Schwartz v. Johnson, No. 1:2009cv00098 - Document 7 (E.D. Va. 2009)
Court Description: MEMORANDUM OPINION and ORDER For the foregoing reasons, it is hereby ORDERED that the 1 PETITION filed by Clara Jane Schwartz for Writ of Habeas Corpus for Prisoner in State Custody pursuant to 28 U.S.C. § 2254 is DENIED. (See Memorandum Opinion and Order for details). Signed by District Judge Gerald Bruce Lee on 8/3/2009. (stas)
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; ¢« ¢ FILED IN THE UNITED FOR THE STATES EASTERN DISTRICT DISTRICT OF COURT AU6 - 3 2009 VIRGINIA ALEXANDRIA DIVISION Clara Jane Schwartz, ) Petitioner, ^i^M»<, v»;,n;» ¢. ) l:09cv98 Gene M. CLLr.K, US D'°-TRiCT C.r-: < Johnson, (GBL/JFA) ) Respondent. ) Memorandum Opinion and, Order THIS MATTER Jane Schwartz's Prisoner This is Petition in State case in for murder, the Schwartz The was issues to Habeas Corpus to 28 Court of U.S.C. her the Court failure at Schwartz's father, are trial Dr. of Robert whether Ms. right to based on her to timely and properly object inculpatory jury 2254. and two counts 6th Amendment counsel Ms. § for for Loudoun County into evidence of Mr. request included offenses and failure before of 1) introduction failure Petitioner Clara the murder of her deprived of confession and other 2) pursuant on conspiracy to commit murder, defense counsel's: the of the Virginia Circuit effective assistance to Court constitutionality of solicitation to commit Schwartz. the for Writ Custody, concerns conviction before Hulbert's written statements instructions second degree (claim A); on the murder and lesser and manslaughter 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. On February 19, 2003, BACKGROUND Ms. Schwartz was convicted in the Circuit Court of Loudoun County of murder, and two counts of solicitation to commit murder and sentenced to forty-eight years of In 2001, Ms. imprisonment Schwartz attended James University as a sophomore. (Trial Tr. Schwartz prior to going to college. Madison 224.) lived in Loudoun County with her father, Dr. Mr. Patrick House and Ms. Ms. Schwartz Robert (Trial Tr. The Commonwealth presented testimony from Ms. friends, conspiracy, 204-05.) Schwartz Kate Inglis, that Ms. Schwartz hated her father, Dr. father tried to poison her, Schwartz, that she wished he were dead, that he tried to drown her in a pool, molest and kill her, that he attempted to and that she stood to inherit hundred of thousands of dollars upon his death. 306-08, 2001, 313, Ms. 333, 421, 424 430, 498, Schwartz began dating Mr. statements to Mr. her father. 311, 322, Tr. 714.) House, 417-18, In August and made for him to kill 427-30.) 427.) Ms. chronicling the she endured from her father over the years. 421, 224, House a book containing information about poisoning and her collection of journals abuse (Trial Tr. 553, House about her desire (Trial Tr. Schwartz gave Mr. told her that her Mr. House testified that Ms. (Trial Schwartz and he had multiple conversations about when he would kill Ms. Schwartz's father. (Trial Tr. In September 2001, Inglis, and Mr. Michael Ms. 430-32.) Schwartz, Pfohl met Mr. Mr. House, Ms. Kyle Hulbert at a Renaissance Fair in Maryland. Hulbert was carrying a two-foot sword and dressed in a cat costume. became (Trial Tr. 323.) friends with Mr. (Trial Tr. Ms. Hulbert. 322-23.) Mr. Schwartz and her friends Ms. Schwartz told Mr. Hulbert that her father had abused her and continued to abuse her. Hulbert that (Trial Tr. 286-87.) Ms. Schwartz told Mr. she and her father were planning on going to the Virgin Islands and her father was going to make she never came back. (Trial Tr. In November 2001 Mr. Pfohl visited Ms. 288.) Hulbert, Ms. Inglis, and Mr. Schwartz at college where she further told them how her father abused and poisoned her. Tr. 332-33.) Ms. Schwartz showed Mr. Ms. {Trial Hulbert her journals, picking out specific pages for him to read. 332-33.) sure (Trial Tr. 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. 