Justin Wolfe v. Harold Clarke

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-7

JUSTIN MICHAEL WOLFE,

Petitioner – Appellee,

v.

HAROLD W. CLARKE, Director, Virginia Department of
Corrections,

Respondent – Appellant.

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

Argued: January 28, 2013 Decided: May 22, 2013

Before KING, DUNCAN, and THACKER, Circuit Judges.

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

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

2
KING, Circuit Judge:

These habeas corpus proceedings on behalf of Justin Michael

Wolfe are before us for the third time, and they arrive saddled

with a protracted and eventful history. Most recently, in 2012,

we affirmed the judgment entered in the Eastern District of

Virginia vacating Wolfe’s 2002 state court convictions for

capital murder and other crimes, and we remanded for further

proceedings, leaving in place the district court’s remedial

edict that Wolfe be retried or released.

In this appeal, respondent Harold W. Clarke, as Director of

the Virginia Department of Corrections (hereinafter the

“Commonwealth”), seeks relief from the district court’s “Order

Enforcing Judgment.” Wolfe v. Clarke, No. 2:05-cv-00432 (E.D.

Va. Dec. 26, 2012). 1 The court entered the challenged order upon

ascertaining that the Commonwealth had not complied with the

operative retry-or-release directive. As a consequence of the

Commonwealth’s noncompliance, it was instructed to “release

[Wolfe] unconditionally, free of all criminal proceedings on the

charge of murder for hire of Danny Petrole and the drug charges

that were previously tried in state court by the Commonwealth,

within ten (10) days of the entry of this order.” Id. at 25.

1
The Order Enforcing Judgment is found at J.A. 510-35.
(Citations herein to “J.A. ____” refer to the contents of the
Joint Appendix filed by the parties in this appeal.)

3
 Beyond mere release, however, the district court further

proscribed the Commonwealth “from reprosecuting [Wolfe] on the

charges originally tried herein in state court or any other

charges stemming from [the] death of Danny Petrole which

requires the testimony of Owen Barber in any form.” Order

Enforcing Judgment 25-26. In support of its chosen remedy, the

court concluded that the Commonwealth’s prosecutors had, on

remand, improperly conducted themselves with respect to their

key witness, Owen Barber. As a result, the prosecutors had

“permanently crystalized” constitutional violations previously

found to have tainted Wolfe’s trial, id. at 24, which in turn

constituted extraordinary circumstances justifying a federal bar

to his proposed retrial.

On January 3, 2013, we stayed, pending resolution of this

appeal, the district court’s order. As explained below, the

court accurately determined that the Commonwealth neglected to

timely observe the retry-or-release directive. Though the court

was correct to order Wolfe’s immediate release, it fashioned an

overbroad remedy and thereby abused its discretion by precluding

the Commonwealth from retrying Wolfe in a new proceeding. We

therefore vacate the Order Enforcing Judgment and remand for the

district court to enter a substitute order directing that Wolfe

simply be released from the custody imposed as the result of his

2002 convictions.

4
 I.

As described in our earlier decisions, a jury in Prince

William County, Virginia, found Wolfe guilty in 2002 of the

capital murder of Danny Petrole, of using a firearm in the

commission of a felony, and of conspiring to distribute

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

(“Wolfe I”); Wolfe v. Clarke, 691 F.3d 410 (4th Cir. 2012)

(“Wolfe II”). The theory of the prosecution was that, as a

nineteen-year-old marijuana dealer, Wolfe hired his friend and

fellow drug dealer, Owen Barber, to murder Petrole, who was a

drug supplier. Barber, the admitted triggerman, was the only

witness to testify concerning the “for hire” element of the

murder-for-hire scheme. In exchange for Barber’s testimony, the

Commonwealth dismissed its capital murder charge against him.

Barber thus pleaded guilty and was sentenced to sixty years on a

non-capital murder conviction, of which twenty-two years were

suspended. On the basis of his murder conviction, Wolfe was

sentenced to death. For his firearm and drug convictions, Wolfe

received consecutive prison terms of three and thirty years,

respectively.

A.

1.

5
 In November 2005, after failing to obtain relief on direct

appeal and in state post-conviction proceedings, Wolfe filed his

28 U.S.C. § 2254 petition in the Eastern District of Virginia.

The district court promptly referred Wolfe’s petition to a

magistrate judge for a report and recommendation. On December

14, 2005, while Wolfe’s petition was pending, Barber executed an

affidavit repudiating his trial testimony and exculpating Wolfe

from the murder-for-hire scheme. Barber’s affidavit prompted

Wolfe to file an amended § 2254 petition, which is the operative

“petition” in these proceedings. The petition maintained, inter

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

due process by concealing material exculpatory evidence that

should have been disclosed to his defense attorneys. The

petition also alleged that Barber’s affidavit had sufficiently

demonstrated Wolfe’s actual innocence to excuse any procedural

default of his constitutional claims.

In April 2006, five months after executing the repudiatory

affidavit, Barber sought to recant the statements he had made

therein. In an unsworn handwritten letter, Barber insisted that

he had testified truthfully in the 2002 trial, and that he had

falsified his 2005 affidavit. In August 2007, the magistrate

judge issued his report recommending dismissal of Wolfe’s § 2254

petition, in that the claims alleged therein were meritless and

had been procedurally defaulted. On February 11, 2008, over

6
Wolfe’s objections, the district court adopted the magistrate

judge’s recommendation and dismissed the petition. Wolfe timely

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

see Wolfe I, we vacated in part and remanded for further

proceedings.

2.

On remand, the district court determined at the outset that

Wolfe was entitled to an evidentiary hearing, and that, pursuant

to Schlup v. Delo, 513 U.S. 298 (1995), he had made a sufficient

showing of actual innocence to bypass any procedural defenses

that might be interposed to foreclose substantive consideration

of his constitutional claims. During the evidentiary hearing

conducted in November 2010, Barber testified, exculpated Wolfe,

and his evidence was credited by the court. On July 26, 2011,

the court ruled that the prosecutors in Wolfe’s trial had

contravened his Fourteenth Amendment due process rights by (1)

failing to disclose favorable and material evidence, contrary to

Brady v. Maryland, 373 U.S. 83 (1963); (2) allowing Barber to

testify, despite having information indicating that his

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

264 (1959); and (3) striking a qualified venireman, as

proscribed by Supreme Court precedent. The court therefore

granted habeas corpus relief to Wolfe and specified that Wolfe’s

“conviction and sentence” were vacated. Wolfe v. Clarke, 819 F.

7
Supp. 2d 538, 574 (E.D. Va. 2011). On August 4, 2011, the

Commonwealth filed a timely notice of appeal.

Thereafter, Wolfe moved the district court, pursuant to

Rule 59 of the Federal Rules of Civil Procedure, to clarify

whether the relief granted on his capital murder conviction also

encompassed his firearm and drug convictions. On August 30,

2011, the court granted Wolfe’s clarification motion and entered

one of the orders relevant to this appeal. See Wolfe v. Clarke,

No. 2:05-cv-00432 (E.D. Va. Aug. 30, 2011) (the “Relief Order”). 2

The Relief Order explained that Wolfe was entitled to a new

trial on all of the original charges, and it accorded the

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

new trial, or releas[ing] him unconditionally from custody”

within 120 days. Id. at 2. On September 2, 2011, the

Commonwealth filed a second notice of appeal, from the Relief

Order and the Amended Judgment. Eleven days later, the

Commonwealth moved the district court for a stay pending appeal,

which the court granted on November 22, 2011. See Wolfe v.

