Reply Brief — Justin Wolfe, Petitioner v. Virginia

NO. 20-1056

In the

Supreme Court of the United States

________________

JUSTIN MICHAEL WOLFE,

v.

Petitioner,

COMMONWEALTH OF VIRGINIA,

________________

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of Virginia

________________

REPLY BRIEF FOR PETITIONER

________________

MARVIN D. MILLER

ASHLEY C. PARRISH

THE LAW OFFICES OF Counsel of Record

MARVIN D. MILLER

JILL R. CARVALHO

1203 Duke Street

KING & SPALDING LLP

Alexandria, VA 22314

1700 Pennsylvania Ave. NW

(703) 548-5000

Washington, DC 20006

ofc@mdmillerlaw.com

(202) 737-0500

aparrish@kslaw.com

jcarvalho@kslaw.com

Counsel for Petitioner

May 28, 2021

TABLE OF CONTENTS

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

REPLY BRIEF FOR PETITIONER............................ 1

ARGUMENT ................................................................ 1

CONCLUSION .......................................................... 13

ii

TABLE OF AUTHORITIES

Cases

Blackledge v. Perry,

417 U.S. 21 (1974) ............................................ 3, 4, 6

Boykin v. Alabama,

395 U.S. 238 (1969) .................................................. 3

Brady v. United States,

397 U.S. 742 (1970) .............................................. 2, 3

Class v. United States,

138 S. Ct. 798 (2018) ........................................ 1, 3, 4

Duck v. Commonwealth,

383 S.E.2d 746 (Va. Ct. App. 1989) ..................... 6, 9

Garnett v. Remedi Seniorcare of Va., LLC,

892 F.3d 140 (4th Cir. 2018) .................................... 7

George v. Commonwealth,

667 S.E.2d 779 (Va. 2008)........................................ 7

Lebron v. Nat’l R.R. Passenger Corp.,

513 U.S. 374 (1995) .................................................. 7

Menna v. New York,

423 U.S. 61 (1975) .................................................... 3

Perry v. Blackledge,

453 F.2d 856 (4th Cir. 1971) .................................... 3

Scialdone v. Commonwealth,

689 S.E.2d 716 (Va. 2010)........................................ 7

Tollett v. Henderson,

411 U.S. 258 (1973) .................................................. 3

United States v. Williams,

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

iii

West v. Commonwealth,

597 S.E.2d 274 (Va. Ct. App. 2004) ......................... 8

Wolfe v. Clarke,

691 F.3d 410 (4th Cir. 2012) ............................ 10, 11

Wolfe v. Clarke,

718 F.3d 277 (4th Cir. 2013) .................................. 10

Wolfe v. Clarke,

819 F. Supp. 2d 538 (E.D. Va. 2011) ..................... 10

Wolfe v. Virginia,

139 S. Ct. 790 (2019) ................................................ 1

Rule

Va. Sup. Ct. R. 5A:18 ....................................... 2, 4, 5, 7

Other Authority

Br. in Opp., Wolfe v. Virginia,

139 S. Ct. 790 (2019) (No. 18-227),

2018 WL 6012696 .................................................... 5

REPLY BRIEF FOR PETITIONER

The Commonwealth of Virginia’s opposition brief

only confirms that this Court should grant review,

summarily reverse, and remand for the Virginia

courts to comply with this Court’s earlier remand

order. Our system of justice cannot work if a state

court can evade this Court’s remand order by applying

a novel and excessively stringent forfeiture

requirement in a way that is contrary to this Court’s

precedent, contrary to basic due process requirements,

and contrary to existing state law applied in other

cases. Having recognized that this Court’s decision in

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

to this case, the court below was duty bound to address

the merits of petitioner Justin Wolfe’s vindictive

prosecution claim. Its continued refusal to take that

obligation seriously should not be allowed to stand.

Nothing in the Commonwealth’s opposition should

prevent this Court from enforcing its earlier order and

directing the lower courts to resolve the serious

questions of vindictive prosecution that call into

question

the

Commonwealth’s

constitutional

authority to prosecute, convict, and sentence Wolfe.

