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. [999113422]. [12-7]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-7

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

Director,

Virginia

Department

of

Respondent – Appellant.

Appeal 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:

January 28, 2013

Decided:

May 22, 2013

Before KING, DUNCAN, and THACKER, Circuit Judges.

Vacated and remanded by published opinion. Judge King wrote the
majority opinion, in which Judge Duncan joined.
Judge Thacker
wrote an opinion concurring in part and dissenting in part.

ARGUED: Matthew P. Dullaghan, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Appellant.
Ashley Charles
Parrish, KING & SPALDING, LLP, Washington, D.C., for Appellee.
ON BRIEF: Kenneth T. Cuccinelli, II, Attorney General, Katherine
B. Burnett, Senior Assistant Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellant.
Michele J. Brace, VIRGINIA CAPITAL REPRESENTATION RESOURCE
CENTER, Charlottesville, Virginia; Daniel J. King, KING &

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SPALDING, LLP, Atlanta, Georgia; Daniel S. Epps, Karen F.
Grohman, KING & SPALDING, LLP, Washington, D.C., for Appellee.

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KING, Circuit Judge:
These habeas corpus proceedings on behalf of Justin Michael
Wolfe are before us for the third time, and they arrive saddled
with a protracted and eventful history.
we

affirmed

Virginia

the

judgment

vacating

Most recently, in 2012,

entered

Wolfe’s

in

the

2002

state

Eastern

court

District

convictions

of
for

capital murder and other crimes, and we remanded for further
proceedings,

leaving

in

place

the

district

court’s

remedial

edict that Wolfe be retried or released.
In this appeal, respondent Harold W. Clarke, as Director of
the

Virginia

Department

of

Corrections

(hereinafter

the

“Commonwealth”), seeks relief from the district court’s “Order
Enforcing Judgment.”
Va. Dec. 26, 2012). 1

Wolfe v. Clarke, No. 2:05-cv-00432 (E.D.
The court entered the challenged order upon

ascertaining that the Commonwealth had not complied with the
operative retry-or-release directive.

As a consequence of the

Commonwealth’s

instructed

noncompliance,

it

was

to

“release

[Wolfe] unconditionally, free of all criminal proceedings on the
charge of murder for hire of Danny Petrole and the drug charges
that were previously tried in state court by the Commonwealth,
within ten (10) days of the entry of this order.”
1

Id. at 25.

The Order Enforcing Judgment is found at J.A. 510-35.
(Citations herein to “J.A. ____” refer to the contents of the
Joint Appendix filed by the parties in this appeal.)

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Beyond mere release, however, the district court further
proscribed the Commonwealth “from reprosecuting [Wolfe] on the
charges

originally

charges

stemming

requires

the

tried
from

herein
[the]

testimony

of

Enforcing Judgment 25-26.
court

concluded

that

the

in

death

Owen

state
of

Barber

court

in

any

any

other

Petrole

Danny

or

which

form.”

Order

In support of its chosen remedy, the
Commonwealth’s

prosecutors

had,

on

remand, improperly conducted themselves with respect to their
key witness, Owen Barber.
“permanently

crystalized”

As a result, the prosecutors had
constitutional

violations

previously

found to have tainted Wolfe’s trial, id. at 24, which in turn
constituted extraordinary circumstances justifying a federal bar
to his proposed retrial.
On January 3, 2013, we stayed, pending resolution of this
appeal, the district court’s order.

As explained below, the

court accurately determined that the Commonwealth neglected to
timely observe the retry-or-release directive.

Though the court

was correct to order Wolfe’s immediate release, it fashioned an
overbroad remedy and thereby abused its discretion by precluding
the Commonwealth from retrying Wolfe in a new proceeding.

We

therefore vacate the Order Enforcing Judgment and remand for the
district court to enter a substitute order directing that Wolfe
simply be released from the custody imposed as the result of his
2002 convictions.
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I.
As described in our earlier decisions, a jury in Prince
William

County,

capital

murder

Virginia,
Danny

a

felony,

Wolfe

Petrole,

of

found

of

a

of

the

firearm

in

the

marijuana.

See Wolfe v. Johnson, 565 F.3d 140 (4th Cir. 2009)
Wolfe

(“Wolfe II”).

v.

Clarke,

691

conspiring

2002

of

I”);

of

using

in

commission

(“Wolfe

and

guilty

F.3d

410

to

(4th

distribute

Cir.

2012)

The theory of the prosecution was that, as a

nineteen-year-old marijuana dealer, Wolfe hired his friend and
fellow drug dealer, Owen Barber, to murder Petrole, who was a
drug supplier.
witness

to

Barber, the admitted triggerman, was the only

testify

concerning

murder-for-hire scheme.

the

“for

hire”

element

of

the

In exchange for Barber’s testimony, the

Commonwealth dismissed its capital murder charge against him.
Barber thus pleaded guilty and was sentenced to sixty years on a
non-capital murder conviction, of which twenty-two years were
suspended.

On the basis of his murder conviction, Wolfe was

sentenced to death.

For his firearm and drug convictions, Wolfe

received consecutive prison terms of three and thirty years,
respectively.
A.
1.

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In November 2005, after failing to obtain relief on direct
appeal and in state post-conviction proceedings, Wolfe filed his
28 U.S.C. § 2254 petition in the Eastern District of Virginia.
The

district

court

promptly

referred

Wolfe’s

petition

magistrate judge for a report and recommendation.

to

a

On December

14, 2005, while Wolfe’s petition was pending, Barber executed an
affidavit repudiating his trial testimony and exculpating Wolfe
from the murder-for-hire scheme.

Barber’s affidavit prompted

Wolfe to file an amended § 2254 petition, which is the operative
“petition” in these proceedings.

The petition maintained, inter

alia, that the prosecution had curtailed Wolfe’s entitlement to
due

process

should

have

by

concealing

been

material

disclosed

to

his

exculpatory
defense

evidence

attorneys.

that
The

petition also alleged that Barber’s affidavit had sufficiently
demonstrated Wolfe’s actual innocence to excuse any procedural
default of his constitutional claims.
In April 2006, five months after executing the repudiatory
affidavit, Barber sought to recant the statements he had made
therein.

In an unsworn handwritten letter, Barber insisted that

he had testified truthfully in the 2002 trial, and that he had
falsified his 2005 affidavit.

In August 2007, the magistrate

judge issued his report recommending dismissal of Wolfe’s § 2254
petition, in that the claims alleged therein were meritless and
had been procedurally defaulted.
6

On February 11, 2008, over

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Wolfe’s objections, the district court adopted the magistrate
judge’s recommendation and dismissed the petition.

Wolfe timely

appealed that dismissal, and, by our decision of May 11, 2009,
see

Wolfe

I,

we

vacated

in

part

and

remanded

for

further

proceedings.
2.
On remand, the district court determined at the outset that
Wolfe was entitled to an evidentiary hearing, and that, pursuant
to Schlup v. Delo, 513 U.S. 298 (1995), he had made a sufficient
showing of actual innocence to bypass any procedural defenses
that might be interposed to foreclose substantive consideration
of his constitutional claims.

During the evidentiary hearing

conducted in November 2010, Barber testified, exculpated Wolfe,
and his evidence was credited by the court.
the

court

ruled

that

the

prosecutors

in

On July 26, 2011,
Wolfe’s

trial

had

contravened his Fourteenth Amendment due process rights by (1)
failing to disclose favorable and material evidence, contrary to
Brady v. Maryland, 373 U.S. 83 (1963); (2) allowing Barber to
testify,

despite

having

information

indicating

that

his

testimony was false, in violation of Napue v. Illinois, 360 U.S.
264

(1959);

proscribed

by

and

(3)

Supreme

striking
Court

a

qualified

precedent.

The

venireman,
court

as

therefore

granted habeas corpus relief to Wolfe and specified that Wolfe’s
“conviction and sentence” were vacated.
7

Wolfe v. Clarke, 819 F.

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Supp. 2d 538, 574 (E.D. Va. 2011).

On August 4, 2011, the

Commonwealth filed a timely notice of appeal.
Thereafter,

Wolfe

moved

the

district

court,

pursuant

to

Rule 59 of the Federal Rules of Civil Procedure, to clarify
whether the relief granted on his capital murder conviction also
encompassed his firearm and drug convictions.

On August 30,

2011, the court granted Wolfe’s clarification motion and entered
one of the orders relevant to this appeal.

See Wolfe v. Clarke,

No. 2:05-cv-00432 (E.D. Va. Aug. 30, 2011) (the “Relief Order”). 2
The Relief Order explained that Wolfe was entitled to a new
trial

on

all

of

the

original

charges,

and

it

accorded

the

Commonwealth the option of either “provid[ing] [Wolfe] with a
new

trial,

within

120

or

releas[ing]

days.

Id.

at

him

unconditionally

2.

On

September

from
2,

custody”

2011,

the

Commonwealth filed a second notice of appeal, from the Relief
Order

and

the

Amended

Judgment.

Eleven

days

later,

the

Commonwealth moved the district court for a stay pending appeal,
which the court granted on November 22, 2011.

See Wolfe v.

