Justin Wolfe v. Harold Clarke , 691 F.3d 410 ( 2012 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JUSTIN MICHAEL WOLFE, 
Petitioner-Appellee,
v.
HAROLD W. CLARKE, Director,
Virginia Department of
Corrections,
Respondent-Appellant.
WILLIAM G. BASSLER; ROBERT C.
BUNDY; A. BATES BUTLER, III; W.
J. MICHAEL CODY; J. JOSEPH
CURRAN, JR.; ROBERT J. DEL TUFO;
 No. 11-6
W. THOMAS DILLARD; CONOR B.
DUGAN; JOHN R. DUNNE; MATTHEW
W. FRIEDRICH; BENNETT L.
GERSHMAN; JOHN GIBBONS; ISABEL
GOMEZ; STEWART HANCOCK; BRUCE
R. JACOB; GERALD KOGAN; THOMAS
D. LAMBROS; DAVID W. OGDEN;
STEPHEN M. ORLOFSKY; STEPHANIE
K. PELL; H. JAMES PICKERSTEIN;
RICHARD J. POCKER; CHRISTOPHER S.
RHEE; JEANNIE S. RHEE; H. LEE
SAROKIN;

2 WOLFE v. CLARKE
HARRY L. SHORSTEIN; GIL M. 
SOFFER; THOMAS P. SULLIVAN;
RICHARD S. UGELOW; JAMES K.
VINES; ATLEE W. WAMPLER, III;
JAMES WEST; ALFRED WOLIN;

WILLIAM YEOMANS,
Amici Supporting Appellee.

JUSTIN MICHAEL WOLFE, 
Petitioner-Appellant,
v.
HAROLD W. CLARKE, Director,
Virginia Department of
Corrections,
Respondent-Appellee.
 No. 11-7
WILLIAM G. BASSLER; ROBERT C.
BUNDY; A. BATES BUTLER, III; W.
J. MICHAEL CODY; J. JOSEPH
CURRAN, JR.; ROBERT J. DEL TUFO;
W. THOMAS DILLARD; CONOR B.
DUGAN; JOHN R. DUNNE; MATTHEW
W. FRIEDRICH; BENNETT L.
GERSHMAN;

WOLFE v. CLARKE 3
JOHN GIBBONS; ISABEL GOMEZ; 
STEWART HANCOCK; BRUCE R.
JACOB; GERALD KOGAN; THOMAS D.
LAMBROS; DAVID W. OGDEN;
STEPHEN M. ORLOFSKY; STEPHANIE
K. PELL; H. JAMES PICKERSTEIN;
RICHARD J. POCKER; CHRISTOPHER S.
RHEE; JEANNIE S. RHEE; H. LEE
SAROKIN; HARRY L. SHORSTEIN; GIL

M. SOFFER; THOMAS P. SULLIVAN;
RICHARD S. UGELOW; JAMES K.
VINES; ATLEE W. WAMPLER, III;
JAMES WEST; ALFRED WOLIN;
WILLIAM YEOMANS,
Amici Supporting Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Raymond A. Jackson, District Judge.
(2:05-cv-00432-RAJ-DEM)
Argued: May 17, 2012
Decided: August 16, 2012
Before KING, DUNCAN, and THACKER, Circuit Judges.
Affirmed by published opinion. Judge King wrote the opin-
ion, in which Judge Thacker joined. Judge Duncan wrote a
separate opinion dissenting in part.
4 WOLFE v. CLARKE
COUNSEL
ARGUED: Katherine Baldwin Burnett, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Vir-
ginia, for Appellant/Cross-Appellee. Ashley Charles Parrish,
KING & SPALDING, LLP, Washington, D.C., for
Appellee/Cross-Appellant. ON BRIEF: Kenneth T. Cucci-
nelli, II, Attorney General of Virginia, Matthew P. Dullaghan,
Senior Assistant Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Vir-
ginia, for Appellant/Cross-Appellee. Michele J. Brace, VIR-
GINIA CAPITAL REPRESENTATION RESOURCE
CENTER, Charlottesville, Virginia; Daniel J. King, KING &
SPALDING, LLP, Atlanta, Georgia; Matthew S. Owen,
KING & SPALDING, LLP, Houston, Texas; Jane C. Luxton,
PEPPER HAMILTON LLP, Washington, D.C.; Matthew L.
Engle, Deirdre M. Enright, THE INNOCENCE PROJECT
AT UVA SCHOOL OF LAW, Charlottesville, Virginia, for
Appellee/Cross-Appellant. John P. Elwood, VINSON &
ELKINS LLP, Washington, D.C.; Michael A. Heidler, VIN-
SON & ELKINS LLP, Austin, Texas, for Amici Supporting
Appellee/Cross-Appellant.
OPINION
KING, Circuit Judge:
This matter was previously before us on appeal by 28
U.S.C. § 2254 petitioner Justin Michael Wolfe, a Virginia
prisoner who was convicted of capital murder and sentenced
to death by the Commonwealth in 2002. By our decision of
May 11, 2009, see Wolfe v. Johnson, 565 F.3d 140 (4th Cir.
2009) ("Wolfe I"), we remanded for further proceedings. Spe-
cifically, Wolfe I instructed the district court to determine
whether Wolfe was entitled to an evidentiary hearing and
other discovery; to decide in the first instance whether, under
WOLFE v. CLARKE 5
Schlup v. Delo, 513 U.S. 298 (1995), Wolfe had made a suffi-
cient showing of actual innocence to clear any procedural bars
to his constitutional claims (the "Schlup issue"); and to assess
anew Wolfe’s claim, among others, that the prosecution had
contravened his Fourteenth Amendment due process rights, as
recognized in Brady v. Maryland, 373 U.S. 83 (1963), by sup-
pressing favorable and material evidence (the "Brady claim").
On remand, the district court heeded our Wolfe I mandate,
authorized appropriate discovery and conducted an evidenti-
ary hearing, and ruled in Wolfe’s favor on the Schlup issue
and his Brady and two additional claims. By its judgment of
August 30, 2011, the court vacated Wolfe’s capital murder
and other convictions, and ordered the Commonwealth to
either retry him within 120 days or release him uncondition-
ally from custody. The judgment was stayed pending this
appeal by the Commonwealth, which was initiated on its
behalf by respondent Harold W. Clarke, Director of the Vir-
ginia Department of Corrections.1 The Commonwealth chal-
lenges the remand proceedings from start to finish,
contending that the district court repeatedly and fatally erred
in its procedural and substantive rulings. Because we readily
conclude, however, that the court’s award of habeas corpus
relief on Wolfe’s Brady claim was not marred by any error,
we affirm the judgment.
I.
A.
