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

Supreme Court briefJan 29, 2021

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NO. 20-______

In the

Supreme Court of the United States

________________

JUSTIN MICHAEL WOLFE,

Petitioner,

COMMONWEALTH OF VIRGINIA,

________________

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of Virginia

________________

PETITION FOR WRIT OF CERTIORARI

________________

MARVIN D. MILLER

ASHLEY C. PARRISH

THE LAW OFFICES OF Counsel of Record

MARVIN D. MILLER

JILL R. CARVALHO

KING & SPALDING LLP

1203 Duke Street

1700 Pennsylvania Ave. NW

Alexandria, VA 22314

(703) 548-5000

Washington, DC 20006

ofc@mdmillerlaw.com

(202) 737-0500

aparrish@kslaw.com

jcarvalho@kslaw.com

Counsel for Petitioner

January 29, 2021

QUESTION PRESENTED

After petitioner Justin Wolfe obtained federal

habeas relief because of “abhorrent” prosecutorial

misconduct, the Commonwealth of Virginia

vindictively brought six new charges with more severe

penalties against Wolfe. Instead of requiring the

Commonwealth to justify the new charges, the trial

court rejected the vindictive prosecution claim on

grounds that are manifestly wrong. With no chance of

a fair trial, Wolfe entered a plea and then, on appeal,

argued that the trial court had no authority to convict

or sentence him because of the vindictive prosecution.

Instead of addressing the federal constitutional issues

raised by that claim, the Virginia courts concluded

that Wolfe’s guilty plea waived his right to appeal.

This Court granted certiorari, vacated the judgment,

and directed the Virginia courts to consider Class v.

United States, 138 S. Ct. 798 (2018). On remand, the

Virginia courts recognized that Wolfe’s guilty plea

does not bar his appeal. But they invented another

reason not to address Wolfe’s vindictive prosecution

claim, holding that Wolfe forfeited his appellate rights

because he purportedly did not preserve an argument

in favor of his position. As a result, nearly 20 years

after his original indictment, Wolfe remains in prison

without ever having received a fair trial. The question

presented is:

Whether a state court can avoid the federal

constitutional issues raised by a vindictive

prosecution claim, which challenges the State’s

constitutional authority to convict and impose

sentence, by applying a forfeiture rule that itself does

not comply with constitutional due process.

RELATED PROCEEDINGS

This case arises from the following proceedings in

This case arises from the following proceedings in the

Virginia state courts, Circuit Court of Prince William

County, Va., the Court of Appeals of Virginia, and the

Supreme Court of Virginia; the United States District

Court for the Eastern District of Virginia; the United

States Court of Appeals for the Fourth Circuit; and the

U.S. Supreme Court, listed here in reverse

chronological order:

•

Wolfe v. Virginia, No. 200205 (Va. Sept. 3,

2020), included as Appendix C;

•

Wolfe v. Virginia, No. 2081-16-14 (Va. Ct.

App. Dec. 9, 2019), included as Appendix B;

•

Wolfe v. Virginia, No. 18-227 (U.S. Jan. 7,

2019), reported at 139 S. Ct. 790;

•

Wolfe v. Virginia, No. 170780 (Va. Mar. 23,

2018);

•

Commonwealth of Virginia v. Wolfe,

Nos. CR12003732–37, CR05050489–90,

CR05050703, (Va. Cir. Ct. Prince William

Cty., March 29, 2016);

•

Wolfe v. Virginia, No. 13-555 (U.S. Feb. 24,

2014), reported at 571 U.S. 1197;

•

Wolfe v. Clarke, No. 12-7 (4th Cir. May 22,

2013), reported at 718 F.3d 277;

•

Wolfe v. Clarke, No. 2:05cv432 (E.D. Va.

Jan. 3, 2013), available at 2013 WL

12363382;

iii

•

Wolfe v. Clarke, No. 2:05cv432 (E.D. Va.

Dec. 26, 2012), available at 2012 WL

13103658;

•

Wolfe v. Clarke, Nos. 11-6, 11-7 (4th Cir.

Aug. 16, 2012), reported at 691 F.3d 410;

•

Wolfe v. Clarke, No. 2:05cv432 (E.D. Va.

Nov. 12, 2011), reported at 819 F. Supp. 2d

574;

•

Wolfe v. Clarke, No. 2:05cv432 (E.D. Va.

July 26, 2011), reported at 819 F. Supp. 2d

538;

•

Wolfe v. Johnson, No. 2:05cv432 (E.D. Va.

Feb. 4, 2010), reported at 940 F. Supp.2d

280;

•

Wolfe v. Johnson, No. 08-8 (4th Cir. May 11,

2009), reported at 565 F.3d 140;

•

Wolfe v. Johnson, No. 2:05cv432 (E.D. Va.

Feb. 8, 2008), available at 2008 WL 371117;

•

Wolfe v. True, No. 05-5197 (U.S. July 22,

2005), reported at 126 S. Ct. 10;

•

Wolfe v. Warden, Nos. 309126, 040125 (Va.

Mar. 10, 2005);

•

Wolfe v. Virginia, No. 03-5945 (U.S. Jan.

12, 2004), reported at 124 S. Ct. 1137;

•

Wolfe v. Virginia, No. 03-5945 (U.S. Nov.

17, 2003), reported at 124 S. Ct. 566;

•

Wolfe v. Commonwealth of Virginia, Nos.

021872, 022193 (Va. Feb. 28, 2003),

reported at 576 S.E.2d 471;

•

Commonwealth of Virginia v. Wolfe, Nos.

50489, 50490, 50702, 50703 (Va. Cir. Ct.

Prince William Cty. Jan. 7, 2002).

To the best of our knowledge, there are no other

proceedings in state or federal trial or appellate

courts, or in this Court, directly related to this case

within this Court’s Rule 14.1(b)(iii).

