Wolfe v. Clarke

Decision Date22 May 2013
Docket NumberNo. 12–7.,12–7.
Citation718 F.3d 277
PartiesJustin Michael WOLFE, Petitioner–Appellee, v. Harold W. CLARKE, Director, Virginia Department of Corrections, Respondent–Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

OPINION TEXT STARTS HERE

ARGUED:Matthew P. Dullaghan, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellant. Ashley Charles Parrish, King & Spalding, LLP, Washington, D.C., for Appellee. ON BRIEF:Kenneth T. Cuccinelli, II, Attorney General, Katherine B. Burnett, Senior Assistant Attorney General, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellant. Michele J. Brace, Virginia Capital Representation Resource Center, Charlottesville, Virginia; Daniel J. King, King & Spalding, LLP, Atlanta, Georgia; Daniel S. Epps, Karen F. Grohman, King & Spalding, LLP, Washington, D.C., for Appellee.

Before KING, DUNCAN, and THACKER, Circuit Judges.

Vacated and remanded by published opinion. Judge KING wrote the majority opinion, in which Judge DUNCAN joined. Judge THACKER wrote an opinion concurring in part and dissenting in part.

OPINION

KING, Circuit Judge:

These habeas corpus proceedings on behalf of Justin Michael Wolfe are before us for the third time, and they arrive saddled with a protracted and eventful history. Most recently, in 2012, we affirmed the judgment entered in the Eastern District of Virginia vacating Wolfe's 2002 state court convictions for capital murder and other crimes, and we remanded for further proceedings, leaving in place the district court's remedial edict that Wolfe be retried or released.

In this appeal, respondent Harold W. Clarke, as Director of the Virginia Department of Corrections (hereinafter the Commonwealth), seeks relief from the district court's “Order Enforcing Judgment.” Wolfe v. Clarke, No. 2:05–cv–00432 (E.D.Va. Dec. 26, 2012).1 The court entered the challenged order upon ascertaining that the Commonwealth had not complied with the operative retry-or-release directive. As a consequence of the Commonwealth's noncompliance, it was instructed to “release [Wolfe] unconditionally, free of all criminal proceedings on the charge of murder for hire of Danny Petrole and the drug charges that were previously tried in state court by the Commonwealth, within ten (10) days of the entry of this order.” Id. at 25.

Beyond mere release, however, the district court further proscribed the Commonwealth “from reprosecuting [Wolfe] on the charges originally tried herein in state court or any other charges stemming from [the] death of Danny Petrole which requires the testimony of Owen Barber in any form.” Order Enforcing Judgment 25–26. In support of its chosen remedy, the court concluded that the Commonwealth's prosecutors had, on remand, improperly conducted themselves with respect to their key witness, Owen Barber. As a result, the prosecutors had “permanently crystalized” constitutional violations previously found to have tainted Wolfe's trial, id. at 24, which in turn constituted extraordinary circumstances justifying a federal bar to his proposed retrial.

On January 3, 2013, we stayed, pending resolution of this appeal, the district court's order. As explained below, the court accurately determined that the Commonwealth neglected to timely observe the retry-or-release directive. Though the court was correct to order Wolfe's immediate release, it fashioned an overbroad remedy and thereby abused its discretion by precluding the Commonwealth from retrying Wolfe in a new proceeding. We therefore vacate the Order Enforcing Judgment and remand for the district court to enter a substitute order directing that Wolfe simply be released from the custody imposed as the result of his 2002 convictions.

I.

As described in our earlier decisions, a jury in Prince William County, Virginia, found Wolfe guilty in 2002 of the capital murder of Danny Petrole, of using a firearm in the commission of a felony, and of conspiring to distribute marijuana. See Wolfe v. Johnson, 565 F.3d 140 (4th Cir.2009) ( “Wolfe I ”); Wolfe v. Clarke, 691 F.3d 410 (4th Cir.2012) (“Wolfe II ”). The theory of the prosecution was that, as a nineteen-year-old marijuana dealer, Wolfe hired his friend and fellow drug dealer, Owen Barber, to murder Petrole, who was a drug supplier. Barber, the admitted triggerman, was the only witness to testify concerning the “for hire” element of the murder-for-hire scheme. In exchange for Barber's testimony, the Commonwealth dismissed its capital murder charge against him. Barber thus pleaded guilty and was sentenced to sixty years on a non-capital murder conviction, of which twenty-two years were suspended. On the basis of his murder conviction, Wolfe was sentenced to death. For his firearm and drug convictions, Wolfe received consecutive prison terms of three and thirty years, respectively.

