BRIAN DAMON FARABEE v. HAROLD W. CLARKE, Director of the VA DOC; JACK BARBER, Commissioner of the DBHDS; BRIAN DAMON FARABEE v. HAROLD W. CLARKE, Director of the VA DOC; BRIAN DAMON FARABEE v. SUPERINTENDENT, Meherrin River Regional Jail; VIRGINIA DEPARTMENT OF CORRECTIONS; COMMISSIONER, of the DBHDS
No. 18–6648
No. 18–7225
No. 18–7228
United States Court of Appeals for the Fourth Circuit
July 22, 2020
PUBLISHED. Submitted: May 8, 2020. Appeals from the United States District Court for the Eastern District of Virginia, at Norfolk. Mark S. Davis, Chief District Judge. (2:16-cv-00268-MSD-JFA; 2:16-cv-00661-MSD-LRL; 2:15-cv-00256-MSD-LRL)
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 18–6648
BRIAN DAMON FARABEE,
Petitioner – Appellant,
v.
HAROLD W. CLARKE, Director of the VA DOC; JACK BARBER, Commissioner of the DBHDS,
Respondents – Appellees.
No. 18–7225
BRIAN DAMON FARABEE,
Petitioner – Appellant,
v.
HAROLD W. CLARKE, Director of the VA DOC,
Respondent – Appellee.
No. 18–7228
BRIAN DAMON FARABEE,
Petitioner – Appellant,
v.
SUPERINTENDENT, Meherrin River Regional Jail; VIRGINIA DEPARTMENT OF CORRECTIONS; COMMISSIONER, of the DBHDS
Respondents – Appellees.
Appeals from the United States District Court for the Eastern District of Virginia, at Norfolk. Mark S. Davis, Chief District Judge. (2:16-cv-00268-MSD-JFA; 2:16-cv-00661-MSD-LRL; 2:15-cv-00256-MSD-LRL)
Submitted: May 8, 2020 Decided: July 22, 2020
Before GREGORY, Chief Judge, WYNN, Circuit Judge, and Kenneth D. BELL, United States District Judge for the Western District of North Carolina, sitting by designation.
Vacated and remanded by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Wynn and Judge Bell joined.
Mark W. Mosier, Jordan L. Moran, Adam L.D. Stempel, COVINGTON & BURLING LLP, Washington, D.C., for Appellant. Mark R. Herring, Attorney General, Victoria N. Pearson, Deputy Attorney General, Eugene P. Murphy, Senior Assistant Attorney General, Toby J. Heytens, Solicitor General, Martine E. Cicconi, Deputy Solicitor General, Michelle S. Kallen, Deputy Solicitor General, Zachary R. Glubiak, John Marshall Fellow, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Riсhmond, Virginia, for Appellees.
This consolidated appeal relates to the dismissal of Brian Damon Farabee‘s three habeas petitions. Farabee has a long and tragic history of mental illness and has been in and out of various mental institutions and prisons—unfortunately, mostly in prisons—since he was ten. In 1999, Virginia accepted responsibility for Farabee‘s mental treatment and physical care after he was acquitted of an arson charge by reason of insanity. Farabee contends that, in the two decades since, Virginia has not fulfilled its responsibilities. Instead, it has cycled him between numerous prisons (where care has been denied) and dozens of psychiatric facilities (where care has been inadequate). He alleges that as far back as 2005, Virginia put him in an escapable quarry—finding him to be simultaneously too sane to avoid incarceration when his mental illness manifests physically and not sane enough to live outsidе a psychiatric facility. He is now 41, and still seeks a remedy. Today, we make the unremarkable finding that Virginia‘s alleged constitutional violations were sufficiently pled in Farabee‘s petitions. He deserves, finally, to have the opportunity to present his claims that he was denied the legal process he is due and the medical treatment he needs. For the following reasons, we vacate the dismissals of Farabee‘s claims and remand for further proceedings.
I.
This consolidated appeal concerns three habeas petitions Farabee filed in the district court. First, in June 2015, Farabee filed a petition pursuant to
A.