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

2
On August 30, 2011, the district court also entered an
Amended Judgment containing substantially identical disposition
terms as the Relief Order. These documents are found at J.A.
91-93.
3
A brief comment is warranted concerning the two notices of
appeal filed by the Commonwealth in Wolfe II. Generally
(Continued)
8
Wolfe cross-appealed, asserting that the district court erred in

denying him relief on an additional, unadjudicated claim. By

our Wolfe II decision, we affirmed the judgment of the district

court. 4

B.

1.

Our mandate in Wolfe II issued on September 7, 2012. That

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

speaking, a duly filed notice of appeal deprives a district
court of jurisdiction over all issues relating to the subject
matter thereof. See In re Grand Jury Proceedings Under Seal,
947 F.2d 1188, 1190 (4th Cir. 1991). An exception to that
general proposition is recognized when a district court elects
“to proceed as to matters in aid of the appeal.” Id. A court
may render such aid, for example, by resolving a motion pursuant
to Rule 59(e) of the Federal Rules of Civil Procedure to alter
or amend the judgment being appealed, see Fed. R. App. P.
4(a)(4)(A)(iv) (providing in addition that filing of Rule 59(e)
motion resets time allotted all parties to submit notices of
appeal), or by addressing in the first instance a motion for
stay pending appeal, see Fed. R. App. P. 8(a)(1)(A). Both of
those events occurred in Wolfe II, culminating in, respectively,
the Relief Order with accompanying Amended Judgment, and the
Stay Order.
4
Our affirmance in Wolfe II of the Relief Order and Amended
Judgment was predicated on one sub-part of Wolfe’s Brady claim,
that is, the Commonwealth’s failure to disclose the written
police report of Prince William County Detective Sam Newsome,
documenting that Newsome had advised Barber that he could avoid
the death penalty by implicating Wolfe. Because Wolfe was
entitled to relief under § 2254 on that sub-claim, we had no
reason to review the Commonwealth’s assignments of error
regarding the other grounds for relief, or to consider Wolfe’s
cross-appeal. See Wolfe II, 691 F.3d at 416-17.

9
the Prince William County Adult Detention Center, for a status

hearing to be conducted in the state circuit court on September

10, 2012. At that hearing, two of Wolfe’s federal habeas

lawyers were appointed to represent him on the original state

charges, and a bond hearing was set for September 14, 2012. 5 The

next day, the Commonwealth’s Attorney and his assistant, along

with one of the primary investigating officers, Detective Sam

Newsome, interviewed Barber at the Augusta Correctional Center.

During the interview, which was recorded without Barber’s

knowledge, those three officials sought to ascertain how Barber

would testify at Wolfe’s retrial. They suggested to Barber

that, because his testimony in the federal habeas proceedings

was inconsistent with his trial testimony, he had breached his

plea agreement with the Commonwealth. The prosecutors then

advised Barber that he could face prosecution for perjury, plus

reinstatement of his original capital murder charge, which

potentially carried the death penalty.

Not long thereafter, the Commonwealth’s Attorney and his

assistant recused themselves from Wolfe’s retrial and requested

5
When it became clear that the Commonwealth intended to
proceed with a retrial of Wolfe, his habeas counsel successfully
moved to withdraw from their representation of him on the
original state charges. They were replaced by the Regional
Capital Defender, who presently represents Wolfe in the state
criminal proceedings.

10
the appointment of Raymond Morrogh, the Commonwealth’s Attorney

for Fairfax County, as Special Prosecutor. Morrogh was

appointed, and he represented the Commonwealth at the September

14, 2012 hearing, where Wolfe was denied bond. On that

occasion, the defense lawyers asserted that only thirty-six days

remained for the Commonwealth to retry Wolfe. The Commonwealth

agreed to a retrial beginning on October 15, 2012. On the heels

of the bond hearing, Wolfe requested the circuit court to

disqualify the Special Prosecutor.

In the meantime, on October 1, 2012, a Prince William

County grand jury returned new indictments against Wolfe,

charging him with six additional offenses arising from the

events underlying Wolfe’s original charges. The retrial, then,

was to encompass the original charges plus the following:

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

• use of a firearm in the commission of a murder;

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

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

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

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

11
See J.A. 229-30. On that same date, the Commonwealth moved in

state court for a continuance of the October 15 retrial,

asserting that the 120-day period had not begun to run until our

mandate issued on September 7, 2012, and, thus, that the 120

days would not expire until January 5, 2013. Consistent with

that view, the Commonwealth requested that the retrial commence

the first week of January 2013. The continuance motion was

granted on October 3, 2012, but a retrial date was not set.

On October 31, 2012, the circuit court conducted a hearing

on, inter alia, Wolfe’s motion to disqualify the Special

Prosecutor. Barber was called to testify at that hearing, and

he invoked his Fifth Amendment privilege against self-

incrimination. The court accepted Barber’s assertion of the

privilege and did not seek to compel his testimony. Thereafter,

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

Meanwhile, beginning in November 2012, proceedings

commenced in federal court that overlapped to some extent with

the pretrial litigation in the circuit court. Specifically, on

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

6
On this record, it is not clear when and how Wolfe’s
lawyers learned of the Barber interview. At least as early as
the October 31, 2012 hearing, however, they were aware of
Barber’s apparent intention to invoke the Fifth Amendment in
connection with Wolfe’s retrial, and they knew that such
invocation was related to Barber’s interview by the prosecutors.

12
asserting that the Commonwealth had neither released him

unconditionally nor provided him with a new trial within 120

days of the Relief Order. The Commonwealth opposed the motion,

contending that Wolfe had already been released unconditionally,

and that, by conducting the bond hearing on September 14, 2012,

the Commonwealth had effectively commenced his retrial within

the 120-day period. That period, the Commonwealth maintained,

had in any event been reset to 120 days by the November 22, 2011

Stay Order, and had not begun to elapse until September 7, 2012,

upon issuance of our mandate.

2.

On December 4, 2012, based primarily on the Barber

interview, Wolfe filed a motion to dismiss in the circuit court,

contending that, by threatening Barber with the death penalty,

the prosecutors had engaged in “gross prosecutorial misconduct”

sufficiently severe and violative of due process to fatally

undermine all the state criminal charges lodged against Wolfe. 7

See J.A. 405-20. Two days later, Wolfe brought the Barber

7
At the oral argument of this appeal, the Commonwealth’s
lawyer represented that the circuit court elected to defer
ruling on Wolfe’s motion to dismiss the indictments on the basis
of, inter alia, the Barber interview. According to the
Commonwealth, the circuit court was of the view that the motion
was premature because Barber has not yet invoked the Fifth
Amendment and declined to testify in Wolfe’s retrial. The
motion to dismiss thus remains pending in the circuit court.

