Justin Wolfe v. Harold Clarke

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 2:05-cv-00432-RAJ-DEM Paper copies to all parties and the district court/agency. [998917593]. [11-6, 11-7]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-6

JUSTIN MICHAEL WOLFE,
Petitioner – Appellee,
v.
HAROLD
W.
CLARKE,
Corrections,

Director,

Virginia

Department

of

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.

No. 11-7

JUSTIN MICHAEL WOLFE,
Petitioner – Appellant,
v.

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HAROLD
W.
CLARKE,
Corrections,

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Director,

Virginia

Department

of

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.

Appeals from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:05-cv-00432-RAJ-DEM)

Argued:

May 17, 2012

Decided:

August 16, 2012

Before KING, DUNCAN, and THACKER, Circuit Judges.

Affirmed by published opinion.
which Judge Thacker joined.
opinion dissenting in part.

Judge King wrote the opinion, in
Judge Duncan wrote a separate

ARGUED:
Katherine Baldwin Burnett, OFFICE OF THE ATTORNEY
GENERAL OF VIRGINIA, Richmond, Virginia, for Appellant/CrossAppellee.
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
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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.

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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

further

proceedings.

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 (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 (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.
2011,

the

court

vacated

By its judgment of August 30,

Wolfe’s

capital

murder

and

other

convictions, and ordered the Commonwealth to either retry him
within 120 days or release him unconditionally from custody.
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The judgment was stayed pending this appeal by the Commonwealth,
which

was

initiated

on

its

behalf

by

respondent

Harold

Clarke, Director of the Virginia Department of Corrections. 1
Commonwealth

challenges

finish,

contending

that

fatally

erred

its

in

the

remand

the

proceedings

district

procedural

and

court

from

start

repeatedly

substantive

W.
The
to
and

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

murder,

using

jury
a

found

firearm

in

Wolfe
the

guilty

commission

conspiring to distribute marijuana.
149.

in

2002
of

a

of

capital

felony,

and

See Wolfe I, 565 F.3d at

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 nineteenyear-old marijuana dealer in northern Virginia, hired his close
1

Clarke has served as Director of the Virginia Department
of Corrections since 2010, when he replaced former respondent
Gene M. Johnson.

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friend and fellow drug dealer Owen Barber IV to murder drug
supplier Daniel Petrole in March 2001.
(explaining

that

“Virginia

defines

Id. at 144-45 & n.2
‘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.”
at 144.

Id.

In exchange for Barber’s testimony that he was Wolfe’s

hired triggerman, the Commonwealth dismissed its capital murder
charge
murder.

against

Barber,

and

he

pleaded

guilty

to

non-capital

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

affidavits

of

supporting

corroborating

the

materials,
Barber
6

including

affidavit

and

additional
suggesting

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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

default

of

asserted

a

Wolfe’s

first

second

constitutional

ground

prejudice” standard.

ground

having

to

excuse

any

procedural

—

the

previously

claims

been

the

separate

Id. at 154, 158 & n.27.

“cause

and

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

affidavit exculpating Wolfe.
with

that

notice,

Wolfe’s

the

statements

Id. at 155-56.
lawyers

in

his

2005

In conjunction

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.
n.25.

See Wolfe I, 565 F.3d at 156 &

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
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dismissed Wolfe’s petition.
alia,

that

the

“considered

court

(and

did

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Id. at 158-59 (explaining, inter
not

rejected)

address
Wolfe’s

the

Schlup

contention

issue,

but

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.
171.

Id. at

We also advised the court that it was free to revisit its

cause and prejudice ruling.

Id. at 165 n.35.
B.

Without
prejudice

explicitly

ruling,

the

reconsidering
district

court

its

prior

decided

the

cause

and

procedural

Schlup issue early in the remand proceedings, by its opinion and
order of February 4, 2010.

See Wolfe v. Clarke, No. 2:05-cv-

00432 (E.D. Va. Feb. 4, 2010) (the “Schlup Order”). 2

The court

therein determined, largely on the existing Wolfe I record, that
2

The Schlup Order is found at J.A. 3266-78.
(Citations
herein to “J.A. __” refer to the contents of the Joint Appendix
filed by the parties in these appellate proceedings.)

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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

reasonable

juror

reasonable

it

doubt.”

was

would

have

Id.

“more
found

(applying

likely

than

Wolfe
Schlup,

not

guilty
513

that

no

beyond

a

U.S.

at

327

(requiring petitioner to “show that it is more likely than not
that no reasonable juror would have convicted him in the light
of the new evidence”)).

Accordingly, the court announced that

Wolfe had “met the Schlup standard,” thus justifying review of
the merits of his procedurally defaulted constitutional claims.
Id.

The court also granted Wolfe’s request for an evidentiary

hearing, as well as discovery.

Id. at 13.

During the contentious course of the discovery proceedings,
Wolfe

had

to

move

to

discovery obligations.

compel

the

Commonwealth

to

meet

its

A June 4, 2010 hearing on Wolfe’s motion

revealed, inter alia, that the Commonwealth had provided only
unsworn responses to the interrogatories it had answered, had
wholly

failed

refusing

to

to

respond

produce

to

other

approximately
9

interrogatories,
916

documents

and

was

that

it

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unilaterally deemed irrelevant.

By its order of June 7, 2010,

the district court directed the Commonwealth to provide sworn
responses to Wolfe’s interrogatories, including those previously
unanswered,

and

theretofore

to

allow

undisclosed

protective order.

Wolfe

to

documents,

examine

the

subject

hundreds

to

an

of

agreed

See Wolfe v. Clarke, No. 2:05-cv-00432 (E.D.

Va. June 7, 2010) (the “Discovery Order”). 3

To give Wolfe an

opportunity to assess the evidence that would be forthcoming
under the Discovery Order, the court was constrained to postpone
the impending evidentiary hearing.
The evidentiary hearing finally ensued late that autumn,
when it was conducted over the four days of November 2-3 and 1617, 2010.

