RAYMOND A. JACKSON, District Judge.
This matter is before the Court on Petitioner Justin Michael Wolfe's ("Wolfe" or "Petitioner") petition for habeas relief under
On January 7, 2002, a Prince William County jury convicted Petitioner of capital murder (murder-for-hire), use of a firearm in the commission of a felony, and conspiracy to distribute marijuana. As a result of his convictions, Petitioner was sentenced to death on the murder-for-hire charge and prison terms of thirty years and three years, respectively, on the conspiracy and firearm charges. Petitioner filed an appeal in the Supreme Court of Virginia on the capital murder conviction
On November 7, 2005, Petitioner filed his federal habeas petition under authority of 28 U.S.C. § 2254 ("§ 2254 claim"). On August 7, 2007, the Magistrate Judge issued a Report and Recommendation declining to conduct an evidentiary hearing and recommending that his petition be dismissed. On February 11, 2008, this Court adopted the Report and Recommendation and dismissed Wolfe's petition. Petitioner then filed a motion to alter or amend the judgment which this Court denied on May 20, 2008. On June 18, 2008, Petitioner filed his notice of appeal. On September 12, 2008, the United States Court of Appeals for the Fourth Circuit granted Petitioner a certificate of appealability on his extraneous influence, venireman, Brady, and Giglio claims. On May 11, 2009, the United States Court of Appeals for the Fourth Circuit affirmed the district court's rulings on the extraneous influence claim and the venireman-counsel subpart, and vacated this Court's ruling on the Brady, Giglio, and venireman-court subpart claims. Wolfe v. Johnson, 565 F.3d 140 (4th Cir.2009). Additionally, the United States Court of Appeals for the Fourth Circuit remanded the case for a determination under Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) and to decide whether an evidentiary hearing was appropriate. Id. On February 4, 2010, this Court issued a Memorandum Opinion and Order finding that Petitioner had satisfied the Schlup v. Delo standard to pursue
On April 22, 2011, Petitioner also filed a Motion for Leave to Amend Petition for Habeas Corpus to include a new legal argument regarding key government witness, Owen Barber's, false testimony at trial. The Director filed a response in opposition to the motion on May 4, 2011; and Petitioner filed a reply in support on May 5, 2011. Having been fully briefed, these matters are now ripe for judicial determination.
Title 28 U.S.C. § 2254 states that "the Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States."
The Supreme Court has held that both the withholding of exculpatory evidence from a criminal defendant by a prosecutor and the knowing use of false testimony violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution. See Brady v. Maryland, 373 U.S. 83, 86, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Giglio v. United States, 405 U.S. 150, 153-55, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). "[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87, 83 S.Ct. 1194. "Evidence is `exculpatory' and `favorable' if it `may make the difference between conviction and acquittal' had it been `disclosed and used effectively.'" United States v. Wilson, 624 F.3d 640, 661 (4th Cir.2010) (citing United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). For a court to find a Brady violation, it must determine that the evidence was 1) favorable to the accused, 2) suppressed by the prosecution (either willfully or inadvertently), and 3) material. Banks v. Dretke, 540 U.S. 668, 691, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004). Evidence that is favorable to the accused includes both exculpatory (whether requested by defendant or not) and impeachment evidence. Id.; see United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (holding that the Brady rule includes impeachment evidence).
In analyzing materiality, courts must determine whether there is a "reasonable probability" that the result of the proceeding would have been different if the evidence had been disclosed. Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). This showing "does not require demonstration by a preponderance that disclosure of the suppressed
Knowing use of false testimony violates due process. Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). This rule applies regardless of whether the false testimony is solicited, or merely allowed to stand uncorrected after it appears. Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). Non-disclosure of evidence affecting credibility also falls within this rule "when the `reliability of a given witness may well be determinative of guilt or innocence.'" Giglio, 405 U.S. at 154, 92 S.Ct. 763 (quoting Napue v. Illinois). As with an alleged Brady violation, a finding of materiality is required to show that "there is any reasonable likelihood that the false testimony could have affected the judgment of the jury" in order for a petitioner to receive habeas relief. Id.; see Napue, 360 U.S. at 271, 79 S.Ct. 1173. Courts have similarly concluded that petitioners may receive habeas relief based on the use of false testimony when a petitioner shows that government officers knew about the falsities in the testimony at the time of the trial; and, when there is evidence, such as a credible recantation, indicating that the testimony was in fact false. Stockton v. Virginia, 852 F.2d 740, 749 (4th Cir.1988).
Capital defendants have a right to a fair and impartial jury under the Sixth and Fourteenth Amendments. Gray v. Mississippi, 481 U.S. 648, 658, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987). In ensuring this right, courts have held that a death sentence cannot stand when a trial court "excludes from a capital jury a prospective juror who in fact is qualified to serve." Id. at 650-651, 107 S.Ct. 2045. This rule includes veniremen who are dismissed for cause "simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction." Witherspoon v. Illinois, 391 U.S. 510, 522, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); see also Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) (holding that a venireman may be excused for caused based on his or her views on capital punishment if such views would "prevent or substantially
1. The prosecutors choreographed and coordinated witness testimony through a series of joint meetings with Owen Barber and J.R. Martin, Owen Barber and Jennifer Pascquierllo and Jason Coleman and Chad Hough.
2. At the time of the trial, the Commonwealth's Attorney's Office had a policy of putting exculpatory (i.e., Brady) disclosures in writing. Tr. 75-76.
3. The prosecutors did not provide any reference to or information regarding the joint meetings with witnesses in their written Brady disclosure. See Tr. 702-03; see also Resp. Ex. 1.
4. Sergeant Pass, lead officer of the drug investigation relating to Wolfe and Petrole, submitted reports outlining the investigation of Petrole and others' drug activities to both the prosecutors and homicide investigators. Tr. 384, 386. Conway did not review all of the reports dealing with the drug investigation and he did not provide them to Petitioner. Tr. 191-192.
6. The Prosecution failed to disclose Detective Newsome's report outlining his initial interview with Owen Barber on April 14, 2001, during which he implicated Wolfe as being involved in the murder before Barber mentioned his involvement. Pet'r's Ex. 70 at 30-31 (report); Resp't Ex. 1 (Answer); Tr. 137.
7. On November 2, 2010, while under oath before this Court, Owen Barber made a credible recantation of his trial testimony and indicated that Petitioner Justin Michael Wolfe was not involved in the murder of Daniel Petrole. Tr. 117.