Clarke, 819 F. Supp. 2d 574 (E.D. Va. 2011) (the “Stay Order”). 3

2

On August 30, 2011, the district court also entered an
Amended Judgment containing substantially identical disposition
terms as the Relief Order.
These documents are found at J.A.
91-93.
3

A brief comment is warranted concerning the two notices of
appeal filed by the Commonwealth in Wolfe II.
Generally
(Continued)
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Wolfe cross-appealed, asserting that the district court erred in
denying him relief on an additional, unadjudicated claim.

By

our Wolfe II decision, we affirmed the judgment of the district
court. 4
B.
1.
Our mandate in Wolfe II issued on September 7, 2012.

That

same day, Wolfe was transferred from the Sussex State Prison to

speaking, a duly filed notice of appeal deprives a district
court of jurisdiction over all issues relating to the subject
matter thereof.
See In re Grand Jury Proceedings Under Seal,
947 F.2d 1188, 1190 (4th Cir. 1991).
An exception to that
general proposition is recognized when a district court elects
“to proceed as to matters in aid of the appeal.” Id. A court
may render such aid, for example, by resolving a motion pursuant
to Rule 59(e) of the Federal Rules of Civil Procedure to alter
or amend the judgment being appealed, see Fed. R. App. P.
4(a)(4)(A)(iv) (providing in addition that filing of Rule 59(e)
motion resets time allotted all parties to submit notices of
appeal), or by addressing in the first instance a motion for
stay pending appeal, see Fed. R. App. P. 8(a)(1)(A).
Both of
those events occurred in Wolfe II, culminating in, respectively,
the Relief Order with accompanying Amended Judgment, and the
Stay Order.
4

Our affirmance in Wolfe II of the Relief Order and Amended
Judgment was predicated on one sub-part of Wolfe’s Brady claim,
that is, the Commonwealth’s failure to disclose the written
police report of Prince William County Detective Sam Newsome,
documenting that Newsome had advised Barber that he could avoid
the death penalty by implicating Wolfe.
Because Wolfe was
entitled to relief under § 2254 on that sub-claim, we had no
reason to review the Commonwealth’s assignments of error
regarding the other grounds for relief, or to consider Wolfe’s
cross-appeal. See Wolfe II, 691 F.3d at 416-17.

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the Prince William County Adult Detention Center, for a status
hearing to be conducted in the state circuit court on September
10,

2012.

At

that

hearing,

two

of

Wolfe’s

federal

habeas

lawyers were appointed to represent him on the original state
charges, and a bond hearing was set for September 14, 2012. 5

The

next day, the Commonwealth’s Attorney and his assistant, along
with one of the primary investigating officers, Detective Sam
Newsome, interviewed Barber at the Augusta Correctional Center.
During

the

interview,

which

was

recorded

without

Barber’s

knowledge, those three officials sought to ascertain how Barber
would

testify

at

Wolfe’s

retrial.

They

suggested

to

Barber

that, because his testimony in the federal habeas proceedings
was inconsistent with his trial testimony, he had breached his
plea

agreement

with

the

Commonwealth.

The

prosecutors

then

advised Barber that he could face prosecution for perjury, plus
reinstatement

of

his

original

capital

murder

charge,

which

potentially carried the death penalty.
Not long thereafter, the Commonwealth’s Attorney and his
assistant recused themselves from Wolfe’s retrial and requested

5

When it became clear that the Commonwealth intended to
proceed with a retrial of Wolfe, his habeas counsel successfully
moved to withdraw from their representation of him on the
original state charges.
They were replaced by the Regional
Capital Defender, who presently represents Wolfe in the state
criminal proceedings.

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the appointment of Raymond Morrogh, the Commonwealth’s Attorney
for

Fairfax

County,

as

Special

Prosecutor.

Morrogh

was

appointed, and he represented the Commonwealth at the September
14,

2012

hearing,

where

Wolfe

was

denied

bond.

On

that

occasion, the defense lawyers asserted that only thirty-six days
remained for the Commonwealth to retry Wolfe.

The Commonwealth

agreed to a retrial beginning on October 15, 2012.
of

the

bond

hearing,

Wolfe

requested

the

On the heels

circuit

court

to

disqualify the Special Prosecutor.
In
County
charging

the

meantime,

grand

jury

him

with

on

October

returned
six

new

additional

1,

2012,

a

indictments
offenses

events underlying Wolfe’s original charges.

Prince

William

against

Wolfe,

arising

from

The retrial, then,

was to encompass the original charges plus the following:
•

capital murder by order of a person engaged in a
continuing criminal enterprise (“CCE”);

•

use of a firearm in the commission of a murder;

•

leading a CCE to distribute between $100,000 and
$250,000 worth of marijuana in a twelve-month
period;

•

leading a CCE to distribute more than $250,000 of
marijuana in a twelve-month period;

•

first degree felony murder of Danny Petrole
during commission of a robbery or attempted
robbery; and

•

use of a firearm in the commission of a robbery
or attempted robbery.

11

the

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See J.A. 229-30.

On that same date, the Commonwealth moved in

state

a

court

for

continuance

of

the

October

15

retrial,

asserting that the 120-day period had not begun to run until our
mandate issued on September 7, 2012, and, thus, that the 120
days would not expire until January 5, 2013.

Consistent with

that view, the Commonwealth requested that the retrial commence
the first week of January 2013.

The continuance motion was

granted on October 3, 2012, but a retrial date was not set.
On October 31, 2012, the circuit court conducted a hearing
on,

inter

alia,

Wolfe’s

motion

to

disqualify

the

Special

Prosecutor.

Barber was called to testify at that hearing, and

he

his

invoked

incrimination.

Fifth

Amendment

privilege

against

self-

The court accepted Barber’s assertion of the

privilege and did not seek to compel his testimony.

Thereafter,

the court scheduled Wolfe’s retrial for January 2, 2013. 6
Meanwhile,

beginning

in

November

2012,

proceedings

commenced in federal court that overlapped to some extent with
the pretrial litigation in the circuit court.

Specifically, on

November 16, 2012, Wolfe filed a motion to enforce judgment,

6

On this record, it is not clear when and how Wolfe’s
lawyers learned of the Barber interview.
At least as early as
the October 31, 2012 hearing, however, they were aware of
Barber’s apparent intention to invoke the Fifth Amendment in
connection with Wolfe’s retrial, and they knew that such
invocation was related to Barber’s interview by the prosecutors.

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asserting

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that

the

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Commonwealth

had

neither

released

him

unconditionally nor provided him with a new trial within 120
days of the Relief Order.

The Commonwealth opposed the motion,

contending that Wolfe had already been released unconditionally,
and that, by conducting the bond hearing on September 14, 2012,
the Commonwealth had effectively commenced his retrial within
the 120-day period.

That period, the Commonwealth maintained,

had in any event been reset to 120 days by the November 22, 2011
Stay Order, and had not begun to elapse until September 7, 2012,
upon issuance of our mandate.
2.
On

December

4,

2012,

based

primarily

on

the

Barber

interview, Wolfe filed a motion to dismiss in the circuit court,
contending that, by threatening Barber with the death penalty,
the prosecutors had engaged in “gross prosecutorial misconduct”
sufficiently

severe

and

violative

of

due

process

to

fatally

undermine all the state criminal charges lodged against Wolfe. 7
See

J.A.

405-20.

Two

days

later,

7

Wolfe

brought

the

Barber

At the oral argument of this appeal, the Commonwealth’s
lawyer represented that the circuit court elected to defer
ruling on Wolfe’s motion to dismiss the indictments on the basis
of, inter alia, the Barber interview.
According to the
Commonwealth, the circuit court was of the view that the motion
was premature because Barber has not yet invoked the Fifth
Amendment and declined to testify in Wolfe’s retrial.
The
motion to dismiss thus remains pending in the circuit court.

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interview

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to

the

district

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court’s

attention,

by

way

written reply on the motion to enforce judgment.

of

his

Wolfe also

offered to provide a transcript of the Barber interview “to the
Court at its request.”

Id. at 285.

The following day, the

district court directed Wolfe’s counsel to file “any additional
information or transcripts concerning the meeting between the
original prosecutors in this case and Mr. Barber on September
11, 2012.”
also

Id. at 290.

ordered

interview

the

Acting on its own initiative, the court

Commonwealth

“does

not

to

show

constitute

cause

why

extraordinary

the

Barber

circumstances

warranting the Court to order [Wolfe’s] immediate release and
bar

current

related

to

crimes.”

and
the

future
death

prosecutions
of

Id. at 289-90.

Danny

of

Petrole

Wolfe

on

all

and

drug

charges

conspiracy

The Commonwealth responded to the show

cause order on December 12, 2012, asserting that the district
court possessed no authority to prohibit any current or future
state prosecutions of Wolfe, and that, even were the situation
otherwise,

nothing

had

occurred

in

the

Barber

interview

to

justify any such action.
The

district

court

conducted

an

evidentiary

hearing

December 13, 2012, concerning the show cause order.

on

On that

occasion, Barber’s lawyer advised that Barber would not testify
in

Wolfe’s

privilege.

retrial,

instead

relying

on

his

Fifth

Amendment

The court itself called Barber as a witness at the
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hearing, for the purpose of establishing that the September 11,
2012 interview had been recorded without his knowledge.

