This 2009 Habeas petition was denied in a strange story that involves a woman convicting in conspiring with mentally ill Renaissance Fair attendees to kill her father with a ninja sword.

Clara Jane Schwartz, Petitioner,
v
Gene M. Johnson, Respondent.

1:09cv98 (GBL/JFA)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA,
ALEXANDRIA DIVISION

Decided by August 3, 2009 by United States District Judge Gerald Bruce Lee.

Memorandum Opinion and Order

THIS MATTER is before the Court on Petitioner Clara Jane Schwartz’s Petition for Writ of Habeas Corpus for Prisoner in State Custody, pursuant to 28 U.S.C. § 2254. This case concerns the constitutionality of Ms. Schwartz’s conviction in the Virginia Circuit Court for Loudoun County for murder, conspiracy to commit murder, and two counts of solicitation to commit the murder of her father, Dr. Robert Schwartz. The issues before the Court are whether Ms. Schwartz was deprived of her 6th Amendment right to effective assistance of counsel at trial based on her defense counsel’s: 1) failure to timely and properly object to the introduction into evidence of Mr. Hulbert’s written confession and other inculpatory statements (claim A); and 2) failure to request jury instructions on the lesser included offenses of second degree murder and manslaughter and failure to argue alternative defenses based on the facts presented (claim B). Ms. Schwartz requests an evidentiary hearing to resolve the factual dispute as to whether trial counsel’s performance was informed and reasonable. The Court denies Ms. Schwartz request for an evidentiary hearing because there are no factual disputes to resolve. The Court finds that Ms. Schwartz has not demonstrated that the Supreme Court of Virginia applied the Strickland standard unreasonably or based its decision on an unreasonable determination of the facts because this Court has reviewed the records and determined that the court’s analysis is reasonable on both prongs.

I. BACKGROUND

On February 19, 2003, Ms. Schwartz was convicted in the Circuit Court of Loudoun County of murder, conspiracy, and two counts of solicitation to commit murder and sentenced to forty-eight years of imprisonment

In 2001, Ms. Schwartz attended James Madison University as a sophomore. (Trial Tr. 224.) Ms. Schwartz lived in Loudoun County with her father, Dr. Robert Schwartz prior to going to college. (Trial Tr. 204-05.) The Commonwealth presented testimony from Ms. Schwartz friends, Mr. Patrick House and Ms. Kate Inglis, that Ms. Schwartz hated her father, Dr. Schwartz, told her that her father tried to poison her, that she wished he were dead, that he tried to drown her in a pool, that he attempted to molest and kill her, and that she stood to inherit hundred of thousands of dollars upon his death. (Trial Tr. 224, 306-08, 313, 333, 421, 424 430, 498, 553, 714.) In August 2001, Ms. Schwartz began dating Mr. House, and made statements to Mr. House about her desire for him to kill her father. (Trial Tr. 311, 322, 417-18, 427-30.) Ms. Schwartz gave Mr. House a book containing information about poisoning and her collection of journals chronicling the abuse she endured from her father over the years. (Trial Tr. 421, 427.) Mr. House testified that Ms. Schwartz and he had multiple conversations about when he would kill Ms. Schwartz’s father. (Trial Tr. 430-32.)

In September 2001, Ms. Schwartz, Mr. House, Ms. Inglis, and Mr. Michael Pfohl met Mr. Kyle Hulbert at a Renaissance Fair in Maryland. (Trial Tr. 322-23.) Mr. Hulbert was carrying a two-foot sword and dressed in a cat costume. (Trial Tr. 323.) Ms. Schwartz and her friends became friends with Mr. Hulbert. Ms. Schwartz told Mr. Hulbert that her father had abused her and continued to abuse her. (Trial Tr. 286-87.) Ms. Schwartz told Mr. Hulbert that she and her father were planning on going to the Virgin Islands and her father was going to make sure she never came back. (Trial Tr. 288.)

In November 2001 Mr. Hulbert, Ms. Inglis, and Mr. Pfohl visited Ms. Schwartz at college where she further told them how her father abused and poisoned her. (Trial Tr. 332-33.) Ms. Schwartz showed Mr. Hulbert her journals, picking out specific pages for him to read. (Trial Tr. 332-33.) Ms. Schwartz told her friends that she would inherit a substantial amount of money from her father when he died, that she was afraid her father would cut her out of the will, and that she wanted to take a semester off from school, but that her father opposed it. (Trial Tr. 313, 424-27.) At the end of the weekend visit, Ms. Schwartz said to Ms. Inglis, “maybe he [Mr. Hulbert] can help me with my father,” and commented that, if her father died while she was in college, she would take a semester off. (Trial Tr. 350.)