313, 424-27.) At the end of the weekend visit, Schwartz said to Ms. Inglis, "maybe he [Mr. died while she was (Trial Tr. in college, Ms. Hulbert] help me with my father," and commented that, off. (Trial Tr. can if her father she would take a semester 350.) After that visit, Mr. Hulbert and Ms. Schwartz began to exchange instant messages and to speak on the telephone almost daily. Ms. (Trial Tr. 710.) Inglis to drop off Mr. surrounding the Schwartz weekend in 2001. Ms. Schwartz arranged for Hulbert to camp out in the woods family home during Thanksgiving (Trial Tr. 338.) The next day, Mr. Hulbert visited the Schwartz's residence and introduced himself to Dr. Schwartz. Schwartz and Ms. Schwartz sister Michelle {Trial Tr. 227.) Mr. Hulbert wore a long black trench coat and showed them his sword. Soon after that visit, (Trial Tr. 226-28.) Mr. Hulbert requested that Ms. Schwartz send him $60 for gas, a ttdo-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, Hulbert, Ms. 687-99.) Inglis, and Mr. On December 7, 2001, 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, had his sword strapped to his side. 343.) Mr. Hulbert (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. 343.) (Trial Tr. 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. Tr. 207-08.) That evening, (Trial 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. Pfohl, 11, and Ms. Inglis. (Trial Tr. 475-76.) 2001, Mr. Hulbert was arrested. At the time of his arrest Mr. 204-05 299, (Trial Tr. 300, Commonwealth Ex. {Trial Tr. 293-94.) 35.) Inglis and Mr. On December 12, day, (Trial Tr. (Trial Tr. Authorities found 2001, Ms. Schwartz told investigators that she knew Mr. going to kill her father. 302.) Schwartz had prepared Mr. Hulbert's sword at the home of Ms. Pfohl. On December Schwartz's alleged abuse of her. 303, Mr. Hulbert was carrying a three- page typewritten document that Ms. detailing Dr. Hulbert, Hulbert was 482-83.) The next 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. 632-33, Ms. 641.) On February 1, 2002, Ms. 628, Schwartz was arrested for the murder of Dr. Schwartz. After her arrest, 504-05, (Trial Tr. 720.) Schwartz admitted to fellow inmate Tammie Fitts that her friend Mr. father with a ninja sword. Hulbert had killed her (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. Pre-trial, (Trial Tr. 722-23.) on June 28, 2002, the Commonwealth filed a motion seeking a ruling on the admissibility of Mr. Hulbert's written confession. that counsel filed a 12-page, The state habeas court noted "very detailed" and "scholarly" memorandum opposing the Commonwealth's use of Mr. Hulbert's written confession. 83, 86.) (Tr. Mar. 14, 2008 at 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. Virginia1, 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 1 Lilly v. Virginia, 527 U.S. 116 (1999) the confrontation clause of the 6th Amendment, but there was no objection to the admission of the written confession. (Id.) admitted at trial. Mr. Hulbert's written confession was (Jd.) 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. (Tr. Hr'g Jul. 24, 2002 at 14.) Schwartz. Defense counsel sought to demonstrate Mr. Hulbert's actions as those of a psychotic individual throughout the trial. 800, 801-43, 842-49.) (Trial Tr. 193-96, 775- 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. 974, 980-83, 990-92.) On February 19, {Trial Tr. 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. App. Apr. Schwartz v. 19, 2005.) Johnson, No. 051072 Schwartz (Va. Oct. Court (1) (Va. Ct. 6, 2005. 2005.) Schwartz v. On October 6, Johnson, 2006, Ms. for Loudoun County challenging her conviction two grounds. 6, 0577-03-4 filed a petition for a writ of habeas corpus in the Circuit (Oct. No. The Virginia Supreme Court denied Ms. Schwartz's appeal on October 6, R. R. 2005.) Schwartz v. Specifically, Ms. Johnson, R. No. 42813 Schwartz alleged that: 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 admission into evidence Mr. to the 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 hearing was held. 14, At 2008, a habeas corpus motions the conclusion of the hearing, the court ruled that the habeas petition should be denied. order of dismissal was entered April 23, 2008. Schwartz appealed to the Virginia Supreme Court, The Ms. which denied the petition for appeal by order dated November 3, 2008. Schwartz v. Johnson, R. No. 081416 (Va. Nov. 3, 2008.) II. A. DISCUSSION Standard of Review When a state court has addressed the merits of a claim raised in a federal habeas petition, a federal court may not grant the petition based on the claim unless the state court's adjudication is contrary to, application of, or an unreasonable clearly established federal law, or is based on an unreasonable determination of the facts. U.S.C. § 2254(d). 