Petition for Writ of Certiorari — Justin Michael Wolfe, Petitioner v. Virginia

No. 18-____

In the

Supreme Court of the United States

–––––––––––––

JUSTIN MICHAEL WOLFE,

PETITIONER,

v.

COMMONWEALTH OF VIRGINIA,

RESPONDENT.

–––––––––––––

On Petition for a Writ of Certiorari to

the Supreme Court of Virginia

–––––––––––––

PETITION FOR WRIT OF CERTIORARI

–––––––––––––

MARVIN D. MILLER

Counsel of Record

KELLY R. GREEN

THE LAW OFFICES OF

MARVIN D. MILLER

1203 Duke Street

Alexandria, VA 22314

(703) 548-5000

ofc@mdmillerlaw.com

ASHLEY C. PARRISH

ISRA J. BHATTY

KING & SPALDING LLP

1700 Pennsylvania Ave., NW

Washington, DC 20006

(202) 737-0500

aparrish@kslaw.com

Counsel for Petitioner

August 20, 2018

i

QUESTION PRESENTED

The States are divided on whether a guilty plea

waives a defendant’s right to challenge, post-plea, the

constitutional authority of the State to prosecute. In

this case, in conflict with this Court’s recent decision

in Class v. United States, 138 S. Ct. 798 (2018), the

Virginia courts held that petitioner could not raise on

appeal his claim of vindictive prosecution because he

pled guilty without obtaining consent from both the

trial court and prosecutor to make his plea

conditional. The question presented is:

Whether, in light of Class, a guilty plea in state

court waives the right to raise on appeal the

constitutional authority of the State to prosecute

based on a claim of vindictive prosecution.

ii

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

TABLE OF AUTHORITIES ........................................ v

PETITION FOR WRIT OF CERTIORARI ................. 1

OPINIONS BELOW .................................................... 3

JURISDICTION .......................................................... 4

CONSTITUTIONAL

AND

STATUTORY

PROVISIONS INVOLVED .................................. 4

STATEMENT .............................................................. 5

REASONS FOR GRANTING THE PETITION........ 12

I.

