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).
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.
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.
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 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.
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.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").
Our mandate in Wolfe II issued on September 7, 2012. That same day, Wolfe was transferred from the Sussex State Prison to 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.
Not long thereafter, the Commonwealth's Attorney and his assistant recused themselves from Wolfe's retrial and requested 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:
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 selfincrimination. 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.
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, 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.
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.
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 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.
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.
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).
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 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.
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.
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 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,
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.
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
Order Enforcing Judgment 11.
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 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").
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.
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.
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 rearresting and retrying a successful habeas petitioner. As the court acknowledged,
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.
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.
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 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).
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 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 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.
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, 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.
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 reprosecution 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 23 (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.
Accordingly, and for the reasons set forth herein, I dissent as to Part III.B.
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.
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).
As the majority notes, see ante at 22, the extraordinary circumstances exception has traditionally surfaced in cases in which a constitutional violation cannot be remedied by a new 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) (reprosecution 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.1 (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 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, 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.
The district court's remedy was set forth in the Order Enforcing Judgment as follows:
J.A. 534-35. The district court explained,
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.
First, I am compelled to set forth a sampling (though certainly not all) of the previous instances of misconduct perpetrated by the Commonwealth:
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 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,
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.
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.
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:
The very next day, on September 12, 2012, Conway and Ebert filed an ex parte motion to recuse themselves and were replaced 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.
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. Ante at 22. Woe is the state of justice in the Commonwealth if this behavior is not extremely rare.
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 21. 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,
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 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.
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 2, 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).
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 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.
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.
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.
