Justin Wolfe v. Harold Clarke

Lаmbros; David gan; D. W. Thomas III. Orlofsky; Stephen Stepha M. Ogden; sum, straight application forward Pickerstein; Pell; K. H. James nie compels analysis holding Alvarez’s Pocker; Christopher S. Richard J. challenged provision of the the invalidation Rhee; Rhee; LeeH. Jeannie S. Saro at issue statute impersonation kin; Harry Shorstein; L. Gil M. Sof forth analysis set this Under the case. Sullivan; ter; Richard S. P. Thomas concurring opinions plurality Vines; Ugelow; K. Atlee W. James Alvarez, part of Va.Code the second West; III; Wampler, Alfred James and, narrowly tailored not § 18.2-174 is Yeomans, Sup Wolin; Amici William Further, if we therefore, even invalid. Appellee. porting analysis engage the overbreadth were to dissenting sug- opinion Alvarez Wolfe, Petitioner- Justin Michael conclude required, I would gests is Appellant, Virginia imperson- clause second v. amount a substantial captures ation statute Clarke, Director, Virginia Harold W. con- speech expressive legitimate Corrections, Department of properly regulated duct in addition to Respondent-Appellee would, expressive conduct. speech and therefore, and unenforce- find overbroad Bundy; Bassler; C. Robert William G. expressly Chappell able. And because Butler, III; Michael A. W.J. Bates clause, con- infirm under the convicted Jr.; Cody; Curran, Joseph Robert J. J. impersonation for the viction and sentence Dillard; Tufo; Thomas Conor Del W. all For charge need to be vacated. would Dunne; Dugan; R. Matthew B. John reasons, I dissent. respectfully these Gershman; Friedrich; Bennett L. W. Gomez; Gibbons; Isabel Stewart

John Jacob; Hancock; R. Ko- Bruce Gerald Lambros; gan; D. David W. Thomas Orlofsky; Stepha- Ogden; Stephen M. Pickerstein; Pell; K. H. nie James Pocker; Christopher Richard J. S. Rhee; Rhee; H. Lee Jeannie S. Saro- WOLFE, Michael Justin kin; Shorstein; Harry L. Gil M. Sof- Petitioner-Appellee, Sullivan; ter; Richard P. S. Thomas Vines; Ugelow; K. Atlee W. James Director, Virginia III; West; CLARKE, Wampler, James Alfred Harold W. Corrections, Wolin; Yeomans, Sup- Department Amici William Respondent-Appellant porting Appellant. 11-6, Nos. 11-7. Bundy; Bassler; Robert C.

William G. III; Butler, Michael A. Bates W.J. Appeals, Court of United States Joseph Curran, Jr.; Cody; J. J. Robert Fourth Circuit. Tufo; Dillard; Conor

Del W. Thomas May 17, 2012. Argued: Dunne; Dugan; Matthew B. John R. 16, 2012. Aug. Decided: Gershman; Friedrich; L. W. Bennett Gibbons; Gomez; John Stewart Isabel Jacob;

Hancock; Ko- R. Bruce Gerald Burnett, Baldwin Katherine

ARGUED: Virginia, Attorney General Office of Richmond, Virginia, Appellant/Cross- Parrish, King & Ashley Charles Appellee. D.C., LLP, Ap- Washington, for Spalding, BRIEF: ON pellee/Cross-Appellant. II, Cuccinelli, Attorney T. Gener- Kenneth Dullaghan, P. Sen- Virginia, al of Matthew General, Attorney Office ior Assistant Rich- Attorney Virginia, General mond, Virginia, Appellant/Cross-Ap- for Brace, Virginia Capital J. pellee. Michele Center, Representation Resource Char- lottesville, King King, Daniel Virginia; J. LLP, Atlanta, Georgia; Mat- Spalding, & LLP, Owen, King Spalding, & thew S. Luxton, Texas; Houston, Pepper Jane C. D.C.; LLP, Washington, Mat- Hamilton Enright, The Engle, thew L. Deirdre M. Law, Project at Innocence UVA School Charlottesville, Appel- Virginia, Elwood, John P. lee/Cross-Appellant. D.C.; LLP, Washington, Vinson & Elkins LLP, Heidler, A. Michael Vinson & Elkins Austin, Texas, Ap- Supporting for Amici pellee/Cross-Appellant. DUNCAN, KING,