TABLE OF CONTENTS

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

RELATED PROCEEDINGS ...................................... ii

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

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

OPINIONS BELOW ................................................... 7

JURISDICTION ......................................................... 7

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED...................................... 7

STATEMENT OF THE CASE ................................... 8

REASONS FOR GRANTING THE PETITION....... 20

Claims of Vindictive Prosecution Are Not

Susceptible to Ordinary Waiver or Forfeiture . 21

II. When a State Invokes a Forfeiture Rule to

Avoid Addressing a Vindictive Prosecution

Claim, Its Decision Must Comply With the

Requirements of Due Process ........................... 25

III. The Question Presented Is Exceptionally

Important ........................................................... 30

CONCLUSION ......................................................... 34

APPENDIX

Appendix A

Opinion of the Virginia Court of

Appeals, Wolfe v. Virginia,

No. 2081-16-14 (Sept. 20, 2019) ................ App-1

Appendix B

Order of the Virginia Court of Appeals

Denying Petition for Appeal,

Wolfe v. Virginia, No. 2081-16-14

(Dec. 9, 2019) ........................................... App-20

Appendix C

Order of the Supreme Court of Virginia

Denying Petition for Appeal,

Wolfe v. Virginia, No. 200205

(Sept. 3, 2020) .......................................... App-22

Appendix D

Opinion of the Virginia Court of

Appeals, Wolfe v. Virginia,

No. 2081-16-14 (May 10, 2017) ............... App-24

Order of the Supreme Court of Virginia

Denying Petition for Appeal,

Wolfe v. Virginia, No. 170780

(Feb. 5, 2018) ........................................... App-32

Order of the Supreme Court of Virginia

Denying Petition for Appeal,

Wolfe v. Virginia, No. 170780

(Mar. 23, 2018) ........................................ App-34

Appendix E

Motion to Dismiss Indictments

Constituting a Vindictive Prosecution,

Circuit Court of Prince William County,

Virginia, Virginia v. Wolfe,

Nos. CR12003732-00, CR12003737-00

(Nov. 28, 2012) ......................................... App-35

vii

Appendix F

Transcript Excerpt of Hearing on

Motion to Dismiss Indictments

Constituting a Vindictive Prosecution,

Circuit Court of Prince William County,

Virginia, Virginia v. Wolfe,

Nos. 05050489, et al. (Dec. 11, 2012) ...... App-53

Appendix G

Motion to Reconsider JW-2012031 to

Dismiss Indictments Constituting a

Vindictive Prosecution, Circuit Court of

Prince William County, Virginia,

Virginia v. Wolfe, Nos. CR12003732-00,

et al. (Oct. 23, 2014)................................. App-97

Appendix H

Executed Plea Agreement Form

(Mar. 22, 2016) ...................................... App-109

Appendix I

Va. Sup. Ct. R. 5A:18............................. App-114

viii

TABLE OF AUTHORITIES

Cases

Alabama v. Smith,

490 U.S. 794 (1989)................................................ 31

Berry v. Mississippi,

552 U.S. 1007 (2007).............................................. 18

Blackledge v. Perry,

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

Brady v. Maryland,

373 U.S. 83 (1963).................................................... 9

Carper v. State,

27 Ohio St. 572 (1875) ........................................... 24

Class v. United States,

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

Currier v. Virginia,

138 S. Ct. 2144 (2018)............................................ 27

Duck v. Commonwealth,

383 S.E.2d 746 (Va. Ct. App. 1989) ........... 15, 16, 32

Eure

v. Norfolk Shipbuilding & Drydock Corp.,

561 S.E.2d 663 (2002) ............................................ 28

Giglio v. United States,

405 U.S. 150 (1972).................................................. 9

Griffin v. Illinois,

351 U.S. 12 (1956).................................................. 31

Hamer v. Neighborhood Hous. Servs. of Chi.,

138 S. Ct. 13 (2017)................................................ 26

Harman v. Forssenius,

380 U.S. 528 (1965)................................................ 33

Hoke v. Commonwealth,

377 S.E.2d 595 (Va. 1989) ..................................... 29

Hormel v. Helvering,

312 U.S. 552 (1941).......................................... 28, 30

Johnson v. Zerbst,

304 U.S. 458 (1938).......................................... 23, 26

Lane v. Wilson,

307 U.S. 268 (1939)................................................ 29

Le v. Commonwealth,

774 S.E.2d 475 (Va. Ct. App. 2015) ....................... 29

Lenz v. Commonwealth,

544 S.E.2d 299 (Va. 2001) ..................................... 29

McDonald v. Commonwealth,

645 S.E.2d 918 (Va. 2007) ..................................... 29

Menna v. New York,

423 U.S. 61 (1975)................................ 21, 22, 23, 25

Muhammad v. Kelly,

575 F.3d 359 (4th Cir. 2009).................................. 12

Napue v. Illinois,

360 U.S. 264 (1959).................................................. 9

North Carolina v. Pearce,

395 U.S. 711 (1969)................................................ 31

Scialdone v. Commonwealth,

689 S.E.2d 716 (Va. 2010) ............................... 20, 27

Seminole Tribe of Fla. v. Florida,

517 U.S. 44 (1996).............................................. 3, 24

Teleguz v. Commonwealth,

643 S.E.2d 708 (Va. 2007) ..................................... 29

Tollett v. Henderson,

411 U.S. 258 (1973)................................................ 23

U.S. Term Limits, Inc. v. Thornton,

514 U.S. 779 (1995).......................................... 28, 33

United States v. Broce,

488 U.S. 563 (1989).................................................. 3

United States v. Goodwin,

457 U.S. 368 (1982)............................................ 2, 32

United States v. Hill,

93 F. App’x 540 (4th Cir. 2004) ............................... 5

United States v. Jackson,

390 U.S. 570 (1968)................................................ 31

United States v. Olano,

507 U.S. 725 (1993)................................................ 26

United States v. Williams,

504 U.S. 36 (1992).................................................... 5

West v. Commonwealth,

597 S.E.2d 274 (Va. Ct. App. 2004) ....................... 29

Wis. Dep’t of Corr. v. Schacht,

524 U.S. 381 (1998)................................................ 26

Wolfe v. Clarke,

691 F.3d 410 (4th Cir. 2012)...................... 11, 12, 15

Wolfe v. Clarke,

718 F.3d 277 (4th Cir. 2013).................................. 12

Wolfe v. Clarke,

819 F. Supp. 2d 538 (E.D. Va. 2011) ....... 1, 9, 10, 11

Wolfe v. Clarke,

819 F. Supp. 2d 574 (E.D. Va. 2011) ..................... 11

Wolfe v. Johnson,

565 F.3d 140 (4th Cir. 2009).............................. 9, 10

