Opposition Brief — Justin Michael Wolfe, Petitioner v. Virginia

No. 18-227

In the Supreme Court of the United States

---------------------------------

JUSTIN MICHAEL WOLFE, PETITIONER,

v.

COMMONWEALTH OF VIRGINIA

--------------------------------ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

--------------------------------BRIEF IN OPPOSITION

--------------------------------MARK R. HERRING

Attorney General

TOBY J. HEYTENS

Solicitor General

Counsel of Record

VICTORIA N. PEARSON

Deputy Attorney General MATTHEW R. MCGUIRE

Principal Deputy

Solicitor General

MICHELLE S. KALLEN

Deputy Solicitor General

BRITTANY M. JONES

Attorney

OFFICE OF THE VIRGINIA

ATTORNEY GENERAL

202 North Ninth Street

Richmond, Virginia 23219

(804) 786-7240

SolicitorGeneral@oag.state.va.us

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

QUESTION PRESENTED

Whether a guilty plea in state court constitutes a

waiver of a vindictive prosecution claim under Class v.

United States, 138 S. Ct. 798 (2018).

i

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .....................................

i

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

iii

OPINIONS BELOW ...............................................

1

JURISDICTION .....................................................

1

STATEMENT..........................................................

1

ARGUMENT ...........................................................

4

CONCLUSION .......................................................

8

iii

TABLE OF AUTHORITIES

Page

Cases:

Blackledge v. Perry,

417 U.S. 21 (1974) .....................................................8

Berry v. Mississippi,

552 U.S. 1007 (2007)..................................................5

Brady v. Maryland,

373 U.S. 83 (1963) .....................................................2

Class v. United States,

138 S. Ct. 798 (2018) ......................................... 4, 7, 8

Menna v. New York,

423 U.S. 61 (1975) .....................................................7

Smith v. State,

841 A.2d 308 (Del. 2004) ...........................................7

Taylor v. State,

2014 MT 60N (Mont. 2014) .......................................7

Wolfe v. Clarke,

691 F.3d 410 (4th Cir. 2012) ......................................2

Wolfe v. Clarke,

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

Wolfe v. Johnson,

565 F.3d 140 (4th Cir. 2009) ......................................2

Statutes and Rules:

28 U.S.C. § 1257(a) ........................................................1

Sup. Ct. R. 10(a) ............................................................6

Sup. Ct. R. 10(b) ............................................................6

S. Ct. Va. R. 5A:18 ..................................................... 3, 5

OPINIONS BELOW

The opinion of the Supreme Court of Virginia

denying the petition for appeal (Pet. App. 9a–10a) and

the order denying rehearing (Pet. App. 11a–12a) are

unreported. The opinion of the Court of Appeals of Virginia denying the petition for appeal (Pet. App. 1a–8a)

is unreported.

JURISDICTION

The judgment of the Supreme Court of Virginia

was entered on February 5, 2018. A petition for rehearing was denied on March 23, 2018 (Pet. App. 11a). On

June 8, 2018, the Chief Justice extended the time to

file a petition for a writ of certiorari to and including

August 20, 2018, and the petition was filed on that

date. This Court’s jurisdiction is invoked under

28 U.S.C. § 1257(a).

STATEMENT

1. In March 2001, Daniel Petrole, Jr. was found

dead in his car outside his residence. Va. S. Ct. R.

11497. Investigation revealed that Petrole had been

supplying petitioner with large amounts of marijuana,

which petitioner would distribute. Id. at 11498–99. A

debt sheet found with Petrole’s body showed that petitioner owed Petrole substantial amounts of money. Id.

at 11498.

Police tracked a gun found near the body to Owen

Barber, who confessed to participating in Petrole’s

murder. Va. S. Ct. R. 11498–500. Barber told police that

he and petitioner had discussed murdering Petrole and

1

2

that they had developed a plan to have Barber rob and

murder Petrole in exchange for four pounds of marijuana, $10,000, and forgiveness of Barber’s debt to petitioner. Id. at 11500–01.

2. In 2002, petitioner was convicted of capital

murder in connection with Petrole’s murder and sentenced to death. Wolfe v. Johnson, 565 F.3d 140, 149

(4th Cir. 2009). That conviction was later vacated on

federal habeas review, and federal courts ultimately ordered that petitioner be retried or released. See Wolfe

v. Clarke, 691 F.3d 410, 413 (4th Cir. 2012).