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

KING, Judge. Circuit previously before us on This matter was by § 2254 Jus- appeal petitioner 28 U.S.C. Wolfe, Virginia prisoner who tin Michael murder and sen- capital was convicted of tenced to death the Commonwealth 11, 2009, see By May our decision (4th Johnson, Cir. 2009) /”), fur- (“Wolfe remanded for Specifically, I in I. proceedings. ‍‌​​‌‌​‌‌‌​​‌​​​‌‌​​‌‌​​​‌‌‌​‌‌​​​​​​‌​​​‌​‌‌‌​​‌‍ther the district court to determine structed A. Wolfe was entitled to an eviden whether fully As more in our detailed IWolfe tiary hearing discovery; other de decision, County William jury Prince whether, cide in first instance under guilty found of capital mur- Delo, 298, 115 Schlup v. der, using a firearm the commission of a (1995), 130 L.Ed.2d 808 Wolfe had made a felony, conspiring to distribute mari- showing sufficient of actual innocence juana. F.3d at 149. The any procedural clear bars to his constitu trial court to sentenced Wolfe death for (the issue”); “Schlup tional to claims and murder, plus the consecutive terms of claim, others, among assess anew Wolfe’s years three for the firearm оffense and had contravened his the thirty years for drug conspiracy. the Id. process Fourteenth Amendment due The premised murder conviction was on rights, recognized Brady Mary as in Wolfe, evidence that then nineteen-year- a land, 1194, 10 83 S.Ct. marijuana old Virginia, dealer northern (1963), by suppressing L.Ed.2d 215 favor hired his close friend drug and fellow deal- (the “Brady able material and er Owen Barber to drug suppli- IV murder claim”). er Daniel Petrole in March 2001. Id. at 144-45 n. 2 (explaining “Virginia & remand, On the district court heeded murder,’ defines ‘capital pertinent part, mandate, our appropri- authorized willful, deliberate, as ‘[t]he and premedi- discovery ate and an conducted evidentia- killing tated person by of any another for ry hearing, and ruled in Wolfe’s favor ” (quoting § hire’ Ann. 18.2- Va.Code Schlup the issue and his Brady and two 31(2))). Significantly, “Barber was the By additional judgment claims. Au- prosecution’s key witness,” in that he was 30, 2011, gust court the vacated Wolfe’s only provide “the to any witness direct capital convictions, murder and other and evidence the regarding ‘for hire’ element retry ordered the to either Commonwealth of the murder offense and the involvement days him within 120 or release him uncon- of Wolfe therein.” Id. at 144. In ex- ditionally custody. judgment from change he Barber’s that was was stayed pending appeal by this hired triggerman, Wolfe’s the Common- Commonwealth, which on its was initiated capital wealth dismissed its charge murder Clarke, by respondent behalf Harold W. Barber, against and he pleaded guilty to Virginia Director of Department of non-capital murder. Barber was sen- Corrections.1 The Commonwealth chal- tenced sixty years in prison, of which lenges twenty-two years the remand from proceedings start suspended. were Id. at finish, 144 n. 1. contending that the district court repeatedly fatally proce- erred in its failing November after to ob- dural and rulings. substantive Because tain relief from his convictions on direct conclude, readily however, we appeal-and state corpus proceed- habeas court’s corpus award of habeas relief on ings, Wоlfe filed his initial 28 U.S.C. claim Wolfe’s was not marred § 2254 petition in the district court. See error, judgment. we affirm the 565 F.3d at It only 149-51. replaced Virgi- respondent 1. Clarke has served as Director when he former Gene M. Department nia of Corrections since Johnson. issue, Schlup address the the court did not thereafter, on December (and rejected) con- repudiating but “considered affidavit an Barber executed procedural defaults were tention that his exculpating testimony and trial cause prejudice excused under scheme. Id. the murder-for-hire from (internal omit- quotation marks day, Wolfe filed standard” single 144, 151. Within ted)). to alter or the court declined along an After petition, § 2254 an amended decision, a 28 materials, granted we includ- amend its supporting appendix 2253(c) appealability certificate of corroborating U.S.C. affidavits ing additional claims. Id. suggesting on his and three other affidavit And, above, ulti- explained evidence that suppressed at 159. prosecution had mately to the defense. with instructiоns for have been disclosed remanded should raised, petition amended entitlement at 151. The determine Wolfe’s alia, actual innocence is- Schlup hearing other discov- evidentiary inter sue, ground thereby asserting second first Schlup ery, decide issue of any procedural default Wolfe’s instance, freshly excuse the and to assess previously as- constitutional claims—the claims. at 171. We and two Id. additional having sepa- been ground first the serted to it was free also the court that advised standard. Id. prejudice” rate “cause and prejudice ruling. Id. revisit cause its 2006, 154, April In while 158 & n. 27. at 165 n. 35. proce- petition amended and related the B. mag- pending were before the issues

dural the judge, notified court istrate Wolfe reconsidering prior its explicitly Without sought the statements repudiate to the prejudice ruling, cause exculpating Wolfe. Id. in his 2005 affidavit Schlup issue procedural court the decided notice, conjunction In at 155-56. proceedings, by its early in the remand lawyers evidentiary an requestеd Wolfe’s 4, February of opinion and order issues, credibility hearing plus to resolve Clarke, 2:05-cv00432 No. Wolfe into discovery prosecution’s compliance (the (E.D.Va. 2010) 4, “Schlup Or- Feb. Id. at 156. Brady obligations. with its der”).2 determined, The court therein record, that largely existing 2007, on the August magistrate judge disavowed) (subsequently report, rejecting request Owen Barber’s issued his Wolfe’s suffi- of his trial was evidentiary hearing, deeming the recantation for an in a ciently to “raise doubt to credi corroborated Barber and other affidavits lack juror’s dismissal mind the circum- recommending the of reasonable about bility, and night Petrole] of [Daniel on the stances of petition ground amended Wolfe’s Schlup murder.” Order 10. Indeed— the claims therein mer asserted were defaulted, stories occurred itless, weighing the “two of what procedurally had been murder, both with night at 156 n. 25. on both. See & corroboration[,] no almost hearsay Although lengthy out ser spelled that would one ver- support other objections magistrate judge’s of to the ies court concluded court, by its of sion over another” —the decision report, likely that no that it “more than not February as adopted juror would have found Wolfe reasonable petition. its own dismissed Wolfe’s Id. alia, guilty beyond a reasonable doubt.” 158-59 inter (explaining, Id. at Appendix Joint filed Schlup at J.A. contents of the 2. The Order is found 3266-78. -" (Citations appellate proceedings.) parties in these herein to "J.A. refer Schlup, hearing, response 513 U.S. at (applying to the Common- objection (requiring petitioner newly to wealth’s to Wolfe’s use of “show support disclosed evidence in likely it more than not that no his exist- claims, ing Brady and other juror him Wolfe filed reasonable would have convicted motion to amend his 28 evidence”)). U.S.C. new light Ac- petition. See J.A. 4026-27 (arguing that cordingly, the announced that Wolfe tenaciously Commonwealth “has standard,” justi- “met the thus Schlup had fought deny to any Wolfe access facts fying procedur- of merits review the that would have him plead enabled addi- ally defaulted constitutional claims. sub-claims,” ... tional and thus granted request The court also Wolfe’s “should not be playing rewarded for hide- evidentiary hearing, as well discov- the-ball” and “should not be allowed ery. Id. at 13. blame for lacking the clairvoyance During the contentious course of the to include these proposed amendments discovery proceedings, Wolfe had to move his 2005 federal petition habeas without compel the Commonwealth to meet documents”). the benefit of the withheld A discovery obligations. June By its mid-hearing order of November revealed, hearing on motion inter Wolfe’s granted the district court alia, provided that the Commonwealth had motion to amend of an “out abundance only responses unsworn to the interrogato- caution,” but found that “even in ab- answered, wholly it had had ries failed [motion], sence of the the issues [Wolfe] respond interrogatories, to other and was fall squarely raises within the [existing produce refusing approximately to 916 Brady Clarke, See claim].” v. No. Wolfe unilaterally documеnts that it ir- deemed (E.D.Va. 12, 2010) (the 2:05-cv-00432 Nov. 7, 2010, its of By relevant. order June the Order”).4 “Amendment the district court directed Commonwealth Thereafter, by opinion its order to in- provide responses sworn to Wolfe’s 26, 2011, July the court determined that terrogatories, including previously those corpus Wolfe was entitled to habeas relief unanswered, and to allow toWolfe exam- on, alia, premised inter the Common- the ine hundreds of theretofore undis- wealth’s manifold violations of his Brady documents, subject closed an agreed Clarke, rights. See v. 819 F.Supp.2d Wolfe Clarke, protective order. See v. No. Wolfe (E.D.Va.2011) (the Order”).5 “Brady 538 (E.D.Va. 2010) (the 2:05-cv-00432 June Specifically, the Brady court ruled in the Order”).3 “Discovery give To an that the prosecution Order had withheld opportunity assess evidence that eight or groups items of favorable and Discovery would be forthcoming under the evidence, falling material into three broad- Order, the court post- was constrained to (1) categories: er tending evidence im- pone impending evidentiary hearing. (2) peach Barber; triggerman evidence evidentiary hearing finally The ensued tending impeach prosecution other wit- autumn, late when was conducted nesses who corroborated Barber’s testimo- (3) days over the four ny; of November 2-3 and suggesting an alter- 16-17, day 2010. On the theory second nate the Petrole murder. The Order, Discovery 3. at Brady Order is found J.A. 5.The 3517. which amended an earlier July decision of is found at J.A. published F.Supp.2d 4. The Amendment Order is found at J.A. 5203-59 and at 819 538 (E.D.Va.2011). 4059-60. 416 by this Common- pending appeal to be entitled also deemed Wolfe Clarke, v. 819 claim that wealth. on his