A.
1.

In November 2005, after failing to obtain relief on direct appeal and in state post-conviction proceedings, Wolfe filed his 28 U.S.C. § 2254 petition in the Eastern District of Virginia. The district court promptly referred Wolfe's petition to a magistrate judge for a report and recommendation. On December 14, 2005, while Wolfe's petition was pending, Barber executed an affidavit repudiating his trial testimony and exculpating Wolfe from the murder-for-hire scheme. Barber's affidavit prompted Wolfe to file an amended § 2254 petition, which is the operative “petition” in these proceedings. The petition maintained, inter alia, that the prosecution had curtailed Wolfe's entitlement to due process by concealing material exculpatory evidence that should have been disclosed to his defense attorneys. The petition also alleged that Barber's affidavit had sufficiently demonstrated Wolfe's actual innocence to excuse any procedural default of his constitutional claims.

In April 2006, five months after executing the repudiatory affidavit, Barber sought to recant the statements he had made therein. In an unsworn handwritten letter, Barber insisted that he had testified truthfully in the 2002 trial, and that he had falsified his 2005 affidavit. In August 2007, the magistrate judge issued his report recommending dismissal of Wolfe's § 2254 petition, in that the claims alleged therein were meritless and had been procedurally defaulted. On February 11, 2008, over Wolfe's objections, the district court adopted the magistrate judge's recommendation and dismissed the petition. Wolfe timely appealed that dismissal, and, by our decision of May 11, 2009, see Wolfe I, we vacated in part and remanded for further proceedings.

2.

On remand, the district court determined at the outset that Wolfe was entitled to an evidentiary hearing, and that, pursuant to Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), he had made a sufficient showing of actual innocence to bypass any procedural defenses that might be interposed to foreclose substantive consideration of his constitutional claims. During the evidentiary hearing conducted in November 2010, Barber testified, exculpated Wolfe, and his evidence was credited by the court. On July 26, 2011, the court ruled that the prosecutors in Wolfe's trial had contravened his Fourteenth Amendment due process rights by (1) failing to disclose favorable and material evidence, contrary to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (2) allowing Barber to testify, despite having information indicating that his testimony was false, in violation of Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); and (3) striking a qualified venireman, as proscribed by Supreme Court precedent. The court therefore granted habeas corpus relief to Wolfe and specified that Wolfe's “conviction and sentence” were vacated. Wolfe v. Clarke, 819 F.Supp.2d 538, 574 (E.D.Va.2011). On August 4, 2011, the Commonwealth filed a timely notice of appeal.

Thereafter, Wolfe moved the district court, pursuant to Rule 59 of the Federal Rules of Civil Procedure, to clarify whether the relief granted on his capital murder conviction also encompassed his firearm and drug convictions. On August 30, 2011, the court granted Wolfe's clarification motion and entered one of the orders relevant to this appeal. See Wolfe v. Clarke, No. 2:05–cv–00432 (E.D.Va. Aug. 30, 2011) (the “Relief Order”). 2 The Relief Order explained that Wolfe was entitled to a new trial on all of the original charges, and it accorded the Commonwealth the option of either “provid[ing] [Wolfe] with a new trial, or releas[ing] him unconditionally from custody” within 120 days. Id. at 2. On September 2, 2011, the Commonwealth filed a second notice of appeal, from the Relief Order and the Amended Judgment. Eleven days later, the Commonwealth moved the district court for a stay pending appeal, which the court granted on November 22, 2011. See Wolfe v. Clarke, 819 F.Supp.2d 574 (E.D.Va.2011) (the “Stay Order”).3 Wolfe cross-appealed, asserting that the district court erred in denying him relief on an additional, unadjudicated claim. By our Wolfe II decision, we affirmed the judgment of the district court.4

B.
1.

Our mandate in Wolfe II issued on September 7, 2012. That same day, Wolfe was transferred from the Sussex State Prison to the Prince William County Adult Detention Center, for a status hearing to be conducted in the state circuit court on September 10, 2012. At that hearing, two of Wolfe's federal habeas lawyers were appointed to represent him on the original state charges, and a bond hearing was set for September 14, 2012.5 The next day, the Commonwealth's Attorney and his assistant, along with one of the primary investigating officers, Detective Sam Newsome, interviewed Barber at the Augusta Correctional Center. During the interview, which was recorded without Barber's knowledge, those three officials sought to ascertain how Barber would testify at Wolfe's retrial. They suggested to Barber that, because his testimony in the federal habeas...

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