13
interview to the district court’s attention, by way of his

written reply on the motion to enforce judgment. Wolfe also

offered to provide a transcript of the Barber interview “to the

Court at its request.” Id. at 285. The following day, the

district court directed Wolfe’s counsel to file “any additional

information or transcripts concerning the meeting between the

original prosecutors in this case and Mr. Barber on September

11, 2012.” Id. at 290. Acting on its own initiative, the court

also ordered the Commonwealth to show cause why the Barber

interview “does not constitute extraordinary circumstances

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

bar current and future prosecutions of Wolfe on all charges

related to the death of Danny Petrole and drug conspiracy

crimes.” Id. at 289-90. The Commonwealth responded to the show

cause order on December 12, 2012, asserting that the district

court possessed no authority to prohibit any current or future

state prosecutions of Wolfe, and that, even were the situation

otherwise, nothing had occurred in the Barber interview to

justify any such action.

The district court conducted an evidentiary hearing on

December 13, 2012, concerning the show cause order. On that

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

in Wolfe’s retrial, instead relying on his Fifth Amendment

privilege. The court itself called Barber as a witness at the

14
hearing, for the purpose of establishing that the September 11,

2012 interview had been recorded without his knowledge. Barber

responded to the court’s questions, confirming that he had been

unaware that the encounter was recorded.

3.

On December 26, 2012, the district court entered its Order

Enforcing Judgment, concluding that the Commonwealth had not

satisfied either compliance option specified in the Relief

Order, that is, Wolfe had not been released unconditionally, and

he had not been retried within 120 days of the Relief Order. In

discussing the appropriate remedy for the violation, the court

surmised that “had the content of [Wolfe’s] Motion to Enforce

Judgment been strictly limited to the Commonwealth’s violation

of the deadline set in this case, . . . [t]he Court would order

Wolfe’s release, but he would be subject to rearrest and

reprosecution by the Commonwealth.” Order Enforcing Judgment

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

determined that “extraordinary circumstances” had been shown

warranting a bar to Wolfe’s retrial. More specifically, the

court found that the Barber interview “incurably frustrated the

entire purpose” of the federal habeas corpus proceedings, and

“permanently crystalized” the constitutional violations

infecting Wolfe’s trial, causing Barber to be legally

unavailable to testify in a retrial. Id. at 24.

15
 Consequently, the district court ordered Wolfe’s release

within ten days and barred the Commonwealth from reprosecuting

Wolfe on the original charges “or any other charges stemming

from [the] death of Danny Petrole which requires the testimony

of Owen Barber in any form.” Order Enforcing Judgment 25-26.

The Commonwealth immediately appealed, moving to stay the Order

Enforcing Judgment. On January 3, 2013, the district court

denied the Commonwealth’s request for a stay pending appeal.

Later that same day, however, on the Commonwealth’s motion, we

entered our own stay and expedited this appeal. We possess

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

II.

We potentially face two rather significant issues. First,

we must assess whether the Commonwealth complied with the Relief

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

whether the district court abused its discretion in barring

Wolfe’s retrial.

On the first issue, we review a district court’s

interpretation of its own orders for abuse of discretion. Home

8
In connection with the entry of our January 3, 2013 stay
pending appeal, we directed the parties to file regular reports
on the status of the related state court proceedings. The most
recent status report indicates that a trial date remains
unscheduled.

16
Port Rentals, Inc. v. Ruben, 957 F.2d 126, 131 (4th Cir. 1992).

In that regard, “we are obliged to accord substantial deference

to a district court’s interpretation of its own judgment.” ABT

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

113 (4th Cir. 2006). Indeed, “to sustain appellate review,

district courts need only adopt a reasonable construction of the

terms contained in their orders.” JTH Tax, Inc. v. H & R Block

E. Tax Serv., Inc., 359 F.3d 699, 706 (4th Cir. 2004).

If the Commonwealth falls short on the compliance issue,

our review of the district court’s bar to Wolfe’s retrial is

also for abuse of discretion. D’Ambrosio v. Bagley, 656 F.3d

379, 390 (6th Cir. 2011). Where applicable, Congress has

directed the courts to dispose of habeas corpus petitions “as

law and justice require.” 28 U.S.C. § 2243. 9 Congress’s

directive constitutes, in a proper case, “an authorization to

adjust the scope of the writ in accordance with equitable and

prudential considerations.” Danforth v. Minnesota, 552 U.S.

9
More fully, a court considering an application for habeas
corpus relief “shall summarily hear and determine the facts, and
dispose of the matter as law and justice require.” 28 U.S.C.
§ 2243. Notably, the § 2243 standard only applies when
deference to a state court’s adjudication of the merits of a
habeas corpus claim is not mandated by the Antiterrorism and
Effective Death Penalty Act. See Johnson v. Thurmer, 624 F.3d
786, 791 (7th Cir. 2010). Because this appeal does not
implicate the merits of a habeas claim, there is no state court
adjudication to which we would defer.

17
264, 278 (2008). Because “habeas corpus is, at its core, an

equitable remedy,” a district court is vested with substantial

discretion to appropriately redress any violation of an order

granting habeas corpus relief. Schlup v. Delo, 513 U.S. 298,

319 (1995).

III.

A.

In view of the foregoing recitation, we turn first to the

Commonwealth’s assertion that it complied with the district

court’s Relief Order, which required that Wolfe be retried or

released within 120 days. Those contentions — that Wolfe was

both released and retried — were considered and rejected in the

Order Enforcing Judgment. The court’s rulings were predicated

primarily on its explanation of its intentions with respect to

the Relief Order and the Stay Order. As explained below, the

district court did not abuse its discretion in ruling that the

Commonwealth neglected to satisfy either compliance option.

1.

At the threshold, the Commonwealth’s position — that Wolfe

has been both released and retried — fails to pass muster. By

specifying the compliance options in the disjunctive, the

district court presented the Commonwealth with a choice: it

could either provide Wolfe with a new trial or unconditionally

18
release him from custody. The Commonwealth asserts on appeal,

rather counterintuitively, that it has satisfied both options.

First, the Commonwealth maintains that, at least since

Wolfe’s September 14, 2012 bond hearing, his status is that of a

pretrial defendant who has been denied bond. The Commonwealth

thus posits that Wolfe was unconditionally released. The

Commonwealth’s theory fails to take into account the purpose of

a new-trial contingency in the habeas setting, which is to delay

actual release of the successful petitioner, thus permitting the

state authorities to remedy the constitutional defects and

retain the petitioner in confinement. See Hilton v. Braunskill,

481 U.S. 770, 775 (1987) (“[T]his Court has repeatedly stated

that federal courts may delay the release of a successful habeas

petitioner in order to provide the State an opportunity to

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

By its Relief Order, the district court did not direct

Wolfe’s immediate release. It instead accorded the Commonwealth

the options of retrying Wolfe within 120 days or unconditionally

releasing him. An evaluation of whether the Commonwealth has

complied with either directive requires an interpretation of the

court’s prior orders, the best source for which is the court

itself. As it explained,

[i]n presenting the option of releasing the Petitioner
“unconditionally” from custody, the Court used the
word “unconditionally” in its traditional and widely

19
 underst[ood] context: “Not limited by a condition;
not depending on an uncertain event or contingency;
absolute.” Black’s Law Dictionary (9th ed. 2009).
Under this meaning of the word “unconditional,” it is
self-evident that releasing Petitioner from the
custody of the Virginia Department of Corrections to
Prince William County for the purposes of retrial did
not constitute releasing Petitioner “unconditionally
from custody.”