relief (the (E.D.Va.2011) by “Stay 574 F.Supp.2d false knowingly presented Order”).6 Barber, Four- of Wolfe’s in contravention rights un- process due Amendment teenth jurisdiction over Com- We possess Illinois, 264, 79 360 U.S. Napue v. der pursuant to 28 appeal monwealth’s U.S.C. (1959), and 3 L.Ed.2d Further, granted because we 1291. States, v. Giglio United certificate of a appealability aWolfe (the (1972) “Gig- L.Ed.2d 5.Ct. §§ have 28 U.S.C. cross-appeal, his claim that claim”), as well as lio 2253(c) con- jurisdiction to consider his rights him of his deprived state trial court have that the district court should tention Amend- and Fourteenth under Sixth additional, on an granted him relief unad- by striking a impartial jury ments prose- if the judicated claim: “[e]ven (the for cause “venire- qualified venireman knowledge per- no cutors had Barber’s claim”). Notably, man court closed trial, now,” they time do jury by specifying Order continuing detention the Com- thus his and sentence”—both the sin- “conviction “ process monwealth due ‘constitute^] gular vacated. See Order —were ” Appellee Br. of violation.’ 62-63 Sullivan, F.2d (quoting Sanders Rule of timely filed Federal (2d (the Cir.1988)) 218, 224 “Sanders 59(e) motion to alter Civil Procedure (rul- claim”); 571-72 see also Order seeking the judgment, amend Giglio, in favor of on his rather ing relief court’s clarification the awarded Sanders, claim, premised on the find- than only mur- encompassed vacatur of not his ing “presented Commonwealth sentence, death but der conviction and testimony despite having trial in- Barber’s and sentences for us- also convictions indicating in its that possession formation of a felo- ing a firearm the commission false”). was marijuana. ny conspiring to distribute below, As look no its we need granted by explained court motion The 30, category further than item of the first August 2011. v. one order See Wolfe Clarke, (E.D.Va. Aug. of evidence withheld from Wolfe’s defense No. 2:05-cv-00432 2011) (the Order”). by tending “Relief The —the that, impeach agree with the light of to Barber —to dis- “[i]n [its] clarified therein finding right was trict court habeas cor- denied the Wolfe deserves [Wolfe] Brady claim affirm process during pus state criminal relief his to due (ob- trial, all Judgment. to a new trial on Order 566 [he] is entitled by serving suppressed “that the ‍‌​​‌‌​‌‌‌​​‌​​​‌‌​​‌‌​​​‌‌‌​‌‌​​​​​​‌​​​‌​‌‌‌​​‌‍habeas evi- charges previously considered the state relating enough to Barber alone is Relief Order 1-2. That same dence court.” Brady”). under to warrant habeas relief day, judgment was amended to direct need Consequently, we not review is- retry the Commonwealth Wolfe within days unconditionally. procedure him sues of substance related 120 or release Clarke, solely un- other withheld evidence No. 2:05-cv-00432 2011) (the сlaim, (E.D.Va. or to his Aug. “Judgment”). derlying Wolfe’s Sanders, Giglio, and venireman claims. Judgment subsequently stayed The was 5293-94, Stay published at The Order is The Relief is found at J.A. J.A. 5407-29. Order (E.D.Va.2011). Judgment F.Supp.2d Stay Order at 819 J.A. and the II. Again discovery Barber asked about again