Farabee has an extensive and tragic history of mental illness and a difficult relationship with the Virginia Department of Corrections (VDOC). See generally Farabee v. Yaratha, 801 F. App‘x 97 (4th Cir. 2020); Farabee v. Johnson, 129 F. App‘x 799 (4th Cir. 2005). He endured years of drug and physical abuse, began to self-harm at age 10, and entered a psychiatric institution at around the same age. Between ages 12 and 13, he also experienced stretches of homelessness. And since Farabee was 13 years old, he has been continually confined in hospitals or correctional facilities.
In 1998, at age 20, Farabee was a patient at Eastern State Hospital and attempted to commit suicide by barricading himself in his room and setting fire to his bed sheets. Virginia then charged him with arson and destruction of property. To assess Farabee‘s
In March 2000, shortly after his commitment, Farabee was charged with—and later pled guilty to—two counts of malicious wounding. The state court sentenced Farabee to 20 years in prison, suspending all but three years and 4 months and placing him on supervised probation for 20 years. In 2002, while serving his sentence аt Sussex I State Prison, Farabee was again charged with malicious wounding for an altercation involving another inmate. At sentencing, though Farabee asked the court to commit him, the court instead could not find any clear and convincing evidence that Farabee was mentally ill and no determination of insanity [had] been made at the time of sentencing. J.A. 182. Accordingly, the court sentenced Farabee to 10 years in prison for this malicious wounding
B.
In April 2015, Virginia moved in state court to revoke Farabee‘s suspended sentence from 2000—the two counts of malicious wounding—for an alleged violation of his conditions of supervised release. In a violation letter, Farabee‘s probation officer stated that Farabee had recently been convicted of misdemeanor assault and battery in Central State Hosрital.3 The state court then ordered Farabee to show cause why his suspended sentence should not be revoked and, shortly after the order to show cause was issued, appointed Linda Tomlin to represent him in revocation proceedings.4 Tomlin promptly moved for a competency hearing, and the court appointed Dr. Evan Nelson to prepare an evaluation. Farabee apparently declined to come to the court-ordered forensic psychological interview . . . as he had refused many times before, so Dr. Nelson prepared an evaluation on a record review only. J.A. 543, 548.
Specifically, Dr. Nelson determined that Farabee‘s chart notes were abundant and indicated an intelligent man who could parse a situation, decide on a goal, and act up to manipulate to get what he wanted. J.A. 548. Dr. Nelson also found no indications in the
On August 11, 2015, the day before the competency hearing, Virginia filed an addendum to the violation letter. In the addendum, Virginia listed additional instances between August 2014 and July 2015 in which Farabee had allegedly violated his probation terms by failing to keep the peace, be of good behavior, and obey all laws while he was committed at Central State Hospital. J.A. 550–53. These instances included the following: (1) on August 15, 2014, Farabee assaulted a human rights advocate who was visiting; (2) on October 23, 2014, he assaulted [a] Central State Hospital worker; (3) on March 30, 2015, he destroyed property [eyeglasses] belonging to [a] nurse; and (4) on July 20, 2015, while being trаnsported to court in a sheriff‘s deputy‘s vehicle, he urinated and evacuated his bowels in the vehicle. Id.
According to Farabee, before and during the competency hearing, Tomlin failed to adequately represent him in numerous ways. He wrote, in relevant parts, as follows:
Ms. Tomlin lied to this Court on August 12th, 2015 and stated that the defendant refused to answer her telephone calls. This Court found the defendant to be competent based on these false allegations when in fact it was Ms. Tomlin that has been refusing to answer the defendants [sic] phone calls and faxes from both him, his family and friends on multiple occasions. Ms. Tomlin adamantly refused to answer or return phone calls or to meet with or discuss a defense on behalf of the defendant; nor will she request or seek to obtain his hospital records that refutes [sic] the commonwealth‘s clinician, Dr. Nelson‘s statements . . .
Most tellingly, Farabee moved to substitute Tomlin for another counsel and explained that the attorney-client relationship had deteriorated beyond repair. The court denied the motion to substitute counsel and, based in part on Dr. Nelson‘s evaluation, found Farabee competent to answer to the charges against him. With Farabee‘s competency determined, the court scheduled a final revocation hearing for October 14, 2015.