On the second day of the hearing, in response to the

Commonwealth’s
evidence

in

objection

support

of

to

Wolfe’s

his

existing

use
Brady

of

newly

and

disclosed

other

claims,

Wolfe filed a motion to amend his 28 U.S.C. § 2254 petition.
See J.A. 4026-27 (arguing that the Commonwealth “has tenaciously
fought to deny Wolfe access to any facts that would have enabled
him

to

plead

additional

Brady

. . .

sub-claims,”

and

thus

“should not be rewarded for playing hide-the-ball” and “should
not be allowed to blame Wolfe for lacking the clairvoyance to
include these proposed amendments to his 2005 federal habeas
3

The Discovery Order is found at J.A. 3517.

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petition without the benefit of the withheld documents”).

By

its mid-hearing order of November 12, 2010, the district court
granted

Wolfe’s

motion

to

amend

“out

of

an

abundance

of

caution,” but found that “even in the absence of the [motion],
the issues [Wolfe] raises fall squarely within the [existing
Brady claim].”

See Wolfe v. Clarke, No. 2:05-cv-00432 (E.D. Va.

Nov. 12, 2010) (the “Amendment Order”). 4
Thereafter, by its opinion and order of July 26, 2011, the
court determined that Wolfe was entitled to habeas corpus relief
premised on, inter alia, the Commonwealth’s manifold violations
of his Brady rights.

See Wolfe v. Clarke, No. 2:05-cv-00432

(E.D. Va. July 26, 2011) (the “Brady Order”). 5

Specifically, the

court ruled in the Brady Order that the prosecution had withheld
eight

items

or

groups

of

favorable

falling into three broader categories:

and

material

evidence,

(1) evidence tending to

impeach triggerman Barber; (2) evidence tending to impeach other
prosecution witnesses who corroborated Barber’s testimony; and
(3)

evidence

murder.
his

an

alternate

theory

of

the

Petrole

The court also deemed Wolfe to be entitled to relief on

claim
4

suggesting

that

the

prosecution

knowingly

presented

false

The Amendment Order is found at J.A. 4059-60.

5

The Brady Order, which amended an earlier decision of July
12, 2011, is found at J.A. 5203-59 and published at 819 F. Supp.
2d 538 (E.D. Va. 2011).

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testimony

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by

Barber,

in

Pg: 12 of 40

contravention

of

Wolfe’s

Fourteenth

Amendment due process rights under Napue v. Illinois, 360 U.S.
264 (1959), and Giglio v. United States, 405 U.S. 150 (1972)
(the “Giglio claim”), as well as his claim that the state trial
court deprived him of his rights under the Sixth and Fourteenth
Amendments

to

an

impartial

jury

by

striking

venireman for cause (the “venireman claim”).

a

qualified

Notably, the court

closed its Brady Order by specifying that Wolfe’s “conviction
and sentence” — both in the singular — were vacated.

See Brady

Order 57.
Wolfe timely filed a Federal Rule of Civil Procedure 59(e)
motion

to

court’s

alter

or

amend

clarification

the

that

judgment,

the

seeking

awarded

the

relief

district

encompassed

vacatur of not only his murder conviction and death sentence,
but also his convictions and sentences for using a firearm in
the

commission

marijuana.

of

a

felony

and

conspiring

distribute

The court granted Wolfe’s motion by its order of

August 30, 2011.

See Wolfe v. Clarke, No. 2:05-cv-00432 (E.D.

Va. Aug. 30, 2011) (the “Relief Order”).
therein

to

that,

“[i]n

light

of

[its]

The court clarified

finding

that

[Wolfe]

was

denied the right to due process during his state criminal trial,
[he]

is

entitled

to

a

new

trial

day, the

judgment

was

amended

charges

previously

Relief Order 1-2.

considered by the state court.”

That same

to

12

on

all

direct

the

Commonwealth

to

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retry Wolfe within 120 days or release him unconditionally.

See

Wolfe v. Clarke, No. 2:05-cv-00432 (E.D. Va. Aug. 30, 2011) (the
“Judgment”).

The Judgment was subsequently stayed pending this

appeal by the Commonwealth.

See Wolfe v. Clarke, No. 2:05-cv-

00432 (E.D. Va. Nov. 22, 2011) (the “Stay Order”). 6
We

possess

jurisdiction

pursuant to 28 U.S.C. § 1291.

over

the

Commonwealth’s

appeal

Further, because we granted Wolfe

a certificate of appealability for a cross-appeal, we have 28
U.S.C.

§§ 1291

contention

that

and

2253(c)

the

district

jurisdiction

to

court

have

should

relief on an additional, unadjudicated claim:

consider
granted

his
him

that “[e]ven if

the prosecutors had no knowledge of Barber’s perjury at the time
of trial, they do now,” and thus his continuing detention by the
Commonwealth “‘constitute[s] a due process violation.’”

See Br.

of Appellee 62-63 (quoting Sanders v. Sullivan, 863 F.2d 218,
224 (2d Cir. 1988)) (the “Sanders claim”); see also Brady Order
52 (ruling in favor of Wolfe on his Giglio, rather than Sanders,
claim, premised on the finding that the Commonwealth “presented
Barber’s

trial

testimony

despite

having

information

in

its

possession indicating that the testimony was false”).

6

The Relief Order is found at J.A. 5293-94, the Judgment at
J.A. 5295, and the Stay Order at J.A. 5407-29.
The Stay Order
is published at 819 F. Supp. 2d 574 (E.D. Va. 2011).

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As explained below, we need look no further than one item
of the first category of evidence withheld from Wolfe’s defense
by the prosecution — the evidence tending to impeach Barber —
to

agree

with

the

district

court

that

Wolfe

deserves

habeas

corpus relief on his Brady claim and affirm the Judgment.

See

Brady Order 42 (observing “that the suppressed habeas evidence
relating

to

Barber

under Brady”).
substance
evidence

or

alone

is

enough

to

warrant

habeas

relief

Consequently, we need not review any issues of
procedure

underlying

related

Wolfe’s

solely

Brady

to

claim,

the
or

other
to

withheld

his

Giglio,

Sanders, and venireman claims.

II.
A.
The

single,

impeachment
written

plainly

evidence

police

on

report

momentous
which

item

of

suppressed

we

rest

today’s

reflecting

that

—

Barber

decision

before

is

Barber

a

ever

asserted that Wolfe hired him to murder Petrole — Prince William
County Detective Newsome advised Barber that he could avoid the
death

penalty

by

“Newsome report”).

implicating

Wolfe.