The Court Should Summarily Reverse

Because The Decision Below Is Contrary To

Class. ................................................................... 13

II. In The Alternative, The Court Should Grant

Review To Clarify Class’s Scope And

Address Divisions Over When A Guilty Plea

Waives A Defendant’s Right To Challenge

The State’s Power To Prosecute......................... 18

CONCLUSION .......................................................... 22

APPENDIX

Appendix A

Virginia Court of Appeals Order

Denying

Petition

for

Appeal

(May 10, 2017) .............................................. App-1

iii

Appendix B

Supreme Court of Virginia Order

Refusing

Petition

for

Appeal

(February 5, 2018) ........................................ App-9

Appendix C

Supreme Court of Virginia Order

Denying Petition & Rehearing

(March 23, 2018) ......................................... App-11

Appendix D

Signed Plea Agreement Form

(March 22, 2016) ......................................... App-12

Appendix E

Transcript Excerpt of Plea of Guilty

Hearing in the Circuit Court of

Prince William County, Virginia

(March 29, 2016) ......................................... App-17

Appendix F

Motion to Dismiss Indictments

Constituting

a

Vindictive

Prosecution in the Circuit Court of

Prince William County, Virginia

(November 28, 2012)................................... App-28

Appendix G

Transcript Excerpt of Hearing on

Motion to Dismiss Indictments

Constituting

a

Vindictive

Prosecution in the Circuit Court of

Prince William County, Virginia

(December 11, 2012) ................................... App-46

iv

Appendix H

Virginia Conditional Guilty Plea

Statute: Va. Code § 19.2-254 ...................... App-49

Appendix I

Federal Conditional Guilty Plea

Rule: Fed. R. Crim. P. 11............................ App-50

v

TABLE OF AUTHORITIES

Cases

Alabama v. Smith,

490 U.S. 794 (1989) ................................................ 18

Blackledge v. Perry,

417 U.S. 21 (1974) .......................................... passim

Brady v. Maryland,

373 U.S. 83 (1963) .................................................... 6

Carper v. State,

27 Ohio St. 572 (1875) ........................................... 17

Class v. United States,

138 S. Ct. 798 (2018) ...................................... passim

Giglio v. United States,

405 U.S. 150 (1972) .................................................. 6

Griffin v. Illinois,

351 U.S. 12 (1956) .................................................. 19

Menna v. New York,

423 U.S. 61 (1975) .......................................... passim

Missouri v. Frye,

566 U.S. 134 (2012) ................................................ 20

Muhammad v. Kelly,

575 F.3d 359 (4th Cir. 2009) .................................... 9

North Carolina v. Pearce,

395 U.S. 711 (1969) .......................................... 18, 19

People v Rodriguez,

55 N.Y.2d 776 (1981) ............................................. 19

People v. Rodriguez,

433 N.Y.S.2d 584 (1980 ......................................... 19

vi

Smith v. State,

77 So. 3d 526 (Miss. App. 2011) ............................ 20

Smith v. State,

841 A.2d 308 (Del. 2004) ........................................ 20

State v. Norris,

57 P.3d 238 (Utah App. 2002) ............................... 20

State v. Thomas,

96 S.W.3d 834 (Mo. App. W. Dist. 2002) ............... 20

State v. Webb,

681 P.2d 473 (Ariz. App. 2d Div. 1984) ................. 20

Taylor v. State,

2014 MT 60N (2014) .............................................. 20

United States v. Broce,

488 U.S. 563 (1989) .................................................. 2

Wolfe v. Clarke,

691 F.3d 410 (4th Cir. 2012) ............................ 1, 8, 9

Wolfe v. Clarke,

718 F.3d 277 (4th Cir. 2013) .................................... 9

Wolfe v. Clarke,

819 F. Supp. 2d 538 (E.D. Va. 2011) ........... 1, 6, 7, 8

Wolfe v. Clarke,

819 F. Supp. 2d 574 (E.D. Va. 2011) ....................... 7

Wolfe v. Johnson,

565 F.3d 140 (4th Cir. 2009) ................................ 5, 7

Constitutional Provisions

U.S. Const. amend. V .................................................. 4

U.S. Const. amend. XIV .............................................. 4

vii

Statutes and Rules

28 U.S.C. § 1257 .................................................... 4, 16

Mont. Code § 46-12-204(3) ........................................ 20

Va. Code. § 19.2-254 .............................................. 4, 20

Utah R. Crim. P. Rule 11(j) ....................................... 20

Fed. R. Crim. P. 11 ................................................ 4, 16

Other Authorities

S. Rosenmerkel, et al.,

Felony Sentences in State Courts,

2006-Statistical Tables (NCJ226846, rev. Nov.

2010) (Dep't of Justice, Bureau of Justice

Statistics) ............................................................... 21

1

PETITION FOR WRIT OF CERTIORARI

This petition asks the Court to summarily

reverse the lower court and to direct it on remand to

comply with Class v. United States, 138 S. Ct. 798

(2018), by considering the merits of petitioner’s claim

for vindictive prosecution. In the alternative, this

petition urges the Court to grant review to clarify

Class’s scope, to provide guidance to the States,

which are split in their approach to these issues, and

to protect the integrity of the federal habeas corpus

process.

In 2002, a Virginia court sentenced petitioner

Justin Wolfe to death for hiring another to commit

murder. A decade later, he successfully obtained

federal habeas relief on the basis of egregious

prosecutorial misconduct. The misconduct included

withholding material, exculpatory information and

allowing witnesses to present false testimony. Wolfe

v. Clarke, 819 F. Supp. 2d 538, 571 (E.D. Va. 2011);

see also Wolfe v. Clarke, 691 F.3d 410 (4th Cir. 2012).

Following a decision by the U.S. Court of Appeals for

the Fourth Circuit affirming the grant of habeas

relief, which resulted in vacating Wolfe’s convictions

and death sentence, the case returned to the Virginia

courts for a new trial. Instead of removing the taint

of prosecutorial misconduct that had infected Wolfe’s

original trial, the Commonwealth engaged in further

misconduct. Without conducting a new investigation

or obtaining new information, prosecutors immediately filed six additional charges against Wolfe that

carried penalties more severe than the penalties

accompanying the original charges he had

successfully challenged in federal court.

2

The Virginia trial court refused to dismiss the

additional charges and, faced with the possibility of

another death sentence, Wolfe entered into a plea

agreement. The trial court then sentenced him to 83

years in prison, with 42 years suspended, and

ordered him to pay court costs of approximately

$871,000.00.

On appeal, Wolfe challenged the

validity of his plea in light of the Commonwealth’s

vindictive prosecution.

Concluding that Wolfe

voluntarily entered a non-conditional plea, however,

the Virginia Court of Appeals refused to consider the

merits of his claim. Pet. App. 1–8. The Virginia

Supreme Court summarily refused Wolfe’s petition

for appeal on February 5, 2018, and denied his

petition for rehearing on March 23, 2018. Pet. App.

9–10, 11.

In February 2018, this Court decided Class v.

United States, 138 S. Ct. 798 (2018), which held that

“‘a plea of guilty to a charge does not waive a claim

that—judged on its face—the charge is one which the

State may not constitutionally prosecute.’” Id at 801

(internal citations omitted). A vindictive prosecution

claim meets that requirement, as it implicates “the

very power of the State” to prosecute the defendant.

