Lutz v. Clarke

1

JAMES ALLEN LUTZ, Petitioner, v. HAROLD W. CLARKE, DIRECTOR, Respondent.

Civil Action No. 7:21cv00272

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

March 28, 2023

MEMORANDUM OPINION

ELIZABETH K. DILLON UNITED STATES DISTRICT JUDGE

Jason Allen Lutz, a Virginia inmate proceeding pro se, has filed a petition and an amended petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the judgment entered against him by the Shenandoah County Circuit Court on February 12, 2018. The respondent has filed a motion to dismiss, and Lutz has responded, making this matter ripe for disposition. For the reasons explained below, the court will grant the motion to dismiss.

I. BACKGROUND

On September 14, 2016, a grand jury for Shenandoah County indicted Lutz on two charges of rape of a child below age 13 by a person over the age of 18, in violation of Virginia Code § 18.2-61(A)(iii), and one charge of aggravated sexual battery of a person below age 13, in violation of Virginia Code § 18.2-67.3, all occurring during May 2016. Defense counsel filed a motion to suppress allegedly involuntary statements made by Lutz to Investigator Stroop at Winchester Memorial Hospital on June 1, 2016, but the motion was denied. Hr'g Tr.^[1], 25-26, March 20, 2017. The Commonwealth filed a motion to preclude the defense from mentioning during voir dire and during the guilt phase of the trial that two charges carried mandatory life sentences, and the trial court granted that motion. Trial Tr., 40, June 16 2017. Originally scheduled for trial on June 16, 2017, insufficient venire members remained available after voir dire, and the trial court declared a mistrial. Id. at 85. The trial commenced on October 16, 2017, with a different venire panel.

After the jurors were seated and sworn, the Commonwealth presented testimony from four witnesses, starting with Investigator Stroop from the Shenandoah County Sheriff's Office. Stroop was assigned to investigate an alleged sexual assault against G.W. He received a phone call from Lutz on May 31, 2016, indicating that Lutz wanted to tell his side of the story. Stroop, upon determining that Lutz had been drinking, said he would prefer to talk to him the next morning. The next morning, June 1, Stroop received a call from Winchester Medical Center, where Lutz had gone for psychiatric treatment for suicidal ideation, advising that Lutz was there and wanted to talk to him. He went to the hospital and read Lutz his Miranda rights,^[2] which Lutz said he understood. Lutz told him that G.W. could not sleep and came into his bedroom on May 19, 2016, and he let her lay down to try to go to sleep. G.W. began cuddling up to him, and there was brief penetration until Lutz told her that they needed to stop. On May 28, 2016, she again came into the bedroom saying she could not sleep. Lutz said he got up and put clothes on, because he usually sleeps nude, and allowed G.W. to get under the covers to stay warm. He lay down on top of the covers. He said G.W. crawled out from under the covers, pulled his shorts down, got on top of him, and began “riding him.” Trial Tr., 170, Oct. 16, 2017. Although he said he told her to stop, they had sexual intercourse at that time. While she was on top of him, G.W. said that she loved him, but he did not respond verbally. He said he pulled out before he ejaculated, and ejaculated into his hand, and G.W. left the room. The recorded interview was played for the jury. Id. at 168-176.

G.W., who was 14 at the time of the trial,^[3] testified that Lutz, her stepfather, had touched her breast under her pajamas on May 5, 2016, when she was 12 years old. She said she also touched his penis and that he made her “suck his penis.” Id. at 207. She did not remember how it started, she said, because it happened so many times that she had trouble remembering details and dates. She alleged that this had been occurring four times per week for four or five months. She also said that he had sex with her, his penis penetrating her vagina, on multiple occasions. Specifically, she testified that on May 28, 2016, they had sex again, in his bed. She said Lutz ejaculated into his hand and wiped it on one of his t-shirts. She indicated that Lutz would let her watch television in the bedroom, and if she could not sleep, she often went into his bedroom to lie down. Those were the occasions when he would initiate sex with her. When she said she did not want to, he said that he would kill himself if she told anyone. For a long time, she did not tell anyone, because she was afraid that he would kill himself or hurt one of her family members, especially her mother. Even though she saw a therapist weekly, she never told the therapist because she “didn't want to tell her.” Id. at 218. Eventually, she got sick of Lutz telling her he loved her, so she told Jeremiah and her mother on May 30, 2016, which was her mother and Lutz' first anniversary. Id. at 203-218.