As more fully detailed in our Wolfe I decision, a Prince
William County jury found Wolfe guilty in 2002 of capital
murder, using a firearm in the commission of a felony, and
conspiring to distribute marijuana. See Wolfe I, 565 F.3d at
1
Clarke has served as Director of the Virginia Department of Correc-
tions since 2010, when he replaced former respondent Gene M. Johnson.
6 WOLFE v. CLARKE
149. The trial court sentenced Wolfe to death for the murder,
plus consecutive terms of three years for the firearm offense
and thirty years for the drug conspiracy. Id. The murder con-
viction was premised on evidence that Wolfe, then a nineteen-
year-old marijuana dealer in northern Virginia, hired his close
friend and fellow drug dealer Owen Barber IV to murder drug
supplier Daniel Petrole in March 2001. Id. at 144-45 & n.2
(explaining that "Virginia defines ‘capital murder,’ in perti-
nent part, as ‘[t]he willful, deliberate, and premeditated killing
of any person by another for hire’" (quoting Va. Code Ann.
§ 18.2-31(2))). Significantly, "Barber was the prosecution’s
key witness," in that he was "the only witness to provide any
direct evidence regarding the ‘for hire’ element of the murder
offense and the involvement of Wolfe therein." Id. at 144. In
exchange for Barber’s testimony that he was Wolfe’s hired
triggerman, the Commonwealth dismissed its capital murder
charge against Barber, and he pleaded guilty to non-capital
murder. Barber was sentenced to sixty years in prison, of
which twenty-two years were suspended. Id. at 144 n.1.
In November 2005, after failing to obtain relief from his
convictions on direct appeal and in state habeas corpus pro-
ceedings, Wolfe filed his initial 28 U.S.C. § 2254 petition in
the district court. See Wolfe I, 565 F.3d at 149-51. It was only
thereafter, on December 14, 2005, that Barber executed an
affidavit repudiating his trial testimony and exculpating
Wolfe from the murder-for-hire scheme. Id. at 144, 151.
Within a single day, Wolfe filed an amended § 2254 petition,
along with an appendix of supporting materials, including
additional affidavits corroborating the Barber affidavit and
suggesting that the prosecution had suppressed evidence that
should have been disclosed to the defense. Id. at 151. The
amended petition raised, inter alia, the Schlup actual inno-
cence issue, thereby asserting a second ground to excuse any
procedural default of Wolfe’s constitutional claims — the pre-
viously asserted first ground having been the separate "cause
and prejudice" standard. Id. at 154, 158 & n.27. In April 2006,
while the amended petition and related procedural issues were
WOLFE v. CLARKE 7
pending before the magistrate judge, Wolfe notified the court
that Barber sought to repudiate the statements in his 2005 affi-
davit exculpating Wolfe. Id. at 155-56. In conjunction with
that notice, Wolfe’s lawyers requested an evidentiary hearing
to resolve credibility issues, plus discovery into the prosecu-
tion’s compliance with its Brady obligations. Id. at 156.
In August 2007, the magistrate judge issued his report,
rejecting Wolfe’s request for an evidentiary hearing, deeming
the Barber and other affidavits to lack credibility, and recom-
mending the dismissal of Wolfe’s amended petition on the
ground that the claims asserted therein were meritless, had
been procedurally defaulted, or both. See Wolfe I, 565 F.3d at156 & n.25. Although Wolfe spelled out a lengthy series of
objections to the magistrate judge’s report, the district court,
by its decision of February 11, 2008, adopted the report as its
own and dismissed Wolfe’s petition. Id. at 158-59 (explain-
ing, inter alia, that the court did not address the Schlup issue,
but "considered (and rejected) Wolfe’s contention that his
procedural defaults were excused under the cause and preju-
dice standard" (internal quotation marks omitted)). After the
court declined to alter or amend its decision, we granted
Wolfe a 28 U.S.C. § 2253(c) certificate of appealability on his
Brady and three other claims. Id. at 159. And, as explained
above, we ultimately remanded with instructions for the court
to determine Wolfe’s entitlement to an evidentiary hearing
and other discovery, to decide the Schlup issue in the first
instance, and to freshly assess the Brady and two additional
claims. Id. at 171. We also advised the court that it was free
to revisit its cause and prejudice ruling. Id. at 165 n.35.
B.
Without explicitly reconsidering its prior cause and preju-
dice ruling, the district court decided the procedural Schlup
issue early in the remand proceedings, by its opinion and
order of February 4, 2010. See Wolfe v. Clarke, No. 2:05-cv-
8 WOLFE v. CLARKE
00432 (E.D. Va. Feb. 4, 2010) (the "Schlup Order").2 The
court therein determined, largely on the existing Wolfe I
record, that Owen Barber’s (subsequently disavowed) recan-
tation of his trial testimony was sufficiently corroborated to
"raise doubt in a reasonable juror’s mind about the circum-
stances of the night of the [Daniel Petrole] murder." Schlup
Order 10. Indeed — weighing the "two stories of what
occurred on the night of the murder, both with hearsay cor-
roboration[,] and almost no other evidence that would support
one version over another" — the court concluded that it was
"more likely than not that no reasonable juror would have
found Wolfe guilty beyond a reasonable doubt." Id. (applying
Schlup, 513 U.S. at 327 (requiring petitioner to "show that it
is more likely than not that no reasonable juror would have
convicted him in the light of the new evidence")). Accord-
ingly, the court announced that Wolfe had "met the Schlup
standard," thus justifying review of the merits of his procedur-
ally defaulted constitutional claims. Id. The court also granted
Wolfe’s request for an evidentiary hearing, as well as discov-
ery. Id. at 13.
During the contentious course of the discovery proceed-
ings, Wolfe had to move to compel the Commonwealth to
meet its discovery obligations. A June 4, 2010 hearing on
Wolfe’s motion revealed, inter alia, that the Commonwealth
had provided only unsworn responses to the interrogatories it
had answered, had wholly failed to respond to other interroga-
tories, and was refusing to produce approximately 916 docu-
ments that it unilaterally deemed irrelevant. By its order of
June 7, 2010, the district court directed the Commonwealth to
provide sworn responses to Wolfe’s interrogatories, including
those previously unanswered, and to allow Wolfe to examine
the hundreds of theretofore undisclosed documents, subject to
an agreed protective order. See Wolfe v. Clarke, No. 2:05-cv-
2
The Schlup Order is found at J.A. 3266-78. (Citations herein to "J.A.
__" refer to the contents of the Joint Appendix filed by the parties in these
appellate proceedings.)
WOLFE v. CLARKE 9
00432 (E.D. Va. June 7, 2010) (the "Discovery Order").3 To
give Wolfe an opportunity to assess the evidence that would
be forthcoming under the Discovery Order, the court was con-
strained to postpone the impending evidentiary hearing.
The evidentiary hearing finally ensued late that autumn,
when it was conducted over the four days of November 2-3
and 16-17, 2010. On the second day of the hearing, in
response to the Commonwealth’s objection to Wolfe’s use of
newly disclosed evidence in support of his existing Brady and
other claims, Wolfe filed a motion to amend his 28 U.S.C.