Id at 803 (citing Blackledge v. Perry, 417 U.S. 21, 30

(1974) (involving a vindictive prosecution claim)); see

also id at 804 (“a guilty plea does not bar a claim on

appeal ‘where on the face of the record the court had

no power to enter the conviction or impose the

sentence’”) (quoting United States v. Broce, 488 U.S.

563, 569 (1989)). Wolfe’s challenge is a quintessential vindictive prosecution claim—a claim that

the Commonwealth lacked the “power to prosecute”—

but it was never entertained by the Virginia

3

appellate courts because he did not preserve the

claim with the consent of the prosecutor and trial

judge through a conditional guilty plea. As Class

made clear, however, a guilty plea does not bar a

defendant from raising this type of constitutional

claim on appeal. That fundamental principle should

apply with even greater force in the context of a retrial following a grant of federal habeas relief where

prosecutors have been found to have engaged in

misconduct. In those circumstances, courts must be

vigilant to protect against the prosecutors engaging

in vindictive prosecution in response to a successful

petition for federal habeas corpus relief.

The Virginia Supreme Court erred in denying

Wolfe the opportunity to raise on appeal his

vindictive prosecution claim challenging the

Commonwealth’s power to prosecute. This Court

should grant certiorari, vacate the Virginia Supreme

Court’s decision, and remand with directions for the

court to apply Class and consider Wolfe’s vindictive

prosecution claim on its merits. In the alternative,

this Court should grant plenary review to clarify

Class’s scope and address the divisions in authority

on the important issues raised in this case.

OPINIONS BELOW

The decision of the Virginia Court of Appeals is

reproduced at Pet. App. 1–8. The order of the

Supreme Court of Virginia summarily refusing

Wolfe’s petition for appeal is reproduced at Pet. App.

9–10. Its order denying his petition for rehearing is

reproduced at Pet. App. 11.

4

JURISDICTION

The Virginia Court of Appeals issued its decision

on May 10, 2017. The Supreme Court of Virginia

refused Wolfe’s petition for appeal on February 5,

2018, and denied his petition for rehearing on March

23, 2018. On June 8, 2018, the Chief Justice

extended the time for filing a petition for writ of

certiorari to August 20, 2018.

This Court has

jurisdiction under 28 U.S.C. § 1257.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment of the United States

Constitution provides in relevant part: “No person

shall . . . be deprived of life, liberty, or property,

without due process of law.” U.S. Const. amend. V.

The Fourteenth Amendment of the United States

Constitution provides in relevant part: “No state . . .

shall . . . deprive any person of life, liberty, or

property, without due process of law.” U.S. Const.

amend. XIV.

The relevant provision of the Virginia Code

addressing the entry of plea agreements, Va. Code.

§ 19.2-254, is reproduced at Pet. App. 49.

Rule 11 of the Federal Rules of Criminal

Procedure is reproduced at Pet. App. 50–56.

5

STATEMENT

1. In 2001, a grand jury indicted nineteen-yearold Justin Wolfe on three charges—(1) conspiracy to

distribute marijuana, (2) use or display of a firearm

in the commission of a felony, and (3) capital murder

for hire—on the Commonwealth’s theory that Wolfe

had hired his friend and fellow marijuana-dealer,

Owen Barber, to kill a supplier named Daniel

Petrole. In a trial marred by prosecutorial misconduct, including numerous Brady violations and

false testimony by state witnesses, the only direct

evidence against Wolfe was Barber’s testimony that

Wolfe had hired him to kill Petrole. The jury found

Wolfe guilty of all charges and, at the prosecutor’s

request, sentenced him to death.

2. In 2005, following an unsuccessful state

habeas petition, Wolfe sought federal habeas relief in

the United States District Court for the Eastern

District of Virginia.

Wolfe raised his actual

innocence as a reason for the district court to

consider his otherwise procedurally barred constitutional claims. He argued that his trial had been

infected by repeated instances of prosecutorial

misconduct, including that the Commonwealth had

violated his due process rights under Brady v.

Maryland, 373 U.S. 83 (1963), by suppressing

material evidence favorable to the defense. See Wolfe

v. Johnson, 565 F.3d 140 (4th Cir. 2009). During the

course of the federal habeas proceedings, Barber

recanted his trial testimony against Wolfe and later

testified that Wolfe had nothing to do with Petrole’s

murder.

6

After

considering

extensive

evidentiary

submissions by both sides, the district court

concluded that Barber’s recantation was credible and

corroborated by other evidence. The district court

also detailed how “the Commonwealth stifled a

vigorous truth-seeking process,” Wolfe, 819 F. Supp.

2d at 571, when it withheld material, exculpatory

information in violation of Brady v. Maryland, 373

U.S. 83 (1963), and permitted its witnesses to present

perjured testimony in violation of Giglio v. United

States, 405 U.S. 150 (1972).