See

J.A.

4825-27

(the

The Newsome report documents Newsome’s and

fellow Detective Walburn’s conversations with Barber during an
April

14,

2001

cross-country

flight,

returning

Barber

to

Virginia upon his arrest in California three weeks after the
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Petrole murder.

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In pertinent part, the Newsome report reveals

the following:
I told Barber that we knew he had killed Petrole and
had a very strong case against him.
But that as far
as we knew he had no personal problem with Daniel
Petrole but that he had killed him for someone else
and we believed that person was Justin Wolfe.
I
explained to him that we needed the information that
he had in order to arrest Wolfe.
I explained again
that we had a very strong case against him (Barber)
and that we could stop there but that would not be
right since we knew it was someone else [sic] idea. I
told him that he was potentially facing a capitol
[sic] murder charge in this case and that he needed to
help himself.
He asked me, “What do I get out of it
if I tell you who the other person, the higher up,
is”. I told him I could not make any promises to him,
but that the Commonwealth might entertain the idea of
not charging him with Capitol [sic] Murder, or that
they may be willing to make a recommendation as to his
sentence.
Again Barber asked about discovery and I again
explained it to him. He then said, What do I get out
it [sic] if I name the “higher up”.
I told him that
was one of his problems; that his case was so tight he
really had very little to offer us.
I told him it
could simply be the difference between Capitol [sic]
murder or First Degree, execution or life in prison,
or that the Commonwealth may be willing to make a
recommendation in sentencing after speaking to his
attorney.
I told him again that the Commonwealth’s
Attorney would make these decisions and that I could
not promise him anything. I pointed out that at this
point he would do more good than harm for himself by
cooperating with us.
J.A. 4826-27.
The Commonwealth inexplicably withheld the Newsome report
from Wolfe until these 28 U.S.C. § 2254 proceedings in 2010,
after Wolfe’s first appeal and during the contentious discovery

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proceedings conducted in the Wolfe I remand.
report

was

Commonwealth

among

the

argued

newly

was

disclosed

outside

the

Thus, the Newsome
evidence

legitimate

that

the

purview

of

Wolfe’s Brady claim — a contention that was roundly rejected by
the

district

court

in

its

mid-evidentiary-hearing

Amendment

Order of November 12, 2010.

During the evidentiary hearing, as

recounted

subsequent

in

the

court’s

Brady

recanted his trial testimony while under oath.”
Barber

also

engaged

in

the

following

Order,

“Barber

Brady Order 50.

exchange

with

Commonwealth’s lawyer during cross-examination:
Q.

You related that several times they had said if
you don’t tell us what we want, you will get
capital murder?

A.

Yeah.

Q.

Who is they?

A.

[Commonwealth’s
Attorney]
Ebert,
[Assistant
Commonwealth’s
Attorney]
Conway,
[Barber’s
attorney]
Pickett,
[Detective]
Newsome,
[and
Detective] Walburn.

Q.

But if my notes are correct, they never told you
exactly what to say.
They didn’t give you a
script for the events of that night, did they?

A.

A specific script for the events, no.

Q.

They in fact told you what they wanted was the
truth, didn’t they?

A.

They said that they know Justin [Wolfe] is
involved and that we know that he hired you to
kill Danny [Petrole].

16

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Well, what they told you they wanted you to tell
them was the truth. Wasn’t that their statement?
* * *
Wasn’t that their
wanted the truth?

A.

statement

to

you,

that

they

Yeah.
I mean, they said they wanted the truth,
but at the same time they said that this is what
you have got to say or you are getting the chair.

J.A. 3751-52.
foregoing

By its Brady Order, the district court found the

testimony

by

Barber

suppressed [Newsome] report.”

to

be

“consistent

See Brady Order 9 n.9.

with

the

The court

also deemed Barber’s recantation to be “credible” and generally
found his “demeanor and candor” to be “persuasive.”
Among
court’s

the

Brady

prosecution

enumerated
Order

failed

is
to

findings
the

of

fact

in

finding

(No.

6)

disclose

Detective

Id. at 50.
the

district

that

“[t]he

Newsome’s

report

outlining his initial interview with Owen Barber on April 14,
2001,

during

which

he

[Newsome]

implicated

Wolfe

as

being

involved in the murder before Barber mentioned his [Wolfe’s]
involvement.”

Brady Order 8.

The court also spelled out the

controlling legal standard for assessing Wolfe’s Brady claim,
observing that, “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.”

Id. at 4 (citing Banks v. Dretke, 540 U.S. 668, 691

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In concluding that the emergence of the Newsome report

entitled Wolfe to habeas corpus relief, the court explained:
This information is favorable to Wolfe because it
documents the fact that detectives first mentioned
Wolfe in connection to the murder and presented Barber
with the option of execution or life imprisonment in
exchange for implicating someone else, well before
Barber began cooperating with the Commonwealth or
implicating Wolfe in the murder.
Prosecutors do not
dispute the fact that the report was not provided to
[Wolfe].
Furthermore, the report is material because
it reflects that Barber had a motive to misrepresent
the facts regarding Petrole’s death.
Id. at 20. 7

7

In its Brady Order, the district court also assessed the
cumulative materiality of the Newsome report and the seven other
items or groups of suppressed evidence that it found favorable
to Wolfe.
See Brady Order 37-44.
The first category of that
evidence — evidence tending to impeach Barber — encompasses the
Newsome report, plus evidence that Barber possessed other
motives to murder Petrole (the “Barber-Petrole relationship
evidence”) and that Barber’s roommate, Jason Coleman, informed
the prosecution that Barber had confessed to acting alone (the
“Coleman evidence”).
See id. at 15-22.
The Barber-Petrole
relationship evidence includes statements made by confidential
informants and Barber’s fellow inmates indicating that Barber
knew Petrole before the murder, that Barber owed Petrole money,
that Petrole “had a hit out” on Barber, and that Barber had a
close relationship with Petrole’s roommate.
See id. at 15-19.
The Coleman evidence revealed that Coleman “had a conversation
with Barber after the murder where Barber admitted to [Coleman]
that he murdered Petrole and acted alone,” and that Coleman
reported that conversation to the prosecution, including the
Commonwealth’s Attorney. Id. at 20.
The second category of suppressed evidence — evidence
tending to impeach other prosecution witnesses who corroborated
Barber’s testimony — includes information relating to a deal the
Commonwealth made with its witness J.R. Martin in exchange for
his cooperation (the “Martin evidence”), as well as a recorded
statement made by the Commonwealth’s witness Jason Hough in
(Continued)
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B.
According

to

the

Commonwealth,

we

should

not

reach

or

address the merits of the Newsome report aspect of Wolfe’s Brady
claim, because the Newsome report would never have surfaced or
been

made

rulings

available

made

proceedings.

