UNPUBLISHED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unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit. 
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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