28 The evaluation of whether a state court decision is "contrary to" or "an unreasonable application of" federal law is based on an independent review of each standard. (2000). See Williams v. Taylor, 529 U.S. 362, 412-13 A state court determination runs afoul of the "contrary to" standard if it "arrives at a conclusion opposite to that reached by [the United States Supreme] Court on a question of law or if the state court decides a case differently than [the United States Supreme] Court has on a set of materially indistinguishable facts." Id. 413. Under the "unreasonable application" clause, at the writ should be granted if the federal court finds that the state court "identifies the correct governing legal principle 10 from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. Importantly, is an objective one. B. Id. this standard of reasonableness at 410. Analysis As a general rule, a petitioner must first exhaust her claims in state court because exhaustion is a matter of comity to the state courts; failure to exhaust requires dismissal from federal court so that the petitioner may present claims to the state courts. 2254(b); v. Lundy, Granberry v. 455 U.S. Greer, 509, exhaustion requirement, See 28 U.S.C. 481 U.S. 515-19 129, (1982). 134 § (1987); Rose To comply with the a state prisoner "must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." v. Boerckel, 526 U.S. 838, 845 (1999). Thus, 0'Sullivan petitioner must present the same factual and legal claims raised in the instant petition to the Supreme Court of Virginia either by way of (1) corpus petition, or a direct appeal, (3) (2) a state habeas an appeal from a circuit court's denial of a state habeas petition. Ms. Schwartz has exhausted her remedies in state court on all issues presented herein by presenting the same issues in the state 11 habeas case filed in the Loudoun County Circuit Court and appealed to the Virginia Supreme Court. This petition is timely filed pursuant to 28 U.S.C. 2254. § Ms. Schwartz's direct appeal to the Virginia Supreme Court concluded on October 6, 2005. Ms. Schwartz had ninety days from that date to seek review on direct appeal to the United States Supreme Court, and those ninety days would not toll against the federal one-year statute to bring the § 2254 petition. F.3d 325, 328 {4th Cir, See Harris v. 2000). Hutchinson, On October 6, 2006, 209 the state habeas petition was filed in the Loudoun County Circuit Court, which is one year from the date the direct appeal concluded in the Virginia Supreme Court. Ms. Schwartz's state habeas case was pending until the Virginia Supreme Court denied the habeas corpus appeal by order dated November 3, 2008. Ms. Schwartz filed her petition for writ of habeas corpus on February 2, from November 3, 2008. 2009, ninety days This petition is therefore timely filed and is the only motion for this petition in federal court. The foregoing determination which was the last reasoned sate court decision, Court of Virginia, explanation. is imputed to the Supreme which refused further appeal without See Ylst v. Nunnemaker, 12 501 U.S. 797 (1991). The Court finds that both of Ms. Schwartz's claims of ineffective assistance of trial counsel, failure to timely and properly object to the introduction into evidence Mr. Hulbert's written confession and other inculpatory statements {Claim A) and failure to request jury instructions on the lesser included offenses of second degree murder and manslaughter and failed to argue alternative defenses (claim B), should be dismissed. The Virginia Circuit Court of Loudoun County's dismissal of Ms. Schwartz's claims was neither contrary to, nor an unreasonable application of Strickland nor was it based on an unreasonable determination of facts. The Virginia Circuit Court of Loudoun County did not apply federal law unreasonably because challenging defense counsel's tactical decisions is not a basis to grant habeas corpus under Tompa v. Virginia2. To establish ineffective assistance of counsel, petitioner must show (l) deficient" and (2) that "counsel's performance was "that the deficient performance prejudiced the defendant." Strickland v. U.S. 668, 687 was deficient, a (1984). Washington, 466 To prove that counsel's performance a petitioner must show that "counsel's 2Tompa v. Virginia, 331 F.2d 552 (4th Cir. 1964) 13 representation fell below an objective standard of reasonableness." Id. at 688. Thus, a petitioner must prove that the "acts and omissions" of counsel were, light of all the circumstances, in "outside the range of professionally competent assistance." Id. at 690. Such a determination "must be highly deferential," with