by

the

to

Wolfe

but

district

for

court

in

the

flawed

the

Wolfe

procedural
I

remand

In that regard, the Commonwealth asserts that the

court erred in three respects:

by generally excusing Wolfe’s

procedural defaults under the Schlup actual innocence standard;

conflict with his subsequent trial testimony regarding his prePetrole-murder conversation with Wolfe and Coleman about robbing
drug dealers (the “Hough evidence”).
See Brady Order 22-28.
Finally, the third category of withheld evidence — evidence
suggesting an alternate theory of the Petrole murder — consists
of the following:
various reports and witness statements
relating to a parallel drug investigation that indicated
conflict in Petrole’s drug business unrelated to Wolfe’s
purported motive for having Petrole murdered (the “drug
investigation evidence”); evidence that Petrole was rumored to
be a government informant, constituting yet another possible
motive for his murder (the “informant evidence”); and the
statements of three witnesses that they saw a second car at the
crime scene shortly after the Petrole murder (the “second car
evidence”). See id. at 28-36.
Having assessed the materiality of the foregoing — the
Newsome report, the Barber-Petrole relationship evidence, the
Coleman evidence, the Martin evidence, the Hough evidence, the
drug investigation evidence, the informant evidence, and the
second car evidence — the district court concluded that the
evidence’s suppression by the prosecution was, by category and
cumulatively, patently prejudicial.
While we look no further
than the Newsome report today, we do not condone the
prosecution’s apparent suppression of other Brady material and
the pattern of conduct that it reveals.
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by authorizing discovery and conducting the evidentiary hearing;
and by allowing Wolfe to amend his 28 U.S.C. § 2254 petition to
broaden his Brady claim to include the Newsome report and other
newly disclosed evidence.

We examine those assertions in turn.
1.

Attacking the Schlup Order, the Commonwealth argues that
the

district

proceedings

court

that

erred

Wolfe

by

ruling

satisfied

the

early
Schlup

in

the

actual

remand

innocence

standard on the basis of the Wolfe I record, including the 2005
affidavit
denied

in

which

Wolfe’s

Barber

recanted

involvement

in

his

the

trial

Petrole

testimony
murder.

and
The

Commonwealth emphasizes that the court, in looking at that same
record, had already decided that the Barber affidavit lacked
credibility.

See

explained

about

justify

its
any

finding

Br.

of

face
of

Appellant
and

the

‘innocence’

47

(“The

record

court

certainly

under

Schlup

never

did

not

. . . .”).

Wolfe, of course, defends the Schlup Order, asserting that “the
correctness of the district court’s findings was confirmed when
Barber recanted

his

trial

testimony

while

[post-Schlup Order] evidentiary hearing.”

under

oath

at

the

See Br. of Appellee

19-20 (internal quotation marks omitted); see also Brady Order
50 (finding Barber’s evidentiary hearing recantation “credible”
and his “demeanor and candor persuasive”).

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In any event, we need not reach or assess the parties’
competing contentions on the validity of the Schlup Order.
simply,

any

procedural

default

of

Wolfe’s

Brady

Put

claim

—

particularly as it relates to the Newsome report — was otherwise
excused under the separate “cause and prejudice” standard.

As

we explained in Wolfe I,
[a] procedural default is excusable under the cause
and
prejudice
standard
when
the
petitioner
demonstrates (1) “that some objective factor external
to the defense impeded counsel’s efforts to comply
with the State’s procedural rule,” Murray v. Carrier,
477 U.S. 478, 488 (1986), and (2) that “errors at his
trial . . . worked to his actual and substantial
disadvantage, infecting his entire trial with errors
of constitutional dimensions,” United States v. Frady,
456 U.S. 152, 170 (1982).
Wolfe I, 565 F.3d at 158 n.27 (alteration in original).

On

remand, after having decided the Schlup issue in Wolfe’s favor,
the

district

court

understandably

declined

our

Wolfe

invitation to revisit its prior cause and prejudice ruling.
id.

at

165

precedent,

n.35.
the

Nevertheless,

district

court

pursuant

necessarily

to

Supreme

found

cause

I
See

Court
and

prejudice for the Brady claim’s default when it determined that
claim

to

be

meritorious.

See

Banks,

540

U.S.

at

691

(recognizing that “‘[c]ause and prejudice’ . . . ‘parallel two
of the three components of the alleged Brady violation itself’”
(quoting Strickler v. Greene, 527 U.S. 263, 282 (1999))).

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To illustrate, as recognized by the district court, “the
three components or essential elements of a Brady prosecutorial
misconduct claim” are the following:
must

be

favorable

to

the

“‘The evidence at issue

accused,

either

because

it

is

exculpatory, or because it is impeaching; that evidence must
have

been

suppressed

by

the

State,

either

willfully

inadvertently; and prejudice must have ensued.’”
U.S.

at

691

(quoting

Strickler,

527

U.S.

at

or

Banks, 540
281-82).

By

satisfying “the second Brady component (evidence suppressed by
the State), a petitioner shows ‘cause’ when the reason for his
failure
State’s

to

develop

facts

suppression

Additionally,
(prejudice),

of

“coincident
prejudice

in

state-court

the

relevant

with

the

proceedings

within

the

evidence.”

third

compass

was

Brady

of

the

the
Id.

component
‘cause

and

prejudice’ requirement exists when the suppressed evidence is
‘material’ for Brady purposes.”

Id.