Barber

responded to the court’s questions, confirming that he had been
unaware that the encounter was recorded.
3.
On December 26, 2012, the district court entered its Order
Enforcing

Judgment,

satisfied

either

concluding

compliance

that

the

option

Commonwealth

specified

in

had

the

not

Relief

Order, that is, Wolfe had not been released unconditionally, and
he had not been retried within 120 days of the Relief Order.

In

discussing the appropriate remedy for the violation, the court
surmised that “had the content of [Wolfe’s] Motion to Enforce
Judgment been strictly limited to the Commonwealth’s violation
of the deadline set in this case, . . . [t]he Court would order
Wolfe’s

release,

but

he

would

be

subject

reprosecution by the Commonwealth.”
16.

to

rearrest

and

Order Enforcing Judgment

Moving on to the matter of the Barber interview, the court

determined

that

“extraordinary

circumstances”

warranting a bar to Wolfe’s retrial.

had

been

shown

More specifically, the

court found that the Barber interview “incurably frustrated the
entire purpose” of the federal habeas corpus proceedings, and
“permanently
infecting

crystalized”

Wolfe’s

trial,

the
causing

unavailable to testify in a retrial.
15

constitutional
Barber
Id. at 24.

to

violations
be

legally

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Consequently,

the

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district

court

ordered

Wolfe’s

release

within ten days and barred the Commonwealth from reprosecuting
Wolfe on the original charges “or any other charges stemming
from [the] death of Danny Petrole which requires the testimony
of Owen Barber in any form.”

Order Enforcing Judgment 25-26.

The Commonwealth immediately appealed, moving to stay the Order
Enforcing

Judgment.

On

January

3,

2013,

the

district

court

denied the Commonwealth’s request for a stay pending appeal.
Later that same day, however, on the Commonwealth’s motion, we
entered our own stay and expedited this appeal.

We possess

jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). 8

II.
We potentially face two rather significant issues.

First,

we must assess whether the Commonwealth complied with the Relief
Order.
whether

If the Commonwealth failed to do so, we must then decide
the

district

court

abused

its

discretion

in

barring

Wolfe’s retrial.
On

the

first

issue,

we

review

a

district

court’s

interpretation of its own orders for abuse of discretion.
8

Home

In connection with the entry of our January 3, 2013 stay
pending appeal, we directed the parties to file regular reports
on the status of the related state court proceedings. The most
recent status report indicates that a trial date remains
unscheduled.

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Port Rentals, Inc. v. Ruben, 957 F.2d 126, 131 (4th Cir. 1992).
In that regard, “we are obliged to accord substantial deference
to a district court’s interpretation of its own judgment.”

ABT

Bldg. Prods. Corp. v. Nat’l Union Fire Ins. Co., 472 F.3d 99,
113

(4th

Cir.

2006).

Indeed,

“to

sustain

appellate

review,

district courts need only adopt a reasonable construction of the
terms contained in their orders.”

JTH Tax, Inc. v. H & R Block

E. Tax Serv., Inc., 359 F.3d 699, 706 (4th Cir. 2004).
If the Commonwealth falls short on the compliance issue,
our review of the district court’s bar to Wolfe’s retrial is
also for abuse of discretion.
379,

390

(6th

Cir.

2011).

D’Ambrosio v. Bagley, 656 F.3d
Where

applicable,

Congress

has

directed the courts to dispose of habeas corpus petitions “as
law

and

justice

require.”

28

U.S.C.

§ 2243. 9

Congress’s

directive constitutes, in a proper case, “an authorization to
adjust the scope of the writ in accordance with equitable and
prudential

considerations.”

Danforth

9

v.

Minnesota,

552

U.S.

More fully, a court considering an application for habeas
corpus relief “shall summarily hear and determine the facts, and
dispose of the matter as law and justice require.”
28 U.S.C.
§ 2243.
Notably, the § 2243 standard only applies when
deference to a state court’s adjudication of the merits of a
habeas corpus claim is not mandated by the Antiterrorism and
Effective Death Penalty Act.
See Johnson v. Thurmer, 624 F.3d
786, 791 (7th Cir. 2010).
Because this appeal does not
implicate the merits of a habeas claim, there is no state court
adjudication to which we would defer.

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264, 278 (2008).

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Because “habeas corpus is, at its core, an

equitable remedy,” a district court is vested with substantial
discretion to appropriately redress any violation of an order
granting habeas corpus relief.

Schlup v. Delo, 513 U.S. 298,

319 (1995).

III.
A.
In view of the foregoing recitation, we turn first to the
Commonwealth’s

assertion

that

it

complied

with

the

district

court’s Relief Order, which required that Wolfe be retried or
released within 120 days.

Those contentions — that Wolfe was

both released and retried — were considered and rejected in the
Order Enforcing Judgment.

The court’s rulings were predicated

primarily on its explanation of its intentions with respect to
the Relief Order and the Stay Order.

As explained below, the

district court did not abuse its discretion in ruling that the
Commonwealth neglected to satisfy either compliance option.
1.
At the threshold, the Commonwealth’s position — that Wolfe
has been both released and retried — fails to pass muster.
specifying

the

compliance

options

in

the

By

disjunctive,

the

district court presented the Commonwealth with a choice:

it

could either provide Wolfe with a new trial or unconditionally
18

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release him from custody.

Pg: 19 of 53

The Commonwealth asserts on appeal,

rather counterintuitively, that it has satisfied both options.
First,

the

Commonwealth

maintains

that,

at

least

since

Wolfe’s September 14, 2012 bond hearing, his status is that of a
pretrial defendant who has been denied bond.

The Commonwealth

thus

released.

posits

that

Wolfe

was

unconditionally

The

Commonwealth’s theory fails to take into account the purpose of
a new-trial contingency in the habeas setting, which is to delay
actual release of the successful petitioner, thus permitting the
state

authorities

to

remedy

the

constitutional

retain the petitioner in confinement.

defects

and

See Hilton v. Braunskill,

481 U.S. 770, 775 (1987) (“[T]his Court has repeatedly stated
that federal courts may delay the release of a successful habeas
petitioner

in

order

to

provide

the

State

an

opportunity

to

correct the constitutional violation found by the court.”).
By

its

Relief

Order,

Wolfe’s immediate release.

the

district

court

did

not direct

It instead accorded the Commonwealth

the options of retrying Wolfe within 120 days or unconditionally
releasing him.

An evaluation of whether the Commonwealth has

complied with either directive requires an interpretation of the
court’s prior orders, the best source for which is the court
itself.

As it explained,

[i]n presenting the option of releasing the Petitioner
“unconditionally” from custody, the Court used the
word “unconditionally” in its traditional and widely
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underst[ood] context:
“Not limited by a condition;
not depending on an uncertain event or contingency;
absolute.”
Black’s Law Dictionary (9th ed. 2009).
Under this meaning of the word “unconditional,” it is
self-evident
that
releasing
Petitioner
from
the
custody of the Virginia Department of Corrections to
Prince William County for the purposes of retrial did
not constitute releasing Petitioner “unconditionally
from custody.”
Order Enforcing Judgment 8.
The foregoing explanation is not an unreasonable one, and
we are unable to disturb it.
Relief

Order

is

that

it

A commonsense reading of the

obliged

the

release or retry Wolfe within 120 days.

Commonwealth

to

either

Because Wolfe has not

been unconditionally released, we turn to the second compliance
option and gauge whether Wolfe has been retried. 10
2.

10

The Commonwealth also makes a related, though necessarily
distinct, assertion that the vacatur of Wolfe’s convictions
deprived the district court of jurisdiction.
Upon reviewing
this issue de novo, see United States v. Poole, 531 F.3d 263,
270 (4th Cir. 2008), we conclude that the court possessed
jurisdiction to enforce its judgment.
Because Wolfe was in
custody when the original petition was filed, the jurisdictional
contention is really a mootness argument that is foreclosed by
Carafas v. LaVallee, 391 U.S. 234 (1968) (challenge to
conviction
not
rendered
moot
by
habeas
petitioner’s
unconditional
release,
because
petitioner
suffers
from
“collateral
consequences,”
including
disenfranchisement,
ineligibility for jury duty, and disqualification from elected
office). See also Maleng v. Cook, 490 U.S. 488 (1989) (Carafas
rested “on the fact that the petitioner had been in physical
custody under the challenged conviction at the time the petition
was filed”).

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Commonwealth’s

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other

option

for

compliance

with

the

Relief Order was to provide Wolfe with a new trial “within onehundred

and

Relief

twenty

Order

2.

(120)
The

days

of

the

Commonwealth

date

insists

of

[the

that

it

Order].”
was

obliged to actually complete a retrial within 120 days.

not
That

is, it was not necessary for a verdict to be returned in the
state

court,

or

even

that

a

jury

be

selected,

so

long

as

proceedings leading to a retrial had commenced in the circuit
court.

In this regard, the Commonwealth emphasizes that the

circuit

court

had

conducted

a

bond

hearing

on

September

14,

2012, and that other pretrial proceedings (such as motions to
dismiss

the

prosecutor)

were

ongoing until the Order Enforcing Judgment was entered.

The

Commonwealth
[Wolfe]

with

indictments

thus
a

and

maintains

new

trial”

disqualify

that
was

its

the

obligation

thereby

to

satisfied.