The extensive

exculpatory information withheld from the defense

included (1) a police report showing that it was a

Commonwealth detective who first suggested to

Barber that he accuse Wolfe or else face execution;

(2) information that Barber had confessed to his

roommate that he acted alone in the murder; and

(3) evidence suggesting alternate theories of the

crime. The police report was particularly significant

because it would have substantially undermined

Barber’s credibility at trial. It showed that, within

days of Petrole’s murder, the Commonwealth fixated

on the theory that Barber had acted at Wolfe’s

behest.

Even though the police had no direct

evidence of Wolfe’s involvement in the crime, and

before asking Barber for his version of events, the

investigating detective presented this theory to

Barber and suggested that corroborating this theory

would be Barber’s only way to escape his own

execution. Barber took the deal offered by the

Commonwealth and agreed to testify that Wolfe had

hired him to commit the murder. In exchange, the

Commonwealth reduced Barber’s charge from capital

to first-degree murder, and supported Barber’s

7

sentence of imprisonment for 60 years, with 22 years

suspended. Wolfe, 565 F.3d at 144 n.1.

The Commonwealth knew the implications of its

failure to disclose exculpatory evidence and its

deliberate submission of false testimony. As the

district court noted, the Commonwealth prosecutors

could not “claim that they were unaware of the

falsities in Barber’s testimony in light of the

exculpatory information in [the Commonwealth’s]

possession at the time of the trial” and, therefore,

had “notice that Barber’s trial testimony implicating

Wolfe was false.” Wolfe, 819 F. Supp. 2d at 571.

Moreover, the prosecutor’s alarming testimony “that

he employs a practice of withholding information

from counsel and defendants with the intent of

preventing them from establishing a defense”

demonstrated “the Commonwealth’s intent in

withholding exculpatory information as well as its

knowledge about the consequences of suppressing

and failing to pursue such evidence.” Id. Without

the false testimony, the Commonwealth’s case

against Wolfe was, as the court explained,

“circumstantial” and “best [ ] described as tenuous.”

Id. at 564.

Almost immediately after the release of the

district court’s opinion, the Commonwealth moved

Wolfe to segregation under circumstances the district

court found to be very suspicious. The court rejected

the prison director’s purported reasons for transferring Wolfe to segregation “given the inconsistent

rationales and the uncontroverted evidence of the

transfer[’]s effects on Wolfe.” Wolfe v. Clarke, 819 F.

Supp. 2d 574, 588 (E.D. Va. 2011). Noting the

8

transfer’s “punitive” effect, the court “deem[ed]

questionable the fact that the Director transferred

Wolfe to segregation within days of this Court’s

judgment vacating all of Wolfe’s convictions and

sentences.” Id. The court ordered that Wolfe be

transferred out of segregation and back to death row.

Id.

3. In 2012, the Fourth Circuit affirmed the

district court’s grant of habeas relief, reiterating the

district court’s conclusion that the Commonwealth’s

conduct in obtaining Wolfe’s convictions had been

“not only unconstitutional in regards to due process,

but abhorrent to the judicial process.” Wolfe v.

Clarke, 691 F.3d 410, 424 (4th Cir. 2012) (quoting

Wolfe, 819 F. Supp. at 566 n.24). The Fourth Circuit

reprimanded the Commonwealth for “tenaciously

conceal[ing]” exculpatory evidence “that the

prosecution obviously should have disclosed prior to

Wolfe’s capital murder trial.” Id at 422. The Fourth

Circuit felt “compelled to acknowledge that the

Commonwealth’s suppression of the [police] report,

as well as other apparent Brady materials, was

entirely intentional.” Id. at 423. Describing the

prosecutor’s rationale for withholding information—

that he purposefully avoided providing information

that could be used “to fabricate a defense”—as a

“flabbergasting explanation,” the court of appeals

noted that the district court had “rightly lambasted”

the Commonwealth. Id. The court pointed out that,

in an earlier case arising out of Prince William

County, it had similarly “refuse[d] to condone the

suppression of evidence by the [same] prosecutors,

and advised them to ‘err on the side of disclosure,

especially when a defendant is facing the specter of

9

execution.’” Id. at 424 (quoting Muhammad v. Kelly,

575 F.3d 359, 370 (4th Cir. 2009)). “We sincerely

hope,”

the

court

concluded,

“that

the

Commonwealth’s Attorney and his assistants have

finally taken heed of those rebukes.” Id.

4. That hope did not last. Only four days after

the Fourth Circuit’s mandate issued, the prosecutors

paid a special visit to Barber in prison and secretly

recorded their conversation.