8. The Prosecution failed to disclose the tapes of multiple recorded meetings with key witnesses or the existence of such recordings to the Petitioner during trial. See Tr. 192; see also Tr. 554-55; Pet'r's Ex, 24.
9. Prosecutors withheld evidence of Barber's personal dealings with the victim, including a claim that Barber owed Petrole
10. The Prosecution withheld information indicating that Petrole was rumored to be an informant. Pet'r's Ex. 57; Tr. 687 (stating that Conway was aware of the rumor but failed to share the information because he did not have anything to substantiate it).
11. The Prosecution failed to disclose evidence that Mr. Petrole (the victim's father) was aware of the victim's drug activities and allowed Mr. Petrole's testimony to the contrary to remain uncorrected.
12. The Prosecution failed to disclose that their witness, Regina Zeuner, was a confidential informant. Tr. 765:13-24.
13. The Prosecution withheld evidence of prior inconsistent statements made by its own witnesses. Pet'r's Ex. 27 at Police-1175 (revealing Chad Hough's statement that he did not know who made the "do whatever you have to do" comment about robbing a drug dealer).
14. The Prosecution did not disclose its off the record agreement not to prosecute witness J.R. Martin for his participation in the murder based on his cooperation with the Commonwealth. Tr. 414.
Petitioner Justin Michael Wolfe seeks relief under 28 U.S.C. § 2254. In doing so, Petitioner asserts that the Commonwealth of Virginia ("Commonwealth") violated his due process rights under Brady v. Maryland and Giglio v. United States. Specifically, Petitioner asserts, inter alia, that the Commonwealth withheld potential impeachment evidence, evidence related to alternate theories of the crime, and other government reports and notes containing exculpatory information from him during the state court criminal trial proceedings. Petitioner also alleges that the Commonwealth knowingly provided false testimony or allowed false testimony to go uncorrected in violation of Giglio and Napue v. Illinois. Petitioner also asserts that the trial court violated his rights under the Sixth and Fourteenth Amendments by erroneously dismissing a qualified juror for cause. The Court will consider each of these assertions in turn.
In order to assess the implications of Petitioner's assertions and the Court's factual findings, the Court must first consider the Prosecution's theory of the case as presented at trial. The evidence presented at trial indicates that Petitioner, Justin Michael Wolfe, was a drug dealer in Northern Virginia. Petitioner dealt mostly with a high-grade marijuana, commonly known as "chronic," which the victim, Daniel Petrole supplied to him. Petitioner was close friends with another local drug dealer named Owen Barber. The Prosecution presented evidence that Petitioner arranged for Barber to rob/kill victim Petrole, who was Petitioner's drug supplier. More specifically, the Prosecution introduced testimony from Barber stating that he spoke with Wolfe about murdering his
At trial, the Prosecution presented evidence, in the form of witness testimony, that Barber acted under a murder-for-hire scheme with Petitioner. J.A. 1687. Specifically, Barber testified that he agreed to kill Petrole for Wolfe in exchange for a half-pound of chronic marijuana, four pounds of lower grade marijuana ("schwag"), forgiveness of a $3,000 debt and $10,000 in cash. J.A. 1645. In an effort to link Petitioner to Barber, the Prosecution presented phone records from the Petitioner and Barber to show that they were in contact around the time of the murder. Barber's testimony provided the context for these phone calls as he described calling Wolfe while he was following Petrole to keep him abreast of the status of the pursuit. J.A. 1651-53. Petitioner presented a contrasting version of the events explaining that the phone calls and any other conversations were either in the normal context of their friendship (e.g., meeting up socially) or related to a drug transaction. See J.A. 2094-97. Motive then emerged as the critical factor on which the Prosecution based its theory of the case. The Prosecution argued that Barber would have no reason to kill Petrole, other than his agreement with Wolfe. The Prosecution further argued that Wolfe had motive to kill Petrole because: 1) he owed Petrole $60,000 and did not like paying his debts (J.A. 2175, 1463-64); 2) he wanted to make more money by decreasing the amount of chronic dealers (J.A. 577); and 3) Petrole was upset with him (Wolfe) for not paying down his debt (J.A. 2178).
The Commonwealth established their theory of the case through the testimony of several witnesses, primarily Owen Barber, Chad Hough, Jennifer Pascquierllo, Ian Wiffen and J.R. Martin. J.A. 2247 (identifying these witnesses as the individuals whose testimonies cast the most doubt on Wolfe's testimony that he had no involvement in the murder). Owen Barber provided the only evidence directly connecting Wolfe to the murder.
The Prosecution also used circumstantial evidence such as phone records, private conversations between Barber and Wolfe, and facts indicating that Wolfe gave individuals such as J.R. Martin (person whose car was used for the murder) and Jennifer Pascquierllo (Barber's girlfriend) money during the aftermath of the murder to string together its theory of the case. While the Petitioner admitted many of these circumstantial facts in his own trial testimony (e.g., admitted to speaking with Barber on the phone throughout the night of the murder, admitted to being in debt to Danny Petrole, admitted to giving Pascquierllo money and posting her bond, admitted to giving Martin a discount on marijuana after he indicated that he knew what Wolfe had done), he has maintained his testimony that all of these acts occurred in the context of his drug conspiracy and not in relation to a murder-for-hire scheme. After hearing all of the evidence, a jury found Wolfe guilty on all three charges and recommended a sentence of death for the capital murder conviction.
Most of the Prosecution's direct evidence came from the testimony of Owen Barber. J.A. 2530. During the course of Barber's direct examination, the Prosecution established the development and execution of the murder-for-hire agreement between Barber and Wolfe and its claim that but for Wolfe's request, Barber would not have killed Petrole. J.A. 1601-02. Notably, Barber testified that he did not know the victim,
The post-conviction evidentiary hearing uncovered the fact that the Prosecution withheld exculpatory evidence from the Petitioner that could have assisted the trial counsel in impeaching Barber's testimony. First, this Court finds that the Commonwealth withheld information regarding the relationship between Barber and Petrole in violation of Brady. As indicated in the factual findings, Prosecutors were in possession of various forms of evidence indicating that Barber had a personal relationship with the victim prior to his death. This evidence included statements from a confidential informant that Barber owed Petrole money, that Petrole
In finding that the Commonwealth failed to disclose evidence indicating that Barber had a relationship with Petrole, the Court considers the three factor Brady analysis. See Banks v. Dretke, 540 U.S. 668, 691, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004). In this case, the evidence was favorable to Wolfe in that it would have impeached the key witness' testimony and possibly established an alternative motive for the crime. It was withheld from the Petitioner during trial as established by the fact that it was only submitted to Wolfe in the discovery ordered by this Court in its habeas inquiry as well testimony at the evidentiary hearing. Finally, as discussed in more detail below, the evidence was material because when combined with the circumstantial nature of the case and the importance of weighing Barber's credibility as the primary source of direct evidence, it reasonably undermines confidence in the verdict by contradicting a central aspect of the Prosecution's theory of the case (i.e., the idea that Barber did not know Petrole and would have no other reason to kill him). See Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).
