Filed: May 11, 2016
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-6615 BRANDON JAMES CLARK, a/k/a Brandon James Chambers, Petitioner – Appellant, v. HAROLD CLARKE, Director, Respondent – Appellee. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Michael F. Urbanski, District Judge. (7:14-cv-00042-MFU-RSB) Submitted: January 14, 2016 Decided: May 11, 2016 Before KING, GREGORY, and WYNN, Circuit Judges. Vacated and remanded by unpublished per cu
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-6615 BRANDON JAMES CLARK, a/k/a Brandon James Chambers, Petitioner – Appellant, v. HAROLD CLARKE, Director, Respondent – Appellee. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Michael F. Urbanski, District Judge. (7:14-cv-00042-MFU-RSB) Submitted: January 14, 2016 Decided: May 11, 2016 Before KING, GREGORY, and WYNN, Circuit Judges. Vacated and remanded by unpublished per cur..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6615
BRANDON JAMES CLARK, a/k/a Brandon James Chambers,
Petitioner – Appellant,
v.
HAROLD CLARKE, Director,
Respondent – Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Michael F. Urbanski, District
Judge. (7:14-cv-00042-MFU-RSB)
Submitted: January 14, 2016 Decided: May 11, 2016
Before KING, GREGORY, and WYNN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Christopher R. Ford, MAYER BROWN LLP, Washington, D.C., for
Appellant. Mark R. Herring, Attorney General of Virginia, Leah
A. Darron, Senior Assistant Attorney General, Elizabeth C.
Kiernan, Assistant Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In May 2007, Brandon James Clark entered Alford pleas in a
Virginia state court to multiple charges arising from his
alleged participation in a gang-related shooting. See North
Carolina v. Alford, 400 U.S. 25 (1970) (recognizing that
defendant may plead guilty while maintaining innocence). Nearly
seven years later, following subsequent state proceedings, Clark
filed a pro se petition under 28 U.S.C. § 2254 in the Western
District of Virginia. The § 2254 petition asserted a single,
Sixth Amendment claim: that trial counsel rendered ineffective
assistance by advising and permitting Clark to enter the Alford
pleas even though the lawyer believed, based on a mass of
exculpatory evidence, that Clark was not guilty of the offenses
charged. In support of the petition, Clark proffered post-
conviction affidavits and letters in which eyewitnesses,
including one of the two victims, averred that Clark was not a
perpetrator of the shooting. Clark acknowledged that he had not
raised his ineffective assistance claim in any Virginia court,
but contended that — under Schlup v. Delo,
513 U.S. 298 (1995),
and McQuiggin v. Perkins,
133 S. Ct. 1924 (2013) — his actual
innocence excuses both the procedural default and any expiration
of the statute of limitations.
Ten days after Clark filed his § 2254 petition, the
district court summarily dismissed the petition for failure to
2
exhaust state remedies and concomitantly denied Clark a
certificate of appealability (a “COA”). See Clark v. Clarke,
No. 7:14-cv-00042 (W.D. Va. Feb. 10, 2014), ECF No. 2 (the
“Dismissal Opinion”). Clark then sought reconsideration of the
dismissal, invoking authority for the proposition that his
ineffective assistance claim must be treated as simultaneously
exhausted and procedurally barred from federal review. He
further contended, with citation to Schlup and other binding
precedent, that the court must address the issue of whether
sufficient new evidence of actual innocence excuses the
procedural default. Unpersuaded, however, the court denied
Clark’s motion to reconsider. See Clark v. Clarke, No. 7:14-cv-
00042 (W.D. Va. Apr. 10, 2014), ECF No. 7 (the “Reconsideration
Order”).
Following initial informal briefing in this Court, we
appointed counsel to represent Clark and granted him a COA as to
the following issues:
(1) Whether the district court erred in dismissing
Clark’s § 2254 petition on the ground that the claim
of ineffective assistance of counsel raised therein is
unexhausted; (2) whether the district court should
have deemed the ineffective assistance claim
simultaneously exhausted and procedurally defaulted;
and (3) whether the district court should have
considered Clark’s argument that his actual innocence
of the crimes of conviction excuses the procedural
default of the ineffective assistance claim, as well
as the untimeliness of the § 2254 petition.
