PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JUSTIN MICHAEL WOLFE,
Petitioner-Appellant,
v.
GENE M. JOHNSON, Director of the No. 08-8
Virginia Department of
Corrections,
Respondent-Appellee.
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-JEB)
Argued: December 2, 2008
Decided: May 11, 2009
Before KING, SHEDD, and DUNCAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by published
opinion. Judge King wrote the opinion, in which Judge Shedd
and Judge Duncan joined.
COUNSEL
ARGUED: Michele Jill Brace, VIRGINIA CAPITAL REP-
RESENTATION RESOURCE CENTER, Charlottesville,
2 WOLFE v. JOHNSON
Virginia, for Appellant. Matthew P. Dullaghan, OFFICE OF
THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellee. ON BRIEF: James M. Griffin, KING
& SPALDING, L.L.P., Washington, D.C.; Daniel J. King,
KING & SPALDING, L.L.P., Atlanta, Georgia, for Appel-
lant. Robert F. McDonnell, Attorney General of Virginia,
Jerry P. Slonaker, Senior Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Appellee.
OPINION
KING, Circuit Judge:
Justin Michael Wolfe, convicted of capital murder and sen-
tenced to death in Virginia, appeals from the district court’s
dismissal of his 28 U.S.C. § 2254 petition for habeas corpus
relief. We have granted Wolfe a certificate of appealability
(the "COA") on four substantive claims: (1) that the jury was
exposed to extraneous influences during the penalty phase
deliberations (the "extraneous influence claim"); (2) that
Wolfe’s trial counsel was ineffective in moving to strike a
qualified and potentially favorable venireman, and that the
trial court erred in striking that venireman (the "venireman
claim"); (3) that the prosecution failed to disclose exculpatory
and impeachment evidence, in contravention of Brady v.
Maryland, 373 U.S. 83 (1963) (the "Brady claim"); and (4)
that the prosecution presented false trial testimony, in viola-
tion of Napue v. Illinois, 360 U.S. 264 (1959), and Giglio v.
United States, 405 U.S. 150 (1972) (the "Giglio claim").
Wolfe also contends that the district court erred in failing to
address his claim of actual innocence, presented as a proce-
dural "gateway" for the adjudication of otherwise defaulted
substantive claims, under Schlup v. Delo, 513 U.S. 298 (1995)
(the "Schlup issue"), and by declining to conduct an evidenti-
ary hearing and to permit relevant discovery. As explained
WOLFE v. JOHNSON 3
below, we affirm on the extraneous influence claim and a sub-
part of the venireman claim (the "venireman-counsel sub-
part"); vacate on the Brady and Giglio claims, as well as on
the balance of the venireman claim (the "venireman-court
subpart"); and remand on the Schlup issue, the Brady claim,
the Giglio claim, the venireman-court subpart, and for such
other and further proceedings as may be appropriate.
I.
In these § 2254 proceedings, the petitioner, Justin Wolfe, is
an acknowledged marijuana dealer who was convicted in Vir-
ginia state court for his role in the 2001 murder-for-hire of his
drug supplier, Daniel Petrole. Wolfe’s conviction was primar-
ily secured on the basis of evidence from the triggerman him-
self, another drug dealer named Owen Barber IV. Barber was
the prosecution’s key witness in Wolfe’s capital trial and the
only witness to provide any direct evidence regarding the "for
hire" element of the murder offense and the involvement of
Wolfe therein.1 More than three years after Wolfe’s trial,
however, Barber executed an affidavit (the "Barber Affida-
vit") that repudiated his trial testimony and exculpated Wolfe
from the murder-for-hire scheme.
The Barber Affidavit and several related affidavits were
first submitted for judicial consideration in the district court
in these § 2254 proceedings. Wolfe relies on these affidavits
to establish the merits of some of his substantive claims, as
well as to demonstrate his actual innocence under Schlup in
order to excuse certain procedural defaults. Before assessing
the substantive claims and the Schlup issue, we delineate and
review the underlying facts as they were presented in Wolfe’s
2002 trial in the Circuit Court of Prince William County, Vir-
ginia, and in subsequent proceedings.
1
In exchange for his trial testimony, the Commonwealth dismissed its
capital murder charge against Barber, and he pleaded guilty to non-capital
murder. Barber was eventually sentenced to sixty years of imprisonment,
of which twenty-two years were suspended.
4 WOLFE v. JOHNSON
A.
Wolfe was indicted in Prince William County on May 7,
2001, and charged with hiring Barber to murder Petrole — a
capital offense in Virginia2 — and with using a firearm in the
commission of a felony. On July 2, 2001, the grand jury
indicted Wolfe on the additional charge of conspiring to dis-
tribute marijuana. These indictments were consolidated for
trial, and Wolfe was tried over a two-week period in January
2002.
1.
a.
The evidence presented at Wolfe’s trial reflects that, at the
time of Petrole’s March 2001 murder, Wolfe was a nineteen-
year-old marijuana dealer in northern Virginia. Wolfe dealt
high-grade marijuana — referred to on the street as "chronic"
— which Petrole had supplied to Wolfe since around Novem-
ber 2000. Wolfe made $10,000 to $15,000 a month from his
drug business, and purchased between eight and eighteen
pounds of marijuana from Petrole every two weeks. To
finance their transactions, Wolfe and Petrole utilized an infor-
mal credit system known as "fronting." Under the fronting
system, in exchange for a supply of marijuana, Wolfe would
give Petrole a cash down payment and then pay the balance
as cash was received from drug sales. Petrole tracked the
debts that his customers owed him on what is called an "owe
sheet." During their illicit business relationship, Wolfe’s debts
to Petrole reached as high as $100,000. An owe sheet found
on Petrole’s body reflected that Wolfe owed Petrole approxi-
mately $60,000.
2
Virginia defines "capital murder," in pertinent part, as "[t]he willful,
deliberate, and premeditated killing of any person by another for hire." Va.
Code Ann. § 18.2-31(2).
WOLFE v. JOHNSON 5
Barber, then twenty-one years old, was also a drug dealer
in northern Virginia. In contrast to Wolfe, Barber usually sold
a lower grade of marijuana called "shwag," which he acquired
from a supplier other than Petrole. Wolfe and Barber had been
close friends since high school. Barber testified at trial that,
in late February or early March 2001, he and Wolfe discussed
"get[ting]" Wolfe’s "chronic man" (Petrole), and that they
actually followed Petrole to certain locations with the inten-
tion of killing him. J.A. 535-36.3 No one else participated in
these preparatory discussions or activities. Their plan came to
fruition on March 15, 2001, when Wolfe informed Barber that
Petrole would be doing a drug deal that night with Wolfe at
the apartment of Wolfe’s girlfriend, Regina Zuener. Barber
and Wolfe agreed that Barber would follow Petrole home
from the apartment and kill him.
Later that evening, Wolfe alerted Barber that Petrole was
enroute to Zuener’s apartment in Centreville, Virginia, and
Barber invited his friend J.R. Martin to come along. Although
Martin declined, he permitted Barber to drive Martin’s red,
four-door 1998 Ford Escort. Armed with a 9mm handgun he
had purchased from his former roommate Jason Coleman,
Barber drove the Escort to Zuener’s apartment, parked at the
end of a cul-de-sac, and waited alone. Inside the apartment,
Zuener, Coleman, Coleman’s wife, and another friend were
with Wolfe. At about 9:40 p.m., Petrole entered the apartment
with a duffel bag filled with ten to fifteen pounds of mari-
juana, packed in one-pound bags. According to Zuener,
Petrole also carried a large sum of cash. After selling Wolfe
about eight pounds of marijuana, Petrole exited the apartment
and drove away. Wolfe and the others then went to a local
nightclub.
Barber trailed Petrole through several Fairfax County
neighborhoods, frequently updating Wolfe by cell phone.
3
Citations herein to "J.A. " refer to the Joint Appendix filed by the par-
ties in this appeal.
6 WOLFE v. JOHNSON
Ultimately, Barber followed Petrole to Petrole’s townhouse
near Bristow, Virginia. As Petrole parked his car, Barber
"jumped out" of the Escort, approached Petrole, and rapidly
fired ten rounds through the passenger-side window from a
distance of about five or six feet, emptying the ammunition
clip. J.A. 563. Barber then retreated to the Escort and sped
away, throwing the firearm and gloves out the car window.
Individuals in Petrole’s townhouse heard the shooting and
went outside to assist after Barber fled.4
After shooting and killing Petrole, Barber returned to his
apartment and recounted to Martin what had occurred. Barber
then called Wolfe, attempted to clean up Martin’s car,
changed clothes, and went with Martin to meet Wolfe at the
local nightclub. Barber told Wolfe at the club that "it was
done," to which Wolfe responded, "all right." J.A. 575. Wolfe
gave Barber "a pound and a half hug" and ordered a round of
drinks. Id. According to Barber, Wolfe commented that "we
got to have a made cake now," which was slang for making
a lot of money. Id. at 577. They also toasted to making their
"rack of money." Id. In exchange for carrying out the murder
scheme, Wolfe told Barber he did not have to pay for four
pounds of marijuana that Wolfe had previously fronted him,
gave Barber half-a-pound of chronic marijuana, forgave a
$3000 debt, and promised Barber an additional $10,000 cash.
Martin’s trial testimony largely corroborated Barber and
offered circumstantial evidence supporting the prosecution’s
case. Martin testified that he had observed Barber and Wolfe
talking alone for about fifteen minutes at the nightclub after
Petrole’s murder (although he said Barber "told [him] to go
away" while they spoke), and that Wolfe bragged about mak-
ing a lot of money and ordered Martin to keep quiet. J.A. 699.
4
Police officers discovered $965 cash on Petrole’s body and over
$17,000 cash in a duffel bag in the trunk of his car. A subsequent search
of Petrole’s townhouse uncovered approximately $120,000 cash, 46
pounds of marijuana, and 4000 ecstasy tablets.
WOLFE v. JOHNSON 7
Additionally, the day after Petrole’s death, Martin purchased
marijuana from Wolfe. After Martin told Wolfe, "I know what
you guys did," Wolfe forgave a $600 debt and fronted Martin
$5000 worth of marijuana at a discount. Id. at 707-08.5
On March 18, 2001, Barber gave Martin $540 to repair
damage to the Escort that occurred during Petrole’s murder,
and told Martin to have the work done in Virginia Beach.
Refusing to assist Barber further, Martin reported what he
knew about the Petrole murder to the authorities. The police
thereafter searched Barber’s apartment and questioned him. In
a police station interview, Barber initially denied any involve-
ment in Petrole’s murder.
Barber thereafter went to Florida, and then by train to San
Diego, California. From San Diego, he contacted his former
girlfriend Jennifer Pascquirello, and asked her to obtain
money from Wolfe and bring it to him in San Diego. Pascqui-
rello testified that, after obtaining $1000 cash from Wolfe in
Virginia, she drove to San Diego to meet Barber. As they hid
out in a local motel, Barber related a version of the events sur-
rounding Petrole’s murder; that version implicated Wolfe and
was consistent with Barber’s trial testimony. Barber was
arrested in San Diego by the federal authorities three weeks
after Petrole’s death, and was escorted back to Virginia.
b.
Wolfe testified in his own defense at trial and, with respect
to Petrole’s murder, contradicted the evidence of Barber and
the other prosecution witnesses. From the witness stand,
Wolfe admitted that he had dealt drugs for four or five years
5
Wolfe was arrested by federal authorities in Florida on March 22,
2001, a week after Petrole’s murder, and was released the next day. At
trial, Wolfe testified that, although he had driven to Florida, he had
already planned a March 23, 2001 return flight home, and that he had noti-
fied the police that he was taking the trip.
