Opposition Brief — Justin Wolfe, Petitioner v. Virginia

No. 20-1056

_______________________________________________

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

K. SCOTT MILES

Deputy Attorney General

DONALD E. JEFFREY, III

Senior Assistant

Attorney General

MATTHEW P. DULLAGHAN

Senior Assistant

Attorney General

TOBY J. HEYTENS

Solicitor General

Counsel of Record

MICHELLE S. KALLEN

JESSICA MERRY SAMUELS

Deputy Solicitors General

KENDALL T. BURCHARD

John Marshall Fellow

OFFICE OF THE VIRGINIA

ATTORNEY GENERAL

202 North Ninth Street

Richmond, Virginia 23219

(804) 786-7240

SolicitorGeneral@oag.state.va.us

i

QUESTION PRESENTED

Whether this Court’s holding in Class v. United

States, 138 S. Ct. 798 (2018), that a guilty plea does

not bar an appeal challenging the constitutionality of

the statute under which a defendant was convicted,

prevents state courts from enforcing longstanding

claim-presentation rules under which an appellate

court will not consider arguments that were not made

to the trial court.

ii

TABLE OF CONTENTS

Page

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

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

OPINIONS BELOW ................................................ 1

JURISDICTION........................................................ 1

STATEMENT ............................................................ 1

ARGUMENT .............................................................. 7

CONCLUSION ........................................................ 14

iii

TABLE OF AUTHORITIES

Page

CASES

Berry v. Mississippi,

552 U.S. 1007 (2007) ............................................... 11

Bethea v. Commonwealth,

831 S.E.2d 670 (Va. 2019) ....................................... 10

Blackledge v. Perry,

417 U.S. 21 (1974) ............................................. 13, 14

Brady v. Maryland,

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

Class v. United States,

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

Menna v. New York,

423 U.S. 61 (1975) ............................................. 13, 14

Singleton v. Wulff,

428 U.S. 106 (1976) ................................................. 10

Smith v. Phillips,

455 U.S. 209 (1982) ................................................. 12

United States v. Williams,

504 U.S. 36 (1992) ................................................... 10

Wolfe v. Clarke,

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

Wolfe v. Clarke,

718 F.3d 277 (4th Cir. 2013) ..................................... 2

iv

Wolfe v. Johnson,

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

Wolfe v. Virginia,

139 S. Ct. 790 (2019) ........................................... 6, 11

COURT RULES AND STATUTES

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

U.S. Sup. Ct. R. 10......................................................... 7

Va. Code Ann. § 19.2-155 .............................................. 3

Va. Sup. Ct. R. 5A:18............................................ passim

1

OPINIONS BELOW

The order of the Supreme Court of Virginia denying

the petition for appeal (Pet. App. 22–23) is unreported.

The orders of the Court of Appeals of Virginia denying

the petition for appeal (Pet. App. 1–19, 20–21) are

unreported.

JURISDICTION

The judgment of the Supreme Court of Virginia was

entered on September 3, 2020. By order dated March

19, 2020, this Court extended the time for filing a

petition for writ of certiorari to 150 days from the

lower court judgment. The petition for a writ of

certiorari was filed on January 29, 2021. This Court’s

jurisdiction is invoked under 28 U.S.C. § 1257(a).

STATEMENT

1. In March 2001, Daniel Petrole, Jr. was shot and

killed in his car outside his residence. R.11497. 1

Investigation revealed that Petrole had been supplying

petitioner with large amounts of marijuana, which

petitioner would distribute. R.11498–99. A debt sheet

found with Petrole’s body showed that petitioner owed

Petrole substantial amounts of money. R.11498.

Police tracked a gun found near the body to Owen

Barber, who confessed to participating in Petrole’s

murder. R.11498–501. Barber told police that he and

petitioner had discussed murdering Petrole and that

1 All record cites (R.) refer to the record before the Supreme

Court of Virginia.

2

they had developed a plan to have Barber rob and

murder Petrole in exchange for marijuana, $10,000,

and forgiveness of Barber’s debt to petitioner.

R.11500–02. Other evidence corroborated Barber’s

version of events, including testimony by Barber’s

girlfriend and cell phone records showing a series of

communications between Barber and petitioner the

day Petrole was killed. R.11501–03.

