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Schoonover v. Clarke

United States District Court, W.D. Virginia, Roanoke Division

September 30, 2019

HAROLD CLARKE, Respondent.


          Elizabeth K. Dillon United States District Judge

         Petitioner Richard Joseph Phillip Schoonover, a Virginia inmate proceeding pro se, filed in this court two related petitions for writs of habeas corpus, pursuant to 28 U.S.C. § 2254. Each one challenges the validity of his confinement resulting from a judgment of the Circuit Court for Floyd County. In this case, Schoonover challenges the state court's December 9, 2014 judgment revoking his probation and imposing the remainder of the suspended sentence on his larceny convictions, a total of four and a half years' imprisonment. (CR08000148-03, CR08000149-3, and CR08000150-03). The violation that led to the revocation and imposition of the challenged sentence here was Schoonover's conviction for distribution of heroin as an accommodation, in violation of Virginia Code § 18.2-248(D). The distribution charge was challenged by Schoonover in his second habeas petition before this court, Civil Action No. 7:18-cv-203, which is being addressed by separate opinion.

         In his petition in this case, Schoonover asserts two grounds for relief. First, he claims that the state court violated his constitutional right to due process at the probation violation hearing. Importantly, he does not challenge that there were grounds to revoke his probation, and he admits that his conviction on the drug charge violated the terms of his probation. Instead, he asserts that the sentence imposed was based on erroneous information, and thus the proceeding and sentence violated his due process rights.

         Second, he claims that he received ineffective assistance of counsel at the probation violation hearing because his counsel "failed to object to the Court sentencing him based on misinformation." According to Schoonover, this failure prejudiced him on appeal because the appellate court deemed the error unpreserved. (Dkt. No. 1-1 at 2-3.)

         Respondent filed a motion to dismiss the petition, and Schoonover has responded, making the matter ripe for disposition. After a careful review of the briefing and record, the court concludes that Schoonover is not entitled to relief on either claim. As to his first claim, it is procedurally defaulted, and he has not shown cause and prejudice for the default. As to the second claim, it fails because he did not have a constitutional right to counsel in his revocation proceeding. For these reasons, the court will grant the motion to dismiss. The court also will deny Schoonover a certificate of appealability.

         I. BACKGROUND

         In 2009, Schoonover was convicted of burglary and larceny charges in Case Nos. CR08000147 through CR08000150 in the Floyd County Circuit Court. He was sentenced to a total of 9 years with 5 years and 3 months suspended. He was released in April 2013 and began a period of probation. After he failed three drug screens and learned that there was a capias for his arrest, he turned himself in to the authorities on June 11, 2013. The judge revoked his probation and sentenced him to the remainder of the suspended sentence, but he re-suspended all but nine months. Schoonover remained in custody after the expiration of that nine-month sentence because of the separate drug charges against him. (Dkt. No. 19 at 2.)

         In September 2014, Schoonover pled guilty and was sentenced for the distribution of heroin as an accommodation, in Cr. No. 13-288. On December 9, 2014, the court denied his motion to withdraw his guilty plea in Cr. No. 13-288 and proceeded to the revocation proceeding challenged here. After hearing testimony (including from Schoonover), as well as argument from counsel for the Commonwealth and the defendant, the court revoked Schoonover's probation and imposed the entire remainder of his previously suspended sentences in Case Nos. CR08000148 through CR08000150-four years and six months. The basis for the revocation was his conviction on the drug charge.

         At both the initial hearing and at a subsequent hearing on a motion to reconsider, held on April 19, 2016, the sentencing judge's statements indicated that he believed Schoonover had gotten out of jail at some point after the first revocation proceeding and had failed to succeed in the New Life treatment program. (Dkt. No. 1-1 at 2-3.) Schoonover argues that this was erroneous: he never had the opportunity to participate in the New Life treatment program because he was not released from jail in between the first and second revocation proceedings. He claims that the error by the sentencing court constituted a violation of his federal due process rights. (Id.)


         Schoonover appealed, in a single appeal, both the trial court's refusal to allow the withdrawal of the guilty plea and the trial court's decision revoking his previously suspended sentences, but the Virginia Court of Appeals denied his petition for appeal in a per curiam order entered September 9, 2015, and by a three-judge order entered October 19, 2015. (Record No. 2297-14-3.) The Supreme Court of Virginia ("SCV") refused his petition for appeal by order dated August 25, 2016. (Record No. 151808.) By order dated December 12, 2016, the SCV denied his petition for rehearing. Schoonover filed a petition for certiorari in the Supreme Court of the United States, which was denied on June 19, 2017. Schoonover v. Virginia, No. 16-8722, l37S.Ct. 2271(2017).

         While his direct appeals proceeded, Schoonover filed a motion for reconsideration of the revoked sentences in the Floyd County Circuit Court. The trial court held a hearing on that motion on April 19, 2016, hearing the argument of counsel and allowing Schoonover to personally address the court.[2] The court denied the motion for reconsideration. (See generally Dkt. No. 1-5, Transcript of April 19, 2016 proceedings.) Schoonover filed a pro se appeal from that denial, which was denied by the Court of Appeals in both one-judge and three-judge orders. The SCV dismissed Schoonover's subsequent appeal on June 20, 2017, under Virginia Supreme Court Rule 5:14(a), because he had failed to file a timely notice of appeal in the Court of Appeals of Virginia.[3] (Record No. 170418.)

         Schoonover also filed petitions for writ of coram vobis in the state circuit court and raised this claim in one of them. (CL17000013-11). That petition was denied for lack of jurisdiction, and the SCV denied his appeal of that judgment on December 12, 2017. (Record No. 170609.)

         In September 2016, Schoonover timely filed a habeas petition in the Floyd County Circuit Court, Schoonover v. Clarke, No. CL16-118, which again raised claims related to both criminal proceedings. The habeas court denied and dismissed the habeas petition on January 31, 2017, after declining to hold an evidentiary hearing. (Dkt. No. 1-3; see also Habeas Rec. 545 (letter from court declining to hold hearing).) Schoonover appealed that judgment to the SCV. (Record No. 170564.) The SCV refused the appeal of the habeas judgment by order entered March 30, 2018, finding "no reversible error." (Dkt. No. 1-3.) This federal petition followed.


         A. Claim 1: ...

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