Although Barber

maintained that his testimony exculpating Wolfe was

true, the prosecutors “proceeded to interrogate,

intimidate, and threaten Barber for over an hour.”

Wolfe v. Clarke, 718 F.3d 277, 296 (4th Cir. 2013).

They informed him that his exculpatory testimony

had breached his plea agreement, that his case and

Wolfe’s were back to square one, and that Barber

could now face the death penalty. Id at 296–97.

Even under this extreme pressure, Barber held firm

that Wolfe was not involved. Id at 296.

Two days later, the prosecutors filed an ex parte

motion to recuse themselves and requested that,

instead of randomly assigning a new prosecutor, the

state trial court appoint a special prosecutor that the

original prosecutors had personally selected. The

state trial court judge immediately granted the

motion, without notice to or a response from Wolfe.

The next day, the new prosecutor confirmed in court

that he had only reviewed materials from the

discredited original trial, and he made no mention of

any additional investigation by the Commonwealth.

Nonetheless, he told the court that he had already

concluded that Wolfe “was absolutely involved in this

murder and planned it and caused it to occur and he

10

did it out of greed . . . . Justin Wolfe is many things

but innocent is not one of them.” Pet. App. 33, 45.

On October 1, 2012, without having conducted

any further investigation, the prosecutor presented

new charges against Wolfe to the grand jury, which

returned six more indictments in addition to the

original three. Two of the new indictments alleged

that Wolfe was one of several principal

administrators or leaders of a continuing criminal

enterprise that distributed marijuana.

The

Commonwealth further alleged that Wolfe was guilty

of capital murder by direction or order of one who is

engaged in a continuing criminal enterprise as well

as two continuing enterprise charges. In total, in

addition to the three original 2001 indictments, the

prosecutor charged Wolfe with:



Two new and additional continuing criminal

enterprise charges;



One new and additional capital murder

charge contingent on the continuing criminal

enterprise charges;



One new and additional felony murder

charge;



One new and additional charge for use of a

firearm in the commission of or attempt to

commit a robbery; and



One new and additional charge for use of a

firearm in the commission of a murder.

Pet. App. 41.

Although Wolfe had never faced a felony murder

charge or been charged with use or display of a

11

firearm in the commission of or attempt to commit a

robbery, Wolfe in 2012 faced three separate and

different counts of murder and three separate and

different firearms charges. All of the October 1, 2012

indictments were based on the same events for which

the Commonwealth originally indicted Wolfe in 2001,

without having conducted any further investigation.

5. On November 28, 2012, Wolfe filed a motion

to dismiss the indictments, arguing that the newly

charged October 1, 2012 indictments were vindictive

in violation of his constitutional due process rights.

The trial court denied that motion. Finding it

inappropriate to “analyze the strength of the

Commonwealth’s case at this level,” suggesting that

the Commonwealth brought “additional charges, not

enhanced charges,” and rejecting any notion that

Blackledge governed Wolfe’s claim, the court found

no “presumption” of vindictiveness from the six new

indictments. Pet. App. 47–48.

Faced with the possibility of another death

sentence, and concluding that the Commonwealth

was determined to deny him a fair trial, Wolfe

decided to enter into a plea agreement, pleading

guilty to use of a firearm in the commission of a

felony, conspiracy to distribute marijuana, and

murder.

The plea conceded that Wolfe had

committed these crimes, but it made no mention of

Wolfe’s vindictive prosecution claim, nor did it

concede in any way the Commonwealth’s power to

prosecute Wolfe on these new charges. Pet. App. 12–

16. At the plea colloquy, the trial court confirmed

that Wolfe understood that he waived his right to

appeal “any decision that I [the judge] make”. Pet.

12

App. 22. Wolfe was ultimately sentenced to 83 years

in prison, with 42 years suspended, and ordered to

pay court costs of approximately $871,000.

On appeal, Wolfe argued that the trial court

erred in accepting his guilty plea because he was the

target of a vindictive prosecution after he

successfully obtained habeas relief in federal court.

Rejecting these arguments, the Virginia Court of

Appeals concluded that, because Wolfe’s guilty plea

was not conditional, he had waived his ability to

raise his vindictive prosecution claim on appeal. Pet.

App. 1–8. The Supreme Court of Virginia summarily

refused Wolfe’s petition for appeal on February 5,

2018, and denied his petition for rehearing on March

23, 2018. Pet. App. 9–10, 11.

