Schwartz v. Johnson

Filing 7

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)

;·«· FILED
IN THE
FOR THE

UNITED

STATES

DISTRICT
OF

COURT

EASTERN

DISTRICT

VIRGINIA

AU6 - 3 2009
<
CLLr.K, US D'°-TRiCT C.r-: ,,

ALEXANDRIA DIVISION

Clara Jane Schwartz,
Petitioner,

)
)

^i^M»<, v»;,n;» ·.

l:09cv98
Gene M. Johnson, Respondent. ) )

(GBL/JFA)

Memorandum Opinion and, Order

THIS MATTER Jane Schwartz's
Prisoner This case

is

before

the

Court

on

Petitioner Clara for
2254.

Petition

for Writ

of Habeas Corpus
to 28 U.S.C. Ms. §

in State concerns in

Custody, the

pursuant

constitutionality of Court

Schwartz's

conviction

the Virginia Circuit

for Loudoun County

for murder,

conspiracy to commit murder, the murder of her
before her the Court

and two counts father, Dr.

of

solicitation to commit
Schwartz. Schwartz The was issues

Robert

are

whether Ms. right to

deprived of

6th Amendment

effective assistance defense counsel's: to the introduction 1)

of

counsel

at

trial

based on her

failure

to timely and properly object Hulbert's written
(claim A); and

into evidence of Mr.
inculpatory

confession and other

statements

2)

failure

to

request
of

jury

instructions

on the

lesser

included offenses

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 conspiracy,

the Circuit Court of Loudoun County of murder,

and two counts of

solicitation to commit murder and
imprisonment
Madison

sentenced to forty-eight years of
In 2001, Ms.

Schwartz attended James

University as a sophomore.

(Trial Tr.

224.) Dr.

Ms.

Schwartz

lived in Loudoun County with her father,

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,
father tried to poison her,

Dr.

Schwartz,

told her that her

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
(Trial Tr.
714.)

of thousands of dollars upon his death.
306-08, 2001, 313, 333, 421, 424 430, 498, 553,

224,

In August

Ms.

Schwartz began dating Mr. to Mr.

House,

and made

statements her father.

House about her desire 311, 322, 417-18,

for him to kill 427-30.) Ms.

(Trial Tr.

Schwartz gave Mr.

House a book containing information about chronicling the
(Trial and

poisoning and her collection of journals
abuse Tr.

she endured from her father over the years. 427.) Mr. House testified that Ms.

421,

Schwartz

he had multiple conversations about when he would kill Ms.

Schwartz's

father.

(Trial Tr.
Ms.

430-32.)
Mr. House, Ms.

In September 2001,

Schwartz,

Inglis,

and Mr.

Michael

Pfohl met Mr.

Kyle Hulbert at a
322-23.) Mr.

Renaissance

Fair in Maryland.

(Trial Tr.

Hulbert was costume. became

carrying a two-foot sword and dressed in a cat 323.) Ms. Schwartz and her friends Ms. Schwartz told Mr.

(Trial Tr.

friends with Mr.

Hulbert.

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

sure

she never came back.

(Trial Tr.

288.)
Ms. Inglis, and Mr.

In November 2001 Mr.

Hulbert,

Pfohl visited Ms.

Schwartz at college where she further

told them how her father abused and poisoned her.
Tr. 332-33.) Ms. Schwartz showed Mr.

{Trial

Hulbert her journals, (Trial Tr.

picking out specific pages for him to read.

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,
313, 424-27.)

but that her father opposed it.

(Trial Tr.
Ms.

At the end of the weekend visit,

Schwartz said to Ms.

Inglis,

"maybe he

[Mr.

Hulbert]

can

help me with my father," and commented that,
died while she was in college,

if her father

she would take a semester

off.

(Trial Tr.

350.) Mr. Hulbert and Ms. Schwartz began

After that visit,

to exchange instant messages and to speak on the telephone

almost daily.
Ms.

(Trial Tr.

710.)

Ms.

Schwartz arranged for

Inglis to drop off Mr.

Hulbert to camp out in the woods

surrounding the Schwartz weekend in 2001.

family home during Thanksgiving 338.) The next day, Mr.

(Trial Tr.

Hulbert visited the Schwartz's residence and introduced

himself to Dr. Schwartz.

Schwartz and Ms. Schwartz sister Michelle 227.) Mr. Hulbert wore a long black

{Trial Tr.

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.) On December 7, 2001, Mr.

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
(Trial Tr. 680-81.) When Mr. Hulbert returned

the sword.

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
Hulbert, Mr.

investigator Locke with information about 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. detailing Dr.

Schwartz had prepared (Trial Tr.

Schwartz's alleged abuse of her.

204-05 299,

303,

Commonwealth Ex.

35.)

Authorities found
Inglis and Mr.
2001, Ms. Hulbert was

Mr. Hulbert's sword at the home of Ms.
Pfohl. {Trial Tr. 293-94.)