§ 2254 petition. See J.A. 4026-27 (arguing that the Common-
wealth "has tenaciously fought to deny Wolfe access to any
facts that would have enabled him to plead additional Brady
. . . sub-claims," and thus "should not be rewarded for playing
hide-the-ball" and "should not be allowed to blame Wolfe for
lacking the clairvoyance to include these proposed amend-
ments to his 2005 federal habeas petition without the benefit
of the withheld documents"). By its mid-hearing order of
November 12, 2010, the district court granted Wolfe’s motion
to amend "out of an abundance of caution," but found that
"even in the absence of the [motion], the issues [Wolfe] raises
fall squarely within the [existing Brady claim]." See Wolfe v.
Clarke, No. 2:05-cv-00432 (E.D. Va. Nov. 12, 2010) (the
"Amendment Order").4
Thereafter, by its opinion and order of July 26, 2011, the
court determined that Wolfe was entitled to habeas corpus
relief premised on, inter alia, the Commonwealth’s manifold
violations of his Brady rights. See Wolfe v. Clarke, No. 2:05-
cv-00432 (E.D. Va. July 26, 2011) (the "Brady Order").5 Spe-
cifically, the court ruled in the Brady Order that the prosecu-
3
The Discovery Order is found at J.A. 3517.
4
The Amendment Order is found at J.A. 4059-60.
5
The Brady Order, which amended an earlier decision of July 12, 2011,
is found at J.A. 5203-59 and published at 819 F. Supp. 2d 538 (E.D. Va.
2011).
10 WOLFE v. CLARKE
tion had withheld eight items or groups of favorable and
material evidence, falling into three broader categories: (1)
evidence tending to impeach triggerman Barber; (2) evidence
tending to impeach other prosecution witnesses who corrobo-
rated Barber’s testimony; and (3) evidence suggesting an
alternate theory of the Petrole murder. The court also deemed
Wolfe to be entitled to relief on his claim that the prosecution
knowingly presented false testimony by Barber, in contraven-
tion of Wolfe’s Fourteenth Amendment due process rights
under Napue v. Illinois, 360 U.S. 264 (1959), and Giglio v.
United States, 405 U.S. 150 (1972) (the "Giglio claim"), as
well as his claim that the state trial court deprived him of his
rights under the Sixth and Fourteenth Amendments to an
impartial jury by striking a qualified venireman for cause (the
"venireman claim"). Notably, the court closed its Brady Order
by specifying that Wolfe’s "conviction and sentence" — both
in the singular — were vacated. See Brady Order 57.
Wolfe timely filed a Federal Rule of Civil Procedure 59(e)
motion to alter or amend the judgment, seeking the district
court’s clarification that the awarded relief encompassed
vacatur of not only his murder conviction and death sentence,
but also his convictions and sentences for using a firearm in
the commission of a felony and conspiring to distribute mari-
juana. The court granted Wolfe’s motion by its order of
August 30, 2011. See Wolfe v. Clarke, No. 2:05-cv-00432
(E.D. Va. Aug. 30, 2011) (the "Relief Order"). The court clar-
ified therein that, "[i]n light of [its] finding that [Wolfe] was
denied the right to due process during his state criminal trial,
[he] is entitled to a new trial on all charges previously consid-
ered by the state court." Relief Order 1-2. That same day, the
judgment was amended to direct the Commonwealth to retry
Wolfe within 120 days or release him unconditionally. See
Wolfe v. Clarke, No. 2:05-cv-00432 (E.D. Va. Aug. 30, 2011)
(the "Judgment"). The Judgment was subsequently stayed
pending this appeal by the Commonwealth. See Wolfe v.
WOLFE v. CLARKE 11
Clarke, No. 2:05-cv-00432 (E.D. Va. Nov. 22, 2011) (the
"Stay Order").6
We possess jurisdiction over the Commonwealth’s appeal
pursuant to 28 U.S.C. § 1291. Further, because we granted
Wolfe a certificate of appealability for a cross-appeal, we
have 28 U.S.C. §§ 1291 and 2253(c) jurisdiction to consider
his contention that the district court should have granted him
relief on an additional, unadjudicated claim: that "[e]ven if the
prosecutors had no knowledge of Barber’s perjury at the time
of trial, they do now," and thus his continuing detention by
the Commonwealth "‘constitute[s] a due process violation.’"
See Br. of Appellee 62-63 (quoting Sanders v. Sullivan, 863
F.2d 218, 224 (2d Cir. 1988)) (the "Sanders claim"); see also
Brady Order 52 (ruling in favor of Wolfe on his Giglio, rather
than Sanders, claim, premised on the finding that the Com-
monwealth "presented Barber’s trial testimony despite having
information in its possession indicating that the testimony was
false").
As explained below, we need look no further than one item
of the first category of evidence withheld from Wolfe’s
defense by the prosecution — the evidence tending to
impeach Barber — to agree with the district court that Wolfe
deserves habeas corpus relief on his Brady claim and affirm
the Judgment. See Brady Order 42 (observing "that the sup-
pressed habeas evidence relating to Barber alone is enough to
warrant habeas relief under Brady"). Consequently, we need
not review any issues of substance or procedure related solely
to the other withheld evidence underlying Wolfe’s Brady
claim, or to his Giglio, Sanders, and venireman claims.
6
The Relief Order is found at J.A. 5293-94, the Judgment at J.A. 5295,
and the Stay Order at J.A. 5407-29. The Stay Order is published at 819
F. Supp. 2d 574 (E.D. Va. 2011).
12 WOLFE v. CLARKE
II.
A.
The single, plainly momentous item of suppressed Barber
impeachment evidence on which we rest today’s decision is
a written police report reflecting that — before Barber ever
asserted that Wolfe hired him to murder Petrole — Prince
William County Detective Newsome advised Barber that he
could avoid the death penalty by implicating Wolfe. See J.A.
4825-27 (the "Newsome report"). The Newsome report docu-
ments Newsome’s and fellow Detective Walburn’s conversa-
tions with Barber during an April 14, 2001 cross-country
flight, returning Barber to Virginia upon his arrest in Califor-
nia three weeks after the Petrole murder. In pertinent part, the
Newsome report reveals the following:
I told Barber that we knew he had killed Petrole and
had a very strong case against him. But that as far as
we knew he had no personal problem with Daniel
Petrole but that he had killed him for someone else
and we believed that person was Justin Wolfe. I
explained to him that we needed the information that
he had in order to arrest Wolfe. I explained again
that we had a very strong case against him (Barber)
and that we could stop there but that would not be
right since we knew it was someone else [sic] idea.