Jeremiah Lanham, a close friend of Lutz, had moved into the home with the family sometime in 2014 or 2015. Lanham remodeled the home, putting a bathroom downstairs that would be wheelchair accessible for Lutz' grandfather, who would be moving in. Then, Lanham stayed on at the home, living in the downstairs bedroom. He helped with the farm and with house repairs. He considered Lutz to be like a brother, someone he could rely on for anything. He also became very close to Mrs. Lutz and her three daughters. The girls would sometimes talk to him about things about which they were not comfortable talking to their parents. On May 30, 2016, Lutz' first anniversary, G.W. was upset and crying and told him that she wished her mother had never married Lutz and indicated that something had happened with Lutz. Lanham told G.W. she needed to talk to her mother. Id. at 179-182. Mrs. Lutz packed some clothes and left the house, taking the girls with her. She returned the next day with Officer Stroop, while Lutz was at work, and got some more belongings. Lutz came home several hours later and told Lanham that he woke up one morning with G.W. on top of him, and “that happened.” Id. at 183. Lutz was talking about killing himself, and Lanham told him to call Officer Stroop instead and “do the right thing.” Id. at 184.

Whitney Lutz, G.W.'s mother, testified that she had spent her first anniversary at the swimming pool with her daughters, because it was Memorial Day and everyone was home from school. Plus, she had finally gotten off night shift; from February to May, she had been working 11:00 p.m. to 7:00 a.m. When they returned home from the pool, Lutz was outside grilling meat, and she went in to start the rest of dinner. G.W. came in, crying, with Jeremiah Lanham, and Lanham said that G.W. had said something that she needed to know. Lanham did not want to talk about it with her until the next day, when Lutz would be at work, but she told him she wanted to know right now. Lanham told her that G.W. said “that she wished you all had never gotten married.” Id. at 190. Whitney looked at G.W., who said “mommy, he did stuff to me that I didn't like.” Id. Based on the defense objection to hearsay, the trial court limited her testimony to the fact that G.W. made a sexual complaint and did not allow her to go into the details of the complaint. Id. at 191. Whitney testified that she took her daughters and left the home immediately. She dropped her younger daughters off at her mother's house and took G.W. to Winchester Medical Center. The next day, May 31, Lutz called her from Jeremiah's phone, begging her to come home. She told him she wanted to hear from him what had happened with G.W., and he told her that in early May they fondled each other. Later in May they had “a very short encounter and that they had sex but for a short period of time” and then, on May 28^th, that they had sex. Id. at 197. He had been afraid to tell her because he was afraid that she would leave. Id.

The defense made a pro forma motion to strike the evidence, which was denied, and then rested without offering any further evidence. The defense then renewed the motion to strike, which the court again denied. Following jury instructions, the jury deliberated 12 minutes and found Lutz guilty on all charges. Id. at 258.

Before the sentencing phase of the jury trial began, defense counsel argued that the jury was required to find that Lutz was over the age of 18 at the time of the offenses charged in the indictments before he could be subject to the mandatory minimum life sentence. Id. at 261-267. In response to this concern, the court agreed to grant the following jury instruction as requested by the defense:

Upon consideration of all the evidence you have heard, if you believe the Commonwealth proved beyond a reasonable doubt that the defendant was over 18 years of age on the date of the offense, you shall fix the punishment at a term of imprisonment for life.

Upon consideration of all the evidence you have heard, if you believe the Commonwealth did not prove beyond a reasonable doubt that the defendant was over 18 years of age on the date of the offense, you shall fix the punishment at a term of imprisonment for life or for a specific term, but not less than five (5) years.

Id. at 273-274. During the sentencing phase, the Commonwealth called Whitney Lutz and G.W. to testify about the effect of the events on G.W., who remained in therapy on a weekly basis.

While living with Lutz, G.W.'s grades had deteriorated badly and she had failed classes; by the time of the trial, she was making A's and acting more like herself. Whitney also testified that Lutz' birthdate was May 18, 1983. Investigator Stroop was also recalled, to testify about Lutz' birthdate, as he had done in his original testimony. Id....