“provide
In

the

alternative, the Commonwealth suggests that the 120-day retrial
period did not begin to run until the issuance of our mandate in
Wolfe II, on September 7, 2012.
Each
rejected

of
by

the
the

foregoing

contentions

district

court,

interpretations of the orders on appeal.

were

considered

predicated

on

and
its

With regard to whether

the 120-day retrial period ran from the issuance of our mandate,
the court explained that

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the stay [entered on November 22, 2011] pending the
Commonwealth’s appeal of the Court’s Amended Judgment
paused or halted the 120-day deadline imposed by the
Court to provide Wolfe a new trial.
When that stay
was lifted [on September 7, 2012], the deadline clock
resumed where it left off when the stay was granted
and there were 36 days remaining.
On Saturday,
October
13,
2012,
the
120
days
given
to
the
Commonwealth to provide Wolfe with a new trial
expired. Because the deadline fell on a weekend, the
deadline for retrial moved to Monday, October 15,
2012.
Order

Enforcing

contention,

that

Judgment
the

11. 11

obligation

In
to

response
provide

to

Wolfe

the

second

with

a

new

trial was satisfied by the commencement and conduct of pretrial
proceedings in the circuit court, the Order Enforcing Judgment
specified that the retrial had to be completed — and not merely

11

It is apparent that the Commonwealth was aware, as early
as September 13, 2011, that the district court could deem the
120-day retrial period to have run concurrently with the appeal
in Wolfe II. In a memorandum filed that day in support of its
motion for a stay pending appeal, the Commonwealth assumed that
the 120-day period had already begun, opining that
[i]n the absence of a stay, the Order would take
effect and the Commonwealth would be either burdened
with a new capital trial or required to set Wolfe free
without a trial.
In either instance, the Director
would be prevented from exercising his right of
appeal.
J.A. 113.
The subsequent Stay Order seems to have been based
upon the same assumption, see Wolfe v. Clarke, 819 F. Supp. 2d
at 583 (noting that, without a stay, the 120-day period would
expire before the Commonwealth’s reply brief was due to this
Court in Wolfe II). The Commonwealth was therefore cognizant of
the 120-day issue during the pendency of the Wolfe II appeal,
yet failed to bring it to our attention.

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commenced — within the prescribed period.

More precisely, the

court explained that
it was certainly the objective of the Court in issuing
[the Relief Order] that [Wolfe] would be either
promptly retried or relieved of the strictures imposed
by his constitutionally flawed conviction and it was
certainly the intention of the Court that in providing
[Wolfe] a new trial within 120 days, said trial
actually occur within that period of time.
Id. at 14 (quotation marks and alterations omitted).
The

Commonwealth

complains

that,

evaluated

together,

the

district court’s interpretation of its prior directives left the
prosecution, after the Wolfe II mandate, with only thirty-six
days

to

complete

a

capital

murder

trial.

According

to

the

Commonwealth, the Order Enforcing Judgment was a “prejudicial,
revisionist rewording of [the] judgment.”

Br. of Appellant 24.

That characterization fails to recognize that, in the referenced
order, the district court explained the meaning of its earlier
orders as intended upon entry, without regard for post-judgment
events.

It was the Commonwealth that sought (and now seeks from

this Court) a recasting of the district court’s rulings on the
basis

of

Sullivan,

subsequent
13

F.3d

procedural

350,

353

developments.

(10th

Cir.

1993)

See

Capps

(remanding

v.
for

district court “to give effect to its original understanding of
the order granting [habeas relief]” (emphasis added)).
Notwithstanding the foregoing, the Commonwealth may well be
correct that completing a retrial of a complex death penalty
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case

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within

thirty-six

days

Pg: 24 of 53

was

a

practical

impossibility.

Indeed, that fact alone may have been sufficient to justify an
extension

of

the

retrial

period.

The

Commonwealth

did

not,

however, return to court seeking either a clarification or an
extension.
We also recognize that the district court’s explanation of
its 120-day period was a highly restrictive one, and that, in
the absence of a thorough explanation, the court’s construction
of that directive could be viewed as erroneous.

By way of

example, the court counted against the Commonwealth an aggregate
of eighty-four days during the pendency of the Wolfe II appeal.
That

is,

the

period

from

the

August

30,

2011

Relief

Order

through the November 22, 2011 Stay Order was counted against the
120-day

retrial

period,

notwithstanding

the

Commonwealth’s

timely filing, on September 2, 2011, of its second notice of
appeal.

Furthermore, the district court did not consider that

the circuit court, subsequent to the Wolfe II mandate, spent a
substantial
Wolfe.

period

of

time

addressing

motions

interposed

by

Even the federal Speedy Trial Act, which the district

court administers on a regular basis, excludes such periods of
time.

See

calculations,

18

U.S.C.

inter

§ 3161(h)

alia,

“delay

motion”).

24

(excluding

from

speedy

resulting

from

any

trial

pretrial

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Additionally, before concluding that the Commonwealth had
failed

to

comply

with

the

Relief

Order,

the

district

court

acknowledged that there is a “lack of clear controlling case law
on a number of issues.”

Order Enforcing Judgment 7.

In these

circumstances, we are obliged to provide a modicum of clarity:
When a district court awards habeas relief, it is preferable
that its order include language ensuring that the respondent
will

suffer

no

prejudice

by

exercising

its

right

of

appeal.

See, e.g., Tice v. Johnson, 3:08-cv-00069 (E.D. Va. Nov. 19,
2009)

(“The

Commonwealth

writ
of

of

habeas

Virginia

corpus
does

not

will

be

GRANTED

commence

the

if

the

retrial

. . . within 120 days of the date of entry of this judgment
should appeal not be taken, or within 120 days after the final
resolution of any appeal (including a petition for a writ of
certiorari) if an appeal is taken.”).
At

this

stage

of

Commonwealth

having

clarification

from

these

proceedings,

foregone

this

hardly claim surprise. 12

Court

any
or

the

however,

opportunity
district

with

to

court,

the

obtain
it

can

Furthermore, the district court has

12

In Williams v. Netherland, a decision relied on by the
Commonwealth, an issue similar to that presented here was
avoided when the Commonwealth’s Attorney in that case did what
should have been done here: He returned to the habeas court, in
advance of the court-ordered deadline, and requested an
extension of time.
See No. 3:96-cv-00529 (E.D. Va. Nov. 14,
2002).

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explained its intentions with respect to the Relief Order and
the

Stay

Order,

explanations.

and

we

are

inclined

to

credit

those

Because the Commonwealth failed to either retry

or release Wolfe within 120 days, we turn to the remedy for that
transgression.
B.
The Commonwealth contends that the district court abused
its discretion in barring Wolfe’s retrial.

Though we reiterate

that a federal habeas court possesses substantial discretion in
fashioning an appropriate remedy, preventing the retrial of a
state criminal case is the strongest of medicine.

And it is a

measure that should be utilized with the utmost restraint, only
in

the

most

extraordinary

of

circumstances.

See

Gilliam

v.

Foster, 75 F.3d 881, 905 (4th Cir. 1996) (en banc) (“Equitable
federal

court

proceedings
narrow,
narrow

interference

should

and

be

undertaken

circumscribed

circumstances

with

are

ongoing
in

only

the

situations.”).
simply

not

state
most

Such

present

criminal
limited,

limited

here.

We

and
are

therefore constrained to conclude, as explained below, that the
district court abused its discretion in barring Wolfe’s retrial.
1.
In

support

of

its

chosen

remedy,

the

district

court

correctly recognized that the award of an unconditional writ
does

not,

in

and

of

itself,

preclude
26

the

authorities

from

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rearresting and retrying a successful habeas petitioner.

As the

court acknowledged,
[i]t is generally recognized that a violation of a
court’s directive to retry a habeas petitioner within
a certain amount of time would permit the court to
order the prisoner’s release, however, “the granting
of an unconditional writ in this circumstance will
not, itself, generally preclude the government from
rearresting and retrying the prisoner.”
Order

Enforcing

§ 13:10

(May

Judgment

2010)).

15

(quoting

The

court,

Federal

Habeas

however,

Manual

identified

an

exception to the general rule, namely, that “in extraordinary
circumstances . . . a habeas court may forbid reprosecution.”
Id. (citing Satterlee v. Wolfenbarger, 453 F.3d 362, 370 (6th
Cir. 2006)).
In
here,

detecting

the

the

district

presence

court

of

extraordinary

explained

that

the

circumstances

conduct

of

the

prosecutors — in particular, their conduct during the September
11, 2012 Barber interview — “sp[oke] to a continuing pattern of
violating

[Wolfe’s]

right

to

use

Brady

and

Giglio

evidence,

which the court attempted to remedy through its habeas decree.”
Order

Enforcing

analysis

was

frustrated
“permanently

the

19.

belief

its

Judgment

At

that

the

entire

purpose”

crystalized”

the

the

core

of

prosecutors
of

habeas

constitutional

the

had

corpus

court’s

“incurably
and

violations

had
by

“scar[ing] Barber into invoking his Fifth Amendment right to
avoid self-incrimination.”

Id. at 24.
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The district court’s conclusion concerning the availability
of Barber’s testimony at a retrial, however, is speculative.