I told him that he was potentially facing a capitol
[sic] murder charge in this case and that he needed
to help himself. He asked me, "What do I get out of
it if I tell you who the other person, the higher up,
is". I told him I could not make any promises to him,
but that the Commonwealth might entertain the idea
of not charging him with Capitol [sic] Murder, or
that they may be willing to make a recommendation
as to his sentence.
Again Barber asked about discovery and I again
explained it to him. He then said, What do I get out
WOLFE v. CLARKE 13
it [sic] if I name the "higher up". I told him that was
one of his problems; that his case was so tight he
really had very little to offer us. I told him it could
simply be the difference between Capitol [sic] mur-
der or First Degree, execution or life in prison, or
that the Commonwealth may be willing to make a
recommendation in sentencing after speaking to his
attorney. I told him again that the Commonwealth’s
Attorney would make these decisions and that I
could not promise him anything. I pointed out that at
this point he would do more good than harm for him-
self by cooperating with us.
J.A. 4826-27.
The Commonwealth inexplicably withheld the Newsome
report from Wolfe until these 28 U.S.C. § 2254 proceedings
in 2010, after Wolfe’s first appeal and during the contentious
discovery proceedings conducted in the Wolfe I remand. Thus,
the Newsome report was among the newly disclosed evidence
that the Commonwealth argued was outside the legitimate
purview of Wolfe’s Brady claim — a contention that was
roundly rejected by the district court in its mid-evidentiary-
hearing Amendment Order of November 12, 2010. During the
evidentiary hearing, as recounted in the court’s subsequent
Brady Order, "Barber recanted his trial testimony while under
oath." Brady Order 50. Barber also engaged in the following
exchange with the Commonwealth’s lawyer during cross-
examination:
Q You related that several times they had said if
you don’t tell us what we want, you will get cap-
ital murder?
A. Yeah.
Q. Who is they?
14 WOLFE v. CLARKE
A. [Commonwealth’s Attorney] Ebert, [Assistant
Commonwealth’s Attorney] Conway, [Barber’s
attorney] Pickett, [Detective] Newsome, [and
Detective] Walburn.
Q. But if my notes are correct, they never told you
exactly what to say. They didn’t give you a
script for the events of that night, did they?
A. A specific script for the events, no.
Q. They in fact told you what they wanted was the
truth, didn’t they?
A. They said that they know Justin [Wolfe] is
involved and that we know that he hired you to
kill Danny [Petrole].
Q. Well, what they told you they wanted you to tell
them was the truth. Wasn’t that their statement?
***
Wasn’t that their statement to you, that they
wanted the truth?
A. Yeah. I mean, they said they wanted the truth,
but at the same time they said that this is what
you have got to say or you are getting the chair.
J.A. 3751-52. By its Brady Order, the district court found the
foregoing testimony by Barber to be "consistent with the sup-
pressed [Newsome] report." See Brady Order 9 n.9. The court
also deemed Barber’s recantation to be "credible" and gener-
ally found his "demeanor and candor" to be "persuasive." Id.
at 50.
Among the enumerated findings of fact in the district
court’s Brady Order is the finding (No. 6) that "[t]he prosecu-
WOLFE v. CLARKE 15
tion failed to disclose Detective Newsome’s report outlining
his initial interview with Owen Barber on April 14, 2001, dur-
ing which he [Newsome] implicated Wolfe as being involved
in the murder before Barber mentioned his [Wolfe’s] involve-
ment." Brady Order 8. The court also spelled out the control-
ling legal standard for assessing Wolfe’s Brady claim,
observing that, "to find a Brady violation, it must determine
that the evidence was 1) favorable to the accused, 2) sup-
pressed by the prosecution (either willfully or inadvertently),
and 3) material." Id. at 4 (citing Banks v. Dretke, 540 U.S.
668, 691 (2004)). In concluding that the emergence of the
Newsome report entitled Wolfe to habeas corpus relief, the
court explained:
This information is favorable to Wolfe because it
documents the fact that detectives first mentioned
Wolfe in connection to the murder and presented
Barber with the option of execution or life imprison-
ment in exchange for implicating someone else, well
before Barber began cooperating with the Common-
wealth or implicating Wolfe in the murder. Prosecu-
tors do not dispute the fact that the report was not
provided to [Wolfe]. Furthermore, the report is mate-
rial because it reflects that Barber had a motive to
misrepresent the facts regarding Petrole’s death.
Id. at 20.7
7
In its Brady Order, the district court also assessed the cumulative mate-
riality of the Newsome report and the seven other items or groups of sup-
pressed evidence that it found favorable to Wolfe. See Brady Order 37-44.
The first category of that evidence — evidence tending to impeach Barber
— encompasses the Newsome report, plus evidence that Barber possessed
other motives to murder Petrole (the "Barber-Petrole relationship evi-
dence") and that Barber’s roommate, Jason Coleman, informed the prose-
cution that Barber had confessed to acting alone (the "Coleman
evidence"). See id. at 15-22. The Barber-Petrole relationship evidence
includes statements made by confidential informants and Barber’s fellow
inmates indicating that Barber knew Petrole before the murder, that Barber
16 WOLFE v. CLARKE
B.
According to the Commonwealth, we should not reach or
address the merits of the Newsome report aspect of Wolfe’s
Brady claim, because the Newsome report would never have
surfaced or been made available to Wolfe but for the flawed
procedural rulings made by the district court in the Wolfe I
owed Petrole money, that Petrole "had a hit out" on Barber, and that Bar-
ber had a close relationship with Petrole’s roommate. See id. at 15-19. The
Coleman evidence revealed that Coleman "had a conversation with Barber
after the murder where Barber admitted to [Coleman] that he murdered
Petrole and acted alone," and that Coleman reported that conversation to
the prosecution, including the Commonwealth’s Attorney. Id. at 20.
The second category of suppressed evidence — evidence tending to
impeach other prosecution witnesses who corroborated Barber’s testimony
— includes information relating to a deal the Commonwealth made with
its witness J.R. Martin in exchange for his cooperation (the "Martin evi-
dence"), as well as a recorded statement made by the Commonwealth’s
witness Jason Hough in conflict with his subsequent trial testimony
regarding his pre-Petrole-murder conversation with Wolfe and Coleman
about robbing drug dealers (the "Hough evidence"). See Brady Order 22-
28. Finally, the third category of withheld evidence — evidence suggest-
ing an alternate theory of the Petrole murder — consists of the following:
various reports and witness statements relating to a parallel drug investiga-
tion that indicated conflict in Petrole’s drug business unrelated to Wolfe’s
purported motive for having Petrole murdered (the "drug investigation evi-
dence"); evidence that Petrole was rumored to be a government informant,
constituting yet another possible motive for his murder (the "informant
evidence"); and the statements of three witnesses that they saw a second
car at the crime scene shortly after the Petrole murder (the "second car evi-
dence"). See id. at 28-36.