REASONS FOR GRANTING THE PETITION

In Class v. United States, 138 S. Ct. 798 (2018),

this Court held that a defendant who pleads guilty to

criminal charges is not barred from raising on appeal

whether the government had the constitutional

authority to prosecute the charges against him. As

Class recognized, a vindictive prosecution claim falls

within the category of constitutional claims that

concern the government’s power to prosecute. Id. at

805. Because Wolfe’s non-conditional guilty plea

does not constitute a waiver of the right to raise his

vindictive prosecution claim on appeal, the Virginia

appellate courts erred in refusing to consider the

merits of Wolfe’s vindictive prosecution claim. This

Court should reverse and remand to the Virginia

Supreme Court with instructions to consider Wolfe’s

vindictive prosecution claim in light of Class. In the

13

alternative, the Court should grant review to clarify

Class’s scope and protect the integrity of the federal

habeas corpus process.

I.

The Court Should Summarily Reverse

Because The Decision Below Is Contrary To

Class.

Class held that a defendant who pleads guilty

may, nonetheless, challenge on appeal whether the

government had constitutional authority to hale him

into court to answer the charges. Class involved a

written plea agreement that waived some of the

defendant’s constitutional rights but did not address

whether the defendant could challenge the

constitutionality of the statute under which he had

been convicted. 138 S. Ct. at 806. After his guilty

plea and sentencing, the defendant appealed the

district court’s decision rejecting his pretrial claim

challenging the statute’s constitutionality. Id. at

802. The court of appeals held that the defendant

could not pursue this constitutional claim because his

guilty plea had waived his right to raise it on appeal.

Id at 802–03.

This Court reversed. The Court held that the

defendant’s constitutional challenge to the statute of

conviction fit within a category of claims—including

double jeopardy and vindictive prosecution—that go

to “‘the very power of the State’ to prosecute the

defendant.” Id. at 803. For that category of claims, a

successful appeal does not result in a retrial; it

extinguishes

the

government’s

right

to

constitutionally prosecute the defendant. Id at 804–

05. These claims are, therefore, not waived by a

guilty plea.

14

In concluding that a guilty plea does not waive

the right to raise on appeal the government’s

authority to hale a defendant into court, the Court

drew on two earlier cases—Blackledge v. Perry, 417

U.S. 21 (1974), and Menna v. New York, 423 U.S. 61

(1975)—involving vindictive prosecution and double

jeopardy claims, respectively. Id at 803–05. In

Blackledge, the State of North Carolina re-indicted

the defendant with a more severe felony charge after

he exercised a statutory right to an appeal.

Blackledge, 417 U.S. at 23–24. The defendant pled

guilty to the felony charge and pursued federal

habeas relief “on the grounds that the reindictment

amounted to an unconstitutional vindictive

prosecution” in violation of the Fourteenth

Amendment.

Class, 138 S. Ct. at 803 (citing

Blackledge, 417 U.S. 21). Rejecting the State’s

argument to the contrary, this Court held that the

defendant’s guilty plea did not bar his vindictive

prosecution challenge.

Blackledge expressed concern that allowing

harsher charges after a successful appeal or

collateral attack would mean that only “the most

hardy defendants” would “brave the hazards” of an

appeal of, or collateral attack on, a conviction.

Blackledge, 417 U.S. at 28, 29. A defendant must be

allowed to pursue his right to review without

apprehension that the State will retaliate with more

serious charges. Id at 30. As Class explained, citing

to Blackledge, although “a guilty plea bars appeal of

many

claims,

including

some

‘antecedent

constitutional violations,’” a vindictive prosecution

claim “implicates the ‘very power of the State’ to

prosecute the defendant.”

138 S. Ct. at 803.

15

Accordingly, because the defendant in Blackledge

alleged that the “‘very initiation of the proceedings’”

against him “‘operated to deprive him due process of

law,’” he was allowed to seek post-plea review of the

state’s authority to prosecute. Id (citing Blackledge,

417 U.S. at 30–31).

Class also referenced Menna v. New York, a case

involving a claim of double jeopardy, to further

explain why the defendant could challenge the

State’s authority to prosecute him. In Menna, the

state court would not consider on appeal a

defendant’s request to review whether, because of a

claim of double jeopardy, the State had constitutional

authority to prosecute him. The state appellate court

held that the defendant’s guilty plea prevented him

from raising that issue on appeal, but this Court

reversed. Menna, 423 U.S. at 62. Citing Blackledge,

the Court held that, because the defendant’s claims

“that ‘the State may not convict’ him ‘no matter how

validly his factual guilt is established,’ [the] ‘guilty

plea . . . [did] not bar the claim.’” Class, 138 S. Ct. at

804 (quoting Menna, 423 U.S. at 63) (internal

citation omitted) (second alteration in original); see

also Menna, 423 U.S. at 63 & n.2. (“where the State

is precluded by the United States Constitution from

haling a defendant into court on a charge, federal law

requires that a conviction on that charge be set aside

even if the conviction was entered pursuant to a

counseled plea of guilty”) (citing Blackledge, 417 U.S.

at 30).

