                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-7


JUSTIN MICHAEL WOLFE,

                Petitioner – Appellee,

           v.

HAROLD   W.  CLARKE,    Director,   Virginia     Department   of
Corrections,

                Respondent – Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:05-cv-00432-RAJ-DEM)


Argued:   January 28, 2013                     Decided:   May 22, 2013


Before KING, DUNCAN, and THACKER, Circuit Judges.


Vacated and remanded by published opinion. Judge King wrote the
majority opinion, in which Judge Duncan joined.     Judge Thacker
wrote an opinion concurring in part and dissenting in part.


ARGUED: Matthew P. Dullaghan, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Appellant.      Ashley Charles
Parrish, KING & SPALDING, LLP, Washington, D.C., for Appellee.
ON BRIEF: Kenneth T. Cuccinelli, II, Attorney General, Katherine
B. Burnett, Senior Assistant Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellant.
Michele J. Brace, VIRGINIA CAPITAL REPRESENTATION RESOURCE
CENTER, Charlottesville, Virginia; Daniel J. King, KING &
SPALDING, LLP, Atlanta, Georgia; Daniel S. Epps, Karen F.
Grohman, KING & SPALDING, LLP, Washington, D.C., for Appellee.




                              2
KING, Circuit Judge:

       These habeas corpus proceedings on behalf of Justin Michael

Wolfe are before us for the third time, and they arrive saddled

with a protracted and eventful history.                   Most recently, in 2012,

we    affirmed   the    judgment     entered      in    the   Eastern   District   of

Virginia    vacating      Wolfe’s     2002       state    court    convictions     for

capital murder and other crimes, and we remanded for further

proceedings,       leaving   in     place       the   district    court’s    remedial

edict that Wolfe be retried or released.

       In this appeal, respondent Harold W. Clarke, as Director of

the     Virginia       Department     of        Corrections       (hereinafter     the

“Commonwealth”), seeks relief from the district court’s “Order

Enforcing Judgment.”          Wolfe v. Clarke, No. 2:05-cv-00432 (E.D.

Va. Dec. 26, 2012). 1        The court entered the challenged order upon

ascertaining that the Commonwealth had not complied with the

operative retry-or-release directive.                    As a consequence of the

Commonwealth’s       noncompliance,         it    was    instructed     to   “release

[Wolfe] unconditionally, free of all criminal proceedings on the

charge of murder for hire of Danny Petrole and the drug charges

that were previously tried in state court by the Commonwealth,

within ten (10) days of the entry of this order.”                    Id. at 25.

       1
       The Order Enforcing Judgment is found at J.A. 510-35.
(Citations herein to “J.A. ____” refer to the contents of the
Joint Appendix filed by the parties in this appeal.)


                                            3
     Beyond mere release, however, the district court further

proscribed the Commonwealth “from reprosecuting [Wolfe] on the

charges    originally    tried       herein   in   state      court    or   any   other

charges    stemming     from     [the]    death     of     Danny      Petrole     which

requires    the   testimony     of    Owen    Barber     in    any    form.”      Order

Enforcing Judgment 25-26.            In support of its chosen remedy, the

court   concluded     that     the    Commonwealth’s          prosecutors      had,   on

remand, improperly conducted themselves with respect to their

key witness, Owen Barber.               As a result, the prosecutors had

“permanently      crystalized”       constitutional       violations        previously

found to have tainted Wolfe’s trial, id. at 24, which in turn

constituted extraordinary circumstances justifying a federal bar

to his proposed retrial.

     On January 3, 2013, we stayed, pending resolution of this

appeal, the district court’s order.                  As explained below, the

court accurately determined that the Commonwealth neglected to

timely observe the retry-or-release directive.                     Though the court

was correct to order Wolfe’s immediate release, it fashioned an

overbroad remedy and thereby abused its discretion by precluding

the Commonwealth from retrying Wolfe in a new proceeding.                             We

therefore vacate the Order Enforcing Judgment and remand for the

district court to enter a substitute order directing that Wolfe

simply be released from the custody imposed as the result of his

2002 convictions.

                                          4
                                                  I.

     As described in our earlier decisions, a jury in Prince

William   County,     Virginia,        found       Wolfe      guilty      in     2002    of   the

capital   murder      of    Danny     Petrole,          of   using    a    firearm       in   the

commission     of     a     felony,     and       of      conspiring        to     distribute

marijuana.     See Wolfe v. Johnson, 565 F.3d 140 (4th Cir. 2009)

(“Wolfe   I”);      Wolfe    v.   Clarke,         691    F.3d   410       (4th    Cir.    2012)

(“Wolfe II”).         The theory of the prosecution was that, as a

nineteen-year-old marijuana dealer, Wolfe hired his friend and

fellow drug dealer, Owen Barber, to murder Petrole, who was a

drug supplier.        Barber, the admitted triggerman, was the only

witness   to   testify       concerning       the       “for    hire”      element       of   the

murder-for-hire scheme.             In exchange for Barber’s testimony, the

Commonwealth dismissed its capital murder charge against him.

Barber thus pleaded guilty and was sentenced to sixty years on a

non-capital murder conviction, of which twenty-two years were

suspended.       On the basis of his murder conviction, Wolfe was

sentenced to death.          For his firearm and drug convictions, Wolfe

received consecutive prison terms of three and thirty years,

respectively.

                                          A.

                                          1.



                                              5
      In November 2005, after failing to obtain relief on direct

appeal and in state post-conviction proceedings, Wolfe filed his

28 U.S.C. § 2254 petition in the Eastern District of Virginia.

The   district    court   promptly    referred      Wolfe’s     petition    to   a

magistrate judge for a report and recommendation.                  On December

14, 2005, while Wolfe’s petition was pending, Barber executed an

affidavit repudiating his trial testimony and exculpating Wolfe

from the murder-for-hire scheme.              Barber’s affidavit prompted

Wolfe to file an amended § 2254 petition, which is the operative

“petition” in these proceedings.            The petition maintained, inter

alia, that the prosecution had curtailed Wolfe’s entitlement to

due   process    by   concealing    material      exculpatory    evidence   that

should   have    been   disclosed    to     his   defense   attorneys.       The

petition also alleged that Barber’s affidavit had sufficiently

demonstrated Wolfe’s actual innocence to excuse any procedural

default of his constitutional claims.

      In April 2006, five months after executing the repudiatory

affidavit, Barber sought to recant the statements he had made

therein.   In an unsworn handwritten letter, Barber insisted that

he had testified truthfully in the 2002 trial, and that he had

falsified his 2005 affidavit.              In August 2007, the magistrate

judge issued his report recommending dismissal of Wolfe’s § 2254

petition, in that the claims alleged therein were meritless and

had been procedurally defaulted.              On February 11, 2008, over

                                       6
Wolfe’s objections, the district court adopted the magistrate

judge’s recommendation and dismissed the petition.                         Wolfe timely

appealed that dismissal, and, by our decision of May 11, 2009,

see   Wolfe    I,   we    vacated      in    part      and    remanded     for    further

proceedings.

                                            2.

      On remand, the district court determined at the outset that

Wolfe was entitled to an evidentiary hearing, and that, pursuant

to Schlup v. Delo, 513 U.S. 298 (1995), he had made a sufficient

showing of actual innocence to bypass any procedural defenses

that might be interposed to foreclose substantive consideration

of his constitutional claims.                    During the evidentiary hearing

conducted in November 2010, Barber testified, exculpated Wolfe,

and his evidence was credited by the court.                         On July 26, 2011,

the   court    ruled      that   the     prosecutors         in    Wolfe’s      trial   had

contravened his Fourteenth Amendment due process rights by (1)

failing to disclose favorable and material evidence, contrary to

Brady v. Maryland, 373 U.S. 83 (1963); (2) allowing Barber to

testify,      despite      having      information            indicating        that    his

testimony was false, in violation of Napue v. Illinois, 360 U.S.

264   (1959);       and    (3)    striking         a   qualified         venireman,     as

proscribed     by   Supreme      Court      precedent.            The   court   therefore

granted habeas corpus relief to Wolfe and specified that Wolfe’s

“conviction and sentence” were vacated.                      Wolfe v. Clarke, 819 F.

                                             7
Supp. 2d 538, 574 (E.D. Va. 2011).                        On August 4, 2011, the

Commonwealth filed a timely notice of appeal.

      Thereafter,           Wolfe   moved   the      district   court,        pursuant    to

Rule 59 of the Federal Rules of Civil Procedure, to clarify

whether the relief granted on his capital murder conviction also

encompassed his firearm and drug convictions.                            On August 30,

2011, the court granted Wolfe’s clarification motion and entered

one of the orders relevant to this appeal.                      See Wolfe v. Clarke,

No. 2:05-cv-00432 (E.D. Va. Aug. 30, 2011) (the “Relief Order”). 2

The Relief Order explained that Wolfe was entitled to a new

trial     on    all    of    the    original       charges,   and   it     accorded      the

Commonwealth the option of either “provid[ing] [Wolfe] with a

new   trial,      or    releas[ing]        him     unconditionally       from    custody”

within     120    days.        Id.    at    2.       On   September      2,    2011,     the

Commonwealth filed a second notice of appeal, from the Relief

Order     and    the    Amended       Judgment.           Eleven    days      later,     the

Commonwealth moved the district court for a stay pending appeal,

which the court granted on November 22, 2011.                              See Wolfe v.

