of Virginia should

have recognized all of this together to protect Petitioner

from cruel and unusual punishment and being deprived

of Due Process of Law as an innocent man. The Supreme

Court of Virginia should have ordered the Circuit Court

to have conducted an evidentiary hearing to determine

if Petitioner can demonstrate a colorable showing of

actual innocence as he had claimed under oath/affidavit

in his Petition for Writ of Habeas Corpus on November

18, 2019, as well as show evidence

attachments/Exhibits.

X. CONCLUSION

For the foregoing reasons, Mr. Hill respectfully

requests that this Court issue a writ of certiorari to

review the judgment of the Supreme Court of Virginia

refusing and dismissing Mr. Hill’s petition for Appeal

on the Circuit Court dismissing Petitioner’s petition

for Writ of Habeas Corpus and the Supreme Court of

Virginia’s refusal of Petition for Rehearing.

II
30
DATED this 2nd day of April, 2021.

Respectfully submitted,

________________________________
Brian David Hill
Pro Se
Ally of QANON
Former USWGO Alternative News Reporter
310 FOREST STREET, APARTMENT 2
MARTINSVILLE, VIRGINIA 24112
Tel.: (276) 790-3505
E-Mail: No Email

JusticeForUSWGO.wordpress.com
JusticeforUSWGO.NL

31
 No.21- ___

In The Supreme Court Of The United States

BRIAN DAVID HILL,
Petitioner,

v.

COMMONWEALTH OF VIRGINIA,
Respondent,

On Petition for a Writ of Certiorari to the

Supreme Court of Virginia

PETITION FOR A WRIT OF

CERTIORARI
CERTIFICATE OF COMPLIANCE
As required by Supreme Court Rule 33. 2, I certify that the Petition
document is at least 40 pages, including the parts of the document that
are exempted. Font size for the Petition is 12 and/or 12.5, Type is New
Century Schoolbook. The Supreme Court name on the cover sheet is Old
English Text MT, just for the cover.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on April 1, 2021.

______________________________________

Brian David Hill

Pro Se
Ally of QANON
Former USWGO Alternative News Reporter
310 FOREST STREET, APARTMENT 2
MARTINSVILLE, VIRGINIA 24112
Tel.: (276) 790-3505
E-Mail: No Email

JusticeForUSWGO.wordpress.com

1
APPENDIX
 TABLE OF CONTENTS
Appendix Page

Final Judgment of
Supreme Court of Virginia
entered February 5, 2021……………………..……………………1a

Judgment and Opinion of

Supreme Court of Virginia
entered December 21, 2020 ………..………………………………2a

Order of
Court of Appeals of Virginia
entered February 14, 2020…………….……………………………3a

Judgment in a Civil Habeas Corpus Case of

Circuit Court of the City of Martinsville
entered November 20, 2020………………………………...………4a
 1a

Sn ttu. Supreme 6uvct og 'Uvcyinia Seed at itu'. Supeerne Cows'3uiEdiny, in eke

City og JhcPimond en z~mkay tfie 5tk day ag JeBeucvcy, 2021.

Brian David Hill, Appellant,

against Record No. 200267

Circuit Court No. CL19000331-00

Commonwealth of Virginia, Appellee.

Upon a Petition for Rehearing

On consideration of the petition of the appellant to set aside the judgment rendered herein

on December 21, 2020 and grant a rehearing thereof, the prayer of the said petition is denied.

A Copy,

Teste:

Douglas B. Robelen, Clerk

By:

Deputy Clerk

347
 2a

VIRGINIA:

Jn tire Sup'Wtre &vd of, VVtginia fidd al tire Sup'Wtre &vd 9Juil.dituj in tire
eibj of, 9liclinwnd cm Monday, tire 216t day of, 9)~, 2020.

Brian David Hill, Appellant,

against Record No. 200267

Circuit Court No. CL 19000331-00

Commonwealth of Virginia, Appellee.

From the Circuit Court of the City of Martinsville

Upon review of the record in this case and consideration of the argument submitted in
support of the granting of an appeal, the Court refuses the petition for appeal. Brian David Hill
challenges the judgment of the Circuit Court of the City of Martinsville dismissing his petition
for a writ of habeas corpus. On November 18, 2019, Hill filed a petition for a writ of habeas
corpus in the circuit court challenging his misdemeanor conviction for indecent exposure. In his
petition, Hill indicated that on November 15, 2019, he received a sentence of 30 days in jail and
that, at the time of filing, he was not in custody or under any type of probation or suspended
sentence from his indecent exposure conviction. Because Hill had fully served his sentence at
the time he filed his petition, the circuit court lacked jurisdiction to award habeas relief under
Code§ 8.01-654. See Escamilla v. Superintendent , 290 Va. 374, 380-81 (2015) (holding that
detention is jurisdictional in habeas corpus, and jurisdiction must exist at the time the petition is
filed) . Accordingly, the Court is of the opinion there is no reversible error in the judgment
below.
The rule to show cause previously entered herein is discharged.

A Copy,

Teste:

Douglas B. Robelen, Clerk

By:
~k?~
Deputy Clerk
 3a

In the Court ofgppeals of 'Virginia on Friday the 14th day of February, 2020.

Brian David Hill, Appellant,

against Record No. 0079-20-3

Circuit Court No. CL19000331-00

Commonwealth of Virginia, Appellee.

From the Circuit Court of the City of Martinsville

It appears that this Court does not have jurisdiction over this case. Accordingly, the case hereby is

transferred to the Supreme Court of Virginia pursuant to Code $ 8.01-677.1.

A Copy,

Teste:

Cyn ia L. McCo, Clerk

By:

Deputy Clerk

FILED IH THE CLERk'8 0FFICE

BF THE CIRCUIT COURT 0F THE
ill TIN"'ILLE O'IRCUIT CUURT

DATE: 0:!l8/":0"'0'81J:4l: ~7

lE'='TE Qi'~
CLERk/DEPUTY CLERk

214
 4a

VIRGINIA: IN THE CIRCUIT COURT FOR THE CITY OF MARTINSVILLE

BRIAN DAVID HILL,

Petitioner,

ORDER
Case No. CL19000331-00

COMMONWEALTH OF VIRGINIA,
ATTORNEY GENERAL OF VIRGINIA,

Respondent.

UPON CONSIDERATION of the petitiorier's Petitiori for Writ of Habeas Corpus, it is

ORDERED that said petition be, and the same is hereby, DISMISSED.

ENTER: This 20th day of November, 2019.

Judge

Endorsement of Counsel is dispensed with — Rule 1:13

TWENTY-ERST
IUDICIAL OIRCUIT
OF VIRGINIA

202