Thus, by “succeed[ing] in establishing the elements of his
[Brady] claim” — which we today affirm that he did — Wolfe
concurrently “succeed[ed] in demonstrating ‘cause and prejudice’
[for his procedural default of that claim].”
U.S.

at

691.

By

these

circumstances,

the

challenge to the Schlup Order is rendered moot.

22

See Banks, 540
Commonwealth’s

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2.
Next, the Commonwealth asserts the district court erred in
the remand proceedings by authorizing discovery and conducting
the

evidentiary

hearing.

In

rejecting

the

Commonwealth’s

position, we emphasize that the court faithfully followed our
Wolfe I directions to “re-examine whether Wolfe has shown that
he is entitled to [an evidentiary hearing],” and then, “[i]f
such a hearing is warranted,” to “resolve any factual disputes
bearing on the procedural Schlup issue and the substantive Brady
and Giglio claims.”

See Wolfe I, 565 F.3d at 170-71.

We also

observe that Wolfe I pragmatically anticipated that discovery
would be conducted in conjunction with any evidentiary hearing.
See id. at 171 n.44 (advising that, “[i]f the court determines
that Schlup is satisfied on the existing record, any evidentiary
hearing and discovery proceedings may relate primarily to the
merits of Wolfe’s substantive claims” (emphasis added)).

We

therefore conclude that, in authorizing discovery and conducting
the evidentiary hearing, the district court acted well within
its discretion.

See Schriro v. Landrigan, 550 U.S. 465, 473

(2007) (recognizing that “the decision to grant an evidentiary
hearing [in a 28 U.S.C. § 2254 case is] generally left to the
sound discretion of the district courts”); see also Conaway v.
Polk, 453 F.3d 567, 582 (4th Cir. 2006) (relating that district
court’s decision on whether to conduct evidentiary hearing or
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authorize

discovery

Pg: 24 of 40

proceedings

is

reviewed

for

abuse

of

discretion).
Briefly, as we more thoroughly explained in Wolfe I, 565
F.3d at 166-71, if a § 2254 petitioner “has failed to develop
the

factual

basis

of

a

claim

§ 2254(e)(2)

bars

a

district

evidentiary

hearing

on

the

in

State

court

claim

court
from

unless

satisfy one of two statutory exceptions.

the

proceedings,”
conducting

an

petitioner

can

Importantly, however,

“‘a failure to develop the factual basis of a claim is not
established unless there is lack of diligence, or some greater
fault, attributable to the prisoner or the prisoner’s counsel.’”
Wolfe I, 565 F.3d at 167 (quoting Williams (Michael) v. Taylor,
529 U.S. 420, 432 (2000)); see also Cullen v. Pinholster, 131 S.
Ct.

1388,

“continues

1401
to

(2011)

have

(recently

force,”

in

affirming

that

it

that

“still

§ 2254(e)(2)
restricts

the

discretion of federal habeas courts to consider new evidence
when deciding claims that were not adjudicated on the merits in
state court” (citing Michael Williams, 529 U.S. at 427-29)).
Applying the controlling standard on remand, the district
court determined that § 2254(e)(2) did “not bar [Wolfe] from an
evidentiary hearing.”

See Schlup Order 11.

In so ruling, the

court observed that Wolfe had made diligent efforts in the state
court proceedings to develop his Brady claim by “request[ing] a
hearing,”

“fil[ing]

requests

under
24

the

Virginia

Freedom

of

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Information

Act,”

occasions.”

Id.

exculpatory

and

2005

at

Pg: 25 of 40

“mov[ing]
10.

Barber

for

discovery

Moreover,

affidavit

on

on

multiple

with

respect

to

the

which

Wolfe’s

federal

habeas petition largely relied, the court found that “[t]here
[was] no indication that Barber would have been willing to give
his

affidavit

lawyers

had

at

an

earlier

repeatedly

time,

attempted

statement and he had refused.”

particularly
to

get

as

Barber

Id. at 11.

[Wolfe’s]

to

make

a

The court thus

concluded that Barber’s prior reticence was “precisely the type
of external cause that . . . excuses a failure to fully develop
facts in state court.”
(explaining

that,

Id. (citing Conaway, 453 F.3d at 589

because

petitioner

had

“been

reasonably

diligent in pursuing his claim, and his failure to fully develop
the facts related to [his] claim in state court is attributable
to

external

causes,

§ 2254(e)(2)

does

not

preclude

him

from

being accorded an evidentiary hearing in federal court”)).
Having decided that Wolfe was eligible to be accorded an
evidentiary
question

hearing,

of

whether

the
he

district
was

court

entitled

to

then

turned

one.

That

to

the

inquiry

required the court to determine “‘if the facts alleged would
entitle [Wolfe] to relief, and if he satisfie[d] one of the six
factors enumerated by the Supreme Court in Townsend v. Sain, 372
U.S. 293, 313 (1963).’”
Conaway,

453

F.3d

at

See Wolfe I, 565 F.3d at 169 (quoting
582).

Properly
25

“evaluat[ing

Wolfe’s

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petition] pursuant to the principles of Federal Rule of Civil
Procedure 12(b)(6),” see id., the court concluded that Wolfe set
forth sufficient facts to state meritorious Brady and Giglio
claims.

See

Schlup

Order

12

(observing

that

Wolfe

“alleged

serious violations of his rights,” and that those “allegations
[were] made even without the benefit of discovery that could
lead

to

considerable

additional

exculpatory

material”).

The

court also ruled that Wolfe “met at least three of the six
[Townsend] factors,” in that “‘the merits of the factual dispute
were not resolved in the state hearing’” (factor 1); “‘there is
a substantial allegation of newly discovered evidence’” (factor
4); and “‘the material facts were not adequately developed at
the

state-court

hearing’”

(factor

5).

Id.

at

12

(quoting

Townsend, 372 U.S. at 313); see also Wolfe I, 565 F.3d at 313
(observing that factors 1, 4, and 5 “appear to be applicable
here”).

Accordingly, the court granted Wolfe’s request for an

evidentiary

hearing,

as

well

as

his

motion

for

predicate

discovery.
Far from abusing its discretion, the district court engaged
in

a

sound

assessment

of

the

evidentiary

hearing

issue.