On October 13, 2015, the day before the final revocation hearing, Virginia informed the court that it sought to amend the violation letter a second time. In that amended letter, Virginia alleged for the first time that Farabee‘s 2003 conviction for malicious wounding violated the terms of his probation imposed in 2000. After receiving Virginia‘s notice, the court rescheduled the final revocation hearing for November 20, 2015. While Virginia notified the court of the second amended violation letter, Farabee was unaware of it and expected to defend only his conduct at Central State Hospital between 2014 and 2015. According to Farabee, he was caught unaware as Tomlin had not returned any of his calls, visited him in person, or sent him any legal mail in the weeks leading up to the final revocation hearing.
Instead, Tomlin stated she believed Farabee was in violation of his good behavior based solely on the conviction stated in Virginia‘s second amended violation letter. With no evidence presented or witnesses called, Tomlin asked for leniency. She explained to the court that Farabee was still very much mentally impaired . . . [and] under [a civil] commitment order and would be better off in the mental health system. J.A. 204.
The court then invited Farabee to speak. Farabee first reiterated his inadequate defense, noting that witnesses were not called to refute Virginia‘s negative portrayal of him. He then argued Virginia was improperly seeking to revoke his probation based on an incident that occurred in 2002 and a conviction for which he had already served 10 years in prison. He also contended he had a justifiable defense to present—that the altercation involved a fight with another inmate who carried a knife and Farabee was acting in self-
After reviewing the record and listening to the arguments, the court determined Farabee had violated his probation terms. The court acknowledged there may have been a justifiable defense available to Farabee, such as the knife found on the inmate, but the fact that Farabee eloquently presented himself and his arguments undermined his claim for incompetence and leniency. The court then revoked all of the previously suspended sentence—16 years and eight months5—for the malicious wounding charges, resuspended 10 years, and ordered that Farabee serve another six years and eight months in prison. Farabee timely appealed this revocation order to the Virginia Court of Appeals.
On April 15, 2016, Tomlin filed an Anders brief on appeal—incorrectly referencing the name of another client several times—and petitioned to withdraw her representatiоn of Farabee. On his own, Farabee filed a brief and made several unsuccessful arguments. First, he argued that Virginia violated due process by (1) revoking his suspended sentence when he was subject to a civil commitment order and VDOC was unable to provide him with adequate treatment, (2) failing to notify him of its intention to proceed on the 2003 conviction prior to the final revocation hearing, and (3) relying on the stale 2003 conviction in violation of his speedy trial rights. Virginia‘s Court of Appeals, however, declined to
Accordingly, on September 29, 2016, the Virginia Court of Appeals denied Tomlin‘s petition and rejected all of the arguments raised by Farabee. He did not seek review in the Virginia Supreme Court.
C.
Farabee instead filed two habeas petitions in state court. The first was filed in May 2015, prior to the final revocation hearing, and the second in November 2016, following the denial of his direct appeal. In these two habeas petitions, Farabee raised many of the same claims that had been raised and rejected in his direct appeal. The Virginia Supreme Court denied the two petitions in December 2016 and July 2017, respectively.
As to Farabee‘s due process rights claims, the Virginia Supreme Court concluded they were not cognizable in a petition for a writ of habeas corpus . . . [since] the issue was raised at trial and rejected on direct appeal or were improperly raised since a habeas petition may not be employed as a substitute for an appeal. J.A. 127, 175–78 (citations omitted). Concerning Farabеe‘s ineffective assistance of counsel claim, the Virginia Supreme Court found that Farabee had no constitutional right to counsel in his revocation proceedings since the record, including the transcript of the revocation proceeding, demonstrate[d] that there [was] no question [Farabee] violated his probation by incurring
As previously mentioned, Farabee then filed three federal habeas petitions in the district court, all of which the magistrate judge recommended dismissal. First, on February 12, 2018, the magistrate judge recommended dismissal of the
Second, on July 3, 2018, the magistrate judge recommended dismissal of Farabee‘s first
Farabee timely appealed all three dismissals. We consolidated the three appeals, appointed counsel, and granted a certificate of appealability on the following four questions:
- Whether Farabee had a due process right to counsel in his revocation proceedings;
- [W]hether [Farabee‘s] due process rights were violated by inadequate notice of the basis for the revocation, by the state‘s undue delay in seeking revocation based on the violation, or by his incarceration in prison when he was previously adjudged not guilty by reason of insanity and civilly committed to receive treatment in a mental health hospital;
- [W]hether [Farabee] can show cause and prejudice or a miscarriage of justice to excuse his procedural default of any potentially meritorious claims; and
- [W]hether the district court erred in dismissing [Farabee‘s] second
§ 2254 petition as successive when it was filed before his first§ 2254 petition was adjudicated.
