Justin Wolfe v. Chadwick Dotson

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 7, 2025
• Docket: 24-6840
• Status: Published

Opinion

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PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 24-6840

JUSTIN MICHAEL WOLFE,

Petitioner - Appellant,

v.

CHADWICK DOTSON, Director, Virginia Department of Corrections,

Respondent - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Michael Stefan Nachmanoff, District Judge. (1:22-cv-00700-MSN-JFA)

Argued: May 6, 2025 Decided: July 7, 2025

Before KING, THACKER, and BERNER, Circuit Judges.

Vacated and remanded by published opinion. Judge Thacker wrote the opinion in which Judge King and Judge Berner join.

ARGUED: Scott Michael Abeles, CARLTON FIELDS, P.A., Washington, D.C., for Appellant. Liam Alexander Curry, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. ON BRIEF: Jason S. Miyares, Attorney General, Stephen G. Popps, Chief Deputy Attorney General, Theophani K. Stamos, Deputy Attorney General, Donald E. Jeffrey, III, Senior Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. USCA4 Appeal: 24-6840 Doc: 38 Filed: 07/07/2025 Pg: 2 of 38

THACKER, Circuit Judge:

For the fourth time, we are presented with the disposition of Justin Wolfe’s

(“Appellant”) 28 U.S.C. § 2254 petition for habeas relief. The facts of this case span

decades and deal with conduct by the Commonwealth of Virginia (the “Commonwealth”)

that we and lower courts have recognized as “abhorrent to the judicial process.” Wolfe v.

Clarke, 691 F.3d 410, 424 (4th Cir. 2012) (quoting Wolfe v. Clarke, 819 F. Supp. 2d 538,

566 n.24 (E.D. Va. 2011)). Twenty-four years ago, the Commonwealth decided that

Appellant was a guilty man. From that moment, the Commonwealth has done everything

in its power to ensure Appellant dies in prison, eschewing the Constitution, ethical

strictures, and Appellant’s own repeated and consistent assertions of actual innocence.

This instant appeal arises from the district court’s dismissal of Appellant’s § 2254

petition on the ground that Appellant failed to proffer new, reliable evidence in support of

his Schlup actual innocence claim, which operated as a procedural “gateway” to the merits

of Appellant’s otherwise defaulted substantive claims. Schlup v. Delo, 513 U.S. 298, 315

(1995) (establishing that habeas petitioners who adequately allege a claim of actual

innocence may have their “otherwise barred constitutional claim[s] considered on the

merits”). In support of his Schlup claim, Appellant relies on an exculpatory declaration by

Owen Barber, the perpetrator of the underlying murder and the only witness to ever connect

Appellant to the crime. The district court dismissed Appellant’s Schlup claim, reasoning

both that Barber’s declaration was not new evidence, since Barber had previously

exculpated Appellant, and that the declaration was not reliable given Barber’s history of

providing conflicting testimony.

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We conclude otherwise. Barber’s declaration constitutes new evidence because it

rendered Barber available to Appellant as an exculpatory witness when Barber had

previously been unavailable pursuant to his invocation of his Fifth Amendment privilege.

And Barber’s declaration is reliable evidence because it was consistent with Barber’s prior

credible testimony exculpating Appellant.

Therefore, as detailed below, we vacate the district court’s judgment and remand

for adjudication of Appellant’s substantive claims.

I.

A.

1.

Background

On March 15, 2001, Barber shot and killed Daniel Petrole in Bristow, Virginia. At

the time, Barber and Petrole were both 21 year old marijuana dealers in northern Virginia.

Barber was a low level distributor and Petrole was a supplier for other marijuana dealers

in the area. After the shooting, Barber told one of his friends, J.R. Martin, what he had

done and Martin subsequently reported Barber to the authorities. After being initially

interviewed by the police, Barber fled to San Diego where he was subsequently arrested

and escorted back to Virginia for prosecution. Once in custody, Barber confessed to

murdering Petrole. Barber ultimately pled guilty to non capital murder and was sentenced

to sixty years of imprisonment.

On May 7, 2001, a Prince William County jury indicted Appellant for hiring Barber

to murder Petrole. Appellant, 20 years old at the time, was Barber’s high school friend and

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fellow marijuana dealer in the northern Virginia area. Appellant purchased his marijuana

supply directly from Petrole.

Pursuant to a superseding indictment, Appellant was charged with capital murder

for hiring Barber to murder Petrole, using a firearm in the commission of a felony, and

conspiring to distribute marijuana.

2.

The Trial

On January 22, 2002, a jury convicted Appellant on all charges. At trial, Barber

“was the prosecution’s key witness . . . and the only witness to provide any direct evidence

regarding the ‘for hire’ element of the murder offense and the involvement of [Appellant]

therein.” Wolfe v. Johnson, 565 F.3d 140, 144 (4th Cir. 2009) (emphases supplied)

(hereinafter “Wolfe I”). Appellant testified in his own defense and denied any involvement

in Petrole’s death.

Following his conviction, Appellant was sentenced to death on the murder for hire

charge. He was also sentenced to thirty years for the narcotic charge and three years for

the firearm charge. The Supreme Court of Virginia affirmed the convictions and dismissed

Appellant’s petition for a writ of habeas corpus. The United States Supreme Court denied

certiorari and Appellant’s request for a stay of execution.

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B.

Initial Section 2254 Proceedings -- Wolfe I

On July 22, 2005, Appellant moved in the Eastern District of Virginia for a stay of

execution and appointment of counsel to file a petition for a writ of habeas corpus. The

court granted both motions, and Appellant filed a habeas petition pursuant to 28 U.S.C.

§ 2254 on November 7, 2005.

After filing his initial § 2254 petition, Appellant obtained an affidavit executed by

Barber (the “Barber Affidavit”) wherein Barber “repudiated his trial testimony and

exculpated Wolfe from the murder-for-hire scheme.” Wolfe I, 565 F.3d at 144. Appellant

also secured affidavits from two people who had previously resided with Barber. In his

affidavit, Barber’s former roommate, Jason Coleman, averred that he “told prosecutors that

[] Barber had confessed to [him] that [Barber] acted alone in the murder of [] Petrole.”

Wolfe I, 565 F.3d at 153. Likewise, Barber’s former cellmate, Carl Huff, averred that

Barber had admitted that “[Appellant] was in no way involved in the shooting of Petrole”

and that Barber had testified falsely at Appellant’s trial. Id. Both of these affidavits

corroborated the allegations in the Barber Affidavit.

According to the Barber Affidavit, the officers who initially interviewed Barber

threatened him with the death penalty if he did not cooperate in Appellant’s prosecution.

Per Barber, “on the flight back to Virginia from California, the officers accompanying

Barber ‘told [him] they already knew that [Appellant] had hired [Barber] to kill [] Petrole

and that one of [them] would end up telling the story and the other one would end up with

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capital murder.’” Wolfe I, 565 F.3d at 152 (quoting Barber Affidavit, J.A. 1169 1) (cleaned

up). Barber specified, “I did not suggest that story to the detectives; they were the first to

mention it to me.” J.A. 1169. Moreover, per the Barber Affidavit, once Barber was

detained at Prince William County jail, Detective Sam Newsome and another

Commonwealth officer, Detective Brenda Walburn, “repeatedly told [Barber] they and the

prosecutors knew that [Appellant] had hired [Barber] to kill [] Petrole, had linked

[Barber’s] gun to the killing, and would pursue capital murder against either [Appellant]

or [Barber].” Id.