Class thus acknowledged that a defendant’s

guilty plea may waive challenges to case-related

government conduct, such as the admissibility of

16

evidence, the validity of the indicting grand jury,

whether evidence was unconstitutionally seized, and

other incidents related to guilt or innocence. Id at

805. Claims of this type would be “irrelevant to the

constitutional validity of the conviction.” Class, 138

S. Ct. at 805 (internal quotation marks omitted). But

a defendant’s guilty plea “does not make irrelevant” a

constitutional claim challenging the very power of

the State to prosecute. Id.

Class ultimately held that the plea of guilty, the

plea agreement (which did not expressly refer to a

waiver of the right to appeal the issue in question),

and Federal Rule of Criminal Procedure 11(a)(2) did

not expressly or implicitly waive Class’s right to raise

on appeal his claim that he could not be

constitutionally prosecuted. Id. That issue could be

decided on the existing record and fit within that

category of cases—such as an indictment’s failure to

state an offense, a claim of vindictive prosecution, or

a violation of double jeopardy—that, if successful,

would preclude the state from forcing the accused to

face the charge, regardless of the evidence at trial.

Id. at 806, 809–10. In other words, when the

government would have no authority to prosecute, a

guilty plea does not waive the right to raise that

issue on appeal.

Class’s holding applies with equal force in the

federal and state context. Indeed, Blackledge and

Menna, which spawned the “Menna-Blackledge

doctrine” that Class endorsed, were state court cases

in which this Court applied constitutional protections

to the states under the Due Process Clause of the

Fourteenth Amendment. This Court’s holding in

17

Class “flow[ed] directly from [the] Court’s prior

decisions” in Blackledge and Menna, “reflect[ing] an

understanding of the nature of guilty pleas which . . .

stretches back nearly 150 years.” Class, 138 S. Ct. at

803-04. Moreover, in reaching its decision in Class,

this Court examined how “federal and state courts

throughout the 19th and 20th centuries” viewed “the

nature of a guilty plea” in order to ascertain whether

the entry of a guilty plea waived a claim regarding

the government’s constitutional authority to

prosecute. Id at 804 (emphasis added) (citing Carper

v. State, 27 Ohio St. 572, 575 (1875)).

The

assessment of both federal and state court treatment

of guilty pleas made clear, as this Court said, “that a

defendant’s guilty plea [did] not make irrelevant the

kind of constitutional claim Class [sought] to make.”

Class, 138 S. Ct. at 805.

As in Class, Blackledge, and Menna, this case

involves a claim that challenges the very power of the

State to “constitutionally prosecute” Wolfe on the

new charges brought in response to his successful

federal habeas petition. Class, 138 S. Ct. at 803–04

(citing Blackledge, 417 U.S. at 30; Menna, 423 U.S. at

63). Like the defendant in Blackledge, Wolfe raised a

vindictive prosecution claim after the Commonwealth

brought six new and more severe charges following

Wolfe’s successful habeas action. Moreover, as in

Class, Wolfe’s plea agreement makes no mention of

his vindictive prosecution claim, nor does the

Virginia statute governing guilty pleas prescribe that

Wolfe may only raise his vindictive prosecution claim

if he explicitly preserves it in his guilty plea. Pet.

App. 12–16, 49. In light of Class, the Virginia

appellate courts erred when they denied Wolfe the

18

opportunity to raise his vindictive prosecution claim

on appeal.

II. In The Alternative, The Court Should Grant

Review To Clarify Class’s Scope And

Address Divisions Over When A Guilty Plea

Waives A Defendant’s Right To Challenge

The State’s Power To Prosecute.

If the Court does not summarily reverse the

lower court, it should grant review to clarify Class’s

scope and address the split in authority within the

States.

Vindictive prosecution that occurs in

response to a successful federal habeas petition

raises especially significant concerns that warrant

this Court’s intervention.

The Due Process Clause protects defendants by

prohibiting a State from “upping the ante” by

bringing a defendant into court to face additional or

more severe charges after the defendant has

successfully pursued an appeal or collateral remedy.

Blackledge, 417 U.S. at 27–28; see also Class, 138 S.

Ct. at 803–04. This Court has held that due process

requires that a defendant be free of the apprehension

of retaliation from the prosecutor following a

successful appeal or collateral attack, because “fear of

such vindictiveness may unconstitutionally deter a

defendant’s exercise of the right to appeal or

collaterally attack his first conviction.” Blackledge,

417 U.S. at 28 (citing North Carolina v. Pearce, 395

U.S. 711, 725 (1969), overruled in part by Alabama v.

Smith, 490 U.S. 794 (1989)). These due process

protections are especially applicable in cases, like

this one, where a State raises the ante after the

defendant successfully pursued collateral or

19

appellate review—including through the federal

habeas process—because of constitutional transgressions by the State.