We review de novo a district court‘s dismissal of a habeas petition. Grueninger v. Dir., Va. Dep‘t of Corr., 813 F.3d 517, 523 (4th Cir. 2016). Where, as here, a district court dismisses a petition without an evidentiary hearing or discovery,6 we evaluate its underlying allegations pursuant to the principles of
III.
Because the fourth question presented in the certificate оf appealability is a threshold issue, we consider it first. Both parties properly recognize on the fourth question presented that the district court erred in dismissing Farabee‘s second
The Supreme Court has declined to interpret second or successive as referring to all
A.
We first consider the question of Farabee‘s right to counsel in his revocation proceedings. He contends he had substantial affirmative defenses that could have been raised in response to Appellees’ asserted violations—as well as Dr. Nelson‘s competency evaluation and the prospect of revocation—but these defenses were complex and difficult to develop without the assistance of counsel. Farabee also points out he had mitigation defenses, such as the fact that he had been heavily medicated on psychotropic drugs when he originally pled guilty to the two counts of malicious wounding in 2000. He emphasizes that he is no ordinary probationer, but instead is a man with a seventh-grade education who suffers from severe mental illness who is unablе to adequately present his case from behind the walls of the psychiatric hospital.
Appellees, to the contrary, insist that Farabee had no due process rights to counsel in his revocation proceedings. That is so, Appellees contend, for two reasons: first, Farabee unquestionably violated the probation terms on the 2000 conviction by incurring a new conviction in 2003, and second, he identified no specific mitigating circumstances or complex reasons why revocation was inappropriate. Appellees further reason that to the extent he now believes he has affirmative or mitigation defenses, these points are irrelevant because Farabee cannot relitigate his prior conviction. Any evidence that could have (or should have) been presented in [his] state habeas petition . . . was not. Response Br. at 38–43. We disagree.
[A]fter being informed of his right to request counsel, the probationer or parolee makes such a request, based on a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present.
Here, we find that Farabee has satisfied the criteria articulated in Gagnon to entitle him to counsel in the revocation proceedings. Appellees vastly devalue the difficulty and complexity of Farabee‘s revocation and the potential importance of the evidence he sought to present. If, for example, Farabee were able to show that the conduct underlying his
Moreover, contrary to Appellees’ suggestion, Farabee‘s right to counsel at his revocation proceedings is not dependent on his likelihood of success on the merits. Rather, the relevant inquiry is whether he required assistance of counsel because he raised colorable claims that were complex or otherwise difficult to develop or present, which we conclude he did. See Gagnon, 411 U.S. at 790. As Farabee explains, he wanted, but was unable, to present evidence of his mental state and medication regime from 2000 to 2002 to demonstrate his diminished capacity; call an inmate and an investigator who could testify that the inmate he allegedly assaulted in 2002 had brandished a weapon; put on evidence that he had been abused and neglected at Central State Hospital; put on testimony from a clinical psychologist . . . to explain how Virginia officials had failed to
We simply find that Farabee need not show likelihood of success on the merits, regardless of whether the court could or should have revoked his probation and what punishment it could or should have instead imposed. See United States v. Dodson, 25 F.3d 385, 389 (6th Cir. 1994) ([W]e conclude that defendant was entitled to representation by counsel at the final revocation hearing because there are substantial reasons which justify or mitigate his probation violations and these reasons are sufficiently complex or difficult to develop or present.). Appellees’ position fails to recognize that a probationer‘s constitutional right to counsel, as here, necessarily includes the constitutional right to have counsel perform her duties on behalf of her client, as Farabee contends was not the case.
Accordingly, we conclude Farabee had a due process right to counsel in his revocation proceedings.
B.
Next, we turn to whether Farabee adequately alleged his due process rights were violаted by (1) inadequate notice of the basis for revoking his suspended sentence, (2) undue delay in seeking revocation based on the violation, or (3) incarceration when he was previously adjudged not guilty by reason of insanity and civilly committed to receive treatment in a mental health hospital. We address each claim in turn.