3. The federal courts granted habeas relief because they concluded that the original prosecutors had

violated their obligations under Brady v. Maryland,

373 U.S. 83 (1963), by “suppress[ing]” a police report

that could have been used to impeach Barber’s testimony against petitioner. See Wolfe, 691 F.3d at 417–18,

422–23; see also Wolfe v. Clarke, 718 F.3d 277, 296–97

(4th Cir. 2013). As a result, the state trial court appointed a special counsel to handle the second trial before petitioner was retried. Va. S. Ct. R. 159 (motion by

original prosecutor to appoint a special prosecutor); id.

at 160 (order granting motion).

Before his retrial, however, petitioner pleaded

guilty to three charges: first-degree murder; use of a

firearm in the commission of a felony; and conspiracy

to distribute marijuana. Pet. App. 13a (listing indictments to which petitioner pleaded guilty); accord Va. S.

Ct. R. 1–2, 344 (relevant indictments). The state trial

court accepted petitioner’s guilty pleas, concluding

that the pleas were knowing and voluntary and that

3

petitioner was guilty of the charges. See Va. S. Ct. R.

11480–94. Indeed, petitioner admitted on the record—

through a letter read by his attorney—that he was responsible for Petrole’s murder. See id. at 11514–19.

The state trial court sentenced petitioner to 60 years

on the murder charge (with 27 years suspended); 3

years on the firearm charge; and 20 years on the marijuana charge (with 15 years suspended). Va. S. Ct. R.

11586. The court ordered the sentences to run consecutively for a total of 41 years of active incarceration (33

years on the murder charge, 3 years on the firearms

charge, and 5 years on the marijuana charge). Id. at

11588.

4. Petitioner appealed to the Court of Appeals of

Virginia, asserting three errors. Va. S. Ct. R. 8833–35.

The case was referred to a single judge, who denied the

petition for appeal in an unsigned and unpublished decision. See Pet. App. 1a–8a.

As relevant here, petitioner argued that his guilty

plea was involuntary because he “was the target of vindictive prosecution that subjected [him] to increased

mandatory minimum sentences after successful postconviction proceedings.” Pet. App. 1a (internal quotation marks omitted). The court of appeals “[d]ecline[d]

to consider” that issue, however, because petitioner had

raised it “[f ]or the first time on appeal.” Id. at 4a, 6a.

The court of appeals thus concluded that petitioner’s

argument that the trial court erred in accepting his

plea violated Rule 5A:18 of the Rules of the Supreme

Court of Virginia, which “provides, in pertinent part,

that ‘[n]o ruling of the trial court . . . will be considered

4

as a basis for reversal unless an objection was stated

with reasonable certainty at the time of the ruling, except for good cause shown or to enable the Court of Appeals to obtain the ends of justice.’” Pet. App. 4a.1

5. The Supreme Court of Virginia denied a petition for appeal without comment, Pet. App. 9a–10a,

and likewise denied a petition for rehearing without

comment, Pet. App. 9a–11a.

ARGUMENT

The petition for a writ of certiorari should be denied. This Court lacks jurisdiction because the decision

below was based on petitioners’ failure to comply with

a longstanding and perfectly valid state procedural

rule rather than rejection of petitioner’s federal claim

on the merits. There is no decision from Virginia’s

highest court, and the unpublished, largely unreasoned decision from the state intermediate appellate

court does not, and could not, implicate any split in

lower court authority. And no split has yet developed

about how to apply this Court’s less than one-year-old

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

1. This Court lacks jurisdiction because the decision below rests on valid state procedural grounds. The

linchpin of petitioner’s argument is that the court of

appeals rejected his vindictive prosecution claim on

the theory “that, because [petitioner’s] guilty plea was

1

The court of appeals also denied petitioner’s third assignment of error, which challenged the order to pay costs associated

with the retrial. Pet. App. 6a–7a. That decision has not been challenged here.

5

not conditional, he had waived his ability to raise a vindictive prosecution claim on appeal.” Pet. 12.

But that is not what the Court of Appeals of Virginia said. Rather, the court of appeals’ decision was

based on forfeiture, not waiver, and it involved the timing and the forum in which petitioner first raised his

claim rather than the nature of his guilty plea. See Pet.

App. 6a (stating that the court would not “consider the

first and second assignments of error” because petitioner had raised them “for the first time on appeal”);

see also id. at 1a–2a (stating the first two assignments

of error as relating to the voluntariness of petitioner’s

guilty plea and vindictive prosecution); accord S. Ct.

Va. R. 5A:18 (“No ruling of the trial court * * * will be

considered as a basis for reversal unless an objection

was stated with reasonable certainty at the time of the

ruling, except for good cause shown or to enable the

Court of Appeals to attain the ends of justice.”).

