Brandon Clark v. Harold Clarke
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:14-cv-00042-MFU-RSB Copies to all parties and the district court/agency. [999819468].. [14-6615]
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UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In May 2007, Brandon James Clark entered Alford pleas in a
Virginia
state
court
to
multiple
charges
arising
alleged participation in a gang-related shooting.
Carolina
v.
Alford,
400
U.S.
25
(1970)
from
his
See North
(recognizing
defendant may plead guilty while maintaining innocence).
that
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.
conviction
In
support
affidavits
of
the
and
petition,
letters
in
Clark
proffered
which
post-
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
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exhaust
state
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remedies
Pg: 3 of 17
and
concomitantly
certificate of appealability (a “COA”).
No.
7:14-cv-00042
(W.D.
“Dismissal Opinion”).
dismissal,
invoking
Va.
Feb.
10,
denied
Clark
a
See Clark v. Clarke,
2014),
ECF
No.
2
(the
Clark then sought reconsideration of the
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
sufficient
new
procedural
the
court
evidence
default.
must
of
address
actual
Unpersuaded,
Clark’s motion to reconsider.
the
issue
innocence
however,
the
of
whether
excuses
court
the
denied
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
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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
legal
because
the
facts
and
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
participation involving a juvenile.
count
of
street
gang
See Clark v. Commonwealth,
No. 1727-07-3, 2008 WL 2019561, at *1 & n.2 (Va. Ct. App. May
13,
2008).
proffered
In
a
support
confession
of
those
made
by
pleas,
prosecution
See
Clark.
the
id.
at
*1
had
n.4.
Nevertheless, “Clark introduced evidence at sentencing to deny
or minimize his involvement in the crimes.”
strategy
was
fruitless:
Although
the
See id.
state
That
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.
direct
appeal,
the
Court
of
Appeals
4
See id. at *1 & n.3.
of
Virginia
On
affirmed,
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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
See J.A. 19. 1
gang member.”
The petition acknowledged Clark’s
confession, but explained that Clark had fabricated that story
to
protect
theory.
was
younger
codefendants
and
create
a
self-defense
Before Clark entered his Alford pleas, the confession
known
eyewitnesses,
to
be
and
contradicted
it
statements to police.
was
by
retracted
physical
by
Clark
evidence
in
and
further
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.
5
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show
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that
the
uncorroborated
by
confession
other
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“was
inherently
evidence.”
See
incredible
id.
The
and
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,
overcome
procedural
bar
to
to
use
actual
federal
habeas
innocence
review,
a
to
petitioner
a
must
demonstrate that “‘it is more likely than not that no reasonable
juror
would
have
convicted
him
6
in
the
light
of
the
new
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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.’”
McQuiggin, 133 S. Ct. at 1928).
See
id.
at
25
(quoting
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
February
10,
Dismissal
2014,
Opinion
the
and
district
an
accompanying
court
summarily
Order
of
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
7
court
can
consider
the
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claims.”).
the
it
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In so doing, the district court relied on Rule 4 of
Rules
“[i]f
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Governing
plainly
Section
appears
2254
from
Cases,
the
which
petition
provides
and
any
that
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
assistance claim in the state supreme court.
district
court
denied
Clark
a
ineffective
Additionally, the
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
Corrections,
ineffective
that
under
439
F.
assistance
Sparrow
Supp.
claim
2d
v.
Director,
584
must
be
(E.D.
Department
Va.
treated
2006),
as
of
his
exhausted
because Virginia’s statute of limitations, as well as its bar on
successive
habeas
petitions,
see
Va.
Code
render a state remedy unavailable to him.
§ 8.01-654(B)(2),
As Clark explained,
Sparrow recognized that “‘[a] claim that has not been presented
to
the
highest
state
court
nevertheless
8
may
be
treated
as
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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.’”
Supp. 2d at 587).
See J.A. 47 (quoting Sparrow, 439 F.
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.’”
(quoting
Sparrow,
contended
that
439
the
F.
Supp.
court
must
2d
at
decide
See id. at 48
588).
Then,
whether,
Clark
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,
district court denied Clark’s motion to reconsider.
2014,
the
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
Reconsideration Order 1.
the
federal
habeas
petition.”
See
It was pivotal to the district court
that, “[i]n contrast, Clark has never presented a habeas claim
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the
Supreme
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Court
of
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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,
“that
we
confirmed
that
Clark
had
demonstrated
both
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.
Harold
Clarke,
Director
of
the
First, the respondent,
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
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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
procedural
of
whether
default,
as
his
well
actual
as
innocence
expiration
of
excuses
the
statute
the
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.
“a
plaintiff
without
indicate
may
prejudice
that
no
not
appeal
unless
the
the
amendment
dismissal
grounds
in
the
defects in the plaintiff’s case.”
11
for
of
his
That is,
dismissal
complaint
complaint
could
clearly
cure
the
See Domino Sugar Corp. v.
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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.
district
court,
Clark
would
have
to
pursue
To satisfy the
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
12
the
de
novo
standard
of
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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
three
barriers
of
it
is
—
Virginia
Moreover,
discretionary”).
Court
Va.
Code
of
are
Virginia’s
see
pursuit
there
assistance claim by way of a state habeas petition:
limitations,
future
that
is
ineffective
of
Clark’s
review
the
statute
to
undisputed
whose
§ 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
claim
these
is
circumstances,
properly
treated
Clark’s
not
ineffective
as
assistance
unexhausted,
but
simultaneously exhausted and procedurally defaulted.
the
lesson
attention
of
by
the
decision
Clark,
see
brought
Sparrow
to
v.
the
That is
district
Director,
as
court’s
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);
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v.
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Corcoran,
220
F.3d
Pg: 14 of 17
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
the
then
becomes
whether
there
petitioner’s procedural default.
is
an
excuse
for
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:
habeas
claim
treated
as
that to have a federal
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.”
of Resp’t 10.
See Br.
We must go farther and say that the district
court erred by not treating the ineffective assistance claim as
exhausted but procedurally defaulted.
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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
dismissal,
the
and
motion
Supreme
to
Court
reconsider
has
the
recognized
petition’s
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.”
329.
See Schlup, 513 U.S. at
And that “petitioner is entitled to have [the] actual
innocence
court.”
issue
addressed
and
disposed
of
in
the
district
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
15
a
possible
evidentiary
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hearing.
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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
district
court
engage
conduct
in
F.3d
322,
ruled
“rigorous
evidentiary
on
330
(4th
actual
Cir.
2012)
innocence
Schlup
analysis
hearing).
The
(remanding
issue,
required
but
by
Commonwealth
where
did
Wolfe”
urges
us
not
or
to
instead “simply find that [Clark’s] claimed actual innocence is
frivolous and dismiss the habeas petition.”
13.
See Br. of Resp’t
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.”
164 n.33.
See 565 F.3d at
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
commit the crimes of conviction.
attesting
that
Clark
did
not
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)
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Appeal: 14-6615
Doc: 42
Filed: 05/11/2016
Pg: 17 of 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”).
17
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