ARGUMENT

The Commonwealth does not deny that this Court

previously granted certiorari, summarily reversed,

and remanded this case to the Virginia courts for

“further consideration in light of Class v. United

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

(mem.). Nor does it deny that on remand, the Virginia

courts correctly recognized that Class applies and

that, in light of Class, Wolfe was entitled to raise his

vindictive prosecution claim despite his guilty plea.

2

App. 14. That should have resulted in the Virginia

courts addressing Wolfe’s vindictive prosecution claim

on its merits. Instead, the lower courts circumvented

this Court’s remand order and violated both Class and

federal due process requirements by relying on a

novel, excessively stringent application of a

procedural forfeiture rule.

1. The Commonwealth offers no serious defense

of the Virginia courts’ refusal to comply with their

remand obligations. As Wolfe’s petition explains,

under Class a guilty plea does not waive a defendant’s

appellate rights with respect to a narrow category of

claims that challenge a court’s constitutional

authority to hale a defendant into court and convict

and impose sentence; as a result, a procedural

forfeiture rule also cannot extinguish a defendant’s

appellate rights with respect to such claims. With no

response to that essential logic, the Commonwealth

asserts that a forfeiture under Virginia’s Rule 5A:18 is

“more expansive than the waiver” occasioned by a

guilty plea. Opp. 11–12 (quoting App. 14). But it cites

no support for that counterintuitive conclusion, except

for a statement made by the court below. Id. In any

event, the question is not whether forfeiture

requirements might be characterized as more or less

expansive than a waiver. The question is whether any

difference between forfeiture and waiver is relevant

under Class and the constitutional principles it

applies.

The answer is plainly no.

This Court has

described a guilty plea as “a grave and solemn act,”

Brady v. United States, 397 U.S. 742, 748 (1970), and

“more than an admission of conduct; it is a conviction.”

3

Boykin v. Alabama, 395 U.S. 238, 242 (1969). It

waives most constitutional rights, so it must be

knowing and voluntary. Brady, 397 U.S. at 749; see

Tollett v. Henderson, 411 U.S. 258, 267 (1973). Under

Class and the Menna-Blackledge doctrine, however,

even a “grave and solemn” guilty plea, made

knowingly and voluntarily, does not bar a defendant

from raising on appeal a narrow category of claims,

including vindictive prosecution, that challenge the

state’s constitutional authority to prosecute.

Blackledge v. Perry, 417 U.S. 21, 31 (1974); Menna v.

New York, 423 U.S. 61, 62 (1975) (per curiam); Class,

138 S. Ct. at 805. As this Court has explained, a guilty

plea does not extinguish such a claim because it raises

important structural, jurisdictional-related concerns

that go beyond the interests of the parties to the case.

See Blackledge, 417 U.S. at 28–29. These concerns are

so important they can be raised on appeal even if they

have not been preserved when a defendant pleads

guilty. See Class, 138 S. Ct. at 805.

The Commonwealth’s suggestion that a forfeiture

should be treated differently under Class than a

waiver occasioned by a guilty plea cannot be taken

seriously. Its position is contrary to this Court’s

decision in Blackledge. In that case, the defendant

pleaded guilty and never even attempted to “present[]

his [vindictive prosecution] claim to the North

Carolina state courts.” Perry v. Blackledge, 453 F.2d

856, 856 (4th Cir. 1971). As a result, the claim was

never considered or addressed by the state courts.

Nonetheless, this Court granted certiorari and held

that the vindictive prosecution claim was properly

raised in federal habeas proceedings because the

defendant was asserting his “right not to be haled into

4

court at all upon” a charge that the State had no

constitutional authority to prosecute. Blackledge, 417

U.S. at 30. Whether the state has constitutional

authority to prosecute is too fundamental to be

blocked by procedural rules designed to apply to

appeals challenging the ordinary events of trial.