As

an initial matter, Barber could decide on his own to testify,
and — based on his track record — such evidence might provide
support

for

immunity,

either

Barber’s

side. 13
testimony

And,
may

under
well

a
be

proper

grant

compelled.

of
See

Kastigar v. United States, 406 U.S. 441 (1972) (holding that
Fifth

Amendment

compelled

to

privilege
testify

by

may

be

proper

supplanted
grant

of

and

witness

immunity).

Alternatively, the state trial court, by way of example, could
determine that a waiver of Barber’s Fifth Amendment privilege
has already been made; it could authorize the evidentiary use of
Barber’s prior statements in one form or another; or it might
craft any number of other remedies.

Put simply, the task of

conducting Wolfe’s retrial is for the state trial court, and it
is not for us to express a view on how that court should manage
its affairs.

We are confident that the retrial will be properly

handled, and, if convictions result, that the appellate courts
will perform their duties.

13

The district court apparently believed it “unlikely that
the Commonwealth would grant immunity to Barber so that he could
provide testimony to exonerate [Wolfe].”
Order Enforcing
Judgment 25 n.6. Nevertheless, the Commonwealth asserts that it
has offered Barber immunity for his truthful testimony at trial.
Br. of Appellant 35.

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district

court

Pg: 29 of 53

also

speculated

that

the

Barber

interview served to deprive Wolfe’s defense of a credible trial
witness, and thereby abridged Wolfe’s due process rights.

See

Order Enforcing Judgment 24 (citing United States v. Saunders,
943 F.2d 388, 392 (4th Cir. 1991) (“Improper intimidation of a
witness may violate a defendant’s due process right to present
his

defense

witnesses

freely

if

the

intimidation

amounts

to

substantial government interference with a defense witness’ free
and

unhampered

omitted))).

choice

to

testify.”

(internal

quotation

marks

Like other constitutional issues that may arise in

a post-habeas retrial, however, contentions relating to Barber’s
alleged intimidation by the prosecutors are yet to be exhausted
in the state court system.
(1975)
court

(alleged

See Pitchess v. Davis, 421 U.S. 482

post-habeas

exhaustion).

Indeed,

Brady

violation

Wolfe

has

subject

already

to

state

raised

that

precise issue before the circuit court in his yet-unresolved
post-Wolfe II motion to dismiss the indictments.

By barring

Wolfe’s retrial, the district court has deprived the circuit
court of the opportunity to address that motion.

Notably, in

the event Wolfe is acquitted, any such issues would be moot.
And, should Wolfe be again convicted, the state court system
might

vindicate

him

on

appeal.

Failing

that,

Wolfe’s

due

process claim with respect to the Barber interview could, at the

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proper time, constitute a separate ground for federal habeas
corpus relief.
At

the

end

circumstances

of

the

sufficiently

day,

any

extraordinary

scenario
to

presenting

warrant

federal

interference with a State’s reprosecution of a successful § 2254
petitioner

will

be

extremely

rare,

and

will

ordinarily

be

limited to situations where a recognized constitutional error
cannot be remedied by a new trial.
Perry,

417

U.S.

prosecution

could

21,

31

contravene

(1974)
due

See, e.g., Blackledge v.
(holding

process

and

that

vindictive

justify

bar

to

retrial); Barker v. Wingo, 407 U.S. 514, 522 (1972) (concluding
that dismissal may be appropriate remedy for Sixth Amendment
speedy trial violation); Gilliam, 75 F.3d at 881 (barring state
retrial on double jeopardy grounds). 14
Put succinctly, the constitutional claims for which Wolfe
was awarded habeas corpus relief are readily capable of being
remedied in a new trial.
never

contemplated

the

Our resolution of the Wolfe II appeal
possibility

of

a

retrial

bar,

and

we

expected a trial — if that option were pursued — to occur
14

There are limited situations where a state criminal
retrial could properly be barred by a habeas court on the basis
of a constitutional deprivation. See generally 2 Randy Hertz &
James S. Liebman, Federal Habeas Corpus Practice and Procedure
§ 33.2 (identifying decisions involving, inter alia, double
jeopardy, insufficient evidence, ex post facto violation, and
unconstitutional statute).

30

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within

a

proceedings

Filed: 05/22/2013

reasonable
on

their

Pg: 31 of 53

time.

The

merits,

before

resolution
the

public

critical importance to our system of justice.
been

settled

that

“[a]n

indictment

of

returned

criminal

eye,

is

of

And it has long
by

a

legally

constituted and unbiased grand jury, . . . if valid on its face,
is enough to call for trial of the charge[s] on the[ir] merits.”
Costello v. United States, 350 U.S. 359, 363 (1956) (footnote
omitted).

We emphasize, however, that Wolfe, like any accused —

as well as the Commonwealth — is entitled to a fair trial.
very proposition is what the Wolfe II decision is all about.

That
As

has been emphasized, “[a] murder trial — indeed any criminal
proceeding — is not a sporting event.”

Giles v. Maryland, 386

U.S. 66, 102 (1967) (Fortas, J., concurring).
The district court, in its Order Enforcing Judgment, relied
on decisions where a bar to retrial was approved even though the
constitutional errors could have been thereby remedied.

See

Satterlee, 453 F.3d at 370 (barring retrial deemed appropriate
“when the state inexcusably, repeatedly, or otherwise abusively
fails to act within the prescribed time period or if the state’s
delay is likely to prejudice the petitioner’s ability to mount a
defense at trial” (internal quotation marks omitted)); Capps, 13
F.3d at 350 (barring retrial appropriate where state neither
retried petitioner nor sought stay of habeas writ).

Although we

do not exclude the possibility that a federal habeas court — in
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an extremely rare and unique circumstance — might proscribe a
state

court

could

be

principles

retrial

thereby
of

extraordinary

even

though

remedied,

we

Capps

or

the
are

constitutional
unwilling

Satterlee.

circumstances,

the

In
proper

violation

to

embrace

the

the

absence

of

disposition

is

generally, as the district court recognized, the release of a
successful habeas petitioner, subject to rearrest and retrial. 15

IV.
Here, of course, the district court was correct to order
Wolfe’s “release” on the original charges, though such action
did not actually free him from custody.

As we have explained,

15

The Commonwealth alternatively contends that the retrial
bar was foreclosed by Younger v. Harris, 401 U.S. 37 (1971), and
the Anti-Injunction Act, 28 U.S.C. § 2283. Pursuant to Younger,
a federal court “may intervene in state criminal proceedings,
either by way of declaratory relief or by injunction, only when
there has been a ‘showing of bad faith, harassment, or any other
unusual circumstance that would call for equitable relief.’”
Gilliam, 75 F.3d at 903 (quoting Younger, 401 U.S. at 54). The
Anti-Injunction Act provides, in pertinent part, that
[a] court of the United States may not grant an
injunction to stay proceedings in a State court except
as expressly authorized by Act of Congress, or where
necessary in aid of its jurisdiction, or to protect or
effectuate its judgments.
28 U.S.C. §
discretion in
we need not
regarding the

2283.
Because the district court abused its
barring Wolfe from being retried in state court,
reach or address the Commonwealth’s contentions
principles of Younger and the Anti-Injunction Act.

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Wolfe is facing multiple indictments in Prince William County,
and he has been rearrested and denied bail.
effect

Wolfe’s

release

in

compliance

All that remains to

with

the

alternatives

contemplated by our Wolfe II decision (and by the district court
in

its

grant

of

relief)

Wolfe’s

2002

criminal

is

for

the

convictions

and

Commonwealth
to

take

to

any

expunge
and

all

additional steps necessary to nullify any material adverse legal
consequences attendant to those convictions.

Subsequent to or

contemporaneously therewith, the Commonwealth may retry Wolfe on
the

original

charges

together

with

the

new

charges,

in

accordance with such plan and schedule that the state circuit
court may devise.
Pursuant to the foregoing, we vacate the district court’s
Order Enforcing Judgment and remand with instructions that the
court enter a substitute order directing that Wolfe be released
from the custody imposed as the result of his 2002 convictions,
and, further, that those convictions be expunged and their legal
effects nullified consistently with Wolfe II and this opinion.
The order on remand shall be without prejudice to a retrial of
the original charges against Wolfe, and it shall not preclude
the conduct of such other and further proceedings in the state
or federal courts as may be appropriate.
VACATED AND REMANDED

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THACKER, Circuit Judge, concurring in part and dissenting in
part:
I

agree

with

the

majority’s

conclusion

that

the

Commonwealth failed to satisfy the terms of the district court’s
conditional writ in this case, as set forth in Part III.A. of
the

majority

conclusion

opinion.

that

the

I

cannot,

district

however,

court

abused

agree
its

with

its

discretion

in

barring re-prosecution of Justin Wolfe -- an appropriate remedy
in my view, in light of the Commonwealth’s continued

misconduct

and resulting threat to Justin Wolfe’s constitutional right to a
fair trial.
The
federal

majority
habeas

circumstance

--

does

not

“exclude

court

--

in

an

might

proscribe

the

possibility

extremely
a

state

rare

court

and

that

a

unique

retrial

even

though the constitutional violation could be thereby remedied,”
but it is “unwilling to embrace” that principle in this case.
Ante at 31-32 (emphasis added).
for

the

reasons

that

follow,

I am willing to do so; in fact,
the

extremely

rare

and

unique

circumstances of this case command a bar on re-prosecution.

