Wolfe v. Clarke

• Citation: 819 F.Supp.2d 538
• Decision Date: 26 July 2011
• Docket Number: Civil Action No. 2:05cv432.
• Parties: Justin Michael WOLFE, Petitioner, v. Harold W. CLARKE, Director, Virginia Department of Corrections,1 Respondent.
• Court: U.S. District Court — Eastern District of Virginia

819 F.Supp.2d 538

Justin Michael WOLFE, Petitioner,

v.Harold W. CLARKE, Director, Virginia Department of Corrections,1 Respondent.

Civil Action No. 2:05cv432.

United States District Court, E.D. Virginia,Norfolk Division.

July 26, 2011.

James Griffin, Alan Dial, Brian Meiners, King & Spalding, Washington, DC, Michele Jill Brace, Virginia Capital Representation Resource Center, Charlottesville, VA, Daniel James King, King & Spalding LLP, Atlanta, GA, for Petitioner.

Matthew P. Dullaghan, Steven Andrew Witmer, Office of the Attorney General, Richmond, VA, for Respondent.

AMENDED MEMORANDUM OPINION AND ORDER

RAYMOND A. JACKSON, District Judge.

This matter is before the Court on Petitioner Justin Michael Wolfe's (“Wolfe” or “Petitioner”) petition for habeas relief under 28 U.S.C. § 2254. Petitioner alleges that he has been imprisoned in violation of his due process rights under Brady v. Maryland and Giglio v. United States. Petitioner further alleges that the trial court contravened the Sixth and Fourteenth Amendments by striking venireman Mock from the jury panel despite the fact that he was “plainly able and qualified to serve as a juror.” Wolfe v. Johnson, 565 F.3d 140, 148 (4th Cir.2009). For the reasons stated herein, Petitioner's request for habeas relief is GRANTED.

I. FACTUAL AND PROCEDURAL HISTORY ²

On January 7, 2002, a Prince William County jury convicted Petitioner of capital murder (murder-for-hire), use of a firearm in the commission of a felony, and conspiracy to distribute marijuana. As a result of his convictions, Petitioner was sentenced to death on the murder-for-hire charge and prison terms of thirty years and three years, respectively, on the conspiracy and firearm charges. Petitioner filed an appeal in the Supreme Court of Virginia on the capital murder conviction ³ and filed an appeal in the Virginia Court of Appeals on the firearm and drug convictions. The non-death penalty cases were certified to the Supreme Court of Virginia and consolidated. The Supreme Court of Virginia dismissed the petition on March 10, 2005 and the United States Supreme Court denied Wolfe's petition for writ of certiorari on July 8, 2005.

On November 7, 2005, Petitioner filed his federal habeas petition under authority of 28 U.S.C. § 2254 (“§ 2254 claim”). On August 7, 2007, the Magistrate Judge issued a Report and Recommendation declining to conduct an evidentiary hearing and recommending that his petition be dismissed. On February 11, 2008, this Court adopted the Report and Recommendation and dismissed Wolfe's petition. Petitioner then filed a motion to alter or amend the judgment which this Court denied on May 20, 2008. On June 18, 2008, Petitioner filed his notice of appeal. On September 12, 2008, the United States Court of Appeals for the Fourth Circuit granted Petitioner a certificate of appealability on his extraneous influence, venireman, Brady, and Giglio claims. On May 11, 2009, the United States Court of Appeals for the Fourth Circuit affirmed the district court's rulings on the extraneous influence claim and the venireman-counsel subpart, and vacated this Court's ruling on the Brady, Giglio, and venireman-court subpart claims. Wolfe v. Johnson, 565 F.3d 140 (4th Cir.2009). Additionally, the United States Court of Appeals for the Fourth Circuit remanded the case for a determination under Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) and to decide whether an evidentiary hearing was appropriate. Id. On February 4, 2010, this Court issued a Memorandum Opinion and Order finding that Petitioner had satisfied the Schlup v. Delo standard to pursue his § 2254 claim. Furthermore, the Court granted Petitioner's Motion for an Evidentiary Hearing on his Brady and Giglio claims and reserved its ruling on Petitioner's venireman-court claim. The Court conducted an evidentiary hearing on Petitioner's Brady and Giglio claims on November 2, 2010.⁴ At the conclusion of the hearing, the Court ordered both parties to submit proposed findings of fact and conclusions of law. Both parties submitted proposed findings of fact and conclusions of law on January 18, 2011.