After that visit, Mr. Hulbert and Ms. Schwartz began to exchange instant messages and to speak on the telephone almost daily. (Trial Tr. 710.) Ms. Schwartz arranged for Ms. Inglis to drop off Mr. Hulbert to camp out in the woods surrounding the Schwartz family home during Thanksgiving weekend in 2001. (Trial Tr. 338.) The next day, Mr. Hulbert visited the Schwartz’s residence and introduced himself to Dr. Schwartz and Ms. Schwartz sister Michelle Schwartz. (Trial Tr. 227.) Mr. Hulbert wore a long black trench coat and showed them his sword. (Trial Tr. 226-28.) Soon after that visit, Mr. Hulbert requested that Ms. Schwartz send him $ 60 for gas, a “do-rag”, or head covering, and gloves so that he would not leave any hairs or evidence at the scene. (Trial Tr. 487.) Ms. Schwartz sent Mr. Hulbert the $ 60 check via overnight delivery. (Trial Tr. 340-41, 687-99.) On December 7, 2001, Mr. Hulbert, Ms. Inglis, and Mr. Pfohl used the check to open a bank account for Mr. Hulbert at First Virginia Bank. (Trial Tr. 340-41, 686-87.) On December 8, 2001, Mr. Pfohl and Ms. Inglis gave Mr. Hulbert a ride back to the area near Dr. Schwartz’s home near the same location where they had previously camped. (Trial Tr. 288, 343.) Mr. Hulbert had his sword strapped to his side. (Tr. Tr. 344.) As Mr. Hulbert began to walk in the direction of Dr. Schwartz’s home, he pulled his sword out of its sheath. (Trial Tr. 343.) Mr. Hulbert stabbed Dr. Schwartz over 30 times with the sword. (Trial Tr. 680-81.) When Mr. Hulbert returned to the car he told Mr. Pfohl and Ms. Inglis that he ran him [Dr. Schwartz] through with his sword. (Trial Tr. 345.) On December 9, 2001, Mr. Hulbert called Ms. Schwartz, and told her that he had killed her father. (Trial Tr. 351.) The next day a neighbor found the victim’s body. (Trial Tr. 207-08.) That evening, Loudoun County Investigator Greg Locke traveled to James Madison University to notify Ms. Schwartz and her sister Michelle of their father’s death. (Trial Tr. 470.) Ms. Schwartz provided investigator Locke with information about Mr. Hulbert, Mr. Pfohl, and Ms. Inglis. (Trial Tr. 475-76.) On December 11, 2001, Mr. Hulbert was arrested. (Trial Tr. 300, 302.) At the time of his arrest Mr. Hulbert was carrying a three-page typewritten document that Ms. Schwartz had prepared detailing Dr. Schwartz’s alleged abuse of her. (Trial Tr. 204-05 299, 303, Commonwealth Ex. 35.) Authorities found Mr. Hulbert’s sword at the home of Ms. Inglis and Mr. Pfohl. (Trial Tr. 293-94.) On December 12, 2001, Ms. Schwartz told investigators that she knew Mr. Hulbert was going to kill her father. (Trial Tr. 482-83.) The next day, investigators searched her dorm room and found several journals that were identical to the ones found on Mr. Hulbert at the time of his arrest. (Trial Tr. 504-05, 628, 632-33, 641.) On February 1, 2002, Ms. Schwartz was arrested for the murder of Dr. Schwartz. (Trial Tr. 720.) After her arrest, Ms. Schwartz admitted to fellow inmate Tammie Fitts that her friend Mr. Hulbert had killed her father with a ninja sword. (Trial Tr. 720-22.) Ms. Schwartz also told Ms. Fitts that the plan was for Mr. Hulbert to take the blame for the murder because he was mentally ill. (Trial Tr. 722-23.)

