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Schoonover v. Clarke

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

September 30, 2019

HAROLD CLARKE, Respondent.



         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 his confinement as a result of his September 30, 2014 conviction for distribution of heroin as an accommodation, in violation of Virginia Code § 18.2-248(D), which was the result of a guilty plea.[1] He was sentenced to ten years' incarceration with six years, ten months suspended, resulting in an active sentence of three years and two months.[2] (Case No. CR13-288.)

         Respondent filed a motion to dismiss the petition, and Schoonover has responded, making the matter ripe for disposition. After a careful review of Schoonover's claims, the court concludes that the state court's decision as to the claims was neither contrary to, nor an unreasonable application of, clearly established federal law. The court further concludes that the decision was not based on an unreasonable determination of the facts.

         For these reasons, the court will grant the motion to dismiss. The court also will deny Schoonover a certificate of appealability.

         I. BACKGROUND[3]

         Schoonover was indicted in Floyd County on charges of distribution of heroin and conspiracy to distribute heroin. (Case Nos. CR13000287, CR13000288.) In exchange for his guilty plea to the distribution charge, the Commonwealth agreed to nolle pros the conspiracy charge. The parties also agreed upon a recommended sentence of ten years, with six years and ten months suspended, which is the sentence the court imposed.

         At his guilty plea held on September 30, 2014, the government proffered that it could prove the following, if the case were to go to trial:

This was part of a New River Task Force, Regional Drug Task Force operation. At that particular time, there was a cooperating individual who was wired and that particular individual was searched, found not to have any drugs or money. The individual was accompanied to the residence of the defendant by a special agent of the task force. The special agent waited in the vehicle while the CI went inside. The transaction took place. It was recorded. And the recording revealed that the CI had met a Hope Smith and that there was a transaction made where nine . . . bags of heroin were exchanged for $200. Prior to that, there was a conversation between the defendant and the CI where the defendant said to the CI that he had to turn himself in because he had some outstanding warrants but he would leave the heroin with Hope and that the CI could go by and pick it up and that the CI was told by Mr. Schoonover that Hope would not sell it to anyone else before the CI got there.[4]] We were able to corroborate the fact that that was, in fact, the case that Mr. Schoonover turned himself in to the authorities before this transaction took place. So this is an accommodation and he would be an accessory before the fact to the accommodation.

(Pet. 33-34 (Guilty Plea Tr.).)

         The plea colloquy reflects that Schoonover initially paused in answering the court's question as to whether he was entering the plea of guilty freely and voluntarily, and he failed to answer at all the question of whether he was, in fact, guilty of the crime charged. (Id. at 32-33.) As a result, the court took a recess in the proceedings to give Schoonover an opportunity to talk with his counsel. In the record are affidavits from Schoonover's family members and his girlfriend about what occurred during that meeting, as well as an affidavit from counsel. (Id. at 86-97; Habeas Rec. 387-89.) It is undisputed, however, that Schoonover returned to the courtroom and told the court that he wanted to go forward and that he was entering the plea of guilty because he was “in fact, guilty of the crime charged.” (Pet. 34.)

         Schoonover also had completed a written guilty plea questionnaire, and, after the recess, he told the judge that he had gone over “each and every question and answer” with his attorneys, that his answers to every question were true and correct, that it was his signature on the form, and that he was satisfied with his attorneys. (Id. at 37-38.) Among other responses on that form, he stated that no one had in any manner threatened him or forced him to enter his guilty plea, that no one had made any promises concerning his guilty plea, and that his attorney had not promised him anything. (Habeas Rec. 265-67.)

         Schoonover now alleges that his guilty plea was coerced by his counsel at that time, James C. Turk, Jr., and by certain misrepresentations by Turk. The details of these assertions are discussed in the context of analyzing Schoonover's claims. (See Section IV.B. infra.)

         After the guilty plea was entered and Schoonover had been sentenced, Schoonover contends that he asked Turk to file a motion to withdraw the guilty plea, but Turk refused to do so. Thereafter, Turk moved to withdraw and Schoonover hired new counsel, Flux Neo. Neo filed a motion to withdraw Schoonover's guilty plea, but he did so one day after the deadline set forth in Virginia Code § 19.2-296. Ultimately, the trial court denied the motion to withdraw the guilty plea, both because it was untimely and because there was no basis to allow withdrawal.

         On December 9, 2014, the same date that the trial court denied the motion to withdraw his guilty plea, the court revoked Schoonover's probation and imposed the entire remainder of his previously suspended sentences in prior burglary and larceny cases. (Case Nos. CR08000148-03 through CR08000150-03). The basis for the revocation was his conviction on the drug charge, which was a violation of the terms of his probation. At that hearing, the Commonwealth did not argue that Schoonover should get no additional time, as Schoonover alleges that Turk had promised him the Commonwealth would do.


         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, 137 S.Ct. 2271 (2017).

         In September 2016, Schoonover timely filed a habeas petition in the Floyd County Circuit Court, Schoonover v. Clarke, No. CL16-118. That petition raised four claims, many of them with subparts. (Habeas Rec. 1-51 (state court habeas petition); see also Resp't Br. Supp. Mot. to Dismiss 3-4, Dkt. No. 8 (listing claims).) His first and fourth claims were ineffective assistance of counsel claims based on a number of different alleged actions or omissions by his counsel. His second claim alleged due process violations arising from prosecutorial misconduct, certain pre-plea events, errors in the plea proceeding itself, and errors at the revocation hearing. In his third claim, he alleged that a fraud had been perpetrated on the court because someone on the drug task force had told the confidential informant to lie about Schoonover's involvement in the drug transaction.