1.
First, on inadequate notice, Farabee states that when he appeared at the revocation proceeding on November 20, 2015, he expected to defend his conduct at Central State
Both parties appropriately recognize that a probationer, like Farabee, has a right to advance written notice of the claimed violations of his probation. See Black v. Romano, 471 U.S. 606, 612 (1985). As the Supreme Court determined, [p]art of the function of the notice is to give the charged party a chance to marshal the facts in his defense and to clarify what the charges are, in fact. Wolff v. McDonnell, 418 U.S. 539, 564 (1974); see also D‘Amato v. U.S. Parole Comm‘n, 837 F.2d 72, 77 (2d Cir. 1988) (recognizing that, where the state fails to provide advance notice, a probationer has no opportunity to prepare to contest or explain matters relating to the charged offense).
Certainly, a client is usually bound by counsel‘s actions since counsel acts as the client‘s agent. See Maples v. Thomas, 565 U.S. 266, 281 (2012). However, a markedly different situation is presented . . . when an attorney abandons his client. Id. at 281. In such a situation, as Farabee asserts here, an attorney no longer acts . . . as the client‘s representative . . . [and] [h]is acts therefore cannot fairly be attributed to the client. Id. (internal quotation marks and brackets omitted).
To be sure, it is not our role to speculate what action [the state court] would have taken if proper notice had been furnished with respect to [second amended violation letter] and if [Farabee] had had the opportunity to prepare and present mitigating evidence in rebuttal. See United States v. Taylor, 540 F.2d 1156, 1160 (2d Cir. 1976). We simply find due process guarantees Farabee an advanced written notice of the claimed violations of his probation, which he did not receive. Gagnon, 411 U.S. at 786. Thus, we conclude Farabee has adequately alleged this claim, and the district court erred in dismissing it.
Second, we turn to Farabee‘s claim that Virginia‘s unreasonable delay in prosecuting his 2003 charges as part of the revocation proceedings in 2015 violates his due process rights. According to him, Virginia does not need to seek to revoke his probation immediately upon learning of the alleged charges. But doing so after more than a decade is unreasonable,9 since it undermines Farabee‘s ability to proffer affirmative or mitigating evidence.
In response, Appellees contend Farabee‘s undue delay claim fails since he cannot show unreasonableness or prejudice. According to Appellees, Virginia‘s actions in 2015 in seeking to revoke Farabee‘s probation from 2003 were entirely within the bounds of the discretion afforded to probation officers as to when to initiate revocation proceedings. Regardless, Appellees continue, any delay in seeking revocation does not prejudice Farabee where the violation was established by a prior criminal conviction. We disagree.
Whether a state‘s delay in seeking revocation of a suspended sentence offends due process is a function of reasonableness and prejudice. See Gaddy v. Michael, 519 F.2d 669
Here, we conclude that Farabee has alleged sufficient facts tо show an unreasonable delay. As previously discussed, the altercation prompting the malicious wounding charges in question occurred in March 2002, and Farabee was convicted in October 2003. At the time of the revocation proceeding in 2015, Virginia had been aware of Farabee‘s conviction for over a decade. We have little trouble concluding that such a delay is unreasonable. Indeed, numerous courts have concluded that delays significantly shorter than the delay presented here violate a probationer‘s due process rights. See, e.g., United States v. Tyler, 605 F.2d 851, 852–53 (5th Cir. 1979) (one to two years); Hamilton, 708 F.2d at 1415 (Three years is beyond that point [of reasonability] under the circumstances of this case.).
We also find that Farabee was prejudiced by the unreasonable delay of over a decade. The length of time frustrated Farabee‘s ability to obtain relevant evidence, such as testimony from witnesses, relevant evidence related to the 2002 conviction, and important medical records. He never had that opportunity and was unable to mount any, let alone an adequate, defense. Such an unreasonable delay may frustrate a defendant‘s
3.
Third, we turn to Farabee‘s claim that the revocation of his probation violated his substantive due process rights. Specifically, he contends that rather than providing him the necessary medical care long recommended by treating psychologists and psychiatrists, Virginia instead used a stale violation to re-incarcerate him into conditions that further erode his physical and mental health. Virginia‘s revocation, he continues, violated his substantive due process rights because he is in prison where officials insist on treating his illness with medication and his behavior with solitary confinement—modalities that do nothing for his illness and only aggravate his instincts for self-harm and harm to others. Opening Br. at 50.
