UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-6802
SCOTT KENT,
Petitioner - Appellant,
v.
MR. KUPLINSKI, Superintendent of VPRJ,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Claude M. Hilton, Senior District Judge. (1:15-cv-01717-CMH-IDD)
Submitted: July 20, 2017 Decided: August 11, 2017
Before GREGORY, Chief Judge, and TRAXLER and THACKER, Circuit Judges.
Vacated in part and remanded; affirmed in part as modified; dismissed in part by
unpublished per curiam opinion.
Scott Kent, Appellant Pro Se. John Chadwick Johnson, FRITH, ANDERSON &
PEAKE, PC, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Scott Kent filed a 28 U.S.C. § 2254 (2012) petition alleging, among other claims,
that the evidence was insufficient to support his convictions in Virginia state court for
extortion and obstruction of justice. Kent noted an appeal from the district court’s order
dismissing his § 2254 petition without prejudice for failure to exhaust his claims in state
court. In his opening brief, Kent maintained he exhausted his state remedies as to his
challenge to the sufficiency of the evidence supporting his convictions by presenting it to
the Supreme Court of Virginia (SCV) on direct appeal and asserted additional claims
presented in his § 2254 petition. We later granted a certificate of appealability on the
following issue: whether reasonable jurists would find debatable the district court’s
finding that Kent failed to exhaust his state remedies with respect to his challenge to the
sufficiency of the evidence as presented in his opening brief. We also directed
Respondent to file a response addressing the issue on which the certificate was granted.
In response, Respondent filed a brief arguing that Kent’s evidentiary insufficiency
challenge is unexhausted because Kent never presented it in a state habeas corpus petition
complying with Virginia law. Kent later filed a brief in reply. In it, Kent reiterates his
argument raised in his opening brief that his evidentiary insufficiency challenge is
exhausted and urges this court to hear and consider the remainder of his § 2254 claims.
Kent also attached to this brief, among other items, a copy of the opinion of the Court of
Appeals of Virginia (CAVA) denying his direct appeal petition.
Once a certificate of appealability has been granted, this court “review[s] . . . the
district court’s dismissal of [a] habeas petition . . . de novo.” Gordon v. Braxton,
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780 F.3d 196, 200 (4th Cir. 2015). To provide state courts with the first opportunity to
consider constitutional challenges to a state prisoner’s criminal convictions, the prisoner
must exhaust all available state remedies with respect to a claim before raising that claim
in a federal habeas petition. 28 U.S.C. § 2254(b)(1); Gordon, 780 F.3d at 200-01. “The
habeas petitioner must raise his claim before every available state court, including those
courts—like the [SCV]—whose review is discretionary.” Jones v. Sussex I State Prison,
591 F.3d 707, 713 (4th Cir. 2010). Specifically, the petitioner must present to the state
court “the substance of his federal habeas corpus claim,” which “requires that the claim
be presented face-up and squarely.” Pethtel v. Ballard, 617 F.3d 299, 306 (4th Cir. 2010)
(internal quotation marks omitted). In Virginia, a petitioner must present the same
factual and legal claims raised in his § 2254 petition to the SCV either by way of (i) a
direct appeal, (ii) a state habeas corpus petition, or (iii) an appeal from a circuit court’s
denial of a state habeas petition. Sparrow v. Dir., Dep’t of Corr., 439 F. Supp. 2d 584,
587 (E.D. Va. 2006).
The record in this case clearly discloses that Kent filed a direct appeal in which he
challenged the sufficiency of the evidence supporting his convictions and that this
challenge was presented on direct appeal to the SCV. In his § 2254 petition and on
appeal, Kent urges that the evidence is insufficient to support his convictions based on
the prosecution’s failure to show he sent the underlying text messages and that this
challenge is exhausted. Nevertheless, it appears from the opinion of the CAVA appended
to Kent’s reply brief that Kent’s evidentiary insufficiency challenge to his obstruction
convictions was barred by Va. Sup. Ct. Rule 5A:18 because he did not present the
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challenge in the trial court. Rule 5A:18 is “virtually identical” to SCV Rule 5:25,
Jimenez v. Commonwealth, 402 S.E.2d 678, 680 (Va. 1991), and “what is said in
application to one applies to the other.” Perez v. Commonwealth, 580 S.E.2d 507, 513
n.7 (Va. 2003) (Agee, J., concurring). Rule 5:25 constitutes “an independent and
adequate state procedural bar precluding [habeas] review of errors [not raised] at trial.”
Weeks v. Angelone, 176 F.3d 249, 270 (4th Cir. 1999). Where a state court clearly and
expressly bases its dismissal of a habeas claim on a state procedural rule * and that rule
provides an independent and adequate ground for dismissal, the petitioner will have
procedurally defaulted on that habeas claim. Breard v. Pruett, 134 F.3d 615, 619
(4th Cir. 1998). In the case of procedural default, review of the claim is barred unless the
petitioner can demonstrate cause for it and actual prejudice as a result of the alleged
violation of federal law or that failure to consider the claim will result in a fundamental
miscarriage of justice. Wilson v. Ozmint, 352 F.3d 847, 868 (4th Cir. 2003). We
conclude after review of the record, Kent’s briefs, and the attachments thereto that Kent’s
procedural default of his evidentiary insufficiency challenge to his obstruction
convictions is not excused.
Accordingly, because the district court erred in dismissing for failure to exhaust
state remedies Kent’s evidentiary insufficiency challenge to his extortion convictions, we
grant leave to proceed in forma papueris, vacate the district court’s judgment in part, and
*
Reliance on Rule 5A:18 as the basis for rejecting this aspect of the evidentiary
insufficiency challenge is imputed to the SCV, which denied Kent’s direct appeal petition
without explanation. See Ylst v. Nunnemaker, 501 U.S. 797 (1991).
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remand for further proceedings. Additionally, given that it is now clear in light of Kent’s
supplementation of the record that the district court erred in dismissing his evidentiary
insufficiency challenge to his obstruction convictions without prejudice for lack of
exhaustion, we modify the judgment to reflect dismissal of his challenge as procedurally
defaulted and affirm the dismissal as modified. See 28 U.S.C. § 2106 (2012); MM ex rel.
DM v. Sch. Dist. of Greenville Cty., 303 F.3d 523, 536 (4th Cir. 2002); George v.
Angelone, 100 F.3d 353, 364-65 (4th Cir. 1996).
With respect to Kent’s remaining claims, the district court’s dismissal decision
may not be appealed in the absence of a certificate of appealability. See 28 U.S.C.
§ 2253(c)(1)(A) (2012). A certificate of appealability will not issue absent “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When
the district court denies relief on the merits, a prisoner satisfies this standard by
demonstrating that reasonable jurists would find that the district court’s assessment of the
constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484
(2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When the district court
denies relief on procedural grounds, the prisoner must demonstrate both that the
dispositive procedural ruling is debatable, and that the petition states a debatable claim of
the denial of a constitutional right. Slack, 529 U.S. at 484-85. We conclude after review
of the record, Kent’s briefs, and the attachments thereto that Kent fails to make the
required showing.
Accordingly, we deny a certificate of appealability as to all remaining issues.
We also deny Kent’s motion to appoint counsel and dismiss the appeal in part.
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We dispense with oral argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would not aid the decisional
process.
VACATED IN PART AND REMANDED;
AFFIRMED IN PART AS MODIFIED;
DISMISSED IN PART
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