3
As explained below, we now answer each of those questions in the
affirmative and thus vacate the district court’s judgment and
remand for further proceedings. We have dispensed with oral
argument because the facts and legal contentions are fully
presented in the materials before us, including the parties’
formal briefs and Clark’s earlier pro se submissions.
I.
As a result of his Alford pleas, Clark was convicted in the
Circuit Court of the City of Waynesboro on the following felony
charges: two counts of aggravated malicious wounding; two
counts of use of a firearm while committing a felony; one count
of burglary with a weapon; and one count of street gang
participation involving a juvenile. See Clark v. Commonwealth,
No. 1727-07-3, 2008 WL 2019561, at *1 & n.2 (Va. Ct. App. May
13, 2008). In support of those pleas, the prosecution had
proffered a confession made by Clark. See
id. at *1 n.4.
Nevertheless, “Clark introduced evidence at sentencing to deny
or minimize his involvement in the crimes.” See
id. That
strategy was fruitless: Although the state sentencing
guidelines recommended a range of ten years and five months to
twenty-three years and two months, the trial court sentenced
Clark to forty-three years in prison. See
id. at *1 & n.3. On
direct appeal, the Court of Appeals of Virginia affirmed,
4
concluding that “the trial court did not abuse its discretion by
imposing the sentence that it did.” See id. at *1. Thereafter,
Clark’s appeal of his sentence to the Supreme Court of Virginia
was refused. Clark also unsuccessfully sought state habeas
relief in the Circuit Court of the City of Waynesboro, without
raising the ineffective assistance claim or the actual innocence
issue presented in his § 2254 petition. He did not appeal the
denial of habeas relief to the state supreme court.
According to the § 2254 petition, which Clark filed in the
Western District of Virginia on January 31, 2014, his trial
counsel convinced him to enter the Alford pleas on the theory
that “a jury would find him ‘guilty by association,’ not on the
strength of the evidence but solely because he was an admitted
gang member.” See J.A. 19. 1 The petition acknowledged Clark’s
confession, but explained that Clark had fabricated that story
to protect younger codefendants and create a self-defense
theory. Before Clark entered his Alford pleas, the confession
was known to be contradicted by physical evidence and
eyewitnesses, and it was retracted by Clark in further
statements to police. Nevertheless, trial counsel advised and
allowed Clark to plead guilty, and then waited until sentencing
1Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.
5
to show that the confession “was inherently incredible and
uncorroborated by other evidence.” See id. The petition
asserted, inter alia, that trial counsel’s “actions following
the guilty plea prove that he gave terrible legal advice to his
client and failed to protect his right to a trial on the charged
offenses, to his client’s prejudice because it ended up costing
him practically the rest of his life behind bars.”
Id.
In addition to addressing the merits of Clark’s ineffective
assistance claim, the § 2254 petition explained that the claim
is time-barred in state court, see J.A. 4 (citing Va. Code
§ 8.01-654(A)(2)), and that Clark is ineligible for a state writ
of actual innocence because he pleaded guilty, see
id. (citing
Va. Code § 19.2-327.10). The petition also recognized that,
“[g]enerally, a federal court may only grant habeas relief for
exhausted claims — that is those claims that have been presented
in state court before raising them in federal court.”
Id. at 24
(citing O’Sullivan v. Boerckel,
526 U.S. 838, 842 (1999)).
Thus, the § 2254 petition invoked the Supreme Court’s 1995
decision in Schlup v. Delo for the proposition that Clark’s
actual innocence excuses the procedural default. See J.A. 24
(observing that, to use actual innocence to overcome a
procedural bar to federal habeas review, a petitioner must
demonstrate that “‘it is more likely than not that no reasonable
juror would have convicted him in the light of the new
6
evidence’” (quoting Schlup, 513 U.S. at 327)). Moreover, the
petition pointed out that “‘a § 2254 petitioner is entitled to
have a Schlup actual innocence issue addressed and disposed of
in the district court.’” See
id. at 24 n.6 (alteration omitted)
(quoting Wolfe v. Johnson,
565 F.3d 140, 164 (4th Cir. 2009)).
The petition also invoked the Supreme Court’s recent
pronouncement in McQuiggin v. Perkins that “‘actual innocence,
if proved, serves as a gateway through which a petitioner may
pass whether the impediment is a procedural bar [or] expiration
of the statute of limitations.’” See
id. at 25 (quoting
McQuiggin, 133 S. Ct. at 1928). As new evidence of Clark’s
actual innocence, the petition included affidavits executed in
2011 and 2013, plus various letters. The affidavit of shooting
victim James O’Brien, for example, averred that “Mr. Clark is
currently serving 43 years for a crime he did not commit[].”