Clarke, 819 F. Supp. 2d 574 (E.D. Va. 2011) (the “Stay Order”). 3


      2
       On August 30, 2011, the district court also entered an
Amended Judgment containing substantially identical disposition
terms as the Relief Order.   These documents are found at J.A.
91-93.
      3
       A brief comment is warranted concerning the two notices of
appeal filed by the Commonwealth in Wolfe II.           Generally
(Continued)
                                               8
Wolfe cross-appealed, asserting that the district court erred in

denying him relief on an additional, unadjudicated claim.      By

our Wolfe II decision, we affirmed the judgment of the district

court. 4

                               B.

                               1.

     Our mandate in Wolfe II issued on September 7, 2012.    That

same day, Wolfe was transferred from the Sussex State Prison to




speaking, a duly filed notice of appeal deprives a district
court of jurisdiction over all issues relating to the subject
matter thereof.   See In re Grand Jury Proceedings Under Seal,
947 F.2d 1188, 1190 (4th Cir. 1991).      An exception to that
general proposition is recognized when a district court elects
“to proceed as to matters in aid of the appeal.” Id. A court
may render such aid, for example, by resolving a motion pursuant
to Rule 59(e) of the Federal Rules of Civil Procedure to alter
or amend the judgment being appealed, see Fed. R. App. P.
4(a)(4)(A)(iv) (providing in addition that filing of Rule 59(e)
motion resets time allotted all parties to submit notices of
appeal), or by addressing in the first instance a motion for
stay pending appeal, see Fed. R. App. P. 8(a)(1)(A).     Both of
those events occurred in Wolfe II, culminating in, respectively,
the Relief Order with accompanying Amended Judgment, and the
Stay Order.
     4
       Our affirmance in Wolfe II of the Relief Order and Amended
Judgment was predicated on one sub-part of Wolfe’s Brady claim,
that is, the Commonwealth’s failure to disclose the written
police report of Prince William County Detective Sam Newsome,
documenting that Newsome had advised Barber that he could avoid
the death penalty by implicating Wolfe.        Because Wolfe was
entitled to relief under § 2254 on that sub-claim, we had no
reason to review the Commonwealth’s assignments of error
regarding the other grounds for relief, or to consider Wolfe’s
cross-appeal. See Wolfe II, 691 F.3d at 416-17.



                               9
the Prince William County Adult Detention Center, for a status

hearing to be conducted in the state circuit court on September

10,    2012.        At       that   hearing,       two    of     Wolfe’s   federal      habeas

lawyers were appointed to represent him on the original state

charges, and a bond hearing was set for September 14, 2012. 5                              The

next day, the Commonwealth’s Attorney and his assistant, along

with one of the primary investigating officers, Detective Sam

Newsome, interviewed Barber at the Augusta Correctional Center.

During        the   interview,            which    was    recorded       without    Barber’s

knowledge, those three officials sought to ascertain how Barber

would       testify     at    Wolfe’s       retrial.        They    suggested      to   Barber

that, because his testimony in the federal habeas proceedings

was inconsistent with his trial testimony, he had breached his

plea        agreement    with       the    Commonwealth.           The   prosecutors      then

advised Barber that he could face prosecution for perjury, plus

reinstatement           of    his    original          capital    murder    charge,      which

potentially carried the death penalty.

       Not long thereafter, the Commonwealth’s Attorney and his

assistant recused themselves from Wolfe’s retrial and requested


        5
       When it became clear that the Commonwealth intended to
proceed with a retrial of Wolfe, his habeas counsel successfully
moved to withdraw from their representation of him on the
original state charges.    They were replaced by the Regional
Capital Defender, who presently represents Wolfe in the state
criminal proceedings.



                                                  10
the appointment of Raymond Morrogh, the Commonwealth’s Attorney

for    Fairfax      County,       as   Special    Prosecutor.         Morrogh        was

appointed, and he represented the Commonwealth at the September

14,    2012    hearing,     where      Wolfe    was   denied    bond.         On    that

occasion, the defense lawyers asserted that only thirty-six days

remained for the Commonwealth to retry Wolfe.                      The Commonwealth

agreed to a retrial beginning on October 15, 2012.                     On the heels

of    the   bond     hearing,     Wolfe   requested     the    circuit    court       to

disqualify the Special Prosecutor.

       In   the     meantime,     on   October   1,   2012,    a    Prince    William

County      grand    jury   returned      new    indictments        against        Wolfe,

charging      him    with   six    additional     offenses     arising    from       the

events underlying Wolfe’s original charges.                    The retrial, then,

was to encompass the original charges plus the following:

       •      capital murder by order of a person engaged in a
              continuing criminal enterprise (“CCE”);

       •      use of a firearm in the commission of a murder;

       •      leading a CCE to distribute between $100,000 and
              $250,000 worth of marijuana in a twelve-month
              period;

       •      leading a CCE to distribute more than $250,000 of
              marijuana in a twelve-month period;

       •      first degree felony murder of Danny Petrole
              during commission of a robbery or attempted
              robbery; and

       •      use of a firearm in the commission of a robbery
              or attempted robbery.


                                          11
See J.A. 229-30.           On that same date, the Commonwealth moved in

state     court    for     a   continuance      of     the   October   15    retrial,

asserting that the 120-day period had not begun to run until our

mandate issued on September 7, 2012, and, thus, that the 120

days would not expire until January 5, 2013.                       Consistent with

that view, the Commonwealth requested that the retrial commence

the first week of January 2013.                      The continuance motion was

granted on October 3, 2012, but a retrial date was not set.

      On October 31, 2012, the circuit court conducted a hearing

on,     inter     alia,    Wolfe’s     motion     to    disqualify     the    Special

Prosecutor.        Barber was called to testify at that hearing, and

he    invoked      his     Fifth      Amendment        privilege    against     self-

incrimination.           The court accepted Barber’s assertion of the

privilege and did not seek to compel his testimony.                     Thereafter,

the court scheduled Wolfe’s retrial for January 2, 2013. 6

      Meanwhile,          beginning     in      November      2012,     proceedings

commenced in federal court that overlapped to some extent with

the pretrial litigation in the circuit court.                      Specifically, on

November 16, 2012, Wolfe filed a motion to enforce judgment,


      6
       On this record, it is not clear when and how Wolfe’s
lawyers learned of the Barber interview.    At least as early as
the October 31, 2012 hearing, however, they were aware of
Barber’s apparent intention to invoke the Fifth Amendment in
connection with Wolfe’s retrial, and they knew that such
invocation was related to Barber’s interview by the prosecutors.



                                          12
asserting      that     the     Commonwealth       had    neither        released   him

unconditionally nor provided him with a new trial within 120

days of the Relief Order.             The Commonwealth opposed the motion,

contending that Wolfe had already been released unconditionally,

and that, by conducting the bond hearing on September 14, 2012,

the Commonwealth had effectively commenced his retrial within

the 120-day period.            That period, the Commonwealth maintained,

had in any event been reset to 120 days by the November 22, 2011

Stay Order, and had not begun to elapse until September 7, 2012,

upon issuance of our mandate.

                                           2.

      On     December    4,     2012,      based    primarily       on     the   Barber

interview, Wolfe filed a motion to dismiss in the circuit court,

contending that, by threatening Barber with the death penalty,

the prosecutors had engaged in “gross prosecutorial misconduct”

sufficiently     severe       and   violative      of    due   process     to    fatally

undermine all the state criminal charges lodged against Wolfe. 7

See   J.A.    405-20.         Two   days   later,   Wolfe      brought     the   Barber


      7
       At the oral argument of this appeal, the Commonwealth’s
lawyer represented that the circuit court elected to defer
ruling on Wolfe’s motion to dismiss the indictments on the basis
of, inter alia, the Barber interview.          According to the
Commonwealth, the circuit court was of the view that the motion
was premature because Barber has not yet invoked the Fifth
Amendment and declined to testify in Wolfe’s retrial.        The
motion to dismiss thus remains pending in the circuit court.



                                           13
interview     to     the    district       court’s       attention,     by     way    of   his

written reply on the motion to enforce judgment.                                Wolfe also

offered to provide a transcript of the Barber interview “to the

Court at its request.”                Id. at 285.              The following day, the

district court directed Wolfe’s counsel to file “any additional

information or transcripts concerning the meeting between the

original prosecutors in this case and Mr. Barber on September

11, 2012.”        Id. at 290.        Acting on its own initiative, the court

also    ordered      the    Commonwealth       to    show       cause   why     the    Barber

interview         “does     not     constitute       extraordinary           circumstances

warranting the Court to order [Wolfe’s] immediate release and

bar    current     and     future    prosecutions         of    Wolfe   on     all    charges

related      to    the     death    of    Danny     Petrole      and    drug    conspiracy

crimes.”      Id. at 289-90.          The Commonwealth responded to the show

cause order on December 12, 2012, asserting that the district

court possessed no authority to prohibit any current or future

state prosecutions of Wolfe, and that, even were the situation

otherwise,        nothing     had    occurred       in    the    Barber      interview     to

justify any such action.

       The   district        court       conducted    an    evidentiary        hearing     on

December 13, 2012, concerning the show cause order.                                   On that

occasion, Barber’s lawyer advised that Barber would not testify

in    Wolfe’s      retrial,       instead    relying       on    his    Fifth    Amendment

privilege.         The court itself called Barber as a witness at the

                                             14
hearing, for the purpose of establishing that the September 11,

2012 interview had been recorded without his knowledge.                         Barber

responded to the court’s questions, confirming that he had been

unaware that the encounter was recorded.