8 WOLFE v. JOHNSON
prior to Petrole’s death; that he had conspired with others to
distribute marijuana; that he had distributed more than a hun-
dred pounds of marijuana in northern Virginia in his drug-
dealing career; that he had discussed with friends the possibil-
ity of robbing a drug dealer; and that he had spoken with Bar-
ber by phone both before and after Petrole’s killing. Wolfe
also admitted selling marijuana to Martin the day after the
Petrole murder, at a reduced price, after Martin said, "I know
what you guys did."6 Wolfe conceded to owing Petrole around
$66,000 at the time of the murder, although such a debt was
not uncommon in their drug-dealing relationship. Wolfe also
testified that Barber had called him on March 19 or 20, 2001,
to request money, which Wolfe refused. Wolfe denied any
involvement in Petrole’s death and theorized that Barber had
testified falsely because he was angry at Wolfe for refusing to
give him money after the murder, and for having had sex with
Pascquirello.
2.
Two incidents concerning the trial jury are presented in
these § 2254 proceedings. The first of these jury incidents
occurred during the voir dire portion of the jury selection pro-
cess and relates to the venireman claim. The second such inci-
dent occurred during the jury’s deliberations in the trial’s
penalty phase and relates to the extraneous influence claim.
a.
The first jury incident — which underlies the venireman
claim — occurred during the voir dire portion of the jury
selection process. While questioning a panel of prospective
jurors, the prosecution asked each potential juror whether he
or she could impose the death penalty on Wolfe, even though
6
Wolfe interpreted Martin’s statement that "I know what you guys did"
as meaning that Martin knew about Wolfe’s drug dealing with Petrole, not
that Wolfe was involved in the Petrole murder.
WOLFE v. JOHNSON 9
Barber, the triggerman, would receive a lighter sentence. One
such venireman, Robert Mock, initially indicated that he
could not. The prosecutor then asked Mock, "So you abso-
lutely could not impose the death penalty in that certain
case?" J.A. 70. He replied, "I don’t think so." Id.
Thereafter, Wolfe’s counsel sought to rehabilitate Mock
and demonstrate to the trial court that Mock was qualified to
serve as a juror. Wolfe’s lawyer asked Mock,
Is there a set of facts that could be presented to you
— your testimony was before that if the shooter was
not getting the death penalty, that you didn’t think it
was right for Mr. Wolfe to get the death penalty, or
would there be circumstances where you could
impose it?
J.A. 77. Mock responded, "Yes, there could be circumstances
where I could." Id. When Wolfe’s lawyer then asked Mock if
he would "follow the law," Mock said, "Sure. Yeah." Id.
Mock also agreed that he would weigh the evidence and that
he had no "preconceived notions" about the facts. Id. The
prosecution did not ask Mock any follow-up questions.
At the conclusion of voir dire, the prosecution moved to
excuse for cause another prospective juror named Fields, who
had consistently stated that he could not impose the death
penalty under any circumstance. Wolfe’s lawyers objected,
but the trial court struck Fields from the venire. In apparent
response to the trial court’s dismissal of Fields, Wolfe’s coun-
sel moved to excuse Mock for cause. The pertinent exchange
between counsel and the court on that request proceeded as
follows:
Defense counsel: Your honor?
The Court: Yes, sir.
10 WOLFE v. JOHNSON
Defense counsel: In that case, I would have a motion
to strike Robert Mock. Mr. Mock stated that he
could not impose the death penalty because the trig-
ger man in this case, Owen Barber, had not received
the death penalty.
The Court: Mr. Ebert?
Prosecutor: I don’t object to that.
J.A. 91. Following this exchange with Wolfe’s counsel, the
trial court granted the motion and struck Mock for cause.
The venireman claim presented in these § 2254 proceedings
challenges the constitutional effectiveness of Wolfe’s trial
counsel in moving to strike Mock from the venire, as well as
the constitutional propriety of the court’s decision to excuse
Mock for cause. Thus, the venireman claim has two separate
prongs, the venireman-counsel subpart and the venireman-
court subpart. In the venireman-counsel subpart, Wolfe con-
tends that his trial counsel was ineffective under Strickland v.
Washington, 466 U.S. 668 (1984), in moving to strike Mock,
despite Mock’s qualification for jury service and indications
that he had "expressed sensitivity to at least one basis for
exercising mercy and voting for life." Br. of Pet’r 73. Wolfe
characterizes his counsel’s act as one of frustration — a "fit
of pique" — following the trial court’s decision to strike veni-
reman Fields. Id. at 68. Thus, Wolfe asserts, "[c]ounsel unrea-
sonably allowed his frustration at the court’s ruling to
overcome his rational judgment, and this fell below the Sixth
Amendment standard." Id. at 73.
In the venireman-court subpart, Wolfe asserts that the trial
court contravened the Sixth and Fourteenth Amendments by
striking venireman Mock from the jury panel, in that Mock
was plainly able and qualified to serve as a juror. Wolfe main-
tains that, under the Supreme Court precedent of Witherspoon
v. Illinois, 391 U.S. 510 (1968), "the trial court had power to
WOLFE v. JOHNSON 11
exclude Mock for cause only if he was unqualified to serve."
Br. of Pet’r 69. Furthermore, Wolfe contends that the court’s
error in striking Mock for cause is not subject to "harmless
error" analysis because it resulted in a "structural error." See
id. at 71 (citing Gray v. Mississippi, 481 U.S. 648, 668
(1987), and its progeny).
b.
The second jury incident — relating to the extraneous
influence claim — occurred during the jury’s penalty phase
deliberations. Wolfe alleges that, during those deliberations,
the trial jurors were exposed to extraneous influences that
deprived Wolfe of his Sixth Amendment right to an impartial
jury. In support of this claim, Wolfe relies on an affidavit
from one of the trial jurors, Lorrie Beyerl, which was
appended to Wolfe’s state habeas corpus petition (the "Beyerl
Affidavit").7
Two separate allegations of juror misconduct comprise the
extraneous influence claim. The first allegation arises from
Wolfe’s contention that, during a lunch break, the jury fore-
man left the jury room and had a photograph of his teenage
son enlarged. The foreman returned to the jury room with the
enlarged photograph, waited until the deliberations had
resumed, and placed the photograph on the exhibit table next
to the autopsy photos of Petrole. According to the Beyerl
Affidavit, the foreman then "asked the other jurors if [they]
wanted that to happen to [their] sons." Beyerl Affidavit ¶ 7.
Beyerl stated that, prior to the photograph being brought into
the deliberations, the jury had voted 11-1 in favor of a life
sentence. After the foreman’s introduction of the photograph,
the jury unanimously agreed to recommend a death sentence.
The second allegation contained in the extraneous influence
claim arises from Wolfe’s assertion that a juror repeatedly
7
The Beyerl Affidavit is found at J.A. 2628-30.
12 WOLFE v. JOHNSON
spoke to his wife by cell phone from the jury room during the
jury’s deliberations. According to the Beyerl Affidavit, the
juror and his family planned to start a vacation the next day,
and the juror "was often on his cell phone with his wife telling
her he didn’t know if we would finish in time or not." Beyerl
Affidavit ¶ 6. Although the Beyerl Affidavit does not specu-
late as to what the wife may have said to her husband, Wolfe
maintains that there was a reasonable risk that the wife’s
phone statements impacted her husband’s decisionmaking.
3.
The jury found Wolfe guilty of all three of the charged
offenses — capital murder, using a firearm in the commission
of a felony, and conspiring to distribute marijuana. At the
conclusion of the trial’s penalty phase, the jury recommended
that Wolfe receive a death sentence. On June 28, 2002, the
trial court accepted the sentencing recommendation and, as a
result, sentenced Wolfe to death on the murder conviction,
plus consecutive prison terms of three years and thirty years,
respectively, on his firearm and conspiracy convictions.
Wolfe appealed directly to the Supreme Court of Virginia,
raising thirty-seven substantive claims. Of the four substan-
tive claims on which we granted the COA, Wolfe raised two
generalized Brady claims to the state supreme court.8 The
court did not reach and address those Brady claims, however,
ruling instead that Wolfe had waived such claims by failing
to brief them. See Wolfe v. Commonwealth, 576 S.E.2d 471,
479-80 (Va. 2003). In disposing of Wolfe’s direct appeal, the
court affirmed his convictions and sentences, see id. at 490,
8
In Brady v. Maryland, the Supreme Court held "that the suppression by
the prosecution of evidence favorable to an accused upon request violates
due process where the evidence is material either to guilt or to punish-
ment, irrespective of the good faith or bad faith of the prosecution." 373
U.S. 83, 87 (1963). In United States v. Bagley, the Court recognized that
the Brady rule includes the disclosure of material impeachment evidence.
See 473 U.S. 667, 676 (1985).
WOLFE v. JOHNSON 13
and the Supreme Court of the United States denied certiorari,
see Wolfe v. Virginia, 540 U.S. 1019 (2003).
B.
On February 24, 2004, having been unsuccessful on direct
appeal, Wolfe sought habeas corpus relief in the Supreme
Court of Virginia, raising twenty-three substantive claims. In
his state habeas corpus petition, Wolfe asserted two Brady
claims, encompassing three subclaims of the Brady claim
being pursued in these § 2254 proceedings, as well as the
extraneous influence and venireman claims also pursued
herein.
With regard to the two Brady claims, Wolfe first alleged
that the prosecution had failed to disclose multiple deals it had
made with its witnesses, and that certain of those witnesses
got materially better deals from the prosecutors than had been
represented to Wolfe and his counsel during the trial proceed-
ings.9 In the midst of his allegations regarding witness deals,
Wolfe maintained that the prosecution had failed to disclose
that it "interviewed [Jason] Coleman extensively before trial,
and Coleman told [the prosecution] that Barber had confessed
that he acted alone in the murder." J.A. 2484. Second, Wolfe
asserted that the prosecution had failed to disclose to his trial
counsel exculpatory and impeachment evidence regarding
triggerman Owen Barber’s changing testimony. Specifically,
Wolfe claimed that Barber’s version of events in his first
interviews with the police in Virginia and California was
inconsistent with his testimony at Wolfe’s preliminary hear-
ing. According to Wolfe, the prosecution’s documentation of
such inconsistencies — particularly notes of interviews and
9
By pretrial order of December 14, 2001, the trial court required the
prosecution to "timely provide, to the Defendant, all evidence as to guilt
or in mitigation of punishment that is required to be disclosed pursuant to
Brady v. Maryland, 373 U.S. 83 (1963) and its progeny." Commonwealth
v. Wolfe, No. 50489, slip op. at 1 (Va. Cir. Ct. Dec. 14, 2001).
14 WOLFE v. JOHNSON
other pertinent materials — constituted Brady material that
was required to be disclosed to Wolfe’s defense team before
trial.
By order of March 10, 2005, the Supreme Court of Virginia
dismissed Wolfe’s state habeas corpus petition. See Wolfe v.
Warden, No. 040125 (Va. Mar. 10, 2005) (the "State Habeas
Decision").10 The State Habeas Decision included the follow-
ing pertinent rulings:
• The extraneous influence claim lacked merit
because "there [was] no evidence properly before
[the court] to support [Wolfe’s] claim that an
extraneous contact with or by a member of the
jury took place and that such contact was about
the matter pending before the jury." State Habeas
Decision 34.