a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Furthermore, id. at 689. even if counsel committed some error, including a "professionally unreasonable" error, the judgment may only be set aside if the error had an actual effect on the judgment. Id. at 691. Thus, for a court to find counsel's performance constituted ineffective assistance, "any deficiencies in counsel's performance must be prejudicial to the defense " Id. at 692. It is not enough for a petitioner "to show that the errors had some conceivable effect on the outcome of the proceeding." at 693. Rather, a petitioner reasonable probability that, Jd. "must show that there is a but for counsel's unprofessional errors, the result of the proceeding would have been different." Jd. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome". Id. 14 Ultimately, "failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." Id. successful petition must show both, 233 (4th Cir. 1994). A as they are "separate and distinct elements" of the claim. F.3d 229, at 700. Spencer v. Murray, Moreover, 18 a court does not need to review the reasonableness of counsel's performance if a petitioner fails to show prejudice. Taylor, i. 162 F.3d 273, 278 (4th Cir. Quesinberry v. 1998). Claim A Ms. Schwartz writ for petition of habeas corpus based upon the argument of ineffective assistance of counsel because trial counsel failed to timely and properly object to the introduction into evidence Mr. Hulbert's written confession and other inculpatory statements is denied because the action complained of constitute legitimate trial tactics by defense counsel. F.2d 552, 554 (4th Cir. 1964). Tompa v. In Claim A, Virginia, Ms. 331 Schwartz argues that trial counsel was ineffective because counsel failed to timely and properly object to the introduction of Mr. Hulbert's written confession and other inculpatory statements into evidence. Specifically, Mr. (F. Habeas Pet. the statements in Ms. Hulbert said, Inglis' "I ran him through." 15 12-13.) testimony that (Trial Tr. 345.) "You're father is dead, and I did it." {Trial Tr. 351.) In addition, all other statements made by Ms. Schwartz as to what Mr. Hulbert said. Ms. Schwartz claims hinges on the fact that defense counsel could have objected to the inclusion of Mr. Hulbert's confession under Lilly v. Virginia. Lilly, 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. 116, 139-140 (1999). Ms. Lilly v. Virginia, 527 U.S. Schwartz alleges that without the written confession and other inculpatory statements, the jury would have had a much more difficult time convicting Ms. Schwartz as an accessory or co-conspirator. Pet 14.) Ms. (F. Habeas Schwartz further argues that counsel's decision to stipulate to the inclusion of the confession was unreasonable because the only portions of the confession used by the defense were the apology to Ms. Schwartz and the statement that one day Mr. Hulbert hoped that Ms. Schwartz would see the logic in what he did. at (Id. 15.) The Circuit Court of Loudoun County held that this claim satisfied neither the performance nor the prejudice 16 prong of the Strickland test, because Ms. Schwartz's withdrawal of the objection to the admission of Mr. Hulbert's confession, "assisted in showing... state of his mental state was [sic] , what the as the defendant wanted to challenge Mr. Hulbert's ability to understand and process what the defendant was, Schwartz v. Mar. 14, Johnson, 2008) . Rec. No. in essence, saying." 081416 at 87-88 {Va. Cir. Ct. The circuit court determined that this was clearly a trial strategy as evidenced by the 12-page briefing by defense counsel on the exclusion of the written confession. This memorandum demonstrates that counsel weighed the consequences of the admission of Mr. Hulbert's unredacted confession and made a strategic choice for its inclusion to further support their defense. court concluded that Mr. The circuit Hulbert's written confession was a strategy adopted by the defense to further their argument that Mr. Hulbert was a psychotic individual who acted unilaterally in killing Dr. Schwartz and that Ms. Schwartz did not urge Mr. Hulbert to kill her father or participate in the murder. Schwartz v. Johnson, R. No. 081416 at 87. This is evidenced by the fact that defense argued for jury instruction 14A that stated, doubt that Mr. if the jury had a reasonable Hulbert had the "mental capacity to understand the nature and consequences of any agreement to 17 commit a crime at the time of