Respondent ("Director") characterizes the confidential informant's statements (as contained in Detective Walburn's notes) as rumor and speculation and asserts that the Prosecution's failure to disclose this evidence is not material because there was no evidence to corroborate the statements. Director's Proposed Findings of Fact and Conclusions of Law at 19-21. In United States v. Moussaoui, the United States Court of Appeals for the Fourth Circuit addressed a similar assertion, albeit outside of the Brady context. In Moussaoui, the court considered whether a defendant asserting his Sixth Amendment right to depose enemy combatant witnesses could rely on obviously inadmissible statements to show that the testimony of certain witnesses was material. The Government asserted that petitioners could rely only on admissible evidence to establish the materiality of witness testimony. United States v. Moussaoui, 382 F.3d 453, 472 (4th Cir.2004) (emphasis added). The United States Court of Appeals for the Fourth Circuit agreed that petitioners should not be allowed to rely on obviously inadmissible statements (e.g., statements of belief rather than personal knowledge); however, it expressly stated that "many rulings on admissibility ... can only be made in the context of a trial" and therefore cannot be meaningfully assessed outside of that context. Id. (also noting that statements that may not have been admissible during the guilt phase, may nonetheless be admissible during the penalty phase) (emphasis added). The court cited the Supreme Court's decision in Wood v. Bartholomew which held that inadmissible materials that are not likely to lead to the discovery of admissible exculpatory evidence are not subject to disclosure under Brady. Id.; Wood v. Bartholomew, 516 U.S. 1, 6, 116 S.Ct. 7, 133 L.Ed.2d 1 (1995).
This Court emphasizes the Supreme Court's consideration of whether certain materials are likely to lead to the discovery of admissible exculpatory evidence in making its materiality findings. In discussing
However, even if the Court assumes that the confidential informant's statements would not be admissible at trial, the Commonwealth's suppression of both Jesse James' and Randall Ketcham's statements undoubtably constitute a Brady violation. The Director again asserts that the Prosecution's failure to disclose the James and Ketcham statements is not material because the statements were speculative and lacked corroborating evidence. Director's Proposed Findings of Fact and Conclusions of Law at 19-21. However, both James and Ketcham made statements to the police based on their own experiences and knowledge. The Court also notes that the Prosecution's actions stifled any efforts Petitioner could have made to corroborate the statements. Furthermore, the Court finds no legal authority that indicates exculpatory statements must be corroborated before they can be considered as Brady evidence. To the contrary, the Court finds case law that indicates exculpatory evidence, particularly that which would be admissible at trial, should be provided to the defendant under Brady. See Wood, 516 U.S. at 6, 116 S.Ct. 7. Had the Commonwealth not suppressed this evidence, Petitioner would have been able to impeach the Government's key witness by calling both individuals as witnesses to directly refute Barber's testimony. The jury would have been allowed to weigh an admitted murderer's testimony (corroborated only by Martin, who provided him with a car on the night of the murder) against two other individuals that were wholly unrelated to the murder. The Commonwealth's suppression, therefore, undermines confidence in the verdict because it allowed Barber's testimony to stand unrefuted as opposed to providing not one, but two additional witnesses to challenge Barber's credibility. See Monroe v. Angelone, 323 F.3d 286, 315 (4th Cir.2003) ("A live witness directly contradicting [key witness'] testimony ... would have given the jury strong reason to doubt [key witness'] veracity. Significantly, the jury, had it been shown that a major prosecution witness was testifying falsely, is likely to have been more sympathetic to [defendant's] entire case"). Furthermore, if provided during trial, James and Ketcham's testimonies would have undermined the Prosecution's theory of the case because they would have challenged the notion that Barber did not have a personal relationship with Petrole and therefore had no other reason to kill him. See
Prosecutors also failed to disclose a report from Detective Newsome which contained Newsome's initial interview with Barber. Newsome told Barber the police knew that Wolfe was involved in killing Petrole. He also told Barber that implicating the "higher up" (i.e., Wolfe) could mean the difference between execution or life in prison. Pet'r's Ex. 70 at 30-31. 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 imprisonment in exchange for implicating someone else, well before Barber began cooperating with the Commonwealth or implicating Wolfe in the murder. Prosecutors do not dispute the fact that the report was not provided to the Petitioner. Furthermore, the report is material because it reflects that Barber had a motive to misrepresent the facts regarding Petrole's death.
The Prosecution also withheld evidence indicating that Barber told his roommate, Jason Coleman, that he acted alone on the night of Petrole's murder. During the evidentiary hearing, Coleman testified that he had a conversation with Barber after the murder where Barber admitted to him that he murdered Petrole and acted alone. See J.A. 456-61 (recounting the conversation with Barber and Coleman's disclosures to the prosecutors and investigators regarding what Barber had told him). This evidence is favorable to Wolfe because it is a prior statement from the shooter indicating that he [the shooter] did not act in concert with another person, let alone Wolfe. It is material to the case because it is important impeachment evidence. In fact, during the criminal trial, Wolfe's counsel cross-examined Barber regarding his conversation with Coleman on the Sunday after police first questioned him. See J.A. 1701-02. In an attempt to uncover more information about Barber's actions and admissions after the murder, Wolfe's trial counsel asked Barber, "what did you say to him [Coleman]" to which Barber responded "I can't recall." J.A. 1703-04. Counsel then followed up with the question "you're about to take off running from the police and you don't remember what you said" and Barber responded, "no." J.A. 1704. Had the Petitioner been in possession of this information, he would have been able to impeach Barber on his allegations regarding Wolfe's involvement or seek to refresh his recollection, based on a conversation that he admitted having with Coleman.