• The venireman claim lacked merit in part, and
otherwise had been procedurally defaulted. The
venireman-counsel subpart lacked merit because
it "satsifie[d] neither the ‘performance’ nor the
‘prejudice’ prong of" Strickland, 466 U.S. at 687.
State Habeas Decision 2. The venireman-court
subpart had been procedurally defaulted because
it could have been raised at trial and on direct
appeal, but was not. Id. at 3.
• The Brady claim that the prosecution did not
fully disclose the deals with its witnesses was
"conclusional" because Wolfe had "failed to
allege facts that establish how the Common-
wealth violated its obligation to disclose
impeachment evidence." State Habeas Decision
28. The Brady allegation concerning Coleman
was not separately addressed.
10
The State Habeas Decision is found at J.A. 2697-733.
WOLFE v. JOHNSON 15
• The Brady claim regarding Barber’s initial incon-
sistent statements to the authorities had been pro-
cedurally defaulted because it could have been
raised at trial and on direct appeal, but was not.
Wolfe thereafter requested a rehearing in the Supreme
Court of Virginia on the State Habeas Decision, which was
denied. See Wolfe v. Warden, No. 040125 (Va. June 17,
2005). Wolfe again unsuccessfully petitioned for certiorari in
the Supreme Court of the United States. See Wolfe v. True,
545 U.S. 1153 (2005).
C.
1.
On July 22, 2005, Wolfe filed notice of his intention to
seek federal habeas corpus relief in the Eastern District of
Virginia. On August 9, 2005, on the Commonwealth’s
motion, the district court limited Wolfe’s petition to seventy-
five pages and his reply brief to thirty pages. That same day,
the court referred the § 2254 proceedings to a magistrate
judge for a report and recommendation. On October 26, 2005,
Wolfe sought a waiver of the page limitation, which the dis-
trict court denied on November 2, 2005. Wolfe filed his initial
§ 2254 petition — limited to seventy-five pages — on
November 7, 2005 (the "Initial Petition"). The Initial Petition
sought relief on eight claims, including three of the substan-
tive claims on which we granted the COA (a Brady claim, as
well as the external influence and venireman claims).
2.
Several weeks after filing the Initial Petition, Wolfe’s law-
yers secured the Barber Affidavit, which was executed on
December 14, 2005.11 The following day, Wolfe filed an
11
The Barber Affidavit is found at J.A. 2943-55.
16 WOLFE v. JOHNSON
amended petition for § 2254 relief (the "Amended Petition"),12
along with an appendix of supporting materials (the "Appen-
dix"). In addition to the Barber Affidavit, the Appendix
included affidavits executed by Carl Huff and Jason Coleman,
two men who had previously lived with Barber, which corrob-
orated the Barber Affidavit. The Appendix also included affi-
davits from three other prosecution witnesses in the trial, who
stated that their police interviews had been tape recorded, and
the affidavit of Wolfe’s investigator, Bob Lessemun, who
asserted that the authorities possessed such recordings.
a.
In the Barber Affidavit, Owen Barber confessed to testify-
ing falsely at Wolfe’s trial and admitted that Wolfe was not
involved in Petrole’s murder.13 Barber specifically stated that
"Justin had nothing to do with the killing of . . . Petrole," and
that he (Barber) "lied and implicated Justin because [he] felt
that [he] had no other choice." Barber Affidavit ¶¶ 5, 7. "The
prosecution and my own defense attorney," Barber main-
tained, "placed me in a position in which I felt that I had to
choose between falsely testifying against Justin or dying." Id.
¶ 7.
In his affidavit, Barber swore to facts that directly contra-
dicted his trial testimony. Barber asserted in his affidavit that,
for unexplained reasons, he had simply intended to confront
Petrole, not kill him. According to Barber, he had "collected
information about Danny Petrole, such as where he lived,"
and contacted Wolfe "several times in the days before the
shooting to ask when [Wolfe] would be receiving his next
delivery of chronic from Danny Petrole." Barber Affidavit ¶¶
9, 11. "Around dusk" on March 15, 2001, Barber met Wolfe
at a local restaurant and again inquired into Wolfe’s next
12
The Amended Petition is found at J.A. 2829-915.
13
The Barber Affidavit contains multiple handwritten corrections and
notations, apparently made by Barber prior to executing it.
WOLFE v. JOHNSON 17
planned meeting with Petrole, expressing his desire to pur-
chase chronic from Petrole. Wolfe responded that he would
likely see Petrole that night. Following that meeting, Barber
and J.R. Martin returned to Barber’s apartment where, later
that evening, Wolfe called to say that Petrole would be deliv-
ering drugs to Regina Zuener’s apartment.
Barber swore in his affidavit that Martin thereafter drove
him to Zuener’s apartment, where they waited together for
Petrole in Martin’s Escort at the end of a cul-de-sac. From
there, they followed Petrole from Zuener’s apartment "to Fair-
fax and then to his own house." Barber Affidavit ¶ 19. Step-
by-step, the Barber Affidavit recounts how Barber, wearing "a
hooded sweatshirt with a kangaroo pocket in the front,"
gloves, and a baseball cap, exited Martin’s car and
approached Petrole by foot as Petrole parked his car. Id. ¶¶
22, 23. As Barber walked up to Petrole’s vehicle, he saw
Petrole reach for the passenger side and believed that Petrole
was reaching for the glove compartment to get a weapon.
Panicking, Barber "pulled [his] gun out of [his] pocket and
shot Danny Petrole." Id. ¶ 27. Barber "continued to panic and
fired the rest of the bullets." Id. Barber then ran to the Escort,
and with Martin driving, they sped away.
After returning home, Barber cleaned up the Escort and
changed clothes. Shortly thereafter, he and Martin met with
Wolfe at the nightclub, where they "drank and toasted the way
that [they] always did." Barber Affidavit ¶ 34. "There was
nothing unusual," Barber maintained, "about the toasts we
made that night." Id. Nor did Barber recall telling Martin to
leave them (Barber and Wolfe) alone. Barber swore in his
affidavit that, in his trial testimony, he had "fabricated the
content of many of the calls" with Wolfe on the night of
Petrole’s murder. Id. ¶ 36. He said that he "frequently called
Justin five or six times daily," that the frequency of their calls
that night was not out of the ordinary, and that the phone calls
"had nothing to do with the shooting of Danny Petrole." Id.
¶¶ 35, 43.
18 WOLFE v. JOHNSON
The Barber Affidavit also detailed Barber’s conversations
with the authorities following his arrest. The affidavit reflects
that, on the flight back to Virginia from California, the offi-
cers accompanying Barber "told [him] they already knew that
Justin had hired [him] to kill Danny Petrole and that one of
[them] would end up telling the story and the other one would
end up with capital murder." Barber Affidavit ¶ 47. Barber
insisted that the officers first raised the murder-for-hire story,
and that they made similar statements to Barber the next day
when he was being held in the Prince William County Jail.
And, when Barber met with his court-appointed attorney, the
lawyer mentioned that, if he testified against Wolfe, Barber
would be spared his life. Over several days, police officers
and Barber’s attorney "kept trying to get [Barber] to provide
them with proof of an agreement or a deal between [Wolfe
and Barber] for murder. It was like they were beating a
drum." Id. ¶ 52. Barber stated that, in exchange for his testi-
mony against Wolfe, he was told that Jennifer Pascquirello
would not be charged.
Ultimately, Barber recounted, he "agreed to testify against
Justin because [he] did not want to face the death penalty," he
was upset with Wolfe for "let[ting] him down" by not giving
him money when he wanted to flee after the Petrole murder,
and he wanted to help Pascquirello. Barber Affidavit ¶¶ 55,
56. Barber acknowledged in the affidavit that he "knew that
they wanted to hear that I had been hired by Justin to kill
Danny Petrole, so I made up a story based in part on the true
events of that night, but with lies woven in to turn the story
into a murder for hire." Id. ¶ 59. Barber also expressed con-
cern to the prosecutors that his plea and testimony deal was
being made orally, and was not in writing.
The Barber Affidavit also alleged that Martin had fabri-
cated his trial testimony against Wolfe. Indeed, Barber main-
tained that prosecutors had conducted a joint preparation
session with Barber and Martin — prior to their trial testi-
mony — and Barber swore that he altered his trial testimony
WOLFE v. JOHNSON 19
to conform his version of the evidence against Wolfe to that
of Martin.14 Barber explained that, during this preparation ses-
sion, he "told the false story [he] had told the police and J.R.
Martin would correct points with which he disagreed," and
that they "changed details until the stories were consistent
. . . . Essentially, [they] both told lies until [they] had put
together the story that prosecutors wanted to hear." Barber
Affidavit ¶¶ 67, 68. Ultimately, Barber swore, "At Justin’s
trial, I told the story that J.R. Martin and I had agreed upon
in the meeting with prosecutors." Id. ¶ 69.
Barber’s affidavit then explained his motivation for recant-
ing his trial testimony. "At the time of my arrest and the trial,"
he explained, "I figured that I would do anything to avoid the
death penalty and to try to get myself out of the situation I had
got myself into. I would tell prosecutors and the police what
they wanted to hear." Barber Affidavit ¶ 70. Barber concluded
by asserting that "Justin does not deserve to die for something
he did not do," and that he "fe[lt] bad about the fact that an
innocent man is on death row." Id. ¶ 74.
b.
Wolfe’s lawyers also secured supporting affidavits from the
two men who had previously resided with Barber, and
included those affidavits in the Appendix filed with the
Amended Petition. The first such affidavit was executed by
Carl Huff, a former cellmate of Barber at Wallens Ridge State
Prison (the "Huff Affidavit").15 The Huff Affidavit, like the
14
The Barber Affidavit was not the only time that Barber had described
a joint preparation session with prosecutors. Prior to the December 14,
2005 Barber Affidavit, Barber executed an affidavit on October 28, 2005,
detailing similar discussions with the police and prosecutors. See J.A.
2917-19.
15
The Huff Affidavit is found at J.A. 2957-63. Notably, Barber stated
in his affidavit,
Some years ago, I told my friend and ex-cellmate, Carl Huff,
about Danny Petrole’s death and recently he shared the story with
20 WOLFE v. JOHNSON
Barber Affidavit, was executed on December 14, 2005. Huff
swore in his affidavit that, in 2003 — two years before the
Barber Affidavit — Barber had admitted to Huff that he had
killed Petrole for personal reasons and that he (Barber) had
testified falsely against Wolfe at trial. Huff stated that, "[o]ver
three or four months" while they were incarcerated together,
Barber told Huff how "Wolfe was in no way involved in the
shooting of Petrole." Huff Affidavit ¶¶ 5, 14. Huff detailed
the events surrounding the Petrole murder and, despite Huff’s
having been separated from Barber during the year prior to its
execution, the Huff Affidavit is consistent with the Barber
Affidavit. And, according to Huff, he executed his affidavit
despite his belief that doing so could hurt his chances for
parole.
The other additional affidavit was executed by Jason Cole-
man on November 3, 2005 (the "Coleman Affidavit").16
Although substantially shorter in length, the Coleman Affida-
vit corroborates the Barber and Huff Affidavits. Coleman
swore that he "told prosecutors that Owen Barber had con-
fessed to [him] that [Barber] acted alone in the murder of
Danny Petrole." Coleman Affidavit ¶ 5. Coleman also stated
that he had been interviewed by the police on a number of
occasions with respect to Wolfe’s case, that he had made
these same statements to the police earlier, and that he
believed those conversations had been recorded.17
Justin’s counsel. I am not upset with him for doing that. In fact,
I have felt like my hands were tied so that I could not tell the true
story about Justin, yet I wanted the story told.
