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George v. Clarke

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

August 5, 2019

HAROLD W. CLARKE, Respondent.



         Henry Nicholas George, a Virginia inmate proceeding with counsel, filed this petition for a writ of habeas corpus under 28 U.S.C. § 2254 ("§ 2254 Petition," ECF No. 1) challenging his convictions in the Circuit Court for the City of Williamsburg and James City County ("Circuit Court"). Respondent has moved to dismiss. (ECF No. 5.) George did not file a response. For the reasons that follow, the Motion to Dismiss will be granted.


         Following a jury trial, the Circuit Court convicted George of rape, abduction with intent to defile, and forcible sodomy. Commonwealth v. George, Nos. CR12021946, CR12021947, CR12021948, at 1 (Va. Cir. Ct. May 7, 2013). The jury recommended a total sentence of 30 years, the minimum sentence it could impose. Id; (ECF No. 1, at 2). Thereafter, the Circuit Court imposed a sentence of 30 years. Commonwealth v. George, Nos. CR12021946, CR12021947, CR12021948, at 2 (Va. Cir. Ct. May 7, 2013). George appealed his convictions. The Court of Appeals of Virginia and the Supreme Court of Virginia rejected George's appeal. George v. Commonwealth, No. 150711, at 1 (Va. Dec. 28, 2015); George v. Commonwealth, No. 0034-14-1, at 1 (Va. Ct App. Oct. 30, 2014).

         Thereafter, George, by counsel, filed a petition for a writ of habeas corpus with the Circuit Court wherein he asserted that counsel had failed to provide effective assistance in conjunction with a plea offer. Petition for a Writ of Habeas Corpus at 3, George v. Clarke, No. CL16-2255 (Va. Cir. Ct. filed Dec. 28, 2016). Following an evidentiary hearing, the Circuit Court denied George's Petition for a Writ of Habeas Corpus. George v. Clarke, No. CL16-2255, at 1 (Va. Cir. Ct. Aug. 2, 2017). George appealed. The Supreme Court of Virginia refused George's petition for appeal. George v. Clarke, No. 180154, at 1 (Va. July 16, 2018).

         On October 14, 2018, George filed his § 2254 Petition with this Court wherein he claims he is entitled to relief because:

Counsel failed to provide adequate advice on the pros and cons of accepting or rejecting the plea[] offer. If counsel had taken the necessary time to fully discuss the pros and cons of going to trial by jury versus the pros and cons of taking the plea for aggravated sexual battery, including complete candor concerning the strength of the evidence for and mostly against him regarding all the charges and the likely outcomes, the Petitioner would have accepted the offer to plead guilty to aggravated sexual battery with the sentence to be decided by the judge.

(§ 2254 Petition 13 (emphasis omitted).)


         To obtain federal habeas relief, at a minimum, a petitioner must demonstrate that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") further circumscribes this Court's authority to grant relief by way of a writ of habeas corpus. Specifically, "[s]tate court factual determinations are presumed to be correct and may be rebutted only by clear and convincing evidence." Gray v. Branker, 529 F.3d 220, 228 (4th Cir. 2008) (citing 28 U.S.C. § 2254(e)(1)). Additionally, under 28 U.S.C. § 2254(d), a federal court may not grant a writ of habeas corpus based on any claim that was adjudicated on the merits in state court unless the adjudicated claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). The Supreme Court has emphasized that the question "is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams v. Taylor, 529 U.S. 362, 410 (2000)). Given the foregoing restrictions, the findings of the Circuit Court figure prominently in this Court's opinion.

         III. ANALYSIS

         A. George's Claim

         Prior to George's trial, the prosecution offered to dismiss the pending charges in exchange for George pleading guilty to aggravated sexual battery. (§ 2254 Pet. 21.) "The sentencing range for aggravated sexual battery was one to twenty years under Virginia Code § 18.2-67.3, but [George's] guidelines would call for a sentence somewhere between two and six years, with a midpoint around four year[s] and four months." (Id.) George contends that if counsel had adequately and forcefully explained to him the strengths of the prosecution's case and the weaknesses of George's own testimony, he would have accepted the plea offer. (Id. at 25-28.) As discussed below, this is not an instance where the prosecution's evidence was overwhelming, and a conviction a near certainty. The victim's persistent pursuit of George favored the defense's contention that any sexual activity was consensual. Nevertheless, the jury ultimately credited the victim's testimony that she did not consent to having sex of any form with George on the night in question. Moreover, the record reflects that George was well aware of the risks of going to trial and was adamant about his innocence and unwilling to plead guilty to any charge that would have required him to register as a sex offender.

         B. Summary of the Pertinent Evidence from the Trial

         1. The Prosecution's Evidence

         At trial, the victim, CF, testified that in 2001, she frequented the Green Leafe Cafe, the bar where George worked. (May 2, 2013 Tr. 18.) George would sometimes drive CF home if she was not able to drive herself. (May 2, 2013 Tr. 18.) CF and George's friendship developed to the point of intimacy where they had sexual relations five or six times. (May 2, 2013 Tr. 18.) On April 1, 2011, George and CF again had vaginal intercourse and George tried to persuade CF to have anal intercourse, but she declined. (May 2, 2013 Tr. 21-22.) During that incident, George got slightly violent, attempted to choke CF and bit her in two places. (May 2, 2013 Tr. 21.) CF told George not to choke her. (May 2, ...

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