Premised on that analysis, the court also appropriately (if not
explicitly) found that Wolfe had demonstrated “good cause” for
discovery.

See Quesinberry v. Taylor, 162 F.3d 273, 279 (4th

Cir.

(“Good

1998)

cause

is

shown
26

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the

petitioner

makes

a

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allegation

that

Pg: 27 of 40

shows

reason

to

believe

that

the

petitioner may be able to demonstrate that he is entitled to
relief.”).
obtained

As
new

a

and

result

of

relevant

the

foregoing,

evidence,

Wolfe

including

properly

the

Newsome

report, in the remand proceedings.
3.
The Commonwealth nevertheless persists in its efforts to
thwart Wolfe’s reliance on the Newsome report and other newly
disclosed

evidence,

asserting

on

appeal

that

Wolfe

was

erroneously allowed to amend the Brady claim alleged in his 2005
federal habeas petition.

See Br. of Appellant 43 (accusing the

district

abuse

court

of

“an

of

judicial

power”).

The

Commonwealth’s weak — though strident — contentions in that
respect do not long detain us.

First of all, we agree with the

district court that an amendment of Wolfe’s § 2254 petition was
not

necessary,

because

his

new

evidence-related

squarely within the [existing Brady claim].”

issues

“fall

Amendment Order 2

(specifying that Wolfe’s motion to amend was granted “merely out
of an abundance of caution”); see also J.A. 2854 (Wolfe’s 2005
federal habeas petition, broadly alleging that the Commonwealth
violated

his

“[e]xculpatory

Brady
and

rights

by

impeachment

suppressing,
evidence

Commonwealth’s key witness, Owen Barber”).

27

inter

related

to

alia,
the

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Furthermore,

we

Pg: 28 of 40

reject

the

Commonwealth’s

unfounded

depiction of “last-minute amendments far beyond the scope of
remand

[in

violation

Appellant 43.

of]

the

‘mandate

rule.’”

See

Br.

of

To the contrary, our Wolfe I mandate explicitly

authorized the district court to conduct “such other and further
proceedings as may be appropriate.”

See 565 F.3d at 171.

In

any event, it is difficult to take seriously the Commonwealth’s
protestations
years

from

tenaciously
prosecution

of

unfair

death

row

concealed
obviously

ambush,
to
by

when

obtain
the

should

Wolfe

had

evidence

disclosed

labor

for

that

Commonwealth,

have

to

had

been

and

that

the

prior

to

Wolfe’s

capital murder trial.
C.
With Wolfe’s procedural hurdles behind us, we proceed to
consider the substance of his Brady claim.

Because we focus on

an aspect of that claim — the long-concealed Newsome report —
that was not adjudicated in the state court proceedings, we owe
no 28 U.S.C. § 2254(d) deference to any state decision.

See

Monroe v. Angelone, 323 F.3d 286, 297 (4th Cir. 2003) (“[Section
2254(d)’s] deference requirement does not apply when a claim
made on federal habeas review is premised on Brady material that
has surfaced for the first time during federal proceedings.”);
see

also

Winston

v.

Pearson,

683

F.3d

489

(4th

Cir.

2012).

Rather, we review the district court’s “legal conclusions de
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novo and findings of fact for clear error.”

Monroe, 323 F.3d at

299.
1.
As previously explained, to succeed on his Brady claim,
Wolfe

is

first

“favorable

to

required
[him],

to

either

because it is impeaching.”
691

(2004)

report

is

show

(internal

the

because

it

Newsome
is

report

is

exculpatory,

or

See Banks v. Dretke, 540 U.S. 668,

quotation

indubitably

that

marks

impeaching,

omitted).

in

that

it

The

Newsome

establishes

a

motive not only for Barber to implicate someone else, but to
point the finger specifically at Wolfe.
trivialized

that

—

as

Detective

Indeed, it cannot be
Newsome’s

own

report

demonstrates — Newsome fed Barber the crux of his testimony,
i.e., that he was hired by Wolfe to murder Petrole.
the

Newsome

report

is

crucial,

impeaching

Put simply,

evidence

“unquestionably subject to disclosure under Brady.”

that

was

See Spicer

v. Roxbury Corr. Inst., 194 F.3d 547, 556 (4th Cir. 1999).
2.
Wolfe

next

must

establish

that

the

Newsome

report

was

“suppressed by the State, either willfully or inadvertently.”
See Banks, 540 U.S. at 691 (internal quotation marks omitted).
The Commonwealth did not contest the suppression issue in the
district court proceedings, and does not do so in this appeal.
Because the Commonwealth concedes that it withheld the Newsome
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report,

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and

because

the

Pg: 30 of 40

willfulness

or

inadvertence

of

its

transgression is inconsequential to our Brady analysis, we could
say no more on the issue.

Nevertheless, we feel compelled to

acknowledge that the Commonwealth’s suppression of the Newsome
report, as well as other apparent Brady materials, was entirely
intentional.
During Wolfe’s evidentiary hearing in the district court,
the Commonwealth’s Attorney explained that his office does not
have an “open-file policy,” providing criminal defense counsel
access

to

entire

case

files.

See

J.A.

3690.

Asked

to

elaborate, he offered the flabbergasting explanation that he has
“found in the past when you have information that is given to
certain

counsel

fabricate

a

Additionally,

and

defense
the

certain

defendants,

around

Assistant

what

is

Commonwealth’s

they

are

able

provided.”
Attorney

to
Id.

admitted

that he does not produce evidence to a criminal defendant unless
he first deems it to be “material[]” and “credib[le].”
3782.

Id. at

The district court rightly lambasted that conduct in its

Brady Order:
In effect, Ebert admits here that his contempt of
defendants who “fabricate a defense” guides his
perspective on disclosing information.
This is
particularly troubling in the case at bar where the
record is replete with statements from Ebert and
Conway
regarding
the
scrutiny
and
credibility
determinations that they made (as opposed to the jury)
regarding the relevance of any potential exculpatory
evidence. Essentially, in an effort to ensure that no
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defense would be “fabricated,” Ebert and Conway’s
actions served to deprive Wolfe of any substantive
defense in a case where his life would rest on the
jury’s verdict.
The Court finds these actions not
only unconstitutional in regards to due process, but
abhorrent to the judicial process.
Brady Order 43 n.24; see also Muhammad v. Kelly, 575 F.3d 359,
370

(4th

Cir.