Barber Affidavit ¶ 73.
16
The Coleman Affidavit is found at J.A. 2940.
17
No police recordings of witness interviews have ever been disclosed
to Wolfe’s defense attorneys, either in conjunction with his trial or in the
post-conviction proceedings. Indeed, the Commonwealth does not
acknowledge that such recordings exist.
WOLFE v. JOHNSON 21
c.
Wolfe also submitted to the district court an affidavit from
his investigator, Bob Lessemun (the "Lessemun Affidavit").18
Lessemun explained that, between August and November
2005, he "investigated and/or interviewed most of the primary
witnesses who testified in [Wolfe’s trial,] as well as additional
people who have knowledge about the events surrounding
Petrole’s death." Lessemun Affidavit ¶ 4. Lessemun stated
that he, along with one of Wolfe’s lawyers, had interviewed
Barber around August 9 and 10, 2005. During that interview,
Barber confessed to acting alone in killing Petrole and admit-
ted that the murder was actually a robbery gone awry. Lesse-
mun swore that "Barber said that if Petrole had been
cooperative, Barber might have simply robbed him." Id. ¶ 6.
Lessemun also stated that Barber told him that many of his
conversations with the police had been recorded.
The Lessemun Affidavit also describes Lessemun’s inter-
view with Brenda Walburn, a then-Prince William County
Police sergeant who had been involved in the investigation of
the Petrole murder. According to Lessemun, Walburn
acknowledged that "in her investigation of Petrole’s death,
she tape recorded most of her witness interviews. She said
that more than forty (40) tapes were made and are still in
police possession." Lessemun Affidavit ¶ 55. Lessemun stated
that Walburn refused to give him the tapes.
3.
As noted, on December 15, 2005 — before the Common-
wealth had answered the Initial Petition — Wolfe filed the
Amended Petition and the separate supporting Appendix.
Based on the affidavits contained in the Appendix, the
Amended Petition added a substantive "actual innocence"
claim under Herrera v. Collins, 506 U.S. 390 (1993) (the
18
The Lessemun Affidavit is found at J.A. 2924-34.
22 WOLFE v. JOHNSON
"Herrera claim"); raised the procedural Schlup issue;
expanded upon the existing Brady claim; and raised the
Giglio claim.19 The Amended Petition continued to allege the
extraneous influence and venireman claims.
As set forth in the Amended Petition, the Brady claim
encompasses four subclaims. It alleges that the prosecution
had failed to timely and fully disclose the following: (1) deals
made with prosecution witnesses (the "Brady/deals sub-
claim"); (2) evidence that Owen Barber’s story had changed
substantially over time (the "Brady/Barber subclaim"); (3)
exculpatory statements made by Jason Coleman (the
"Brady/Coleman subclaim"); and (4) the existence of over
forty audiotaped interviews with prosecution witnesses (the
"Brady/audiotapes subclaim"). The Giglio claim asserts that,
as a result of the joint preparation session with its key wit-
nesses, Barber and J.R. Martin, the prosecution had improp-
erly coordinated their versions of the relevant evidence. Thus,
their testimony created the false impression that their separate
— but consistent — versions of the events had neither been
coached nor coordinated.
With respect to Wolfe’s assertion of actual innocence, the
Amended Petition specifies that, the day before it was filed,
"two separate sources [(Barber and Carl Huff)] confirmed
what Wolfe has maintained throughout the history of this
case: that he had nothing to do with the murder of Petrole."
Amended Petition 12. In support of his assertion, Wolfe
explained that "Owen Barber, the prosecution’s star witness
19
Wolfe’s Giglio claim is premised upon the Supreme Court’s decisions
in Napue v. Illinois, 360 U.S. 264 (1959), and Giglio v. United States, 405
U.S. 150 (1972). Napue reaffirmed the long-standing principle that "a
State may not knowingly use false evidence, including false testimony, to
obtain a tainted conviction." 360 U.S. at 269. Giglio further recognized
that the prosecution’s "deliberate deception of a court and jurors by the
presentation of known false evidence is incompatible with ‘rudimentary
demands of justice’" and, as such, violates due process. 405 U.S. at 153
(quoting Mooney v. Holohan, 294 U.S. 103, 112 (1935)).
WOLFE v. JOHNSON 23
in the Commonwealth’s case against Wolfe and the only wit-
ness to tie Wolfe to the alleged murder-for-hire scheme,
recanted his trial testimony that Wolfe hired him to kill
Petrole." Id. The Amended Petition, in discussing Wolfe’s
assertion of actual innocence, presented both the substantive
Herrera claim and the procedural Schlup issue. Wolfe alleged
therein that "[t]he affidavit of Barber and the corroborating
affidavits of Carl Huff and Jason Coleman reveal the events
that actually led up to the murder of Petrole and exonerate
Wolfe." Id. at 13.
In conjunction with his filing of the Amended Petition,
Wolfe requested the district court to reset the schedule of the
proceedings and allow the Commonwealth thirty additional
days to answer the Amended Petition. He also requested the
court to expand the record to include the Barber and Huff
Affidavits. Nevertheless, on December 19, 2005, four days
after Wolfe filed the Amended Petition, the Commonwealth
answered the Initial Petition.20 Then, on December 23, 2005,
the Commonwealth requested the magistrate judge to strike
the Amended Petition on procedural grounds. Deferring its
ruling on the motion to strike, the magistrate judge, on Janu-
ary 5, 2006, ordered Wolfe to detail the differences between
the Initial Petition and the Amended Petition, explain why an
amendment was necessary, and make clear why the additional
supporting materials in the Appendix could not have been
included with the Initial Petition.
On January 19, 2006, Wolfe complied with the magistrate
judge’s order by filing a pleading styled as a "PRAECIPE,"
explaining that the primary differences between the Initial
Petition and the Amended Petition were that the Amended
Petition (1) expanded the existing Brady claim, and (2) added
two new substantive claims (the Giglio and Herrera claims),
20
In having never answered the Amended Petition, the Commonwealth
has therefore neither admitted nor denied any of Wolfe’s allegations predi-
cated on the materials contained in the Appendix.
24 WOLFE v. JOHNSON
and the procedural Schlup issue. He stated that an amendment
was necessary because the facts contained in the Barber Affi-
davit "affect multiple claims," and that the additional support-
ing materials could not have been included with the Initial
Petition because "Barber’s affidavit was not reasonably avail-
able at the time the original petition was filed," as "Barber
was not prepared to sign an affidavit until December 14." J.A.
3033-34.
In April 2006, five months after executing his affidavit,
Barber sought to recant the sworn statements contained
therein. In an unsworn, handwritten letter directed to Wolfe’s
lawyers, Barber claimed that he had testified truthfully in
Wolfe’s trial, and that he had lied in the Barber Affidavit. In
a single, seven-sentence paragraph, Barber stated, "The truth
was already told by me when I testified in court at Justin’s
trial. I wish I could help Justin, but lieing is not the way." J.A.
3044.21 Wolfe’s lawyers promptly provided a copy of Bar-
ber’s letter to the district court and requested an evidentiary
hearing to assess the obvious credibility issues being pre-
sented. They also requested that the court authorize discovery
on whether the prosecution had complied with its Brady obli-
gations.
4.
On September 22, 2006, the magistrate judge entered an
order in which he again deferred ruling on the Common-
wealth’s request to strike the Amended Petition. See Wolfe v.
Johnson, No. 2:05-cv-00432 (E.D. Va. Sept. 22, 2006).22 The
magistrate judge denied Wolfe’s motion to expand the record
to include the Barber and Huff Affidavits, however, stating
that they were "not essential to the petition before the court."
21
Neither Huff nor Coleman have sought to recant their affidavits,
which corroborate the Barber Affidavit.
22
The magistrate judge’s September 22, 2006 order is found at J.A.
3095-96.
WOLFE v. JOHNSON 25
Id. at 2. By that same order, the magistrate judge declined to
consider the exhibits appended to the Amended Petition
because they were outside the permissible ambit of the
seventy-five page limitation imposed by the district court on
Wolfe’s petition.23 On October 10, 2006, Wolfe filed objec-
tions to those rulings.
Nearly a year later, on August 7, 2007, the magistrate judge
issued his Report and Recommendation, in which he declined
to conduct an evidentiary hearing and recommended that the
district court dismiss Wolfe’s § 2254 petition. See Wolfe v.
Johnson, No. 2:05-cv-00432 (E.D. Va. Aug. 7, 2007) (the "Re-
port").24 Regarding the Barber Affidavit and other Appendix
materials that Wolfe had submitted with the Amended Peti-
tion, the Report explained that they "have not been, and will
not be, considered by this Court." Report 40.25
The Report concluded that Wolfe’s § 2254 claims either
lacked merit, had been procedurally defaulted, or both. More
specifically, the pertinent claims were disposed of as follows:
23
The district court’s August 9, 2005 order limited Wolfe’s § 2254 peti-
tion to seventy-five pages, and directed that it "be otherwise in compli-
ance" with Rule 7(F)(3) of the court’s local rules. See Wolfe v. True, No.
2:05-cv-00432 (E.D. Va. Aug. 9, 2005). Rule 7(F)(3) governs the length
and format of certain civil submissions in the Eastern District of Virginia,
but it expressly excludes "affidavits and supporting documentation" from
its scope. Additionally, the district court did not indicate that the page lim-
itation encompassed affidavits such as those in the Appendix.
24
In the Report, which is found at J.A. 3106-71, the magistrate judge
considered both the Initial and the Amended Petitions. See Report 27 ("It
is the Court’s intention to respond to the issues in the original and
amended petitions.").
25
Despite asserting in the Report that the Appendix materials would not
be considered, the magistrate judge nevertheless considered them, reject-
ing the Herrera claim on the basis that the Barber, Huff, and Coleman
Affidavits were not credible. See Report 58-59. The magistrate judge thus
implicitly modified, sub silencio, his initial decision to exclude the Appen-
dix.
26 WOLFE v. JOHNSON
• According to the Report, the extraneous influence
claim failed on its merits. The showing of the
juror photo was not an attempt to introduce out-
side influence, but instead "reflects the concern
of a juror who spent two weeks away from home
while sitting on the jury of this case." Report 60.
Additionally, the phone call from a juror to his
wife during deliberations "deserves no merit"
because any conclusion that the juror’s wife may
have been trying to influence the outcome of the
deliberations was speculative. Id.
• On the venireman claim, the Report concluded
that the venireman-counsel subpart lacked merit,
and the venireman-court subpart had been proce-
durally defaulted.26
• On the four Brady subclaims, the Report con-
cluded that "[i]n the absence of any evidence to
support [Wolfe’s] claims, the Brady claims are
without merit and should be DISMISSED."
Report 43. Furthermore, the Report explained
that "the doctrine of procedural default will bar a
federal habeas petition when a prisoner fails to
meet a state procedural requirement." Id. at 39.
– According to the Report, the
26
In assessing the venireman claim, the Report appears to have confused
its subparts. The Report stated, inversely to the state supreme court, that
the venireman-counsel subpart had been procedurally defaulted, and that
the venireman-court subpart lacked merit. Then, in explaining its proposed
ruling on the venireman-court subpart, the Report explained why Wolfe’s
trial counsel had not been constitutionally ineffective. For our purposes,
we assume this error was inadvertent and construe it as such. In any event,
the mistake appears to have been corrected by the district court in its dis-
position of this matter. The district court ruled that the venireman-counsel
subpart lacked merit, and the venireman-court subpart was procedurally
defaulted.