Wolfe v. Virginia,

139 S. Ct. 790 (2019).......................................... 3, 18

Constitutional Provisions

U.S. Const. amend. V ................................................. 8

U.S. Const. amend. XIV ............................................. 8

Rule

Supreme Court of Virginia, Rule 5A:18 ..... 6, 8, 18, 19

Other Authority

Brief in Opp.,

Wolfe v. Virginia, No. 18-227,

2018 WL 6012696 (U.S. Nov. 13, 2018) ................ 18

PETITION FOR WRIT OF CERTIORARI

This petition asks this Court to again reverse the

Virginia courts and, consistent with its earlier order

in this case, direct them to address the merits of

petitioner’s claim that the Commonwealth’s vindictive

prosecution violates his federal due process rights.

Because that claim goes to the very constitutional

power of the State to prosecute, it is not subject to

ordinary waiver or forfeiture. See Class v. United

States, 138 S. Ct. 798 (2018). The Court should grant

review to enforce its earlier remand order, to ensure

that the lower court addresses the important federal

constitutional issues that Wolfe has properly raised,

and to protect the integrity of the federal habeas

corpus process.

In 2002, a Virginia court sentenced petitioner

Justin Wolfe to death for purportedly hiring another

to commit murder—a crime that he has consistently

maintained he did not commit. A decade later, Wolfe

obtained federal habeas relief because his trial was

blighted with egregious prosecutorial misconduct,

which included intentionally withholding material,

exculpatory information and knowingly 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, 423–24 (4th Cir. 2012).

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

the Fourth Circuit affirming the grant of habeas relief

and vacating Wolfe’s convictions and death sentence,

the case returned to the Virginia courts for a new trial.

Instead of removing the taint caused by the

prosecutors’

constitutional

violations,

the

Commonwealth engaged in even more misconduct.

Without conducting a new investigation or obtaining

new information, prosecutors immediately filed six

additional charges against Wolfe that carried

penalties more severe than those accompanying the

original charges he had successfully challenged in

federal court. Under this Court’s precedent, the

Commonwealth’s actions give rise to a presumption of

vindictiveness that can only be overcome with

objective evidence that the new charges were justified.

See Blackledge v. Perry, 417 U.S. 21, 27–28 (1974)

(explaining that there is a “realistic likelihood of

‘vindictiveness’’’ in violation of federal due process

when a state prosecutor substitutes a more serious

charge for the original one after an appeal); see also

United States v. Goodwin, 457 U.S. 368, 374–75

(1982).

Despite the obvious concerns of vindictive

prosecution, the Virginia trial court refused to dismiss

the additional charges or even require the

Commonwealth to explain its reasons for bringing the

new charges. With little hope of receiving a fair trial

and facing another death sentence, Wolfe entered a

guilty plea. The trial court then sentenced Wolfe to 83

years in prison, with 42 years suspended, and ordered

him to pay court costs of approximately $871,000.

On appeal, Wolfe challenged the validity of his

plea because of the Commonwealth’s vindictive

prosecution, arguing that the trial court had no

authority to convict and sentence him under the new

charges. But the Virginia Court of Appeals refused

even to consider the claim. App. 11–15. In its view,

Wolfe had waived his appellate rights by voluntarily

entering a non-conditional guilty plea. The Virginia

Supreme Court summarily refused Wolfe’s petition for

appeal and also denied his petition for rehearing.

App. 22–23.

Wolfe petitioned this Court for certiorari in 2018.

Granting that request, the Court vacated the

judgment and remanded for the Virginia courts to

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

See Wolfe v. Virginia, 139 S. Ct. 790 (2019) (mem.).

Class 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.’” 138 S. Ct. at 801 (quotation marks

omitted). A vindictive prosecution claim meets that

requirement because it implicates “the very power of

the State” to prosecute the defendant. Id. at 803

(citing Blackledge, 417 U.S. at 30); 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)).

On remand, the Virginia Court of Appeals

conceded that, in light of Class, Wolfe’s guilty plea

does not bar him from raising his vindictive

prosecution claim on appeal. App. 14. But while it

purported to apply Class, it overlooked Class’s

essential reasoning. See Seminole Tribe of Fla. v.

Florida, 517 U.S. 44, 67 (1996) (noting that both the

result and the essential reasoning of this Court’s

decisions are binding). Disregarding the federal due

process principles that Class embraced, the court

instead concluded that it would not entertain the

appeal for a new and different reason—because Wolfe

had purportedly failed to preserve a supporting

argument in favor of his position.

The Virginia court’s refusal to consider Wolfe’s

vindictive prosecution claim is invalid as a matter of

federal law. A state court cannot apply forfeiture rules

to avoid the merits of a claim that goes to the

constitutional power of the state court to convict.

See Class, 138 S. Ct. at 803 (discussing Blackledge,

417 U.S. at 30). Under this Court’s precedents, there

are a few, very limited types of constitutional claims—

of which vindictive prosecution is one—that raise

serious concerns that even the initiation of

proceedings violates due process of law.

Id.

Accordingly, because a vindictive prosecution claim

raises a structural challenge to the government’s

power to “constitutionally prosecute,” and involves

more than just a personal right, it is not subject to

ordinary waiver or forfeiture. Id. at 805 (quotation

marks omitted).

At a minimum, if a state court seeks to avoid

adjudicating this kind of claim by applying a forfeiture

requirement, its ruling must be subject to a federal

due process analysis, lest the state court be allowed to

unconstitutionally (and even vindictively) block any

inquiry into the vindictive prosecution.

undertaking that analysis, this Court should

recognize that a state court forfeiture ruling

presumptively fails to comply with due process if it

imposes requirements that go beyond settled federal

preservation rules. Because federal preservation

rules presumptively comply with federal due process,

they establish a useful baseline for evaluating

whether state courts are improperly wielding state

procedures in violation of due process to abrogate

constitutional rights. Against that baseline, it is clear

that Wolfe more than adequately preserved his claim.