2009)

(refusing

to

condone

the

suppression

of

evidence by the Prince William County prosecutors, and advising
them

to

“err

on

the

side

of

disclosure,

especially

defendant is facing the specter of execution”).

when

a

We sincerely

hope that the Commonwealth’s Attorney and his assistants have
finally taken heed of those rebukes.
3.
Of course, Wolfe is yet ineligible for § 2254 relief on his
Brady claim unless he makes a third showing — that “prejudice
. . . ensued” from the Commonwealth’s suppression of the Newsome
report.

See Banks, 540 U.S. at 691 (internal quotation marks

omitted).

The prejudice inquiry requires us to determine if the

Newsome report is “material” to Wolfe’s guilt, i.e., whether
“there

is

a

reasonable

probability

that,

had

the

[Newsome

report] been disclosed, the result of the [trial] would have
been different.”

See Cone v. Bell, 556 U.S. 449, 469-70 (2009).

Importantly, a reasonable probability does not mean that Wolfe
“would more likely than not have received a different verdict
with

the

[Newsome

report],”

only

31

that

the

likelihood

of

a

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different result is great enough to “undermine[] confidence in
the outcome of the trial.”

See Kyles v. Whitley, 514 U.S. 419,

434 (1995) (internal quotation marks omitted).
The

Commonwealth

principally

contends

that

the

Newsome

report and other Barber impeachment evidence were immaterial,
because even without Barber’s testimony that Wolfe hired him to
murder Petrole, there was overwhelming trial evidence of Wolfe’s
guilt.

Concomitantly,

the

Commonwealth

asserts

that

the

district court ignored important pieces of non-Barber evidence,
and thus improperly failed to weigh them in the Brady Order
materiality analysis.

The Commonwealth’s argument is belied by

the Brady Order, which carefully outlined the trial evidence and
came to the inevitable conclusion that “Owen Barber’s testimony
was the only evidence that the Prosecution presented to prove
that [Wolfe] hired Barber to kill Petrole.”

Brady Order 41.

Upon our own review of the trial record in the Wolfe I appeal,
we also grasped that “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.”
F.3d at 144.

Wolfe I, 565

And, the Commonwealth itself conceded at Barber’s

sentencing hearing on his non-capital murder conviction — where
he

received

a

sentence

of

just

sixty

years

in

prison,

with

twenty-two years suspended — that “but for [Barber’s] testimony
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Wolf[e]

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probably

would

Pg: 33 of 40

not

have

been

prosecuted.”

J.A.

5144.
In these circumstances, where “the jury had to believe that
Barber was credible and that his version of events was in fact
truthful and accurate in order to support [Wolfe’s] conviction,”
Brady

Order

manifest.

41,
See

the

materiality

Smith

v.

Cain,

of

132

the
S.

Newsome

Ct.

627,

report
630

is

(2012)

(holding that, where an eyewitness’s “testimony was the only
evidence linking [the defendant] to the crime,” the eyewitness’s
undisclosed

prior

material”);

Harris

inconsistent
v.

Lafler,

statements

553

“were

F.3d

1034

1028,

plainly
(6th

Cir.

2009) (“Considerable authority from the Supreme Court and our
court

indicates

withholding

of

that

a

defendant

favorable

suffers

impeachment

prejudice
evidence

from
when

the
the

prosecution’s case hinges on the testimony of one witness.”);
Monroe, 323 F.3d at 315-16 (explaining that, because a witness’s
testimony was “crucial” to proving premeditation, there was “a
reasonable probability that [the defendant] would not have been
convicted of first-degree murder” if evidence tending to impeach
the

witness

had

been

properly

disclosed).

Wolfe

therefore

satisfies the third and final element of his Brady claim. 8

8

We are not convinced otherwise by the Commonwealth’s
attempt to portray the Newsome report as immaterial because “the
jury knew the far more impeaching fact that Barber had . . .
(Continued)
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D.
Having confirmed that Wolfe is entitled to 28 U.S.C. § 2254
relief,

the

district

only

court

convictions,
distribute

remaining

issue
vacated

properly

including
marijuana,

before
all

his
for

conviction
which

maximum sentence of thirty years.

he

us

is

three
for

whether
of

Wolfe’s

conspiring

received

the

the

to

statutory

See Relief Order 1 (deeming

full vacatur appropriate because the Commonwealth’s “Brady and
Giglio
trial

violations
on

all

. . .

charges”).

permeated
In

the

fairness

contesting

the

of

[Wolfe’s]

court’s

vacatur

decision, the Commonwealth criticizes the court’s reliance on
Federal Rule of Civil Procedure 59(e) to amend the Judgment.
Unfortunately for the Commonwealth, the court acted well within
its discretion.

See Robinson v. Wix Filtration Corp. LLC, 599

F.3d 403, 407 (4th Cir. 2010) (explaining that “a court may
alter or amend the judgment if the movant shows[, inter alia,]

avoided the death penalty in return for his testimony.” See Br.
of Appellant 22.
Evidence that Barber got a deal for
implicating Wolfe is hardly “more impeaching” than the Newsome
report evidence that Detective Newsome specified Wolfe as the
deal-garnering
perpetrator.
Moreover,
contrary
to
the
Commonwealth’s suggestion that Barber denied being influenced by
prosecutors and police to name Wolfe, see id., Barber testified
in the district court’s evidentiary hearing that “they said they
wanted the truth, but at the same time they said that this is
what you have got to say or you are getting the chair,” J.A.
3752.

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there

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has

been

a

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clear

error

of

law

or

a

manifest

injustice,” subject to review “under the deferential abuse of
discretion standard”).
The Commonwealth further asserts that the district court
improperly vacated Wolfe’s drug conspiracy conviction because it
was

unaffected

by

the

suppression

of

any

Brady

material.

Significantly, it is the Commonwealth’s position that the drug
conviction and attendant thirty-year sentence were secured on
the

basis

of

Wolfe’s

trial

testimony,

wherein

he

“not

only

admitted to drug dealing, but bragged about dealing on a massive
scale.”