Appellees, contending otherwise, maintain that Farabee may not challenge the conditions of confinement because they were based on sound professional judgment given his behavior and the circumstances. Instead of filing a habeas petition, he should have brought an action under
Due process affords Farabee a right to adequate food, shelter, clothing, and medical care . . . [and to] safety and freedom from bodily restraint. Youngberg v. Romeo, 457 U.S. 307, 315–18 (1982) (emphasis added). Neither involuntary commitment nor lawful confinement, even for penal purposes, terminate these rights. Id. at 315; see also Thomas S. v. Morrow, 781 F.2d 367, 374 (4th Cir. 1986) (extending these rights to those sentenced
Under thе circumstances here, Virginia, by committing Farabee, undertook the responsibility to provide him with adequate medical care but failed to do so, instead opting to incarcerate and reincarcerate him for the past two decades. Farabee has sufficiently alleged that state officials long denied him the one treatment—dialectical behavior therapy (DBT)—recommended by professional medical personnel. Indeed, in a separate appeal, Yaratha, 801 F. App‘x at 100, another panel recognized that it was undisputed that Farabee had asked for but never received DBT despite the recommendations of two psychologists and a psychiatrist.
We, of course, recognize that appeal was a
We have previously found that federal habeas jurisdiction exists to review the complaint of a federal prisoner who is challenging not the validity of his original conviction, but the imposition of segregated confinement without elementary procedural due process and without just cause. McNair v. McCune, 527 F.2d 874, 875 (4th Cir. 1975); see Varela v. Whalen, 946 F.2d 888, 888 (4th Cir. 1991) (table) (Varela‘s first two claims, alleging that he was convicted of disciplinary infractions without just cause and placed in segregation, raise a McNair issue. . . . This allegation is sufficient to invoke jurisdiction under
Accordingly, we conclude that Farabee has adequately stated a substantive due process claim, and it was error for the district court to dismiss it.
C.
We finally turn to whether the procedural default doctrine bars review of Farabee‘s claims. He contends that he can show cause and prejudice necessary to excuse any procedural default and that failing to excuse any procedural default would result in a fundamental miscarriage of justice. We agree.
A court may excuse a procedural default for cause and prejudice, or if a fundamental miscarriage of justice would result from failure to do so. Mueller v. Angelone, 181 F.3d 557, 584 (4th Cir. 1999); see Harris v. Reed, 489 U.S. 255, 262 (1989) (excusing procedural default when habeas petitioner can show cause and prejudice or if failure to consider the claim would result in a fundamental miscarriage of justice). The existence of cause for procedural default ordinarily turn[s] on whether [a] petitioner can show that some objective factor external to the defense impeded [his] efforts to comply
For many of the reasons already discussed—such as inadequate notice, undue delay, and the potential viability of mitigation evidence—Farabee has established enough facts to show prejudice in order to excuse any procedural default. Moreover, prejudice is presumed when, as alleged here, Farabee‘s counsel entirely fails to subject the prosecution‘s case to meaningful adversarial testing. See United States v. Cronic, 466 U.S. 648, 659 (1984); see also Maples, 565 U.S. at 282–83 (holding that counsel‘s near-total failure to communicate with petitioner or to respond to petitioner‘s many inquiries and requests was tantamount to abandonment and enough to lift the state procedural bar to his federal petition) (citation omitted). Even absent cause and prejudice, we conclude a fundamental miscarriage of justice would result if Farabee werе not allowed to move forward in challenging Virginia‘s revocation of his suspended sentence. See Schlup v. Delo, 513 U.S. 298, 317 (1995) (concluding that a review of the merits of the constitutional claims is justified if a court was merely convinced that . . . new facts raised sufficient doubt about [a petitioner‘s] guilt to undermine confidence in the result).
Thus, we conclude Farabee has plausibly alleged enough facts to excuse any procedural default.
IV.
For the foregoing reasons, we vacate the district court‘s dismissals and remand for proceedings consistent with this opinion. On remand, the district court is instructed to
VACATED AND REMANDED