Although this evidence is both favorable and material, the Director disputes the allegation that the Commonwealth withheld it. Coleman testified that he told Ebert that Wolfe was not involved in the murder during a meeting held the week after the murder. Tr. 463. The Director asserts that Coleman never told prosecutors or police that Barber acted alone. Director's Proposed Findings of Fact and Conclusions of Law at 7. In support of this notion, the Commonwealth notes that both Ebert, Conway and Det. Walburn's testimonies suggest that Coleman did not make the statement. Tr. 790 (containing
During the evidentiary hearing, Coleman testified that he told Ebert that Wolfe was not involved in the murder and he testified that he believed that Sgt. Pass was also in the room.
In addition to the suppressed evidence relating to Owen Barber, the Prosecution also withheld exculpatory evidence relating to J.R. Martin, a prosecution corroborating witness. Martin was a close friend of Barber and provided him with a car to use on the night of the murder. After Barber testified, the Prosecution called Martin to corroborate Barber's testimony. Having had his testimony coordinated in a joint meeting with prosecutors, Martin provided testimony very similar to Barber's testimony. Martin admitted to being friends with and getting drugs from both Barber and Wolfe. J.A. 1730, 1733-34. He corroborated Barber's testimony that Barber had private conversations with Wolfe before the murder (at Back Yard) and after the murder (at Bridges), although he could only speculate about the content of the conversations. J.A. 1740-42, 1759. While corroborating other facts relating to Barber's actions, Martin also testified that Wolfe told him not to say anything [about what happened] and that he [Wolfe] commented that he was about to make a lot of money. J.A. 1760.
Wolfe's counsel was unable to effectively impeach Martin's testimony because the
The Director alleges that this information was never withheld from the Petitioner during trial because no such agreement existed. Director's Proposed Findings of Fact and Conclusions of Law at 4 (citing testimony from Martin denying that an agreement existed (Tr. 633-35, 655-56) as well as similar testimony from the Prosecutors (Tr. 286, 708, 820)). The hearing testimony confirms that the Prosecution never executed a written agreement not to prosecute Martin. However, the Court finds Mr. Horan's testimony regarding an understanding not to prosecute that emerged months after the investigation began and before Martin testified at trial to be credible and persuasive; this is particularly so, considering Horan's willingness to provide attorney client privileged information to the police prior to the trial.
This evidence qualifies as impeachment evidence worthy of Brady disclosure because it reveals a potential source of bias of the witness in favor of the Commonwealth's case (i.e., if the witness would not be prosecuted for his crimes, he had more incentive to cooperate with the Government and provide testimony consistent with their theory of the crime). See United States v. Shelton, 200 Fed.Appx. 219, 221 (4th Cir.2006) (stating that a defendant has the right to cross-examine witnesses about potential sources of bias under the Confrontation Clause); see also United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (indicating that evidence used to impeach a Government witness qualifies as favorable for the purpose of Brady inquiry).
In light of the importance of Martin's testimony as corroboration for Barber's account of the events and given the Petitioner's inability to fully cross-examine Martin with all of the impeachment evidence available, this Court finds that the cumulative effect of the Prosecution's suppression of the existence of the informal agreement, combined with the circumstantial nature of the case and the impact of other withheld impeachment evidence, undermines confidence in the verdict. Having considered all of these factors, the Court finds that the Prosecutors unlawfully withheld impeachment evidence from the Petitioner in violation of Brady.
Petitioner asserts that the Prosecution also withheld impeachment evidence regarding Chad Hough in violation of Brady. During Petitioner's trial, the Prosecution used Hough's testimony to corroborate Barber's account of the murder for hire plot. Hough testified that at various times, he discussed the idea of robbing drug dealers with Jason Coleman and Petitioner Wolfe. More specifically, Hough testified about one particular conversation with Coleman and Wolfe where Wolfe advised him to "do what you have to do" if things went wrong during the course of a robbery. J.A. 1395. On cross-examination, Petitioner's trial counsel attempted to impeach Hough's testimony with the limited information available to him. He asked about Hough's steroid use with Jason Coleman (J.A. 1408), he inquired about whether Hough took the robbery conversations
Discovery during this habeas action revealed a prior conversation with the Commonwealth during which Hough made inconsistent statements regarding his exchange with Wolfe and Coleman. During a December 5, 2001 taped interview in the Commonwealth Attorney's office (in the presence of Conway, his attorney and Detective Walburn), Hough stated that he remembered the comment "you [have] to do whatever you [have] to do" and explicitly stated that he did not recall exactly who made the comment. Pet'r's Ex. 27 at Police 1175. However, the Prosecution did not turn over the recording of the interview. See Tr. 192, 554, 555. They also failed to disclose this inconsistent statement in the written Brady disclosure which summarized information from each witness the Commonwealth interviewed. Resp. Ex. 1 at Prosecution 330. Rather, at trial, the Prosecution led Hough's testimony by asking what the Defendant told him to do and then allowed Hough to attribute the comment to Wolfe despite Assistant Commonwealth Attorney Conway being present in the interview when Hough made the prior inconsistent statement. See J.A. 1395.
This information is favorable to Wolfe because it provides a basis upon which to impeach a corroborating witness' testimony that attributes a potentially damaging statement to the Petitioner. Had Wolfe's counsel known about the prior inconsistent statement, he could have challenged Hough's testimony with his own statements. In a case based primarily on circumstantial evidence, impeaching one of the Commonwealth's key corroborating witnesses would have likely impacted the outcome of the trial. When evaluated for cumulative effect, it provides yet another example of the Prosecution withholding valuable impeachment testimony regarding its five key corroborating witnesses. The Commonwealth's Brady violations constrained the Petitioner's ability to fully cross-examine at least three of the five key witnesses in this case (including Barber who provided the only direct evidence in the case). In light of these facts, considered cumulatively with other evidence in the case, the Court finds that the Prosecution unconstitutionally failed to disclose Hough's prior inconsistent statement in violation of Brady.
Petitioner further alleges that the Commonwealth withheld evidence of alternate theories of the crime. Pet'r's Proposed Findings of Fact and Conclusions of Law at 11. Specifically, Petitioner alleges that the Prosecution withheld the following exculpatory evidence: 1) drug investigation reports revealing conflicts in Petrole's drug enterprise; 2) statements indicating that Petrole was rumored to be an informant; and 3) witness statements indicating that a second car was at the crime scene shortly after the murder. The Court will address each alleged suppression in turn.