                                       3.

      On December 26, 2012, the district court entered its Order

Enforcing    Judgment,    concluding       that    the    Commonwealth         had   not

satisfied    either     compliance    option       specified        in   the    Relief

Order, that is, Wolfe had not been released unconditionally, and

he had not been retried within 120 days of the Relief Order.                          In

discussing the appropriate remedy for the violation, the court

surmised that “had the content of [Wolfe’s] Motion to Enforce

Judgment been strictly limited to the Commonwealth’s violation

of the deadline set in this case, . . . [t]he Court would order

Wolfe’s     release,    but   he   would    be     subject     to    rearrest        and

reprosecution by the Commonwealth.”                 Order Enforcing Judgment

16.   Moving on to the matter of the Barber interview, the court

determined    that     “extraordinary      circumstances”       had      been    shown

warranting a bar to Wolfe’s retrial.                     More specifically, the

court found that the Barber interview “incurably frustrated the

entire purpose” of the federal habeas corpus proceedings, and

“permanently      crystalized”       the          constitutional          violations

infecting     Wolfe’s     trial,     causing        Barber     to        be    legally

unavailable to testify in a retrial.              Id. at 24.

                                       15
     Consequently,      the    district      court   ordered          Wolfe’s   release

within ten days and barred the Commonwealth from reprosecuting

Wolfe on the original charges “or any other charges stemming

from [the] death of Danny Petrole which requires the testimony

of Owen Barber in any form.”              Order Enforcing Judgment 25-26.

The Commonwealth immediately appealed, moving to stay the Order

Enforcing    Judgment.        On   January    3,    2013,       the   district   court

denied the Commonwealth’s request for a stay pending appeal.

Later that same day, however, on the Commonwealth’s motion, we

entered our own stay and expedited this appeal.                            We possess

jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). 8



                                       II.

     We potentially face two rather significant issues.                          First,

we must assess whether the Commonwealth complied with the Relief

Order.    If the Commonwealth failed to do so, we must then decide

whether   the     district    court   abused       its   discretion       in    barring

Wolfe’s retrial.

     On     the    first     issue,    we     review        a    district       court’s

interpretation of its own orders for abuse of discretion.                         Home

     8
       In connection with the entry of our January 3, 2013 stay
pending appeal, we directed the parties to file regular reports
on the status of the related state court proceedings. The most
recent status report indicates that a trial date remains
unscheduled.



                                       16
Port Rentals, Inc. v. Ruben, 957 F.2d 126, 131 (4th Cir. 1992).

In that regard, “we are obliged to accord substantial deference

to a district court’s interpretation of its own judgment.”                         ABT

Bldg. Prods. Corp. v. Nat’l Union Fire Ins. Co., 472 F.3d 99,

113    (4th      Cir.   2006).     Indeed,     “to   sustain    appellate    review,

district courts need only adopt a reasonable construction of the

terms contained in their orders.”               JTH Tax, Inc. v. H & R Block

E. Tax Serv., Inc., 359 F.3d 699, 706 (4th Cir. 2004).

       If the Commonwealth falls short on the compliance issue,

our review of the district court’s bar to Wolfe’s retrial is

also for abuse of discretion.                D’Ambrosio v. Bagley, 656 F.3d

379,       390   (6th   Cir.     2011).    Where     applicable,        Congress   has

directed the courts to dispose of habeas corpus petitions “as

law    and       justice   require.”      28    U.S.C.      § 2243. 9     Congress’s

directive constitutes, in a proper case, “an authorization to

adjust the scope of the writ in accordance with equitable and

prudential        considerations.”        Danforth     v.    Minnesota,     552    U.S.


       9
       More fully, a court considering an application for habeas
corpus relief “shall summarily hear and determine the facts, and
dispose of the matter as law and justice require.”     28 U.S.C.
§ 2243.     Notably, the § 2243 standard only applies when
deference to a state court’s adjudication of the merits of a
habeas corpus claim is not mandated by the Antiterrorism and
Effective Death Penalty Act.    See Johnson v. Thurmer, 624 F.3d
786, 791 (7th Cir. 2010).        Because this appeal does not
implicate the merits of a habeas claim, there is no state court
adjudication to which we would defer.



                                          17
264, 278 (2008).       Because “habeas corpus is, at its core, an

equitable remedy,” a district court is vested with substantial

discretion to appropriately redress any violation of an order

granting habeas corpus relief.              Schlup v. Delo, 513 U.S. 298,

319 (1995).



                                   III.

                                       A.

     In view of the foregoing recitation, we turn first to the

Commonwealth’s      assertion   that    it    complied      with   the   district

court’s Relief Order, which required that Wolfe be retried or

released within 120 days.         Those contentions — that Wolfe was

both released and retried — were considered and rejected in the

Order Enforcing Judgment.         The court’s rulings were predicated

primarily on its explanation of its intentions with respect to

the Relief Order and the Stay Order.                 As explained below, the

district court did not abuse its discretion in ruling that the

Commonwealth neglected to satisfy either compliance option.

                                       1.

     At the threshold, the Commonwealth’s position — that Wolfe

has been both released and retried — fails to pass muster.                     By

specifying    the    compliance   options       in    the    disjunctive,     the

district court presented the Commonwealth with a choice:                      it

could either provide Wolfe with a new trial or unconditionally

                                       18
release him from custody.                 The Commonwealth asserts on appeal,

rather counterintuitively, that it has satisfied both options.

       First,      the    Commonwealth        maintains      that,    at    least   since

Wolfe’s September 14, 2012 bond hearing, his status is that of a

pretrial defendant who has been denied bond.                          The Commonwealth

thus    posits         that   Wolfe     was     unconditionally       released.       The

Commonwealth’s theory fails to take into account the purpose of

a new-trial contingency in the habeas setting, which is to delay

actual release of the successful petitioner, thus permitting the

state    authorities          to    remedy      the   constitutional        defects   and

retain the petitioner in confinement.                    See Hilton v. Braunskill,

481 U.S. 770, 775 (1987) (“[T]his Court has repeatedly stated

that federal courts may delay the release of a successful habeas

petitioner        in    order      to   provide    the   State   an    opportunity    to

correct the constitutional violation found by the court.”).

       By   its    Relief       Order,    the     district   court    did    not direct

Wolfe’s immediate release.                It instead accorded the Commonwealth

the options of retrying Wolfe within 120 days or unconditionally

releasing him.            An evaluation of whether the Commonwealth has

complied with either directive requires an interpretation of the

court’s prior orders, the best source for which is the court

itself.     As it explained,

       [i]n presenting the option of releasing the Petitioner
       “unconditionally” from custody, the Court used the
       word “unconditionally” in its traditional and widely

                                              19
     underst[ood] context:    “Not limited by a condition;
     not depending on an uncertain event or contingency;
     absolute.”   Black’s Law Dictionary (9th ed. 2009).
     Under this meaning of the word “unconditional,” it is
     self-evident   that  releasing   Petitioner from  the
     custody of the Virginia Department of Corrections to
     Prince William County for the purposes of retrial did
     not constitute releasing Petitioner “unconditionally
     from custody.”

Order Enforcing Judgment 8.

     The foregoing explanation is not an unreasonable one, and

we are unable to disturb it.               A commonsense reading of the

Relief    Order   is   that   it   obliged   the   Commonwealth   to   either

release or retry Wolfe within 120 days.             Because Wolfe has not

been unconditionally released, we turn to the second compliance

option and gauge whether Wolfe has been retried. 10

                                      2.



     10
       The Commonwealth also makes a related, though necessarily
distinct, assertion that the vacatur of Wolfe’s convictions
deprived the district court of jurisdiction.         Upon reviewing
this issue de novo, see United States v. Poole, 531 F.3d 263,
270 (4th Cir. 2008), we conclude that the court possessed
jurisdiction to enforce its judgment.        Because Wolfe was in
custody when the original petition was filed, the jurisdictional
contention is really a mootness argument that is foreclosed by
Carafas v. LaVallee, 391 U.S. 234 (1968) (challenge to
conviction    not    rendered    moot    by   habeas    petitioner’s
unconditional    release,    because    petitioner   suffers    from
“collateral     consequences,”     including    disenfranchisement,
ineligibility for jury duty, and disqualification from elected
office). See also Maleng v. Cook, 490 U.S. 488 (1989) (Carafas
rested “on the fact that the petitioner had been in physical
custody under the challenged conviction at the time the petition
was filed”).



                                      20
        The    Commonwealth’s           other       option       for    compliance        with    the

Relief Order was to provide Wolfe with a new trial “within one-

hundred       and     twenty      (120)    days       of    the    date      of    [the   Order].”

Relief    Order        2.        The   Commonwealth          insists         that    it   was     not

obliged to actually complete a retrial within 120 days.                                          That

is, it was not necessary for a verdict to be returned in the

state    court,        or    even      that     a    jury    be     selected,        so   long    as

proceedings leading to a retrial had commenced in the circuit

court.         In this regard, the Commonwealth emphasizes that the

circuit       court    had       conducted      a    bond    hearing         on    September      14,

2012, and that other pretrial proceedings (such as motions to

dismiss       the     indictments         and       disqualify         the    prosecutor)        were

ongoing until the Order Enforcing Judgment was entered.                                           The

Commonwealth          thus       maintains      that       its    obligation         to   “provide

[Wolfe]       with     a    new     trial”      was       thereby       satisfied.         In     the

alternative, the Commonwealth suggests that the 120-day retrial

period did not begin to run until the issuance of our mandate in

Wolfe II, on September 7, 2012.