Having assessed the materiality of the foregoing — the Newsome
report, the Barber-Petrole relationship evidence, the Coleman evidence,
the Martin evidence, the Hough evidence, the drug investigation evidence,
the informant evidence, and the second car evidence — the district court
concluded that the evidence’s suppression by the prosecution was, by cate-
gory and cumulatively, patently prejudicial. While we look no further than
the Newsome report today, we do not condone the prosecution’s apparent
suppression of other Brady material and the pattern of conduct that it
reveals.
WOLFE v. CLARKE 17
remand proceedings. In that regard, the Commonwealth
asserts that the court erred in three respects: by generally
excusing Wolfe’s procedural defaults under the Schlup actual
innocence standard; by authorizing discovery and conducting
the evidentiary hearing; and by allowing Wolfe to amend his
28 U.S.C. § 2254 petition to broaden his Brady claim to
include the Newsome report and other newly disclosed evi-
dence. We examine those assertions in turn.
1.
Attacking the Schlup Order, the Commonwealth argues that
the district court erred by ruling early in the remand proceed-
ings that Wolfe satisfied the Schlup actual innocence standard
on the basis of the Wolfe I record, including the 2005 affidavit
in which Barber recanted his trial testimony and denied
Wolfe’s involvement in the Petrole murder. The Common-
wealth emphasizes that the court, in looking at that same
record, had already decided that the Barber affidavit lacked
credibility. See Br. of Appellant 47 ("The court never
explained its about face and the record certainly did not jus-
tify any finding of ‘innocence’ under Schlup . . . ."). Wolfe,
of course, defends the Schlup Order, asserting that "the cor-
rectness of the district court’s findings was confirmed when
Barber recanted his trial testimony while under oath at the
[post-Schlup Order] evidentiary hearing." See Br. of Appellee
19-20 (internal quotation marks omitted); see also Brady
Order 50 (finding Barber’s evidentiary hearing recantation
"credible" and his "demeanor and candor persuasive").
In any event, we need not reach or assess the parties’ com-
peting contentions on the validity of the Schlup Order. Put
simply, any procedural default of Wolfe’s Brady claim —
particularly as it relates to the Newsome report — was other-
wise excused under the separate "cause and prejudice" stan-
dard. As we explained in Wolfe I,
[a] procedural default is excusable under the cause
and prejudice standard when the petitioner demon-
18 WOLFE v. CLARKE
strates (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 disadvan-
tage, infecting his entire trial with errors of constitu-
tional dimensions," United States v. Frady, 456 U.S.
152, 170 (1982).
Wolfe I, 565 F.3d at 158 n.27 (alteration in original). On
remand, after having decided the Schlup issue in Wolfe’s
favor, the district court understandably declined our Wolfe I
invitation to revisit its prior cause and prejudice ruling. See id.at 165 n.35. Nevertheless, pursuant to Supreme Court prece-
dent, the district court necessarily found cause and prejudice
for the Brady claim’s default when it determined that claim to
be meritorious. See Banks, 540 U.S. at 691 (recognizing that
"‘[c]ause and prejudice’ . . . ‘parallel two of the three compo-
nents of the alleged Brady violation itself’" (quoting Strickler
v. Greene, 527 U.S. 263, 282 (1999))).
To illustrate, as recognized by the district court, "the three
components or essential elements of a Brady prosecutorial
misconduct claim" are the following: "‘The evidence at issue
must be favorable to the accused, either because it is exculpa-
tory, or because it is impeaching; that evidence must have
been suppressed by the State, either willfully or inadvertently;
and prejudice must have ensued.’" Banks, 540 U.S. at 691(quoting Strickler, 527 U.S. at 281-82). By satisfying "the
second Brady component (evidence suppressed by the State),
a petitioner shows ‘cause’ when the reason for his failure to
develop facts in state-court proceedings was the State’s sup-
pression of the relevant evidence." Id. Additionally, "coinci-
dent with the third Brady component (prejudice), prejudice
within the compass of the ‘cause and prejudice’ requirement
exists when the suppressed evidence is ‘material’ for Brady
purposes." Id.WOLFE v. CLARKE 19
Thus, by "succeed[ing] in establishing the elements of his
[Brady] claim" — which we today affirm that he did —
Wolfe concurrently "succeed[ed] in demonstrating ‘cause and
prejudice’ [for his procedural default of that claim]." See
Banks, 540 U.S. at 691. By these circumstances, the Com-
monwealth’s challenge to the Schlup Order is rendered moot.
2.
Next, the Commonwealth asserts the district court erred in
the remand proceedings by authorizing discovery and con-
ducting the evidentiary hearing. In rejecting the Common-
wealth’s position, we emphasize that the court faithfully
followed our Wolfe I directions to "re-examine whether Wolfe
has shown that he is entitled to [an evidentiary hearing]," and
then, "[i]f such a hearing is warranted," to "resolve any factual
disputes bearing on the procedural Schlup issue and the sub-
stantive Brady and Giglio claims." See Wolfe I, 565 F.3d at
170-71. We also observe that Wolfe I pragmatically antici-
pated that discovery would be conducted in conjunction with
any evidentiary hearing. See id. at 171 n.44 (advising that,
"[i]f the court determines that Schlup is satisfied on the exist-
ing record, any evidentiary hearing and discovery proceed-
ings may relate primarily to the merits of Wolfe’s substantive
claims" (emphasis added)). We therefore conclude that, in
authorizing discovery and conducting the evidentiary hearing,
the district court acted well within its discretion. See Schriro
v. Landrigan, 550 U.S. 465, 473 (2007) (recognizing that "the
decision to grant an evidentiary hearing [in a 28 U.S.C.
§ 2254 case is] generally left to the sound discretion of the
district courts"); see also Conaway v. Polk, 453 F.3d 567, 582
(4th Cir. 2006) (relating that district court’s decision on
whether to conduct evidentiary hearing or authorize discovery
proceedings is reviewed for abuse of discretion).
Briefly, as we more thoroughly explained in Wolfe I, 565
F.3d at 166-71, if a § 2254 petitioner "has failed to develop
the factual basis of a claim in State court proceedings,"
20 WOLFE v. CLARKE
§ 2254(e)(2) bars a district court from conducting an evidenti-
ary hearing on the claim unless the petitioner can satisfy one
of two statutory exceptions. Importantly, however, "‘a failure
to develop the factual basis of a claim is not established
unless there is lack of diligence, or some greater fault, attrib-
utable to the prisoner or the prisoner’s counsel.’" Wolfe I, 565
F.3d at 167 (quoting Williams (Michael) v. Taylor, 529 U.S.
420, 432 (2000)); see also Cullen v. Pinholster, 131 S. Ct.
1388, 1401 (2011) (recently affirming that § 2254(e)(2) "con-
tinues to have force," in that it "still restricts the discretion of
federal habeas courts to consider new evidence when deciding
claims that were not adjudicated on the merits in state court"
(citing Michael Williams, 529 U.S. at 427-29)).
