Schmitt v. True, Civ.A.3:02 CV 953.

• Decision Date: 15 September 2005
• Docket Number: No. Civ.A.3:02 CV 953.,Civ.A.3:02 CV 953.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: John Yancey SCHMITT, Petitioner, v. William Page TRUE, Warden, Sussex I State Prison, Respondent.

387 F.Supp.2d 622

John Yancey SCHMITT, Petitioner, v. William Page TRUE, Warden, Sussex I State Prison, Respondent.

No. Civ.A.3:02 CV 953.

United States District Court, E.D. Virginia, Richmond Division.

September 15, 2005.

COPYRIGHT MATERIAL OMITTED

Barbara L. Hartung, Richmond, VA, David James Sensenig, Dana Johannes Finberg, Leclair Ryan PC, Richmond, VA, for Petitioner.

Robert Quentin Harris, Office of the Attorney General, Richmond, VA, for Respondent.

Warren Von Schuch, Office of the Commonwealth's Attorney, Chesterfield, VA, for Interested Party.

MEMORANDUM OPINION

PAYNE, District Judge.

Pursuant to 28 U.S.C. § 2254, John Yancey Schmitt, a Virginia state prisoner who has been sentenced to death, filed a petition for a writ of habeas corpus challenging his conviction in the Circuit Court for the County of Chesterfield for capital murder and the ensuing death sentence. In a Memorandum Opinion (Docket No. 80) issued on January 21, 2005, all of Schmitt's claims for habeas relief were rejected except for the following claims:

XIV. Trial counsel was ineffective when he failed to object in a timely manner to the admission of the tape recording of a jailhouse telephone call between Schmitt and Clifford Sauer.

XV. Defense counsel was ineffective when he failed to move for a mistrial based on prosecutorial misconduct at the proper time.

XVI. Defense counsel's performance was prejudicial.

XX. The admission of the taped jailhouse phone call between Schmitt and Sauer, acting as a government agent, during the penalty phase violated Schmitt's Fifth and Sixth Amendment rights.

XXI. Prosecutorial misconduct during the penalty summation deprived Schmitt of due process and a fair trial and the trial court erred when denying curative instructions and a mistrial.

Nor has the Court ruled on Schmitt's March 3, 2004 motion to amend his petition to include the following Claim:

XXIV. The prosecutor withheld impeachment materials in violation of Brady v. Maryland, and Schmitt's rights to due process of law under the Fifth and Fourteenth Amendments.

In one way or another and to varying degrees, the resolution of Claims XIV and XX affect the resolution of Claims XV, XVI, XXI as well as the proffered amendment. After discovery, an evidentiary hearing was held on Claims XIV and XX. For the reasons stated below, Schmitt is not entitled to relief on Claims XIV and XX and the motion to amend to add Claim XXIV is denied.¹

I. THE APPLICABLE SUBSTANTIVE AND PROCEDURAL CONSTRAINTS UPON FEDERAL HABEAS CORPUS REVIEW

This Court's warrant to grant relief by way of a writ of habeas corpus is circumscribed by 28 U.S.C. §§ 2254(d) and 2254(e)(1). Under Section 2254(e)(1), "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). Schmitt bears "the burden of rebutting the presumption of correctness by clear and convincing evidence." Id. Under 28 U.S.C. § 2254(d), a federal court may not grant a writ of habeas corpus based on any claim that was adjudicated on the merits in state court unless the adjudicated claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that 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). The Supreme Court has emphasized that this standard places an additional hurdle before federal habeas petitioners who now must demonstrate not only that the state court's decision was erroneous or incorrect, but also that it was unreasonable. See Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

Claims for federal habeas relief that have not been adjudicated in the state courts do not fall within the compass of 28 U.S.C. § 2254(d) and are not subject to the restrictions of that statute. See Monroe v. Angelone, 323 F.3d 286, 297-98 (4th Cir.2003). Schmitt suggests that 28 U.S.C. § 2254(d) does not apply to Claim XIV because the claim "was not fully developed in state court." Schmitt's Reply to Mot. for Summ. J. at 4 (citing Williams v. Taylor, 529 U.S. 420, 442-43, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000)). Neither the decision in Williams nor the language of Section 2254(d) indicate that the strictures of the statute are inapplicable simply because the record was not fully developed in state court. Quite to the contrary, where the claim has been adjudicated on the merits by the state courts, the restrictions of 28 U.S.C. § 2254(d)(1) continue to apply even when a federal habeas court conducts a full evidentiary hearing on the claim. See Reid v. True, 349 F.3d 788, 799 (4th Cir.), cert. denied, 540 U.S. 1097, 124 S.Ct. 979, 157 L.Ed.2d 810 (2003); Cf. Bell v. Jarvis, 236 F.3d 149, 160 (4th Cir.2000) (en banc) (overruling the holding of Cardwell v. Greene, 152 F.3d 331 (4th Cir.1998) that the level of review turns on the depth of the state court's analysis). Accordingly, the additional evidence that the parties have submitted is relevant to the reasonableness of the state court's adjudication, but it does not alter the standard of federal review. See Matheney v. Anderson, 377 F.3d 740, 747 (7th Cir.2004), cert. denied, ___ U.S. ___, 125 S.Ct. 2252, 161 L.Ed.2d 1063 (2005); Valdez v. Cockrell, 274 F.3d 941, 954 (5th Cir.2001).