The record shows that Wolfe presented his

vindictive prosecution claim to the trial court, which

held an evidentiary hearing with argument before it

ruled on the issue. At that hearing, Wolfe’s counsel

argued that the new charges established a prima facie

case of vindictive prosecution because they were more

severe than his original charges that were vacated by

the Fourth Circuit. App. 75–94. The record further

shows that, in arguing that the new charges were

vindictive, his counsel compared the minimum

sentence for the original marijuana-distribution

charge in 2001, which was 5 to 30 years, with the

minimum sentence for the new charges of distributing

marijuana as part of a continuing criminal enterprise,

which were 20 years to life or 40 years to life.

See App. 78. Under well-settled law, the evidence and

arguments that Wolfe presented establish a

presumption of vindictiveness and a requirement that

the Commonwealth come forward with a valid

justification for bringing the new charges. See United

States v. Hill, 93 F. App’x 540, 549, 551 (4th Cir. 2004)

(increased severity of charges after conviction was

vacated results in a presumption of vindictiveness,

and government must then rebut that presumption).

Because Wolfe pressed his vindictive prosecution

claim to the trial court, and because the trial court

ruled on that claim, Wolfe is entitled to have the claim

resolved on its merits on appeal. Cf. United States v.

Williams, 504 U.S. 36, 41 (1992) (explaining

“traditional rule” that grant of certiorari is precluded

only when “question presented was not pressed or

passed upon below”) (quotation marks omitted).

Instead, the Virginia Court of Appeals threw Wolfe out

of court, concluding that he had not adequately

preserved his argument that the new charges

“increased the minimum punishment to which he

could have been subjected upon conviction.” App. 12

(emphasis in original). In support of that puzzling

conclusion, it invoked Virginia Supreme Court Rule

5A:18, which provides that “no ruling of [a] 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.” App. 12. Although this extreme application

of Rule 5A:18 is contrary to Class and the precedent

on which it relies, the Virginia Supreme Court

summarily denied Wolfe’s petition. See App. 22.

In refusing to consider Wolfe’s vindictive

prosecution claim, the Virginia Supreme Court and

the Virginia Court of Appeals violated Wolfe’s due

process rights, ignored the reasoning in Class, and

compounded the significant constitutional concerns

raised by the Commonwealth’s vindictive prosecution.

Rules of procedure cannot be deployed to abrogate

constitutional rights. And federal law does not permit

a state court to turn a blind eye to vindictive

prosecution undertaken in response to a successful

federal habeas petition. Because the Virginia courts

failed to understand the full import of Class and the

precedent on which it relies, this Court should grant

certiorari to ensure that the Virginia courts properly

comply with its earlier remand order and that Wolfe’s

federal claims are given the fair hearing that the

Constitution requires.

More broadly, because the remedy Wolfe seeks is

only a remand for his claim to be considered on its

merits, this case is an ideal vehicle for the Court to

provide guidance to the lower courts. In particular,

this case presents an opportunity for the Court to

reaffirm to the legal community and the public at large

that judicial proceedings are not mere procedural

games to be played by prosecutors, lawyers, and

judges. They are instead designed to protect the rule

of law by ensuring that the ends of justice are served.

OPINIONS BELOW

The decision of the Virginia Court of Appeals is

reproduced at App. 1–19. The order of the Supreme

Court of Virginia summarily refusing Wolfe’s petition

for appeal is reproduced at App. 22–23.

JURISDICTION

The Virginia Court of Appeals issued its decision

on September 20, 2019. The Supreme Court of

Virginia refused Wolfe’s petition for appeal on

September 3, 2020. Under this Court’s March 19,

2020 order, the Court extended the time for filing a

petition for writ of certiorari to 150 days from the

judgment, or February 1, 2021. The 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 rule of the Supreme Court of

Virginia, Rule 5A:18, which governs the preservation

of issues for appellate review is reproduced at

App. 114.

STATEMENT OF THE CASE

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 extraordinary 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.

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, and permitted its witnesses to

present perjured testimony in violation of Giglio v.

United States, 405 U.S. 150 (1972), and Napue v.

Illinois, 360 U.S. 264 (1959).

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 it would be Barber’s only

way to escape 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

sentence of imprisonment for 60 years, with 22 years

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

The district court concluded that the

Commonwealth knew the implications of its failure to

disclose exculpatory evidence and its deliberate

submission of false testimony. The 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

extraordinary and alarming testimony admitting

“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. (emphasis

added).

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.

Noting the

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.” Wolfe v. Clarke, 819 F. Supp. 2d 574, 588

(E.D. Va. 2011). 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.”

Id.

The court ordered that Wolfe be

transferred out of segregation and back to death row.

Id. At that point, Wolfe had been incarcerated

continuously since 2001, and most of that had been in

isolation.

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

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 was ill-placed. Only four days after

the Fourth Circuit’s mandate issued, the prosecutors

visited Barber in prison. 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) (Thacker, C.J.,

concurring in part). 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 that extreme

pressure, Barber held firm that Wolfe was not

involved. Id. at 296.

Two days later, the original prosecutors filed an

ex parte motion to recuse themselves. The motion

requested that, instead of assigning a new prosecutor

through a random process, the state trial court

appoint a special prosecutor personally selected by the

same original prosecutors that had intentionally

withheld exculpatory information and been lambasted

for it by the district court and by the Fourth Circuit.

The state trial court judge immediately granted the

motion, without notice to or a response from Wolfe.

The next day, the new prosecutor 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 did it out of greed . . . . Justin

Wolfe is many things but innocent is not one of them.”

App. 40.

At the same hearing, the prosecutor

confirmed that he had only reviewed materials from

the discredited original trial, and he made no mention

of any additional investigation by the Commonwealth.

Id. On October 1, 2012, without having conducted any

further investigation of the events that had led to

indicting Wolfe 11 years earlier, 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.

In total, in addition to the three original 2001

indictments, the prosecutor charged Wolfe with:

−

Two new and additional drug distribution as

part of a 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.