Preserving judicial review of vindictive

prosecution claims is important in this context

because “penalizing those who choose to exercise

constitutional rights” is “patently unconstitutional”

and can serve to “chill the exercise of basic

constitutional rights.” Pearce, 395 U.S. at 724 (citing

United States v. Jackson, 390 U.S. 570, 582 (1968)

(quotation marks omitted)). Furthermore, allowing

prosecutors to penalize defendants who successfully

obtain relief undermines the integrity and protection

of the federal habeas corpus process and can “impede

open and equal access to the courts,” id. at 724–25

(citing Griffin v. Illinois, 351 U.S. 12 (1956)), by

allowing the State to “insure that only the most

hardy defendants will brave the hazards of a de novo

trial.” Blackledge, 417 U.S. at 27–28 (citations

omitted).

Despite this Court’s decisions, several States

prohibit defendants from raising certain claims

concerning the State’s power to constitutionally

prosecute on direct appeal following a guilty plea.

For example, six years after Menna and seven years

after Blackledge, the New York Court of Appeals

determined that a “defendant's claim of selective and

vindictive prosecution was forfeited by his plea of

guilty.” People v Rodriguez, 55 N.Y.2d 776, 777

(1981)); see also People v. Rodriguez, 433 N.Y.S.2d

584 (1980) (“[U]nlike an assertion of double jeopardy,

the [vindictive prosecution] claim was waived by the

plea” (citation omitted)). At least two other states,

20

Arizona and Mississippi, prohibit vindictive

prosecution claims on direct appeal following a guilty

plea. See State v. Webb, 681 P.2d 473 (Ariz. App. 2d

Div. 1984); Smith v. State, 77 So. 3d 526 (Miss. App.

2011). And states such as Delaware and Missouri

view a guilty plea as an absolute waiver of all nonjurisdictional claims. See Smith v. State, 841 A.2d

308 (Del. 2004); State v. Thomas, 96 S.W.3d 834 (Mo.

App. W. Dist. 2002). Three states, Montana, Utah

and Virginia, view a guilty plea as a waiver of a

vindictive prosecution claim on direct appeal and

allow preservation of the claim only through the

entry of a conditional guilty plea similar to the

conditional guilty plea permitted under Federal Rule

of Criminal Procedure 11(a)(2). See Taylor v. State,

2014 MT 60N (2014); Mont. Code § 46-12-204(3);

State v. Norris, 57 P.3d 238 (Utah App. 2002); Utah

R. Crim. P. Rule 11(j); see also Pet. App. 1–8, 9–10,

11; Va. Code § 19.2-254, Pet. App. 49. In these

states, preserving a vindictive prosecution claim by

utilizing the conditional guilty plea rules requires the

consent of the prosecutor who brought the additional

or more severe charges and the judge who allowed

the charges to proceed.

This case provides an excellent vehicle for this

Court to provide clarity to the States regarding the

scope of Class and the Menna-Blackledge doctrine. It

involves a quintessential vindictive prosecution claim

denied by a state appellate court after a guilty plea.

Guilty pleas are not uncommon in state courts. More

than “ninety-four percent of state convictions are the

result of guilty pleas.” Missouri v. Frye, 566 U.S.

134, 143 (2012) (citing Dep’t of Justice, Bureau of

Justice Statistics, S. Rosenmerkel, M. Durose, & D.

21

Farole, Felony Sentences in State Courts, 2006Statistical Tables at 1 (NCJ226846, rev. Nov. 2010),

available at https://www.bjs.gov/content/pub/pdf/fssc

06st.pdf.)

This case also showcases especially egregious

behavior on the part of the Commonwealth—

repeated constitutional violations during trial, more

misconduct while he pursued federal habeas relief,

and then a vindictive prosecution after he obtained

federal habeas relief, punishing Wolfe for exercising

his constitutional rights. A defendant in state court,

no less than a defendant in federal court, should be

entitled to the same due process protections to ensure

that the State has the constitutional authority to

prosecute.

This Court plays a critical role in

ensuring that state courts do not undermine Class,

the Menna-Blackledge doctrine, and the federal

habeas process by barring guilty-pleading defendants

from challenging the power of the State to hale them

into court—as the Virginia appellate courts did here.

22

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

MARVIN D. MILLER

Counsel of Record

KELLY R. GREEN

THE LAW OFFICES OF

MARVIN D. MILLER

1203 Duke Street

Alexandria, VA 22314

(703) 548-5000

ofc@mdmillerlaw.com

ASHLEY C. PARRISH

ISRA J. BHATTY

KING & SPALDING LLP

1700 Pennsylvania Ave., NW

Washington, DC 20006

(202) 737-0500

aparrish@kslaw.com

Counsel for Petitioner

August 20, 2018