UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
2

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 postconviction 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 
3

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-cv00042 (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.
4

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, 
5

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 

 1 Citations herein to “J.A. __” refer to the contents of the 

Joint Appendix filed by the parties in this appeal.
6

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 
7

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 
8

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 
9

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 
10

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 
11

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. 
12

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 
13

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); 
14

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.
15

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 
16

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

 2 To 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)
17

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”).