I explained it him. He then A. said, I get What do out it if I name [sic] “higher up”. I told him that was single, plainly momentous item one of his problems; that his case was impeachment Barber evi suppressed tight really very so he had little to offer today’s dence on which we rest decision is I him us. told it could simply be the police report reflecting a written that— Capitol difference between murder [sic] Barber ever before asserted Degree, or First execution or life in him to murder hired Petrole —Prince Wil prison, or that the may Commonwealth County liam Detective Newsome advised willing be to make a recommendation pen Barber he could avoid the death sentencing speaking after to his attor- alty implicating by Wolfe. See J.A. 4825- ney. I again told him that the Common- (the report”). “Newsome The New- Attornеy wealth’s would make de- these report documents Newsome’s and cisions and that I not promise could him fellow Detective conversations Walburn’s anything. I pointed point out that at this during April with Barber he good would do more than harm for cross-country flight, returning himself cooperating us. Virginia upon his arrest in California three J.A. 4826-27. after weeks Petrole murder. The Commonwealth inexplicably with- pertinent part, report the Newsome re held the Newsome from until following: veals the these 28 U.S.C. proceedings I we told Barber that knew he had killed 2010, after Wolfe’s first appeal during very strong Petrole and had a case discovery the contentious proceedings con- against him. But that as far as knew Thus, ducted in I remand. personal problem he had no with Daniel among Newsome newly was Petrole but that he him for had killed disclosed evidence that the Commonwealth someone else and we believed that per- argued was the legitimate purview outside son was explained Justin Wolfe. I of Wolfe’s claim—a contention that him that we needed the information that roundly rejected by the district court he had in order arrest Wolfe. in mid-evidentiary-hearing Amendment explained again very we had a During Order November 2010. the (Barber) strong against case him evidentiary hearing, as recounted the that we stop could there but that would Order, court’s subsequent Brady “Barber right not it be since knew was some- recanted his trial while under one else I him [sic] idea. told that he Brady oath.” Order 570. Barber also potentially facing capítol was [sic] engaged the following exchange with the charge murder this case and that he lawyer during Commonwealth’s cross-ex- me, needed to He help himself. asked amination: get you “What do I out of it if I tell who Q. You related that they several times person, higher up, the other the I is”. you had said if tell don’t us what we I told him could not promises make want, you get will capital murder? him, but that the Commonwealth A. Yeah. the might entertain idea of not charging they? Q. Who is Murder, him with Capitol or [sic] that may they willing Ebert, be make a Attorney] recom- A. [Commonwealth’s mendation as to his Attorney] sentence. [Assistant Commonwealth’s with initial Pickett, outlining his interview port attorney]

Conway, [Barber’s during April Barber Newsome, Owen Detective] [and [Detective] implicated Wolfe he [Newsome] which Walburn. Bar- murder before in the being involved correct, they my notes are Q. But if involvement.” his [Wolfe’s] mentioned ber say. what to exactly you told never spelled also The court Brady Order the script for you a They give didn’t for as- legal standard controlling out the they? night, that did events claim, observing Brady sessing Wolfe’s events, no. the for script A specific A. violation, it must that, “to find a they you what fact told Q. They in 1) favor- evidence was the determine that truth, they? didn’t wanted 2) accused, suppressed able know Justin they that They said A. (either willfully or inadvertent- prosecution know that we is involved [Wolfe] 3) (citing Id. at 545 material.” ly), and Danny you [Pe- hired to kill that he Dretke, Banks trole]. (2004)). In 157 L.Ed.2d they want- Well, they you told Q. what of the New- emergence concluding that the truth. you to tell them was ed cor- to habeas report entitled Wolfe thеir statement? Wasn’t relief, explained: the court pus ^{[*] [*] [*]} This information is favorable to Wolfe the fact de- because documents you, their statement Wasn’t in connec- mentioned Wolfe tectives first truth? they wanted the Bar- presented to the murder tion mean, they they want- A. Yeah. said or life option of execution ber with the truth, time at the same but ed implicat- exchange imprisonment you is what have they that this said else, well before ing someone you getting say are got Common- cooperating with the began chair. mur- in the implicating Wolfe wealth or Order, the By J.A. 3751-52. fact not dispute Prosecutors do der. testimo- foregoing court found provided was not to be “consistent ny by Barber Furthermore, ma- [Wolfe]. Bra- report.” See suppressed [Newsome] Barber had it reflects that terial because also deemed n. 9. The court dy Order 548 the facts re- misrepresent a motive to “credible” to be Barber’s recantation death. garding Petrole’s and can- his “demeanor generally found Id. at 545.7 at 570. “persuasive.” dоr” to be findings of fact enumerated Among the B. is the court’s Order in the district Commonwealth, we (No. 6) According finding that “[t]he of merits or address the re- should not reach Newsome’s to Detective failed disclose Petrole Order, motives to murder possessed court also other Brady 7. In its evidence”) (the relationship materiality "Barber-Petrole cumulative assessed the Coleman, roommate, Jason and that Barber’s other items or report the seven Newsome and Barber had prosecution that the informed suppressed that it found groups of evidence (the evi- acting "Coleman alone Brady confessed Order 563-67. Wolfe. See favorable to dence”). Barber- The id. at 551-55. category evidence—evidence of that The first relationship state- evidence includes Petrole encompasses the tending impeach Barber — and by confidential informants ments made plus that Barber report, evidence Newsome report Newsome of aspect the Wolfe’s actual innocence standard the basis of claim, record, because the report including Newsome the the affi- would never have surfaced been made davit which Barber recanted trial his testimony but for pro- available Wolfe the flawed denied and Wolfe’s involvement rulings by made the district court cedural the Petrole murder. Common- court, in the I remand proceedings. emphasizes wealth that the in look- regard, record, that the Commonwealth asserts ing that had already same de- respects: by that the court erred in three cided the Barber affidavit lacked excusing procedural generally (“The de- credibility. See Br. of Appellant 47 under Schlup faults the actual innocence explained court never about face and standard; by authorizing discovery and certainly the record not justify any did conducting evidentiary hearing; the and ”). finding of ‘innocence’ Schlup.... under by allowing Wolfe, to amend his course, 28 U.S.C. of the Schlup defends Or- petition to broaden his claim der, asserting that “the correctness of the the include Newsome and other district findings court’s was confirmed newly disclosed evidence. We examine when recanted his trial in turn. those assertions while under oath at the [post-Schlup Or- evidentiary hearing.” See Ap-

der] Br. of (internal pellee 19-20 quotation marks Order, (find- omitted); Attacking Schlup the the Com- see also Order 570 argues that district ing evidentiary monwealth the court Barber’s hearing recanta- by ruling early in the pro- erred remand tion and his “credible” “demeanor and can- ceedings Schlup persuasive”). Wolfe satisfied the dor indicating theory Barber's fellow inmates that Bar- nate Petrole murder —consists murder, following: ber knew Petrole before the that Bar- reports various and witness money, owed ber Petrole that Petrole a relating "had parallel drug statements to a investi- Barber, hit out” on that Barber had gation drug that indicated conflict Petrole's . relationship close with Petrole's roommate. purported business unrelated Wolfe’s mo- id. at 551-54. The Coleman evidence (the having "drug tive for Petrole murdered revealed that Coleman “had conversation evidence”); investigation Pe- with Barber after murder where Barber government trole was rumored to be a infor- [Coleman] admitted to that he murdered Pe- mant, constituting yet possible another motive alone,” trole and acted Coleman (the evidence”); for his murder "informant reported prosecution, that conversation to statements of three witnesses including Attorney. the Commonwealth's they saw a second car at the crime scene at 554. (the shortly after the Petrole murder "second evidence”). See car id. at 558-63. category suppressed The second evi- Having materiality assessed the tending impeach dence—evidence other foregoing report, Newsome the Barber- prosecution witnesses who corroborated Bar- —the evidence, relationship Petrole the Coleman testimony includes information relat- ber's — evidence, evidence, Hough ev- the Martin ing ato deal the Commonwealth madе with idence, evidence, drug investigation exchange its witness J.R. Martin in his evidence, (the evidence”), informant and the second car evi- cooperation "Martin well dence'—the by concluded that as a recorded statement made the Com- suppression evidence's Hough monwealth’s witness Jason in conflict was, by cumulatively, subsequent category patently testimony regarding with his trial pre-Petrole-murder prejudicial. While we no than look further conversation robbing today, we drug