After Barber had been in jail for a couple of days, his assigned attorney visited him

to “l[ay] out the Commonwealth’s offer that [Barber] testify against [Appellant] and

therefore be protected from prosecution for capital murder.” J.A. 1169. Barber’s attorney

told him the “prosecutors already knew about [Appellant] hiring [Barber] to kill [] Petrole

and that, based on what they already knew, one of [them] would certainly be convicted of

capital murder.” Id. Over the course of the following week, Newsome, Walburn, and other

Commonwealth personnel (together, the “Commonwealth Officers”) 2 continued to

“repeat[] that they already knew what had happened and that [Barber] needed to tell them.”

Id. at 1170. According to Barber, the Commonwealth Officers, “were entirely focused on

1 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal. 2 In the Barber Affidavit, Barber recounts being interviewed multiple times by Newsome, Walburn, and various additional unnamed Commonwealth personnel. As the Barber Affidavit does not distinguish these specific interviews or who conducted them, we have defined these officers together with Newsome and Walburn as the “Commonwealth Officers.”

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[Appellant] as a suspect.” Id. And Barber’s attorney warned him that if he did not

“implicate [Appellant] . . . prosecutors would seek the death penalty against [him] and

would succeed.” Id.

Barber recounted that he ultimately “agreed to testify against

[Appellant] . . . because [Barber] did not want to face the death penalty.” J.A. 1171. The

Commonwealth Officers had made it clear “it was either do this or die.” Id. Therefore, on

April 27, 2001, Barber met with the Commonwealth Officers and “agreed to cooperate.”

Id. at 1172. Barber “knew that [the Commonwealth] wanted to hear that [he] had been

hired by [Appellant] to kill [] Petrole.” Id. Accordingly, he “made up a story . . . with lies

woven in to turn the story into a murder for hire.” Id.

Barber subsequently signed a plea of guilty with an “oral agreement . . . that [the

Commonwealth] would recommend leniency to [Barber’s sentencing] judge.” J.A. 1172.

Barber explained, “[the Commonwealth was] sure that the judge would be lenient because

of my cooperation if I testified against [Appellant].” Id. at 1172–73. In accordance with

this coercive arrangement, Barber “fabricated his trial testimony” in order to tell “the story

that [the] prosecutors wanted to hear.” Wolfe I, 565 F.3d at 152–53 (citation omitted).

Barber took this position to save his own life:

At the time of my arrest and the trial, I figured that I would do anything to avoid the death penalty and to try to get myself out of the situation I had got myself into. I would tell prosecutors and the police what they wanted to hear.

J.A. 1174. In his affidavit, Barber explained he was recanting his testimony because

Appellant “[did] not deserve to die for something he did not do.” Id.

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Based on the Barber Affidavit and the corroborating affidavits by Coleman and

Huff, Appellant amended his § 2254 petition on December 15, 2005, making a litany of

claims. As recited in Wolfe I, Appellant’s first set of claims challenged the penalty phase

jury deliberations at his trial. He alleged that the jury had been improperly influenced in

two instances. First, when the foreman placed a picture of his own son next to a photograph

of Petrole’s autopsy, before asking “the other jurors if [they] wanted that to happen to

[their] sons.” Wolfe I, 565 F.3d at 148 (alterations in original). And, second, when a juror

spoke to his wife on the telephone during deliberations. Appellant also claimed that his

trial counsel had been constitutionally deficient pursuant to Strickland v. Washington, 466

U.S. 668, 687–88 (1984) (holding that criminal defendants are entitled to constitutionally

adequate counsel), because his counsel moved to strike a potentially favorable juror during

jury selection.

Appellant’s second set of claims asserted that Appellant was actually innocent of

murdering Petrole, relying on the Barber Affidavit and the corroborating affidavits by

Coleman and Huff. Appellant first relied on the Supreme Court’s decision Herrera v.

Collins, 506 U.S. 390 (1993), where the Court “assume[d], for the sake of

argument . . . that in a capital case a truly persuasive demonstration of ‘actual innocence’

made after trial would render the execution of a defendant unconstitutional, and warrant

federal habeas relief if there were no state avenue open to process such a claim.” Wolfe I,

565 F.3d at 164 (quoting Herrera, 506 U.S. at 417). The threshold for relief for “such an

assumed right would necessarily be extraordinarily high.” Id. (quoting Herrera, 506 U.S.

at 417).

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Appellant’s second actual innocence claim relied on the Supreme Court’s decision

in Schlup v. Delo, 513 U.S. 298 (1995), which held that a habeas petitioner may have his

otherwise defaulted constitutional claims heard on the merits if he alleges an adequate

claim of actual innocence. In contrast to a Herrera claim, a Schlup claimant must allege

“a less-stringent—though nevertheless rigorous . . . showing of actual innocence.” Wolfe

I, 565 F.3d at 164. Moreover, a successful Schlup claim differs from a Herrera claim,

because a Schlup claim is not an independent substantive claim. Rather, a successful

Schlup claim establishes a “procedural gateway” for the claimant to “secure the

adjudication of his otherwise defaulted constitutional claims.” Wolfe I, 565 F.3d at 164.

In Appellant’s case, he sought to use his Schlup claim as a “procedural gateway” for

adjudication of several constitutional claims, which the district court had determined were

procedurally defaulted because they had not been properly raised in state court

proceedings.

In Appellant’s final set of claims, Appellant asserted that he was entitled to an

evidentiary hearing on his Schlup claim, and on his claims relying on Brady v. Maryland,

373 U.S. 83, 87 (1963) (holding that “the suppression by the prosecution of evidence

favorable to an accused upon request violates due process where the evidence is material

either to guilt or to punishment”), and Giglio v. United States, 405 U.S. 150, 153 (1972)

(holding that the “deliberate deception of a court and jurors by the presentation of known

false evidence” violates due process). In Appellant’s Brady claim he alleged, inter alia,

that the Commonwealth had failed to disclose material impeachment evidence concerning

Barber. Appellant’s Giglio claim asserted, inter alia, that the Commonwealth had

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coordinated Barber’s testimony with testimony by another Commonwealth witness,

Martin, thereby presenting false evidence to the jury. 3

The Commonwealth moved to dismiss Appellant’s amended petition. On February

8, 2008, the district court granted the Commonwealth’s motion, dismissing Appellant’s

amended petition in its entirety. See Wolfe v. Johnson, No. CIV.A. 2:05-CV-432, 2008

WL 371117, at *1 (E.D. Va. Feb. 8, 2008) (J. Jackson), aff’d in part, vacated in part,

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

Appellant appealed the district court’s judgment, which we adjudicated in Wolfe I.

In Wolfe I, we vacated the court’s judgment for failing to consider Appellant’s Schlup

actual innocence claim on the merits. Specifically, we: “instructed the district court to

determine whether [Appellant] was entitled to an evidentiary hearing and other discovery;

to decide in the first instance whether, under [Schlup], [Appellant] had made a sufficient

showing of actual innocence to clear any procedural bars to his constitutional claims [];

and to assess anew [Appellant]’s claim, among others, that the [Commonwealth] had

3 As noted, Martin was “a close friend of Barber and provided him with a car to use on the night of [Petrole’s] murder.” Wolfe v. Clarke, 819 F. Supp. 2d 538, 555 (E.D. Va. 2011). At Appellant’s trial, the Commonwealth called Martin to corroborate Barber’s testimony. Specifically, Martin “corroborated Barber’s testimony that Barber had private conversations with [Appellant] before the murder . . . and after the murder.” Id. Martin also “speculat[ed],” that although “Barber did not tell him why he killed Petrole,” it was “obvious” that he killed Petrole at Appellant’s instruction. Id. at 550–51. According to Appellant, the Commonwealth had “coordinated” Martin’s testimony in a joint meeting with Barber, Martin, and the Commonwealth prosecutors, without disclosing that meeting to Appellant’s trial counsel. Id. at 555. Further, Appellant’s counsel was “unable to effectively impeach Martin’s testimony [at trial] because the [Commonwealth] withheld an off the record agreement not to prosecute [] Martin [for his involvement in Petrole’s murder] if he cooperated with the Commonwealth.” Id. at 555–56. 10 USCA4 Appeal: 24-6840 Doc: 38 Filed: 07/07/2025 Pg: 11 of 38

contravened his Fourteenth Amendment due process rights, as recognized in Brady v.