WOLFE v. JOHNSON 27
Brady/deals subclaim lacked merit
because it was "[c]ompletely unsup-
ported and highly speculative." Report
42.
– The Report deemed the Brady/Barber
subclaim to be without merit. It
explained that "Barber was called at
trial, cross-examined extensively, and
remains the most direct evidence of
what happened on the night of the mur-
der," and that "[t]here is nothing that
[Wolfe] has alleged that fairly draws
into question whether Barber was a
credible witness at trial or whether
[Wolfe] lost any evidence which would
have made a difference in this case."
Report 42.
– The Brady/Coleman subclaim was
determined by the Report to be without
merit and procedurally defaulted. On
the merits, "Coleman was available to
each side following the murder and
before trial, but he was never called as
a witness by either side." Report 42. On
the procedural default, the Report
stated, "No claim has been presented to
any Virginia court." Id.
– The Report concluded that the
Brady/audiotapes subclaim was also
procedurally defaulted. It stated that
"the audiotape claim has never been
presented to the Virginia courts and
argued at any level." Report 43.
• Next, the Report concluded that the Giglio claim
had been procedurally defaulted and lacked
28 WOLFE v. JOHNSON
merit. On the procedural default, the Giglio claim
had not been presented in state court. On the mer-
its, the Report observed that "[w]ithout a single
shred of evidence that this Court may properly
consider, [Wolfe] leaps to the conclusion that the
Commonwealth encouraged the two witnesses to
lie and put them on the witness stand so the lies
could be told." Report 43.
• Finally, the Report concluded that the substantive
claim of actual innocence under Herrera lacked
merit. The magistrate judge expressed his belief
that "Barber was as truthful as he has ever been
when he told the jury how and why he killed
Petrole and the specific role [Wolfe] played in
the murder." Report 59.
The Report did not address whether Wolfe’s procedural
defaults were excused under the actual innocence "gateway"
(i.e., the Schlup issue) or under the separate "cause and preju-
dice" standard.27
On October 10, 2007, Wolfe filed a lengthy series of objec-
tions to the Report.28 As it was obliged to do, the district court
then assessed the Report de novo, as challenged by Wolfe’s
27
A procedural default is excusable under the cause and prejudice stan-
dard 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 disad-
vantage, infecting his entire trial with errors of constitutional dimensions,"
United States v. Frady, 456 U.S. 152, 170 (1982).
28
Wolfe’s objections to the Report, as filed on October 10, 2007, spelled
out four "General Objections" and ten "Objections to Specific Claims."
J.A. 3174. Among his "General Objections," Wolfe asserted that the mag-
istrate judge had failed to consider whether his procedural defaults were
excused, and that the judge had improperly resolved material factual dis-
putes without conducting an evidentiary hearing.
WOLFE v. JOHNSON 29
objections. The court issued its resulting decision on February
11, 2008, by which it adopted the Report as its own and dis-
missed Wolfe’s § 2254 petition. See Wolfe v. Johnson, No.
2:05-cv-00432 (E.D. Va. Feb. 11, 2008) (the "Federal Habeas
Decision").29 Concluding that the magistrate judge had com-
mitted no error in the Report, the Federal Habeas Decision
ruled, inter alia, as follows:
• The extraneous influence claim lacked merit
because Wolfe had "failed to establish that unau-
thorized contact was made with the jurors
because [Wolfe] has complained about the
alleged actions of the jurors themselves." Federal
Habeas Decision 21-22.
• The venireman claim was without merit in part,
and had otherwise been procedurally defaulted.
Specifically, the venireman-counsel subpart was
without merit because Wolfe’s counsel struck
venireman Mock for "tactical reasons." Federal
Habeas Decision 24. The venireman-court sub-
part had been procedurally defaulted because it
"was found waived by the Supreme Court of Vir-
ginia on direct appeal." Id.
• The Brady claim (comprised of the four Brady
subclaims) was insufficient to warrant relief, as
there was "no error in the Magistrate Judge’s
determination that there were no Brady viola-
tions." Federal Habeas Decision 18. Furthermore,
"to the extent that [Wolfe] ha[d] not previously
raised any portion of a Brady claim, the claim
[was] procedurally defaulted." Id. at 16.
• The Giglio claim had been procedurally defaulted
and failed on its merits. Wolfe’s "allegation of
29
The Federal Habeas Decision is found at J.A. 3232-63.
30 WOLFE v. JOHNSON
false trial testimony arranged by prosecutors is an
invention that does not provide adequate basis for
[Wolfe’s] discovery request or support for his
defaulted substantive claim." Federal Habeas
Decision 20.
• The Report’s Herrera determination was correct
because Wolfe "ha[d] not created a ‘truly persua-
sive demonstration of actual innocence’ as con-
templated in Herrera." Federal Habeas Decision
15.
• The Appendix was properly excluded as exceed-
ing the page limitation on his § 2254 petition,
because "[Wolfe] did not limit his appendix to
the record upon which the decisions of the state
courts were based. Instead, [he] attempted to use
his appendix to present new arguments." Federal
Habeas Decision 8. Also, "because a determina-
tion of whether a state court unreasonably applied
a legal principle must be assessed in light of the
record the state court had before it, the Magistrate
Judge was correct not to consider [Wolfe’s] two-
volume appendix to the habeas petition." Id.
• The Report properly resolved material factual
disputes without conducting an evidentiary hear-
ing. Wolfe "points to no specific factual disputes
in his general objections," and because
"[s]ignificant weight must be given to the record
and deference must be given to the reasonable
findings of the state court," an evidentiary hear-
ing was not warranted. Federal Habeas Decision
10-11.
Despite these rulings, the Federal Habeas Decision is
incomplete. The district court, like the magistrate judge in the
Report, neither reached nor addressed the procedural Schlup
WOLFE v. JOHNSON 31
actual innocence issue. The court, however, considered (and
rejected) Wolfe’s contention that his procedural defaults were
excused under the "cause and prejudice" standard. Addition-
ally, in denying Wolfe’s request for an evidentiary hearing,
the court did not reach or assess the threshold issue of
whether Wolfe had exercised diligence in pursuing his sub-
stantive claims or his assertion of actual innocence in the state
court proceedings. And, although the court would not con-
sider the Appendix materials with regard to the Brady and
Giglio claims, it did consider the Barber, Huff, and Coleman
Affidavits in disposing of the Herrera claim.
Wolfe thereafter filed a motion to alter or amend the judg-
ment, which the district court denied by order of May 20,
2008. On June 18, 2008, Wolfe filed his notice of appeal with
respect to the Federal Habeas Decision. On September 12,
2008, we granted Wolfe the COA on his extraneous influence,
venireman, Brady, and Giglio claims.30 We possess jurisdic-
tion pursuant to 28 U.S.C. §§ 1291 and 2253.
II.
In disposing of a § 2254 habeas corpus petition, the provi-
sions of the Antiterrorism and Effective Death Penalty Act of
1996 ("AEDPA") substantially constrain our review of an
underlying state court decision. See 28 U.S.C. § 2254(d). Pur-
suant thereto, federal habeas relief may be awarded only if (1)
the state court adjudication of the claim on its merits "resulted
in a decision that was contrary to, or involved an unreason-
able application of, clearly established Federal law, as deter-
mined by the Supreme Court of the United States"; or (2) the
adjudication "resulted in a decision that was based on an
unreasonable determination of the facts in light of the evi-
dence presented in the State court proceeding." Id. A state
court’s decision is "contrary to" clearly established federal
law only if it is "substantially different" from the relevant
30
Wolfe did not request a COA on the Herrera claim.
32 WOLFE v. JOHNSON
Supreme Court precedent; it is "an unreasonable application
of" clearly established federal law only if it is "objectively
unreasonable." Williams (Terry) v. Taylor, 529 U.S. 362, 405,
409 (2000).
A state prisoner seeking § 2254 habeas corpus relief faces
several procedural obstacles. Importantly, the petitioner
should have presented his claims in state court before raising
them in federal court under § 2254. See 28 U.S.C.
§ 2254(b)(1)(A). If his claims were not presented in state
court, they will generally be procedurally defaulted, and the
federal court will be unable to adjudicate them. See Vinson v.
True, 436 F.3d 412, 417 (4th Cir. 2006). A § 2254 petitioner
may, however, overcome such a procedural default by show-
ing "cause and prejudice" or by establishing that his confine-
ment constitutes "a miscarriage of justice." Wainwright v.
Sykes, 433 U.S. 72, 90-91 (1977); McNeill v. Polk, 476 F.3d
206, 211 (4th Cir. 2007) (citing Coleman v. Thompson, 501
U.S. 722, 750 (1991)). A proper showing of "actual inno-
cence" is sufficient to satisfy the "miscarriage of justice"
requirement. See House v. Bell, 547 U.S. 518, 536-37 (2006).
We review de novo a district court’s denial of relief in
§ 2254 habeas corpus proceedings. See Barbe v. McBride, 521
F.3d 443, 452 (4th Cir. 2008). We review for abuse of discre-
tion, however, such a court’s decision not to conduct an evi-
dentiary hearing. See Conaway v. Polk, 453 F.3d 567, 582
(4th Cir. 2006). A court necessarily abuses its discretion when
it makes an error of law. See id. Finally, in assessing whether
a § 2254 claim has been "properly dismissed without an evi-
dentiary hearing or discovery," we must evaluate its underly-
ing allegations pursuant to the principles of Federal Rule of
Civil Procedure 12(b)(6). Id.
III.
The claims and issues assessed herein are fairly grouped
into three categories. The first category is comprised of those
WOLFE v. JOHNSON 33
claims — the extraneous influence claim and the counsel sub-
part of the venireman claim — that Wolfe maintains (without
depending on the materials in the Appendix to the Amended
Petition) were incorrectly rejected on the merits. The second
category concerns Wolfe’s reliance on the procedural Schlup
issue — an issue never addressed by the district court — for
a merits resolution of his procedurally defaulted claims. And
the third category relates to Wolfe’s contention that the dis-
trict court is obliged to conduct an evidentiary hearing, as
well as permit relevant discovery, on the Schlup issue and the
Brady and Giglio claims.
A.
We begin with our first category of claims and issues,
which encompasses the extraneous influence claim and the
counsel subpart of the venireman claim. Neither relates to the
Appendix, and both claims were disposed of on their merits
in the state supreme court and in the district court. As
explained below, we affirm the district court’s denial of
§ 2254 relief on these claims.
1.
First of all, the extraneous influence claim arises from
Wolfe’s assertion that the jury’s penalty phase deliberations
were improperly influenced by two events: (1) the jury fore-
man’s introduction of an enlarged picture of his teenage son
(the "photograph allegation"); and (2) a juror’s telephone call
to his wife (the "telephone allegation"). The Supreme Court
has recognized that "[i]n a criminal case, any private commu-
nication, contact, or tampering, directly or indirectly, with a
juror during a trial about the matter pending before the jury
is, for obvious reasons, deemed presumptively prejudicial."
Remmer v. United States, 347 U.S. 227, 229 (1954).