         As part of its response and motion to dismiss, the respondent included affidavits from the state prosecutor, Clifford F. Hapgood, from Turk, and from Floyd County Deputy Sheriff Chad Harris. The habeas court denied and dismissed the habeas petition on January 31, 2017, without holding an evidentiary hearing. (Habeas Rec. 545, 557-72.)

         Schoonover appealed that judgment to the SCV. (Record No. 170564.) He moved the SCV to allow him to amend his petition to attach a purported transcript of a telephone call between him and Daniel Light, which motion was denied.[5] The SCV refused the appeal of the habeas judgment by order entered March 30, 2018. (Pet. 79.) This federal petition followed.

         III. CLAIMS

         In his current timely petition, Schoonover raises four general grounds for relief.[6] The specific details of each will be discussed in context in Section IV infra. Here, the court sets out the general claims and sufficient detail to understand their scope.

         In his first claim, Schoonover asserts that his guilty plea was involuntary, because it was induced by threats, lies, and coercion. The threats, lies, and coercion all stemmed from alleged actions of his counsel, Turk, immediately preceding and during the recess in the guilty plea hearing.

         In Schoonover's second claim, he alleges that Turk was ineffective based on four separate actions: (a) incorrectly advising Schoonover that the contents of a recorded jail conversation Schoonover had with Daniel Light would support charges of extortion, bribery, and/or witness tampering, and thus encouraging him to plead guilty in the drug case to avoid those charges; (b) representing to Schoonover that counsel had a “deal” with the Commonwealth (or for failing to memorialize it) in which, in exchange for Schoonover's guilty plea, the Commonwealth would not “argue against” him at the subsequent probation violation hearing; (c) failing to investigate the informant, who would have admitted to counsel that she lied about Schoonover's involvement in the drug transaction, just as she has subsequently admitted in a sworn affidavit; and (d) improperly advising Schoonover that his guilty plea precluded him from appealing the drug conviction.

         Schoonover's third ground asserts that he was denied counsel at three separate times: (a) when Turk refused to represent Schoonover unless he accepted the plea agreement; (b) when Turk refused to file a motion to withdraw the guilty plea and instead filed a motion to withdraw as counsel, which resulted in Schoonover not having counsel during part of the 21-day period to file a motion to withdraw his guilty plea; and (c) when Turk told him he could not appeal and failed to appeal.

         Schoonover's fourth ground is that there was a fraud committed upon the court because agents with the drug task force coerced the confidential informant to lie regarding Schoonover's involvement in the drug transaction.


         A. Standards of Review

         1. Exhaustion

         Respondent acknowledges that Schoonover exhausted the claims in his petition because he presented them to the state habeas court, and the Supreme Court of Virginia denied his appeal of that judgment on the merits. Respondent contends, however, that the court should not consider two documents Schoonover has included in his federal petition that were not submitted to the state circuit court: Exhibits E and H. These are the purported transcripts of two telephone conversations: one between him and Daniel Light, and the second between him and his attorney, Turk. For support, respondent relies on Kasi v. Angelone, in which the Fourth Circuit explained that to meet the exhaustion requirement, a petitioner “must have presented to the state court both the operative facts and the controlling legal principles.” 300 F.3d 487, 501-02 (4th Cir. 2002) (internal quotation marks and citation omitted). This court cannot consider the contents of those transcripts because they were not part of the official record that was before the habeas court. See Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (federal courts' review under § 2254(d)(1) is limited to “the record that was before the state court that adjudicated the claim on the merits”).[7]

         2. Merits standard of review

         To obtain federal habeas relief, 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). When reviewing a habeas corpus petition challenging a state conviction, federal courts employ a “highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.” Deyton v. Keller, 682 F.3d 340, 344-45 (4th Cir. 2012) (citation omitted). Pursuant to the Antiterrorism and Effective Death Penalty Act (AEDPA), a federal habeas court may only grant habeas relief “with respect to any claim that was adjudicated on the merits” in state court if the state court's decision was (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” or (2) “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)(1)- (2); Deyton, 682 F.3d at 345 (quoting same).

         A state court decision constitutes an “unreasonable application” of clearly established federal law if the state court identifies the correct legal rule but unreasonably applies it to the facts of the particular case. Williams v. Taylor, 529 U.S. 362, 407 (2000). The “application must be ‘objectively unreasonable'” before a court may grant habeas relief. Renico v. Lett, 559 U.S. 766, 773 (2010) (citation omitted). Put differently, “[t]he question under AEDPA 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). Indeed, a federal court may not find “an unreasonable application of federal law unless the state court's decision lies well outside the boundaries of permissible differences of opinion.” Tice v. Johnson, 647 F.3d 87, 108 (4th Cir. 2011) (internal quotation marks omitted). If the foregoing standard “is difficult to meet, that is because it was meant to be.” Harrington v. Richter, 562 U.S. 86, 102 (2011).

         Under the AEDPA standard, this court also must give deference to the habeas court's factual findings, in order “to further the principles of comity, finality, and federalism.” Sharpe v. Bell, 593 F.3d 372, 379 (4th Cir. 2010) (citation omitted). In particular, “Section § 2254(e)(1) . . . reflects Congress's view that there is no reason for a do-over in federal court [as to] facts already resolved by state tribunals.” Id. Under that provision, such factual findings ...

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