See
id. at 32.
By its Dismissal Opinion and an accompanying Order of
February 10, 2014, the district court summarily dismissed
Clark’s § 2254 petition for failure to exhaust state remedies,
that is, for not presenting his ineffective assistance claim to
Virginia’s highest court. See Dismissal Opinion 2 (“Whichever
route is taken, the convict ultimately must present the claims
to the Supreme Court of Virginia and receive a ruling from that
court before a federal district court can consider the
7
claims.”). In so doing, the district court relied on Rule 4 of
the Rules Governing Section 2254 Cases, which provides that
“[i]f it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the
district court, the judge must dismiss the petition” without
“order[ing] the respondent to file an answer, motion or other
response.” The district court deemed the dismissal to be
without prejudice, and noted that Clark may refile his § 2254
petition after unsuccessfully pursuing the ineffective
assistance claim in the state supreme court. Additionally, the
district court denied Clark a COA. See 28 U.S.C.
§ 2253(c)(1)(A) (“Unless a circuit justice or judge issues a
certificate of appealability, an appeal may not be taken to the
court of appeals from the final order in a [§ 2254] proceeding
. . . .”).
On February 19, 2014, Clark filed his motion to reconsider,
contending that under Sparrow v. Director, Department of
Corrections, 439 F. Supp. 2d 584 (E.D. Va. 2006), his
ineffective assistance claim must be treated as exhausted
because Virginia’s statute of limitations, as well as its bar on
successive habeas petitions, see Va. Code § 8.01-654(B)(2),
render a state remedy unavailable to him. As Clark explained,
Sparrow recognized that “‘[a] claim that has not been presented
to the highest state court nevertheless may be treated as
8
exhausted if it is clear that the claim would be procedurally
barred under state law if the petitioner attempted to present it
to the state court.’” See J.A. 47 (quoting Sparrow, 439 F.
Supp. 2d at 587). Indeed, Clark indicated that Sparrow relied
on precedent of this Court and the Supreme Court. See id.
Clark urged the district court to follow Sparrow and treat his
ineffective assistance claim as “‘simultaneously exhausted and
procedurally barred from federal habeas review.’” See
id. at 48
(quoting Sparrow, 439 F. Supp. 2d at 588). Then, Clark
contended that the court must decide whether, pursuant to
Schlup, he can make a sufficient showing of actual innocence to
excuse the procedural default. See
id. at 49 (again quoting
Wolfe, 565 F.3d at 164, for the proposition that “‘a § 2254
petitioner is entitled to have a Schlup actual innocence issue
addressed and disposed of in the district court’” (alteration
omitted)).
By its Reconsideration Order of April 10, 2014, the
district court denied Clark’s motion to reconsider. The court
confronted Sparrow and determined that Clark cannot rely on that
decision, because the Sparrow petitioner “had filed a habeas
petition with the Supreme Court of Virginia but presented new,
unexhausted claims in the federal habeas petition.” See
Reconsideration Order 1. It was pivotal to the district court
that, “[i]n contrast, Clark has never presented a habeas claim
9
to the Supreme Court of Virginia.” See id. Those
circumstances, the district court concluded, obliged it to stand
by its dismissal of Clark’s § 2254 petition for failure to
exhaust state remedies.
Still proceeding pro se, Clark sought our review of the
Dismissal Opinion and the Reconsideration Order. On June 29,
2015, we granted the COA as to the issues outlined above. In so
doing, we confirmed that Clark had demonstrated both “that
jurists of reason would find it debatable whether the [§ 2254]
petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling.” See
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (announcing what
must be shown to obtain COA under § 2253(c) where district court
dismissed petition on procedural grounds).
The parties subsequently filed formal briefs — Clark
through his appointed appellate counsel — which identify three
primary issues for our consideration. First, the respondent,
Harold Clarke, Director of the Virginia Department of
Corrections (the “Commonwealth”), asserts that we lack appellate
jurisdiction notwithstanding our grant of the COA, because the
district court dismissed Clark’s § 2254 petition without
prejudice and thus did not issue an appealable final decision.