First, Petitioner alleges that the Commonwealth suppressed the government reports about the parallel drug investigation accompanying the investigation of Petrole's murder. Specifically, Petitioner asserts that prosecutors suppressed a DEA report by TFO S.M. Straka and Sgt. Pass (Pet'r's Ex. 30), an email indicating that one of Petrole's suppliers accrued charges at a local hotel days before the murder
Despite the fact that Wolfe faced both murder and drug conspiracy charges at trial, Mr. Conway testified he that did not review all of the reports related to the "separate" drug investigation in preparation for Wolfe's criminal trial.
The Court further finds that the drug investigation reports and interviews were not only suppressed but were also favorable to the Petitioner. Each of the documents reveals aspects of Petrole's drug operation that call into question the Prosecution's theory that Wolfe was the person who orchestrated Petrole's murder. In addition to casting doubt on the Prosecution's theory of the case, the suppressed evidence points to other named individuals with motive to kill Petrole. Thus, in the hands of competent defense counsel, the evidence could have been used to either cast reasonable doubt on the Prosecution's theory of the case, establish a defense strategy pointing to other suspects, or impeach witness testimony. For example, the suppressed Drug Enforcement Administration report ("DEA report") summarizes Gunning's description of Petrole's drug operation. It names other drug suppliers, describes Petrole's various trips to purchase drugs, outlines the prices that Petrole charged for his drugs, and specifically discloses intermediaries' commissions for helping Petrole secure his drug supply. Gunning also described a potential conflict in Petrole's drug operation that stemmed from a recent decision to cut one intermediary, Brandon Patterson, out of a deal between Petrole and his major supplier of high-grade marijuana, Bill Hemenway. Pet'r's Ex. 30 at Prosecution 2027, 2029 (stating that Patterson would charge a commission of $500-$600 per pound). In addition to evidence indicating that there was a conflict between Patterson and Petrole, the Government also had information indicating that Patterson (who lived in Washington State) was in the Northern Virginia area just a few days before the murder. Pet'r's Ex. 40 (containing Trish Harman's August 20, 2001 email to Det. Walburn and Sgt. Pass stating that subpoena information of Patterson's bank account indicated that he was in Northern Virginia at the Dulles Hyatt "just days before Petrole's murder"). Petrole's girlfriend, Jennifer Scott, then confirmed that Patterson became aware that he had been cut out of a recent deal. Pet'r's Ex. 54 at Police 899. She also told the police that Petrole had become worried and was concerned that something bad would happen as a result of cutting Patterson out. Id. All of this information is favorable to Wolfe because it shows that there were conflicts in Petrole's drug operation that could have created motive for Petrole's death without Wolfe being involved.
Additionally, the information is material to the case because it undermines the Government's theory that Wolfe was the only person with motive to harm Petrole. Equipped with this information, a competent defense counsel could have impeached witnesses who suggested that Petrole had no enemies; developed a defense strategy that implicated Petrole's other drug associates (e.g., Patterson) in the murder rather than Wolfe; and/or called Gunning to the stand to inquire about the conflicts in the drug operation and then called Jennifer Scott to corroborate Gunning's testimony. The Petitioner also could have called Scott to testify about the fact that Petrole expressed a fear that something bad was going to happen as a result of Patterson being cut out of the deal. Even if Gunning denied his own statements at trial, competent defense counsel could have used the
Second, Petitioner alleges that the Prosecution withheld information indicating that Petrole was rumored to be a government informant. See Pet'r's Ex. 57. In an interview with Sgt. Pass on August 20, 2001, Jesse James indicated that he believed Barber killed Petrole due to a rumor that Petrole was a police informant. Id. This information was memorialized in a narrative information report. When asked about the report during the habeas proceeding, Prosecutors indicated that they were aware of the statement but did not disclose the information because it was a "rumor" and had not been substantiated by other evidence. Tr. 687; see Tr. 59 (Ebert's testimony that he did not recall turning the report over to Petitioner's counsel). This admission, along with the statement's absence from the written Brady disclosure, shows suppression of evidence for the purpose of Brady analysis. Furthermore, the evidence is favorable to Wolfe because it creates yet another potential motive for Petrole's death that does not involve Wolfe.
Despite being favorable, the Director asserts that the Commonwealth had no obligation to disclose the statement or the report because it was merely an uncorroborated rumor. Director's Proposed Findings of Fact and Law at 24-25. In support of this notion, the Director references the Supreme Court's decision in Moore v. Illinois. In Moore, the police failed to disclose a police report indicating the outcome of a fruitless investigation of another potential suspect. In affirming the defendant's conviction, the Supreme Court held that failure to disclose an early lead did not violate Brady where an eyewitness to the killing and witnesses to defendant's presence at the scene of the crime were later discovered, thus exonerating the other suspect. Moore v. Illinois, 408 U.S. 786, 795, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972). Moore is easily distinguishable from the case at bar because there are neither eyewitnesses to Petrole's murder nor witnesses at the scene of the crime to directly contradict the suppressed evidence or render it clearly immaterial in light of other evidence.
The Director also asserts that the Commonwealth's suppression does not violate Brady because James' admission to the police that most of his information was either speculation or from third party sources supports its argument that suppression was acceptable under Brady. See Pet'r's Ex. 57. Had James' statement about the Petrole rumor been mere fourthhand speculation as Conway asserts, the Commonwealth may have a stronger argument. However, here, the individual specifically identified the names of the persons from whom he heard the information, thus providing a traceable path to discovering its source. Moreover, as Sgt. Pass testified, the fact that the rumor existed alone, would be enough to "place a target on [the rumored informant's] back." Tr.
Third, Petitioner alleges that the Prosecution unconstitutionally suppressed witness statements indicating that a second car was at the crime scene shortly after the murder. The habeas inquiry revealed that the Commonwealth was in possession of at least three independent statements from witnesses at the scene of the crime indicating that there was a second car at the crime scene. Both Holly Reid and Peter Shanz stated on the night of the murder that a few minutes after they heard the gunshots, they observed a small dark colored car slowly pass the victim's car and leave the neighborhood. Pet'r's Exs. 35, 36; Tr. 369, 374. At the evidentiary hearing, Mr. Shanz testified that he spoke with Mr. Conway and related the same statements to him directly. Tr. 376-77. He also testified that he spoke with Conway a few weeks before the trial about testifying, but that Conway never followed up with him. Id. Kimberly Miller also made a statement to police on the night of the murder indicating that after the red car left (later found to be J.R. Martin's car), she observed a blue or black vehicle come in, drive to the end of the court, and then leave the area. Pet'r's Ex. 28. During the evidentiary hearing, Ebert admitted that he considered this information in preparing for Petitioner's trial. Yet, none of these statements were included in the written Brady disclosures and there is no evidence to suggest that they were provided to Petitioner's counsel. Accordingly, the Court finds that Petitioner only discovered these statements in light of the Court's habeas inquiry.