On December 12,

Schwartz told investigators that she knew Mr.

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.
632-33, 641.) On February 1, 2002,

(Trial Tr.
Ms.

504-05,

628,

Schwartz was

arrested for the murder of Dr. Schwartz.
After her arrest, Ms.

(Trial Tr. 720.)

Schwartz admitted to fellow inmate

Tammie Fitts that her friend Mr.
father with a ninja sword.

Hulbert had killed her
720-22.) Ms.

(Trial Tr.

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.) 2002, the Commonwealth filed a

on June 28,

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. (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. 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.)

Mr. Hulbert's written confession was
(Jd.) At a hearing on July 24, 2002,

admitted at trial.

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.
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.

Schwartz v.

Johnson,

R.

No.

0577-03-4

(Va.

Ct.

App.

Apr.

19,

2005.)

The Virginia Supreme Court denied Ms.
2005. Schwartz v. Johnson,

Schwartz's appeal on October 6,

R.

No.

051072

(Va.

Oct.

6,

2005.)

On October 6,

2006,

Ms.

Schwartz

filed a petition for a writ of habeas corpus in
Court for Loudoun County challenging her

the Circuit

conviction two grounds.
(Oct. 6, 2005.)

Schwartz v.
Ms.

Johnson,

R.

No.

42813

Specifically,

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.
order of dismissal was entered April 23, 2008. Ms.

The

Schwartz appealed to the Virginia Supreme Court,

which

denied the petition for appeal by order dated November 3,

2008.
2008.)

Schwartz v.

Johnson,

R. No.

081416

(Va. Nov. 3,

II.

DISCUSSION

A.

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, or an unreasonable

application of,

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. See Williams v. Taylor, 529 U.S. 362, 412-13

(2000).

A state court determination runs afoul of the
standard if it "arrives at a conclusion

"contrary to"

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]
on a set of materially indistinguishable facts." 413. Under the "unreasonable application" clause,

Court has
Id. 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,
Id.

this standard of reasonableness
at 410.

is an objective one.
B. 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. See 28 U.S.C. §

2254(b);
v. Lundy,

Granberry v.
455 U.S.

Greer,

481 U.S.
(1982).

129,

134

(1987); Rose

509,

515-19

To comply with the

exhaustion requirement,

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
corpus petition,

(1)
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
2005. Ms. Schwartz had

Court concluded on October 6,

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.

Hutchinson,
2006,

209

2000).

On October 6,

the

state habeas petition was filed in the Loudoun County

Circuit Court,

which is one year from the date the direct
Ms.

appeal concluded in the Virginia Supreme Court.

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 2009, ninety days

for writ of habeas corpus on February 2, from November 3, 2008.

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, is imputed to the Supreme

Court of Virginia,

which refused further appeal without

explanation.

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, a

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,

Washington, 466

(1984).

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,

in

light of all the circumstances,

"outside the range of
Id. at 690. Such a

professionally competent assistance."

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
" Id. at 692. It is not

be prejudicial to the defense

enough for a petitioner "to show that the errors had some

conceivable effect on the outcome of the proceeding."
at 693. Rather, a petitioner

Jd.

"must show that there is a

reasonable probability that,

but for counsel's

unprofessional errors, have been different."

the result of the proceeding would 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." successful petition must show both, Id. at 700. A

as they are "separate

and distinct elements" of the claim.
F.3d 229, 233 (4th Cir. 1994).

Spencer v. Murray,

18

Moreover,

a court does not

need to review the reasonableness of counsel's performance

if a petitioner fails to show prejudice.
Taylor,
i.

Quesinberry v.

162

F.3d 273,

278

(4th Cir.

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.

Virginia,
Ms.

331

In Claim A,

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
(F. Habeas Pet. 12-13.)

statements into evidence.

Specifically,
Mr.

the statements in Ms.

Inglis'

testimony that
345.)

Hulbert said,

"I ran him through."
15

(Trial Tr.

"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. (F. Habeas

Pet 14.)

Ms.

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 15.)

(Id.

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...
[sic] ,

what the

state of his mental state was

as the defendant

wanted to challenge Mr. Hulbert's ability to understand and
process what the defendant was, Schwartz v. Mar. 14, Johnson, Rec. No. in essence, saying." {Va. Cir. Ct.

081416 at 87-88

2008) .

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
Hulbert's

weighed the consequences of the admission of Mr.

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.
7.)

(Mr. Hulbert Confession 2,

5,

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." (Trial Tr. 345.) "You're
in

father is dead,

and I did it."

{Trial Tr.

351.)."

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
Thus, Claim

nor an unreasonable application of Strickland.

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. {See supra at 14.)

In Claim B, Ms.

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,

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
to counsel.

this Order

Entered this

pf** of August,

2009

Gerald Bruce Lee

United States District Judge

Alexandria,

Virginia

8/ y /09

22