Second, Clark contends that the district court erred in deeming
10
his ineffective assistance claim to be unexhausted, rather than
simultaneously exhausted and procedurally defaulted. And third,
Clark maintains that the court further erred by failing to take
up the issue of whether his actual innocence excuses the
procedural default, as well as expiration of the statute of
limitations.
II.
A.
We first address the Commonwealth’s theory that, although
we granted the COA required by 28 U.S.C. § 2253(c), we lack
jurisdiction over Clark’s appeal. As the Commonwealth would
have it, there is no final decision within the meaning of 28
U.S.C. § 1291 because the district court dismissed Clark’s 28
U.S.C. § 2254 petition without prejudice. We disagree.
Section 1291 provides, in relevant part, that “[t]he courts
of appeals . . . shall have jurisdiction of appeals from all
final decisions of the district courts of the United States.”
Under our precedent, some dismissals without prejudice do not
constitute appealable final decisions — but some do. That is,
“a plaintiff may not appeal the dismissal of his complaint
without prejudice unless the grounds for dismissal clearly
indicate that no amendment in the complaint could cure the
defects in the plaintiff’s case.” See Domino Sugar Corp. v.
11
Sugar Workers Local Union 392, 10 F.3d 1064, 1067 (4th Cir.
1993) (alterations and internal quotation marks omitted).
Crucially, there is no amendment to Clark’s § 2254 petition
that could cure the defect identified by the district court,
i.e., the failure to exhaust state remedies. To satisfy the
district court, Clark would have to pursue his ineffective
assistance claim in the Supreme Court of Virginia, not simply
amend his § 2254 petition. Consequently, “the mere fact that
the district court dismissed [the petition] without prejudice
does not render the [decision] interlocutory and not subject to
appeal.” Cf. Domino Sugar Corp., 10 F.3d at 1067. Rather, “the
district court essentially made a final ruling that [Clark] had
to proceed [in the Supreme Court of Virginia] before seeking
[federal] judicial relief.” See
id. (concluding that an order
dismissing a complaint without prejudice for failure to exhaust
contractual remedies through arbitration “qualifies as a final
order subject to appeal”). We thus possess jurisdiction
pursuant to both § 1291 and § 2253(c).
B.
Turning to Clark’s contentions, we next consider whether
the district court incorrectly viewed his ineffective assistance
claim as unexhausted, rather than simultaneously exhausted and
procedurally defaulted. Applying the de novo standard of
12
review, see Bostick v. Stevenson, 589 F.3d 160, 163 (4th Cir.
2009), we conclude that the court so erred.
As Clark has conceded, he failed to exhaust his ineffective
assistance claim by presenting it to any state court, including
the Supreme Court of Virginia. See Jones v. Sussex I State
Prison, 591 F.3d 707, 712-13 (4th Cir. 2010) (explaining that,
to exhaust state remedies, a “habeas petitioner must raise his
claim before every available state court, including those courts
— like the Supreme Court of Virginia — whose review is
discretionary”). Moreover, it is undisputed that there are
three barriers to Clark’s future pursuit of the ineffective
assistance claim by way of a state habeas petition: Virginia’s
statute of limitations, see Va. Code § 8.01-654(A)(2); its
prohibition against successive petitions,
id. § 8.01-654(B)(2);
and its statute disqualifying a prisoner who pleaded guilty from
obtaining a writ of actual innocence,
id. § 19.2-327.10.
In these circumstances, Clark’s ineffective assistance
claim is properly treated not as unexhausted, but as
simultaneously exhausted and procedurally defaulted. That is
the lesson of the decision brought to the district court’s
attention by Clark, see Sparrow v. Director, Dep’t of
Corrections, 439 F. Supp. 2d 584 (E.D. Va. 2006), as well as the
decisions of this Court and the Supreme Court on which Sparrow
expressly relied, see Gray v. Netherland,
518 U.S. 152 (1996);
13
Baker v. Corcoran, 220 F.3d 276 (4th Cir. 2000). Those
decisions explain that “[a] claim that has not been presented to
the highest state court nevertheless may be treated as exhausted
if it is clear that the claim would be procedurally barred under
state law if the petitioner attempted to present it to the state
court.”