Order Enforcing Judgment 8.

The foregoing explanation is not an unreasonable one, and

we are unable to disturb it. A commonsense reading of the

Relief Order is that it obliged the Commonwealth to either

release or retry Wolfe within 120 days. Because Wolfe has not

been unconditionally released, we turn to the second compliance

option and gauge whether Wolfe has been retried. 10

2.

10
The Commonwealth also makes a related, though necessarily
distinct, assertion that the vacatur of Wolfe’s convictions
deprived the district court of jurisdiction. Upon reviewing
this issue de novo, see United States v. Poole, 531 F.3d 263,
270 (4th Cir. 2008), we conclude that the court possessed
jurisdiction to enforce its judgment. Because Wolfe was in
custody when the original petition was filed, the jurisdictional
contention is really a mootness argument that is foreclosed by
Carafas v. LaVallee, 391 U.S. 234 (1968) (challenge to
conviction not rendered moot by habeas petitioner’s
unconditional release, because petitioner suffers from
“collateral consequences,” including disenfranchisement,
ineligibility for jury duty, and disqualification from elected
office). See also Maleng v. Cook, 490 U.S. 488 (1989) (Carafas
rested “on the fact that the petitioner had been in physical
custody under the challenged conviction at the time the petition
was filed”).

20
 The Commonwealth’s other option for compliance with the

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

hundred and twenty (120) days of the date of [the Order].”

Relief Order 2. The Commonwealth insists that it was not

obliged to actually complete a retrial within 120 days. That

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

state court, or even that a jury be selected, so long as

proceedings leading to a retrial had commenced in the circuit

court. In this regard, the Commonwealth emphasizes that the

circuit court had conducted a bond hearing on September 14,

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

dismiss the indictments and disqualify the prosecutor) were

ongoing until the Order Enforcing Judgment was entered. The

Commonwealth thus maintains that its obligation to “provide

[Wolfe] with a new trial” was thereby satisfied. In the

alternative, the Commonwealth suggests that the 120-day retrial

period did not begin to run until the issuance of our mandate in

Wolfe II, on September 7, 2012.

Each of the foregoing contentions were considered and

rejected by the district court, predicated on its

interpretations of the orders on appeal. With regard to whether

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

the court explained that

21
 the stay [entered on November 22, 2011] pending the
Commonwealth’s appeal of the Court’s Amended Judgment
paused or halted the 120-day deadline imposed by the
Court to provide Wolfe a new trial. When that stay
was lifted [on September 7, 2012], the deadline clock
resumed where it left off when the stay was granted
and there were 36 days remaining. On Saturday,
October 13, 2012, the 120 days given to the
Commonwealth to provide Wolfe with a new trial
expired. Because the deadline fell on a weekend, the
deadline for retrial moved to Monday, October 15,
2012.

Order Enforcing Judgment 11. 11 In response to the second

contention, that the obligation to provide Wolfe with a new

trial was satisfied by the commencement and conduct of pretrial

proceedings in the circuit court, the Order Enforcing Judgment

specified that the retrial had to be completed — and not merely

11
It is apparent that the Commonwealth was aware, as early
as September 13, 2011, that the district court could deem the
120-day retrial period to have run concurrently with the appeal
in Wolfe II. In a memorandum filed that day in support of its
motion for a stay pending appeal, the Commonwealth assumed that
the 120-day period had already begun, opining that

[i]n the absence of a stay, the Order would take
effect and the Commonwealth would be either burdened
with a new capital trial or required to set Wolfe free
without a trial. In either instance, the Director
would be prevented from exercising his right of
appeal.

J.A. 113. The subsequent Stay Order seems to have been based
upon the same assumption, see Wolfe v. Clarke, 819 F. Supp. 2d
at 583 (noting that, without a stay, the 120-day period would
expire before the Commonwealth’s reply brief was due to this
Court in Wolfe II). The Commonwealth was therefore cognizant of
the 120-day issue during the pendency of the Wolfe II appeal,
yet failed to bring it to our attention.

22
commenced — within the prescribed period. More precisely, the

court explained that

it was certainly the objective of the Court in issuing
[the Relief Order] that [Wolfe] would be either
promptly retried or relieved of the strictures imposed
by his constitutionally flawed conviction and it was
certainly the intention of the Court that in providing
[Wolfe] a new trial within 120 days, said trial
actually occur within that period of time.

Id. at 14 (quotation marks and alterations omitted).

The Commonwealth complains that, evaluated together, the

district court’s interpretation of its prior directives left the

prosecution, after the Wolfe II mandate, with only thirty-six

days to complete a capital murder trial. According to the

Commonwealth, the Order Enforcing Judgment was a “prejudicial,

revisionist rewording of [the] judgment.” Br. of Appellant 24.

That characterization fails to recognize that, in the referenced

order, the district court explained the meaning of its earlier

orders as intended upon entry, without regard for post-judgment

events. It was the Commonwealth that sought (and now seeks from

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

basis of subsequent procedural developments. See Capps v.

Sullivan, 13 F.3d 350, 353 (10th Cir. 1993) (remanding for

district court “to give effect to its original understanding of

the order granting [habeas relief]” (emphasis added)).

Notwithstanding the foregoing, the Commonwealth may well be

correct that completing a retrial of a complex death penalty

23
case within thirty-six days was a practical impossibility.

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

extension of the retrial period. The Commonwealth did not,

however, return to court seeking either a clarification or an

extension.

We also recognize that the district court’s explanation of

its 120-day period was a highly restrictive one, and that, in

the absence of a thorough explanation, the court’s construction

of that directive could be viewed as erroneous. By way of

example, the court counted against the Commonwealth an aggregate

of eighty-four days during the pendency of the Wolfe II appeal.

That is, the period from the August 30, 2011 Relief Order

through the November 22, 2011 Stay Order was counted against the

120-day retrial period, notwithstanding the Commonwealth’s

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

appeal. Furthermore, the district court did not consider that

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

substantial period of time addressing motions interposed by

Wolfe. Even the federal Speedy Trial Act, which the district

court administers on a regular basis, excludes such periods of

time. See 18 U.S.C. § 3161(h) (excluding from speedy trial

calculations, inter alia, “delay resulting from any pretrial

motion”).

24
 Additionally, before concluding that the Commonwealth had

failed to comply with the Relief Order, the district court

acknowledged that there is a “lack of clear controlling case law

on a number of issues.” Order Enforcing Judgment 7. In these

circumstances, we are obliged to provide a modicum of clarity:

When a district court awards habeas relief, it is preferable

that its order include language ensuring that the respondent

will suffer no prejudice by exercising its right of appeal.

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

2009) (“The writ of habeas corpus will be GRANTED if the

Commonwealth of Virginia does not commence the retrial

. . . within 120 days of the date of entry of this judgment

should appeal not be taken, or within 120 days after the final

resolution of any appeal (including a petition for a writ of

certiorari) if an appeal is taken.”).

At this stage of these proceedings, however, with the

Commonwealth having foregone any opportunity to obtain

clarification from this Court or the district court, it can

hardly claim surprise. 12 Furthermore, the district court has

12
In Williams v. Netherland, a decision relied on by the
Commonwealth, an issue similar to that presented here was
avoided when the Commonwealth’s Attorney in that case did what
should have been done here: He returned to the habeas court, in
advance of the court-ordered deadline, and requested an
extension of time. See No. 3:96-cv-00529 (E.D. Va. Nov. 14,
2002).