Maryland, 373 U.S. 83 (1963), by suppressing favorable and material evidence.” Wolfe v.

Clarke, 691 F.3d 410, 413 (4th Cir. 2012) (cleaned up) (hereinafter, “Wolfe II”).

On remand, the district court authorized discovery. During discovery, the

Commonwealth produced a plethora of previously undisclosed material evidence. The

court subsequently held an evidentiary hearing, wherein Barber corroborated his affidavit

by “ma[king] a credible recantation of his trial testimony and indicat[ing] that [Appellant]

was not involved in the murder of [] Petrole.” Wolfe, 819 F. Supp. 2d at 548.

Consequently, the court “determined that [Appellant] was entitled to habeas corpus relief

premised on, inter alia, the Commonwealth’s manifold violations of [Appellant]’s Brady

rights.” Wolfe II, 691 F.3d at 415. The court also granted Appellant relief pursuant to his

Giglio and venireman claims. On these grounds, the court issued a judgment directing the

Commonwealth to retry Appellant within 120 days or release him unconditionally.

Section 2254 Judgment -- Wolfe II

On appeal, in Wolfe II, we found it unnecessary to parse the mass of prejudicial

material the Commonwealth withheld from Appellant, or to address the merits of

Appellant’s Giglio and venireman claims or Appellant’s unadjudicated claim that his

continued detention violated due process. 4 The prejudicial materials withheld by the

4 After Barber testified under oath in the evidentiary hearing before the district court, Appellant successfully moved to amend his petition to raise a claim pursuant to Sanders v. Sullivan, 863 F.2d 218 (2d Cir. 1988). In Sanders, the Second Circuit held “a state’s failure (Continued) 11 USCA4 Appeal: 24-6840 Doc: 38 Filed: 07/07/2025 Pg: 12 of 38

Commonwealth are detailed extensively in the district court’s opinion in Wolfe v. Clarke,

819 F. Supp. 2d 538 (E.D. Va. 2011), and in the dissent to Wolfe v. Clarke, 718 F.3d 277

(4th Cir. 2013) (hereinafter, “Wolfe III”). As a “sampling,” Wolfe III, 718 F.3d at 294

(Thacker J., dissenting): (i) the Commonwealth withheld evidence that Barber possessed

potential motives for murdering Petrole; (ii) the Commonwealth withheld evidence that

Coleman informed the prosecution that Barber had confessed to acting alone; (iii) the

Commonwealth withheld evidence suggesting that Barber knew Petrole before the murder,

that Barber owed Petrole money, that Petrole had a hit out on Barber, and that Barber had

a close relationship with Petrole’s roommate; (iv) the Commonwealth withheld

impeachment evidence, including information relating to a deal the Commonwealth made

with Martin in exchange for his cooperation; (v) the Commonwealth withheld a recorded

statement made by its witness Chad Hough that conflicted with his trial testimony; (vi) the

Commonwealth withheld evidence which could have allowed Appellant to present an

alternate theory of the Petrole murder: various reports and witness statements relating to a

parallel drug investigation that indicated conflict in Petrole’s drug business unrelated to

Appellant’s purported motive for having Petrole murdered, evidence that Petrole was

rumored to be a government informant constituting yet another possible motive for his

murder, and the statements of three witnesses that they saw a second car at the crime scene

to act to cure a conviction founded on a credible recantation by an important and principal witness . . . constitute[s] a due process violation.” Id. at 224. Pursuant to Sanders, Appellant claimed the Commonwealth violated his due process rights by maintaining his conviction for murdering Petrole after Barber credibly recanted his incriminating testimony. The district court did not rely on Appellant’s Sanders claim to render judgment.

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shortly after the Petrole murder; and (vii) the Commonwealth used Barber’s trial testimony

despite being on notice that it contained falsities. This listing is non-exhaustive and

represents only a snapshot of the Commonwealth’s decades long misconduct in the course

of its prosecution of Appellant.

In Wolfe II, we concluded that a “single, plainly momentous item of suppressed

Barber impeachment evidence” sufficed to affirm the district court’s adjudication of

Appellant’s Brady claim. Wolfe II, 691 F.3d at 417. Namely, a police report written by

Detective Newsome (the “Newsome Report”) “reflecting that—before Barber ever

asserted that [Appellant] hired him to murder Petrole—Prince William County Detective

Newsome advised Barber that he could avoid the death penalty by implicating

[Appellant].” Id. (discussing the Newsome Report); see also id. at 418 n.7 (“While we

look no further than the Newsome [R]eport today, we do not condone the prosecution’s

apparent suppression of other Brady material and the pattern of conduct that it reveals.”).

As we noted in Wolfe II, the “Commonwealth inexplicably withheld the Newsome [R]eport

from [Appellant] until the[] 28 U.S.C. § 2254 proceedings in 2010.” Id. at 417. Moreover,

Barber corroborated the Newsome Report in his testimony at the evidentiary hearing before

the district court. He explained that the Commonwealth “said they wanted the truth, but at

the same time they said that this is what you have got to say or you are getting the chair.”

Id. at 418.

After undertaking the Brady analysis in Wolfe II, we affirmed the district court’s

judgment. We held, “[t]he Newsome [R]eport [wa]s indubitably impeaching, in that it

establishe[d] a motive not only for Barber to implicate someone else, but to point the finger

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specifically at [Appellant].” Wolfe II, 691 F.3d at 423 (explaining that the Newsome

Report demonstrated “Newsome fed Barber the crux of his testimony, i.e., that he was hired

by [Appellant] to murder Petrole”). Moreover, we held that the suppression of the

Newsome Report was “entirely intentional” as an outcome of the Commonwealth’s

“flabbergasting” policy of declining to turn over discovery to defendants for fear that they

could “fabricate a defense.” Id. at 423–24 (describing the Commonwealth’s actions as

“abhorrent to the judicial process”). And the Newsome Report was material because, as

the Commonwealth conceded, “but for [Barber’s] testimony [Appellant] probably would

not have been prosecuted.” Id. at 424.

Consequently, we ordered that the district court’s judgment directing the

Commonwealth to retry Appellant within 120 days or release him unconditionally should

take effect in accordance with Federal Rule of Appellate Procedure 41, upon the issuance

of our mandate.

3.

The Commonwealth Coerces Barber Yet Again

Our mandate in Wolfe II affirming the district court’s judgment issued on September

7, 2012. Incredibly, just four days later, on September 11, Detective Newsome; the

Commonwealth prosecutor, Richard Conway; and assistant prosecutor, Paul Ebert,

interviewed Barber in prison and again undertook the precise tactic they had used to coerce

Barber’s testimony in 2001. They once again told Barber: “this is what you have got to

say or you are getting the chair.” Wolfe II, 691 F.3d at 418 (recounting the

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Commonwealth’s prior history of threatening Barber with the death penalty if he did not

incriminate Appellant).