the agreement," the jury must acquit Ms. Schwartz of the conspiracy. portions of the confession, The defense used such as where Mr. Hulbert describes visions of killing Dr. Schwartz; where he lost control when he got Dr. Schwartz blood in his mouth; and that he heard voices; to further demonstrate that Mr. Hulbert lacked the mental capacity to understand the consequences of his crime. (Mr. Hulbert Confession 2, 5, 7.) Furthermore, the Circuit Court concluded that even « without the written confession, prejudice prong... "with respect to the there is adequate evidence of record, that it could have led a reasonable jury to conclude that Mr. Hulbert was the perpetrator." Id. This is evidenced by the testimony of witnesses stating that Mr. Hulbert told them , WI ran him through." father is dead, (Trial Tr. and I did it." 345.) {Trial Tr. "You're 351.)." in addition the sword found on Mr. Hulbert's person at the time of his arrest was consistent with the wounds inflicted upon Dr. Schwartz. Such a determination is not contrary to nor an unreasonable application of Strickland. Thus, Claim A of the instant petition is denied because under Tompa mistakes in judgment or trial tactics of defense counsel do 18 not deprive the accused of a constitutional right and do not entitle that person to a writ of habeas corpus. ii. Claim B Ms. Schwartz writ for petition of habeas corpus upon the argument of ineffective assistance of counsel because her trial counsel failed to request jury instructions on the lesser included offenses of second degree murder and manslaughter and failed to argue alternative defenses is denied. Arguments based upon mistakes in trial tactics by- defense counsel do not deprive defendant of a constitutional right and do not entitle her to a writ of habeas corpus. Tompa 331 F.2d at 554. In Claim B, Ms. {See supra at 14.) Schwartz alleges that trial counsel was ineffective because counsel failed to request a jury instruction for lesser included offenses, including second degree murder and manslaughter, and for failing to argue that Mr. Hulbert's claimed details of the events cast doubt on the conspiracy and solicitation charges that defense counsel could have used to cast doubt on those charges. (F. Habeas Pet. 18-19.) Ms. Schwartz argues that there is a reasonable probability that the jury would have found her guilty of lesser included offenses of first degree murder had the jury instructions been provided. (Id. at 19.) The Virginia Circuit Court of Loudoun County dismissed 19 Ms. Schwartz claim, finding that it did not satisfy the performance prong of Strickland and declined to reach the prejudice prong because the circuit court concluded that it was reasonable trial strategy not to confuse the jurors with alternative conflicting defenses. 081416 at 89-91 (Va. Cir. Ct. Mar. 14, Schwartz, Rec. No. 2008). The state habeas court concluded that the trial strategy of Ms. Schwartz was that Mr. Hulbert committed the murder on his own, due to his misunderstanding of what Ms. Schwartz asked him to do and because of his own unilateral psychotic actions. Schwartz v. Johnson, R. No. 081416 at 87. The court found that by presenting the jury with instructions on lesser included offenses, it would undermine the defense's strategy by in effect saying that, Schwartz] ttShe [Ms. had nothing to do with the murder... but if you don't believe that then she really only agreed that he [Mr. Hulbert] would go over there and confront." Id. The court concluded that certain portions of the lesser included offenses would be inconsistent with Ms. Schwartz's defense and therefore counsel's decision not to argue for jury instructions on the lesser included offenses of second degree murder and manslaughter does not show a lack of performance that meets the Strickland test. Id. Thus, Claim B of the instant petition is denied because under 20 Tompa mistakes in judgment or trial tactics of defense counsel do not deprive the accused of a constitutional right and do not entitle that person to a writ of habeas corpus. 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 County to give rise to a writ of petition of habeas corpus in this Court. 21 For the foregoing reasons, ORDERED that the it is hereby 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 to this Order counsel. Entered this pf** of August, 2009 Gerald Bruce Lee United States District Judge Alexandria, Virginia 8/ y /09 22
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