The statements are favorable to Petitioner because they indicate the possibility that there may have been additional actors involved in Petrole's murder. This notion would not only undermine the Prosecution's theory that Barber acted only at the direction of Wolfe, but it would also refute Barber's trial testimony that only he and Wolfe were involved in the murder for hire scheme. Properly disclosed to competent counsel, this information would have been material when considered alongside other suppressed evidence impeaching Barber's testimony. See Monroe v. Angelone, 323 F.3d 286, 300 (4th Cir.2003) (holding that suppressed evidence of witness identities and statements indicating that they saw a suspicious vehicle speeding away from the crime scene at the time of victim's death was favorable to the defendant and ultimately concluding that the prosecution's suppressions violated Brady).
A finding that certain evidence is exculpatory under Brady does not require that each individual piece of evidence be material itself, nor does it require a finding that the evidence proves a specific fact, rather the inquiry specifically requires only that the evidence itself be favorable to the defendant and that the net effect of all of the favorable evidence reasonably undermine confidence in the verdict. See Banks v. Dretke, 540 U.S. 668, 691, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004); Kyles v. Whitley, 514 U.S. 419, 435-37, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). In many cases, a court's materiality analysis determines the disposition of the case. The Director asserts that nearly all of Petitioner's Brady allegations fail for lack of materiality. Specifically, the Director argues that there is no reasonable probability of a different trial result in light of the physical evidence presented at trial, mainly Pascquierllo's letter asking Wolfe for money and the telephone records indicating phone calls between Wolfe and Barber surrounding the time of the murder. Director's Proposed Findings of Fact and Conclusions of Law at 26. The Director further posits that Wolfe's trial testimony confirming that Petrole was his drug supplier (J.A. 2170-71), that he arranged a deal with him at Zeuner's house on the night of the murder (J.A. 2082), and that he owed Petrole money (J.A. 2175) indicates that the habeas evidence is immaterial. Additionally, the Director argues that Wolfe's other testimony confirming that he gave Pascquierllo money, gave Martin a discount on drugs after the murder, and admitting that he had a one on one conversation with Barber at the night club after the murder further indicate that none of the suppressed habeas evidence is material. The Court rejects these arguments.
First, the physical evidence (i.e., the Pascquierllo letter and the phone records) hardly amount to overwhelming proof that Wolfe and Barber were engaged in a scheme to kill Petrole. See Kyles v. Whitley, 514 U.S. 419, 451, 115 S.Ct. 1555,
The Commonwealth's capital murder case against Wolfe can best be described as tenuous. A review of the trial proceedings unveiled witness testimony replete with hearsay and speculation. The physical evidence that did exist, mainly the records disclosing the phone call activity between Barber and Wolfe, was circumstantial. As the Court has repeatedly mentioned, the only direct evidence linking Petitioner to the capital murder was the testimony of Owen Barber. In an effort to buttress its case, the Commonwealth presented a series of corroborating witnesses to offer their own conjecture about Wolfe's involvement based either on their own assumptions or the opinions of third-parties (e.g., Jason Coleman and Owen Barber). Nonetheless, Ebert and Conway presented a cohesive depiction of the Commonwealth's theory of the case. Wolfe's testimony was the only evidence that the defense could present to counter the Prosecution's theory of the case. Wolfe testified that he had nothing to do with Petrole's murder. He explained that the circumstantial evidence, such as his private talks and phone conversations with Barber, drug discounts to J.R. Martin and monetary gifts to Jennifer Pascquierllo, related to his drug conspiracy and personal relationships, not a murder scheme.
The substance and nature of the suppressed evidence ("habeas evidence") reasonably undermines the Court's confidence in this verdict. The key items of habeas evidence consist of the following:
The Commonwealth asked the trial jury to convict Wolfe of capital murder. To find Wolfe guilty, the Commonwealth had to prove each of the following three elements beyond a reasonable doubt: 1) that Owen Barber killed Daniel Petrole; 2) that the killing was willful, deliberate and premeditated; and 3) that the Petitioner hired Owen Barber to kill Daniel Petrole. J.A. 2511. Absent proof of all three elements of the crime, Wolfe could not have been convicted.
Owen Barber's testimony was the only evidence that the Prosecution presented to prove that the Petitioner hired Barber to kill Petrole. Wolfe v. Johnson, 565 F.3d 140, 144 (4th Cir.2009). There was no proof of monetary exchange and no physical evidence indicating that the two ever formed a murder-for-hire agreement. Rather, this was a case of one person's word against another. For this reason, 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 a conviction. However, the habeas evidence relating to Barber directly undermine not only his credibility but his version of events. Without this evidence, Wolfe could not impeach Barber's credibility as a witness or his version of events. Thus, it deprived Petitioner of any opportunity to counter the one clear piece of direct evidence linking him to the third element of the crime. Had the prosecution complied with its Brady obligations, Barber's testimony would have been seriously undermined as it would have established that he had a relationship with the victim, a motive to specifically implicate Wolfe, and that he was inconsistent in his own statements about what happened on the night of the murder.
Applying these principles, courts have awarded habeas relief in situations similar to that presented in this case where the government withheld impeachment evidence on one witness. See, e.g., Giglio v. United States, 405 U.S. 150, 154-55, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (awarding new trial because of suppression of impeaching evidence on one witness); Monroe v. Angelone, 323 F.3d 286, 316 (4th
In addition to the Barber habeas evidence, the Prosecution suppressed other significant impeaching material on the Commonwealth's corroborating witnesses—particularly J.R. Martin and Chad Hough. Having not disclosed the impeaching evidence, the Prosecution was afforded the luxury of presenting corroborating witnesses that were effectively unimpeachable by the Petitioner. Had Martin's agreement not to prosecute and Hough's prior inconsistent statement been disclosed to Wolfe, he would have been able to highlight an important source of bias for Martin and challenge Hough's credibility in front of the jury. Combined with the Barber habeas evidence, this information would have enabled Petitioner to effectively impeach the testimony of three of the Commonwealth's five key witnesses connecting Wolfe to the crime.