At the inception of the interview, Barber reiterated to Newsome, Conway, and Ebert

that he intended to testify at Appellant’s re-trial as he had in federal court “where he

reconfirmed that [Appellant] was not ‘involved in the murder of [] Petrole[.]’” Wolfe III,

718 F.3d at 296 (Thacker J., dissenting) (citation omitted). Through a combination of

religious browbeating and threats, Newsome, Conway, and Ebert pressured Barber “to

repeat his 2002 trial testimony [at Appellant’s] retrial.” Id. at 295. Specifically, Newsome,

Conway, and Ebert told Barber that if he testified otherwise -- as he had in his federal

testimony exculpating Appellant from Petrole’s murder -- then he would be in breach of

his plea agreement and subject to capital charges. Newsome, Conway, and Ebert coerced

Barber to stick to his 2002 trial testimony incriminating Appellant, “despite being on notice

that it contained falsities,” Wolfe, 819 F. Supp. 2d at 571 (discussing facts known by the

Commonwealth at the time of Appellant’s trial demonstrating “that Barber’s trial testimony

implicating [Appellant] was false”), and despite knowing Barber had made a “credible

recantation” in federal court, id. at 570.

Citing United States Supreme Court precedent, Conway informed Barber that even

though he thought he “c[ouldn’t] be tried for capital murder [] because [he] already pled

guilty to first degree murder . . . if [Barber] ever testified differently [his] statements could

be used . . . to prosecute [him anew].” J.A. 446. When Barber asked how his conviction

for first degree murder would “make the jump from first to capital,” id. at 449, Conway

informed Barber that would be a consequence of Barber’s “breach of the [plea]

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agreement[,]” id. at 450. Ebert directly threatened Barber: “we would bring the charge

against you, capital murder.” Id.

After this “last-ditch effort to intimidate Barber into implicating [Appellant] once

and for all,” Wolfe III, 718 F.3d at 298 (Thacker J., dissenting), Commonwealth prosecutor

Conway and assistant prosecutor Ebert recused themselves from the case. According to

the Commonwealth, its attorneys recused themselves because “the history of the case to

that point and the criticism that had been leveled at them would be a distraction in

continuing the prosecution of the case.” Id. at 298 n.1 (cleaned up).

4.

Appellant’s Re-trial Proceedings

The Commonwealth then appointed a special prosecutor to proceed with

Appellant’s re-trial for his original charges: capital murder for hiring Barber to kill Petrole,

use of a firearm in commission of a felony, and conspiring to distribute marijuana. On

October 1, 2012, a grand jury returned a superseding indictment alleging six new charges

“arising from the events underlying [Appellant]’s original charges” to supplement the

original charges. Wolfe III, 718 F.3d at 282. In total, Appellant was charged with: (i)

capital murder for hiring Barber to kill Petrole; (ii) capital murder by order of a person

engaging in a continuing criminal enterprise; (iii) first degree felony murder; (iv) use of a

firearm in the commission of a felony; (v) use of a firearm in the commission of a murder;

(vi) use of a firearm in the commission of a robbery or attempted robbery; (vii) conspiracy

to distribute marijuana; (viii) leading a continuing criminal enterprise to distribute between

$100,000 and $250,000 worth of marijuana in a 12 month period; and (ix) leading a

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criminal conspiracy to distribute more than $250,000 worth of marijuana in a 12 month

period.

On October 31, 2012, the Virginia trial court held a hearing on, inter alia,

Appellant’s motion to disqualify the special prosecutor. At the hearing Appellant argued

that the special prosecutor had a conflict of interest because he was “a friend, [] a financial

contributor, [and] a political ally” to Conway and Ebert. J.A. 785. Therefore, Appellant

asserted that the special prosecutor could not serve as an “objective prosecutor” in

Appellant’s re-trial. Id. at 787. Barber was called to testify at the hearing to discuss the

September 11 interview with Newsome, Conway, and Ebert. On the stand, Barber, through

his attorney and in his own testimony, invoked his Fifth Amendment privilege against self-

incrimination “as to any questions.” Id. at 877. The circuit court accepted Barber’s

assertion of privilege and did not compel his testimony. The court subsequently denied

Appellant’s motion to disqualify.

Thereafter, the state court scheduled Appellant’s re-trial for January 2, 2013. On

November 16, 2012, Appellant filed a motion to enforce judgment in the district court that

had granted his habeas petition. Therein, Appellant alleged the Commonwealth had

“neither released him unconditionally nor provided him with a new trial within 120 days

of the [August 30, 2011 district court] Order.” Wolfe III, 718 F.3d at 283. Appellant also

alerted the district court about the September 11, 2012 jailhouse interview that Newsome,

Conway, and Ebert had with Barber.

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5.

Section 2254 Enforcement Proceedings

The district court issued an order for the Commonwealth “to show cause why the

Barber interview ‘does not constitute extraordinary circumstances warranting the Court to

order [Appellant’s] immediate release and bar current and future prosecutions of

[Appellant] on all charges related to the death of [] Petrole and drug conspiracy crimes.’”

Wolfe III, 718 F.3d at 283. On December 13, 2012, the court conducted an evidentiary

hearing on its order. At the hearing, Barber’s lawyer testified that “upon his advice, Barber

ha[d] already invoked his Fifth Amendment privilege in state court.” Wolfe III, 718 F.3d

at 298 (Thacker J., dissenting). Moreover, Barber’s attorney testified, “based on the

contents of th[e] tape [from the September 11 jail visit], my advice will not change about

whether [Barber] should testify [at Appellant’s re-trial] unless there’s a new

development[.]” Id.

On December 26, 2012, the district court entered an order enforcing its judgment.

In its order, the court held that the Commonwealth had not complied with the court’s grant

of habeas relief because it had failed to unconditionally release Appellant or retry him

within 120 days. Citing the “extraordinary circumstances” evidenced by the Barber

interview, the court exercised its discretion and barred the Commonwealth from re-trying

Appellant for any charges relating to the death of Petrole or that would require Barber’s

testimony. In support of its order, the court stated that the Commonwealth’s coercive

interview of Barber had “crystallized” the “constitutional defects in [Appellant]’s original

convictions.” Wolfe v. Clarke, No. 2:05-CV-432, 2012 WL 13103658, at *13 (E.D. Va.

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Dec. 26, 2012). The court determined that a re-trial bar was necessary, therefore, because

any re-trial proceedings would be tainted by the same constitutional violations that had

justified granting Appellant habeas relief pursuant to § 2254. That is, in a re-trial,

Appellant would not be able to call Barber as a witness -- since Barber would invoke his

Fifth Amendment privilege on the advice of his counsel -- to rebut Barber’s incriminating

testimony from the 2001 trial when the Commonwealth proffered that testimony to a jury.

6.

Enforcement Proceedings on Appeal -- Wolfe III

On appeal again, in Wolfe III, we vacated the district court’s remedy. Specifically,

we held that the circumstances of Appellant’s case were not “sufficiently extraordinary to

warrant federal interference with [the Commonwealth’s] reprosecution of a [] § 2254

petitioner.” Wolfe III, 718 F.3d 277, 290 (4th Cir. 2013). We recognized that such a

remedy was, by necessity, “extremely rare[,]” and could only be employed in “situations

where a recognized constitutional error cannot be remedied by a new trial.” Id. Despite

the gravity of the Commonwealth’s violation of Appellant’s constitutional rights, we

concluded that the violations were not “[in]capable of being remedied in a new trial.” Id.