25
explained its intentions with respect to the Relief Order and

the Stay Order, and we are inclined to credit those

explanations. Because the Commonwealth failed to either retry

or release Wolfe within 120 days, we turn to the remedy for that

transgression.

B.

The Commonwealth contends that the district court abused

its discretion in barring Wolfe’s retrial. Though we reiterate

that a federal habeas court possesses substantial discretion in

fashioning an appropriate remedy, preventing the retrial of a

state criminal case is the strongest of medicine. And it is a

measure that should be utilized with the utmost restraint, only

in the most extraordinary of circumstances. See Gilliam v.

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

federal court interference with ongoing state criminal

proceedings should be undertaken in only the most limited,

narrow, and circumscribed situations.”). Such limited and

narrow circumstances are simply not present here. We are

therefore constrained to conclude, as explained below, that the

district court abused its discretion in barring Wolfe’s retrial.

1.

In support of its chosen remedy, the district court

correctly recognized that the award of an unconditional writ

does not, in and of itself, preclude the authorities from

26
rearresting and retrying a successful habeas petitioner. As the

court acknowledged,

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

Order Enforcing Judgment 15 (quoting Federal Habeas Manual

§ 13:10 (May 2010)). The court, however, identified an

exception to the general rule, namely, that “in extraordinary

circumstances . . . a habeas court may forbid reprosecution.”

Id. (citing Satterlee v. Wolfenbarger, 453 F.3d 362, 370 (6th

Cir. 2006)).

In detecting the presence of extraordinary circumstances

here, the district court explained that the conduct of the

prosecutors — in particular, their conduct during the September

11, 2012 Barber interview — “sp[oke] to a continuing pattern of

violating [Wolfe’s] right to use Brady and Giglio evidence,

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

Order Enforcing Judgment 19. At the core of the court’s

analysis was its belief that the prosecutors had “incurably

frustrated the entire purpose” of habeas corpus and had

“permanently crystalized” the constitutional violations by

“scar[ing] Barber into invoking his Fifth Amendment right to

avoid self-incrimination.” Id. at 24.

27
 The district court’s conclusion concerning the availability

of Barber’s testimony at a retrial, however, is speculative. As

an initial matter, Barber could decide on his own to testify,

and — based on his track record — such evidence might provide

support for either side. 13 And, under a proper grant of

immunity, Barber’s testimony may well be compelled. See

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

Fifth Amendment privilege may be supplanted and witness

compelled to testify by proper grant of immunity).

Alternatively, the state trial court, by way of example, could

determine that a waiver of Barber’s Fifth Amendment privilege

has already been made; it could authorize the evidentiary use of

Barber’s prior statements in one form or another; or it might

craft any number of other remedies. Put simply, the task of

conducting Wolfe’s retrial is for the state trial court, and it

is not for us to express a view on how that court should manage

its affairs. We are confident that the retrial will be properly

handled, and, if convictions result, that the appellate courts

will perform their duties.

13
The district court apparently believed it “unlikely that
the Commonwealth would grant immunity to Barber so that he could
provide testimony to exonerate [Wolfe].” Order Enforcing
Judgment 25 n.6. Nevertheless, the Commonwealth asserts that it
has offered Barber immunity for his truthful testimony at trial.
Br. of Appellant 35.

28
 The district court also speculated that the Barber

interview served to deprive Wolfe’s defense of a credible trial

witness, and thereby abridged Wolfe’s due process rights. See

Order Enforcing Judgment 24 (citing United States v. Saunders,

943 F.2d 388, 392 (4th Cir. 1991) (“Improper intimidation of a

witness may violate a defendant’s due process right to present

his defense witnesses freely if the intimidation amounts to

substantial government interference with a defense witness’ free

and unhampered choice to testify.” (internal quotation marks

omitted))). Like other constitutional issues that may arise in

a post-habeas retrial, however, contentions relating to Barber’s

alleged intimidation by the prosecutors are yet to be exhausted

in the state court system. See Pitchess v. Davis, 421 U.S. 482

(1975) (alleged post-habeas Brady violation subject to state

court exhaustion). Indeed, Wolfe has already raised that

precise issue before the circuit court in his yet-unresolved

post-Wolfe II motion to dismiss the indictments. By barring

Wolfe’s retrial, the district court has deprived the circuit

court of the opportunity to address that motion. Notably, in

the event Wolfe is acquitted, any such issues would be moot.

And, should Wolfe be again convicted, the state court system

might vindicate him on appeal. Failing that, Wolfe’s due

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

29
proper time, constitute a separate ground for federal habeas

corpus relief.

At the end of the day, any scenario presenting

circumstances sufficiently extraordinary to warrant federal

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

petitioner will be extremely rare, and will ordinarily be

limited to situations where a recognized constitutional error

cannot be remedied by a new trial. See, e.g., Blackledge v.

Perry, 417 U.S. 21, 31 (1974) (holding that vindictive

prosecution could contravene due process and justify bar to

retrial); Barker v. Wingo, 407 U.S. 514, 522 (1972) (concluding

that dismissal may be appropriate remedy for Sixth Amendment

speedy trial violation); Gilliam, 75 F.3d at 881 (barring state

retrial on double jeopardy grounds). 14

Put succinctly, the constitutional claims for which Wolfe

was awarded habeas corpus relief are readily capable of being

remedied in a new trial. Our resolution of the Wolfe II appeal

never contemplated the possibility of a retrial bar, and we

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

14
There are limited situations where a state criminal
retrial could properly be barred by a habeas court on the basis
of a constitutional deprivation. See generally 2 Randy Hertz &
James S. Liebman, Federal Habeas Corpus Practice and Procedure
§ 33.2 (identifying decisions involving, inter alia, double
jeopardy, insufficient evidence, ex post facto violation, and
unconstitutional statute).

30
within a reasonable time. The resolution of criminal

proceedings on their merits, before the public eye, is of

critical importance to our system of justice. And it has long

been settled that “[a]n indictment returned by a legally

constituted and unbiased grand jury, . . . if valid on its face,

is enough to call for trial of the charge[s] on the[ir] merits.”

Costello v. United States, 350 U.S. 359, 363 (1956) (footnote

omitted). We emphasize, however, that Wolfe, like any accused —

as well as the Commonwealth — is entitled to a fair trial. That

very proposition is what the Wolfe II decision is all about. As

has been emphasized, “[a] murder trial — indeed any criminal

proceeding — is not a sporting event.” Giles v. Maryland, 386

U.S. 66, 102 (1967) (Fortas, J., concurring).

The district court, in its Order Enforcing Judgment, relied

on decisions where a bar to retrial was approved even though the

constitutional errors could have been thereby remedied. See

Satterlee, 453 F.3d at 370 (barring retrial deemed appropriate

“when the state inexcusably, repeatedly, or otherwise abusively

fails to act within the prescribed time period or if the state’s

delay is likely to prejudice the petitioner’s ability to mount a

defense at trial” (internal quotation marks omitted)); Capps, 13

F.3d at 350 (barring retrial appropriate where state neither

retried petitioner nor sought stay of habeas writ). Although we

do not exclude the possibility that a federal habeas court — in

31
an extremely rare and unique circumstance — might proscribe a

state court retrial even though the constitutional violation

could be thereby remedied, we are unwilling to embrace the

principles of Capps or Satterlee. In the absence of

extraordinary circumstances, the proper disposition is

generally, as the district court recognized, the release of a

successful habeas petitioner, subject to rearrest and retrial. 15

IV.

