Forman v. Clarke

DONALD RAY FORMAN, Petitioner, v. HAROLD CLARKE, Director,

Civil Action No. 7:21cv00148

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

March 1, 2022

MEMORANDUM OPINION

Elizabeth K. Dillon United States District Judge

Donald Ray Forman, a Virginia inmate proceeding pro se, has filed a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the judgment of convictions against him entered by the Russell County Circuit Court on December 28, 2016. The respondent has filed a motion to dismiss, and Forman has responded, making this matter ripe for disposition. After careful review of Forman's claims the court concludes that the state court's decision on each of the claims was neither contrary to, nor an unreasonable application of, clearly established federal law. The court further concludes that the state court's decision was not based on an unreasonable determination of the facts. For these reasons, explained more fully below, the court will grant the motion to dismiss.

I. BACKGROUND

On November 9, 2015, a grand jury for the Russell County Circuit Court indicted Forman for one count of sexual intercourse with a child under age 13 (rape) in violation of Virginia Code § 18.2-61(A)(iii), three counts of forcible rape in violation of Virginia Code § 18.2-61(A)(1), eight counts of carnal knowledge of a minor in violation of Virginia Code § 18.2-63, two counts of indecent liberties with a minor in violation of Virginia Code § 18.2-370, and 27 counts of using a communication device to propose a sex act to a child known to be under age 15 by one who is at least seven years older in violation of Virginia Code § 18.2-374.3. Forman was arrested and held without bond. Over the next year, according to the Virginia Courts Case Information System online, Forman's case was scheduled for a jury trial four different times, each continued until the fourth time, December 12, 2016.

On December 12, 2016, the trial judge asked the parties if they were prepared to begin trial. When all counsel stated yes, the judge identified each charge for Forman and asked how he wished to plead. Forman stated that he was pleading not guilty. The judge engaged in the standard colloquy with Forman to ensure that his plea was knowing and voluntary. Forman stated that he understood the charges against him, had met with his attorney several times, knew what the government had to prove, that he was satisfied with his attorney, and that it was his choice to plead not guilty. (Hr'g. Tr., 5-11, Dec. 12, 2016.)

After a break, the parties informed the court that Forman wished to change his plea because an agreement had been reached. The judge went over questions again to be sure that Forman's choice was knowing and voluntary. (Id. at 13-18.) Forman acknowledged that a guilty plea meant he was waiving his right to the jury trial and waiving the right to confront and cross-examine the witnesses against him. When asked if he understood that he could not appeal the court's decision, Forman asked “Can't appeal?” (Id. at 15.) The court explained that he could not appeal a guilty verdict, except on very limited jurisdictional grounds. The judge also told him that even though he could appeal his sentence, if the sentence was within the guideline range, the Court of Appeals was not going to change anything. He then asked if Forman still wanted to change his plea to guilty, and Forman said, “Yeah.” (Id.) Finally, the court asked Forman to explain why he wanted to change his plea. Forman answered that he decided to plead guilty because, under the agreement, “the charges have been amended so there is no mandatory time. . . . there's some minimum like five to . . . five to life, but none of that is mandatory.” (Id. at 16.)

Under the plea agreement, the Commonwealth agreed to amend all 27 indictments for using a communication device to propose a sex act to a child known to be under age 15 by eliminating the language “while being a person that is at least seven (7) years older than the child.” (Id.) This removed the mandatory five-year minimum sentence on each of those charges. Forman agreed to plead guilty to the 27 amended charges and to three of the carnal knowledge charges. All remaining charges (four counts of rape, two counts of indecent liberties with a minor, and five counts of carnal knowledge) would be dropped. The written plea agreement is part of the Circuit Court's criminal record. (CCCR^[1] at 350-355.) The parties did not enter an agreement on sentencing, leaving that to the court.

