Wolfe v. Johnson

• Decision Date: 11 May 2009
• Docket Number: No. 08-8.,08-8.
• Citation: 565 F.3d 140
• Parties: Justin Michael WOLFE, Petitioner-Appellant, v. Gene M. JOHNSON, Director of the Virginia Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

565 F.3d 140

Justin Michael WOLFE, Petitioner-Appellant, v. Gene M. JOHNSON, Director of the Virginia Department of Corrections, Respondent-Appellee.

No. 08-8.

United States Court of Appeals, Fourth Circuit.

Argued: December 2, 2008.

Decided: May 11, 2009.

ARGUED:

Michele Jill Brace, Virginia Capital Representation Resource Center, Charlottesville, Virginia, for Appellant. Matthew P. Dullaghan, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellee.

ON BRIEF:

James M. Griffin, King & Spalding, L.L.P., Washington, D.C.; Daniel J. King, King & Spalding, L.L.P., Atlanta, Georgia, for Appellant. Robert F. McDonnell, Attorney General of Virginia, Jerry P. Slonaker, Senior Assistant Attorney General, Office of the Attorney General Of Virginia, Richmond, Virginia, for Appellee.

Before KING, SHEDD, and DUNCAN, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion. Judge King wrote the opinion, in which Judge Shedd and Judge Duncan joined.

OPINION

KING, Circuit Judge:

Justin Michael Wolfe, convicted of capital murder and sentenced to death in Virginia, appeals from the district court's dismissal of his 28 U.S.C. § 2254 petition for habeas corpus relief. We have granted Wolfe a certificate of appealability (the "COA") on four substantive claims: (1) that the jury was exposed to extraneous influences during the penalty phase deliberations (the "extraneous influence claim"); (2) that Wolfe's trial counsel was ineffective in moving to strike a qualified and potentially favorable venireman, and that the trial court erred in striking that venireman (the "venireman claim"); (3) that the prosecution failed to disclose exculpatory and impeachment evidence, in contravention of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (the "Brady claim"); and (4) that the prosecution presented false trial testimony, in violation of Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (the "Giglio claim"). Wolfe also contends that the district court erred in failing to address his claim of actual innocence, presented as a procedural "gateway" for the adjudication of otherwise defaulted substantive claims, under Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (the "Schlup issue"), and by declining to conduct an evidentiary hearing and to permit relevant discovery. As explained below, we affirm on the extraneous influence claim and a subpart of the venireman claim (the "venireman-counsel subpart"); vacate on the Brady and Giglio claims, as well as on the balance of the venireman claim (the "venireman-court subpart"); and remand on the Schlup issue, the Brady claim, the Giglio claim, the venireman-court subpart, and for such other and further proceedings as may be appropriate.

I.

In these § 2254 proceedings, the petitioner, Justin Wolfe, is an acknowledged marijuana dealer who was convicted in Virginia state court for his role in the 2001 murder-for-hire of his drug supplier, Daniel Petrole. Wolfe's conviction was primarily secured on the basis of evidence from the triggerman himself, another drug dealer named Owen Barber IV. Barber was the prosecution's key witness in Wolfe's capital trial and the only witness to provide any direct evidence regarding the "for hire" element of the murder offense and the involvement of Wolfe therein.¹ More than three years after Wolfe's trial, however, Barber executed an affidavit (the "Barber Affidavit") that repudiated his trial testimony and exculpated Wolfe from the murder-for-hire scheme.

The Barber Affidavit and several related affidavits were first submitted for judicial consideration in the district court in these § 2254 proceedings. Wolfe relies on these affidavits to establish the merits of some of his substantive claims, as well as to demonstrate his actual innocence under Schlup in order to excuse certain procedural defaults. Before assessing the substantive claims and the Schlup issue, we delineate and review the underlying facts as they were presented in Wolfe's 2002 trial in the Circuit Court of Prince William County, Virginia, and in subsequent proceedings.

A.

Wolfe was indicted in Prince William County on May 7, 2001, and charged with hiring Barber to murder Petrole—a capital offense in Virginia²—and with using a firearm in the commission of a felony. On July 2, 2001, the grand jury indicted Wolfe on the additional charge of conspiring to distribute marijuana. These indictments were consolidated for trial, and Wolfe was tried over a two-week period in January 2002.

1.

a.

