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Gardner v. Clarke

United States District Court, E.D. Virginia, Alexandria Division

July 18, 2019

MICHAEL A. GARDNER,, Petitioner,
HAROLD W. CLARKE, Director, Virginia Department of Corrections,, Respondent.



         Michael A. Gardner ("Gardner" or "petitioner") petitions the Court for a writ of habeas corpus under 28 U.S.C. § 2254, arguing that his original trial counsel during his state-court prosecution rendered constitutionally deficient performance and that state prosecutors failed to comply with their obligations under Brady v. Maryland, 373 U.S. 83 (1963). Before the court is Harold W. Clarke's ("Clarke" or "respondent") motion to dismiss the petition, which has been fully briefed. For the reasons stated below, Clarke's motion will be granted, and Gardner's § 2254 petition will be dismissed.



         In June 2011, Gardner was arrested and charged in the Circuit Court of Arlington County, Virginia with four offenses: three counts of aggravated sexual battery of C.R., C.K., and M.G., [1]three young girls under the age of 13 who were friends of Gardner's daughter, in violation of Va. Code Ann. § 18.2-67.3;[2] and one count of object sexual penetration of M.G. in violation of Va. Code Ann. § 18.2-67.2.[3] The criminal charges stemmed from allegations that Gardner had inappropriately touched the girls during sleepovers held at the Gardners' home.[4] A jury found Gardner guilty of all charges related to C.R. and M.G., but the trial court declared a mistrial as to the charge of aggravated sexual battery of C.K. after the jury was unable to reach a unanimous verdict. On appeal, the Supreme Court of Virginia vacated Gardner's three counts of conviction, holding that the trial court had erred in excluding character evidence proffered by Gardner. See Gardner v. Commonwealth, 758 S.E.2d 540, 546 (Va. 2014).

         Before Gardner could be retried, his niece M.S. came forward with additional allegations of sexually inappropriate conduct.[5] As a result, he was charged with two additional counts of aggravated sexual battery, and two trials were scheduled: a first trial on the charges related to M.S., and a second on the remaining charges related to C.R. and M.G.[6] Gardner engaged Christopher Leibig ("Leibig"), an experienced attorney, to represent him in both proceedings. Gardner felt that Leibig's experience with DNA and forensic evidence would be particularly useful in undermining the state's evidence.

         Two serious evidentiary issues arose before the second round of trials. The first involved Leibig, Gardner's trial counsel, and what the prosecution characterized as a murder-for-hire scheme. In January 2015, while Gardner was in state custody awaiting his trial on the M.S. charges and his retrial on the C.R. and M.G. charges, he received a letter from William Hawley ("Hawley"), an incarcerated individual with a habit of coming forward with incriminating information about others in an effort to reduce his own terms of imprisonment. Hawley and Gardner had met one another while incarcerated in Virginia. Hawley's letter hinted at a plot to kill, or otherwise prevent from testifying, the minor complainant witnesses:

I want you to know I haven't forgotten what we've discussed. The friend you asked me to contact to see if he could help with the "3 problems" you have pre-trial will be passing through VA on a FL to NY "run[.]" Get back to me right away because I don't [sic] his visiting you to interfere with Robin and the kids [sic] anticipated visit, especially when it's only twenty minutes per Robin."

See Gardner v. Booker, No. CL16-2444, slip op. at 6 (Va. Cir. Ct. Aug. 9, 2017) [Dkt. No. 1-5] ("State Habeas Op.").

         Although Gardner took no action after receiving the letter, state officials nonetheless found it troubling, [7] particularly because they believed that Hawley's reference to certain facts- including the reference to Robin, Gardner's wife-lent some credibility to the statements. They summoned Hawley for an interview during which Hawley explained that Gardner had asked him for help in harming not only the complainant witnesses but also Detective Sonya Richardson as well as state prosecutors Nicole Wittman and Alejandra Rueda. State officials later claimed that there were no notes or recordings of their meetings with Hawley and that they had promised him nothing in exchange for his testifying against Gardner other than that they would submit a letter detailing his cooperation, which he could include as part of a petition for sentence reconsideration in another state.

         In early February 2015, an undercover police agent visited Gardner at the Arlington County Detention Center. The agent told Gardner, "I'm here on behalf of our friend, our mutual friend. He wanted me to come by and see you." State Habeas Op. 7. Gardner replied, "I don't know why he would do that." Id. The agent told Gardner he was "uncomfortable" because of the security cameras in the visiting room but had been told "to stop by ... and check on [Gardner] to make sure [he] w[as] ok." Id. Gardner responded, "[T]his is silly, I don't want to meet with you, no offense." Id. When the agent asked Gardner, "[D]o you want me to say anything to [our mutual friend] or that's it?," Gardner responded, "[T]hat's it." Id. The agent left the room.

         Gardner was concerned about the visit and told Leibig about it. The day after the visit, Leibig sent the following email to the Commonwealth's Attorney for Arlington County:

Dear Theo, a matter came to my attention today that I think I need to tell your office about as soon as possible. Long story short, a man visited my client Michael Gardner at the jail Saturday and suggested to him that he was wanting to be paid to commit murder of some of the witnesses against Mr. Gardner. Mr. Gardner did not know the person, and terminated the visit. He wants the matter brought to the attention of authorities. The man presented a Virginia ID to get the visit. The sheriffs office has his info, and Deputy Auerbach interacted with him. Can explain more when we talk.