Because Blackledge and Class teach that a court

cannot avoid deciding a vindictive prosecution

challenge on grounds that a defendant has entered

into a knowing and voluntary guilty plea, it also

necessarily means that a court cannot avoid

addressing a vindictive prosecution challenge by

applying a procedural rule governing the forfeiture of

claims not raised and preserved in the trial court.

Indeed, Class expressly rejected the government’s

argument that Rule 11(a)(2) of the Federal Rules of

Criminal Procedure prohibits “a defendant who pleads

guilty” from challenging “his conviction on appeal on a

forfeitable or waivable ground that he either failed to

present to the district court or failed to reserve in

writing.”

138 S. Ct. at 806 (emphasis added)

(quotation marks omitted). As Class explained, the

procedural rule could not override the significant

constitutional principles recognized in this Court’s

Blackledge and Menna line of cases. There is no

reason a different conclusion should apply to a state

rule of procedure, such as Virginia Rule 5A:18,

designed to give a trial court the ability to rule on

objections relating to the incidents of trial before they

are considered on appeal.

In fact, this Court has already considered the

issue. When the Commonwealth opposed Wolfe’s

petition for certiorari in 2018, the Commonwealth

5

raised the same forfeiture argument. See Br. in Opp.

at 5, Wolfe v. Virginia, 139 S. Ct. 790 (2019) (No. 18227), 2018 WL 6012696. That issue was briefed by

both parties, and the Commonwealth argued that the

state court’s decision rested on an independent valid

state procedural ground. If that argument had merit,

the Court presumably would not have granted

certiorari and remanded for the Virginia courts to

consider Class. Cf. United States v. Williams, 504 U.S.

36, 40 (1992) (rejecting argument in brief in opposition

that was “necessarily considered and rejected” when

the Court granted review).

2. Even if it were appropriate under Class to

treat forfeiture differently from waiver, the

application of any state forfeiture rule would still need

to comply with minimum requirements of federal due

process. Due process concerns are paramount when a

defendant has made a prima facie showing of

vindictive prosecution. In those circumstances, it is

important for federal law to protect against a

vindictive application of a procedural forfeiture rule

that insulates a vindictive prosecution from judicial

review, allowing a trial court with no constitutional

authority to prosecute, convict, and sentence a

defendant to do all three.

That concern applies with particular force here.

There can be no dispute that Wolfe properly raised his

vindictive prosecution claim and that the claim was

considered and addressed by the state trial court. The

record is clear that (1) Wolfe raised and briefed his

claim of vindictive prosecution before the trial court;

(2) the trial court announced on the record that it had

carefully considered the briefing; (3) the trial court

6

held an evidentiary hearing and heard argument from

both the Commonwealth and Wolfe; (4) the trial court

issued a bench ruling and Wolfe immediately objected;

(5) Wolfe filed a motion for reconsideration before

entering a guilty plea; and (6) after pleading guilty,

Wolfe raised the question of vindictive prosecution in

his first appeal. See App. 54 (raised and briefed);

App. 54 (court reviewed briefing); App. 56–93 (hearing

and argument); App. 94–95 (bench ruling and

objection); App. 97–108 (motion to reconsider); App. 8

(describing contents of first appeal).

The Commonwealth also cannot dispute that

Wolfe argued that the prosecutor’s unexplained

decision to add six new charges with more serious and

harsher penalties was vindictive and gives rise to a

prima facie case of vindictiveness. See Blackledge, 417

U.S. at 27–28; Duck v. Commonwealth, 383 S.E.2d

746, 749 (Va. Ct. App. 1989); see also App. 70

(conceding that the Commonwealth’s detective did not

complete any new investigation to justify the new

charges).

Instead, the Commonwealth’s only

argument is that Wolfe purportedly did not

adequately articulate that one of the reasons the

charges are more serious is that they increase the

minimum range of the sentence to which Wolfe was

exposed.