Wolfe and Coleman about the Newsome do not con- deal- (the evidence”). "Hough Brady prosecution's apparent suppression ers See done the Order Finally, category Brady pattern the 555-59. third of with- of other material and the suggesting held evidence—evidence that alter- conduct it reveals. accused, exculpa- it is event, to the either because need not reach or In we any tory, impeaching; or it that because is competing contentions parties’ the assess suppressed by evidence must have been Schlwp Put of the Order. validity on the State, willfully inаdvertently; the either default of Wolfe’s any procedural simply, ” prejudice and must have ensued.’ as it relates Brady particularly claim— Banks, 691, 124 at S.Ct. 1256 540 U.S. report was otherwise ex- the Newsome Strickler, 281-82, at (quoting 527 U.S. prej- separate “cause and cused under 1936). By satisfying “the S.Ct. second explained we standard. As udice” Wolfe I, (evidence suppressed by Brady component State), ‘cause’ petitioner a shows when default is excusable under procedural [a] develop failure to the reason for his facts prejudice standard when the cause and was the proceedings in state-court State’s (1) “that demonstrates petitioner evidence.” suppression of the relevant objective factor external with the third Additionally, “coincident impeded counsel’s efforts defense prejudice Brady (prejudice), component procedural the State’s comply with compass preju- within the of the ‘cause and Carrier, 478, rule,” Murray v. 477 U.S. requirement sup- dice’ exists when 91 L.Ed.2d 397 106 S.Ct. pressed Brady is ‘matеrial’ for (2) (1986), at his trial and “errors purposes.” Id. ... to his actual and substantial worked infecting his trial disadvantage, entire Thus, by “succeeding] establishing with errors constitutional dimen- [Brady of his claim”—which ] elements sions,” v. Frady, United States U.S. today we affirm that he did—Wolfe con- 152, 170, L.Ed.2d 816 S.Ct. currently in demonstrating “succeeded] (1982). and prejudice’ procedural ‘cause [for Banks, default of claim].” (alteration I, at 158 n. 27 565 F.3d Wolfe By 1256. U.S. 124 S.Ct. these remand, original). after having On decid circumstances, the chal- Commonwealth’s favor, ed Schlup issue Wolfe’s lenge to is Schlup Order rendered understandably district court declined our moot. to revisit cause prior I invitation ruling. and See id. at 165 35. prejudice n.

Nevertheless, pursuant Supreme Court precedent, necessarily the district court Next, the Commonwealth asserts prejudice Brady for the found cause in the pro court erred remand claim’s default when determined ceedings discovery by authorizing and con Banks, claim to be meritorious. See 540 ducting evidentiary hearing. re 691, 124 1256 (recognizing U.S. at jecting position, the Commonwealth’s “ ‘[cjause prejudice’ ‘parallel ... emphasize faithfully the court fol components alleged two of the three lowed our I directions to “re-exam ” (quoting violation itself Strickler ine has shown that whether Wolfe he is Greene, 119 S.Ct. evidentiary hearing],” entitled to [an (1999))). 1936, 144L.Ed.2d 286 then, warranted,” hearing “[i]f such illustrate, disputes recognized by bearing the dis- “resolve factual

To court, components procedural Schlup issue and the sub trict “the three or es- Giglio stantive claims.” prosecutorial sential elements ‍‌​​‌‌​‌‌‌​​‌​​​‌‌​​‌‌​​​‌‌‌​‌‌​​​​​​‌​​​‌​‌‌‌​​‌‍of at 170-71. We also following: claim” are misconduct “ pragmatically must at issue be favorable observe that antici- ‘The evidence

421 be in merits in pated discovery (citing would conducted state court” Michael Williams, hearing. 427-29, conjunction any evidentiary 529 120 U.S. S.Ct. 1479)). that, (advising n. 44 See id. at 171 “[i]f Schlup court is satisfied determines Applying controlling standard on re- record, evidentiary existing on the mand, the district court determined that proceedings may hearing discovery 2254(e)(2) § did “not bar from an [Wolfe] to merits рrimarily relate of Wolfe’s evidentiary hearing.” Schlup Order added)). (emphasis claims” substantive ruling, 11. In so the court observed that that, authorizing in