Here, of course, the district court was correct to order

Wolfe’s “release” on the original charges, though such action

did not actually free him from custody. As we have explained,

15
The Commonwealth alternatively contends that the retrial
bar was foreclosed by Younger v. Harris, 401 U.S. 37 (1971), and
the Anti-Injunction Act, 28 U.S.C. § 2283. Pursuant to Younger,
a federal court “may intervene in state criminal proceedings,
either by way of declaratory relief or by injunction, only when
there has been a ‘showing of bad faith, harassment, or any other
unusual circumstance that would call for equitable relief.’”
Gilliam, 75 F.3d at 903 (quoting Younger, 401 U.S. at 54). The
Anti-Injunction Act provides, in pertinent part, that

[a] court of the United States may not grant an
injunction to stay proceedings in a State court except
as expressly authorized by Act of Congress, or where
necessary in aid of its jurisdiction, or to protect or
effectuate its judgments.

28 U.S.C. § 2283. Because the district court abused its
discretion in barring Wolfe from being retried in state court,
we need not reach or address the Commonwealth’s contentions
regarding the principles of Younger and the Anti-Injunction Act.

32
Wolfe is facing multiple indictments in Prince William County,

and he has been rearrested and denied bail. All that remains to

effect Wolfe’s release in compliance with the alternatives

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

in its grant of relief) is for the Commonwealth to expunge

Wolfe’s 2002 criminal convictions and to take any and all

additional steps necessary to nullify any material adverse legal

consequences attendant to those convictions. Subsequent to or

contemporaneously therewith, the Commonwealth may retry Wolfe on

the original charges together with the new charges, in

accordance with such plan and schedule that the state circuit

court may devise.

Pursuant to the foregoing, we vacate the district court’s

Order Enforcing Judgment and remand with instructions that the

court enter a substitute order directing that Wolfe be released

from the custody imposed as the result of his 2002 convictions,

and, further, that those convictions be expunged and their legal

effects nullified consistently with Wolfe II and this opinion.

The order on remand shall be without prejudice to a retrial of

the original charges against Wolfe, and it shall not preclude

the conduct of such other and further proceedings in the state

or federal courts as may be appropriate.

VACATED AND REMANDED

33
THACKER, Circuit Judge, concurring in part and dissenting in
part:

I agree with the majority’s conclusion that the

Commonwealth failed to satisfy the terms of the district court’s

conditional writ in this case, as set forth in Part III.A. of

the majority opinion. I cannot, however, agree with its

conclusion that the district court abused its discretion in

barring re-prosecution of Justin Wolfe -- an appropriate remedy

in my view, in light of the Commonwealth’s continued misconduct

and resulting threat to Justin Wolfe’s constitutional right to a

fair trial.

The majority does not “exclude the possibility that a

federal habeas court -- in an extremely rare and unique

circumstance -- might proscribe a state court retrial even

though the constitutional violation could be thereby remedied,”

but it is “unwilling to embrace” that principle in this case.

Ante at 31-32 (emphasis added). I am willing to do so; in fact,

for the reasons that follow, the extremely rare and unique

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

Commonwealth’s misconduct has continued far too long, and the

cumulative misconduct permeating this case has tainted it in

such a way that it is doubtful Wolfe will receive a fair and

just trial. Enough is enough.

34
 Accordingly, and for the reasons set forth herein, I

dissent as to Part III.B.

I.

The Supreme Court of the United States has stated, simply

and repeatedly, “[t]he role of a prosecutor is to see that

justice is done.” Connick v. Thompson, 131 S. Ct. 1350, 1365

(2011). “It is as much [a prosecutor’s] duty to refrain from

improper methods calculated to produce a wrongful conviction as

it is to use every legitimate means to bring about a just one.”

Berger v. United States, 295 U.S. 78, 88 (1935).

Mindful of this court’s admonishment, “federal court

equitable interference with state criminal proceedings should

not be undertaken except in the most narrow and extraordinary of

circumstances,” Gilliam v. Foster, 75 F.3d 881, 903 (4th Cir.

1996) (en banc) (citing Younger v. Harris, 401 U.S. 37 (1971)),

I nonetheless cannot ignore the ways in which the Commonwealth’s

misconduct has hindered rather than fostered justice throughout

the course of this case. Although the “extraordinary

circumstances” exception is narrow, this case -- wherein the

Commonwealth’s conduct has been appalling -- fits squarely into

that narrow space.

35
 A.

1.

I begin with the elementary propositions that habeas corpus

is, “at its core, an equitable remedy,” Schlup v. Delo, 513 U.S.

298, 319 (1995), and a district court has broad discretion to

“dispose of habeas corpus matters ‘as law and justice require,’”

Hilton v. Braunskill, 481 U.S. 770, 775 (1987) (quoting 28

U.S.C. § 2243). See also Irvin v. Dowd, 366 U.S. 717, 728-29

(1961). For these reasons, our review of a district court’s

decision to bar re-prosecution is circumscribed. See D’Ambrosio

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

district court’s decision to bar re-prosecution would be

reviewed for abuse of discretion).

Under an abuse of discretion review, we should not disrupt

the court’s remedy unless we believe it “act[ed] arbitrarily or

irrationally, fail[ed] to consider recognized factors

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

factual or legal premises, or commit[ted] an error of law.”

United States v. Wilson, 624 F.3d 640, 649 (4th Cir. 2010)

(internal quotation marks omitted).

2.

As the majority notes, see ante at 30, the extraordinary

circumstances exception has traditionally surfaced in cases in

which a constitutional violation cannot be remedied by a new

36
trial. See, e.g., Gilliam, 75 F.3d at 903 (re-prosecution would

contravene the Double Jeopardy Clause); Solem v. Bartlett, 465

U.S. 463, 481 (1984) (state court lacked jurisdiction over the

prosecution); Smith v. Goguen, 415 U.S. 566 (1974) (petitioner

was convicted under an unconstitutional statute); Strunk v.

United States, 412 U.S. 434, 439-40 (1973) (re-prosecution would

violate petitioner’s right to a speedy trial).

But some courts have also found the remedy appropriate in

cases in which “other exceptional circumstances exist such that

the holding of a new trial would be unjust.” Capps v. Sullivan,

13 F.3d 350, 352-53 (10th Cir. 1993). These courts have relied

on circumstances that demand equitable relief, even if those

circumstances present constitutional violations that could be

remedied upon retrial. For example, in Satterlee v.