App. 48; see also App. 65–69.

Although Wolfe had never before faced a felony

murder charge or been charged with the use or display

of a firearm in the commission of or attempt to commit

a robbery, he now faced three separate and different

counts of murder and three separate and different

firearms charges. All of the 2012 indictments were

based on the same events for which the

Commonwealth originally indicted Wolfe in 2001,

without having conducted any further investigation.

5. In November 2012, Wolfe filed a motion to

dismiss the indictments, arguing that the newly

charged indictments were vindictive in violation of his

constitutional due process rights. The only plausible

explanation for the new, additional charges was

because Wolfe had obtained federal habeas relief. The

trial court held a hearing in December 2012, at which

the judge noted that she had considered the motion,

the supporting brief, and the exhibits. App. 54.

At the hearing, the trial court heard testimony

from Detective Newsome, who had investigated the

case in 2001 and whose exculpatory report formed the

basis for one of the Commonwealth’s Brady violations.

App. 56–74; Wolfe, 691 F.3d at 417. Wolfe’s counsel

questioned Detective Newsome about (1) the penalties

for the current indictments as compared to the

original indictments; (2) his conversation with Owen

Barber after Wolfe’s convictions had been overturned,

during which Newsome and prosecutors threatened

Barber with capital punishment if he did not disavow

his recantation of his testimony from 2001; and

(3) whether any new investigation had been conducted

since Wolfe’s original conviction in 2001.

The

Commonwealth briefly cross-examined Detective

Newsome.

Wolfe’s counsel then argued that the

circumstances were sufficient to give rise to a

presumption of prosecutorial vindictiveness under

Blackledge and binding Virginia caselaw. See Duck v.

Commonwealth, 383 S.E.2d 746 (Va. Ct. App. 1989);

see also App. 84 (arguing that the “cumulative effect”

of the new charges should be considered). That

presumption would shift the burden to the

Commonwealth to offer a valid basis for bringing the

new charges. With no explanation to offer, and even

though the special prosecutor was selected by the

original prosecutors, the Commonwealth argued that

because the person serving as special prosecutor was

not

involved

the

original

prosecution,

vindictiveness was impossible. App. 86–89. It also

took the position that because death was a possible

penalty in the first case, there could never be a greater

punishment on re-trial, even if many new and more

serious charges were added. See App. 89 (arguing that

“[a]ny other sentences would be cumulative to the

harshest sentence that is allowed for under these new

charges and the old charges which is death”); but see

Duck, 383 S.E.2d at 572–73 (holding that when a

defendant is “exposed to an increased penalty range,”

there is a realistic likelihood of vindictiveness). In

essence, the Commonwealth argued that there can

never be a presumption of vindictive prosecution in a

capital case.

After hearing testimony and argument, the trial

court denied Wolfe’s motion, reaching the conclusion

that the evidence was not sufficient to establish even

a prima facie case of vindictiveness. The trial court

held that the Commonwealth brought “additional

charges, not enhanced charges.” App. 94. It thus

accepted the Commonwealth’s suggestion that

because the original charges sought the death penalty

for capital murder, the six additional charges could

not be more severe, even though Wolfe was exposed to

a significant increase in penalty range. Based on this

spurious reasoning, the court found no “presumption”

of vindictiveness. App. 94–95. Wolfe’s counsel asked

the trial court to hold a hearing on actual

vindictiveness, which was postponed. App. 95–96.

Wolfe’s counsel also noted their exceptions to the

court’s rulings. App. 96. Wolfe’s counsel later filed a

motion to reconsider the ruling on the motion to

dismiss indictments constituting a vindictive

prosecution. App. 97–108.

Concluding that he had no hope of a fair trial,

Wolfe pled 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

the new charges. App. 109–113. The trial court

ultimately sentenced Wolfe to 83 years in prison, with

42 years suspended, and ordered him 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 vindictive prosecution after he had successfully

obtained habeas relief in federal court. The Virginia

Court of Appeals refused to consider these arguments.

Ducking the serious issues raised by the prosecutors’

new charges, it instead concluded that, because

Wolfe’s guilty plea was not conditional, he had waived

his ability to raise his vindictive prosecution claim on

appeal. App. 26–29. The Supreme Court of Virginia

summarily refused Wolfe’s petition for appeal and

later denied his petition for rehearing. App. 32–34.

6. Wolfe filed a petition for certiorari with this

Court in August 2018. His petition urged the Court to

summarily reverse and presented a single question:

“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.” In opposing the petition, the

Commonwealth argued that this Court lacked

jurisdiction to consider the petition because “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.” Brief in Opp., Wolfe v.

Virginia, No. 18-227, 2018 WL 6012696, at *5 (U.S.

Nov. 13, 2018). Citing Virginia Rule 5A:18, the

Commonwealth asserted that the Virginia courts’

decision rested “upon an adequate and independent

state ground that deprives this Court of jurisdiction.”

Id. (quoting Berry v. Mississippi, 552 U.S. 1007, 1007

(2007) (per curiam)).

In January 2019, rejecting the Commonwealth’s

jurisdictional arguments, this Court granted

certiorari and summarily reversed. It vacated the

judgment and remanded the case to Virginia “for

further consideration in light of Class v. United

States.” Wolfe v. Virginia, 139 S. Ct. 790, 790 (2019)

(mem.).

7. On remand, the Virginia Court of Appeals

directed the parties to provide supplemental briefing

on the vindictive prosecution claim. In a per curiam

opinion, it once again refused to consider the merits of

Wolfe’s vindictive prosecution claim and rejected

Wolfe’s appeal. The court held that in light of Class,

Wolfe could raise the vindictive prosecution claim

despite his guilty plea. App. 14. But it then invented

a different reason to avoid addressing Wolfe’s claim

that he was denied due process as a result of vindictive

prosecution: it concluded that Wolfe’s claim was

forfeited. Id.

Invoking Rule 5A:18, which limits an appellate

court’s authority to consider claims that are not

presented in the first instance to the trial court,

App. 12, the Virginia Court of Appeals concluded that

the claim “present[ed] on appeal” was not that the new

charges constituted vindictive prosecution, but the

more specific argument that “the new charges the

special prosecutor brought increased the minimum

punishment to which [Wolfe] could have been

subjected on conviction.”