We therefore conclude diligent had made efforts in the discovery conducting evidentiary court proceedings develop state to his Bra- hearing, the district court acted well within dy by “requesting] claim a hearing,” Landrigan, v. its discretion. See Schriro “fil[ing] requests under the Virginia Free- 465, 473, 550 127 S.Ct. 167 U.S. Act,” of dom Information and “moving] (2007) (recognizing L.Ed.2d that “the 836 discovery multiple occasions.” Id. grant evidentiary hearing decision an [in to Moreover, at 10. with respect to the ex- § a 28 2254 left generally is] U.S.C. case culpatory 2005 Barber affidavit on which to of the sound discretion federal petition largely habeas re- courts”); Polk, Conaway also v. 453 see lied, the court found “[t]here [ was] no (4th Cir.2006) (relating F.3d 582 indication that Barber would have been decision on con- district court’s whether to willing give to an his affidavit at earlier evidentiary or hearing duct authorize dis- time, particularly lawyers had [Wolfe’s] covery prоceedings is reviewed for abuse repeatedly attempted get discretion). of make statement and he had refused.” Id. at The court thus concluded that Briefly, thoroughly as we more ex prior Barber’s reticence was “precisely the I, 166-71, if plained in 565 F.3d at type external cause that ... excuses a § develop petitioner 2254 “has failed fully develop failure facts state factual, basis a claim State court Id. (citing Conaway, court.” 453 F.3d at 2254(e)(2) § proceedings,” bars a district that, (explaining petitioner 589 because conducting evidentiary court hear from reasonably diligent had “been in pursuing ing petitioner on the claim can unless claim, fully his failure develop satisfy statutory one of two exceptions. “ [ his] the facts related to claim state however, Importantly, ‘a failure to devel causes, court attributable to external claim op the factual basis of a is not estab 2254(e)(2) preclude not him does from lished diligence, unless there is lack of being evidentiary hearing accorded an fault, greater pris attributable to the ” court”)). federal prisoner’s oner or the counsel.’ Wolfe (Mi (quoting Having 565 F.3d at 167 eligible Williams decided Wolfe was chael) Taylor, 420, 432, evidentiary hearing, 529 120 to accorded an U.S. be (2000)); S.Ct. see question L.Ed.2d then turned to the also whether he was entitled to one. That required inquiry the court to determine C “ ‘if alleged the facts would entitle [Wolfe] u relief, l if he one the six satisfie[d] Supreme l factors enumerated Court Sain, in Townsend v. e U.S. (1963).’” n L.Ed.2d 422 report and other ance on the Newsome I, (quoting Cona- at 169

Wolfe 582). evidence, Properly asserting ap- “evalu- newly F.3d at disclosed way, 453 pursuant petition] ating erroneously Wolfe’s was allowed to peal that Wolfe Rule of Civil Proce- Federal of principles alleged claim his 2005 amend the id., 12(b)(6),” the court concluded see dure Appel- Br. of petition. federal habeas See facts to state forth sufficient set Wolfe court of “an (accusing lant 43 Giglio claims. See Brady and meritorious judicial power”). Common- abuse that Wolfe (observing 12 Schlup Order though strident —conten- wealth’s weak— rights,” his violations of “alleged serious long do not detain us. respect tions in that made “allegations [were] those all, agree we First of discovery that benefit of without the even that an amendment Wolfe’s additional excul- could lead to considerable necessary, not because petition 2254 material”). also ruled The court patory issues “fall his new evidence-related three of the six “met at least [existing Brady squarely within the “ factors,” in that ‘the merits [Townsend ] (specifying 2 Amendment Order claim].” dispute were not resolved of the factual granted to amend was that Wolfe’s motion ” “ (factor 1); ‘there is a hearing’ the state caution”); an abundance of “merely out of newly discovered allegation of substantial (Wolfe’s 2005 federal see also J.A. 2854 (factor 4); and “‘the material evidence’” broadly alleging that the petition, habeas adequately developed at the facts were not ” Brady rights Commonwealth violated (factor 5). at 12 hearing’ state-court alia, “[e]xculpatory by suppressing, inter Townsend, 83 (quoting impeachment evidence related to 745); 565 F.3d at see also S.Ct. witness, key Owen Bar- Commonwealth’s 5 (observing that factors ber”). here”). Accord- “appear applicable to be request ingly, granted the court Wolfe’s Furthermore, reject we Com evidentiary hearing, as well as his for an of “last- depiction monwealth’s unfounded predicate discovery. for motion beyond scope far minute amendments discretion, abusing Far from the dis- violation the ‘mandate [in of] remand in a assessment engaged trict court sound ” Appellant rule.’ See Br. of 43. To evidentiary hearing Prem- issue. explicitly I mandate contrary, our Wolfe analysis, appro- on that the court also

ised authorized the district court to conduct (if not found that priately explicitly) proceedings “such other and further for “good had demonstrated cause” discov- may 565 F.3d at 171. appropriate.” be ery. Quesinberry Taylor, F.3d event, seriously to take it is difficult Cir.1998) (“Good (4th cause is un protestations of the Commonwealth’s petitioner specific if the makes a shown ambush, fair when Wolfe had labor allegation that shows reason to believe from row to years death obtain may be able to demon- petitioner relief.”). tenaciously he As a concealed strate that is entitled that had been properly ob- foregoing, Commonwealth, result of the and that the evidence, includ- tained new and relevant prior to obviously should have disclosed ing report, the Newsome the remand trial. capital murder proceedings. C. procedural hurdles With Wolfe’s per- nevertheless

The Commonwealth us, to consider the sub- proceed reli- behind sists in its efforts to thwart Wolfe’s Banks, claim. Because we 540 U.S. at Ms stance (internal omitted). long- quotation on an of that claim—the aspect focus marks report was not concealed Newsome Commonwealth did contest not the sup- —that adjudicated proceedings, state court pression issue in the pro- district court 2254(d) owe no 28 U.S.C. deference and does so in ceedings, appeal. not do this any v. An- state decision. See Monroe Because Commonwealth concedes that (4th Cir.2003) 286, 297 323 F.3d gelone, report, it withheld ‍‌​​‌‌​‌‌‌​​‌​​​‌‌​​‌‌​​​‌‌‌​‌‌​​​​​​‌​​​‌​‌‌‌​​‌‍the Newsome and be- (“[Section 2254(d)’s] require- deference cause the willfulness or inadvertence of its does not when a claim made on apply inconsequential ment transgression is to our premised federal is on Bra- analysis, habeas review say we could no more on dy material that has Nevertheless, surfaced for the first the issue. we feel compelled during proceedings.”); time federal see acknowledge that the Commonwealth’s Pearson, (4th also Winston v. 683 F.3d 489 suppression of the report, Newsome Cir.2012). Rather, we materials, review the apparent Brady well as other “legal de entirely court’s conclusions novo and find- was intentional. Monroe,

