                            UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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