Considering the importance of impeaching government witnesses, the cumulative impact of these impeachment suppressions reasonably undermines confidence in the jury's verdict.
The habeas evidence also significantly impacted Wolfe's ability to counter the Commonwealth's theory of the case and present a vigorous defense at trial ("alternate theory habeas evidence"). By suppressing materials relating to the conflicts in Petrole's drug operations and the rumor that Petrole was an informant, the Commonwealth deprived Wolfe of an opportunity to counter the third element of the crime with evidence. Had Wolfe been able to show that other people had potential motives to kill Petrole, this would have allowed the jury in its capacity as fact finder to weigh all of the evidence and information and determine beyond a reasonable doubt, whether Wolfe had hired Petrole. The Commonwealth's suppression of the second car witnesses also deprived Wolfe of an opportunity to challenge Barber's version of events and further undermine the Commonwealth's theory of the case. Instead, the Commonwealth shielded its case from any potential challenges by the defense, thus depriving the jury of critical information regarding potential motives for the crime and depriving Wolfe of an opportunity to present a defense on those grounds.
On April 22, 2011, Petitioner submitted an additional Motion to Amend the Petition for a Writ of Habeas Corpus. In this motion, Petitioner adds a supplemental claim asserting that "Wolfe's right to due process of law is violated by the Commonwealth's maintenance of a conviction that rests on material perjured testimony." Am. Pet. for Habeas Corpus, Apr. 22, 2011 at 1. Petitioner rests this claim on the fact that Barber admitted to committing perjury at Wolfe's trial. Aff. of Owen Barber at 5 and 7, contained in App. II to Am. Pet. for Habeas Corpus, Dec. 15, 2005, Ex. 37; Tr. 117-18, 158. In addition to his own admissions under oath, Barber also admitted his perjury to at least three other inmates at Wallens Ridge State Prison (Carl Huff, Allan Rother and Kyle Hulbert). Tr. 118, 120, 122.
The Director opposes Petitioner's Motion on the grounds that Petitioner's assertion: 1) does not state a cognizable constitutional violation for a habeas proceeding; 2) has already been dismissed under Herrera v. Collins; and 3) is offered in bad faith and would prejudice the Director. Furthermore, the Director suggests that even if the Court grants Petitioner's Motion, the Amendment would be futile because the United States Court of Appeals for the Fourth Circuit's opinion in Stockton
In light of the fact that Barber admitted his perjury after the criminal trial and after Wolfe's original habeas petition, Petitioner's motion is more properly considered as a supplemental pleading under Rule 15(d) of the Federal Rules of Civil Procedure, rather than as an amended pleading under Rules 15(a) or (b). Rule 15(d) states, "the court may ... permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented...." Fed. R.Civ.P. 15(d). The United States Court of Appeals for the Fourth Circuit has stated that "leave [to file supplemental pleadings] should be freely granted, and should be denied only where `good reason exists... such as prejudice to the defendants.'" Franks v. Ross, 313 F.3d 184, 198 (4th Cir.2002) (quoting Walker v. United Parcel Serv., 240 F.3d 1268, 1278 (10th Cir.2001)); see also Laber v. Harvey, 438 F.3d 404, 428-29 (4th Cir.2006) (analyzing bad faith of the movant, prejudice to the opposing party and futility of the proposed amendment as factors to consider when determining whether to grant leave to amend a filing). The Director asserts that Petitioner's proposed amendment would result in prejudice because Petitioner waited until after the conclusion of the evidentiary hearing to move to amend the petition. Director's Resp. in Opp. to Pet'r's Mot. for Leave to Amend, Apr. 22, 2011, at 1113. More specifically, Director points to the fact that Petitioner moved to amend the petition years after Barber initially recanted by affidavit and months after the conclusion of the evidentiary hearing as evidence of bad faith and prejudice.
The Court disagrees with the Director's assertions and finds that the Director suffers no prejudice in allowing Petitioner's supplemental filing. First, Petitioner has asserted the factual basis underlying its supplemental pleading at length in both the Amended Petition for a Writ of Habeas Corpus, dated December 15, 2005, and his Proposed Findings of Fact and Conclusions of Law, filed January 18, 2011. See Am. Habeas Corpus Pet., Dec. 15, 2005 at 11-13; Pet'r's Proposed Findings of Facts and Conclusions of Law at 25-27. Consequently, the Director has been well aware of the facts underlying Petitioner's supplemental pleading, despite Petitioner's delay in its filing. Second, Petitioner's only novel contribution through the supplemental pleading is the legal theory on which Petitioner requests relief. Rather than basing his request for habeas relief in a Herrera v. Collins innocence claim ("Herrera claim") or a Giglio v. United States false testimony claim, Petitioner now asserts that Petitioner Wolfe's "right to Due Process of Law under the Fourteenth Amendment to the United States Constitution is violated by maintenance of a conviction for capital murder that, as the Commonwealth now knows, rests on the material perjured testimony of Owen Barber." Am. Habeas Corpus Pet., Apr. 22, 2011. The Director offers several reasons the Court should not substantively consider Petitioner's new legal argument, but it has not provided a meritorious reason the Court should deny Petitioner leave to file its supplemental pleading. Not only is the Director not prejudiced, but there is also no evidence of bad faith by the Petitioner. While Petitioner's motion is admittedly delayed, the delay does not show bad faith, but rather a reluctance to make the legal argument without the aid of
Having granted Petitioner's Motion, the Court now considers whether to grant habeas relief based on Petitioner's supplemental legal argument. Contrary to the Director's argument, Petitioner's supplemental argument does not simply recast his original Herrera claim. Petitioner's Herrera claim rested on the notion that it would contravene the Eighth Amendment of the Constitution for a defendant who is factually innocent of a crime to be executed for such offense. See Wolfe v. Johnson, 565 F.3d 140, 163 (4th Cir.2009). On initial review, this Court denied the Herrera claim because Petitioner failed to meet the extraordinarily high standard and present a "truly persuasive demonstration of actual innocence." Id.; see Herrera v. Collins, 506 U.S. 390, 417, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). Here, Petitioner has asserted a markedly different claim. Rather than positing that the death sentence is unconstitutional because of actual innocence, Petitioner argues that the maintenance of a conviction based upon false testimony violates due process. The Director attempts to distinguish this assertion from clearly established law indicating that "deliberate deception of [the] court and jury by the presentation of testimony known to be perjured ... is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation." Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 79 L.Ed. 791 (1935). However, the facts of this case fail to warrant such distinction. Consequently, the Court finds that Petitioner's supplemental argument is cognizable in a federal habeas action.