2. In 2002, petitioner was convicted of capital

murder in connection with the killing of Petrole and

sentenced to death. Wolfe v. Johnson, 565 F.3d 140,

149 (4th Cir. 2009). After several rounds of postconviction litigation, 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 v.

Clarke, 691 F.3d 410, 417–18, 423 (4th Cir. 2012). The

federal courts ultimately ordered that petitioner be

retried within 120 days or released. See Wolfe, 691

F.3d at 413; see also Wolfe v. Clarke, 718 F.3d 277,

291 (4th Cir. 2013).

3. Back in state trial court, a special counsel was

appointed to handle petitioner’s re-trial. As provided

by state statute, the original prosecutor submitted the

necessary notification of disqualification and the trial

court appointed a new prosecutor from another

jurisdiction. See R.159 (motion by original prosecutor

to appoint “an independent special prosecutor”); R.160

3

(order); see also Va. Code Ann. § 19.2-155. The trial

court specifically noted that the appointment “was the

[c]ourt’s determination” and that the attorney who had

been selected had significant experience—including as

a special prosecutor in retrial proceedings in another

matter—that made him an “appropriate” choice.

R.8914–17. At the time, petitioner agreed that the

special prosecutor “will handle the matter fairly and

professionally.” R.8915; see also R.8916 (counsel for

petitioner noting that special prosecutor “selected by

the [c]ourt” was “perfectly well qualified” and “we don’t

object to him at all”).

The following month—after the special prosecutor

had “redone th[e] investigation”—the grand jury

returned “additional indictments” to cover the

“provable” criminal conduct in petitioner’s case.

R.9864–66, 9877, 11607–13. The new indictments

included charges that the special prosecutor was

prepared to prove at trial “without Owen Barber’s

prior testimony,” who had by that point given several

conflicting statements. R.9865–66. 2

Before his re-trial, however, petitioner pleaded

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

The petition confuses the timing of certain statements by

the special prosecutor, citing a transcript from October 2012 for

statements made the month before. Pet. 13 (citing Pet. App. 40).

In any event, the statements to which the petition refers were

made in connection with a motion for pretrial release and based

on the “many hours” the special prosecutor had already spent

reviewing the file. R.8925, 8932–35.

2

4

firearm in the commission of a felony; and conspiracy

to distribute marijuana. Pet. App. 7, 26 (listing

indictments to which petitioner pleaded guilty); accord

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 petitioner

was guilty of the charges. See R.11480–11525. As part

of his pleas, petitioner admitted on the record—

through a signed, handwritten letter admitted as an

exhibit and read by his attorney—that he was

responsible for Petrole’s murder. See R.11514–19,

12011–14. Petitioner’s statement at the plea hearing

closely tracked Barber’s original trial testimony, and

petitioner has never recanted that statement, asserted

it was untruthful, or argued that it should be

disregarded. 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). R.11586–87. The court ordered the

sentences to run consecutively for a total of 41 years of

active incarceration. Id.

4. Petitioner appealed to the Court of Appeals of

Virginia, asserting three errors. R.8833–35. The case

was referred to a single judge, who denied the petition

for appeal in an unsigned and unpublished per curiam

decision. See Pet. App. 24–31. 3 As relevant here,

The appendix to the petition for a writ of certiorari mislabels the decision by the Court of Appeals of Virginia denying

the petition for review. Although the decision located at pages 24–

3

5

petitioner argued that his guilty pleas were

involuntary because he “was the target of vindictive

prosecution that subjected [him] to increased

mandatory minimum sentences after successful postconviction proceedings.” Id. at 24–25 (quotation marks

omitted). The court of appeals “decline[d] to consider”

that argument, however, because petitioner had raised

it “[f]or the first time on appeal.” Id. at 27, 29. The

court of appeals thus concluded that the argument

petitioner raised on appeal 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 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.’” Id. at 27.

The Supreme Court of Virginia denied a petition for

appeal, Pet. App. 32–33, and likewise denied a petition

for rehearing, id. at 34.

