                                                                   Tuesday                 19th

                October, 2004.


In Re: Herman Cephus Newman,
                                                                                                  Petitioner.

                     Record No. 2244-04-4


                                 Upon a Petition for a Writ of Actual Innocence

                       Before Chief Judge Fitzpatrick, Judges Elder and Humphreys


       Herman Cephus Newman petitions this Court for a Writ of Actual Innocence pursuant to Chapter

19.3 of Title 19.2 of the Code of Virginia. Newman challenges his 1994 adjudication as an habitual

offender, as well as his conviction of driving after having been declared an habitual offender in Culpeper

County Circuit Court on April 2, 1997.1

       Newman argues that he was adjudicated an habitual offender under statutes that were flawed and

have since been repealed. According to Newman, because he was unlawfully declared an habitual

offender, the circuit court lacked jurisdiction to convict him of driving after having been adjudged an

habitual offender.

       Newman is not eligible for the writ. Code § 19.2-371.10 permits “a person who was convicted

of a felony” to seek a writ of actual innocence in this Court. A proceeding resulting in an habitual

offender adjudication is civil in nature and does not produce a felony conviction. See Hoye v.

Commonwealth, 12 Va. App. 587, 589, 405 S.E.2d 628, 629 (1991). Thus, Chapter 19.3 affords

Newman no basis for relief resulting from his adjudication as an habitual offender.




       1
           The attachments to the petition indicate the sentencing date was May 6, 1997.
       Newman’s contention of innocence of driving after having been declared an habitual offender

rests upon legal argument challenging the validity of the statutes leading to his adjudication.2 However,

Chapter 19.3 allows review only based on previously unknown or unavailable non-biological evidence.

Evidence is “[s]omething (including testimony, documents and tangible objects) that tends to prove or

disprove the existence of an alleged fact . . . .” Black’s Law Dictionary 595 (8th ed. 2004). A fact is

“[a]n actual or alleged event or circumstance, as distinguished from its legal effect, or interpretation.”

Id. at 628 (emphasis supplied). The legal arguments presently advanced by Newman are not “evidence”

entitling him to relief under Chapter 19.3. Accordingly, we summarily dismiss Newman’s petition.

       Because the issues addressed herein are of first impression and potential litigants and members

of the bar may benefit from the directives herein, we direct the Clerk to publish this order.


                                          A Copy,

                                                  Teste:

                                                                  Clerk




       2
          On appeal of the circuit court’s refusal to vacate its judgment of conviction, this Court denied
appellant’s petition for appeal and found no merit to appellant’s claim the circuit court lacked
jurisdiction to prosecute him. See Newman v. Commonwealth, Record No. 0693-01-4 (order of
May 30, 2001).
                                                        -2-