The Commonwealth identifies no basis for

concluding that a claim can be forfeited consistent

with the requirements of due process merely because

an argument in support has not been articulated in

the form preferred by the Commonwealth. As this

Court has explained, the “traditional rule” is that

“[o]nce a federal claim is properly presented, a party

7

can make any argument in support of that claim;

parties are not limited to the precise arguments they

made below.” Lebron v. Nat’l R.R. Passenger Corp.,

513 U.S. 374, 379 (1995) (emphasis added) (quotation

marks omitted). The issue of vindictive prosecution

was clearly presented and passed upon by the Virginia

trial court. Cf. Garnett v. Remedi Seniorcare of Va.,

LLC, 892 F.3d 140, 142–43 (4th Cir. 2018) (holding

that issue was preserved for appeal when the “the

issue was taken up at some length at oral argument”

even though it was never raised in briefing). It is

therefore properly preserved under any traditional

understanding of ordinary forfeiture rules.

Because federal preservation rules presumptively

comply with due process, they provide an important

baseline for evaluating whether a state court is

applying state procedures in violation of due process

and in a way that abrogates constitutional rights.

That baseline is relevant here because nothing in

Virginia law suggests that the state has adopted

onerous forfeiture requirements that depart from the

federal baseline. To the contrary, Virginia case law is

clear that defendants are not forced to invoke magic

words to preserve objections.

See Scialdone v.

Commonwealth, 689 S.E.2d 716, 726 (Va. 2010)

(“however imprecise the vehicle by which the

defendants raised their objections, their motions to

stay presented their arguments squarely to the circuit

court”); George v. Commonwealth, 667 S.E.2d 779, 782

(Va. 2008) (though he did not use term “fatal variance”

in his objection to trial, the objection was clearly to

inconsistency

between

indictment

and

jury

instruction). Rule 5A:18 requires only that parties

“make timely and specific objections” so that the trial

8

court has “an opportunity to rule intelligently on the

issues presented, thus avoiding unnecessary appeals

and reversals.’” West v. Commonwealth, 597 S.E.2d

274, 278 (Va. Ct. App. 2004).

3. There can be no dispute that the trial court

had an opportunity to rule intelligently on the issues

raised by Wolfe’s vindictive prosecution claim. The

Commonwealth’s suggestion that he did not

adequately explain that the new charges were more

severe because they increased his minimum sentence

is contradicted by the record. The evidence taken by

the trial court at the hearing discussed the increase in

minimum sentences. E.g., App. 67 (asking Virginia

detective “Would it surprise you if [the new charge’s

sentence] was a minimum of life? A. No, ma’am.”). In

addition, when the trial court heard argument, the

minimum sentence for the new charges was also

discussed. Wolfe’s counsel specifically argued that the

new charges were:

absolutely punished at a higher level than the

[original 2001] conspiracy to distribute

marijuana was. … The [original] conspiracy

to distribute marijuana is five to thirty and

the [shortest of the new charges] is twenty to

life.

App. 78. His counsel also argued that the more severe

charges meant that the prosecutor had ensured that

Wolfe would remain in prison for life:

So what do we have? Conspiracy to distribute

marijuana from twelve years ago [with a five

to thirty-year sentence] or continuing

criminal enterprise which has a life sentence.

9

And what they’ve done is they’ve charged him

with something that, if convicted on, he stays

exactly where he is for the rest of his natural

born life and that satisfies them.

App. 92. In addition, Wolfe’s briefing addressed the

issue, citing and discussing the leading Virginia case,

Duck v. Commonwealth, which holds that Blackledge

applies even though the defendant “was exposed to a

greater minimum, rather than maximum, period of

incarceration as a result of the amended charge.” 383

S.E.2d at 749; App. 99–103.

Nor can there be any dispute that the trial court

understood these arguments. The trial court’s ruling

was premised on the erroneous conclusion that there

is a death penalty exception for vindictive prosecution.

According to the trial court, when a defendant is

subject to a capital charge in his first case, there can

never be a prima facie showing of vindictive

prosecution on re-trial because no penalty can be

“enhanced” beyond a sentence punishable by death.