In Remmer, the Court concluded that a criminal defendant’s
claim that one of his trial jurors had been influenced by a
34 WOLFE v. JOHNSON
bribe offer required judicial inquiry. Remmer, 347 U.S. at
229-30. The Court has consistently emphasized, however, that
a judicial examination of all evidence tending to impeach a
jury’s verdict is not mandated. See Tanner v. United States,
483 U.S. 107, 127 (1987) (holding that evidentiary hearing on
allegations of juror’s drug and alcohol use during delibera-
tions was unnecessary). In its jury influence jurisprudence, the
Court has clearly distinguished between external jury influ-
ences, on the one hand, and internal jury influences, on the
other. Compare Parker v. Gladden, 385 U.S. 363, 363-64
(1966) (bailiff referred to defendant as "wicked fellow" before
certain jurors) (external influence), Turner v. Louisiana, 379
U.S. 466, 471-72 (1965) (key testifying police officers frater-
nized with jurors) (external influence), and Remmer, 347 U.S.
at 229 (external influence), with Tanner, 483 U.S. at 127
(internal influence). Although external jury influences neces-
sitate a thorough judicial inquiry, no such obligation is
imposed with regard to an internal jury influence. Impor-
tantly, we recently recognized that
[u]nder clearly established Supreme Court case law,
an influence is not an internal one if it (1) is extrane-
ous prejudicial information; i.e., information that
was not admitted into evidence but nevertheless
bears on a fact at issue in the case, . . . or (2) is an
outside influence upon the partiality of the jury, such
as private communication, contact, or tampering
with a juror.
Robinson v. Polk, 438 F.3d 350, 363 (4th Cir. 2006) (internal
citations and quotation marks omitted).
a.
Before assessing the merits of Wolfe’s extraneous influ-
ence claim, we must first determine the appropriate standard
to be applied in our review. On May 6, 2004, prior to issuing
the State Habeas Decision, the Supreme Court of Virginia, on
WOLFE v. JOHNSON 35
the Commonwealth’s motion, struck the Beyerl Affidavit
from Wolfe’s state habeas petition. The court did not, how-
ever, enunciate its reasons for so ruling. Then, in the State
Habeas Decision, the court rejected the extraneous influence
claim on the ground that "[t]here [was] no evidence properly
before [the court] to support petitioner’s claim that an extra-
neous contact with or by a member of the jury took place and
that such contact was about the matter pending before the
jury." State Habeas Decision 34.
We have heretofore recognized that, "[u]nder AEDPA, a
federal court must defer to a state court’s resolution of a claim
that has been ‘adjudicated on the merits.’" Monroe v. Ange-
lone, 323 F.3d 286, 297 (4th Cir. 2003) (quoting 28 U.S.C.
§ 2254(d)). "Conversely," as we further explained, "where a
state court has not considered a properly preserved claim on
its merits, a federal court must assess the claim de novo." Id.
In these § 2254 proceedings, Wolfe asserts that AEDPA does
not constrain our review of the extraneous influence claim
because "the state court . . . did not adjudicate this claim on
the merits." Br. of Pet’r 57. Wolfe thus insists that, in these
circumstances, our review of the extraneous influence claim
must proceed de novo.
AEDPA controls our review of the extraneous influence
claim, however, because the state supreme court decided that
claim on its merits. That is, although the State Habeas Deci-
sion did not articulate the legal principles that guided its anal-
ysis, or identify the legal precedents upon which it relied in
striking the Beyerl Affidavit, the court implicitly ruled that
the affidavit did not provide Wolfe with a cognizable basis for
relief. We have explained that, "[w]hen the state court deci-
sion being reviewed by a federal habeas court fails to provide
any rationale for its decision, we still apply the deferential
standard of review mandated" in AEDPA. Fullwood v. Lee,
290 F.3d 663, 677 (4th Cir. 2002) (citing Bell v. Jarvis, 236
F.3d 149, 158, 163 (4th Cir. 2000) (en banc)). In order to con-
duct a proper AEDPA analysis, however, we must indepen-
36 WOLFE v. JOHNSON
dently review the relevant record and the applicable law. See
id.
b.
Turning to the merits of the extraneous influence claim, we
separately examine, under the guidance of AEDPA, the two
allegations asserted therein. First, on the photograph allega-
tion, Wolfe has failed to show that the state court’s ruling was
"contrary to," or "an unreasonable application of," clearly
established federal law. 28 U.S.C. § 2254(d)(1). Indeed, the
court could reasonably have concluded that the photograph
was unrelated to any issue in the jury deliberations, and that
it was not the type of problematic influence — "private com-
munication, contact, or tampering . . . with a juror" — identi-
fied by the Court in Remmer. See 347 U.S. at 229. Therefore,
applying the AEDPA standard of review, Wolfe is not entitled
to § 2554 relief on the photograph allegation of the extraneous
influence claim.
Likewise, the State Habeas Decision did not unreasonably
conclude that a juror’s telephone call to his wife during delib-
erations was not an external jury influence. We have recog-
nized that "[e]xtra-judicial contact with a juror . . . is
‘presumptively prejudicial, if not made in pursuance of
known rules of the court and the instructions and directions of
the court made during the trial with full knowledge of the par-
ties.’" Fullwood, 290 F.3d at 678 (quoting Remmer, 347 U.S.
at 229). For the presumption to apply, however, a § 2254 peti-
tioner must show both that an "unauthorized contact was
made and that it was of such a character as reasonably to draw
into question the integrity of the verdict." Id.
As the Report observes, Wolfe’s assertion that the tele-
phone conversation between the juror and his wife constituted
an external influence is speculative. Put simply, the record is
void of any showing of what the juror’s wife may have said
on the telephone, or what the effect of her words might have
WOLFE v. JOHNSON 37
been. On this record, therefore, the state court’s conclusion
that Wolfe failed to show a prejudicial influence on the jury’s
deliberations was not objectively unreasonable. As a result,
we must also defer to the State Habeas Decision’s ruling on
this aspect of the extraneous influence claim.31
2.
We turn next to the merits of the counsel subpart of the
venireman claim. In disposing of the venireman-counsel sub-
part, the State Habeas Decision ruled that Wolfe was unable
to show how his trial counsel had been constitutionally inef-
fective under Strickland v. Washington, 466 U.S. 668 (1984).
In Strickland, the Court held that a habeas petitioner claiming
constitutional ineffectiveness must show that his counsel’s
performance was deficient and that prejudice resulted. See
466 U.S. at 687.
The State Habeas Decision’s rejection of the counsel sub-
part of the venireman claim was neither contrary to, nor an
unreasonable application of, clearly established federal law.
After correctly identifying the controlling precedent, the state
supreme court ruled that Wolfe was unable to show that his
counsel’s trial performance was constitutionally deficient.
Although venireman Mock had initially expressed "a position
seemingly sympathetic to [Wolfe’s] situation," he later "re-
treated" from that position. State Habeas Decision 2. "This
sort of equivocation by a prospective juror," the state supreme
court explained, "puts counsel in a quandary about whether to
leave the person on the venire or to remove him. In such cir-
cumstances, it cannot be said as a matter of law that counsel’s
31
With respect to the extraneous influence claim, Wolfe also maintains
that the Supreme Court of Virginia’s decision to strike the Beyerl Affida-
vit denied him due process and equal protection, as guaranteed by the
Fourteenth Amendment. Because the state supreme court’s disposition of
the extraneous influence claim on the merits was not "contrary to" or "an
unreasonable application of" clearly established law, the Fourteenth
Amendment allegation would accord Wolfe no relief and, thus, is moot.
38 WOLFE v. JOHNSON
decision to remove the person is erroneous." Id. at 2-3. The
State Habeas Decision’s ruling on the counsel subpart of the
venireman claim was not objectively unreasonable, and we
thus affirm the district court’s rejection of that subpart.
B.
We next turn to our second category of claims and issues,
focusing on the district court’s failure to address the proce-
dural Schlup issue. Wolfe relies on Schlup in seeking a resolu-
tion on the merits of his procedurally defaulted substantive
claims. As explained below, we must remand the Schlup issue
for a proper assessment in the district court.
1.
In his Amended Petition, Wolfe alleged that his showing of
actual innocence, supported by the Barber, Huff, and Cole-
man Affidavits, entitled him to two separate forms of relief,
the first substantive and the second procedural. First, Wolfe
relied on the Supreme Court’s decision in Herrera v. Collins,
506 U.S. 390 (1993), and contended that his actual innocence
of the murder-for-hire offense warranted substantive relief,
because the execution of an innocent accused would contra-
vene the Eighth Amendment. Second, Wolfe asserted that,
under the Court’s decision in Schlup v. Delo, 513 U.S. 298
(1995), his showing of actual innocence was sufficient to
serve as a procedural gateway for the adjudication of any oth-
erwise defaulted constitutional claims in these § 2254 pro-
ceedings.
Significantly, the district court failed to reach and adjudi-
cate the procedural Schlup issue. And, put simply, a sound
analysis of the Schlup issue is essential to properly resolve
these § 2254 proceedings, because a ruling in Wolfe’s favor
would allow his procedurally defaulted claims to be addressed
on their merits.
WOLFE v. JOHNSON 39
2.
In its Schlup and Herrera decisions, the Supreme Court has
established and utilized separate and distinct legal standards,
and those decisions control a federal court’s review and dis-
position of actual innocence claims that are pursued in § 2254
proceedings. See Schlup, 513 U.S. at 313-17 (comparing Sch-
lup and Herrera standards). In Herrera, the Supreme Court in
1993 rejected a state prisoner’s substantive actual innocence
claim. Herrera had not alleged any constitutional error in con-
nection with his trial; rather, his habeas petition rested entirely
on a claim of actual innocence. Writing for the Court plural-
ity, Chief Justice Rehnquist "assume[d], for the sake of argu-
ment . . . that in a capital case a truly persuasive
demonstration of ‘actual innocence’ made after trial would
render the execution of a defendant unconstitutional, and war-
rant federal habeas relief if there were no state avenue open
to process such a claim." Herrera, 506 U.S. at 417. The Chief
Justice recognized, however, that "the threshold showing for
such an assumed right would necessarily be extraordinarily
high." Id. Assuming such a right exists, he concluded, Herrera
had failed to make the threshold showing. See id.
On the other hand, the Schlup actual innocence standard for
gateway procedural relief relies on a less-stringent — though
nevertheless rigorous — burden. In Schlup, the Court recog-
nized in 1995 that a showing of actual innocence can serve as
a "gateway," that is, such a showing may be utilized by a
§ 2254 petitioner to secure the adjudication of his otherwise
defaulted constitutional claims. Unlike Herrera, Schlup was
not challenging an error-free trial on the basis of actual inno-
cence alone; he also sought to utilize actual innocence as a
"gateway" for pursuing his procedurally defaulted constitu-
tional claims. See Schlup, 513 U.S. at 315. As Justice Stevens
explained, in writing for the Court majority, "[f]or that reason,
Schlup’s conviction may not be entitled to the same degree of
respect as one, such as Herrera’s, that is the product of an
error-free trial." Id. at 316. Thus, "Schlup’s evidence of inno-
40 WOLFE v. JOHNSON
cence need carry less of a burden." Id. The Court concluded
that a gateway showing of actual innocence "must establish
sufficient doubt about [the petitioner’s] guilt to justify the
conclusion that his execution would be a miscarriage of jus-
tice unless his conviction was the product of a fair trial." Id.
As a result, a § 2254 petitioner asserting actual innocence
as a procedural gateway is obliged to demonstrate that "‘a
constitutional violation has probably resulted in the convic-
tion of one who is actually innocent.’" Schlup, 513 U.S. at
327 (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)).