Nonetheless, we noted that Appellant’s “due process claim with respect to the Barber

interview could, at the proper time, constitute a separate ground for federal habeas corpus

relief.” Id.

Thus, the case was remanded once again to the state court.

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7.

Appellant’s Guilty Plea

Back in state court, Appellant moved unsuccessfully to dismiss the indictment based

on vindictive prosecution because he was now “subject[] to harsher charges,” and for

prosecutorial misconduct in connection with the Barber interview. J.A. 95. Ultimately,

“[c]oncluding he had no hope of a fair trial, and without his star witness, [Appellant] pled

guilty [on March 29, 2016] to the use of a firearm in the commission of a felony, conspiracy

to distribute marijuana, and murder.” Appellant Br. at 18. Appellant was sentenced to a

total of 41 years of incarceration.

On direct appeal to the Virginia Court of Appeals, Appellant asserted that his plea

was involuntary because: (i) he had been the target of vindictive prosecution; and (ii) the

plea was the product of prosecutorial misconduct. 5 On May 10, 2017, the Virginia Court

of Appeals dismissed Appellant’s appeal, holding that he had forfeited his arguments

pursuant to Virginia Rule 5A:18 (requiring that errors must be presented to the trial court

in order to be preserved), by pleading guilty. The Supreme Court of Virgina denied

Appellant’s further petition for appeal.

On a petition for a writ of certiorari, the United States Supreme Court issued a

summary order vacating the judgments in Appellant’s direct appeal and remanding for

consideration in light of its 2018 decision in Class v. United States, 583 U.S. 174, 178

5 Appellant also asserted that the trial court had erred by assigning Appellant the costs of his prosecution, but that argument is not material to this appeal.

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(2018), holding 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.” On remand

from the Supreme Court of Virginia following the remand from the Supreme Court of the

United States, the Court of Appeals of Virginia acknowledged that Class authorized

defendants to assert claims that “call[ed] into question the [Commonwealth]’s power to

‘constitutionally prosecute,’” such as prosecutorial vindictiveness. J.A. 1684 (quoting

Class, 583 U.S. at 181–82). Therefore, the Court of Appeals of Virginia held that Appellant

could pursue his vindictive prosecution claim. Nonetheless, the Virginia Court of Appeals

dismissed Appellant’s vindictive prosecution claim as forfeited pursuant to Rule 5A:18,

because Appellant had argued for the first time on appeal that the prosecution was

vindictive because it resulted in a “greater minimum sentence” than the initial prosecution.

Id. at 1686 (emphasis omitted).

The Supreme Court of Virginia and the United States Supreme Court both declined

further review.

C.

Instant Habeas Petition

On June 22, 2022, Appellant filed the instant § 2254 habeas petition in the Eastern

District of Virginia against the Director of the Virginia Department of Corrections

(“Appellee”). But Appellant filed his petition a day late, thereby violating the one year

statute of limitations for applications for a writ of habeas by inmates in state custody. See

Rouse v. Lee, 339 F.3d 238, 243 (4th Cir. 2003) (citing 28 U.S.C. § 2244). Appellant’s

petition asserted a claim for vindictive prosecution and for ineffective assistance of

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counsel. Appellant argued that his vindictive prosecution claim was still available for

§ 2254 habeas relief, even though Virginia courts had deemed that claim to be forfeited.

J.A. 30 (arguing that Appellant’s vindictive prosecution claim was not subject to “[t]he

procedural default doctrine”). Appellant made no argument to excuse his failure to comply

with the statute of limitations for filing a § 2254 petition.

On April 12, 2023, Barber signed a new declaration (the “Barber Declaration”). In

the Barber Declaration, Barber averred that Appellant “had nothing to do with the killing

of [] Petrole[,]” there was “no agreement between [Appellant] and [Barber] to kill []

Petrole[,]” and “[Appellant] did not know [Barber] was going to kill [Petrole].” J.A. 570.

Barber explained that he had originally testified against Appellant because Barber “felt that

[he] had to choose between falsely testifying against [Appellant] or dying” given that the

Commonwealth threatened him with the death penalty. Id. Barber reaffirmed his

subsequent, multiple recantations of his incriminating trial testimony, even though he “had

no assurance that the [Commonwealth] would not retaliate against [him] if he testified in

[Appellant]’s favor.” Id. at 572.

Barber went on to declare that after Appellant was granted habeas relief in Wolfe II,

Newsome, Conway, and Ebert arrived at Barber’s prison without notice and without

providing Barber an opportunity to contact his attorney. Barber stated that he had initially

told Newsome, Conway, and Ebert that he would testify at Appellant’s re-trial consistent

with his federal testimony exculpating Appellant. Barber noted that Newsome, Conway,

and Ebert then told Barber he would “be charged with capital murder . . . [and therefore

subject] to the death penalty” if he “testified at [Appellant]’s retrial as he did in federal

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court.” J.A. 573. As a result of that encounter, Barber “decided [he] was too afraid to

testify further in [Appellant]’s case.” Id. at 575. Barber “did not want to be retried for

capital murder and, given [his] confessions, likely sentenced to death after trial.” Id. (“I

believe that if I had testified in [Appellant]’s favor at a retrial, there is a good chance I

would not be alive today.”).

Barber then explained that he had exercised his Fifth Amendment privilege against

self-incrimination in subsequent proceedings because he “believed the [Commonwealth]

would act on its threats if [Barber] testified truthfully.” J.A. 576. Barber stated, “[f]rom

that point in 2012 until very recently, I had resolved that I would never again offer another

statement or testify in [Appellant]’s case, as I still believed the Commonwealth would

follow through on its threat to prosecute me again.” Id. at 576. If not for the threats against

him by the Commonwealth, Barber “would have testified truthfully -- in [Appellant]’s

favor -- at [Appellant’s] retrial, as [he] had in federal court.” Id.

Barber went on to explain that he “was asked recently by [his] attorney if [he] would

be willing to make a new statement about the case, including about [Appellant]’s

involvement.” J.A. 576. Barber understood that such a statement could be offered in

connection with Appellant’s post-conviction proceedings. Further, Barber understood that

such a statement “[would] not benefit [Barber] in any way other than getting the truth out

there.” Id. Barber concluded his declaration by stating that Appellant had “served a lot of

time for a crime that he did not commit” and that if he “had been able to freely testify in

[Appellant’s] favor at [Appellant’s] retrial, [he] would have.” Id. at 577.

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On May 31, 2023, Appellant filed an amended habeas petition based on the Barber

Declaration. In addition to the Barber Declaration, Appellant attached a declaration from

Barber’s lawyer, attesting that:

• Barber would never have voluntarily testified at Appellant’s re-trial, J.A. 2147 (“Had Mr. Barber been called to testify for either party at [Appellant]’s retrial, he would have asserted his Fifth Amendment privilege. From my perspective, no one ever questioned this fact or believed Mr. Barber might change his mind and testify.”);

• The Commonwealth never approached him about an immunity agreement for Barber, J.A. 2147 (“No prosecutor [] ever contracted me at all concerning Mr. Barber, let alone to discuss immunity.”); and

• An immunity deal could never have been reached, J.A. 2147 (“In my opinion, [the Commonwealth] would never have offered Mr. Barber immunity for the purpose of allowing him to give the same allegedly-perjured testimony again at [Appellant’s] retrial.”).