Applying the controlling standard on remand, the district
court determined that § 2254(e)(2) did "not bar [Wolfe] from
an evidentiary hearing." See Schlup Order 11. In so ruling, the
court observed that Wolfe had made diligent efforts in the
state court proceedings to develop his Brady claim by "re-
quest[ing] a hearing," "fil[ing] requests under the Virginia
Freedom of Information Act," and "mov[ing] for discovery on
multiple occasions." Id. at 10. Moreover, with respect to the
exculpatory 2005 Barber affidavit on which Wolfe’s federal
habeas petition largely relied, the court found that "[t]here
[was] no indication that Barber would have been willing to
give his affidavit at an earlier time, particularly as [Wolfe’s]
lawyers had repeatedly attempted to get Barber to make a
statement and he had refused." Id. at 11. The court thus con-
cluded that Barber’s prior reticence was "precisely the type of
external cause that . . . excuses a failure to fully develop facts
in state court." Id. (citing Conaway, 453 F.3d at 589 (explain-
ing that, because petitioner had "been reasonably diligent in
pursuing his claim, and his failure to fully develop the facts
related to [his] claim in state court is attributable to external
causes, § 2254(e)(2) does not preclude him from being
accorded an evidentiary hearing in federal court")).
Having decided that Wolfe was eligible to be accorded an
evidentiary hearing, the district court then turned to the ques-
WOLFE v. CLARKE 21
tion of whether he was entitled to one. That inquiry required
the court to determine "‘if the facts alleged would entitle
[Wolfe] to relief, and if he satisfie[d] one of the six factors
enumerated by the Supreme Court in Townsend v. Sain, 372
U.S. 293, 313 (1963).’" See Wolfe I, 565 F.3d at 169 (quoting
Conaway, 453 F.3d at 582). Properly "evaluat[ing Wolfe’s
petition] pursuant to the principles of Federal Rule of Civil
Procedure 12(b)(6)," see id., the court concluded that Wolfe
set forth sufficient facts to state meritorious Brady and Giglio
claims. See Schlup Order 12 (observing that Wolfe "alleged
serious violations of his rights," and that those "allegations
[were] made even without the benefit of discovery that could
lead to considerable additional exculpatory material"). The
court also ruled that Wolfe "met at least three of the six
[Townsend] factors," in that "‘the merits of the factual dispute
were not resolved in the state hearing’" (factor 1); "‘there is
a substantial allegation of newly discovered evidence’" (factor
4); and "‘the material facts were not adequately developed at
the state-court hearing’" (factor 5). Id. at 12 (quoting Town-
send, 372 U.S. at 313); see also Wolfe I, 565 F.3d at 313(observing that factors 1, 4, and 5 "appear to be applicable
here"). Accordingly, the court granted Wolfe’s request for an
evidentiary hearing, as well as his motion for predicate dis-
covery.
Far from abusing its discretion, the district court engaged
in a sound assessment of the evidentiary hearing issue. Prem-
ised on that analysis, the court also appropriately (if not
explicitly) found that Wolfe had demonstrated "good cause"
for discovery. See Quesinberry v. Taylor, 162 F.3d 273, 279
(4th Cir. 1998) ("Good cause is shown if the petitioner makes
a specific allegation that shows reason to believe that the peti-
tioner may be able to demonstrate that he is entitled to
relief."). As a result of the foregoing, Wolfe properly obtained
new and relevant evidence, including the Newsome report, in
the remand proceedings.
22 WOLFE v. CLARKE
3.
The Commonwealth nevertheless persists in its efforts to
thwart Wolfe’s reliance on the Newsome report and other
newly disclosed evidence, asserting on appeal that Wolfe was
erroneously allowed to amend the Brady claim alleged in his
2005 federal habeas petition. See Br. of Appellant 43 (accus-
ing the district court of "an abuse of judicial power"). The
Commonwealth’s weak — though strident — contentions in
that respect do not long detain us. First of all, we agree with
the district court that an amendment of Wolfe’s § 2254 peti-
tion was not necessary, because his new evidence-related
issues "fall squarely within the [existing Brady claim]."
Amendment Order 2 (specifying that Wolfe’s motion to
amend was granted "merely out of an abundance of caution");
see also J.A. 2854 (Wolfe’s 2005 federal habeas petition,
broadly alleging that the Commonwealth violated his Brady
rights by suppressing, inter alia, "[e]xculpatory and impeach-
ment evidence related to the Commonwealth’s key witness,
Owen Barber").
Furthermore, we reject the Commonwealth’s unfounded
depiction of "last-minute amendments far beyond the scope of
remand [in violation of] the ‘mandate rule.’" See Br. of
Appellant 43. To the contrary, our Wolfe I mandate explicitly
authorized the district court to conduct "such other and further
proceedings as may be appropriate." See 565 F.3d at 171. In
any event, it is difficult to take seriously the Commonwealth’s
protestations of unfair ambush, when Wolfe had to labor for
years from death row to obtain evidence that had been tena-
ciously concealed by the Commonwealth, and that the prose-
cution obviously should have disclosed prior to Wolfe’s
capital murder trial.
C.
With Wolfe’s procedural hurdles behind us, we proceed to
consider the substance of his Brady claim. Because we focus
WOLFE v. CLARKE 23
on an aspect of that claim — the long-concealed Newsome
report — that was not adjudicated in the state court proceed-
ings, we owe no 28 U.S.C. § 2254(d) deference to any state
decision. See Monroe v. Angelone, 323 F.3d 286, 297 (4th
Cir. 2003) ("[Section 2254(d)’s] deference requirement does
not apply when a claim made on federal habeas review is
premised on Brady material that has surfaced for the first time
during federal proceedings."); see also Winston v. Pearson,
683 F.3d 489 (4th Cir. 2012). Rather, we review the district
court’s "legal conclusions de novo and findings of fact for
clear error." Monroe, 323 F.3d at 299.
1.
As previously explained, to succeed on his Brady claim,
Wolfe is first required to show that the Newsome report is
"favorable to [him], either because it is exculpatory, or
because it is impeaching." See Banks v. Dretke, 540 U.S. 668,
691 (2004) (internal quotation marks omitted). The Newsome
report is indubitably impeaching, in that it establishes a
motive not only for Barber to implicate someone else, but to
point the finger specifically at Wolfe. Indeed, it cannot be
trivialized that — as Detective Newsome’s own report dem-
onstrates — Newsome fed Barber the crux of his testimony,
i.e., that he was hired by Wolfe to murder Petrole. Put simply,
the Newsome report is crucial, impeaching evidence that was
"unquestionably subject to disclosure under Brady." See
Spicer v. Roxbury Corr. Inst., 194 F.3d 547, 556 (4th Cir.
