Wolfe v. Clarke

• Decision Date: 16 August 2012
• Docket Number: Nos. 11–6,11–7.,s. 11–6
• Parties: Justin Michael WOLFE, Petitioner–Appellee, v. Harold W. CLARKE, Director, Virginia Department of Corrections, Respondent–Appellant William G. Bassler; Robert C. Bundy; A. Bates Butler, III; W.J. Michael Cody; J. Joseph Curran, Jr.; Robert J. Del Tufo; W. Thomas Dillard; Conor B. Dugan; John R. Dunne; Matthew W. Friedrich; Bennett L. Gershman; John Gibbons; Isabel Gomez; Stewart Hancock; Bruce R. Jacob; Gerald Kogan; Thomas D. Lambros; David W. Ogden; Stephen M. Orlofsky; Stephanie K. Pell; H. James Pickerstein; Richard J. Pocker; Christopher S. Rhee; Jeannie S. Rhee; H. Lee Sarokin; Harry L. Shorstein; Gil M. Soffer; Thomas P. Sullivan; Richard S. Ugelow; James K. Vines; Atlee W. Wampler, III; James West; Alfred Wolin; William Yeomans, Amici Supporting Appellee. Justin Michael Wolfe, Petitioner–Appellant, v. Harold W. Clarke, Director, Virginia Department of Corrections, Respondent–Appellee William G. Bassler; Robert C. Bundy; A. Bates Butler, III; W.J. Michael Cody; J. Joseph Curran, Jr.; Robert J. Del Tufo; W. Thomas Dillard; Conor B. Dugan; John R. Dunne; Matthew W. Friedrich; Bennett L. Gershman; John Gibbons; Isabel Gomez; Stewart Hancock; Bruce R. Jacob; Gerald Kogan; Thomas D. Lambros; David W. Ogden; Stephen M. Orlofsky; Stephanie K. Pell; H. James Pickerstein; Richard J. Pocker; Christopher S. Rhee; Jeannie S. Rhee; H. Lee Sarokin; Harry L. Shorstein; Gil M. Soffer; Thomas P. Sullivan; Richard S. Ugelow; James K. Vines; Atlee W. Wampler, III; James West; Alfred Wolin; William Yeomans, Amici Supporting Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

691 F.3d 410

Justin Michael WOLFE, Petitioner–Appellee,

v.Harold W. CLARKE, Director, Virginia Department of Corrections, Respondent–Appellant

William G. Bassler; Robert C. Bundy; A. Bates Butler, III; W.J. Michael Cody; J. Joseph Curran, Jr.; Robert J. Del Tufo; W. Thomas Dillard; Conor B. Dugan; John R. Dunne; Matthew W. Friedrich; Bennett L. Gershman; John Gibbons; Isabel Gomez; Stewart Hancock; Bruce R. Jacob; Gerald Kogan; Thomas D. Lambros; David W. Ogden; Stephen M. Orlofsky; Stephanie K. Pell; H. James Pickerstein; Richard J. Pocker; Christopher S. Rhee; Jeannie S. Rhee; H. Lee Sarokin; Harry L. Shorstein; Gil M. Soffer; Thomas P. Sullivan; Richard S. Ugelow; James K. Vines; Atlee W. Wampler, III; James West; Alfred Wolin; William Yeomans, Amici Supporting Appellee.

Justin Michael Wolfe, Petitioner–Appellant,

v.Harold W. Clarke, Director, Virginia Department of Corrections, Respondent–Appellee

William G. Bassler; Robert C. Bundy; A. Bates Butler, III; W.J. Michael Cody; J. Joseph Curran, Jr.; Robert J. Del Tufo; W. Thomas Dillard; Conor B. Dugan; John R. Dunne; Matthew W. Friedrich; Bennett L. Gershman; John Gibbons; Isabel Gomez; Stewart Hancock; Bruce R. Jacob; Gerald Kogan; Thomas D. Lambros; David W. Ogden; Stephen M. Orlofsky; Stephanie K. Pell; H. James Pickerstein; Richard J. Pocker; Christopher S. Rhee; Jeannie S. Rhee; H. Lee Sarokin; Harry L. Shorstein; Gil M. Soffer; Thomas P. Sullivan; Richard S. Ugelow; James K. Vines; Atlee W. Wampler, III; James West; Alfred Wolin; William Yeomans, Amici Supporting Appellant.