5. Petitioner sought a writ of certiorari from this

Court, arguing that the Virginia courts’ decisions were

contrary to the Court’s decision in Class v. United

States, 138 S. Ct. 798 (2018). The Court granted the

petition, vacated the judgment, and remanded to the

31 is labeled September 20, 2019, the text is from the per curiam

order of the Court of Appeals of Virginia dated May 10, 2017. See

Pet. App. 8; cf. Pet. vi & Pet. App. i. (correctly listing “May 10,

2017”). A copy of the decision with the correct date is available in

Case No. 18-227 at Pet. App. 1–8.

6

Supreme Court of Virginia “for further consideration

in light of Class v. United States, 583 U.S. ___ (2018).”

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

Supreme Court of Virginia in turn remanded to the

Court of Appeals of Virginia to reconsider its earlier

decision. Pet. App. 1.

6. Following supplemental briefing by both

parties, the Court of Appeals of Virginia again denied

the petition for appeal. Pet. App. 1–19. Consistent with

Class, the court specifically acknowledged that

petitioner “may present his claim” on appeal

“notwithstanding his guilty plea.” Id. at 14. Even so,

the court explained that Rule 5A:18 barred

consideration of petitioner’s claim that his prosecution

was vindictive because that claim had never been

addressed by the trial court. Id. at 12–15.

The court of appeals specifically addressed the

difference between these two doctrines. The court

reiterated Class’s holding that a “guilty plea, standing

alone, does not waive [the] right to present a claim of

prosecutorial vindictiveness on appeal.” Pet. App. 14.

But the court explained that “the waiver under Rule

5A:18”—which applies when a defendant fails to

obtain a ruling from a trial court—“is more expansive

than the waiver occasioned by a defendant’s guilty

plea.” Id. at 13–14. And “[a]lthough there are

exceptions to Rule 5A:18,” the court noted that

petitioner “ha[d] not invoked them.” Id. Accordingly,

the court of appeals concluded that “Rule 5A:18 bars

our consideration of [petitioner’s] prosecutorial

7

vindictiveness claim.” Id. 4 The petition was referred to

a three-judge panel, which denied the petition for the

reasons stated in the per curiam order. Id. at 20. The

Supreme Court of Virginia again denied a petition for

appeal without comment. Id. at 22–23.

ARGUMENT

The petition for a writ of certiorari should be

denied. This Court lacks jurisdiction because the

decision below was based on petitioner’s failure to

comply with a longstanding state procedural rule.

Even if this Court had jurisdiction, review would not

be warranted because the petition does not allege any

type of split in lower court authority (much less one

that would satisfy Rule 10), this case does not present

the issue as framed in the petition, and the Court of

Appeals of Virginia’s unpublished decision is fully

consistent with this Court’s holding in Class v. United

States, 138 S. Ct. 798 (2018). At most, the petition

asserts a narrow question of state law that is limited

to the specific facts of this case and not binding or

precedential in any event.

1. This Court lacks jurisdiction because the

decision below rests on valid state procedural grounds.

The basis of the Court of Appeals of Virginia’s decision

was clear: petitioner’s claim on appeal was barred by

Rule 5A:18 because it was never addressed by the trial

The Court of Appeals of Virginia also rejected petitioner’s

second and third assignments of error. Pet. App. 15–18. Those

decisions have not been challenged here.

4

8

court in the proceedings below. See Pet. App. 14 (“Rule

5A:18 bars our consideration of the claim because the

trial court did not rule on the claim appellant presses

on appeal.”). Although petitioner had moved to dismiss

the new indictments as a vindictive prosecution, the

argument that he presented to the trial court was

based on an increase in the number of charges and an

alleged increase in the maximum sentence he could

face if convicted. Id. at 3–4. The trial court denied the

motion, agreeing with the Commonwealth that the

new charges did not increase the maximum possible

penalty because petitioner had previously been

charged with a capital crime. Id.; accord id. at 94–95

(trial court explaining that “the Defendant was facing

charges punishable by death,” which meant the new

charges were “not enhanced” by comparison).

On appeal, however, petitioner has pursued an

entirely different argument: that vindictiveness may

be inferred based on the minimum punishment he

could face under the new charges rather than the total

number of charges or the maximum possible sentence

(which had formed the basis for his previous

argument). See Pet. App. 8 (petitioner’s assignment of

error asserting vindictive prosecution based on

“increased

mandatory

minimum

sentences”).