App. 12 (emphasis in

original). Because that argument was purportedly not

presented to the trial court, the Virginia court

concluded that Wolfe had forfeited his ability to

appeal. According to the Virginia court, “the waiver

under Rule 5A:18 is more expansive than the waiver

occasioned by a defendant’s guilty plea.” App. 13–14.

In applying its novel forfeiture theory, the

Virginia Court of Appeals overlooked the record

evidence showing that Wolfe’s counsel did argue the

minimum punishment issue to the trial court. In fact,

Wolfe’s counsel specifically argued that the new

charges were more severe because they would impose

an increased penalty range and overall greater

sentence:

The [2001] conspiracy to distribute marijuana

is five to thirty and the [2012] 18.2-248(H1) is

twenty to life. The H2 is a life charge unless

you cooperate with police in which the Court,

in its discretion, can reduce the sentence

down to forty years. There’s not anything

that can be clearer. … The motion that’s filed

is saying the posture of the case gives rise to

this presumption of vindictiveness.

App. 78; see also id. at 91–94 (arguing that because

Barber had recanted his testimony, it was important

to consider the length of sentence imposed by the

additional charges); see also id. at 92–93 (arguing that

added charges were more severe because they would

result in an effective life sentence). The trial court

understood Wolfe’s objection and had every

opportunity to “rule intelligently on the issue,” which

is all that Virginia law requires. Scialdone v.

Commonwealth, 689 S.E.2d 716, 725 (Va. 2010).

The Virginia Supreme Court denied Wolfe’s

petition for appeal without reasoning on September 3,

2020. App. 22. It ordered the appellant to pay the

Commonwealth for all costs incurred in the appeal.

Id.

REASONS FOR GRANTING THE PETITION

The Court should grant review to reaffirm that a

party cannot ordinarily waive, much less forfeit, a

claim that his due process rights have been violated

because of vindictive prosecution. When asked to

adjudicate this important question of federal law—one

of a narrow category of claims that go to the

constitutional power of the state court to convict and

impose sentence—a state court cannot avoid resolving

the underlying federal law question through a novel

forfeiture ruling. The issue of the preservation vel non

of a federal due process objection to a vindictive

prosecution in state court must itself be subject to

federal due process analysis—lest a state court be

allowed to vindictively and unconstitutionally ignore

a defendant’s protests against a vindictive state

prosecution by improperly claiming forfeiture.

Applying federal constitutional analysis to the

grounds of decision below, Wolfe more than

adequately preserved his federal claim and is entitled

to have that claim addressed on appeal.

Claims of Vindictive Prosecution Are Not

Susceptible

Ordinary

Waiver

Forfeiture.

This Court has long recognized—and recently

reaffirmed in Class—that claims for vindictive

prosecution fall within a narrow category of claims

that ordinarily cannot be waived or forfeited because

they raise a fundamental jurisdictional question that

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

defendant.” 138 S. Ct. at 803 (quoting Blackledge, 417

U.S. at 30). With respect to these categories of claims,

a successful appeal extinguishes the government’s

right to constitutionally prosecute the defendant and

denies the court jurisdiction to impose sentence. Id at

804–05.

In concluding that even a knowing guilty plea

does not waive a defendant’s right on appeal to

challenge the government’s authority to hale a

defendant into court, Class drew on two earlier

cases—Blackledge, 417 U.S. 21, and Menna v. New

York, 423 U.S. 61 (1975)—involving vindictive

prosecution and double jeopardy claims, respectively.

138 S. Ct. at 803–05. In Blackledge, the State of North

Carolina re-indicted the defendant on 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 did not waive his vindictive prosecution

challenge by pleading guilty.

Blackledge expressed concern that a defendant

must be allowed to pursue his right to appeal without

apprehension that the State will retaliate with more

serious charges. Blackledge, 417 U.S. at 30. Citing

Blackledge, Class explained that 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

(quoting 417 U.S. at 30). 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. Citing Blackledge, the

Court held that, because the defendant claimed “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 62 n.2). In short, when

“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.” Menna, 423

U.S. at 62 & n.2 (citing Blackledge, 417 U.S. at 30).

Class, Blackledge, and Menna establish a

category of claims for which even a knowing guilty

plea does not waive a constitutional claim challenging

the power of the State to prosecute. Class, 138 S. Ct.

at 803–04; compare Tollett v. Henderson, 411 U.S. 258,

266–67 (1973) (recognizing that unconditional guilty

pleas do extinguish other claims of antecedent

constitutional error). Claims falling with that narrow

category raise important structural concerns that

require indulging every presumption against waiver

and resolving the claims on their merits. See Johnson

v. Zerbst, 304 U.S. 458, 464 (1938) (courts must

“indulge every reasonable presumption against waiver

of fundamental constitutional rights”) (quotation

marks omitted).

Because these principles are grounded in federal

due process, they apply with equal force in both the

federal and state contexts. 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 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 Court’s assessment of

these federal and state cases in Class confirmed that

a knowing guilty plea does not waive a claim that

challenges a court’s constitutional authority to convict

and sentence. See id. at 805.

Under Class’s rationale, an involuntary forfeiture

cannot bar claims falling within the narrow category

addressed in Blackledge and Menna. See Seminole

Tribe, 517 U.S. at 67 (explaining that both the holding

and essential reasoning of a decision is binding). As

both the majority and dissent in Class acknowledged,

because “a rule of procedure cannot abrogate a

constitutional right,” 138 S. Ct. at 809 (Alito, J.,

dissenting), the Blackledge-Menna doctrine imposes

an important due process exception to the

requirements of Rule 11(a)(2) of the Federal Rules of

Criminal Procedure, which ordinarily prevents a

guilty-pleading defendant from challenging his

conviction on a forfeitable or waivable ground. Id. at

806.