Pre-trial, on June 28, 2002, the Commonwealth filed a motion seeking a ruling on the admissibility of Mr. Hulbert’s written confession. The state habeas court noted that counsel filed a 12-page, “very detailed” and “scholarly” memorandum opposing the Commonwealth’s use of Mr. Hulbert’s written confession. (Tr. Mar. 14, 2008 at 83, 86.) At a hearing on July 10, 2002, defense counsel withdrew their objection to the admission of the statement to allow the admission of the full unredacted confession pursuant to a stipulation with the Commonwealth personally signed by Ms. Schwartz. (Mot. Hr’g Jul. 10, 2002 at 6.) Ms. Schwartz stipulated to the admission of the written confession despite the condition that Mr. Hulbert would not testify and be subject to cross-examination at trial. (Trial Tr. 282-83.) The court noted that the Commonwealth had not satisfied Lilly v. Virginia, which stands for the proposition that a nontestifying accomplice offering statements against the penal interest of the defendant must be allowed to be confronted by the defendant pursuant to the confrontation clause of the 6th Amendment, but there was no objection to the admission of the written confession. (Id.) Mr. Hulbert’s written confession was admitted at trial. (Id.) At a hearing on July 24, 2002, counsel advised the trial court that the defense needed mental health records for Mr. Hulbert to attempt to demonstrate that Mr. Hulbert misunderstood Ms. Schwartz. (Tr. Hr’g Jul. 24, 2002 at 14.) Defense counsel sought to demonstrate Mr. Hulbert’s actions as those of a psychotic individual throughout the trial. (Trial Tr. 193-96, 775-800, 801-43, 842-49.) The court instructed the jury in Instruction 14A that if the jury had a reasonable doubt that Mr. Hulbert had the “mental capacity to understand the nature and consequences of any agreement to commit a crime at the time of the agreement,” the jury must acquit Ms. Schwartz of the conspiracy. (Jury Instruction 14A.) Throughout the closing argument, defense counsel argued extensively about Mr. Hulbert’s mental illness. (Trial Tr. 974, 980-83, 990-92.) On February 19, 2003, Ms. Schwartz was convicted in the Circuit Court of Loudoun County for murder, conspiracy, and two counts of solicitation to commit murder and sentenced to forty-eight years of imprisonment. Ms. Schwartz’s direct appeals were denied. The Virginia Court of Appeals denied her appeal on April 19, 2005. Schwartz v. Johnson, 45 Va. App. 407; 611 S.E.2d 631; 2005 Va. App. LEXIS 156, R. No. 0577-03-4 (Va. Ct. App. Apr. 19, 2005.) The Virginia Supreme Court denied Ms. Schwartz’s appeal on October 6, 2005. Schwartz v. Johnson, R. No. 051072 (Va. Oct. 6, 2005). On October 6, 2006, Ms. Schwartz filed a petition for a writ of habeas corpus in the Circuit Court for Loudoun County challenging her conviction two grounds. Schwartz v. Johnson, R. No. 42813 (Oct. 6, 2005). Specifically, Ms. Schwartz alleged that: (1) she was deprived of her 6th Amendment right to effective assistance of counsel at trial because her defense counsel failed to timely and properly object to the admission into evidence Mr. Hulbert’s written confession and other inculpatory statements; and (2) because her defense counsel failed to request jury instructions on the lesser included offenses of second degree murder and manslaughter and failed to argue alternative defenses based on the facts presented.

On March 14, 2008, a habeas corpus motions hearing was held. At the conclusion of the hearing, the court ruled that the habeas petition should be denied. The order of dismissal was entered April 23, 2008. Ms. Schwartz appealed to the Virginia Supreme Court, which denied the petition for appeal by order dated November 3, 2008. Schwartz v. Johnson, R. No. 081416, 2008 Va. LEXIS 132 (Va. Nov. 3, 2008).

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III. CONCLUSION

The Court dismisses Ms. Schwartz’s Federal Habeas Petition for Writ of Habeas Corpus for Prisoner in State Custody because the state court’s denial of her claims was not contrary to, or an unreasonable application of, clearly established federal law, and was not based on an unreasonable determination of the facts. Ms. Schwartz has failed to demonstrate that her trial counsel was ineffective under the Strickland standard and the Virginia Circuit Court of Loudoun County did not apply the standard unreasonably nor did it base its decision on an unreasonable determination of the facts. Defense counsel’s trial tactics cannot form a basis for a habeas petition. There is no constitutional violation of Ms. Schwartz’s rights in the Virginia Circuit Court of Loudoun [*23] County to give rise to a writ of petition of habeas corpus in this Court.

For the foregoing reasons, it is hereby

ORDERED that the Petitioner Ms. Clara Jane Schwartz’s Motion for Petition for Writ of Habeas Corpus For Prisoner in State Custody pursuant to 28 U.S.C. § 2254 is DENIED.

The Clerk is directed to forward a copy of this Order to counsel.

Entered this 3rd of August, 2009

/s/
Gerald Bruce Lee
United States District Judge
Alexandria, Virginia

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