Appellant’s amended petition asserted two substantive claims: (1) a vindictive

prosecution claim; and (2) a due process claim based on the Commonwealth’s intimidation

of Barber. As characterized by the district court, Appellant asserted that “his plea was

involuntary because Appellant’s second prosecution was unconstitutionally vindictive and

because [the Commonwealth] suppressed potential exculpatory testimony from a key

witness.” J.A. 2149. Both claims were procedurally defaulted because, as the Virginia

Court of Appeals had concluded, Appellant had failed to preserve his claims according to

Virginia Rule 5A:18. In addition, Appellant’s § 2254 petition was untimely by a single

day. And Appellant did not make any attempt to satisfy the stringent requirements of

equitable tolling to satisfy the § 2254 limitations period.

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In his amended petition, Appellant asserted a new Schlup actual innocence claim,

to act as a procedural gateway for the district court to consider his defaulted claims on the

merits. As discussed supra, a Schlup claim is not an independent claim for substantive

relief. It is purely procedural in nature, providing “a meaningful avenue by which to avoid

[the] manifest injustice” of consigning a plausibly innocent habeas petitioner’s

constitutional claims to procedural default. Wolfe I, 565 F.3d at 164 (quoting Schlup, 513

U.S. at 327). Pursuant to Schlup, “a § 2254 petitioner [may] secure the adjudication of his

otherwise defaulted constitutional claims” if he can meet his “rigorous” burden of

demonstrating adequate actual innocence. Id.

On March 28, 2024, the district court granted Appellee’s motion to dismiss

Appellant’s amended petition. In doing so, the court held that it could not reach the merits

of Appellant’s arguments because Appellant’s petition was untimely. J.A. 2159

(recognizing that, pursuant to 28 U.S.C. § 2244(d)(1), Appellant’s “[one year] limitations

period began on June 21, 2021, when the United States Supreme Court denied

[Appellant]’s petition for a writ of certiorari”). The court noted that Appellant did not

dispute that his petition was untimely, nor did Appellant “address the statute of limitations

issue or equitable tolling at all.” Id. at 2160. Rather, Appellant relied “on grounds of actual

innocence” in order to overcome the statute of limitations. Id. at 2160–62.

Citing Rouse v. Lee, 339 F.3d 238, 251 (4th Cir. 2003), the district court held that

Appellant could not rely on an assertion of actual innocence to “overcome[e] procedural

barriers to the merits of [his] petition.” J.A. 2160 (“The Court understands Rouse to reject

any ‘consideration of the merits of time-barred claims to creep into the equitable tolling

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analysis,’ including whether Petitioner can demonstrate actual innocence . . . .” (quoting

Rouse, 339 F.3d at 251)). The court alternatively dismissed Appellant’s actual innocence

claim on the merits because it concluded that the Barber Declaration was not “new reliable

evidence.” Id. at 2161 (“A threshold requirement of Schlup is that [Appellant] present

‘new reliable evidence.’” (quoting Schlup, 513 U.S. at 324)).

Appellant moved for reconsideration of the district court’s holding that actual

innocence does not provide an exception to the habeas statute of limitations. In denying

Appellant’s motion for reconsideration, the court recognized that the “Supreme Court held

that ‘actual innocence, if proved, serves as a gateway through which a petitioner may pass,’

including when the procedural bar is the ‘expiration of the statute of limitations.’” J.A.

2167 (quoting McQuiggin v. Perkins, 569 U.S. 383, 386 (2013)). On the merits, however,

the court adhered to its prior holding that Appellant’s Schlup actual innocence claim was

deficient because the Barber Declaration was not “new” or “reliable.” Id. at 2167–70. The

court explained:

Barber’s most recent declaration is not “new reliable evidence” pertaining to [Appellant]’s purported innocence because it does not contain new information concerning Petrole’s murder: Barber’s most recent explanation of events is consistent with the version of events he offered in his previous testimony in [Appellant]’s federal habeas proceedings, which the Fourth Circuit had already considered when it permitted the Commonwealth to retry [Appellant] for capital murder. The Barber declaration simply offers no new information relative to when [Appellant] entered his guilty plea.

Id. at 2168 (internal citation omitted).

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Pursuant to the district court’s certificate of appealability, Appellant timely noted

this appeal.

II.

We possess jurisdiction over the district court’s adjudication of Appellant’s § 2254

petition because the court issued a certificate of appealability pursuant to 28 U.S.C.

§ 2253(c)(2). Our review considers a single issue: whether the district court erred in

holding that Appellant had failed to establish a Schlup actual innocence claim. We consider

that question de novo. Wood v. Stirling, 27 F.4th 269, 275 (4th Cir. 2022).

III.

Appellant’s Schlup Actual Innocence Claim

The Schlup Standard

The Supreme Court has “recognized a limited ‘actual innocence’ exception to

certain procedural bars to habeas review.” United States v. Jones, 758 F.3d 579, 583 (4th

Cir. 2014). In Schlup v. Delo, the Supreme Court recognized “that a showing of actual

innocence can serve as a ‘gateway,’ that is, such a showing may be utilized by a § 2254

petitioner to secure the adjudication of his otherwise defaulted constitutional claims.”

Wolfe I, 565 F.3d 140, 164 (4th Cir. 2009) (discussing Schlup v. Delo, 513 U.S. 298

(1995)). Accordingly, “[n]ew reliable evidence of actual innocence creates a gateway for

a habeas petitioner to present procedurally defaulted federal constitutional claims[.]”

Hayes v. Carver, 922 F.3d 212, 216 (4th Cir. 2019). In McQuiggin v. Perkins, the Supreme

Court expanded the Schlup actual innocence exception to also “proceed in the face of the

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statutory time bar in 28 U.S.C. § 2244(d)(1)(D)[.]” Jones, 758 F.3d at 584 (discussing

McQuiggin v. Perkins, 569 U.S. 383 (2013)).

Meeting this standard “requires [a] petitioner to support his allegations of

constitutional error with new reliable evidence—whether it be exculpatory scientific

evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not

presented at trial.” Schlup, 513 U.S. at 324. The petitioner must also “demonstrate that

the totality of the evidence would prevent any reasonable juror from finding him guilty

beyond a reasonable doubt, such that his incarceration is a miscarriage of justice.” Teleguz

v. Pearson, 689 F.3d 322, 329 (4th Cir. 2012). Once a petitioner “passes through the Schlup

gateway by satisfying this standard, the district court then considers, and reaches the merits

of, all of the petitioner’s procedurally defaulted claims.” Id.

An actual innocence finding “requires a holistic judgment about all the evidence and

its likely effect on reasonable jurors applying the reasonable-doubt standard.” House v.

Bell, 547 U.S. 518, 539 (2006) (cleaned up). If a court finds that, “‘more likely than not

any reasonable juror would have reasonable doubt’ as to the petitioner’s guilt, then the

petitioner has satisfied the Schlup standard.” Teleguz, 689 F.3d at 328 (quoting House, 547

U.S. at 538). Because a gateway innocence claim involves evidence the trial jury did not

have before it, the inquiry requires a court to assess how reasonable jurors would react to

the overall, newly supplemented record. United States v. MacDonald, 641 F.3d 596, 613

(4th Cir. 2011) (citing House, 547 U.S. at 538). The court’s function is not to make an

independent factual determination about what likely occurred, but rather to assess the likely

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impact of the evidence on reasonable jurors. Finch v. McKoy, 914 F.3d 292, 299 (4th Cir.

2019).