"To establish the requisite probability," the Court explained,
"the petitioner must show that it is more likely than not that
no reasonable juror would have convicted him in the light of
the new evidence." Id. The Schlup mandate thus ensures that
a gateway actual innocence assertion must be "truly extraordi-
nary," and its appropriate application thus provides "a mean-
ingful avenue by which to avoid a manifest injustice." Id.32
Of importance, a § 2254 petitioner is entitled to have a Sch-
lup actual innocence issue addressed and disposed of in the
district court. See Bousley v. United States, 523 U.S. 614, 623
(1998) (remanding Schlup issue when district court failed to
address it); see also Clisby v. Jones, 960 F.2d 925, 936 (11th
Cir. 1992) (en banc) (instructing district courts to resolve all
claims presented in § 2254 petitions).33 In ruling on Wolfe’s
petition, the district court addressed and rejected his Herrera
claim — predicated upon its facial assessment of the
32
Under Schlup, the evidence necessary for a showing of actual inno-
cence must be "new reliable evidence — whether it be exculpatory scien-
tific evidence, trustworthy eyewitness accounts, or critical physical
evidence — that was not presented at trial." 513 U.S. at 324. As the Court
has explained, however, this list is nonexhaustive. See House v. Bell, 547
U.S. 518, 537 (2006) ("[T]he habeas court’s analysis is not limited to such
evidence.").
33
In resolving this appeal, we leave open the issue of whether, in an
appropriate circumstance, a Schlup actual innocence issue could be adjudi-
cated in the first instance on appeal.
WOLFE v. JOHNSON 41
Amended Petition and the Barber, Huff, and Coleman Affida-
vits — concluding that Wolfe had not presented a "‘truly per-
suasive demonstration of actual innocence.’" Federal Habeas
Decision 15 (quoting Herrera, 506 U.S. at 417). The court
failed, however, to address the Schlup issue. Because the
Schlup decision mandates a less-stringent showing for an
award of gateway relief than Herrera requires for an award of
substantive relief, Wolfe might satisfy Schlup and yet fail to
meet the "extraordinarily high" mandate of Herrera.34
The district court’s failure to adjudicate the Schlup actual
innocence issue constitutes an error of law, and thus an abuse
of its discretion. On remand, the court is thus obliged to
assess Wolfe’s contention of actual innocence and determine,
pursuant to Schlup, whether "it is more likely than not that no
reasonable juror would have convicted him in the light of the
new evidence." 513 U.S. at 327.35
C.
Finally, we turn to our third category of claims and issues
— those relating to whether Wolfe is entitled to an evidenti-
ary hearing on the Schlup issue and the Brady and Giglio
claims. As explained below, § 2254(e)(2) proscribes a district
court from conducting an evidentiary hearing in a § 2254 pro-
ceeding in certain circumstances. Wolfe contends, however,
that § 2254(e)(2) does not bar such a hearing in this case, and
that he is in fact entitled to one. As explained below, the dis-
34
Having utilized the Barber, Huff, and Coleman Affidavits in resolving
the Herrera claim, the court should also assess them with regard to the
Schlup issue.
35
Wolfe contends on appeal that the district court erred in deeming cer-
tain of his claims to be procedurally defaulted. And, as we previously
observed, any procedural defaults could be excused through a showing of
"cause and prejudice" or actual innocence. Because the district court could
grant Wolfe relief on the Schlup issue, we need not now address its rulings
on procedural defaults or cause and prejudice. The court is free, however,
to revisit such rulings on remand.
42 WOLFE v. JOHNSON
trict court failed to make any fact-based threshold determina-
tions regarding Wolfe’s request for an evidentiary hearing,
and we thus remand for further proceedings in that regard.36
1.
Wolfe maintains that an evidentiary hearing is necessary to
properly resolve the Schlup issue and the Brady and Giglio
claims. In rejecting Wolfe’s request for such a hearing, the
district court explained that "[s]ignificant weight must be
given to the record and deference must be given to the reason-
able findings of the state court." Federal Habeas Decision 10
(citing Schriro v. Landrigan, 127 S. Ct. 1933, 1940 (2007)).
The court then observed that "a federal evidentiary hearing is
required unless the state-court trier of fact has after a full
hearing reliably found the relevant facts." Id. at 14. Because
the "state-court trier of fact conducted a full hearing and reli-
ably found the relevant facts," the Federal Habeas Decision
explained, an evidentiary hearing was not required. Id.
After explaining that an evidentiary hearing was not war-
ranted, the district court proceeded to address Wolfe’s claim
of actual innocence under Herrera. Notwithstanding its initial
pronouncement that it would not consider the Appendix, the
court, in denying Wolfe’s Herrera claim, facially assessed the
Amended Petition and the Barber, Huff, and Coleman Affida-
vits.37 Indeed, the court concluded that those affidavits were
36
Wolfe also asserts that he is entitled to conduct discovery on certain
of his substantive claims. Rule 6(a) of the Rules Governing Section 2254
Cases in the United States District Courts provides that a district court
may authorize discovery upon a showing of "good cause" by a § 2254
petitioner. Such "good cause" will exist when "specific allegations before
the court show reason to believe that the petitioner may, if the facts are
fully developed, be able to demonstrate that he is . . . entitled to relief."
Bracy v. Gramley, 520 U.S. 899, 908-09 (1997). In the context of assess-
ing the evidentiary hearing issue, the district court will be obliged to also
address the discovery question.
37
In his Amended Petition, Wolfe alleged that, predicated on the newly
discovered evidence contained in the Barber, Huff, and Coleman Affida-
WOLFE v. JOHNSON 43
not credible. Beginning with the Barber Affidavit, the court
observed that Barber had therein contradicted his trial testi-
mony, and that recantations are "‘looked upon with utmost
suspicion.’" Federal Habeas Decision 12 (quoting United
States v. Johnson, 487 F.2d 1278, 1279 (4th Cir. 1973)). Con-
cerning the Huff Affidavit, the court explained that "the hear-
say contained in Carl Huff’s affidavit would not have been
admitted or considered in an evidentiary hearing and there
was no legal basis to give it weight." Id. at 14. This credibility
assessment, the court explained, was bolstered by the fact that
Huff was a convicted felon, serving a long prison sentence.
See id. With respect to the Coleman Affidavit, the court
opined that an evidentiary hearing was not warranted because
Coleman had been available to both the prosecution and the
defense after Petrole’s murder and during Wolfe’s trial. See
id. at 15.
In order to properly review the district court’s reasoning on
this issue and analyze Wolfe’s contention that an evidentiary
hearing should have been conducted, we must first examine
the legal principles that could preclude such a hearing. If such
a hearing is not precluded, the district court must then decide
whether, in these circumstances, Wolfe is entitled to an evi-
dentiary hearing.
2.
Initially, § 2254(e)(2) precludes a district court from con-
ducting an evidentiary hearing on a federal habeas claim if the
petitioner "failed to develop the factual basis of [the] claim in
State court proceedings." If the court determines that the peti-
vits, he was actually innocent of Petrole’s murder. The Amended Petition
summarizes the contents of those affidavits and spells out his allegation
of actual innocence in four pages of specifics. See Amended Petition 11-
14. More particularly, Wolfe alleges that "because Barber’s original, false
testimony served as the lynchpin that tied Wolfe to the murder of Petrole,
now that Barber has told the truth there is no direct evidence tying Wolfe
to Petrole’s murder." Id. at 14.
44 WOLFE v. JOHNSON
tioner so "failed," it must then assess whether he nevertheless
has satisfied one of the statute’s two exceptions.38
In Williams (Michael) v. Taylor, Justice Kennedy — writ-
ing for a unanimous Supreme Court — interpreted and
explained the meaning of the opening clause of § 2254(e)(2).
See 529 U.S. 420, 431 (2000).39 Emphasizing Congress’s use
of the word "failed," the Court explained that, "[i]n its cus-
tomary and preferred sense, ‘fail’ connotes some omission,
fault, or negligence on the part of the person who has failed
to do something." Id. "To say a person has failed in a duty,"
the Court observed, "implies he did not take the necessary
steps to fulfill it. He is, as a consequence, at fault and bears
responsibility for the failure." Id. at 432. Thus, as Justice Ken-
nedy emphasized, "[u]nder the opening clause of
38
The provisions of § 2254(e)(2) that control whether a district court is
barred from conducting an evidentiary hearing in a § 2254 proceeding are
as follows:
(2) If the [petitioner] has failed to develop the factual basis
of a claim in State court proceedings, the court shall not hold an
evidentiary hearing on the claim unless the [petitioner] shows
that —
(A) the claim relies on —
(i) a new rule of constitutional law . . . ; or
(ii) a factual predicate that could not have been previ-
ously discovered through the exercise of due diligence;
and
(B) the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for con-
stitutional error, no reasonable factfinder would have found
the applicant guilty of the underlying offense.
28 U.S.C. § 2254(e)(2).
39
On April 18, 2000, two factually unrelated decisions styled Williams
v. Taylor were handed down by the Supreme Court. One of those deci-
sions related to a § 2254 petitioner named Michael Williams, and the other
related to a § 2254 petitioner named Terry Williams. We refer to these two
decisions as Williams (Michael) and Williams (Terry). The Williams
(Michael) decision controls our assessment of the § 2254(e)(2) issues.
WOLFE v. JOHNSON 45
§ 2254(e)(2), 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." Id. (emphasis added). Applying any other standard,
the Court explained, would defy congressional intent. See id.
("We conclude Congress used the word ‘failed’ in the sense
just described. Had Congress intended a no-fault standard, it
would have had no difficulty in making its intent plain.").
Justice Kennedy’s unanimous opinion then provided the
lower federal courts with guidance on the proper assessment
of whether a petitioner has exercised diligence in developing
the factual basis for his claim in state court:
Diligence for purposes of the opening clause
depends upon whether the prisoner made a reason-
able attempt, in light of the information available at
the time, to investigate and pursue claims in state
court; it does not depend . . . upon whether those
efforts could have been successful.
Williams (Michael), 529 U.S. at 435. Importantly, the Court
further explained that, in determining whether a petitioner has
been diligent, "[t]he question is not whether the facts could
have been discovered but instead whether the prisoner was
diligent in his efforts." Id.; see also Conaway, 453 F.3d at 589
(applying Williams (Michael) to determine whether
§ 2254(e)(2) bar applied); Robinson, 438 F.3d at 367 (same).
If the petitioner was diligent in pursuing the claim in state
court, he cannot have "failed to develop" the claim, and
§ 2254(e)(2) does not bar an evidentiary hearing. Williams
(Michael), 529 U.S. at 430; see also Davis v. Lambert, 388
F.3d 1052, 1059 (7th Cir. 2004) (recognizing § 2254(e)(2) as
inapplicable absent lack of diligence); Channer v. Brooks, 320
F.3d 188, 199 (2d Cir. 2003) (same). Pursuant to Williams
(Michael), a § 2254 petitioner bears the burden of demonstrat-
46 WOLFE v. JOHNSON
ing that he was diligent in pursuing his claims in state court.
See 529 U.S. at 440.40
If the district court decides that Wolfe "failed to develop"
his claims in state court, then it must assess whether he satis-
fies either of § 2254(e)(2)’s exceptions. Those exceptions are
satisfied if the petitioner shows his claim relies on either "a
new rule of constitutional law," or "a factual predicate that
could not have been previously discovered through the exer-
cise of due diligence," and prejudice resulted. 28 U.S.C.