ings of fact error.” for clear During evidentiary hearing in F.3d at 299. court, At- Commonwealth’s torney explained that his office does not 1. “open-file have an policy,” providing crimi- previously explained, As to succeed nal defense counsel access to entire case claim, required on his Wolfe is first elaborate, files. See J.A. 3690. Asked to report to show that the Newsome is “fa he the flabbergasting explanation offered [him], excub vorable to either because it is has past that he “found in the you when it patory, impeaching.” or because is See given have information that is to certain Dretke, Banks v. U.S. defendants, counsel certain they are (inter (2004) 1256, 157 L.Ed.2d able to fabricate a defense around what is omitted). quotation nal marks The New- provided.” Additionally, the Assistant report indubitably impeaching, some is Attorney Commonwealth’s admitted that only establishes motive not produce he does not to a criminal else, implicate Barber to someone but to defendant unless he first deems it to be point finger In specifically Wolfe. ]” “credible].” Id. at 3782. “material deed, it cannot be trivialized that —as De rightly The district court lаmbasted that own report tective Newsome’s demon in Brady conduct Order: fed crux strates —Newsome Barber the effect, Ebert admits here that his i.e., testimony, that he hired was contempt of defendants who “fabricate simply, Wolfe murder Petrole. Put guides defense” his perspective on dis- crucial, Newsome evi impeaching is closing information. This is particularly subject “unquestionably dence that was troubling in at bar the case where the Brady.” Spicer disclosure under replete record with statements from Inst., (4th Roxbury Corr. Conway Ebert and regarding the scruti- Cir.1999). ny credibility determinations that (as made they opposed jury) to the re- garding any potential relevance exculpatory Essentially, next must establish that the New- evidence. in an State, “suppressed by no was effort ensure that defense would “fabricated,” willfully inadvertently.” Conway’s either be Ebert ac- evidence were imma- impeachment deprive tions served terial, because even without Barber’s tes- in a ease where his defense substantive timony that hired him to murder jury’s rest on the verdict. life would Petrole, overwhelming trial evi- there only these actions not The Court finds Concomitantly, guilt. dence of Wolfe’s regards pro- to due unconstitutional the dis- the Commonwealth asserts cess, judicial pro- but abhorrent ignored important pieces trict court cess. evidence, improperly and thus non-Barber 24; n. Muham- Brady Order 566 see also Brady in weigh failed to them the Order (4th 359, Kelly, v. 575 F.3d 370 Cir. mad materiality analysis. The Common- 2009) (refusing suppression to condone the Brady argument by is belied wealth’s County by of evidence the Prince William Order, carefully which outlined the trial advising them to “err on prosecutors, and evidence and came to the inevitable con- disclosure, especially when a the side of testimony Barber’s clusion that “Owen facing specter of execu- defendant is only was the evidence the Prosecu- tion”). sincerely hope that the Com- We presented prove tion hired [Wolfe] Attorney and his assistants monwealth’s kill Barber to Petrole.” Order 565. finally of those have taken heed rebukes. Upon our own review of the trial record I appeal, grasped in the we also key prosecution’s that “Barber was the course, yet ineligible Of Wolfe is capital witness Wolfe’s trial and the 2254 relief on his claim unless for only provide witness to direct evi- showing “prejudice he makes a third —that regarding the ‘for hire’ element of dence ... ensued” from the Commonwealth’s the murder offense the involvement suppression report. of the Newsome therein.” 565 at 144. F.3d Banks, 540 124 S.Ct. 1256 U.S. And, the itself conceded Commonwealth (internal omitted). quotation marks sentencing hearing at Barber’s on his non- requires prejudice inquiry us determine capital murder conviction—where he re- report if the “material” Newsome is just sixty years ceived a sentence i.e., guilt, whether “there is a rea Wolfe’s prison, twenty-two years suspend- that, probability sonable had the [New- testimony ed—that “but [Barber’s] disclosed, report] been the result of probably Mr. would not have been Wolf[e] would have been different.” [trial] See prosecuted.” J.A. 5144. Bell, 449, 469-70, 556 129 Cone U.S. circumstances, jury In these where “the (2009). 1769, 173 701 Im S.Ct. L.Ed.2d had to believe that Barber was credible portantly, probability a reasonable does and that his version of events was in fact likely not mean that Wolfe “would more support truthful and accurate order to than not have received different verdict conviction,” [Wolfe’ s] Order report],” only with the that the [Newsome materiality of the Newsome is great likelihood of a different result —Cain, manifest. See Smith v. U.S. enough to “undermine[ ] confidence -, 627, 630, 132 S.Ct. 181 L.Ed.2d 571 Kyles outcome of the trial.” See v. Whit (2012) that, (holding eyewitness’s where ley, “testimony only linking was the evidence (1995) (internal quotation L.Ed.2d crime,” eyewit- [the defendant] omitted). marks prior ness’s undisclosed inconsistent state- material”); principally plainly The Commonwealth con- ments “were Harris v. (6th Cir.2009) Lafler, tends the Newsome and other (“Considerable authority from the may Su- “a court alter or amend the preme Court and our court that a judgment shows[, indicates if alia,] the movant inter prejudice suffers defendant from the with- that thеre has been a clear error of law or holding of impeachment injustice,” favorable evidence subject manifest to review when the prosecution’s hinges case on the “under the deferential abuse of discretion witness.”); Monroe, standard”). testimony of one that, F.3d at 315-16 (explaining because a The Commonwealth further asserts that prov- witness’s was “crucial” to improperly vacated ing premeditation, there was “a reasonable drug conspiracy conviction because probability that would not [the defendant] was unaffected the suppression of have first-degree been convicted of mur- any Brady material. Significantly, it is if tending impeach der” position Commonwealth’s disclosed). properly witness had been drug conviction and attendant thirty-year Wolfe therefore satisfies the third and fi- sentence were secured on the basis of nal element of his claim.8 Wolfe’s trial testimony, wherein he “not