If federal due process necessitates an exception to

the federal rules of criminal procedure, it also must

constrain state courts in a similar fashion. When a

party brings a vindictive prosecution claim that calls

into question the state court’s authority to convict and

impose sentence, the claim goes to the constitutional

power of the State. Because that claim raises not only

a personal right, but is also important to protecting

constitutional structural guarantees, the claim is not

subject to forfeiture.

II. When a State Invokes a Forfeiture Rule to

Avoid Addressing a Vindictive Prosecution

Claim, Its Decision Must Comply With the

Requirements of Due Process.

As in Class and Blackledge, this case involves a

claim that challenges the very power of the State to

“constitutionally prosecute.” Wolfe contends that the

state court lacked any jurisdiction to convict or

sentence him because the six new and more serious

charges brought by a prosecutor handpicked by those

whose intentional and knowing misconduct led to his

prior convictions were vindictive in violation of his due

process rights. Class, 138 S. Ct. at 803–04 (citing

Blackledge, 417 U.S. at 30; Menna, 423 U.S. at 63).

Indeed, the new charges were brought in response to

and immediately following his successful federal

habeas petition. They had the sole purpose of forcing

Wolfe into an untenable position—plead guilty or else

defend against six new charges with harsher

penalties. The Commonwealth has never offered any

credible explanation that could justify bringing the

new charges, especially because it admitted that it

brought the charges eleven years after the first

without any additional investigation.

In these circumstances, if the federal due process

guarantees recognized in Class and Blackledge are to

count for anything, they must mean that the state

courts are duty bound to consider Wolfe’s vindictive

prosecution claim on its merits. By the same logic, the

state courts cannot avoid addressing the important

federal constitutional issues that Wolfe’s claim raises

through novel application of forfeiture rules. Indeed,

if a party cannot waive a vindictive prosecution claim

by voluntarily entering a knowing guilty plea, the

claims also cannot be thrown out of court on the theory

that an argument presented to and considered by the

trial court was unknowingly forfeited. See United

States v. Olano, 507 U.S. 725, 733 (1993)

(distinguishing between “waiver,” the “‘intentional

relinquishment’” of a right, and “forfeiture,” the

failure to timely assert a right) (quoting Johnson, 304

U.S. at 464). Under both circumstances, the state

court’s obligation is to resolve the vindictive

prosecution claim and to ensure that the trial court

had constitutional authority to convict and sentence

the defendant.

It has long been recognized that jurisdictionaltype defects are not subject to ordinary rules of waiver

and forfeiture. As this Court has recognized in other

contexts, “[n]o party can waive [a jurisdictional]

defect” or even “consent to jurisdiction.” Wis. Dep’t of

Corr. v. Schacht, 524 U.S. 381, 389 (1998). Similarly,

“[n]o court can ignore the defect; rather, a court,

noticing the defect, must raise the matter on its own.”

Id. In short, “[i]n contrast to the ordinary operation of

our adversarial system, courts are obliged to notice

jurisdictional issues and raise them on their own

initiative.” Hamer v. Neighborhood Hous. Servs. of

Chi., 138 S. Ct. 13, 17 (2017). That principle should

apply with particular force where the claim stems

from vindictive prosecution, because resolving the

constitutional issues is important to the integrity of

the judicial system.

When a defendant has

successfully obtained relief, either on appeal or

through federal habeas proceedings, and prosecutors

bring new and more serious charges, it is important

for the judicial system to ensure that the prosecutors

have a compelling and valid justification for doing so.

The record in this case is clear that Wolfe properly

preserved his claim that the Commonwealth engaged

in vindictive prosecution because the six new charges

were more serious than the charges on which he was

originally indicted before he sought and obtained

federal habeas relief. See App. 75–96, 97–108. The

record is also clear that the trial court considered and

ruled on these issues. App. 54, 94–96. Wolfe did not

consent to the vindictive prosecution or the bringing of

those new, more severe charges.

Cf. Currier v.

Virginia, 138 S. Ct. 2144 (2018) (finding that

defendant lost on merits of double jeopardy claim

because he consented to two trials).

In refusing to entertain Wolfe’s appeal, the

Virginia court concluded that Wolfe had not

adequately argued to the trial court that “the new

charges the special prosecutor brought increased the

minimum punishment to which he could have been

subjected upon conviction.” App. 12. That hairsplitting imposition of Virginia’s forfeiture rule is not

consistent with the record in this case. See App. 78

(arguing that the differences in punishment

established vindictive prosecution); see also App. 92–

93 (arguing that it was important to consider the

length of sentence available under the additional

charges). It may not even be consistent with Virginia

law. See Scialdone, 689 S.E.2d at 726 (even though

defendants “imprecise[ly]” objected at the trial court,

claim preserved on appeal because they had

“presented their arguments squarely to the [trial]

court”); Eure v. Norfolk Shipbuilding & Drydock

Corp., 561 S.E.2d 663, 667 (2002) (even though the

party did not object precisely, issue was preserved on

appeal because the trial court had considered issue

and ruled on it).

But whether the state court’s rigid forfeiture

ruling is or is not consistent with Virginia law does not

matter. Whatever Virginia law may require, the

ruling still must satisfy minimum federal due process

requirements. A state court necessarily violates due

process if it refuses to address the structural

constitutional questions raised by a vindictive

prosecution claim. See Blackledge, 417 U.S. 21 at 31.

As this Court has long recognized, “[a] rigid and

undeviating” practice of declining to consider

questions that had “not previously been specifically

urged would be out of harmony with … the rules of

fundamental justice.” Hormel v. Helvering, 312 U.S.

552, 557 (1941) (“Orderly rules of procedure do not

require sacrifice of the rules of fundamental justice”).

The Commonwealth’s forfeiture ruling is itself

presumptively vindictive and contrary to due process

because it goes far beyond any forfeiture requirements

under federal law, which presumptively reflect the

bounds of due process. If a State seeks to impose

stricter requirements, it must do so in a way that does

not infringe on constitutional rights. The Constitution

“nullifies sophisticated as well as simple-minded

modes” of infringing on constitution rights, see U.S.

Term Limits, Inc. v. Thornton, 514 U.S. 779, 829

(1995) (quoting Lane v. Wilson, 307 U.S. 268, 275

(1939)), and the Commonwealth’s courts cannot

insulate its prosecutors’ misconduct and abrogate

constitutional rights through the clever use of

forfeiture rules.

