In 2013, The Fourth Circuit Court of Appeals declared Va. Code § 18.2-361(A), a state criminal statute under which Petitioner remains convicted, sentenced, and imprisoned, to be facially unconstitutional. The question presented is:

1.) whether a § 2254 (habeas) claim of a conviction under that facially unconstitutional statute is, by itself, able and sufficient to overcome a statutory second or successive' determination by the district court?

Whether a § 2254 (habeas) claim of a conviction under a facially unconstitutional statute is sufficient to overcome a statutory 'second or successive' determination by the district court