Baker, 220 F.3d at 288 (citing
Gray, 518 U.S. at 161);
see also
Sparrow, 439 F. Supp. 2d at 587 (quoting same). The
question then becomes whether there is an excuse for the
petitioner’s procedural default. See
Gray, 518 U.S. at 162;
Baker, 220 F.3d at 288;
Sparrow, 439 F. Supp. 2d at 587.
Importantly, none of those decisions adopt or even suggest
the rule applied by the district court: that to have a federal
habeas claim treated as simultaneously exhausted and
procedurally defaulted, the petitioner must have first presented
some other habeas claims to the state’s highest court. There is
no apparent justification for such a rule, and the Commonwealth
does not attempt to provide one, despite closing its brief by
asking us to affirm the district court’s dismissal ruling.
Meanwhile, the Commonwealth’s brief elsewhere concedes that the
district court at least “could have deemed [Clark’s] ineffective
counsel claim simultaneously exhausted and defaulted.” See Br.
of Resp’t 10. We must go farther and say that the district
court erred by not treating the ineffective assistance claim as
exhausted but procedurally defaulted.
14
C.
Finally, then, we consider if the district court erred by
failing to reach and adjudicate whether Clark’s actual innocence
excuses the procedural default, as well as any expiration of the
statute of limitations. That issue is subject to our de novo
review and requires vacatur of the district court’s judgment.
See Wolfe v. Johnson, 565 F.3d 140, 160, 164 (4th Cir. 2009).
In sum, as thoroughly explained by Clark in his pro se
§ 2254 petition and motion to reconsider the petition’s
dismissal, the Supreme Court has recognized that actual
innocence serves as a gateway through which a petitioner may
pass whether the impediment is a procedural bar, see Schlup v.
Delo, 513 U.S. 298 (1995), or expiration of the statute of
limitations, see McQuiggin v. Perkins,
133 S. Ct. 1924 (2013).
A § 2254 petitioner seeking to rely on Schlup (or McQuiggin)
must “persuade[] the district court that, in light of the new
evidence, no juror, acting reasonably, would have voted to find
him guilty beyond a reasonable doubt.” See
Schlup, 513 U.S. at
329. And that “petitioner is entitled to have [the] actual
innocence issue addressed and disposed of in the district
court.” See
Wolfe, 565 F.3d at 164.
Where, as here, the district court has not confronted the
actual innocence issue, it is appropriate to vacate and remand
for further proceedings, including a possible evidentiary
15
hearing. See Wolfe, 565 F.3d at 163-70; see also, e.g., Bousley
v. United States,
523 U.S. 614, 623 (1998) (remanding Schlup
issue that district court failed to address); cf. Teleguz v.
Pearson,
689 F.3d 322, 330 (4th Cir. 2012) (remanding where
district court ruled on actual innocence issue, but did not
engage in “rigorous Schlup analysis required by Wolfe” or
conduct evidentiary hearing). The Commonwealth urges us to
instead “simply find that [Clark’s] claimed actual innocence is
frivolous and dismiss the habeas petition.” See Br. of Resp’t
13. To be sure, Wolfe left open the question “of whether, in an
appropriate [case], a Schlup actual innocence issue could be
adjudicated in the first instance on appeal.”
See 565 F.3d at
164 n.33. This clearly is not such a case, however, in that
Clark entered Alford pleas, put on a vigorous innocence defense
at sentencing, and now has affidavits from one of his alleged
victims and another eyewitness attesting that Clark did not
commit the crimes of conviction. Accordingly, the only suitable
course is to vacate and remand. 2
2To be clear, we agree with Clark that he “has raised an
actual innocence claim that is, at the very least, colorable,
and is certainly not frivolous.” See Reply Br. of Pet’r 17. We
therefore do not reach Clark’s alternative contention that we
cannot, in any event, do what the Commonwealth asks — direct the
dismissal of the § 2254 petition with prejudice — because the
Commonwealth did not note a cross-appeal. See id. at 14
(contending that “[r]ules of practice dictate that in order for
a court of appeals to modify a district court’s judgment to make
(Continued)
16
III.
Pursuant to the foregoing, we vacate the judgment of the
district court and remand for such other and further proceedings
as may be appropriate.
VACATED AND REMANDED
it less favorable to an appellant, the appellee must have noted
a cross-appeal of that judgment”).
17