        Each    of     the       foregoing      contentions            were       considered      and

rejected         by        the      district             court,        predicated         on     its

interpretations of the orders on appeal.                            With regard to whether

the 120-day retrial period ran from the issuance of our mandate,

the court explained that



                                                    21
     the stay [entered on November 22, 2011] pending the
     Commonwealth’s appeal of the Court’s Amended Judgment
     paused or halted the 120-day deadline imposed by the
     Court to provide Wolfe a new trial.    When that stay
     was lifted [on September 7, 2012], the deadline clock
     resumed where it left off when the stay was granted
     and there were 36 days remaining.        On Saturday,
     October   13,  2012,  the  120  days  given   to  the
     Commonwealth to provide Wolfe with a new trial
     expired. Because the deadline fell on a weekend, the
     deadline for retrial moved to Monday, October 15,
     2012.

Order     Enforcing   Judgment   11. 11    In    response    to   the    second

contention,    that   the   obligation    to    provide   Wolfe   with   a   new

trial was satisfied by the commencement and conduct of pretrial

proceedings in the circuit court, the Order Enforcing Judgment

specified that the retrial had to be completed — and not merely


     11
       It is apparent that the Commonwealth was aware, as early
as September 13, 2011, that the district court could deem the
120-day retrial period to have run concurrently with the appeal
in Wolfe II. In a memorandum filed that day in support of its
motion for a stay pending appeal, the Commonwealth assumed that
the 120-day period had already begun, opining that

     [i]n the absence of a stay, the Order would take
     effect and the Commonwealth would be either burdened
     with a new capital trial or required to set Wolfe free
     without a trial.    In either instance, the Director
     would be prevented from exercising his right of
     appeal.

J.A. 113.   The subsequent Stay Order seems to have been based
upon the same assumption, see Wolfe v. Clarke, 819 F. Supp. 2d
at 583 (noting that, without a stay, the 120-day period would
expire before the Commonwealth’s reply brief was due to this
Court in Wolfe II). The Commonwealth was therefore cognizant of
the 120-day issue during the pendency of the Wolfe II appeal,
yet failed to bring it to our attention.



                                     22
commenced — within the prescribed period.                       More precisely, the

court explained that

       it was certainly the objective of the Court in issuing
       [the Relief Order] that [Wolfe] would be either
       promptly retried or relieved of the strictures imposed
       by his constitutionally flawed conviction and it was
       certainly the intention of the Court that in providing
       [Wolfe] a new trial within 120 days, said trial
       actually occur within that period of time.

Id. at 14 (quotation marks and alterations omitted).

       The    Commonwealth       complains        that,   evaluated    together,     the

district court’s interpretation of its prior directives left the

prosecution, after the Wolfe II mandate, with only thirty-six

days    to    complete     a    capital     murder    trial.      According    to    the

Commonwealth, the Order Enforcing Judgment was a “prejudicial,

revisionist rewording of [the] judgment.”                      Br. of Appellant 24.

That characterization fails to recognize that, in the referenced

order, the district court explained the meaning of its earlier

orders as intended upon entry, without regard for post-judgment

events.       It was the Commonwealth that sought (and now seeks from

this Court) a recasting of the district court’s rulings on the

basis    of    subsequent        procedural       developments.        See   Capps   v.

Sullivan,      13   F.3d       350,   353   (10th    Cir.   1993)     (remanding     for

district court “to give effect to its original understanding of

the order granting [habeas relief]” (emphasis added)).

       Notwithstanding the foregoing, the Commonwealth may well be

correct that completing a retrial of a complex death penalty

                                             23
case    within       thirty-six       days    was     a     practical         impossibility.

Indeed, that fact alone may have been sufficient to justify an

extension      of    the     retrial      period.         The    Commonwealth        did    not,

however, return to court seeking either a clarification or an

extension.

       We also recognize that the district court’s explanation of

its 120-day period was a highly restrictive one, and that, in

the absence of a thorough explanation, the court’s construction

of that directive could be viewed as erroneous.                                  By way of

example, the court counted against the Commonwealth an aggregate

of eighty-four days during the pendency of the Wolfe II appeal.

That    is,    the       period    from     the    August       30,   2011     Relief      Order

through the November 22, 2011 Stay Order was counted against the

120-day       retrial       period,       notwithstanding             the     Commonwealth’s

timely filing, on September 2, 2011, of its second notice of

appeal.       Furthermore, the district court did not consider that

the circuit court, subsequent to the Wolfe II mandate, spent a

substantial         period    of     time    addressing         motions       interposed      by

Wolfe.     Even the federal Speedy Trial Act, which the district

court administers on a regular basis, excludes such periods of

time.     See       18    U.S.C.    § 3161(h)       (excluding         from    speedy      trial

calculations,        inter        alia,   “delay     resulting        from     any   pretrial

motion”).



                                              24
       Additionally, before concluding that the Commonwealth had

failed      to   comply     with    the     Relief       Order,   the    district      court

acknowledged that there is a “lack of clear controlling case law

on a number of issues.”               Order Enforcing Judgment 7.                   In these

circumstances, we are obliged to provide a modicum of clarity:

When a district court awards habeas relief, it is preferable

that its order include language ensuring that the respondent

will    suffer      no    prejudice    by     exercising      its      right   of    appeal.

See, e.g., Tice v. Johnson, 3:08-cv-00069 (E.D. Va. Nov. 19,

2009)       (“The   writ    of     habeas     corpus       will   be    GRANTED      if   the

Commonwealth         of     Virginia        does     not     commence      the       retrial

. . . within 120 days of the date of entry of this judgment

should appeal not be taken, or within 120 days after the final

resolution of any appeal (including a petition for a writ of

certiorari) if an appeal is taken.”).

       At    this    stage    of    these      proceedings,         however,     with     the

Commonwealth         having        foregone        any     opportunity         to     obtain

clarification        from    this     Court    or    the    district      court,     it   can

hardly claim surprise. 12              Furthermore, the district court has

       12
        In Williams v. Netherland, a decision relied on by the
Commonwealth, an issue similar to that presented here was
avoided when the Commonwealth’s Attorney in that case did what
should have been done here: He returned to the habeas court, in
advance of the court-ordered deadline, and requested an
extension of time.    See No. 3:96-cv-00529 (E.D. Va. Nov. 14,
2002).


                                              25
explained its intentions with respect to the Relief Order and

the    Stay        Order,        and        we        are   inclined        to      credit        those

explanations.         Because the Commonwealth failed to either retry

or release Wolfe within 120 days, we turn to the remedy for that

transgression.

                                                      B.

       The Commonwealth contends that the district court abused

its discretion in barring Wolfe’s retrial.                                Though we reiterate

that a federal habeas court possesses substantial discretion in

fashioning an appropriate remedy, preventing the retrial of a

state criminal case is the strongest of medicine.                                       And it is a

measure that should be utilized with the utmost restraint, only

in    the   most    extraordinary                of    circumstances.             See    Gilliam    v.

Foster, 75 F.3d 881, 905 (4th Cir. 1996) (en banc) (“Equitable

federal       court     interference                   with       ongoing        state     criminal

proceedings        should        be    undertaken           in     only     the    most    limited,

narrow,      and    circumscribed                situations.”).             Such        limited    and

narrow      circumstances             are    simply         not    present        here.      We     are

therefore constrained to conclude, as explained below, that the

district court abused its discretion in barring Wolfe’s retrial.

                                                      1.

       In    support        of    its        chosen         remedy,       the     district    court

correctly recognized that the award of an unconditional writ

does    not,   in     and        of    itself,          preclude      the       authorities       from

                                                      26
rearresting and retrying a successful habeas petitioner.                                   As the

court acknowledged,

        [i]t is generally recognized that a violation of a
        court’s directive to retry a habeas petitioner within
        a certain amount of time would permit the court to
        order the prisoner’s release, however, “the granting
        of an unconditional writ in this circumstance will
        not, itself, generally preclude the government from
        rearresting and retrying the prisoner.”

Order        Enforcing      Judgment    15     (quoting            Federal    Habeas       Manual

§ 13:10        (May     2010)).        The     court,          however,       identified       an

exception to the general rule, namely, that “in extraordinary

circumstances . . . a habeas court may forbid reprosecution.”

Id. (citing Satterlee v. Wolfenbarger, 453 F.3d 362, 370 (6th

Cir. 2006)).

        In    detecting      the   presence        of    extraordinary            circumstances

here,    the     district      court    explained            that    the     conduct      of   the

prosecutors — in particular, their conduct during the September

11, 2012 Barber interview — “sp[oke] to a continuing pattern of

violating       [Wolfe’s]      right    to     use      Brady       and    Giglio     evidence,

which the court attempted to remedy through its habeas decree.”

Order    Enforcing          Judgment   19.         At        the    core     of    the    court’s

analysis       was    its    belief    that    the       prosecutors          had    “incurably

frustrated        the    entire       purpose”          of    habeas       corpus        and   had

“permanently          crystalized”       the       constitutional             violations        by

“scar[ing] Barber into invoking his Fifth Amendment right to

avoid self-incrimination.”              Id. at 24.