The parties dispute the scope of this standard as applied to this case. The heart of

their dispute is “whether the ‘new’ evidence required under Schlup includes only newly

discovered evidence that was not available at the time of trial, or broadly encompasses all

evidence that was not presented to the fact-finder during trial, i.e., newly presented

evidence.” Cleveland v. Bradshaw, 693 F.3d 626, 633 (6th Cir. 2012) (discussing “circuit

split” on Schlup standard). Restated, the question is whether “new” evidence means

evidence that is wholly newly discovered evidence or simply newly presented evidence.

We have already answered this query and join our sister circuits who have held that new

evidence includes evidence that is newly presented. As we have explained, the Schlup

standard is broad, encompassing both “evidence that became available only after trial” and

evidence “unavailable or excluded at trial.” Royal v. Taylor, 188 F.3d 239, 244 (4th Cir.

1999) (citing Schlup, 513 U.S. at 327–28).

Applicability of the Schlup Standard

As the district court correctly noted, however, the question in this case cannot be

resolved just by parsing the nature of the Schlup standard. Appellant pled guilty. He did

not go to trial. In that context, and applying the principles delineated above, the material

questions are of a more practical nature: Is the Barber Declaration “new” evidence? Is

Barber a reliable declarant? And would a reasonable jury presented with the Barber

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Declaration entertain reasonable doubt about Appellant’s guilt, where Appellant pled

guilty to hiring Barber to murder Petrole?

The Barber Declaration Is New Evidence

Whether the Barber Declaration is “new” evidence is a question that is resolved by

the context of this case. That is, at the time Appellant pled guilty, Barber had already twice

exercised his Fifth Amendment privilege against self-incrimination: first, in state court on

Appellant’s motion to dismiss, and second, in federal court at the district court’s

evidentiary hearing on Appellant’s motion to enforce judgment. Critically, Barber’s

attorney had also testified, during the habeas evidentiary hearing, that he would advise

Barber to invoke the Fifth Amendment in all future proceedings: “based on the contents of

th[e] tape [from the September 11 jail visit] . . . my advice will not change about whether

[Barber] should testify [at Appellant’s re-trial] unless there’s a new development[.]” J.A.

1093. This context renders the Barber Declaration “new” because the Barber Declaration

upset that status quo. It converted Barber from an unavailable witness, pursuant to his

decision to invoke his Fifth Amendment privilege, into a witness who, even if not called at

trial, was willing to provide a contemporaneous declaration exculpating Appellant.

Appellee argues otherwise, upon the theory that there was already evidence in the

record wherein Barber had exculpated Appellant. Appellee argues the Barber Declaration

was not new because it was simply a reiteration of what Barber had previously said,

whether in testimony in federal court or in an affidavit or otherwise. But this

characterization ignores the pivotal event wherein Newsome, Conway, and Ebert showed

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up unannounced at Barber’s jailhouse door and coerced him into exercising his Fifth

Amendment privilege. And, it also ignores the consequence of that coercion -- it

succeeded in taking Barber off the board for Appellant at his re-trial. This was a material

event given Appellant’s prior convictions, prior death sentence, and the litany of prejudicial

conduct by the Commonwealth that had thus far infected Appellant’s proceedings.

Appellee takes issue with this interpretation of Barber’s testimony based on our

decision in Wolfe III, where we characterized “the availability of Barber’s testimony at a

retrial . . . [a]s speculative.” Wolfe III, 718 F.3d 277, 289 (4th Cir. 2013). Appellee argues

that this statement undermines any determination that the Barber Declaration was “new”

evidence. Namely, if we did not reasonably know at the time of Appellant’s plea that

Barber was going to invoke his Fifth Amendment privilege against self-incrimination, then

the Barber Declaration exculpating Appellant is not “new” evidence, as Barber may have

still testified in support of Appellant at the ultimate trial.

But Wolfe III did not rule that Barber’s availability at trial was “speculative” as a

matter of fact. As Appellant aptly points out, the posture in the § 2254 petition before us

now is different than the posture adjudicated in Wolfe III. In Wolfe III, we considered

whether sufficient “extraordinary” circumstances justified the uniquely extreme remedy

imposed by the district court at the time; that is, barring the Government from re-trying

Appellant for Petrole’s murder. Wolfe III, 718 F.3d at 288 (“[P]reventing the retrial of a

state criminal case is the strongest of medicine.”). Indeed, in Wolfe III we emphasized that

the remedy of a re-trial bar could apply “only in the most extraordinary of circumstances.”

718 F.3d at 288 (citing Gilliam v. Foster, 75 F.3d 881, 905 (4th Cir. 1996) (en banc)

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(“Equitable federal court interference with ongoing state criminal proceedings should be

undertaken in only the most limited, narrow, and circumscribed situations.”)).

Our inquiry in Wolfe III, therefore, assessed whether the events up to that point

amounted to the type of “limited and narrow circumstances” that could justify such an

extreme remedy. 718 F.3d at 288. Thus, our finding that Barber’s position was

“speculative” must be read in that context. Barber’s availability as a witness at re-trial was

not “speculative,” as a matter of fact, when we decided Wolfe III. Rather, Barber’s

availability as a witness was too “speculative” to rise to the kind of “extraordinary

circumstances” that justify a habeas to court to “forbid reprosecution.” Wolfe III, 718 F.3d

at 289.

But in the present posture, where we evaluate the sufficiency of a Schlup actual

innocence claim, Barber’s testimony was reasonably unavailable at the time of Appellant’s

guilty plea given Barber’s own testimony invoking his Fifth Amendment privilege, and the

testimony of Barber’s attorney that Barber would have continued to do so. That was so

even if Barber’s overall position was still “speculative” enough not to warrant the district

court’s extreme remedy barring prosecution in Wolfe III. We need not incorporate the

extreme, limited, and constrained inquiry at work in Wolfe III into our Schlup analysis here.

Indeed, to do so would be dissonant with the “broad definition of ‘new’ evidence”

contemplated by the Schlup standard. Royal, 188 F.3d at 244; see also House, 547 U.S. at

538 (“[Pursuant to Schlup] the habeas court must consider ‘all the evidence,’ old and new,

incriminating and exculpatory, without regard to whether it would necessarily be admitted

under ‘rules of admissibility that would govern at trial.’”) (citations omitted).

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Accordingly, we hold that the Barber Declaration is “new” evidence within the

meaning of Schlup.

The Barber Declaration Is Reliable Evidence

We turn next to the question of whether the Barber Declaration is reliable. Appellee

makes much of Barber’s purported “vacillati[on],” Appellee Br. at 27, noting that Barber

originally testified to convict Appellant, and then recanted that testimony, and then pled

the Fifth. Read in isolation, these facts could paint the picture of an inconsistent witness -

- but only if read in isolation. When read in proper context, Barber’s alleged “vacillati[on]”

is entirely attributable to the Commonwealth’s coercive tactic of threatening him with the

death penalty if he did not cooperate and testify against Appellant.

To illustrate, as set out in the Barber Affidavit, when Barber was first arrested for

Petrole’s murder, Newsome and the other Commonwealth Officers “told [Barber] that they

already knew that [Appellant] had hired [Barber] to kill [] Petrole.” J.A. 1169. Barber

“did not suggest that story to the detectives; they were the first to mention it to [him].” Id.

While Barber was in custody, the Commonwealth Officers “repeatedly told [him] [that]

they and the prosecutors knew that [Appellant] had hired [Barber] to kill [Petrole], had

linked [Barber’s] gun to the killing, and would pursue capital murder against either

[Appellant] or [Barber].” Id. Unsurprisingly, “[Barber] agreed to testify against

[Appellant] . . . because [he] did not want to face the death penalty.” Id. at 1171.