Nos. 11–6, 11–7.

United States Court of Appeals,Fourth Circuit.

Argued: May 17, 2012.

Decided: Aug. 16, 2012.

ARGUED: Katherine Baldwin Burnett, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellant/Cross–Appellee. Ashley Charles Parrish, King & Spalding, LLP, Washington, D.C., for Appellee/Cross–Appellant. ON BRIEF:Kenneth T. Cuccinelli, II, Attorney General of Virginia, Matthew P. Dullaghan, Senior Assistant Attorney General, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellant/Cross–Appellee. Michele J. Brace, Virginia Capital Representation Resource Center, Charlottesville, Virginia; Daniel J. King, King & Spalding, LLP, Atlanta, Georgia; Matthew S. Owen, King & Spalding, LLP, Houston, Texas; Jane C. Luxton, Pepper Hamilton LLP, Washington, D.C.; Matthew L. Engle, Deirdre M. Enright, The Innocence Project at UVA School of Law, Charlottesville, Virginia, for Appellee/Cross–Appellant. John P. Elwood, Vinson & Elkins LLP, Washington, D.C.; Michael A. Heidler, Vinson & Elkins LLP, Austin, Texas, for Amici Supporting Appellee/Cross–Appellant.

Before KING, DUNCAN, and THACKER, Circuit Judges.

Affirmed by published opinion. Judge KING wrote the opinion, in which Judge THACKER joined. Judge DUNCAN wrote a separate opinion dissenting in part.

KING, Circuit Judge.

This matter was previously before us on appeal by 28 U.S.C. § 2254 petitioner Justin Michael Wolfe, a Virginia prisoner who was convicted of capital murder and sentenced to death by the Commonwealth in 2002. By our decision of May 11, 2009, see Wolfe v. Johnson, 565 F.3d 140 (4th Cir.2009) (“Wolfe I ”), we remanded for furtherproceedings. Specifically, Wolfe I instructed the district court to determine whether Wolfe was entitled to an evidentiary hearing and other discovery; to decide in the first instance whether, under Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), Wolfe had made a sufficient showing of actual innocence to clear any procedural bars to his constitutional claims (the “Schlup issue”); and to assess anew Wolfe's claim, among others, that the prosecution had contravened his Fourteenth Amendment due process rights, as recognized in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by suppressing favorable and material evidence (the “Brady claim”).

On remand, the district court heeded our Wolfe I mandate, authorized appropriate discovery and conducted an evidentiary hearing, and ruled in Wolfe's favor on the Schlup issue and his Brady and two additional claims. By its judgment of August 30, 2011, the court vacated Wolfe's capital murder and other convictions, and ordered the Commonwealth to either retry him within 120 days or release him unconditionally from custody. The judgment was stayed pending this appeal by the Commonwealth, which was initiated on its behalf by respondent Harold W. Clarke, Director of the Virginia Department of Corrections.¹ The Commonwealth challenges the remand proceedings from start to finish, contending that the district court repeatedly and fatally erred in its procedural and substantive rulings. Because we readily conclude, however, that the court's award of habeas corpus relief on Wolfe's Brady claim was not marred by any error, we affirm the judgment.

I.

A.