                                              27
        The district court’s conclusion concerning the availability

of Barber’s testimony at a retrial, however, is speculative.                            As

an initial matter, Barber could decide on his own to testify,

and — based on his track record — such evidence might provide

support    for    either     side. 13    And,        under    a   proper       grant    of

immunity,     Barber’s      testimony     may    well        be   compelled.           See

Kastigar v. United States, 406 U.S. 441 (1972) (holding that

Fifth     Amendment       privilege     may     be    supplanted         and    witness

compelled        to      testify   by     proper        grant       of     immunity).

Alternatively, the state trial court, by way of example, could

determine that a waiver of Barber’s Fifth Amendment privilege

has already been made; it could authorize the evidentiary use of

Barber’s prior statements in one form or another; or it might

craft any number of other remedies.                    Put simply, the task of

conducting Wolfe’s retrial is for the state trial court, and it

is not for us to express a view on how that court should manage

its affairs.          We are confident that the retrial will be properly

handled, and, if convictions result, that the appellate courts

will perform their duties.


    13
        The district court apparently believed it “unlikely that
the Commonwealth would grant immunity to Barber so that he could
provide testimony to exonerate [Wolfe].”        Order Enforcing
Judgment 25 n.6. Nevertheless, the Commonwealth asserts that it
has offered Barber immunity for his truthful testimony at trial.
Br. of Appellant 35.



                                         28
      The   district        court    also     speculated       that   the      Barber

interview served to deprive Wolfe’s defense of a credible trial

witness, and thereby abridged Wolfe’s due process rights.                        See

Order Enforcing Judgment 24 (citing United States v. Saunders,

943 F.2d 388, 392 (4th Cir. 1991) (“Improper intimidation of a

witness may violate a defendant’s due process right to present

his   defense   witnesses      freely    if     the    intimidation    amounts    to

substantial government interference with a defense witness’ free

and   unhampered     choice    to    testify.”    (internal      quotation     marks

omitted))).     Like other constitutional issues that may arise in

a post-habeas retrial, however, contentions relating to Barber’s

alleged intimidation by the prosecutors are yet to be exhausted

in the state court system.            See Pitchess v. Davis, 421 U.S. 482

(1975)   (alleged     post-habeas       Brady    violation     subject   to    state

court    exhaustion).         Indeed,    Wolfe        has   already   raised    that

precise issue before the circuit court in his yet-unresolved

post-Wolfe II motion to dismiss the indictments.                       By barring

Wolfe’s retrial, the district court has deprived the circuit

court of the opportunity to address that motion.                      Notably, in

the event Wolfe is acquitted, any such issues would be moot.

And, should Wolfe be again convicted, the state court system

might    vindicate    him     on    appeal.      Failing      that,   Wolfe’s    due

process claim with respect to the Barber interview could, at the



                                         29
proper time, constitute a separate ground for federal habeas

corpus relief.

     At      the     end         of    the     day,     any       scenario       presenting

circumstances        sufficiently            extraordinary        to    warrant       federal

interference with a State’s reprosecution of a successful § 2254

petitioner       will      be    extremely      rare,       and    will     ordinarily      be

limited to situations where a recognized constitutional error

cannot be remedied by a new trial.                       See, e.g., Blackledge v.

Perry,     417     U.S.         21,   31     (1974)     (holding        that     vindictive

prosecution        could    contravene        due     process     and     justify     bar   to

retrial); Barker v. Wingo, 407 U.S. 514, 522 (1972) (concluding

that dismissal may be appropriate remedy for Sixth Amendment

speedy trial violation); Gilliam, 75 F.3d at 881 (barring state

retrial on double jeopardy grounds). 14

     Put succinctly, the constitutional claims for which Wolfe

was awarded habeas corpus relief are readily capable of being

remedied in a new trial.               Our resolution of the Wolfe II appeal

never     contemplated          the   possibility      of    a    retrial      bar,   and   we

expected a trial — if that option were pursued — to occur

     14
        There are limited situations where a state criminal
retrial could properly be barred by a habeas court on the basis
of a constitutional deprivation. See generally 2 Randy Hertz &
James S. Liebman, Federal Habeas Corpus Practice and Procedure
§ 33.2 (identifying decisions involving, inter alia, double
jeopardy, insufficient evidence, ex post facto violation, and
unconstitutional statute).



                                               30
within     a   reasonable      time.         The   resolution     of       criminal

proceedings     on    their   merits,    before    the   public      eye,    is   of

critical importance to our system of justice.                 And it has long

been     settled     that   “[a]n   indictment     returned     by     a    legally

constituted and unbiased grand jury, . . . if valid on its face,

is enough to call for trial of the charge[s] on the[ir] merits.”

Costello v. United States, 350 U.S. 359, 363 (1956) (footnote

omitted).      We emphasize, however, that Wolfe, like any accused —

as well as the Commonwealth — is entitled to a fair trial.                     That

very proposition is what the Wolfe II decision is all about.                       As

has been emphasized, “[a] murder trial — indeed any criminal

proceeding — is not a sporting event.”               Giles v. Maryland, 386

U.S. 66, 102 (1967) (Fortas, J., concurring).

       The district court, in its Order Enforcing Judgment, relied

on decisions where a bar to retrial was approved even though the

constitutional errors could have been thereby remedied.                           See

Satterlee, 453 F.3d at 370 (barring retrial deemed appropriate

“when the state inexcusably, repeatedly, or otherwise abusively

fails to act within the prescribed time period or if the state’s

delay is likely to prejudice the petitioner’s ability to mount a

defense at trial” (internal quotation marks omitted)); Capps, 13

F.3d at 350 (barring retrial appropriate where state neither

retried petitioner nor sought stay of habeas writ).                  Although we

do not exclude the possibility that a federal habeas court — in

                                        31
an extremely rare and unique circumstance — might proscribe a

state     court   retrial      even   though    the    constitutional     violation

could     be   thereby    remedied,     we     are    unwilling    to   embrace   the

principles        of   Capps     or   Satterlee.           In     the   absence    of

extraordinary          circumstances,        the      proper      disposition      is

generally, as the district court recognized, the release of a

successful habeas petitioner, subject to rearrest and retrial. 15



                                         IV.

     Here, of course, the district court was correct to order

Wolfe’s “release” on the original charges, though such action

did not actually free him from custody.                   As we have explained,



     15
        The Commonwealth alternatively contends that the retrial
bar was foreclosed by Younger v. Harris, 401 U.S. 37 (1971), and
the Anti-Injunction Act, 28 U.S.C. § 2283. Pursuant to Younger,
a federal court “may intervene in state criminal proceedings,
either by way of declaratory relief or by injunction, only when
there has been a ‘showing of bad faith, harassment, or any other
unusual circumstance that would call for equitable relief.’”
Gilliam, 75 F.3d at 903 (quoting Younger, 401 U.S. at 54). The
Anti-Injunction Act provides, in pertinent part, that

     [a] court of the United States may not grant an
     injunction to stay proceedings in a State court except
     as expressly authorized by Act of Congress, or where
     necessary in aid of its jurisdiction, or to protect or
     effectuate its judgments.

28 U.S.C. §        2283.    Because the district court abused its
discretion in       barring Wolfe from being retried in state court,
we need not        reach or address the Commonwealth’s contentions
regarding the      principles of Younger and the Anti-Injunction Act.



                                         32
Wolfe is facing multiple indictments in Prince William County,

and he has been rearrested and denied bail.                      All that remains to

effect      Wolfe’s    release       in    compliance      with    the   alternatives

contemplated by our Wolfe II decision (and by the district court

in    its   grant     of   relief)    is    for   the     Commonwealth     to   expunge

Wolfe’s     2002    criminal     convictions        and    to     take   any    and   all

additional steps necessary to nullify any material adverse legal

consequences attendant to those convictions.                        Subsequent to or

contemporaneously therewith, the Commonwealth may retry Wolfe on

the    original       charges    together         with     the     new   charges,     in

accordance with such plan and schedule that the state circuit

court may devise.

       Pursuant to the foregoing, we vacate the district court’s

Order Enforcing Judgment and remand with instructions that the

court enter a substitute order directing that Wolfe be released

from the custody imposed as the result of his 2002 convictions,

and, further, that those convictions be expunged and their legal

effects nullified consistently with Wolfe II and this opinion.

The order on remand shall be without prejudice to a retrial of

the original charges against Wolfe, and it shall not preclude

the conduct of such other and further proceedings in the state

or federal courts as may be appropriate.

                                                                 VACATED AND REMANDED



                                            33
THACKER, Circuit Judge, concurring in part and dissenting in
part:

      I     agree        with     the     majority’s         conclusion        that     the

Commonwealth failed to satisfy the terms of the district court’s

conditional writ in this case, as set forth in Part III.A. of

the   majority       opinion.       I     cannot,        however,     agree    with     its

conclusion    that       the     district     court       abused    its    discretion      in

barring re-prosecution of Justin Wolfe -- an appropriate remedy

in my view, in light of the Commonwealth’s continued                           misconduct

and resulting threat to Justin Wolfe’s constitutional right to a

fair trial.

      The    majority       does    not      “exclude      the     possibility      that   a

federal     habeas       court     --   in     an       extremely    rare     and   unique

circumstance        --    might    proscribe        a    state     court    retrial   even

though the constitutional violation could be thereby remedied,”

but it is “unwilling to embrace” that principle in this case.

