Scott Kent v. Mr. Kuplinski, 702 F. App'x 167

Scott Kent, pro se, filed a 28 U.S.C. § 2254 petition alleging, among other claims, insufficiency of the evidence for his Virginia convictions for extortion and obstruction of justice.
District court dismissed the § 2254 petition without prejudice for failure to exhaust state remedies; Kent appealed and obtained a certificate of appealability on whether his insufficiency claim was exhausted as presented in his opening brief.
Kent argued he exhausted the sufficiency claim by presenting it on direct appeal to the Supreme Court of Virginia (SCV); respondent countered that Kent never presented the claim in a state habeas petition as required by Virginia practice.
Kent appended the Court of Appeals of Virginia (CAVA) opinion denying his direct appeal petition, which showed the insufficiency challenge to his obstruction convictions was barred under Va. Sup. Ct. Rule 5A:18 for not being raised at trial.
The Fourth Circuit reviewed de novo, concluded the extortion sufficiency claim was exhausted and remanded on that part, but found the obstruction sufficiency claim procedurally defaulted and affirmed dismissal of that portion as modified.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Kent exhausted his insufficiency-of-evidence claim regarding extortion convictions	Kent: claim was presented on direct appeal to the SCV and thus exhausted	Respondent: exhaustion lacking because state habeas procedure required or direct appeal did not properly present the federal claim	Court: Extortion insufficiency claim was exhausted; district court’s dismissal vacated and remanded
Whether Kent exhausted his insufficiency-of-evidence claim regarding obstruction convictions	Kent: same exhaustion argument as to obstruction convictions	Respondent: claim was forfeited under Va. Sup. Ct. Rule 5A:18 and thus procedurally defaulted	Court: Obstruction insufficiency claim was procedurally defaulted; dismissal affirmed as modified
Whether procedural default is excused so federal habeas review may proceed	Kent: argued procedural default should be excused (no adequate showing)	Respondent: no cause and prejudice shown; procedural rule is independent and adequate	Court: Kent failed to show cause and prejudice or miscarriage of justice; default not excused
Whether certificate of appealability (COA) should issue for remaining claims	Kent: sought COA to appeal other claims	Respondent: COA not warranted because Kent did not make a substantial showing	Court: Denied COA as to remaining issues; appeal dismissed in part

Gordon v. Braxton, 780 F.3d 196 (4th Cir. 2015) (standard of de novo review after COA granted)
Jones v. Sussex I State Prison, 591 F.3d 707 (4th Cir. 2010) (requirement to present claims to all available state courts, including discretionary review)
Pethtel v. Ballard, 617 F.3d 299 (4th Cir. 2010) (claim must be presented "face-up and squarely" to state courts)
Weeks v. Angelone, 176 F.3d 249 (4th Cir. 1999) (state procedural rules like SCV Rule 5:25 can bar federal habeas review)
Breard v. Pruett, 134 F.3d 615 (4th Cir. 1998) (procedural default doctrine when state court relies on an independent and adequate state ground)
Wilson v. Ozmint, 352 F.3d 847 (4th Cir. 2003) (cause-and-prejudice standard to overcome procedural default)
Slack v. McDaniel, 529 U.S. 473 (2000) (standards for issuing a certificate of appealability)
Miller-El v. Cockrell, 537 U.S. 322 (2003) (COA standard elaboration)
Ylst v. Nunnemaker, 501 U.S. 797 (1991) (treatment of unexplained state-court denials and imputing grounds)