§ 2254(e)(2)(A)-(B).41
In Conaway v. Polk, we addressed, inter alia, a district
court’s denial of relief to a § 2254 petitioner who was pursu-
ing a claim of juror bias. See 453 F.3d at 589. That decision
is informative here. The district court had declined to conduct
an evidentiary hearing because Conaway had not, in the
court’s view, pursued his juror bias claim in state court and
had not alleged sufficient facts in the § 2254 proceeding to
entitle him to relief. See id. After assessing the matter, we
remanded the bias claim for an evidentiary hearing.
40
The term "claim" in § 2254(e)(2) could arguably be deemed to refer
only to a substantive — rather than a procedural — ground for relief. See
28 U.S.C. § 2254(d) (discussing availability of habeas relief "with respect
to any claim that was adjudicated on the merits in State court proceed-
ings"). An actual innocence contention under Schlup is procedural in
nature, and as such, could be construed as not constituting a "claim" under
§ 2254(e)(2). See Sibley v. Culliver, 377 F.3d 1196, 1207 n.9 (11th Cir.
2004); see also Goldblum v. Klem, 510 F.3d 204, 246 (3d Cir. 2007) (Pol-
lak, J., dissenting). We reserve judgment on whether § 2254(e)(2) applies
to the Schlup issue. On remand, the district court could conclude that
§ 2254(e)(2) does not otherwise apply to Wolfe because he has diligently
pursued his claims.
41
The Williams (Michael) decision explained that the opening clause of
§ 2254(e)(2) has an entirely different focus than the "due diligence"
exception to the evidentiary hearing bar in § 2254(e)(2)(A)(ii). Where the
opening clause examines a petitioner’s effort to develop his claim in state
court, "[t]he statute’s later reference to diligence [in § 2254(e)(2)(A)(ii)]
pertains to cases in which the facts could not have been discovered,
whether there was diligence or not." Williams (Michael), 529 U.S. at 435.
WOLFE v. JOHNSON 47
Importantly, in Conaway we assessed whether the peti-
tioner had, pursuant to the opening clause of § 2254(e)(2),
"failed to develop" his claim in state court. We observed that
Conaway had "reasonably attempted, in light of the informa-
tion available to him at the relevant times, to investigate and
pursue" his claim in state court. Conaway, 453 F.3d at 589.
As a result, Conaway’s pursuit of habeas relief in state court
did not lack diligence. Instead, "external causes" had pre-
vented him from developing the pertinent facts: Conaway was
never accorded the opportunity to develop his claim in state
court, because witnesses had been reluctant to cooperate with
Conaway’s lawyers and because the state habeas court had
denied an evidentiary hearing. See id. at 589-90.
Whether Wolfe exercised diligence in pursuing his Schlup
assertion of actual innocence, or his substantive claims under
Brady and Giglio, in the state court proceedings (or satisfies
a § 2254(e)(2) exception) is a factual issue for the district
court. The Federal Habeas Decision, however, failed to iden-
tify or rule on this issue. As such, the court erred in failing to
address the diligence issue presented by § 2254(e)(2) and the
Williams (Michael) precedent, and we must remand for a res-
olution thereof.42
3.
On remand, if the district court determines that
§ 2254(e)(2) does not proscribe an evidentiary hearing, the
court must then assess whether Wolfe is entitled to one. Pur-
suant to our precedent, a § 2254 petitioner
42
On the basis of this record and the allegations of the Amended Peti-
tion, it appears that Wolfe exercised diligence in pursuing the factual
underpinnings of the Schlup issue. See Amended Petition 11-14. Indeed,
it is not apparent that Wolfe’s lawyers could or should have made an ear-
lier discovery of the relevant underlying facts: specifically, there is no
indication that Barber would have been willing to recant his trial testi-
mony any earlier. Nevertheless, Wolfe must make a showing of diligence,
which the Commonwealth may then seek to rebut.
48 WOLFE v. JOHNSON
who has diligently pursued his habeas corpus claim
in state court is entitled to an evidentiary hearing in
federal court, on facts not previously developed in
the state court proceedings, if the facts alleged would
entitle him to relief, and if he satisfies one of the six
factors enumerated by the Supreme Court in Town-
send v. Sain, 372 U.S. 293, 313 (1963).
Conaway, 453 F.3d at 582; see also Walker v. True, 399 F.3d
315, 327 (4th Cir. 2005) (remanding claim for evidentiary
hearing).
In resolving the first issue on the question of entitlement to
an evidentiary hearing — whether Wolfe alleges facts suffi-
cient for an award of § 2254 relief — the district court must
look to the Amended Petition, as well as the supporting
Appendix. Indeed, Rule 4 of the Rules Governing Section
2254 Cases in the United States District Courts specifically
contemplates that the adequacy of a § 2254 petition will be
judged on the face of "the petition and any attached exhibits."
Cf. Fayetteville Investors v. Commercial Builders, Inc., 936
F.2d 1462, 1465 (4th Cir. 1991) (recognizing that, under Fed-
eral Rules of Civil Procedure, district court may consider
exhibits to complaint in assessing its sufficiency). Further-
more, the allegations of the Amended Petition and the Appen-
dix should be evaluated pursuant to the principles of Federal
Rule of Civil Procedure 12(b)(6). See Conaway, 453 F.3d at
582 ("In assessing whether a federal habeas corpus petition
was properly dismissed without an evidentiary hearing . . . ,
we must evaluate the petition under the standards governing
motions to dismiss made pursuant to Rule 12(b)(6) . . . .").
And, under the Rule 12(b)(6) standard, the court is "obliged
to ‘assume all facts pleaded by [the § 2254 petitioner] to be
true.’" Walker, 399 F.3d at 319 (quoting Rouse v. Lee, 339
F.3d 238, 247 n.8 (4th Cir. 2003) (en banc)). In Walker, we
vacated the dismissal of a mental retardation claim because
the district court had failed to accept as true the allegations of
the § 2254 petition. In so ruling, Judge Luttig carefully
WOLFE v. JOHNSON 49
explained that "whether Walker ha[d] ‘stated a claim’ in his
petition depends on whether he ha[d] set forth facts that, if
true, would demonstrate" he was entitled to relief. Id. at 320.
In assessing Wolfe’s request for an evidentiary hearing, the
district court failed to accept as true the allegations of his
Amended Petition. See Rouse, 339 F.3d at 247 n.8 ("[W]e,
like the district court, must assume all facts pleaded by Rouse
to be true."). And the court prematurely rejected the credence
and relevance of the Barber, Huff, and Coleman Affidavits.
Regarding the Barber Affidavit, the court adhered to the prop-
osition that an evidentiary hearing was precluded because that
aspect of the allegation was based on a recantation. See Fed-
eral Habeas Decision 12 (citing Johnson v. United States, 487
F.2d 1278 (4th Cir. 1973)). Although Johnson urges caution
when assessing the reliability of recantations, the recanting
witness in Johnson was called to testify at an evidentiary
hearing and was cross-examined. Indeed, we explained that
"[w]here the circumstances surrounding the recantation sug-
gest it is the result of coercion, bribery, or misdealing[,] the
district court is justified in disregarding it." Johnson, 487 F.2d
at 1279. This record simply does not, however, suggest any
such "coercion, bribery, or misdealing." To the contrary, the
fact that the supporting evidence is substantially predicated
upon a recantation by the prosecution’s lynchpin witness —
the triggerman who provided the prosecution’s only direct
evidence implicating Wolfe in the murder-for-hire scheme —
strongly suggests that an evidentiary hearing may be war-
ranted.
As for the Huff Affidavit, the district court concluded that
an evidentiary hearing was unnecessary because the affidavit
contained inadmissible hearsay. See Federal Habeas Decision
14. The Supreme Court emphasized in Schlup, however, that
a habeas court is not bound by the rules of evidence, carefully
explaining that it must "focus the inquiry on actual inno-
cence." Schlup, 513 U.S. at 327. As the Court explained,
50 WOLFE v. JOHNSON
In assessing the adequacy of petitioner’s showing,
therefore, the district court is not bound by the rules
of admissibility that would govern at trial. Instead,
the emphasis on "actual innocence" allows the
reviewing tribunal also to consider the probative
force of relevant evidence that was either excluded
or unavailable at trial.
Id. at 327-28. Thus, under controlling precedent, the evidence
supporting a showing of actual innocence need not be admis-
sible at trial, but merely relevant and previously unavailable.
See Royal v. Taylor, 188 F.3d 239, 244 (4th Cir. 1999) (recog-
nizing that court assessing actual innocence claim "is not
bound by the rules of admissibility"). The court therefore
erred in concluding that it could not consider the Huff Affida-
vit because it contains hearsay.
On the Coleman Affidavit, the district court adopted the
magistrate judge’s recommendation and ruled that the affida-
vit was not credible. The court reached its conclusion by
observing that Coleman was available to the prosecution and
the defense at trial, and that neither party called him as a wit-
ness. Thus, the court stated that "[n]either party trusted Cole-
man to be a helpful witness," and therefore his affidavit is not
credible. Federal Habeas Decision 15. Far from viewing the
Amended Petition and the Coleman Affidavit through the lens
of Rule 12(b)(6), see Conaway, 453 F.3d at 582, the court
inferred that Coleman was not credible solely because neither
side called him as a witness at trial. That ruling was also an
error of law.
Should the district court conclude on remand that Wolfe
has alleged sufficient facts to entitle him to § 2254 relief, the
court must then resolve the second issue on the question of
entitlement to an evidentiary hearing — whether Wolfe satis-
fies any one of the six factors enumerated by the Supreme
Court in its 1963 Townsend decision. Although Wolfe need
WOLFE v. JOHNSON 51
only satisfy one of these factors, at least three appear to be
applicable here:
(1) the merits of the factual dispute were not
resolved in the state hearing; . . . (4) there is a sub-
stantial allegation of newly discovered evidence;
[and] (5) the material facts were not adequately
developed at the state-court hearing.
Townsend, 372 U.S. at 313.43
In summary, if the district court determines that
§ 2254(e)(2) does not preclude an evidentiary hearing, the
court must reexamine whether Wolfe has shown that he is
entitled to one. If such a hearing is warranted, the court
should resolve any factual disputes bearing on the procedural
Schlup issue and the substantive Brady and Giglio claims.44
IV.
Pursuant to the foregoing, we affirm the district court’s
rejection of the extraneous influence claim and the counsel
subpart of the venireman claim. On the other hand, we vacate
its disposition of the Brady and Giglio claims, as well as its
ruling on the court subpart of the venireman claim. Finally,
we remand for a determination of whether an evidentiary
43
On the first Townsend factor, the showing of actual innocence pre-
sented by the Barber, Huff, and Coleman Affidavits was not resolved in
Wolfe’s state proceedings; on the fourth factor — for the same reason —
the facts presented constitute a substantial allegation of newly discovered
evidence; and, finally, on the fifth factor, the material facts contained in
the Appendix were not adequately developed at the state hearing.
44
On remand, the district court is, of course, free to revisit any of its rul-
ings on the vacated claims, as well as on any related procedural issues. If
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. Such matters, however, are reserved,
in the first instance, to the district court.
52 WOLFE v. JOHNSON
hearing and relevant discovery is appropriate; for a resolution
of the Schlup issue; for a fresh examination, if warranted, of
the Brady claim (and its subparts), the Giglio claim, and the
venireman-court subpart; and for such other and further pro-
ceedings as may be appropriate.45
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
45
Finally, we emphasize that all the remanded issues are, in the first
instance, for the district court to address and resolve.