Ante at 31-32 (emphasis added).                I am willing to do so; in fact,

for   the   reasons       that     follow,     the      extremely     rare    and   unique

circumstances of this case command a bar on re-prosecution.                             The

Commonwealth’s misconduct has continued far too long, and the

cumulative misconduct permeating this case has tainted it in

such a way that it is doubtful Wolfe will receive a fair and

just trial.     Enough is enough.




                                              34
      Accordingly,    and     for    the    reasons   set    forth          herein,   I

dissent as to Part III.B.



                                       I.

      The Supreme Court of the United States has stated, simply

and   repeatedly,    “[t]he    role    of   a   prosecutor       is    to    see    that

justice is done.”       Connick v. Thompson, 131 S. Ct. 1350, 1365

(2011).     “It is as much [a prosecutor’s] duty to refrain from

improper methods calculated to produce a wrongful conviction as

it is to use every legitimate means to bring about a just one.”

Berger v. United States, 295 U.S. 78, 88 (1935).

      Mindful   of    this     court’s      admonishment,        “federal          court

equitable   interference      with    state     criminal    proceedings         should

not be undertaken except in the most narrow and extraordinary of

circumstances,” Gilliam v. Foster, 75 F.3d 881, 903 (4th Cir.

1996) (en banc) (citing Younger v. Harris, 401 U.S. 37 (1971)),

I nonetheless cannot ignore the ways in which the Commonwealth’s

misconduct has hindered rather than fostered justice throughout

the   course    of    this     case.          Although     the        “extraordinary

circumstances” exception is narrow, this case -- wherein the

Commonwealth’s conduct has been appalling -- fits squarely into

that narrow space.




                                       35
                                           A.

                                           1.

     I begin with the elementary propositions that habeas corpus

is, “at its core, an equitable remedy,” Schlup v. Delo, 513 U.S.

298, 319 (1995), and a district court has broad discretion to

“dispose of habeas corpus matters ‘as law and justice require,’”

Hilton    v.    Braunskill,   481     U.S.       770,    775    (1987)       (quoting   28

U.S.C. § 2243).          See also Irvin v. Dowd, 366 U.S. 717, 728-29

(1961).        For these reasons, our review of a district court’s

decision to bar re-prosecution is circumscribed.                        See D’Ambrosio

v. Bagley, 656 F.3d 379, 390 (6th Cir. 2011) (stating that a

district       court’s    decision        to    bar     re-prosecution         would    be

reviewed for abuse of discretion).

     Under an abuse of discretion review, we should not disrupt

the court’s remedy unless we believe it “act[ed] arbitrarily or

irrationally,        fail[ed]        to        consider        recognized        factors

constraining its exercise of discretion, relie[d] on erroneous

factual    or    legal   premises,    or       commit[ted]       an    error    of   law.”

United    States    v.   Wilson,     624       F.3d   640,     649    (4th    Cir.   2010)

(internal quotation marks omitted).

                                           2.

     As the majority notes, see ante at 30, the extraordinary

circumstances exception has traditionally surfaced in cases in

which a constitutional violation cannot be remedied by a new

                                           36
trial.     See, e.g., Gilliam, 75 F.3d at 903 (re-prosecution would

contravene the Double Jeopardy Clause); Solem v. Bartlett, 465

U.S. 463, 481 (1984) (state court lacked jurisdiction over the

prosecution); Smith v. Goguen, 415 U.S. 566 (1974) (petitioner

was    convicted       under       an    unconstitutional      statute);      Strunk    v.

United States, 412 U.S. 434, 439-40 (1973) (re-prosecution would

violate petitioner’s right to a speedy trial).

       But some courts have also found the remedy appropriate in

cases in which “other exceptional circumstances exist such that

the holding of a new trial would be unjust.”                      Capps v. Sullivan,

13 F.3d 350, 352-53 (10th Cir. 1993).                     These courts have relied

on circumstances that demand equitable relief, even if those

circumstances         present      constitutional        violations    that    could    be

remedied       upon     retrial.             For    example,      in   Satterlee        v.

Wolfenbarger, the Sixth Circuit held that a district court “may

forbid reprosecution” where “the state inexcusably, repeatedly,

or otherwise abusively fails to act within the prescribed time

period,”       or    “the    state’s       delay    is   likely   to   prejudice       the

petitioner’s ability to mount a defense at trial.”                             453 F.3d

362,     370    (6th        Cir.    2006)     (internal      quotation     marks       and

alterations omitted).                   See also Wiggins v. Estelle, 681 F.2d

266,    268    n.l    (5th     Cir.       1982)    (suggesting    petitioner     should

“forever be set free” if pre-indictment delay denied petitioner

due process), rev’d on other grounds, McKaskle v. Wiggins, 465

                                              37
U.S. 168 (1984); United States ex rel. Schuster v. Vincent, 524

F.2d    153,   154,    158,    162    (2d    Cir.      1975)   (ordering   a   habeas

petitioner’s immediate release and absolute discharge where he

had been confined in a state hospital for over 30 years without

the opportunity for a commitment hearing and had been in prison

for a total of 44 years); Garcia v. Portuondo, 459 F. Supp. 2d

267, 294 (S.D.N.Y. 2006) (A court may bar retrial, even if the

constitutional violation is capable of correction, “where the

petitioner has served an extended and potentially unjustifiable

period of incarceration before the writ was granted.” (internal

quotation marks and alterations omitted)); Morales v. Portuondo,

165 F. Supp. 2d 601, 609 (S.D.N.Y. 2001) (barring retrial where

“the    evidence      strongly    suggests        that    [the   petitioners]    are

innocent,” their “ability to defend against the charges in any

new    trial   has    been    hampered”      by   unavailability     of    witnesses

because of the state’s delay, and they have “served extended and

potentially     unjustified          periods      of    incarceration”     (internal

quotation marks omitted)).

       Whether circumstances are “extraordinary” enough to bar re-

prosecution is a fact-based determination, left to the sound

discretion of the district court.                      See Foster v. Lockhart, 9

F.3d 722, 727 (8th Cir. 1993) (“A district court has authority

to preclude a state from retrying a successful habeas petitioner

when the court deems that remedy appropriate.”).                     In this case,

                                            38
I do not agree that the district court abused that discretion:

I am not as confident as the majority that the Commonwealth’s

Brady and Giglio violations and subsequent misconduct can be

remedied in a new trial.        But even assuming they can be, the

circumstances    at   hand   are   extraordinary      enough      to    demand

equitable relief in the form of a bar on re-prosecution.

                                   B.

     The   district   court’s   remedy   was   set   forth   in   the    Order

Enforcing Judgment as follows:

          The Commonwealth, having violated the Court’s
     conditional writ of habeas corpus by failing to
     “within one-hundred and twenty (120) days of the date
     of this Order, provide Petitioner with a new trial, or
     release him unconditionally from custody,” it is
     ORDERED that the Commonwealth of Virginia release
     Petitioner unconditionally, free of all criminal
     proceedings on the charge of murder for hire of Danny
     Petrole and the drug charges that were previously
     tried in state court by the Commonwealth, within ten
     (10) days of the entry of this order.

          It is FURTHER ORDERED that the Commonwealth of
     Virginia is hereby BARRED from reprosecuting the
     Petitioner on the charges originally tried herein in
     state court or any other charges stemming from death
     of Danny Petrole which requires the testimony of Owen
     Barber in any form.

J.A. 534-35.    The district court explained,

          As a starting point, the Court fully concedes
     that had the content of the Petitioner’s Motion to
     Enforce   Judgment   been    strictly limited  to  the
     Commonwealth’s violation of the deadline set in this
     case, the question of the appropriate remedy would be
     an easy one.    The Court would order Wolfe’s release,
     but he would be subject to rearrest and reprosecution
     by the Commonwealth.      However, the reality of this

                                   39
     case is very different than that of the ordinary case
     which constrains the Court to extraordinary remedies.

Id. at 525.          The court proceeded to discuss two aspects of

Wolfe’s       case   that    warranted     a    bar    to    re-prosecution:       the

Commonwealth’s        continuing         pattern      of     misconduct,    including

flagrant and ubiquitous violations of Brady and Giglio; and the

Commonwealth’s jail visit to Owen Barber on September 11, 2012.

                                           1.