Petitioner acknowledges the Supreme Court's prior rulings that a conviction based on the knowing presentation of false testimony is unconstitutional. Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); id. In presenting its supplemental argument, the Petitioner suggests that the maintenance of a conviction based on false testimony similarly offends due process irrespective of whether the prosecutor knew of the perjury at the time of the trial. See Sanders v. Sullivan, 863 F.2d 218, 225-26 (2d Cir.1988) (holding that the test for granting a new trial based on perjured testimony requires that the recanted testimony be false and material and a probability that the jury would have acquitted defendant). In opposition, the Director asserts that Petitioner's supplemental argument lacks merit based on established precedent from the United States Court of Appeals for the Fourth Circuit because the prosecutors did not know that Barber's testimony was false at the time of the trial. Stockton v. Virginia, 852 F.2d at 749. However, the instant case is distinguishable from Stockton on several grounds.
In Stockton v. Virginia, the United States Court of Appeals for the Fourth Circuit affirmed the district court's denial of habeas relief regarding defendant Stockton's murder-for-hire conviction. In that case, Stockton alleged that the district court failed to properly consider new evidence indicating that a key government witness, Randy Bowman, lied in his testimony about the murder-for-hire scheme. During trial, Bowman testified that he was present when Stockton agreed to commit the murder in exchange for $1,500. In the related habeas petition, Stockton alleged that an affidavit of Bowman's cell mate,
Id. (citing Thompson v. Garrison, 516 F.2d 986, 988 (4th Cir.1975)). Although narrow in scope, Stockton articulates a standard for relief that focuses on public officer misconduct and the denial of due process. This standard is further supported by the fact that United States Court of Appeals for the Fourth Circuit also considered whether Stockton had alleged prosecutorial misconduct with respect to Bowman's testimony;
In this case, the Court is confronted with a credible recantation by the Commonwealth's only witness with direct knowledge of the murder-for-hire scheme. On November 2, 2010, Barber recanted his trial testimony while under oath before this Court. Tr. 117-18 (containing Barber's habeas testimony that Petitioner was not involved in the murder of Daniel Petrole and that Petitioner did not hire Barber to kill Petrole); see Tr. 159-60 (containing a verbal exchange between the Court and Barber, where Barber confirms his recantation of the trial testimony). The Court finds Barber's demeanor and candor persuasive. Barber not only recanted
These facts, combined with the Prosecution's failure to conduct a proper examination into the drug investigation further exhibit the ways in which the Commonwealth stifled a vigorous truth-seeking process in this criminal case. They had prior knowledge of falsities in Barber's testimony, yet never pursued or investigated the information. In light of the Commonwealth's
In addition to requesting relief based on Barber's false testimony in its April 22 Amendment to Petition for a Writ of Habeas Corpus, Petitioner also submits Barber's false testimony as a factual basis for a claim of relief under Giglio v. United States. Pet'r's Proposed Findings of Facts and Conclusions of Law at 25-26. The Commonwealth was in possession of information indicating that Barber knew Petrole and that Barber stated that he acted alone, yet, it allowed Barber's testimony that he did not know Petrole and that Wolfe hired him to commit the murder to go uncorrected. As the Court has repeatedly indicated, Barber's testimony was critical to Wolfe's criminal trial because it was the only evidence establishing the murder for hire element of the charge. Therefore, knowledge that aspects of Barber's testimony were false is material because it undermines confidence in the jury's guilty verdict. Furthermore, the Supreme Court has articulated that suppression of credibility evidence when the reliability of the witness is determinative of guilt or innocence falls within the Giglio and Napue v. Illinois rule for due process violations. Giglio, 405 U.S. 150, 154, 92 S.Ct. 763 (1972); see Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). At the very least, this Court's factual findings indicate that the Commonwealth withheld credibility evidence relating to Barber. In light of the fact that the Government would not have been able to prove the third element of capital murder in this case without Barber's testimony, the Commonwealth's suppression of the credibility evidence and allowance of Barber's false testimony contravene Wolfe's constitutional rights under Giglio v. United States and Napue v. Illinois.
Petitioner alleges that the trial court deprived him of his right to an impartial jury by striking a qualified venireman for cause based on his views regarding the application of capital punishment. Am. Pet. for Habeas Corpus, Dec. 15, 2005 at 45. During the voir dire, both the prosecution and defense counsel questioned venireman, Robert Mock, on his ability to impose the death penalty in certain cases. The relevant excerpts of the colloquy are provided as follows:
J.A. 910-11, 918; see generally J.A. 910-933. Later in the voir dire, Mr. Partridge moved to strike Mock from the jury panel on the grounds that he indicated that he could not impose the death penalty for the hirer in a murder for hire scheme if the trigger man did not also receive it.
An impartial jury consists of jurors who will conscientiously apply the law and find the facts. In a capital case, a venireman may be excused for cause based on his or her views on capital punishment if such views would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). It is the trial judge's duty to determine whether a particular venireman may be dismissed for cause due to a lack of impartiality and such determinations are considered factual findings for the purpose of § 2254 review. Id. at 423, 429, 105 S.Ct. 844.
While Mock initially made statements indicating that he could not impose the death penalty in a particular situation, irrespective of the facts of the case, the totality of Mock's voir dire testimony indicated that he would obey the court's instructions and come to a determination after weighing the evidence presented in the case. Once the defense counsel clarified Mock's voir dire testimony by asking specifically about his ability to objectively review the evidence and follow the law, neither the trial judge nor the Prosecution propounded additional questions to Mock about his qualifications. Therefore, no evidence exists to discredit Mock's clear testimony that he would follow the law and make a determination based on the facts of the case. In situations where the totality of a venireman's voir dire testimony indicate that the juror would objectively listen to the facts and make a determination on the appropriate sentence based on the evidence presented in the case, that venireman is considered qualified to serve as a juror. See e.g., Ivey v. Ozmint, 304 Fed.
The Court FINDS that Wolfe was denied the right to due process pursuant to the Fourteenth Amendment as interpreted in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), to be apprised of all material, exculpatory information within the hands of the prosecution. Petitioner's motion for leave to amend the habeas petition is
Accordingly, Wolfe's petition for a writ of habeas corpus is
The Clerk is