Nothing in the Virginia Court of Appeals’ decision

is sufficient to overcome the presumption that by

imposing

excessively

stringent

forfeiture

requirements, the Commonwealth has violated

Wolfe’s federal due process rights. The cases cited by

the Virginia court—with one exception—do not

involve a federal constitutional claim going to the

constitutional power of the Commonwealth to

prosecute, convict, and sentence a defendant. The

cases instead address motions for a new venue, see

Hoke v. Commonwealth, 377 S.E.2d 595 (Va. 1989),

motions relating to evidentiary issues at trial, see

Teleguz v. Commonwealth, 643 S.E.2d 708 (Va. 2007),

Le v. Commonwealth, 774 S.E.2d 475 (Va. Ct. App.

2015), claims relating to the facial invalidity of a

Virginia statute, McDonald v. Commonwealth, 645

S.E.2d 918 (Va. 2007), and claims challenging the

failure to poll jurors, Lenz v. Commonwealth, 544

S.E.2d 299 (Va. 2001). These are all circumstances

where forfeiture is routinely applied.

The one

exception involves a case where the defendant sought

to raise a claim of double jeopardy that was never

presented to the trial court at the time of ruling. See

West v. Commonwealth, 597 S.E.2d 274 (Va. Ct. App.

2004). But that case was decided before this Court’s

decision in Class and there is no evidence that any

party raised an objection under Blackledge.

In short, while the Virginia Court of Appeals

purported to take this Court’s previous remand

seriously, in reality it didn’t, once again circumventing

its obligation to review the Commonwealth’s

prosecutors’ continuing misconduct and to ensure that

the trial court had the constitutional power to convict

and impose sentence. By imposing an extreme

forfeiture requirement, the Virginia court ignored

Class’s broader import and rationale. In doing so, it

defied the Court’s remand order and further violated

Wolfe’s due process rights.

III. The Question Presented Is Exceptionally

Important.

This case presents an exceptionally important,

simply presented, and unusually elegant opportunity

to enforce this Court’s earlier remand order and to

affirm to the broader public that the ends of justice are

justice, and not procedural games played by lawyers.

Hormel, 312 U.S. at 557. If this Court does not grant

certiorari and reverse, it will send an unfortunate

signal that state courts are free to disregard essential

constitutional requirements (and this Court’s own

decisions) in response to a grant of federal habeas

relief, as long as they hide behind clever procedural

rulings that expand state rules beyond the bounds of

federal due process. When the lower courts have

refused to do what the Constitution requires, this

Court’s supervisory authority is especially vital to

protecting the integrity of the criminal justice system.

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

important in cases, like this one, where a State ups the

ante after the defendant successfully challenges his

convictions in the federal habeas process because of

severe and shameful constitutional transgressions by

the State.

Preserving

judicial review of vindictive

prosecution claims is especially important in this

context because “penalizing those who choose to

exercise

constitutional

rights”

“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.

These concerns are presented in spades in this

case. Wolfe has been in prison for nearly 20 years, but

he has never received a fair trial free from

prosecutorial misconduct. His original trial was

marred by repeated Brady and Giglio violations, he

faced additional misconduct when he pursued federal

habeas relief, and, after obtaining relief, he was again

denied a fair trial because of vindictive prosecution.

The Commonwealth’s courts have an obligation to

address these abuses. They cannot just look the other

way, creatively deploying forfeiture rules in legally

and factually unsupported ways to avoid addressing

the merits of Wolfe’s federal constitutional claims.

Those claims raise fundamental questions about the

state trial court’s authority to convict and impose

sentence.

All that Wolfe seeks is to have the Virginia courts

fairly evaluate the merits of his vindictive prosecution

claim.

That means recognizing that the

Commonwealth’s decision to bring six new charges

with more severe penalties establishes a prima facie

case of vindictive prosecution. See Blackledge, 417

U.S. at 27–28; Duck, 383 S.E.2d at 749. The burden is

therefore on the Commonwealth to come forward with

objective evidence and a credible reason to justify the

additional charges that does not depend on the fact

that it simply disagrees with the federal courts’

determination that Wolfe was entitled to habeas relief.

See Goodwin, 457 U.S. at 376 n.8 (objective evidence

can overcome presumption of vindictiveness). The

Commonwealth has never even attempted to provide

that explanation because it can’t.

* *

Two years ago, this Court granted review for the

Virginia courts to consider Class in evaluating Wolfe’s

vindictive prosecution claim. If the Virginia courts

had expressly refused that mandate, this Court would

have surely stepped in to enforce its order and protect

the important federal constitutional interests at

stake. But that is no different from what has in fact

happened. Wolfe’s constitutional rights are of “little

value” because they have been “indirectly denied” by

the Virginia court’s imposition of improper forfeiture

rules, which is itself a violation of Wolfe’s due process

rights. U.S. Term Limits, 514 U.S. at 829 (quoting

Harman v. Forssenius, 380 U.S. 528, 540 (1965)).

This Court plays an important role in not only

enforcing federal constitutional rights, but also in

protecting the integrity of the judicial system as a

whole. That role is essential to preventing the public

from becoming disillusioned that the legal system has

become too procedurally complex—a game for lawyers

that no longer serves the ends of justice and that

insulates deliberate misconduct by prosecutors. This

case is an ideal vehicle to reassert the constitutional

values that are essential to maintaining the rule of

law. Wolfe’s federal due process claim arising from the

Commonwealth’s vindictive prosecution is entitled to

be considered on its merits on appeal.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

ASHLEY C. PARRISH

Counsel of Record

JILL R. CARVALHO

KING & SPALDING LLP

1700 Pennsylvania Ave. NW

Washington, DC 20006

(202) 737-0500

aparrish@kslaw.com

jcarvalho@kslaw.com

MARVIN D. MILLER

THE LAW OFFICES OF

MARVIN D. MILLER

1203 Duke Street

Alexandria, VA 22314

(703) 548-5000

ofc@mdmillerlaw.com

Counsel for Petitioner

January 29, 2021

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.