1999).
2.
Wolfe next must establish that the Newsome report was
"suppressed by the State, either willfully or inadvertently."
See Banks, 540 U.S. at 691 (internal quotation marks omit-
ted). The Commonwealth did not contest the suppression
issue in the district court proceedings, and does not do so in
this appeal. Because the Commonwealth concedes that it
24 WOLFE v. CLARKE
withheld the Newsome report, and because the willfulness or
inadvertence of its transgression is inconsequential to our
Brady analysis, we could say no more on the issue. Neverthe-
less, we feel compelled to acknowledge that the Common-
wealth’s suppression of the Newsome report, as well as other
apparent Brady materials, was entirely intentional.
During Wolfe’s evidentiary hearing in the district court, the
Commonwealth’s Attorney explained that his office does not
have an "open-file policy," providing criminal defense coun-
sel access to entire case files. See J.A. 3690. Asked to elabo-
rate, he 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 fabri-
cate a defense around what is provided." Id. Additionally, the
Assistant Commonwealth’s Attorney admitted that he does
not produce evidence to a criminal defendant unless he first
deems it to be "material[ ]" and "credib[le]." Id. at 3782. The
district court rightly lambasted that conduct in its Brady
Order:
In effect, Ebert admits here that his contempt of
defendants who "fabricate a defense" guides his per-
spective on disclosing information. This is particu-
larly troubling in the case at bar where the record is
replete with statements from Ebert and Conway
regarding the scrutiny and credibility determinations
that they made (as opposed to the jury) regarding the
relevance of any potential exculpatory evidence.
Essentially, in an effort to ensure that no defense
would be "fabricated," Ebert and Conway’s actions
served to deprive Wolfe of any substantive defense
in a case where his life would rest on the jury’s ver-
dict. The Court finds these actions not only unconsti-
tutional in regards to due process, but abhorrent to
the judicial process.
Brady Order 43 n.24; see also Muhammad v. Kelly, 575 F.3d
359, 370 (4th Cir. 2009) (refusing to condone the suppression
WOLFE v. CLARKE 25
of evidence by the Prince William County prosecutors, and
advising them to "err on the side of disclosure, especially
when a defendant is facing the specter of execution"). We sin-
cerely hope that the Commonwealth’s Attorney and his assis-
tants have finally taken heed of those rebukes.
3.
Of course, Wolfe is yet ineligible for § 2254 relief on his
Brady claim unless he makes a third showing — that "preju-
dice . . . ensued" from the Commonwealth’s suppression of
the Newsome report. See Banks, 540 U.S. at 691 (internal
quotation marks omitted). The prejudice inquiry requires us to
determine if the Newsome report is "material" to Wolfe’s
guilt, i.e., whether "there is a reasonable probability that, had
the [Newsome report] been disclosed, the result of the [trial]
would have been different." See Cone v. Bell, 556 U.S. 449,
469-70 (2009). Importantly, a reasonable probability does not
mean that Wolfe "would more likely than not have received
a different verdict with the [Newsome report]," only that the
likelihood of a different result is great enough to "under-
mine[ ] confidence in the outcome of the trial." See Kyles v.
Whitley, 514 U.S. 419, 434 (1995) (internal quotation marks
omitted).
The Commonwealth principally contends that the New-
some report and other Barber impeachment evidence were
immaterial, because even without Barber’s testimony that
Wolfe hired him to murder Petrole, there was overwhelming
trial evidence of Wolfe’s guilt. Concomitantly, the Common-
wealth asserts that the district court ignored important pieces
of non-Barber evidence, and thus improperly failed to weigh
them in the Brady Order materiality analysis. The Common-
wealth’s argument is belied by the Brady Order, which care-
fully outlined the trial evidence and came to the inevitable
conclusion that "Owen Barber’s testimony was the only evi-
dence that the Prosecution presented to prove that [Wolfe]
hired Barber to kill Petrole." Brady Order 41. Upon our own
26 WOLFE v. CLARKE
review of the trial record in the Wolfe I appeal, we also
grasped that "Barber was the prosecution’s key witness in
Wolfe’s capital trial and the only witness to provide any direct
evidence regarding the ‘for hire’ element of the murder
offense and the involvement of Wolfe therein." Wolfe I, 565
F.3d at 144. And, the Commonwealth itself conceded at Bar-
ber’s sentencing hearing on his non-capital murder conviction
— where he received a sentence of just sixty years in prison,
with twenty-two years suspended — that "but for [Barber’s]
testimony Mr. Wolf[e] probably would not have been prose-
cuted." J.A. 5144.
In these circumstances, where "the jury had to believe that
Barber was credible and that his version of events was in fact
truthful and accurate in order to support [Wolfe’s] convic-
tion," Brady Order 41, the materiality of the Newsome report
is manifest. See Smith v. Cain, 132 S. Ct. 627, 630 (2012)
(holding that, where an eyewitness’s "testimony was the only
evidence linking [the defendant] to the crime," the eyewit-
ness’s undisclosed prior inconsistent statements "were plainly
material"); Harris v. Lafler, 553 F.3d 1028, 1034 (6th Cir.
2009) ("Considerable authority from the Supreme Court and
our court indicates that a defendant suffers prejudice from the
withholding of favorable impeachment evidence when the
prosecution’s case hinges on the testimony of one witness.");
Monroe, 323 F.3d at 315-16 (explaining that, because a wit-
ness’s testimony was "crucial" to proving premeditation, there
was "a reasonable probability that [the defendant] would not
have been convicted of first-degree murder" if evidence tend-
ing to impeach the witness had been properly disclosed).
Wolfe therefore satisfies the third and final element of his
Brady claim.8
8
We are not convinced otherwise by the Commonwealth’s attempt to
portray the Newsome report as immaterial because "the jury knew the far
more impeaching fact that Barber had . . . avoided the death penalty in
return for his testimony." See Br. of Appellant 22. Evidence that Barber
got a deal for implicating Wolfe is hardly "more impeaching" than the
WOLFE v. CLARKE 27
D.
Having confirmed that Wolfe is entitled to 28 U.S.C.
§ 2254 relief, the only remaining issue before us is whether
the district court properly vacated all three of Wolfe’s convic-
tions, including his conviction for conspiring to distribute
marijuana, for which he received the statutory maximum sen-
tence of thirty years. See Relief Order 1 (deeming full vacatur
appropriate because the Commonwealth’s "Brady and Giglio
violations . . . permeated the fairness of [Wolfe’s] trial on all
charges"). In contesting the court’s vacatur decision, the
Commonwealth criticizes the court’s reliance on Federal Rule
of Civil Procedure 59(e) to amend the Judgment. Unfortu-
nately for the Commonwealth, the court acted well within its
discretion. See Robinson v. Wix Filtration Corp. LLC, 599
F.3d 403, 407 (4th Cir. 2010) (explaining that "a court may
alter or amend the judgment if the movant shows[, inter alia,]
that there has been a clear error of law or a manifest injus-
tice," subject to review "under the deferential abuse of discre-
tion standard").