Admittedly, in the years after he signed the Barber Affidavit, Barber did “waver[]

in [his] additional statements about Appellant’s involvement” in Petrole’s murder. J.A.

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571. As recounted in the Barber Declaration, Barber wrote several letters between 2005

and 2010 withdrawing his recantation of his trial testimony and requesting not to be called

as a witness in Appellant’s habeas proceedings. But, as Barber explained, he was “worried

about what would happen to [him] if [he] testified in [Appellant]’s favor.” Id. (“I was

afraid of what would happen to me if I broke the cooperation deal I made with the

[Commonwealth] when I pled guilty.”). By the time of Appellant’s November 2, 2010

habeas evidentiary hearing in federal court, however, Barber had decided “to tell the truth

in court.” Id. at 572. And, critically, the district court, sitting as the factfinder in that

proceeding, found that “Barber made a credible recantation of his trial testimony and

indicated that [Appellant] was not involved in the murder of Daniel Petrole.” Wolfe v.

Clarke, 819 F. Supp. 2d 538, 548 (E.D. Va. 2011) (emphasis supplied).

Thereafter, on September 11, 2012, mere days after we affirmed the district court’s

judgment vacating Appellant’s convictions, Newsome, Conway, and Ebert coerced Barber

into cooperating against Appellant in a prison interview without Barber’s counsel present.

The Commonwealth’s terms to Barber were unambiguous, as they have always been: “if

[Barber] testified at [Appellant’s] retrial as [he] did in federal court . . . [he] would be

charged with capital murder.” J.A. 573. Barber’s retelling of the coercive interview is

corroborated by the transcript of the interview itself, wherein Ebert directly threatened

Barber with death if he recanted his incriminating trial testimony in Appellant’s re-trial

proceedings: “we would bring the charge against you, capital murder.” Id. at 450.

After being threatened with death anew, Barber began to invoke his Fifth

Amendment privilege in Appellant’s re-trial proceedings: “I believed the Commonwealth

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would act on its threats if I testified truthfully, because the truth was what I’d stated in

federal court.” J.A. 575. As recounted, Barber sustained that position from 2012 until he

executed the Barber Declaration in 2023.

Against this backdrop, it becomes apparent that Barber is not a “vacillating”

witness. Appellee Br. at 27. He is an imprisoned man who has struggled for decades

between telling the truth and preserving his own life. We cannot condone the

Commonwealth’s conduct in creating this dichotomy. Indeed, as we noted in Wolfe III, a

due process claim “with respect to the Barber interview could, at the proper time, constitute

a separate ground for federal habeas corpus relief.” Wolfe III, 718 F.3d at 290. This is that

time.

To hold the consequence of the Commonwealth’s coercive tactics against Barber’s

credibility, as Appellee would have us do, defies fundamental principles of due process

and justice. To the contrary, we must take the Commonwealth’s acts, which were

“abhorrent to the judicial process[,]” into account when considering the reliability of the

Barber Declaration. Wolfe II, 691 F.3d 410, 424 (4th Cir. 2012) (quoting Wolfe, 819 F.

Supp. 2d at 566 n.24). With that full picture, the Barber Declaration -- wherein Barber

thoroughly exculpates Appellant and explains why he invoked his Fifth Amendment

privilege after the Commonwealth threatened him with the death penalty -- is reliable. Cf.

House, 547 U.S. at 552–54 (determining evidence that was “by no means conclusive”

sufficed to establish a Schlup gateway claim even though, on balance, “the issue [was]

close”).

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More Likely than Not, a Reasonable Jury Would Have Doubt as to Appellant’s Guilt

The final question we must answer is whether a reasonable jury presented with the

Barber Declaration would, more likely than not, have reasonable doubt as to Appellant’s

guilt.

The rub with this question, of course, is that Appellant pled guilty to hiring Barber

to shoot Petrole. But Schlup mandates “a holistic judgment about all the evidence and its

likely effect on reasonable jurors applying the reasonable-doubt standard.” House, 547

U.S. at 539 (cleaned up). And Appellant’s central contention on the merits is that “his plea

was involuntary because his second prosecution was unconstitutionally vindictive and

because prosecutors suppressed potential exculpatory testimony from a key witness.” J.A.

2149.

As Appellant has consistently argued for 13 years, across each phase of appellate

review, Newsome, Conway, and Ebert coerced Barber into unavailability and thereby

forced Appellant to plead guilty, rendering that plea involuntary. That coercion was

compounded by the Commonwealth’s facially vindictive prosecution in Appellant’s re-

trial proceedings. Even though he had succeeded in being awarded a new trial, Appellant

faced six additional charges and the threat of Barber’s original incriminating testimony

because Barber had declared himself to be unavailable in federal court. Amidst this

prejudice loomed the ever-present specter of the death penalty.

Considered holistically with the Barber Declaration, the facts of Appellant’s

criminal proceedings exemplify the rare, “truly extraordinary” case that satisfies the

36 USCA4 Appeal: 24-6840 Doc: 38 Filed: 07/07/2025 Pg: 37 of 38

rigorous Schlup standard. House, 547 U.S. at 537 (cleaned up). We need not evaluate the

merits of Appellant’s substantive claims at this juncture, but the allegations he proffers in

support, buttressed by our exhaustive review of the record thus far, adequately assure us

that “more likely than not[,] . . . no reasonable juror would have found [Appellant] guilty

beyond a reasonable doubt.” Id.

Indeed, the Commonwealth’s conduct in this case is a textbook example of the

conduct we have recognized renders a plea involuntary. As detailed in United States v.

Fisher, that standard requires: (1) “egregiously impermissible conduct”; (2) that “was

material to [Appellant’s] choice” to plead guilty. 711 F.3d 460, 465 (4th Cir. 2013). Here,

whenever Barber told the Commonwealth that Appellant had nothing to do with Petrole’s

murder, the Commonwealth dismissed his assertions and threatened him with the death

penalty unless he changed his story. Certainly, that is egregious conduct that “strikes at

the integrity of the prosecution as a whole.” Id. at 466 (citation omitted). And Appellant

plausibly alleges that such egregious conduct, and Barber’s reaction to it, was material to

his decision to plead guilty.

At its core, Appellant’s Schlup claim rests upon the evidentiary reality that “Barber

was the prosecution’s key witness . . . and the only witness to provide any direct evidence

regarding the ‘for hire’ element of the murder offense and the involvement of [Appellant]

therein.” Wolfe I, 565 F.3d at 144 (emphases supplied). In this context, where nothing

else ties Appellant to Petrole’s murder, the effect of Barber’s recantation upon Appellant’s

conviction cannot be overstated. As the Commonwealth itself has admitted, without

Barber, Appellant would never have been prosecuted. It follows, therefore, that with

37 USCA4 Appeal: 24-6840 Doc: 38 Filed: 07/07/2025 Pg: 38 of 38

Barber’s recantation of his incriminating testimony, any reasonable juror would have

reasonable doubt about Appellant’s guilt.

Thus, on this record, we hold that it is more likely than not that any reasonable jury

would have reasonable doubt about Appellant’s guilt. Barber’s multiple “credible”

recantations, his assertions that Appellant had nothing at all to do with the crime, the

weakness of the Commonwealth’s case, the history of the Commonwealth’s egregious

misconduct, and the strength of Appellant’s claims challenging the voluntariness of his

plea together support that conclusion.

IV.

For the foregoing reasons, we hold that Appellant has alleged a meritorious Schlup

claim for actual innocence. Therefore, we vacate the district court’s judgment and remand

VACATED AND REMANDED