After the plea colloquy, the Commonwealth's Attorney proffered the evidence that the state would have introduced if the matter had gone to trial:

[T]he victim in this case, [D.P.T.], was living with her grandmother . . . in . . . Russell County. [Grandmother] has been dating Mr. Foreman (sic) for approximately a decade or so. [DTP] would testify that she can't remember a time when Mr. Foreman (sic) wasn't a part of her life. Her grandmother got custody of her at age ten (10) and she went to live with her grandmother full-time. She would testify that at age ten (10) the relationship between she and Mr. Foreman (sic) changed from that of a grandfather type figure to one where he started making inappropriate sexual comments toward her and started touching her and had sex with her first at the age of ten (10), and that continued until she was thirteen (13) years old and told at Lebanon High School, when she was in eighth grade, and that would have been in September of 2015. When Detective Rhea, with the Sheriff's Office, and the D.S.S. worker interviewed the victim in this case, she showed them a number of text messages and Facebook Messenger messages containing sexual content. She would say that all of these events did occur in Russell County, that she was between the ages of ten(10) and thirteen (13) when they occurred, and that, I think, when they ended, Mr. Foreman (sic) was forty-seven (47) years old.

(Hr'g. Tr. at 19-20, Dec. 12, 2016.) The Commonwealth also wished for sentencing to proceed the same day because the victim was already in court and because they did not want her to have to return another time to testify at sentencing. (Id. at 18.) The trial court accepted the plea, then released the jury, before starting the sentencing hearing. (Id. at 20.)

DPT testified at the sentencing hearing, consistent with the Commonwealth's proffer. She identified a 73-page packet that included pictures of her grandmother's home and copies of several text messages (including a text with a photo of Forman's penis) and Facebook Messenger messages containing suggestive, lewd comments and requests for specific sexual acts. Forman's messages offered cash, phone cards, and other privileges if she would agree, and threatened to stop allowing her to see her boyfriend or go to football games if she refused. DPT's text responses to Forman's texts made it abundantly clear that she did not want to participate in sexual activities with Forman. DPT also testified that she had been cutting herself as a way of coping with the trauma of Forman's behavior. (Id. at 22-43.) Her therapeutic foster mother also testified about the effect of Forman's abuse on DPT's life, including self-mutilating, anger, guilt, and trust issues. (Id. at 44-45.) Investigator Rhea with the Russell County Sheriff's Office testified about her investigation of the case, including a tape-recorded interview with Forman (played for the court) in which Forman essentially blamed DPT for anything that had occurred. (Id. at 45-49.)

After hearing all the evidence, the court sentenced Forman to 50 years, with ten suspended. On December 15, he clarified the sentence to comply with statutory requirements that precluded running the carnal knowledge sentences concurrently and imposed ten years on each carnal knowledge charge, with two years suspended on each, to run consecutively. On two of the communication device charges, he also imposed a sentence of ten years with two years suspended on each, to run consecutively. On the remaining 25 communication device charges, he imposed concurrent ten-year sentences, to run concurrently with the other communication device sentences. The total sentence remained 50 years, with 10 suspended and 40 to serve. (CCR at 356-360, 384-385.)

Forman appealed the court's decision, alleging that: (1) his plea was not knowing and voluntary, (2) the trial court exceeded the sentencing guidelines, (3) the trial court accepted perjured testimony, and (4) ineffective assistance of counsel; by supplemental pro se petition, Forman added additional issues: (5) the transcript had factual errors, and (6) counsel denied him the opportunity to present a defense. The Court of Appeals found no error and denied the appeal. Forman v. Commonwealth, No. 0113-17-3 (Va. Ct. App. op. entered Jan. 26, 2018). Forman did not appeal to the Supreme Court of Virginia.

On June 30, 2018, Forman filed a petition for a writ of habeas corpus in the Circuit Court for Russell County, raising the following claims of ineffective assistance of counsel:

(1) Counsel failed to investigate the case;

(2) Counsel failed to investigate Forman's mental health history and to request a competency hearing;

(3) Counsel failed to investigate Forman's medical history, to request a physical examination of the victim, and to call a medical expert on child sex abuse;

(4) Counsel did not advise Forman that he could not waive his rights to a Presentence Investigation Report under Virginia Code § 19.2-299(iii); and (5) Because counsel failed to request a competency hearing, Forman's plea was involuntarily, unknowingly, and unintelligently made.

The trial court dismissed the habeas petition, finding that Forman was bound by his...