Accordingly, the Court of Appeals of Virginia

concluded that petitioner had not complied with Rule

5A:18 by failing to give the trial court a fair

opportunity to rule on “the prosecutorial vindictiveness

claim arguing that the correct analysis focused on the

9

greater minimum sentence he would face.” Id. at 14;

accord Rule 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.”). Nor had petitioner invoked any of the Rule’s

exceptions on appeal. See Pet. App. 14 (“This Court

does not apply the exceptions to Rule 5A:18 sua

sponte.”). Under Rule 5A:18, then, the court could not

consider the issue. Id. 5

The decision by the Court of Appeals of Virginia

that petitioner’s new vindictive prosecution claim was

barred because it had not been properly presented to

the trial court was fully consistent with Virginia law.

See, e.g., Bethea v. Commonwealth, 831 S.E.2d 670,

676 (Va. 2019) (“Procedural-default principles require

that the argument asserted on appeal be the same as

the contemporaneous argument at trial.”); cf. Pet. 27–

28 (citing cases where claims were adequately

Even now, petitioner does not identify anywhere in the

record that his current increase-in-the-minimum argument was

adequately raised. The hearing transcript on which the petition

relies described the penalty ranges for each offense to argue that

the “additional and harsher charges” were “more serious”—not

that increased mandatory minimums would apply. Pet. App. 78–

79. The petition also points to a motion to reconsider the trial

court’s ruling on vindictive prosecution, see Pet. 27 (citing Pet.

App. 97–108), but petitioner did not seek or obtain a ruling from

the trial court on that motion before pleading guilty. Pet. App. 5–

7; accord R.10586.

5

10

preserved because they were “presented . . . squarely”

or “considered . . . and ruled on” by the trial court).

And the requirement in Rule 5A:18 that a specific

claim must be presented to a lower court to be

considered on appeal is hardly “novel,” “extreme,” or

unique to the Commonwealth, Pet. 6, 19–20, 25, 30—

indeed, the same is true under federal law. See, e.g.,

Singleton v. Wulff, 428 U.S. 106, 120 (1976) (“It is the

general rule, of course, that a federal appellate court

does not consider an issue not passed upon below.”).

Given this similarity, the petition wholly fails to

explain how the straightforward application of a

longstanding procedural rule in this case “disregard[s]

essential constitutional requirements” or “this Court’s

own decisions.” Pet. 30. 6

In short, the court of appeals did not reject

petitioner’s vindictive prosecution claim because he

pleaded guilty. Instead, the court of appeals never

considered that claim on the merits because petitioner

failed to preserve it as a matter of Virginia’s well

settled procedural rules. Regardless of whether the

state-law basis for the Court of Appeals of Virginia’s

ruling had been clear before, it is plainly spelled out in

6 The petition likewise cites no authority for the proposition

that Virginia’s preservation rules “go[ ] far beyond any forfeiture

requirements under federal law” or “infringe on constitutional

rights.” Pet. 28; cf. United States v. Williams, 504 U.S. 36, 41

(1992) (noting that “traditional rule . . . precludes a grant of

certiorari” where “the question presented was not pressed or

passed upon below”).

11

that court’s decision on remand. See Pet. App. 11–15.

Accordingly, the decision below rests “upon an

adequate and independent state ground that deprives

th[is] Court of jurisdiction.” Berry v. Mississippi, 552

U.S. 1007, 1007 (2007) (per curiam).

2. Even if this Court had jurisdiction, further

review is not warranted because this case does not

actually raise the issue described in the petition. Far

from “direct[ing]” Virginia’s courts “to address the

merits of petitioner’s claim,” Pet. 1, this Court’s

remand order required only “further consideration in

light of Class[.]” Wolfe v. Virginia, 139 S. Ct. 790

(2019) (mem.). On remand, the Court of Appeals of

Virginia did exactly that—and ruled in petitioner’s

favor on that question. Specifically, the court held:

(1) “that appellant may present his claim to this Court

notwithstanding his guilty plea,” and (2) “that

appellant’s guilty plea, standing alone, does not waive

his right to present a claim of prosecutorial

vindictiveness on appeal.” Pet. App. 14 (citations

omitted).