In short, the court of appeals did not reject petitioner’s vindictive prosecution claim because he pleaded

guilty. Rather, the court of appeals never considered

that claim on the merits because petitioner failed to

preserve it as a matter of state law. The decision below

thus rests “upon an adequate and independent state

ground that deprives this Court of jurisdiction.” Berry

v. Mississippi, 552 U.S. 1007, 1007 (2007) (per curiam).

2. Even if this Court had jurisdiction, the decision below neither creates nor implicates any split in

lower court authority. The court of appeals’ unsigned

opinion in this case contains no meaningful analysis of

the issue petitioner claims is presented, see Pet. App.

6

1a–8a, nor does the Virginia Supreme Court’s one-page

decision refusing petitioner’s appeal, see id. at 9a–10a.

And because the Court of Appeals of Virginia’s decision

in this case is unpublished and nonprecedential, it

will not bind future courts in answering the question

whether a guilty plea necessarily waives the right to

raise a vindictive prosecution claim on appeal.

Petitioner never acknowledges that the decisions

in this case are not binding precedent and will not

control any future Virginia court. Nor does petitioner

identify any other decision by the Supreme Court of

Virginia showing that Virginia “view[s] a guilty plea as

a waiver of a vindictive prosecution claim on direct appeal.” Pet. 20. Any conceivable split of authority on that

question simply does not implicate Virginia.

3. In any event, there is currently no “conflict[ ]”

among the “United States court[s] of appeals” or “state

court[s] of last resort” over the question raised by petitioner. S. Ct. R. 10(a) & (b).

Petitioner frames his question presented as whether

“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.”

Pet. i. But, other than the Court of Appeals of Virginia’s

unpublished and nonprecedential decision here, all

eight of the decisions that petitioner claims comprise

that split were decided long before the this Court’s decision last Term in Class—the opinion that petitioner

claims points the way to its proper resolution. See Pet.

19–20 (cases decided between 1980 and 2014).

7

Moreover, even if decisions that pre-date Class

could serve as the basis for a circuit split about what

Class requires, almost none of the decisions cited by

petitioner satisfy Rule 10. Half of the decisions on

which petitioner relies on are not from the relevant

State’s highest court, see Pet. 20 (citing decisions from

the intermediate appellate courts of Arizona, Mississippi, Missouri, and Utah), and two more are unpublished, see Pet. 20 (citing Smith v. State, 841 A.2d 308

(Del. 2004) (unpublished op.); and Taylor v. State, 2014

MT 60N (Mont. 2014) (unpublished op.)). The final two

decisions on which petitioner relies—which were both

decided more than three-and-a-half decades ago—are

from a single State. See Pet. 19 (citing 1980 and 1981

decisions from New York).

4. Petitioner also vastly overstates Class and its

relevance to this case. In particular, petitioner is wrong

that Class “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.” Pet. 12.

Instead, Class considered whether a defendant who

pleaded guilty can still challenge the conviction by arguing “that the statute of conviction violates the Constitution.” 138 S. Ct. at 801–02 (emphasis added).

To be sure, this Court’s opinion in Class discusses the rules governing vindictive prosecution

claims. But it does so only in the context of explaining

the Blackledge-Menna doctrine, which generally applies to determine whether a defendant waived a particular claim by pleading guilty. See Class, 138 S. Ct.

at 803–04; accord Menna v. New York, 423 U.S. 61

8

(1975) (per curiam); Blackledge v. Perry, 417 U.S. 21

(1974). We do not dispute that the merits in a case like

this one would be addressed under Blackledge-Menna

line of cases. But Class (which, again, was about

whether a defendant can challenge the constitutionality of a statute) adds nothing to the analysis in a case

like this one where the sole claim would be vindictive

prosecution. Thus, even if petitioner had properly preserved this argument, see 4-5, supra, the petition for a

writ of certiorari should be denied because the question presented does not accurately reflect the issue this

Court would have to decide.

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted.

MARK R. HERRING

Attorney General

TOBY J. HEYTENS

Solicitor General

Counsel of Record

VICTORIA N. PEARSON

Deputy Attorney General MATTHEW R. MCGUIRE

Principal Deputy

Solicitor General

MICHELLE S. KALLEN

Deputy Solicitor General

BRITTANY M. JONES

Attorney

OFFICE OF THE VIRGINIA

ATTORNEY GENERAL

202 North Ninth Street

Richmond, Virginia 23219

(804) 786-7240

SolicitorGeneral@oag.state.va.us