     First,      I   am     compelled     to    set   forth     a   sampling   (though

certainly      not   all)     of   the    previous         instances   of   misconduct

perpetrated by the Commonwealth:

          •    The Commonwealth withheld the report composed by
               Detective Sam Newsome (the “Newsome Report”),
               which specifically stated, “I told [Barber] that
               he was potentially facing a capitol [sic] murder
               charge in this case and that he needed to help
               himself. . . . I told him I could not make any
               promises to him, but that the Commonwealth might
               entertain the idea of not charging him with
               Capitol [sic] Murder[.]”    Wolfe v. Clarke, 691
               F.3d 410, 417 (4th Cir. 2012) (“Wolfe II”). The
               Newsome Report also showed that the first mention
               that Wolfe had anything to do with Petrole’s
               murder was raised by Detective Newsome, not by
               Barber himself;

          •    The Commonwealth withheld evidence that Barber
               possessed   potential    motives for  murdering
               Petrole, see Wolfe v. Clarke, 819 F. Supp. 2d
               538, 565 (E.D. Va. 2011);

          •    The Commonwealth withheld evidence that Barber’s
               roommate, Jason Coleman, informed the prosecution
               that Barber had confessed to acting alone, see
               id.;



                                           40
•   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, id. at 548-
    49, 552;

•   The Commonwealth withheld impeachment      evidence,
    including information relating to a        deal the
    Commonwealth made with its witness J.R.    Martin in
    exchange for his cooperation, see id. at   549;

•   The Commonwealth withheld a recorded statement
    made by its witness Chad Hough that conflicted
    with his trial testimony, see id. at 549;

•   The Commonwealth withheld evidence which could
    have allowed Wolfe 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 Wolfe’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 shortly after the
    Petrole murder, see id. at 566, 558-59;

•   When questioned why his office does not have an
    “open-file policy,” a Commonwealth prosecutor
    offered “the flabbergasting explanation that he
    has ‘found in the past when you have information
    that is given to certain counsel and certain
    defendants, they are able to fabricate a defense
    around what is provided.’” Wolfe II, 691 F.3d at
    423.    Thus, in Wolfe II, we found that the
    suppression of the Newsome Report “as well as
    other apparent Brady materials, was entirely
    intentional,” id.;

•   The district court found, “[t]he prosecutors
    choreographed and coordinated witness testimony
    through a series of joint meetings with Owen
    Barber and J.R. Martin, Owen Barber and Jennifer

                         41
              Pascquierllo and Jason Coleman and Chad Hough.”
              Wolfe, 819 F. Supp. 2d at 547.      Further, the
              prosecutors did not provide any reference to or
              information regarding the joint meetings with
              witnesses in their written Brady disclosure, see
              id.;

          •   “Sergeant   Pass,  lead   officer   of  the    drug
              investigation relating to Wolfe and Petrole,
              submitted reports outlining the investigation of
              Petrole and others’ drug activities to both the
              prosecutors and homicide investigators.      Conway
              did not review all of the reports dealing with
              the drug investigation and he did not provide
              them to Petitioner,” id. (citation omitted);

          •   The   Commonwealth   used   Owen  Barber’s   trial
              testimony “despite being on notice that it
              contained   falsities,”   id.  at  571   (emphasis
              supplied);

          •   In attempting to circumvent the district court’s
              mandate that the retrial occur within 120 days or
              Wolfe    be    released    unconditionally,   the
              Commonwealth assured the state court that the
              “federal court expressly allows the Commonwealth
              120 days from September 7, 2012, in which to
              institute retrial proceedings,” J.A. 260; see
              also ante at 12.

      The gravity of this list is startling, but the pattern of

misconduct      does    not    end   there:      it   reached    its   pinnacle   on

September 11, 2012, when Detective Newsome and Prince William

County prosecutors Richard Conway and Paul Ebert (the “Original

Prosecuting Team”) visited Barber in jail (the “September 11

jail visit”) and attempted to coerce Barber to repeat his 2002

trial     testimony     upon    retrial   --    the   same   testimony    that    the

district court found “contained falsities.”                  Wolfe, 819 F. Supp.

2d   at   571   (“Not    only    was   the     Commonwealth     in   possession   of

                                          42
information    that      would    have        revealed    falsities        in    Barber’s

testimony     at   the     time    of        the    trial,    it    also    knew     that

suppressing that information would result in denying Petitioner

an opportunity to craft a defense based on the information.”).

       This time, however, Barber had enough.                      The district court

explained,

       As Mr. Barber’s counsel’s testimony indicated during
       this Court’s December 13, 2012 hearing, Mr. Barber,
       under advice of counsel and in consideration of the
       Original   Prosecuting   Team’s  [Sept.   11,   2012]
       conversation, has now invoked his Fifth Amendment
       privilege, which the Prince William County Circuit
       Judge authorized.   As indicated by Barber’s counsel,
       Barber intends to continue to invoke his Fifth
       Amendment privilege at Wolfe’s retrial, absent the
       granting of immunity.

J.A.    527   (citations      omitted).              Thus,    by     threatening      and

intimidating Barber -- whose most recent and credited testimony

was that Wolfe had nothing to do with Petrole’s murder -- into

invoking the Fifth Amendment, the Commonwealth has once again

deprived Wolfe of potentially exculpatory evidence.                             This is a

circumstance       that,    even        if        (somehow)   the      constitutional

violations can be remedied upon retrial, is extraordinary enough

“such that the holding of a new trial would be unjust.”                            Capps,

13 F.3d at 353.




                                             43
                                             2.

      In     fashioning       its     remedy       to    bar     re-prosecution,            the

district court relied heavily upon the actions of the Original

Prosecuting Team during the September 11 jail visit, so it is

important to put the visit in context.                         This court’s Wolfe II

opinion was published on August 16, 2012, and the mandate issued

on Friday, September 7, 2012.                     Our Wolfe II opinion roundly

chastised     the    Original       Prosecuting         Team    for    its        failure    to

disclose exculpatory evidence and for “taint[ing]” evidence by

its “prosecutorial misconduct.”                   Wolfe II, 691 F.3d at 426 n.9.

At that point, the Commonwealth was well on notice that a change

in    the    prosecution       team    would       be    necessary       to       avoid     any

continued improprieties.

      Yet,     the     day    before     a     meeting         with    Wolfe’s       counsel

(scheduled       for     Wednesday,          September          12),        the     Original

Prosecuting Team traveled to the Augusta Correctional Center and

met with Barber, who was unassisted by counsel.                             The encounter

was   recorded       without    Barber’s          knowledge.          The     Commonwealth

states that the Original Prosecuting Team visited Barber “in

preparation     for     the    retrial,”       and      maintains,     “Mr.        Ebert    was

permitted, even required, to talk to Barber to see which of his

many stories he intended to tell at the retrial.”                             Resp’t’s Br.

6, 28.



                                             44
        Ebert received his answer within the first five minutes of

the interview:         “EBERT: What might be your testimony if we were

to call you this time [upon retrial]?                  BARBER: I guess it’d have

to be what was in the Federal Court.”                       J.A. 298.     Barber was

referring        to   the    testimony    he    gave    at    the   district      court

evidentiary hearing in November 2010, where he reconfirmed that

Wolfe was not “involved in the murder of Danny Petrole,” did not

“hire [Barber] to kill Danny Petrole” and did not “have anything

.   .   .   to   do   with     the   murder    of   Danny    Petrole.”     Wolfe     v.

Johnson, No. 2:05-cv-432, Docket No. 186 at 117-18 (Tr. Nov. 2,

2010); see also Wolfe, 819 F. Supp. 2d at 548 & n.9.                      Crucially,

the     district       court     found    “Barber’s         demeanor     and     candor

persuasive” at the federal evidentiary hearing.                        Wolfe, 819 F.

Supp. 2d at 570.

        Nonetheless, the questioning did not stop there.                       Instead,

because this was not the answer the Commonwealth wanted, they

proceeded to interrogate, intimidate, and threaten Barber for

over an hour, but at no point did Barber relent.

        I am compelled to repeat some of the tactics used by the

Commonwealth and statements made to Barber at the September 11

jail visit:

            •   Conway paraphrased the holding in the Supreme
                Court case Ricketts v. Adamson, 483 U.S. 1
                (1987), explaining that a government witness who
                breached a plea agreement by failing to testify
                truthfully against other parties “was convicted

                                          45
    of first degree murder and sentenced to death.”
    Conway asked, “Nobody, none of these people
    [i.e., Wolfe’s attorneys] ever told you that by
    breaching the plea agreement you could be tried
    again also . . . for the murder[?] . . . I had
    thought it was pretty deceptive really for these
    people to be coming here and talking to you as if
    perjury was the only thing you had to worry
    about.” J.A. 310-14.

•   DETECTIVE NEWSOME: “You know, . . . sometimes you
    may feel like well, if I’m going down, there’s no
    need to take [Wolfe] with me. So I’ll just tell
    this lie to make it easier on him.        And I’m
    saying this may come from the heart in an effort
    to do good, to try and do good, and say well even
    though you may know he’s guilty, I’m just going
    to say this because it will make his life easier.
    Why should somebody else suffer also?      I will
    take the brunt of this. But justice doesn’t work
    like that. And nor does God work like that. We
    are held accountable for our actions.   Scripture
    tells us to obey the laws of the land.    We have
    an obligation to do that.     And our obligation
    before anything else is to be righteous and
    truthful in our practices and in what we do. And
    we’re told in scripture also that those with
    authority over us are put there by holy mandate.
    So we have an obligation to respect the Courts,
    to respect the process and to do what’s right.
    And we do not have the moral ability to
    arbitrarily protect those who are guilty, who are
    held   accountable.”     Id.  at   331  (emphasis
    supplied).

•   CONWAY:   “It doesn’t matter what the victim’s
    family thinks about now because we’ve gotten
    somebody off of death row so it’s a victory and
    the Lord will forgive us for that.     But let me
    tell you something, I don’t know -- I don’t know
    if the Lord’s all that forgiving or not.” Id. at
    354.

•   CONWAY: “I’m not trying to trick you or anything,
    but do you remember what you answered [when you
    were asked why you killed Petrole]?”      BARBER:
    “No. What did I say?” CONWAY: “Do you know why

                         46
           you don’t remember?        Because   it   wasn’t   the
           truth.” Id. at 361.

       •   DETECTIVE NEWSOME: “You know, what Mr. Conway
           said about do you think if you told the truth
           that you could convince somebody that it’s the
           truth. . . . But this is something that you and
           you alone can have an impact on and it has to
           come from in there. And that is a plausible and
           truthful explanation for those multitude of
           changes. A plausible and truthful explanation of
           why you told the truth in the initial trial, you
           told   the  truth   in  letters,  but  in  these
           affidavits, why you changed.      It has to be
           truthful and plausible[.]” Id. at 367-68.