See Br. of Appellant 57 (contending that, in light of

Wolfe’s

self-incriminating

testimony,

“[t]here

was

no

likelihood, much less a reasonable one, that Wolfe would not
have been convicted of conspiracy to distribute marijuana had
the allegedly withheld evidence about Wolfe’s part in the murder
been

disclosed”).

unrepentant

The

braggadocio

Commonwealth
was

the

emphasizes

focus

of

the

that

“Wolfe’s

Commonwealth’s

closing arguments” and “justified the Commonwealth’s call for
the maximum sentence.”

Id.

Indeed, although the Commonwealth

refers in its opening brief to “overwhelming evidence of a farreaching

drug

conspiracy,”

id.

at

58,

the

only

evidence

discussed therein with any specificity is Wolfe’s own damning
testimony.

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In response, Wolfe maintains that, in the absence of the
Newsome

report

and

other

wrongfully

suppressed

Barber

impeachment evidence, “his only option was to take the stand and
stake his word against Barber’s — an unattractive option, for as
the Commonwealth acknowledges[,] it required Wolfe to admit to
committing a felony and risk thirty years’ imprisonment.”
of Appellee 72.

Br.

According to Wolfe,

[his] lawyer would have had little reason to put
[Wolfe] on the stand if he could have put forth
another, more credible defense theory.
Instead,
Wolfe’s admission of guilt became his defense:
In
closing, Wolfe’s counsel called the jury’s attention
to Wolfe’s admission of guilt on the drug charges to
contrast it with his protestations of innocence of
murder.
The Commonwealth’s drug prosecution thus
benefited enormously from its systematic suppression
of Brady evidence.
Id.

at

72-73

(citations,

alteration,

and

internal

quotation

marks omitted).
We are entirely convinced by Wolfe’s contentions.
the

Commonwealth

central

to

because

the

testified

his

if

concedes
drug

conspiracy

Commonwealth
the

that

Wolfe’s

conviction

cannot

Newsome

trial

prove

report

had

that
not

and

testimony

was

sentence,

and

Wolfe

been

Because

would

have

suppressed,

we

agree with the district court that Wolfe is entitled to vacatur
of all three of his state convictions.
Pelullo,

105

F.3d

117,

125

(3d

Cir.

Cf. United States v.

1997)

(concluding

that,

where the government committed Brady violations that allegedly

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adduced the defendant’s trial testimony, that testimony could
not be used against the defendant at a subsequent trial unless
the

government

testified

anyway

could

prove

even

if

that
there

“the
had

defendant
been

no

would

have

constitutional

violation” (citing Harrison v. United States, 392 U.S. 219, 225
(1968) (“Having ‘released the spring’ by using the petitioner’s
unlawfully obtained confessions against him, the Government must
show that its illegal action did not induce his testimony.”))).
Of

course,

as

the

district

court’s

Judgment

reflects,

the

Commonwealth is free to retry Wolfe on the murder, firearm, and
drug conspiracy charges. 9

9

We are unwilling to mine the trial record, as our
distinguished colleague urges, to identify evidence, aside from
Wolfe’s testimony, that might sustain his drug conspiracy
conviction. The Commonwealth itself has abstained from any such
endeavor. See post at 39 (acknowledging that “the Commonwealth
did not, in its argument, greatly aid in our analysis”).
Moreover, whatever evidence exists is inevitably tainted by the
prosecutorial misconduct in this case.
By depriving Wolfe of
the Newsome report, for example, the Commonwealth not only
induced Wolfe to take the witness stand to gainsay Barber’s
trial story, but compelled the defense to abandon its challenge
to the alleged drug conspiracy in order to defend against the
death penalty offense of murder-for-hire.
With the Newsome
report in hand, Wolfe could readily have impeached Barber — as
well as, by extension, the evidence corroborating Barber’s
murder-for-hire story and implicating Wolfe in drug dealing —
with compelling evidence that the murder-for-hire story had been
planted with Barber by Detective Newsome. As such, the conduct
of the prosecution in concealing the Newsome report undermines
confidence in the fairness and propriety of the entire trial,
including
the
drug
conspiracy
conviction,
rendering
that
misconduct a sufficient independent basis for vacating each of
(Continued)
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III.
Pursuant to the foregoing, we affirm the Judgment of the
district court.
AFFIRMED

Wolfe’s convictions and for ordering his unconditional release
or retrial.
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DUNCAN, Circuit Judge, dissenting in part:
I write with regard and appreciation for the majority’s
disposition of Wolfe’s murder-for-hire and firearm convictions.
I

must,

however,

respectfully

and

narrowly

dissent

from

its

granting of habeas relief on the drug conspiracy conviction.
The record, and, significantly, the majority does not directly
refute

it,

contains

ample

evidence

from

sources

other

Wolfe’s testimony to support the drug conviction.

than

The district

court’s Relief Order does not address the merits of the drug
conspiracy issue at all, and the case on which it purports to
rely is inapposite as to that charge.
1:05-cv-00432

(E.D.

Va.

Aug.

30,

See Wolfe v. Clarke, No.
2011)

(citing

Monroe

v.

Angelone, 323 F.3d 286, 293 n.5 (4th Cir. 2003)). *
I fully recognize and appreciate the focus of the district
court

and

the

majority

on

the

more

serious

charges.

And,

indeed, the Commonwealth did not, in its argument, greatly aid
our

analysis.

exemplary.

The

Commonwealth’s

behavior

here

is

far

from

But the Newsome report cannot carry the weight the

*

In Monroe, we granted habeas relief to a petitioner
charged, as Wolfe is here, with murder and the use of a firearm
in the commission of a felony because we agreed with the
district court’s determination that the Commonwealth of Virginia
had committed Brady violations.
Unlike in Monroe, however,
Wolfe is also charged with a drug conspiracy, and nothing in
Monroe suggests habeas relief is also appropriate for a freestanding charge supported by considerable evidence free of any
Constitutional infirmity.

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majority would assign to it.

Pg: 40 of 40

Because of the amount of evidence

as to the drug conspiracy untainted by the Brady violation, I
would at the very least remand that conviction to the district
court for its specific consideration.

40