The

Commonwealth’s misconduct has continued far too long, and the
cumulative misconduct permeating this case has tainted it in
such a way that it is doubtful Wolfe will receive a fair and
just trial.

Enough is enough.

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Accordingly,

and

for

Pg: 35 of 53

the

reasons

set

forth

herein,

I

dissent as to Part III.B.

I.
The Supreme Court of the United States has stated, simply
and

repeatedly,

“[t]he

justice is done.”
(2011).

role

of

a

prosecutor

is

to

see

that

Connick v. Thompson, 131 S. Ct. 1350, 1365

“It is as much [a prosecutor’s] duty to refrain from

improper methods calculated to produce a wrongful conviction as
it is to use every legitimate means to bring about a just one.”
Berger v. United States, 295 U.S. 78, 88 (1935).
Mindful
equitable

of

this

interference

court’s
with

admonishment,

state

criminal

“federal

court

proceedings

should

not be undertaken except in the most narrow and extraordinary of
circumstances,” Gilliam v. Foster, 75 F.3d 881, 903 (4th Cir.
1996) (en banc) (citing Younger v. Harris, 401 U.S. 37 (1971)),
I nonetheless cannot ignore the ways in which the Commonwealth’s
misconduct has hindered rather than fostered justice throughout
the

course

of

this

case.

Although

the

“extraordinary

circumstances” exception is narrow, this case -- wherein the
Commonwealth’s conduct has been appalling -- fits squarely into
that narrow space.

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A.
1.
I begin with the elementary propositions that habeas corpus
is, “at its core, an equitable remedy,” Schlup v. Delo, 513 U.S.
298, 319 (1995), and a district court has broad discretion to
“dispose of habeas corpus matters ‘as law and justice require,’”
Hilton

v.

Braunskill,

U.S.C. § 2243).
(1961).

481

U.S.

770,

775

(1987)

(quoting

28

See also Irvin v. Dowd, 366 U.S. 717, 728-29

For these reasons, our review of a district court’s

decision to bar re-prosecution is circumscribed.

See D’Ambrosio

v. Bagley, 656 F.3d 379, 390 (6th Cir. 2011) (stating that a
district

court’s

decision

to

bar

re-prosecution

would

be

reviewed for abuse of discretion).
Under an abuse of discretion review, we should not disrupt
the court’s remedy unless we believe it “act[ed] arbitrarily or
irrationally,

fail[ed]

to

consider

recognized

factors

constraining its exercise of discretion, relie[d] on erroneous
factual
United

or

legal

States

v.

premises,
Wilson,

or

624

commit[ted]
F.3d

640,

an

649

error
(4th

of

law.”

Cir.

2010)

(internal quotation marks omitted).
2.
As the majority notes, see ante at 30, the extraordinary
circumstances exception has traditionally surfaced in cases in
which a constitutional violation cannot be remedied by a new
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trial.

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See, e.g., Gilliam, 75 F.3d at 903 (re-prosecution would

contravene the Double Jeopardy Clause); Solem v. Bartlett, 465
U.S. 463, 481 (1984) (state court lacked jurisdiction over the
prosecution); Smith v. Goguen, 415 U.S. 566 (1974) (petitioner
was

convicted

under

an

unconstitutional

statute);

Strunk

v.

United States, 412 U.S. 434, 439-40 (1973) (re-prosecution would
violate petitioner’s right to a speedy trial).
But some courts have also found the remedy appropriate in
cases in which “other exceptional circumstances exist such that
the holding of a new trial would be unjust.”
13 F.3d 350, 352-53 (10th Cir. 1993).

Capps v. Sullivan,

These courts have relied

on circumstances that demand equitable relief, even if those
circumstances
remedied

present

upon

constitutional

retrial.

For

violations

example,

in

that

could

Satterlee

be
v.

Wolfenbarger, the Sixth Circuit held that a district court “may
forbid reprosecution” where “the state inexcusably, repeatedly,
or otherwise abusively fails to act within the prescribed time
period,”

or

“the

state’s

delay

is

likely

to

prejudice

petitioner’s ability to mount a defense at trial.”
362,

370

(6th

Cir.

alterations omitted).
266,

268

n.l

(5th

2006)

(internal

quotation

the

453 F.3d
marks

and

See also Wiggins v. Estelle, 681 F.2d

Cir.

1982)

(suggesting

petitioner

should

“forever be set free” if pre-indictment delay denied petitioner
due process), rev’d on other grounds, McKaskle v. Wiggins, 465
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U.S. 168 (1984); United States ex rel. Schuster v. Vincent, 524
F.2d

153,

154,

158,

162

(2d

Cir.

1975)

(ordering

a

habeas

petitioner’s immediate release and absolute discharge where he
had been confined in a state hospital for over 30 years without
the opportunity for a commitment hearing and had been in prison
for a total of 44 years); Garcia v. Portuondo, 459 F. Supp. 2d
267, 294 (S.D.N.Y. 2006) (A court may bar retrial, even if the
constitutional violation is capable of correction, “where the
petitioner has served an extended and potentially unjustifiable
period of incarceration before the writ was granted.” (internal
quotation marks and alterations omitted)); Morales v. Portuondo,
165 F. Supp. 2d 601, 609 (S.D.N.Y. 2001) (barring retrial where
“the

evidence

strongly

suggests

that

[the

petitioners]

are

innocent,” their “ability to defend against the charges in any
new

trial

has

been

hampered”

by

unavailability

of

witnesses

because of the state’s delay, and they have “served extended and
potentially

unjustified

periods

of

incarceration”

(internal

quotation marks omitted)).
Whether circumstances are “extraordinary” enough to bar reprosecution is a fact-based determination, left to the sound
discretion of the district court.

See Foster v. Lockhart, 9

F.3d 722, 727 (8th Cir. 1993) (“A district court has authority
to preclude a state from retrying a successful habeas petitioner
when the court deems that remedy appropriate.”).
38

In this case,

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I do not agree that the district court abused that discretion:
I am not as confident as the majority that the Commonwealth’s
Brady and Giglio violations and subsequent misconduct can be
remedied in a new trial.
circumstances

at

hand

But even assuming they can be, the
are

extraordinary

enough

to

demand

equitable relief in the form of a bar on re-prosecution.
B.
The

district

court’s

remedy

was

set

forth

in

the

Order

Enforcing Judgment as follows:
The Commonwealth, having violated the Court’s
conditional writ of habeas corpus by failing to
“within one-hundred and twenty (120) days of the date
of this Order, provide Petitioner with a new trial, or
release him unconditionally from custody,” it is
ORDERED that the Commonwealth of Virginia release
Petitioner unconditionally, free of all criminal
proceedings on the charge of murder for hire of Danny
Petrole and the drug charges that were previously
tried in state court by the Commonwealth, within ten
(10) days of the entry of this order.
It is FURTHER ORDERED that the Commonwealth of
Virginia is hereby BARRED from reprosecuting the
Petitioner on the charges originally tried herein in
state court or any other charges stemming from death
of Danny Petrole which requires the testimony of Owen
Barber in any form.
J.A. 534-35.

The district court explained,

As a starting point, the Court fully concedes
that had the content of the Petitioner’s Motion to
Enforce
Judgment
been
strictly
limited
to
the
Commonwealth’s violation of the deadline set in this
case, the question of the appropriate remedy would be
an easy one.
The Court would order Wolfe’s release,
but he would be subject to rearrest and reprosecution
by the Commonwealth.
However, the reality of this
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case is very different than that of the ordinary case
which constrains the Court to extraordinary remedies.
Id. at 525.
Wolfe’s

The court proceeded to discuss two aspects of

case

Commonwealth’s

that

warranted

continuing

a

bar

pattern

to
of

re-prosecution:
misconduct,

the

including

flagrant and ubiquitous violations of Brady and Giglio; and the
Commonwealth’s jail visit to Owen Barber on September 11, 2012.
1.
First,
certainly

I

not

am

compelled

all)

of

the

to

set

previous

forth

a

sampling

instances

of

(though

misconduct

perpetrated by the Commonwealth:
•

The Commonwealth withheld the report composed by
Detective Sam Newsome (the “Newsome Report”),
which specifically stated, “I told [Barber] that
he was potentially facing a capitol [sic] murder
charge in this case and that he needed to help
himself. . . . 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[.]”
Wolfe v. Clarke, 691
F.3d 410, 417 (4th Cir. 2012) (“Wolfe II”). The
Newsome Report also showed that the first mention
that Wolfe had anything to do with Petrole’s
murder was raised by Detective Newsome, not by
Barber himself;

•

The Commonwealth withheld evidence that Barber
possessed
potential
motives
for
murdering
Petrole, see Wolfe v. Clarke, 819 F. Supp. 2d
538, 565 (E.D. Va. 2011);

•

The Commonwealth withheld evidence that Barber’s
roommate, Jason Coleman, informed the prosecution
that Barber had confessed to acting alone, see
id.;

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•

The Commonwealth withheld evidence suggesting
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, id. at 54849, 552;

•

The Commonwealth withheld impeachment
including information relating to a
Commonwealth made with its witness J.R.
exchange for his cooperation, see id. at