         State Habeas Op. 7-8. Leibig later spoke with local law enforcement and provided additional details about Gardner's statements about the undercover agent's visit.

         Before trial, the prosecution moved to subpoena Leibig as a witness against Gardner. Although the prosecution conceded that it could not introduce Gardner's statements during the interaction with the undercover agent against him at trial, [8] it argued that Leibig's email was not subject to the same exclusionary rule and corroborated Hawley's suggestion that he and Gardner had discussed a murder-for-hire plot. Leibig hired counsel to represent him and opposed the prosecution's motion. Ultimately, the trial court held that Leibig's statements could not be used in the prosecution's case in chief but reserved ruling on the question whether Leibig or Hawley could be called as rebuttal witnesses in the event Gardner chose to testify on his own behalf. In reaching that decision, the trial court rejected Gardner's argument that those statements should be excluded as a violation of the attorney-client duty of confidentiality, reasoning that "[i]t was at Mr. Gardner's behest that Mr. Leibig reached out" to the Commonwealth's Attorney. See Br. in Supp. of Rule 5 Answer & Mot. to Dismiss [Dkt. No. 8] ("Resp't's Br.") 9. After the trial court issued its decision, Leibig's attorney addressed the court:

Your Honor, during the recess, I met with Gardner [and] determined that his desire is to not lose counsel of choice[. Nonetheless, ] the ethical obligations of the defense team in this case create an irreconcilable conflict and the ethics require the defense team to withdraw, even though it's against Gardner's wishes. It is unfortunate that the potential availability of Mr. Hawley as a rebuttal witness has created this problem but it has. That said, I have advised the defense team that it is their obligation under the rules to withdraw from the case and they so do.

         See Pet. for a Writ of Habeas Corpus [Dkt. No. 1] ("Pet.") ¶ 28. Leibig withdrew as Gardner's attorney, and Gardner hired two new attorneys: Joe Flood ("Flood") and Brad Haywood ("Haywood").

         The second evidentiary issue to arise involved recorded telephone conversations between Gardner's wife Robin and her brother, M.S.'s father. Before trial, the prosecution moved to declare Robin an adverse witness, seeking to admit recordings of conversations in which Robin articulated her belief in the truth of M.S.'s allegations and suggested that Gardner had affirmed the truthfulness of at least certain aspects of those allegations. The trial court ruled that Robin could not invoke her Fifth Amendment privilege against self-incrimination to avoid offering testimony and observed that it might be appropriate for the prosecution to seek to introduce Robin's recorded telephone conversations with M.S.'s father as impeachment evidence. The trial court deferred ruling on specific questions related to the admissibility or presentation of those telephone recordings until trial.

         Gardner went to trial on the two charges related to M.S. in September 2015. On the third day of trial, the prosecution called Robin as a witness and asked whether she had spoken to her brother about M.S.'s allegations. Robin acknowledged that she had talked with her brother to convince him not to pursue charges against Gardner but denied conveying any message about her own belief in Gardner's guilt or about Gardner's admission to any allegations. Based on her testimony, the prosecution moved to admit the telephone recordings of her conversations with M.S.'s brother, arguing that Robin had mischaracterized those conversations and thereby opened herself up to impeachment. The trial court granted the prosecution's motion, reasoning that Robin had "testified duplicitously" and that allowing the tapes to be played for the jury would "go[] to her prior inconsistent statements" as well as to "her willingness to be forthright with the Court and the jury." See Resp't's Br. 24. The court recessed for the day before the tapes could be played to the jury.

         Before trial could resume on the fourth day, Gardner and the prosecution reached a plea agreement. Under the terms of the agreement, Gardner would plead guilty to one count of object sexual penetration and four counts of aggravated sexual battery, resolving not only the charges related to M.S. but also those related to C.R. and M.G. In return, Gardner would be sentenced to a total term of imprisonment of 40 years, with 20 years suspended, among other penalties including registering as a sex offender.[9] The state also promised not to prosecute Gardner with respect to "events described in" three police reports or for the murder-for-hire plot. Plea of Guilty to Felonies [Dkt. No. 8-2] ("Plea Agreement") 3. Although not named as an express condition of the plea agreement, the state also promised not to prosecute Robin for perjury in connection with her testimony during the third day of trial. The plea agreement Gardner signed acknowledged that he was waiving his right to appeal; "all objections to the admissibility of evidence, the legality of [his] arrest, and any search and seizure of property"; and his constitutionally guaranteed trial rights. Id. 1-2.

         The trial court conducted a lengthy plea colloquy before deciding whether to accept the plea agreement. Gardner, who has a law school degree and was a business executive before being arrested, stated under oath that he understood the nature of the charges against him, had discussed any possible defenses with his attorneys, and had freely and voluntarily decided to plead guilty to all five charges. Gardner also agreed that he was knowingly waiving his trial rights along with the right to appeal "any issues that [he] may have raised during the trial." Tr. of Trial, Day 4 [Dkt. No. 11-3] ("Plea Colloquy") 17-18. When asked whether "any other promises [were] ...

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