Wolfenbarger, the Sixth Circuit held that a district court “may

forbid reprosecution” where “the state inexcusably, repeatedly,

or otherwise abusively fails to act within the prescribed time

period,” or “the state’s delay is likely to prejudice the

petitioner’s ability to mount a defense at trial.” 453 F.3d

362, 370 (6th Cir. 2006) (internal quotation marks and

alterations omitted). See also Wiggins v. Estelle, 681 F.2d

266, 268 n.l (5th Cir. 1982) (suggesting petitioner should

“forever be set free” if pre-indictment delay denied petitioner

due process), rev’d on other grounds, McKaskle v. Wiggins, 465

37
U.S. 168 (1984); United States ex rel. Schuster v. Vincent, 524

F.2d 153, 154, 158, 162 (2d Cir. 1975) (ordering a habeas

petitioner’s immediate release and absolute discharge where he

had been confined in a state hospital for over 30 years without

the opportunity for a commitment hearing and had been in prison

for a total of 44 years); Garcia v. Portuondo, 459 F. Supp. 2d

267, 294 (S.D.N.Y. 2006) (A court may bar retrial, even if the

constitutional violation is capable of correction, “where the

petitioner has served an extended and potentially unjustifiable

period of incarceration before the writ was granted.” (internal

quotation marks and alterations omitted)); Morales v. Portuondo,

165 F. Supp. 2d 601, 609 (S.D.N.Y. 2001) (barring retrial where

“the evidence strongly suggests that [the petitioners] are

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

new trial has been hampered” by unavailability of witnesses

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

potentially unjustified periods of incarceration” (internal

quotation marks omitted)).

Whether circumstances are “extraordinary” enough to bar re-

prosecution is a fact-based determination, left to the sound

discretion of the district court. See Foster v. Lockhart, 9

F.3d 722, 727 (8th Cir. 1993) (“A district court has authority

to preclude a state from retrying a successful habeas petitioner

when the court deems that remedy appropriate.”). In this case,

38
I do not agree that the district court abused that discretion:

I am not as confident as the majority that the Commonwealth’s

Brady and Giglio violations and subsequent misconduct can be

remedied in a new trial. But even assuming they can be, the

circumstances at hand are extraordinary enough to demand

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

B.

The district court’s remedy was set forth in the Order

Enforcing Judgment as follows:

The Commonwealth, having violated the Court’s
conditional writ of habeas corpus by failing to
“within one-hundred and twenty (120) days of the date
of this Order, provide Petitioner with a new trial, or
release him unconditionally from custody,” it is
ORDERED that the Commonwealth of Virginia release
Petitioner unconditionally, free of all criminal
proceedings on the charge of murder for hire of Danny
Petrole and the drug charges that were previously
tried in state court by the Commonwealth, within ten
(10) days of the entry of this order.

It is FURTHER ORDERED that the Commonwealth of
Virginia is hereby BARRED from reprosecuting the
Petitioner on the charges originally tried herein in
state court or any other charges stemming from death
of Danny Petrole which requires the testimony of Owen
Barber in any form.

J.A. 534-35. The district court explained,

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

39
 case is very different than that of the ordinary case
which constrains the Court to extraordinary remedies.

Id. at 525. The court proceeded to discuss two aspects of

Wolfe’s case that warranted a bar to re-prosecution: the

Commonwealth’s continuing pattern of misconduct, including

flagrant and ubiquitous violations of Brady and Giglio; and the

Commonwealth’s jail visit to Owen Barber on September 11, 2012.

1.

First, I am compelled to set forth a sampling (though

certainly not all) of the previous instances of misconduct

perpetrated by the Commonwealth:

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

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

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

40
• The Commonwealth withheld evidence suggesting
that Barber knew Petrole before the murder, that
Barber owed Petrole money, that Petrole “had a
hit out” on Barber, and that Barber had a close
relationship with Petrole’s roommate, id. at 548-
49, 552;

• The Commonwealth withheld impeachment evidence,
including information relating to a deal the
Commonwealth made with its witness J.R. Martin in
exchange for his cooperation, see id. at 549;

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

• The Commonwealth withheld evidence which could
have allowed Wolfe to present an alternate theory
of the Petrole murder: various reports and
witness statements relating to a parallel drug
investigation that indicated conflict in
Petrole’s drug business unrelated to Wolfe’s
purported motive for having Petrole murdered;
evidence that Petrole was rumored to be a
government informant, constituting yet another
possible motive for his murder; and the
statements of three witnesses that they saw a
second car at the crime scene shortly after the
Petrole murder, see id. at 566, 558-59;

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

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

41
 Pascquierllo and Jason Coleman and Chad Hough.”
Wolfe, 819 F. Supp. 2d at 547. Further, the
prosecutors did not provide any reference to or
information regarding the joint meetings with
witnesses in their written Brady disclosure, see
id.;

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

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

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

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

misconduct does not end there: it reached its pinnacle on

September 11, 2012, when Detective Newsome and Prince William

County prosecutors Richard Conway and Paul Ebert (the “Original

Prosecuting Team”) visited Barber in jail (the “September 11

jail visit”) and attempted to coerce Barber to repeat his 2002

trial testimony upon retrial -- the same testimony that the

district court found “contained falsities.” Wolfe, 819 F. Supp.

2d at 571 (“Not only was the Commonwealth in possession of

42
information that would have revealed falsities in Barber’s

testimony at the time of the trial, it also knew that

suppressing that information would result in denying Petitioner

an opportunity to craft a defense based on the information.”).

This time, however, Barber had enough. The district court

explained,

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

J.A. 527 (citations omitted). Thus, by threatening and

intimidating Barber -- whose most recent and credited testimony

was that Wolfe had nothing to do with Petrole’s murder -- into

invoking the Fifth Amendment, the Commonwealth has once again

deprived Wolfe of potentially exculpatory evidence. This is a

circumstance that, even if (somehow) the constitutional

violations can be remedied upon retrial, is extraordinary enough

“such that the holding of a new trial would be unjust.” Capps,

13 F.3d at 353.

43
 2.

In fashioning its remedy to bar re-prosecution, the

district court relied heavily upon the actions of the Original

Prosecuting Team during the September 11 jail visit, so it is

important to put the visit in context. This court’s Wolfe II

opinion was published on August 16, 2012, and the mandate issued

on Friday, September 7, 2012. Our Wolfe II opinion roundly

chastised the Original Prosecuting Team for its failure to

disclose exculpatory evidence and for “taint[ing]” evidence by

its “prosecutorial misconduct.” Wolfe II, 691 F.3d at 426 n.9.

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

in the prosecution team would be necessary to avoid any

continued improprieties.

Yet, the day before a meeting with Wolfe’s counsel

(scheduled for Wednesday, September 12), the Original

Prosecuting Team traveled to the Augusta Correctional Center and

met with Barber, who was unassisted by counsel. The encounter

was recorded without Barber’s knowledge. The Commonwealth

states that the Original Prosecuting Team visited Barber “in

preparation for the retrial,” and maintains, “Mr. Ebert was

permitted, even required, to talk to Barber to see which of his

many stories he intended to tell at the retrial.” Resp’t’s Br.

6, 28.

44
 Ebert received his answer within the first five minutes of

the interview: “EBERT: What might be your testimony if we were

to call you this time [upon retrial]? BARBER: I guess it’d have

to be what was in the Federal Court.” J.A. 298. Barber was

referring to the testimony he gave at the district court

evidentiary hearing in November 2010, where he reconfirmed that

Wolfe was not “involved in the murder of Danny Petrole,” did not

“hire [Barber] to kill Danny Petrole” and did not “have anything

. . . to do with the murder of Danny Petrole.” Wolfe v.