•

The Commonwealth withheld a recorded statement
made by its witness Chad Hough that conflicted
with his trial testimony, see id. at 549;

•

The Commonwealth withheld evidence which could
have allowed Wolfe to present an alternate theory
of the Petrole murder: 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;
evidence that Petrole was rumored to be a
government informant, constituting yet another
possible
motive
for
his
murder;
and
the
statements of three witnesses that they saw a
second car at the crime scene shortly after the
Petrole murder, see id. at 566, 558-59;

•

When questioned why his office does not have an
“open-file policy,” a Commonwealth prosecutor
offered “the flabbergasting explanation that he
has ‘found in the past when you have information
that is given to certain counsel and certain
defendants, they are able to fabricate a defense
around what is provided.’” Wolfe II, 691 F.3d at
423.
Thus, in Wolfe II, we found that the
suppression of the Newsome Report “as well as
other apparent Brady materials, was entirely
intentional,” id.;

•

The district court found, “[t]he prosecutors
choreographed and coordinated witness testimony
through a series of joint meetings with Owen
Barber and J.R. Martin, Owen Barber and Jennifer
41

evidence,
deal the
Martin in
549;

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Pascquierllo and Jason Coleman and Chad Hough.”
Wolfe, 819 F. Supp. 2d at 547.
Further, the
prosecutors did not provide any reference to or
information regarding the joint meetings with
witnesses in their written Brady disclosure, see
id.;
•

“Sergeant
Pass,
lead
officer
of
the
drug
investigation relating to Wolfe and Petrole,
submitted reports outlining the investigation of
Petrole and others’ drug activities to both the
prosecutors and homicide investigators.
Conway
did not review all of the reports dealing with
the drug investigation and he did not provide
them to Petitioner,” id. (citation omitted);

•

The
Commonwealth
used
Owen
Barber’s
trial
testimony “despite being on notice that it
contained
falsities,”
id.
at
571
(emphasis
supplied);

•

In attempting to circumvent the district court’s
mandate that the retrial occur within 120 days or
Wolfe
be
released
unconditionally,
the
Commonwealth assured the state court that the
“federal court expressly allows the Commonwealth
120 days from September 7, 2012, in which to
institute retrial proceedings,” J.A. 260; see
also ante at 12.

The gravity of this list is startling, but the pattern of
misconduct

does

not

end

there:

it

reached

its

pinnacle

on

September 11, 2012, when Detective Newsome and Prince William
County prosecutors Richard Conway and Paul Ebert (the “Original
Prosecuting Team”) visited Barber in jail (the “September 11
jail visit”) and attempted to coerce Barber to repeat his 2002
trial

testimony

upon

retrial

--

the

same

district court found “contained falsities.”
2d

at

571

(“Not

only

was

the
42

testimony

that

the

Wolfe, 819 F. Supp.

Commonwealth

in

possession

of

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information
testimony

that
at

would

the

have

time

of

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revealed
the

falsities

trial,

it

in

also

Barber’s

knew

that

suppressing that information would result in denying Petitioner
an opportunity to craft a defense based on the information.”).
This time, however, Barber had enough.

The district court

explained,
As Mr. Barber’s counsel’s testimony indicated during
this Court’s December 13, 2012 hearing, Mr. Barber,
under advice of counsel and in consideration of the
Original
Prosecuting
Team’s
[Sept.
11,
2012]
conversation, has now invoked his Fifth Amendment
privilege, which the Prince William County Circuit
Judge authorized.
As indicated by Barber’s counsel,
Barber intends to continue to invoke his Fifth
Amendment privilege at Wolfe’s retrial, absent the
granting of immunity.
J.A.

527

(citations

omitted).

Thus,

by

threatening

and

intimidating Barber -- whose most recent and credited testimony
was that Wolfe had nothing to do with Petrole’s murder -- into
invoking the Fifth Amendment, the Commonwealth has once again
deprived Wolfe of potentially exculpatory evidence.
circumstance

that,

even

if

(somehow)

the

This is a

constitutional

violations can be remedied upon retrial, is extraordinary enough
“such that the holding of a new trial would be unjust.”
13 F.3d at 353.

43

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2.
In

fashioning

its

remedy

to

bar

re-prosecution,

the

district court relied heavily upon the actions of the Original
Prosecuting Team during the September 11 jail visit, so it is
important to put the visit in context.

This court’s Wolfe II

opinion was published on August 16, 2012, and the mandate issued
on Friday, September 7, 2012.
chastised

the

Original

Our Wolfe II opinion roundly

Prosecuting

Team

for

its

failure

to

disclose exculpatory evidence and for “taint[ing]” evidence by
its “prosecutorial misconduct.”

Wolfe II, 691 F.3d at 426 n.9.

At that point, the Commonwealth was well on notice that a change
in

the

prosecution

team

would

be

necessary

meeting

with

to

avoid

any

continued improprieties.
Yet,

the

(scheduled

day

for

before

a

Wednesday,

September

Wolfe’s

counsel

the

Original

12),

Prosecuting Team traveled to the Augusta Correctional Center and
met with Barber, who was unassisted by counsel.
was

recorded

without

Barber’s

knowledge.

The encounter

The

Commonwealth

states that the Original Prosecuting Team visited Barber “in
preparation

for

the

retrial,”

and

maintains,

“Mr.

Ebert

was

permitted, even required, to talk to Barber to see which of his
many stories he intended to tell at the retrial.”
6, 28.

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Ebert received his answer within the first five minutes of
the interview:

“EBERT: What might be your testimony if we were

to call you this time [upon retrial]?

BARBER: I guess it’d have

to be what was in the Federal Court.”
referring

to

the

testimony

he

gave

J.A. 298.
at

the

Barber was

district

court

evidentiary hearing in November 2010, where he reconfirmed that
Wolfe was not “involved in the murder of Danny Petrole,” did not
“hire [Barber] to kill Danny Petrole” and did not “have anything
.

.

.

to

do

with

the

murder

of

Danny

Petrole.”

Wolfe

v.

Johnson, No. 2:05-cv-432, Docket No. 186 at 117-18 (Tr. Nov. 2,
2010); see also Wolfe, 819 F. Supp. 2d at 548 & n.9.
the

district

court

found

“Barber’s

demeanor

persuasive” at the federal evidentiary hearing.

Crucially,
and

candor

Wolfe, 819 F.

Supp. 2d at 570.
Nonetheless, the questioning did not stop there.

Instead,

because this was not the answer the Commonwealth wanted, they
proceeded to interrogate, intimidate, and threaten Barber for
over an hour, but at no point did Barber relent.
I am compelled to repeat some of the tactics used by the
Commonwealth and statements made to Barber at the September 11
jail visit:
•

Conway paraphrased the holding in the Supreme
Court case Ricketts v. Adamson, 483 U.S. 1
(1987), explaining that a government witness who
breached a plea agreement by failing to testify
truthfully against other parties “was convicted
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of first degree murder and sentenced to death.”
Conway asked, “Nobody, none of these people
[i.e., Wolfe’s attorneys] ever told you that by
breaching the plea agreement you could be tried
again also . . . for the murder[?] . . . I had
thought it was pretty deceptive really for these
people to be coming here and talking to you as if
perjury was the only thing you had to worry
about.” J.A. 310-14.
•

DETECTIVE NEWSOME: “You know, . . . sometimes you
may feel like well, if I’m going down, there’s no
need to take [Wolfe] with me. So I’ll just tell
this lie to make it easier on him.
And I’m
saying this may come from the heart in an effort
to do good, to try and do good, and say well even
though you may know he’s guilty, I’m just going
to say this because it will make his life easier.
Why should somebody else suffer also?
I will
take the brunt of this. But justice doesn’t work
like that. And nor does God work like that. We
are held accountable for our actions.
Scripture
tells us to obey the laws of the land.
We have
an obligation to do that.
And our obligation
before anything else is to be righteous and
truthful in our practices and in what we do. And
we’re told in scripture also that those with
authority over us are put there by holy mandate.
So we have an obligation to respect the Courts,
to respect the process and to do what’s right.
And we do not have the moral ability to
arbitrarily protect those who are guilty, who are
held
accountable.”
Id.
at
331
(emphasis
supplied).

•

CONWAY:
“It doesn’t matter what the victim’s
family thinks about now because we’ve gotten
somebody off of death row so it’s a victory and
the Lord will forgive us for that.
But let me
tell you something, I don’t know -- I don’t know
if the Lord’s all that forgiving or not.” Id. at
354.

•

CONWAY: “I’m not trying to trick you or anything,
but do you remember what you answered [when you
were asked why you killed Petrole]?”
BARBER:
“No. What did I say?” CONWAY: “Do you know why
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you don’t remember?
truth.” Id. at 361.

Because

it

wasn’t

the

•

DETECTIVE NEWSOME: “You know, what Mr. Conway
said about do you think if you told the truth
that you could convince somebody that it’s the
truth. . . . But this is something that you and
you alone can have an impact on and it has to
come from in there. And that is a plausible and
truthful explanation for those multitude of
changes. A plausible and truthful explanation of
why you told the truth in the initial trial, you
told
the
truth
in
letters,
but
in
these
affidavits, why you changed.
It has to be
truthful and plausible[.]” Id. at 367-68.