Separate and apart from the guilty plea, however,

the Court of Appeals of Virginia concluded that it

could not consider petitioner’s minimum-based

vindictive prosecution argument on the merits for

another reason altogether—the claim had not been

adequately preserved below. Pet. App. 12–15. The

court of appeals specifically addressed this difference,

explaining that “here, unlike the defendant in Class,

appellant presents a claim that the trial court never

12

addressed.” Id. at 12. And because “the waiver under

Rule 5A:18 is more expansive than the waiver

occasioned by a defendant’s guilty plea,” petitioner’s

claim was barred by the former but not the latter. Id.

at 13–14.

Contrary to the allegations in the petition, the

court of appeals did not “ignore[]” the decision in Class

or “refuse[] to do what the Constitution requires.” Pet.

30, 32–33. Instead, the court specifically considered

that precedent as directed by the remand order from

this Court. Nor did the court of appeals “invent[] a

different reason” to “avoid” considering the vindictive

prosecution claim, Pet. 18, as the decision on remand

was consistent with its prior holding that the claim

advanced on appeal had not been raised below. See

Pet. App. 29 (declining to consider claim presented “for

the first time on appeal”).

Nothing about the Court of Appeals of Virginia’s

analysis under state preservation rules—which apply

to all types of claims—threatens to cut off “judicial

review of vindictive prosecution claims.” Pet. 31. So

long as those claims have been adequately raised,

appellate courts in Virginia remain open to hear them

on the merits. In these circumstances, there is no need

or basis for this Court to exercise any purported

“supervisory authority” here. Pet. 30, 32–33. But see

Smith v. Phillips, 455 U.S. 209, 221 (1982) (“Federal

courts hold no supervisory authority over state judicial

proceedings and may intervene only to correct wrongs

of constitutional dimension.”).

13

3. Petitioner also vastly overstates the scope of

this Court’s holding in Class and its relevance to this

case. In particular, petitioner is wrong that Class

announced a broad rule limiting state forfeiture rules

across the board. See Pet. 4, 24. Instead, Class

considered whether a defendant who pleaded guilty

may still challenge the conviction by arguing “that the

statute of conviction violates the Constitution.” 138 S.

Ct. at 801–02.

Seeking to extrapolate from there to here,

petitioner makes sweeping assertions about the

“broader import and rationale” of Class—rather than

its specific holding—and urges an interpretation that

is completely untethered from the Court’s actual

decision. Pet. 3, 30. To be sure, this Court’s opinion in

Class discussed the rules governing vindictive

prosecution claims. But it did 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 (1975) (per curiam); Blackledge v.

Perry, 417 U.S. 21 (1974). The Commonwealth does

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 this case

where the sole claim would be vindictive prosecution.

14

4. The specific posture of this case further weighs

against certiorari. The per curiam decision by the

Court of Appeals of Virginia contains no substantive

analysis of the federal due process issue that

petitioner claims is presented, see Pet. App. 1–19, nor

does the Virginia Supreme Court’s one-page decision

refusing petitioner’s appeal, see id. at 22–23. At most,

the petition raises of a question of whether Virginia

courts applied state procedural rules correctly. See

Pet. 27. Answering that question is necessarily a factbound inquiry that depends on the interpretation of

specific statements in the record. As a result, any

resolution would likely be limited to the particular

circumstances of this case—especially where the

petition does not claim that any split has developed

among the lower courts that this Court needs to

resolve. And because the court of appeals’ decision in

this case is unpublished and nonprecedential, it will

not bind future courts adjudicating vindictive

prosecution claims or deciding whether those claims

may be considered on appeal.

CONCLUSION

The petition for a writ of certiorari should be

denied.

15

Respectfully submitted.

MARK R. HERRING

Attorney General

K. SCOTT MILES

Deputy Attorney General

DONALD E. JEFFREY, III

Senior Assistant

Attorney General

MATTHEW P. DULLAGHAN

Senior Assistant

Attorney General

May 18, 2021

TOBY J. HEYTENS

Solicitor General

Counsel of Record

MICHELLE S. KALLEN

JESSICA MERRY SAMUELS

Deputy Solicitors General

KENDALL T. BURCHARD

John Marshall Fellow

OFFICE OF THE VIRGINIA

ATTORNEY GENERAL

202 North Ninth Street

Richmond, Virginia 23219

(804) 786-7240

SolicitorGeneral@oag.state.va.us