The Supreme Court has explained that "[a] state court's decision is `contrary to' our clearly established law if it `applies a rule that contradicts the governing law set forth in our cases' or if it `confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.'" Mitchell v. Esparza, 540 U.S. 12, 15-16, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-406, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). The Supreme Court also has made clear that a federal habeas court "may grant relief under the `unreasonable application' clause [of Section 2254(d)] if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case." Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). Furthermore, the jurisprudence of the Supreme Court of the United States is the sole source for judging the reasonableness of a particular decision. See Bell v. Jarvis, 236 F.3d 149, 162 (4th Cir.2000) (en banc). With these parameters in mind, Schmitt's claims will be examined.

II. FINDINGS OF FACT FOR CLAIMS XIV AND XX²

1. On January 19, 1999, Schmitt and an associate, while armed with a shotgun, robbed the NationsBank in BonAir, Virginia (hereinafter "the Bank").

2. Clifford Sauer, a roofer, previously had employed Schmitt and they had become social friends as well. EH at 14-15. After the January 19, 1999 bank robbery, Schmitt contacted Sauer for his assistance in purchasing a car. EH at 18-19. Sauer brokered the deal for the car and received a fee from Schmitt for his assistance. EH at 51-52. At the time of the transaction, Sauer did not know that Schmitt had robbed a bank. EH 51-52.

3. However, later Sauer became suspicious of Schmitt's spending habits. JA at 1344. After some prodding, Schmitt told Sauer that he had robbed a bank. JA at 1344. Schmitt tried to purchase a gun from Sauer. JA at 1345. Sauer refused. JA at 1346. Schmitt asked Sauer if he wanted to drive for another bank robbery. JA at 1345. Sauer declined. JA at 1345. Schmitt told Sauer that if, "you breathe one word of this to anyone ... I'm going to have to kill you or my friends will have to kill you." Resp. Ex. 4 at 28.

4. On January 30, 1999, Schmitt was arrested for obstruction of justice. JA at 1234. Schmitt told the police that his name was James Comer. JA at 1234. A few hours later, Sauer received a telephone call from an employee of the Henrico County Jail. JA at 1347. The employee asked Sauer whether he knew James Comer. JA at 1347. Sauer responded in the affirmative. JA at 1347. The next voice Sauer heard was that of Schmitt, who told Sauer to contact Kenny Lockner, collect some money, and take it to the Henrico County Jail to bail out James Comer. JA at 1347. After the bail was provided, Schmitt was released from custody. Sauer did not realize that he was actually posting bail for Schmitt instead of Comer until he saw Schmitt walk out of the jail after the bail had been paid.

5. On Friday, February 5, 1999, several officers, including Detective William George, arrived at Sauer's residence in the City of Richmond. While George and another officer went to the front door, other officers surrounded the house. EH at 99, 134. George told Sauer that they were looking for Schmitt in connection with a bank robbery. EH at 18, 100. Sauer gave the officers permission to search his home and readily answered their questions. EH at 17, 48-49. The search lasted only about fifteen minutes. EH at 101, 129. Before leaving, George left Sauer with his card and requested permission to interview Sauer at a later date. EH at 101-102. At the time of the search, Sauer was neither threatened nor coerced. Nevertheless, Sauer was apprehensive about the repercussions of having brokered the sale of the car which Schmitt had purchased from money from the first bank robbery. EH at 18-20.

6. Sauer did not act with any criminally culpable intent in his prior dealings with Schmitt. EH Sauer Testimony. Neither the Chesterfield Police nor the Chesterfield Commonwealth's Attorney's office ever contemplated charging Sauer with a crime for his prior dealings with Schmitt.

7. On February 7, 1999, George and Detective Easton conducted an hour long interview with Sauer in Sauer's home. EH at 103. A large portion of the interview was taped and transcribed. EH at 103; Resp. Ex. 3. From the outset of the meeting, Sauer...