       •   CONWAY: “You know what the truth is, Owen. It’s
           something that we should have ingrained in you
           more, I guess, back then.    We thought we had.”
           Id. at 369.

       •   CONWAY: “So you need to really search your sole
           [sic] and if we’re full of shit and Justin Wolfe
           didn’t have anything to do with all this, you
           should tell us that right this minute and tell us
           to get out because you did it all on your own and
           he never had a thing to do with it.    But if you
           want -- if you believe in yourself and you
           believe in the truth and that you believe that
           from now on nothing but the truth will ever
           escape your lips, then I think that’s different.”
           Id. at 370-71.

       •   EBERT: “One more thing I want you to think about,
           what do you think your mother would want you to
           do?” Id. at 375. (Barber’s mother died of cancer
           a year before Barber killed Petrole, and the
           Original Prosecuting Team knew this fact because
           they read aloud a previous statement of Barber’s,
           which said, “I had just lost my mother the year
           before [Petrole’s death] after cancer [was]
           slowly eating her away,” id. at 302).

    The very next day, on September 12, 2012, Conway and Ebert

filed an ex parte motion to recuse themselves and were replaced


                                 47
on September 13 by a Fairfax County Commonwealth prosecutor.

The timing of this action is highly suspect, as it suggests

that, rather than working diligently to comply with the district

court’s mandate that Wolfe be released or retried within 120

days, the Original Prosecuting Team made a last-ditch effort to

intimidate Barber into implicating Wolfe once and for all, and

then, when their plans failed, the prosecutors immediately filed

a motion to recuse themselves. 1

     Considering       this       cumulative     evidence     of        misconduct,

culminating      in   the   Commonwealth       urging   Barber     to    reiterate

testimony     that     “contained      falsities,”      and      his     resulting

intention   to    invoke    his    Fifth    Amendment   privilege,        I   simply

cannot join the majority’s independent finding that this is not

an “extremely rare” situation worthy of a bar on re-prosecution.




     1
        The district court asked the Commonwealth, “Did the
[prosecutors’] recusal on September the 12th have anything to do
with the visit on September 11th of Mr. Barber?”             The
Commonwealth, represented by the Attorney General’s Office,
responded, “I can only speak to the record, your Honor. There’s
nothing I see in the transcript or in my listening to the
recording of the visit that would have created the basis for
them to recuse themselves.”       J.A. 456.    The Commonwealth
continued, “[T]he 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, and a special
prosecutor would be able to focus on the case itself,” to which
the court responded, “It took the Commonwealth until September
the 12th to figure that out?” Id. at 457.



                                       48
Ante at 30.        Woe is the state of justice in the Commonwealth if

this behavior is not extremely rare.

                                           3.

      The majority makes the point that Barber may very well not

end up invoking his Fifth Amendment privilege, and if he does

testify, his testimony could benefit either side.                          See ante at

28.     However,      in    my   opinion,       this    misses    the     point.      The

September     11    jail     visit,    resulting         in     Barber’s    threat     of

silence, was not an anomaly; it “permanently crystalized” the

misconduct of the Original Prosecuting Team, J.A. 533, as the

district court explained,

      In the absence of the discovery violations in the
      state trial, the Original Prosecuting Team’s actions
      on September 11, 2012 might appear to be benign.
      However, in context, they speak to a continuing
      pattern of violating Petitioner [sic] right to use
      Brady and Giglio evidence, which the Court attempted
      to remedy through its habeas decree.

Id. at 528.

      As it stands, the only witness directly linking Wolfe to

the death of Petrole -- Barber -- has now recanted and, as a

result, has been sought out and harassed by the Commonwealth

attorneys to the extent he is now chilled from testifying.                             In

fact, in December 2012, Barber’s attorney testified in district

court   that,      upon    his   advice,    Barber      has     already    invoked    his

Fifth   Amendment      privilege      in   state       court,    and    “based   on   the

contents of th[e] tape [from the September 11 jail visit], my

                                           49
advice will not change about whether [Barber] should testify [at

trial] unless there’s a new development[.]”                    J.A. 471-72.

       But even if Barber decides to forego the privilege, his

testimony will be forever shadowed by the manipulative actions

of the Original Prosecuting Team:                   the Commonwealth threatened

Barber with being charged with capital murder for breaching his

plea       agreement   and    raised    the      specters   of    God    and    Barber’s

deceased mother in attempt to coerce him into testifying to “the

truth,” a.k.a., the Commonwealth’s moniker for its version of

the    facts.        See     J.A.    310-14,     331,   369,     375.      It    is   the

Commonwealth alone that now holds the fate of the crucial Barber

testimony (and thus, Wolfe’s fate) in its grip.                         They alone can

grant immunity (or not) in order to compel Barber’s testimony. 2

Yet,       it   is   clear    from    the   actions     and      statements      of   the




       2
       I am not satisfied by the suggestion that a state court
grant of immunity would result in Barber offering testimony.
See Gosling v. Commonwealth, 415 S.E.2d 870, 874 (Va. Ct. App.
1992) (“When a witness ‘declares his belief that the answer to
the question would [in]criminate, or tend to [in]criminate him,
the court cannot compel him to answer, unless it is perfectly
clear, from a careful consideration of all the circumstances in
the case, that the witness is mistaken, and that the answer
cannot possibly have such tendency.’” (quoting Temple v.
Commonwealth, 75 Va. 892, 898 (1881)); see also Byrd v.
Commonwealth, No. 2550-02-1, 2003 WL 23021981 (Va. Ct. App. Dec.
30, 2003) (“Even had the trial court granted Spain use immunity,
however, it could not compel him to testify if he decided to
assert his Fifth Amendment privilege.” (citing Gosling, 415
S.E.2d at 873; Va. Code Ann. § 19.2-270)).



                                            50
Commonwealth     prosecutors    that    the     only   testimony       they   are

interested in compelling is that which would implicate Wolfe.

      The misconduct of the Original Prosecuting Team has tainted

this case to the extent that Wolfe’s due process rights are all

but   obliterated.      In    this    case,    with    its   “protracted      and

eventful history,” ante at 3, not only do we have inexcusable

delay as set forth in Satterlee, Garcia, and Morales -- caused

by the Commonwealth’s withholding of Brady and Giglio evidence

and   its   non-compliance     with     the     district     court’s     120-day

deadline    --   but   we    also    have     the   grievous    instances      of

prosecutorial misconduct to boot.           Wolfe has been in prison for

twelve years, despite the fact that the evidence linking him to

Petrole’s murder is weak, and he will now likely be deprived of

live testimony from the only direct witness to the crime for

which he is sitting on death row -- testimony that may very well

exculpate him.       Thus, the district court was not arbitrary or

irrational, did not ignore constraints on its discretion, and

did not commit factual or legal error in stopping this loathsome

spectacle once and for all.           See United States v. Wilson, 624

F.3d 640, 649 (4th Cir. 2010). 3


      3
       The majority maintains, “contentions relating to Barber’s
alleged intimidation by the prosecutors are yet to be exhausted
in the state court system.”     Ante at 29 (citing Pitchess v.
Davis, 421 U.S. 482 (1975)).    However, Pitchess is inapposite.
As noted in Part III.A. of the majority opinion, the
(Continued)
                                       51
                                          II.

     In sum, the district court -- possessing jurisdiction to

remedy the constitutional violations that occurred over the past

twelve   years       and   armed   with   the   authority   to   “enforc[e]   its

conditional grant of a writ of habeas corpus,” Gentry v. Deuth,

456 F.3d 687, 692 (6th Cir. 2006) -- disposed of this matter “as

law and justice require[d],” 28 U.S.C. § 2243, and did not abuse

its discretion in barring re-prosecution of Justin Wolfe.                       I

would affirm the district court’s remedy and thus, respectfully

dissent as to Part III.B. of the majority opinion.

     I repeat the words of our Supreme Court, “It is as much [a

prosecutor’s] duty to refrain from improper methods calculated

to   produce     a    wrongful     conviction     as   it   is   to   use   every

legitimate means to bring about a just one.”                 Berger v. United



Commonwealth did not comply with the conditional writ in this
case. In such a situation, jurisdiction remains in the district
court so that it may “enforce its conditional grant of a writ of
habeas corpus.”     Gentry v. Deuth, 456 F.3d 687, 692 (6th Cir.
2006); see also D’Ambrosio v. Bagley, 656 F.3d 379, 385 (6th
Cir. 2011) (“[T]he state never complied with the conditional
writ,   and    the    district    court’s    jurisdiction   remained
intact[.]”). In Pitchess, the state complied with the district
court’s   writ,    thereby   depriving    the   district  court   of
jurisdiction over further proceedings and rendering exhaustion
of the utmost importance. In contrast, because the September 11
jail visit occurred while the Commonwealth was under the thumb
of the district court’s writ, Pitchess’s exhaustion requirement
does not preclude the district court’s consideration of the
September 11 jail visit in deciding how best to fashion a remedy
for failure to satisfy its own writ.



                                          52
States,     295   U.S.    78,   88    (1935).       Even   Detective   Newsome

recognized that the Commonwealth “ha[s] an obligation to respect

the Courts, to respect the process and to do what’s right.”

J.A.   331.       If   only   the    Commonwealth   had    practiced   what   it

preached.




                                        53