As more fully detailed in our Wolfe I decision, a Prince William County jury found Wolfe guilty in 2002 of capital murder, using a firearm in the commission of a felony, and conspiring to distribute marijuana. See Wolfe I, 565 F.3d at 149. The trial court sentenced Wolfe to death for the murder, plus consecutive terms of three years for the firearm offense and thirty years for the drug conspiracy. Id. The murder conviction was premised on evidence that Wolfe, then a nineteen-year-old marijuana dealer in northern Virginia, hired his close friend and fellow drug dealer Owen Barber IV to murder drug supplier Daniel Petrole in March 2001. Id. at 144–45 & n. 2 (explaining that “Virginia defines ‘capital murder,’ in pertinent part, as ‘[t]he willful, deliberate, and premeditated killing of any person by another for hire’ ” (quoting Va.Code Ann. § 18.2–31(2))). Significantly, “Barber was the prosecution's key witness,” in that he was “the only witness to provide any direct evidence regarding the ‘for hire’ element of the murder offense and the involvement of Wolfe therein.” Id. at 144. In exchange for Barber's testimony that he was Wolfe's hired triggerman, the Commonwealth dismissed its capital murder charge against Barber, and he pleaded guilty to non-capital murder. Barber was sentenced to sixty years in prison, of which twenty-two years were suspended. Id. at 144 n. 1.

In November 2005, after failing to obtain relief from his convictions on direct appeal and in state habeas corpus proceedings, Wolfe filed his initial 28 U.S.C. § 2254 petition in the district court. See Wolfe I, 565 F.3d at 149–51. It was only thereafter, on December 14, 2005, that Barber executed an affidavit repudiating his trial testimony and exculpating Wolfe from the murder-for-hire scheme. Id. at 144, 151. Within a single day, Wolfe filed an amended § 2254 petition, along with an appendix of supporting materials, including additional affidavits corroborating the Barber affidavit and suggesting that the prosecution had suppressed evidence that should have been disclosed to the defense. Id. at 151. The amended petition raised, inter alia, the Schlup actual innocence issue, thereby asserting a second ground to excuse any procedural default of Wolfe's constitutional claims—the previously asserted first ground having been the separate “cause and prejudice” standard. Id. at 154, 158 & n. 27. In April 2006, while the amended petition and related procedural issues were pending before the magistrate judge, Wolfe notified the court that Barber sought to repudiate the statements in his 2005 affidavit exculpating Wolfe. Id. at 155–56. In conjunction with that notice, Wolfe's lawyers requested an evidentiary hearing to resolve credibility issues, plus discovery into the prosecution's compliance with its Brady obligations. Id. at 156.

In August 2007, the magistrate judge issued his report, rejecting Wolfe's request for an evidentiary hearing, deeming the Barber and other affidavits to lack credibility, and recommending the dismissal of Wolfe's amended petition on the ground that the claims asserted therein were meritless, had been procedurally defaulted, or both. See Wolfe I, 565 F.3d at 156 & n. 25. Although Wolfe spelled out a lengthy series of objections to the magistrate judge's report, the district court, by its decision of February 11, 2008, adopted the report as its own and dismissed Wolfe's petition. Id. at 158–59 (explaining, inter alia, that the court did not address the Schlup issue, but “considered (and rejected) Wolfe's contention that his procedural defaults were excused under the cause and prejudice standard” (internal quotation marks omitted)). After the court declined to alter or amend its decision, we granted Wolfe a 28 U.S.C. § 2253(c) certificate of appealability on his Brady and three other claims. Id. at 159. And, as explained above, we ultimately remanded with instructions for the court to determine Wolfe's entitlement to an evidentiary hearing and other discovery, to decide the Schlup issue in the first instance, and to freshly assess the Brady and two additional claims. Id. at 171. We also advised the court that it was free to revisit its cause and prejudice ruling. Id. at 165 n. 35.

B.

Without explicitly reconsidering its prior cause and prejudice ruling, the district court decided the procedural Schlup issue early in the remand proceedings, by its opinion and order of February 4, 2010. See Wolfe v. Clarke, No. 2:05–cv00432 (E.D.Va. Feb. 4, 2010) (the “ Schlup Order”). ² The court therein determined, largely on the existing Wolfe I record, that Owen Barber's (subsequently disavowed) recantation of his trial testimony was sufficiently corroborated to “raise doubt in a reasonable juror's mind about the circumstances of the night of the [Daniel Petrole] murder.” Schlup Order 10. Indeed—weighing the “two stories of what occurred on the night of the murder, both with hearsay corroboration[,] and almost no other evidence that would support one version over another”—the court concluded that it was “more likely than not that no reasonable juror would have...