App. 94 (concluding that because Wolfe “was facing

charges punishable by death,” the six additional

charges were not “enhanced” charges). In reaching

that surprising conclusion, the trial court accepted the

prosecutor’s assertion that the new charges are “not

more severe than the charges [Wolfe] faced on the

original charges” because he “faced the death penalty

on the original charges” and, as a result, there “is no

exposure to which he was not exposed before.”

App. 88–89 (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”).

10

4. The Commonwealth contends that there is no

reason to grant review because there is no split in

federal authority and, in any event, the decisions in

this case are “unpublished and nonprecedential.”

Opp. 14. That underscores the problem with the

Commonwealth’s procedural gambit and the refusal of

the Virginia courts to take this case seriously. As

Wolfe’s petition explains, the reason the Court should

grant certiorari is to enforce its earlier order and make

clear that state courts cannot evade this Court’s

direction by hiding behind clever procedural rulings

that expand state requirements beyond the bounds of

federal due process.

While the Commonwealth seeks to sweep

everything under the rug, it is important to emphasize

how outrageous the Commonwealth has behaved in

these proceedings. Wolfe has been in prison for 20

years, but he has never received a fair trial free from

prosecutorial misconduct, despite obtaining federal

habeas relief.

In his original trial, prosecutors

“inexplicably” withheld exculpatory evidence, coached

witnesses, and engaged in egregious misconduct.

Wolfe v. Clarke, 691 F.3d 410, 417, 418, 422–24 (4th

Cir. 2012). As the federal courts recognized in this

case, the prosecutos’ “flabbergasting” misconduct was

“‘abhorrent to the judicial process.’” Id. at 423–25

(quoting Wolfe v. Clarke, 819 F. Supp. 2d 538, 566 n.24

(E.D. Va. 2011)). After Wolfe obtained federal habeas

relief, Virginia prosecutors threatened a witness in a

blatant attempt to prejudice Wolfe’s ability to have a

fair retrial. Wolfe v. Clarke, 718 F.3d 277, 296 (4th

Cir. 2013) (Thacker, C.J., concurring in part). Only

then, after that misconduct had come to light and the

11

Commonwealth’s original case was in tatters, did the

prosecutors file the six new charges.

At a minimum, the Commonwealth should be

required to come forward with objective evidence to try

to explain why the new charges were not a vindictive

response to Wolfe’s successful federal habeas petition

and the Fourth Circuit’s public “rebukes.” Wolfe, 691

F.3d at 424. But the Virginia courts repeatedly

refused even to consider Wolfe’s vindictive prosecution

claim on its merits, first, because the trial court

reached the baseless conclusion that vindictive

prosecution can never occur in a capital case and,

second, because the appellate courts concluded that

Wolfe’s guilty plea waived his right to raise the claim.

Because that refusal was directly contrary to Class,

this Court granted certiorari and remanded for the

Virginia courts to reconsider in light of Class. On

remand, the Virginia courts acknowledged that Class

applies and yet they have still refused to consider the

merits of Wolfe’s vindictive prosecution, summarily

dismissing the claim based on what can only be viewed

as the vindictive and improper application of state

forfeiture rules.

The behavior of the Commonwealth and the

Virginia courts in this case undermines the integrity

of the criminal justice system. They have shown little

respect for either the federal habeas process or this

Court’s earlier remand order. More fundamentally, if

it is not corrected, the Virginia courts’ response to this

Court’s remand order will cast doubt on whether our

legal system serves the ends of justice or has become

a procedural game to be played by manipulating

lawyers.

12

There is no reason this effort to dodge federal law

should be tolerated. Nor is there any reason not to

enforce the Court’s earlier order and reject the

Commonwealth’s improper procedural maneuvers to

avoid applying Class. The relief that Wolfe seeks

remains modest. All he requests is the same relief he

sought in his 2018 petition—to have the Virginia

courts fairly consider the merits of his federal due

process claim arising from the Commonwealth’s

vindictive prosecution. The Court should grant review

and summarily reverse the judgment below.

13

CONCLUSION

The petition 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

May 28, 2021