Drug dealer claims innocence in decades-old murder-for-hire

RICHMOND, Va. (CN) — A drug dealer asked a Fourth Circuit panel on Tuesday to vacate a murder-for-hire conviction that he has litigated up and down the federal court system for over 20 years.

Justin Wolfe argued that a 2023 declaration from the trigger man exonerating him should prove his actual innocence and require his release even though he pleaded guilty to the murder plot in 2016. The government argued and a federal judge agreed that the 2023 declaration provided no new evidence for the court to consider.

Attorneys representing Wolfe and the Commonwealth of Virginia quibbled over what is considered new evidence. The government argues new evidence is characterized as information discovered after Wolfe pleaded guilty. In contrast, Wolfe argues the evidence, in this case, trigger man Owen Barber’s 2023 declaration and willingness to testify on Wolfe’s behalf, only needs to be newly available.

“I think the problem with that argument is that this newly available standard, as far as I’m understanding, does not exist,” attorney Liam Curry, representing the commonwealth, said. “The case law that I have seen that talks about evidence that is newly available talks about evidence that had not been discovered at trial and therefore was not available for the witness.”

Wolfe sold high-grade cannabis in Northern Virginia, a wealthy suburb of Washington, for prices between $4,200 and $5,000 per pound. What’s undisputed is that Wolfe’s friend and fellow dealer, Barber, shot and killed Wolfe’s supplier Daniel Petrole. The question of why Barber killed Petrole has been the subject of debate in courtrooms, including the U.S. Supreme Court and the Supreme Court of Virginia, since a jury sentenced the then-19-year-old Wolfe to death in 2002.

The commonwealth argued and the jury agreed that Wolfe paid Barber to kill Petrole because he owed him tens of thousands of dollars. Barber initially testified against Wolfe in 2002 as the state’s star witness.

A federal judge halted Wolfe’s execution in 2011 and dismissed all charges against him after finding that prosecutors did not conduct a proper investigation, quickly concluded Wolfe was guilty and ignored evidence that contradicted their case theory. The judge also took into account that in 2005, Barber first recanted his trial testimony and swore Wolfe was not involved in the murder.

The day after the Fourth Circuit affirmed the lower court’s decision in 2012, the commonwealth’s attorney, his assistant and the lead investigator paid a visit to Barber in prison. In an audio recording of the conversation, the prosecutors threaten Barber with the death penalty if he provides testimony exonerating Wolfe during a retrial.

Prosecutors brought six more indictments in addition to the original three for the retrial of Wolfe, accusing him of three counts of murder, three firearms charges, and three drug charges. Supposedly in fear of death, Barber pleaded the Fifth.

“He says in his declaration in 2023 that he felt he had to choose between falsely testifying against Wolfe or dying because he was threatened with the death penalty,” U.S. Circuit Court Judge Stephanie Thacker, a Barack Obama appointee, said.

Without Barber’s testimony on his side, Wolfe pleaded guilty and the judge sentenced him to 41 years in prison. Wolfe appealed, arguing unsuccessfully that he made the plea involuntarily because he was the target of vindictive prosecution that subjected him to increased mandatory minimum sentences after successful post-conviction proceedings.

Wolfe again sought his release, this time with an actual innocence claim supported by the 2023 declaration from Barber, which again asserted Wolfe’s innocence. The case now faces the Fourth Circuit after a federal judge dismissed Wolfe’s habeas corpus petition for failing to provide new reliable evidence relative to when he entered his guilty plea that demonstrates actual innocence.

“He needs new allegations of factual innocence," Curry said. “Not new allegations of misconduct during his trial.”

The government argues that although Barber didn’t testify before Wolfe pleaded guilty, the court factored in that he had recanted his trial testimony, yet still didn’t find Wolfe worthy of release.

“We’re not looking at availability. We’re not looking about admissibility of any of this evidence," Curry said. “This is about him building a record of new evidence of his actual innocence.”

U.S. Circuit Court Judge Nicole Berner pressed attorney Scott Abeles of Carlton Fields, representing Wolfe, on what was new since Barber first recanted his damning testimony against him in 2005.

“It seems that there’s a lot of overlap between Barber’s declaration in 2005 and the 2023 declaration,” the Joe Biden appointee said. “What exactly are you alleging is specifically new?”

Abeles told Berner that Barber’s willingness to go before a judge and testify in 2016 was not available due to prosecutors running him off the bench with threats.

“Barber was not available to testify as an exculpatory witness in 2015 when Wolfe pled guilty,” Albese said. “What changed at habeas is he is available.”

The government attacked Barber’s credibility. Abeles responded that Barber had no reason to lie, as Wolfe’s innocence did nothing positive for his own convictions.

“He has no dog in this fight,” Abeles said. “All he has is risks.”

U.S. Circuit Judge Robert King, a Bill Clinton appointee, completed the three-judge panel.

Curry declined to comment.

“Justin has been behind bars for nearly 25 years, for a crime the confessed trigger man says he did not commit,” Abeles said in a statement. “We’re hopeful he’ll receive justice before long.”