On April 22, 2011, Petitioner also filed a Motion for Leave to Amend Petition for Habeas Corpus to include a new legal argument regarding key government witness, Owen Barber's, false testimony at trial. The Director filed a response in opposition to the motion on May 4, 2011; and Petitioner filed a reply in support on May 5, 2011. Having been fully briefed, these matters are now ripe for judicial determination.

II. LEGAL STANDARD

Title 28 U.S.C. § 2254 states that “the Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.”

A. Legal Standard under Brady v. Maryland and Giglio v. United States

The Supreme Court has held that both the withholding of exculpatory evidence from a criminal defendant by a prosecutor and the knowing use of false testimony violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution. See Brady v. Maryland, 373 U.S. 83, 86, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Giglio v. United States, 405 U.S. 150, 153–55, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). “[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87, 83 S.Ct. 1194. “Evidence is ‘exculpatory’ and ‘favorable’ if it ‘may make the difference between conviction and acquittal’ had it been ‘disclosed and used effectively.’ ” United States v. Wilson, 624 F.3d 640, 661 (4th Cir.2010) (citing United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). For a court to find a Brady violation, it must determine that the evidence was 1) favorable to the accused, 2) suppressed by the prosecution (either willfully or inadvertently), and 3) material. Banks v. Dretke, 540 U.S. 668, 691, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004). Evidence that is favorable to the accused includes both exculpatory (whether requested by defendant or not) and impeachment evidence. Id.; see United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (holding that the Brady rule includes impeachment evidence).

In analyzing materiality, courts must determine whether there is a “reasonable probability” that the result of the proceeding would have been different if the evidence had been disclosed. Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). This showing “does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal.” Id. (citing United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). Rather, a petitioner can fulfill the materiality standard by showing that the cumulative effect of the suppressed evidence “could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” ⁵ Id. at 435–437, 115 S.Ct. 1555. This cumulative effect analysis emphasizes the fact that when making a materiality finding, courts should consider the suppressed evidence collectively, rather than judging the materiality of each item of suppressed evidence. Id. at 436, 115 S.Ct. 1555; see id. at 437, n. 10, 115 S.Ct. 1555 (“We evaluate the tendency and force of the undisclosed evidence item by item; there is no other way. We evaluate its cumulative effect for the purposes of materiality separately and at the end of the discussion.”).

B. False Testimony as Grounds for Habeas Relief

Knowing use of false testimony violates due process. Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). This rule applies regardless of whether the false testimony is solicited, or merely allowed to stand uncorrected after it appears. Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). Non-disclosure of evidence affecting credibility also falls within this rule “when the ‘reliability of a given witness may well be determinative of guilt or innocence.’ ” Giglio, 405 U.S. at 154, 92 S.Ct. 763 (quoting Napue v. Illinois ). As with an alleged Brady violation, a finding of materiality is required to show that “there is any reasonable likelihood that the false testimony could have affected the judgment of the jury” in order for a petitioner to receive habeas relief. Id.; see Napue, 360 U.S. at 271, 79 S.Ct. 1173. Courts have similarly concluded that petitioners may receive habeas relief based on the use of false testimony when a petitioner shows that government officers knew about the falsities in the testimony at the time of the trial; and, when there is evidence, such as a credible recantation, indicating that the testimony was in fact false. Stockton v. Virginia, 852 F.2d 740, 749 (4th Cir.1988).

C. Dismissal of a qualified venireman for cause under Witherspoon v. Illinois

Capital defendants have a right to a fair and impartial jury under the Sixth and Fourteenth Amendments. Gray v. Mississippi, 481 U.S. 648, 658, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987). In ensuring this right, courts have held that a death sentence cannot stand when a trial court “excludes from a capital jury a prospective juror who in fact is qualified to serve.” Id. at 650–651, 107 S.Ct. 2045. This rule includes veniremen who are dismissed for cause “simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” Witherspoon v. Illinois, 391 U.S. 510, 522, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); see also Wainwright v. Witt, 469...