Johnson, No. 2:05-cv-432, Docket No. 186 at 117-18 (Tr. Nov. 2,

2010); see also Wolfe, 819 F. Supp. 2d at 548 & n.9. Crucially,

the district court found “Barber’s demeanor and candor

persuasive” at the federal evidentiary hearing. Wolfe, 819 F.

Supp. 2d at 570.

Nonetheless, the questioning did not stop there. Instead,

because this was not the answer the Commonwealth wanted, they

proceeded to interrogate, intimidate, and threaten Barber for

over an hour, but at no point did Barber relent.

I am compelled to repeat some of the tactics used by the

Commonwealth and statements made to Barber at the September 11

jail visit:

• Conway paraphrased the holding in the Supreme
Court case Ricketts v. Adamson, 483 U.S. 1
(1987), explaining that a government witness who
breached a plea agreement by failing to testify
truthfully against other parties “was convicted

45
 of first degree murder and sentenced to death.”
Conway asked, “Nobody, none of these people
[i.e., Wolfe’s attorneys] ever told you that by
breaching the plea agreement you could be tried
again also . . . for the murder[?] . . . I had
thought it was pretty deceptive really for these
people to be coming here and talking to you as if
perjury was the only thing you had to worry
about.” J.A. 310-14.

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

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

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

46
 you don’t remember? Because it wasn’t the
truth.” Id. at 361.

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

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

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

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

The very next day, on September 12, 2012, Conway and Ebert

filed an ex parte motion to recuse themselves and were replaced

47
on September 13 by a Fairfax County Commonwealth prosecutor.

The timing of this action is highly suspect, as it suggests

that, rather than working diligently to comply with the district

court’s mandate that Wolfe be released or retried within 120

days, the Original Prosecuting Team made a last-ditch effort to

intimidate Barber into implicating Wolfe once and for all, and

then, when their plans failed, the prosecutors immediately filed

a motion to recuse themselves. 1

Considering this cumulative evidence of misconduct,

culminating in the Commonwealth urging Barber to reiterate

testimony that “contained falsities,” and his resulting

intention to invoke his Fifth Amendment privilege, I simply

cannot join the majority’s independent finding that this is not

an “extremely rare” situation worthy of a bar on re-prosecution.

1
The district court asked the Commonwealth, “Did the
[prosecutors’] recusal on September the 12th have anything to do
with the visit on September 11th of Mr. Barber?” The
Commonwealth, represented by the Attorney General’s Office,
responded, “I can only speak to the record, your Honor. There’s
nothing I see in the transcript or in my listening to the
recording of the visit that would have created the basis for
them to recuse themselves.” J.A. 456. The Commonwealth
continued, “[T]he history of the case to that point and the
criticism that had been leveled at them would be a distraction
in continuing the prosecution of the case, and a special
prosecutor would be able to focus on the case itself,” to which
the court responded, “It took the Commonwealth until September
the 12th to figure that out?” Id. at 457.

48
Ante at 30. Woe is the state of justice in the Commonwealth if

this behavior is not extremely rare.

3.

The majority makes the point that Barber may very well not

end up invoking his Fifth Amendment privilege, and if he does

testify, his testimony could benefit either side. See ante at

28. However, in my opinion, this misses the point. The

September 11 jail visit, resulting in Barber’s threat of

silence, was not an anomaly; it “permanently crystalized” the

misconduct of the Original Prosecuting Team, J.A. 533, as the

district court explained,

In the absence of the discovery violations in the
state trial, the Original Prosecuting Team’s actions
on September 11, 2012 might appear to be benign.
However, in context, they speak to a continuing
pattern of violating Petitioner [sic] right to use
Brady and Giglio evidence, which the Court attempted
to remedy through its habeas decree.

Id. at 528.

As it stands, the only witness directly linking Wolfe to

the death of Petrole -- Barber -- has now recanted and, as a

result, has been sought out and harassed by the Commonwealth

attorneys to the extent he is now chilled from testifying. In

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

court that, upon his advice, Barber has already invoked his

Fifth Amendment privilege in state court, and “based on the

contents of th[e] tape [from the September 11 jail visit], my

49
advice will not change about whether [Barber] should testify [at

trial] unless there’s a new development[.]” J.A. 471-72.

But even if Barber decides to forego the privilege, his

testimony will be forever shadowed by the manipulative actions

of the Original Prosecuting Team: the Commonwealth threatened

Barber with being charged with capital murder for breaching his

plea agreement and raised the specters of God and Barber’s

deceased mother in attempt to coerce him into testifying to “the

truth,” a.k.a., the Commonwealth’s moniker for its version of

the facts. See J.A. 310-14, 331, 369, 375. It is the

Commonwealth alone that now holds the fate of the crucial Barber

testimony (and thus, Wolfe’s fate) in its grip. They alone can

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

Yet, it is clear from the actions and statements of the

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

50
Commonwealth prosecutors that the only testimony they are

interested in compelling is that which would implicate Wolfe.

The misconduct of the Original Prosecuting Team has tainted

this case to the extent that Wolfe’s due process rights are all

but obliterated. In this case, with its “protracted and

eventful history,” ante at 3, not only do we have inexcusable

delay as set forth in Satterlee, Garcia, and Morales -- caused

by the Commonwealth’s withholding of Brady and Giglio evidence

and its non-compliance with the district court’s 120-day

deadline -- but we also have the grievous instances of

prosecutorial misconduct to boot. Wolfe has been in prison for

twelve years, despite the fact that the evidence linking him to

Petrole’s murder is weak, and he will now likely be deprived of

live testimony from the only direct witness to the crime for

which he is sitting on death row -- testimony that may very well

exculpate him. Thus, the district court was not arbitrary or

irrational, did not ignore constraints on its discretion, and

did not commit factual or legal error in stopping this loathsome

spectacle once and for all. See United States v. Wilson, 624

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

3
The majority maintains, “contentions relating to Barber’s
alleged intimidation by the prosecutors are yet to be exhausted
in the state court system.” Ante at 29 (citing Pitchess v.
Davis, 421 U.S. 482 (1975)). However, Pitchess is inapposite.
As noted in Part III.A. of the majority opinion, the
(Continued)
51
 II.

In sum, the district court -- possessing jurisdiction to

remedy the constitutional violations that occurred over the past

twelve years and armed with the authority to “enforc[e] its

conditional grant of a writ of habeas corpus,” Gentry v. Deuth,

456 F.3d 687, 692 (6th Cir. 2006) -- disposed of this matter “as

law and justice require[d],” 28 U.S.C. § 2243, and did not abuse

its discretion in barring re-prosecution of Justin Wolfe. I

would affirm the district court’s remedy and thus, respectfully

dissent as to Part III.B. of the majority opinion.

I repeat the words of our Supreme Court, “It is as much [a

prosecutor’s] duty to refrain from improper methods calculated

to produce a wrongful conviction as it is to use every

legitimate means to bring about a just one.” Berger v. United

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

52
States, 295 U.S. 78, 88 (1935). Even Detective Newsome

recognized that the Commonwealth “ha[s] an obligation to respect

the Courts, to respect the process and to do what’s right.”

J.A. 331. If only the Commonwealth had practiced what it

preached.

53