The Commonwealth further asserts that the district court
improperly vacated Wolfe’s drug conspiracy conviction
because it was unaffected by the suppression of any Brady
material. Significantly, it is the Commonwealth’s position that
the drug conviction and attendant thirty-year sentence were
secured on the basis of Wolfe’s trial testimony, wherein he
"not only admitted to drug dealing, but bragged about dealing
on a massive scale." See Br. of Appellant 57 (contending that,
in light of Wolfe’s self-incriminating testimony, "[t]here was
Newsome report evidence that Detective Newsome specified Wolfe as the
deal-garnering perpetrator. Moreover, contrary to the Commonwealth’s
suggestion that Barber denied being influenced by prosecutors and police
to name Wolfe, see id., Barber testified in the district court’s evidentiary
hearing that "they said they wanted the truth, but at the same time they
said that this is what you have got to say or you are getting the chair," J.A.
3752.
28 WOLFE v. CLARKE
no likelihood, much less a reasonable one, that Wolfe would
not have been convicted of conspiracy to distribute marijuana
had the allegedly withheld evidence about Wolfe’s part in the
murder been disclosed"). The Commonwealth emphasizes
that "Wolfe’s unrepentant braggadocio was the focus of the
Commonwealth’s closing arguments" and "justified the Com-
monwealth’s call for the maximum sentence." Id. Indeed,
although the Commonwealth refers in its opening brief to
"overwhelming evidence of a far-reaching drug conspiracy,"
id. at 58, the only evidence discussed therein with any speci-
ficity is Wolfe’s own damning testimony.
In response, Wolfe maintains that, in the absence of the
Newsome report and other wrongfully suppressed Barber
impeachment evidence, "his only option was to take the stand
and stake his word against Barber’s — an unattractive option,
for as the Commonwealth acknowledges[,] it required Wolfe
to admit to committing a felony and risk thirty years’ impris-
onment." Br. of Appellee 72. According to Wolfe,
[his] lawyer would have had little reason to put
[Wolfe] on the stand if he could have put forth
another, more credible defense theory. Instead,
Wolfe’s admission of guilt became his defense: In
closing, Wolfe’s counsel called the jury’s attention
to Wolfe’s admission of guilt on the drug charges to
contrast it with his protestations of innocence of
murder. The Commonwealth’s drug prosecution thus
benefited enormously from its systematic suppres-
sion of Brady evidence.
Id. at 72-73 (citations, alteration, and internal quotation marks
omitted).
We are entirely convinced by Wolfe’s contentions. Because
the Commonwealth concedes that Wolfe’s trial testimony was
central to his drug conspiracy conviction and sentence, and
because the Commonwealth cannot prove that Wolfe would
WOLFE v. CLARKE 29
have testified if the Newsome report had not been suppressed,
we agree with the district court that Wolfe is entitled to vaca-
tur of all three of his state convictions. Cf. United States v.
Pelullo, 105 F.3d 117, 125 (3d Cir. 1997) (concluding that,
where the government committed Brady violations that alleg-
edly adduced the defendant’s trial testimony, that testimony
could not be used against the defendant at a subsequent trial
unless the government could prove that "the defendant would
have testified anyway even if there had been no constitutional
violation" (citing Harrison v. United States, 392 U.S. 219,
225 (1968) ("Having ‘released the spring’ by using the peti-
tioner’s unlawfully obtained confessions against him, the
Government must show that its illegal action did not induce
his testimony."))). Of course, as the district court’s Judgment
reflects, the Commonwealth is free to retry Wolfe on the mur-
der, firearm, and drug conspiracy charges.9
9
We are unwilling to mine the trial record, as our distinguished col-
league urges, to identify evidence, aside from Wolfe’s testimony, that
might sustain his drug conspiracy conviction. The Commonwealth itself
has abstained from any such endeavor. See post at 30 (acknowledging that
"the Commonwealth did not, in its argument, greatly aid in our analysis").
Moreover, whatever evidence exists is inevitably tainted by the prosecu-
torial misconduct in this case. By depriving Wolfe of the Newsome report,
for example, the Commonwealth not only induced Wolfe to take the wit-
ness stand to gainsay Barber’s trial story, but compelled the defense to
abandon its challenge to the alleged drug conspiracy in order to defend
against the death penalty offense of murder-for-hire. With the Newsome
report in hand, Wolfe could readily have impeached Barber — as well as,
by extension, the evidence corroborating Barber’s murder-for-hire story
and implicating Wolfe in drug dealing — with compelling evidence that
the murder-for-hire story had been planted with Barber by Detective New-
some. As such, the conduct of the prosecution in concealing the Newsome
report undermines confidence in the fairness and propriety of the entire
trial, including the drug conspiracy conviction, rendering that misconduct
a sufficient independent basis for vacating each of Wolfe’s convictions
and for ordering his unconditional release or retrial.
30 WOLFE v. CLARKE
III.
Pursuant to the foregoing, we affirm the Judgment of the
district court.
AFFIRMED
DUNCAN, Circuit Judge, dissenting in part:
I write with regard and appreciation for the majority’s dis-
position of Wolfe’s murder-for-hire and firearm convictions.
I must, however, respectfully and narrowly dissent from its
granting of habeas relief on the drug conspiracy conviction.
The record, and, significantly, the majority does not directly
refute it, contains ample evidence from sources other than
Wolfe’s testimony to support the drug conviction. The district
court’s Relief Order does not address the merits of the drug
conspiracy issue at all, and the case on which it purports to
rely is inapposite as to that charge. See Wolfe v. Clarke, No.
1:05-cv-00432 (E.D. Va. Aug. 30, 2011) (citing Monroe v.
Angelone, 323 F.3d 286, 293 n.5 (4th Cir. 2003)).*
I fully recognize and appreciate the focus of the district
court and the majority on the more serious charges. And,
indeed, the Commonwealth did not, in its argument, greatly
aid our analysis. The Commonwealth’s behavior here is far
from exemplary. But the Newsome report cannot carry the
weight the majority would assign to it. Because of the amount
of evidence as to the drug conspiracy untainted by the Brady
*In Monroe, we granted habeas relief to a petitioner charged, as Wolfe
is here, with murder and the use of a firearm in the commission of a felony
because we agreed with the district court’s determination that the Com-
monwealth of Virginia had committed Brady violations. Unlike in Mon-
roe, however, Wolfe is also charged with a drug conspiracy, and nothing
in Monroe suggests habeas relief is also appropriate for a free-standing
charge supported by considerable evidence free of any Constitutional
infirmity.
WOLFE v. CLARKE 31
violation, I would at the very least remand that conviction to
the district court for its specific consideration.