The evidence presented at Wolfe's trial reflects that, at the time of Petrole's March 2001 murder, Wolfe was a nineteen-year-old marijuana dealer in northern Virginia. Wolfe dealt high-grade marijuana— referred to on the street as "chronic"— which Petrole had supplied to Wolfe since around November 2000. Wolfe made $10,000 to $15,000 a month from his drug business, and purchased between eight and eighteen pounds of marijuana from Petrole every two weeks. To finance their transactions, Wolfe and Petrole utilized an informal credit system known as "fronting." Under the fronting system, in exchange for a supply of marijuana, Wolfe would give Petrole a cash down payment and then pay the balance as cash was received from drug sales. Petrole tracked the debts that his customers owed him on what is called an "owe sheet." During their illicit business relationship, Wolfe's debts to Petrole reached as high as $100,000. An owe sheet found on Petrole's body reflected that Wolfe owed Petrole approximately $60,000.

Barber, then twenty-one years old, was also a drug dealer in northern Virginia. In contrast to Wolfe, Barber usually sold a lower grade of marijuana called "shwag," which he acquired from a supplier other than Petrole. Wolfe and Barber had been close friends since high school. Barber testified at trial that, in late February or early March 2001, he and Wolfe discussed "get[ting]" Wolfe's "chronic man" (Petrole), and that they actually followed Petrole to certain locations with the intention of killing him. J.A. 535-36.³ No one else participated in these preparatory discussions or activities. Their plan came to fruition on March 15, 2001, when Wolfe informed Barber that Petrole would be doing a drug deal that night with Wolfe at the apartment of Wolfe's girlfriend, Regina Zuener. Barber and Wolfe agreed that Barber would follow Petrole home from the apartment and kill him.

Later that evening, Wolfe alerted Barber that Petrole was enroute to Zuener's apartment in Centreville, Virginia, and Barber invited his friend J.R. Martin to come along. Although Martin declined, he permitted Barber to drive Martin's red, four-door 1998 Ford Escort. Armed with a 9mm handgun he had purchased from his former roommate Jason Coleman, Barber drove the Escort to Zuener's apartment, parked at the end of a cul-de-sac, and waited alone. Inside the apartment, Zuener, Coleman, Coleman's wife, and another friend were with Wolfe. At about 9:40 p.m., Petrole entered the apartment with a duffel bag filled with ten to fifteen pounds of marijuana, packed in one-pound bags. According to Zuener, Petrole also carried a large sum of cash. After selling Wolfe about eight pounds of marijuana, Petrole exited the apartment and drove away. Wolfe and the others then went to a local nightclub.

Barber trailed Petrole through several Fairfax County neighborhoods, frequently updating Wolfe by cell phone. Ultimately, Barber followed Petrole to Petrole's townhouse near Bristow, Virginia. As Petrole parked his car, Barber "jumped out" of the Escort, approached Petrole, and rapidly fired ten rounds through the passenger-side window from a distance of about five or six feet, emptying the ammunition clip. J.A. 563. Barber then retreated to the Escort and sped away, throwing the firearm and gloves out the car window. Individuals in Petrole's townhouse heard the shooting and went outside to assist after Barber fled.⁴

After shooting and killing Petrole, Barber returned to his apartment and recounted to Martin what had occurred. Barber then called Wolfe, attempted to clean up Martin's car, changed clothes, and went with Martin to meet Wolfe at the local nightclub. Barber told Wolfe at the club that "it was done," to which Wolfe responded, "all right." J.A. 575. Wolfe gave Barber "a pound and a half hug" and ordered a round of drinks. Id. According to Barber, Wolfe commented that "we got to have a made cake now," which was slang for making a lot of money. Id. at 577. They also toasted to making their "rack of money." Id. In exchange for carrying out the murder scheme, Wolfe told Barber he did not have to pay for four pounds of marijuana that Wolfe had previously fronted him, gave Barber half-a-pound of chronic marijuana, forgave a $3000 debt, and promised Barber an additional $10,000 cash.

Martin's trial testimony largely corroborated Barber and offered circumstantial evidence supporting the prosecution's case. Martin testified that he had observed Barber and Wolfe talking alone for about fifteen minutes at the nightclub after Petrole's murder (although he said Barber "told [him] to go away" while they spoke), and that Wolfe bragged about making a lot of money and ordered Martin to keep quiet. J.A. 699. Additionally, the day after Petrole's death, Martin purchased marijuana from Wolfe. After Martin told Wolfe, "I know what you guys did," Wolfe forgave a $600 debt and fronted Martin $5000 worth of marijuana at a discount. Id. at 707-08.⁵

On March 18, 2001, Barber gave Martin $540 to repair damage to the Escort that occurred during Petrole's murder, and told Martin to have the work done in Virginia Beach. Refusing to assist Barber further, Martin reported what he knew about the Petrole murder to the authorities. The police thereafter searched Barber's apartment and questioned...