•

CONWAY: “You know what the truth is, Owen. It’s
something that we should have ingrained in you
more, I guess, back then.
We thought we had.”
Id. at 369.

•

CONWAY: “So you need to really search your sole
[sic] and if we’re full of shit and Justin Wolfe
didn’t have anything to do with all this, you
should tell us that right this minute and tell us
to get out because you did it all on your own and
he never had a thing to do with it.
But if you
want -- if you believe in yourself and you
believe in the truth and that you believe that
from now on nothing but the truth will ever
escape your lips, then I think that’s different.”
Id. at 370-71.

•

EBERT: “One more thing I want you to think about,
what do you think your mother would want you to
do?” Id. at 375. (Barber’s mother died of cancer
a year before Barber killed Petrole, and the
Original Prosecuting Team knew this fact because
they read aloud a previous statement of Barber’s,
which said, “I had just lost my mother the year
before [Petrole’s death] after cancer [was]
slowly eating her away,” id. at 302).

The very next day, on September 12, 2012, Conway and Ebert
filed an ex parte motion to recuse themselves and were replaced
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on September 13 by a Fairfax County Commonwealth prosecutor.
The timing of this action is highly suspect, as it suggests
that, rather than working diligently to comply with the district
court’s mandate that Wolfe be released or retried within 120
days, the Original Prosecuting Team made a last-ditch effort to
intimidate Barber into implicating Wolfe once and for all, and
then, when their plans failed, the prosecutors immediately filed
a motion to recuse themselves. 1
Considering
culminating
testimony
intention

in
that

to

this
the

cumulative

Commonwealth

“contained

invoke

his

evidence
urging

falsities,”

Fifth

Amendment

of

Barber
and

misconduct,
to

his

privilege,

reiterate
resulting
I

simply

cannot join the majority’s independent finding that this is not
an “extremely rare” situation worthy of a bar on re-prosecution.

1

The district court asked the Commonwealth, “Did the
[prosecutors’] recusal on September the 12th have anything to do
with the visit on September 11th of Mr. Barber?”
The
Commonwealth, represented by the Attorney General’s Office,
responded, “I can only speak to the record, your Honor. There’s
nothing I see in the transcript or in my listening to the
recording of the visit that would have created the basis for
them to recuse themselves.”
J.A. 456.
The Commonwealth
continued, “[T]he history of the case to that point and the
criticism that had been leveled at them would be a distraction
in continuing the prosecution of the case, and a special
prosecutor would be able to focus on the case itself,” to which
the court responded, “It took the Commonwealth until September
the 12th to figure that out?” Id. at 457.

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Ante at 30.

Pg: 49 of 53

Woe is the state of justice in the Commonwealth if

this behavior is not extremely rare.
3.
The majority makes the point that Barber may very well not
end up invoking his Fifth Amendment privilege, and if he does
testify, his testimony could benefit either side.
28.

However,

September

11

in

my

jail

opinion,

visit,

this

misses

resulting

in

the

See ante at
point.

Barber’s

threat

The
of

silence, was not an anomaly; it “permanently crystalized” the
misconduct of the Original Prosecuting Team, J.A. 533, as the
district court explained,
In the absence of the discovery violations in the
state trial, the Original Prosecuting Team’s actions
on September 11, 2012 might appear to be benign.
However, in context, they speak to a continuing
pattern of violating Petitioner [sic] right to use
Brady and Giglio evidence, which the Court attempted
to remedy through its habeas decree.
Id. at 528.
As it stands, the only witness directly linking Wolfe to
the death of Petrole -- Barber -- has now recanted and, as a
result, has been sought out and harassed by the Commonwealth
attorneys to the extent he is now chilled from testifying.

In

fact, in December 2012, Barber’s attorney testified in district
court

that,

upon

Fifth

Amendment

his

advice,

privilege

in

Barber
state

has
court,

already
and

invoked

“based

on

his
the

contents of th[e] tape [from the September 11 jail visit], my
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advice will not change about whether [Barber] should testify [at
trial] unless there’s a new development[.]”

J.A. 471-72.

But even if Barber decides to forego the privilege, his
testimony will be forever shadowed by the manipulative actions
of the Original Prosecuting Team:

the Commonwealth threatened

Barber with being charged with capital murder for breaching his
plea

agreement

and

raised

the

specters

of

God

and

Barber’s

deceased mother in attempt to coerce him into testifying to “the
truth,” a.k.a., the Commonwealth’s moniker for its version of
the

facts.

See

J.A.

310-14,

331,

369,

375.

It

is

the

Commonwealth alone that now holds the fate of the crucial Barber
testimony (and thus, Wolfe’s fate) in its grip.

They alone can

grant immunity (or not) in order to compel Barber’s testimony. 2
Yet,

it

is

clear

from

the

actions

2

and

statements

of

the

I am not satisfied by the suggestion that a state court
grant of immunity would result in Barber offering testimony.
See Gosling v. Commonwealth, 415 S.E.2d 870, 874 (Va. Ct. App.
1992) (“When a witness ‘declares his belief that the answer to
the question would [in]criminate, or tend to [in]criminate him,
the court cannot compel him to answer, unless it is perfectly
clear, from a careful consideration of all the circumstances in
the case, that the witness is mistaken, and that the answer
cannot possibly have such tendency.’” (quoting Temple v.
Commonwealth, 75 Va. 892, 898 (1881)); see also Byrd v.
Commonwealth, No. 2550-02-1, 2003 WL 23021981 (Va. Ct. App. Dec.
30, 2003) (“Even had the trial court granted Spain use immunity,
however, it could not compel him to testify if he decided to
assert his Fifth Amendment privilege.” (citing Gosling, 415
S.E.2d at 873; Va. Code Ann. § 19.2-270)).

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prosecutors

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that

the

only

testimony

they

are

interested in compelling is that which would implicate Wolfe.
The misconduct of the Original Prosecuting Team has tainted
this case to the extent that Wolfe’s due process rights are all
but

obliterated.

In

this

case,

with

its

“protracted

and

eventful history,” ante at 3, not only do we have inexcusable
delay as set forth in Satterlee, Garcia, and Morales -- caused
by the Commonwealth’s withholding of Brady and Giglio evidence
and

its

deadline

non-compliance
--

but

we

with

also

the

have

prosecutorial misconduct to boot.

district
the

court’s

grievous

120-day

instances

of

Wolfe has been in prison for

twelve years, despite the fact that the evidence linking him to
Petrole’s murder is weak, and he will now likely be deprived of
live testimony from the only direct witness to the crime for
which he is sitting on death row -- testimony that may very well
exculpate him.

Thus, the district court was not arbitrary or

irrational, did not ignore constraints on its discretion, and
did not commit factual or legal error in stopping this loathsome
spectacle once and for all.

See United States v. Wilson, 624

F.3d 640, 649 (4th Cir. 2010). 3

3

The majority maintains, “contentions relating to Barber’s
alleged intimidation by the prosecutors are yet to be exhausted
in the state court system.”
Ante at 29 (citing Pitchess v.
Davis, 421 U.S. 482 (1975)).
However, Pitchess is inapposite.
As noted in Part III.A. of the majority opinion, the
(Continued)
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II.
In sum, the district court -- possessing jurisdiction to
remedy the constitutional violations that occurred over the past
twelve

years

and

armed

with

the

authority

to

“enforc[e]

its

conditional grant of a writ of habeas corpus,” Gentry v. Deuth,
456 F.3d 687, 692 (6th Cir. 2006) -- disposed of this matter “as
law and justice require[d],” 28 U.S.C. § 2243, and did not abuse
its discretion in barring re-prosecution of Justin Wolfe.

I

would affirm the district court’s remedy and thus, respectfully
dissent as to Part III.B. of the majority opinion.
I repeat the words of our Supreme Court, “It is as much [a
prosecutor’s] duty to refrain from improper methods calculated
to

produce

a

wrongful

conviction

as

it

legitimate means to bring about a just one.”

is

to

use

every

Berger v. United

Commonwealth did not comply with the conditional writ in this
case. In such a situation, jurisdiction remains in the district
court so that it may “enforce its conditional grant of a writ of
habeas corpus.”
Gentry v. Deuth, 456 F.3d 687, 692 (6th Cir.
2006); see also D’Ambrosio v. Bagley, 656 F.3d 379, 385 (6th
Cir. 2011) (“[T]he state never complied with the conditional
writ,
and
the
district
court’s
jurisdiction
remained
intact[.]”). In Pitchess, the state complied with the district
court’s
writ,
thereby
depriving
the
district
court
of
jurisdiction over further proceedings and rendering exhaustion
of the utmost importance. In contrast, because the September 11
jail visit occurred while the Commonwealth was under the thumb
of the district court’s writ, Pitchess’s exhaustion requirement
does not preclude the district court’s consideration of the
September 11 jail visit in deciding how best to fashion a remedy
for failure to satisfy its own writ.

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295

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U.S.

78,

88

Pg: 53 of 53

(1935).

Even

Detective

Newsome

recognized that the Commonwealth “ha[s] an obligation to respect
the Courts, to respect the process and to do what’s right.”
J.A.

331.

If

only

the

Commonwealth

preached.

53

had

practiced

what

it