only drug admitted to dealing, bragged but D. about dealing on a massive scale.” See Br. Appellant that, (contending 57 in light of Having confirmed that Wolfe is en Wolfe’s self-incriminating testimony, relief, titled to 28 U.S.C. 2254 only “[tjhere likelihood, was no much less a remaining issue before us is whether the one, reasonable that Wolfe would not have properly district court all vacated three of been conspiracy convicted of to distribute convictions, including Wolfe’s his convic marijuana allegedly had the withheld evi- tion conspiring marijuana, to distribute dence part about Wolfe’s in the murder statutory for which he received the maxi disclosed”). been The Commonwealth em- mum of thirty years. sentence See Relief phasizes that ‘Wolfe’s unrepentant brag- Order 1 full (deeming appropriate vacatur gadocio was the focus of the Common- “Brady because the Commonwealth’s wealth’s closing arguments” “justified Giglio violations ... permeated the fair the Commonwealth’s call for the maximum charges”). ness of trial on all In [Wolfe’s] Indeed, sentence.” Id. although the Com- decision, contesting the court’s vaсatur monwealth refers in its opening brief to Commonwealth criticizes the court’s reli “overwhelming evidence of a far-reaching ance on Federal Rule of Civil Procedure drug conspiracy,” at only id. evi- 59(e) to amend the Judgment. Unfortu dence discussed therein with specifici- Commonwealth, nately for the the court ty damning is Wolfe’s own testimony. acted well within its discretion. See Rob LLC, inson v. Corp. Wix Filtration In response, that, Wolfe maintains in the (4th Cir.2010) F.3d (explaining absence report of the Newsome and other Moreover, 8. We are not deal-garnering perpetrator. convinced otherwise con- attempt portray Commonwealth's the New- trary suggestion to the Commonwealth's jury as immaterial because "the being by prosecu- Barber denied influenced impeaching knew the far more fact that Bar- Wolfe, id., police tors and to name see Barber penalty ber had ... avoided the death evidentiary testified in the district court's testimony.” Appel- return for his See Br. of truth, hearing "they they said wanted thе got lant 22. Evidence that Barber a deal for they but the same time said that this is implicating hardly impeach- Wolfe is "more you got say you what getting have are ing” than the Newsome evidence that chair,” J.A. 3752. specified Detective Newsome Wolfe as the Pelullo, impeach- United States v. wrongfully suppressed (3d Cir.1997) evidence, that, only option (concluding ment “his was to take where the Bar- against and stake his word government the stand committed violations option, for as the ber’s—an unattractive allegedly the defendant’s tri- adduced acknowledges!,] required Commonwealth testimony, al could not be committing felony Wolfe to admit to against used the defendant at a subse- thirty years’ imprisonment.” risk Br. of quent government trial could unless Wolfe, Appellee According prove that “the defendant would have tes- little lawyer anyway would have had reason tified even if there had been no [his] on the stand if he could put (citing constitutional violation” Harrison v. [Wolfe] another, States, forth more credible put havе United 88 S.Ct. (1968) Instead, theory. (“Having admis- defense L.Ed.2d ‘re- guilt spring’ by using petitioner’s sion of became his defense: leased the closing, jury’s unlawfully called the against Wolfe’s counsel obtained confessions him, guilt attention to Wolfe’s admission of the Government must show that its drug charges to contrast it with his illegal action did not induce his testimo- course, protestations of innocence of murder. ny.”))). Of as the district court’s reflects, drug prosecution Judgment The Commonwealth’s the Commonwealth is sys- enormously retry murder, thus benefited from its free to Wolfe on the fire- suppression arm, tematic evidence. drug conspiracy charges.9 and (citations, alteration, in- Id. at 72-73 and omitted).

ternal marks quotation III. entirely by We are convinced Wolfe’s Pursuant foregoing, to the we affirm the Because the contentions. Commonwealth Judgment of the court. testimony concedes that trial Wolfe’s AFFIRMED drug conspiracy central to his conviction sentence, and and because the Common- DUNCAN, Judge, dissenting Circuit wealth cannot prove Wolfe would have part: report if the testified Newsome had not suppressed, agree been we with the I regard appreciation dis- write with and for trict court that majority’s disposition Wolfe is entitled to vacatur mur of all three of his state convictions. der-for-hire and firearm I convictions. Cf. record, unwilling alty 9. We are to mine the trial offense of murder-for-hire. With the distinguished colleague urges, hand, as our iden- report readily Newsome Wolfe could evidence, tify testimony, aside from Wolfe’s as, impeached by have Barber —as well exten- might drug conspiracy sustain his con- sion, corroborating the evidence Barber's viction. The Commonwealth itself has ab- story implicating murder-for-hire post stained from such endeavor. See drug dealing compelling with' — (acknowledging 426-27 that “the Common- story plant- that the murder-for-hire had been not, argument, greatly did wealth in its aid in by ed with Barber Detective Newsome. As Moreover, analysis”). our whatever evidence such, the conduct of the in con- inevitably by prosecutori- exists is tainted cealing the Newsome undermines con- By depriving al misconduct in this case. propriety fidence in the fairness and report, example, Wolfe of Newsome trial, including drug conspiracy entire only the Commonwealth not induced Wolfe to conviction, rendering that misconduct a suffi- gainsay take the witness stand to Barber’s independent vacating cient basis for each of story, compelled trial but the defense to aban- ordering Wolfe’s convictions and for his un- challenge alleged drug conspir- don its acy against pen- in order to defend the death conditional release or retrial. must, however, And, respectfully narrowly charges. indeed, on the more serious not, granting argu- from its of habeas relief Commonwealth did dissent ment, greatly analysis. conviction. aid our drug conspiracy on the The Com- record, and, majority monwealth’s behavior far significantly, here is from ex- it, ample emplary. But the directly does not refute contains Newsome cannot carry weight majority assign evidence from sourcеs other than Wolfe’s would to it. support drug conviction. Because the amount of evidence drug conspiracy The district court’s Relief Order does not as to the untainted violation, I drug conspiracy very address the merits of the would at the least all, pur issue at and the case on which it remand conviction to the district court rely ports inapposite specific as to that for its consideration. Clarke,

charge. See No. l:05-cv (E.D.Va. 2011) ‍‌​​‌‌​‌‌‌​​‌​​​‌‌​​‌‌​​​‌‌‌​‌‌​​​​​​‌​​​‌​‌‌‌​​‌‍Aug. (citing Mon (4th Angelone,

roe v. 293 n. 5 .2003)).*

Cir fully recognize appreciate the fo- majority

cus of the district court and the * Monroe, Monroe, however, granted peti- habeas relief to a tions. Unlike in Wolfe is here, charged, charged drug conspiracy, tioner as Wolfe is with murder also with a nothing suggests and the use of a firearm in the commission of in Monroe habeas relief is felony agreed appropriate because we with the district freestanding charge also for a supported by court’s determination that the Common- considerable evidence free of Virginia tiny infirmity. wealth of had committed viola- Constitutional

Case Details

Case Name: Justin Wolfe v. Harold Clarke

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Aug 21, 2012

Citation: 691 F.3d 410

Docket Number: 11-6, 11-7

Court Abbreviation: 4th Cir.