Barbe v. Mcbride

• Citation: 740 F.Supp.2d 759
• Decision Date: 15 September 2010
• Docket Number: Civil Action No. 2:07 CV 25
• Parties: Donald Raymond BARBE, Petitioner, v. Thomas McBRIDE, Warden, Respondent.
• Court: U.S. District Court — Northern District of West Virginia

740 F.Supp.2d 759

Donald Raymond BARBE, Petitioner,

v.Thomas McBRIDE, Warden, Respondent.

Civil Action No. 2:07 CV 25.

United States District Court,

N.D. West Virginia.

Sept. 15, 2010.

V. Tad Greene, Jackson Kelly, PLLC, Wheeling, WV, William J. Watkins, Jr., Womble, Carlyle, Sandridge & Rice, PLLC, Greenville, SC, for Petitioner.

Dawn E. Warfield, Robert D. Goldberg, Attorney General's Office, Charleston, WV, for Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION

JOHN PRESTON BAILEY, District Judge.

The above-styled civil action was instituted on March 19, 2007, when the petitioner, Donald Raymond Barbe, who was, at that time ¹, proceeding pro se, filed a Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus. This civil action was referred to United States Magistrate Judge James E. Seibert for initial review and report and recommendation, pursuant to Rule 83.13 of the Local Rules of Prisoner Litigation Procedure.

The docket herein reflects that, by Order entered May 29, 2008, 2008 WL 2225840, the Court denied and dismissed with prejudice as successive the petitioner's Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus and Ordered the above-styled civil action stricken from the docket of this Court. The petitioner appealed the dismissal of his § 2254 Petition to the United States Court of Appeals for the Fourth Circuit by Notice of Appeal filed June 25, 2008, and, in a June 22, 2009, 335 Fed.Appx. 332 (4th Cir.2009), unpublished per curiam opinion, the United States Court of Appeals for the Fourth Circuit vacated this Court's May 29, 2008, Order dismissing the petitioner's § 2254 Petition and remanded this matter for further proceedings. Accordingly, this matter was re-referred to United States MagistrateJudge James E. Seibert by Order entered December 22, 2009.

By Order entered December 29, 2009, Magistrate Judge Seibert directed the respondent to show cause why the petitioner's § 2254 Petition should not be granted. In compliance with Magistrate Judge Seibert's December 29, 2009, Order, the Respondent's Motion for Partial Summary Judgment and Memorandum in Support thereof were filed on January 27, 2010. The Petitioner's Response to Respondent's Motion for Partial Summary Judgment was filed on February 26, 2010.

By Order entered March 26, 2010, Magistrate Judge Seibert indicated that he found the respondent's Motion for Partial Summary Judgment unresponsive to the petitioner's second ground for relief, i.e., that his due process rights were violated when the state court, in its jury instructions, impermissibly broadened the offenses charged in Counts Ten and Eleven of the Indictment. Accordingly, Magistrate Judge Seibert's March 26, 2010, Order gave the respondent twenty-one days in which to file a supplemental response to the petitioner's § 2254 Petition and to specifically address therein the petitioner's second ground for relief.

The Respondent's Supplemental Memorandum of Law in Support of Motion for Partial Summary Judgment was filed on April 16, 2010. The Petitioner's Response to Respondent's Supplemental Memorandum of Law in Supprot [ sic ] of Motion for Partial Summary Judgment was filed on June 7, 2010.

By Report and Recommendation entered July 29, 2010, Magistrate Judge Seibert recommended that the petitioner's § 2254 Petition be granted with regard to his contention that his ex post facto rights were violated when the state court sentenced him under the 1991 version of W. Va.Code § 61-8B-4 on Counts Ten and Eleven of the Indictment; that this civil action be remanded to the state court for re-sentencing on Counts Ten and Eleven of the Indictment; and that the respondent's Motion for Partial Summary Judgment be granted with regard to the petitioner's contention that his due process rights were violated as to Counts Ten and Eleven of the Indictment when the state court instructed the jury on "sexual intrusion," rather than "sexual intercourse" as charged in the Indictment.

Magistrate Judge Seibert's Report and Recommendation ("R & R") expressly advised the parties, in accordance with 28 U.S.C. § 636(b)(1), to file with the Clerk of Court any written objections to the Report and Recommendation within fourteen days after being served with a copy of the same. The Report and Recommendation further advised the parties that a failure to timely file objections thereto would result in waiver of the right to appeal from a judgment of this Court based thereon. The Petitioner's Objections to Report and Recommandations [ sic ] were filed on August 30, 2010 ².

Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo review of those portions of Magistrate Judge Seibert's findings to which objection is made. However, the Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of Magistrate Judge Seibert as to those portions of the findings or recommendation to which no objections are addressed.Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). In addition, failure to file timely objections constitutes a waiver of de novo review and the petitioner's right to appeal this Court's Order. 28 U.S.C. § 636(b)(1); Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir.1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir.1984). As previously noted, the petitioner timely filed his Objections to Report and Recommandations [sic] on August 30, 2010. This Court has conducted a de novo review only as to the portions of the R & R to which the petitioner objected. The remaining portions of the R & R to which the petitioner did not object were reviewed for clear error.

As noted by Magistrate Judge Seibert in his R & R, in his § 2254 Petition, the petitioner challenges Counts Ten and Eleven of the Indictment in the underlying state court action on two grounds, first, that his ex post facto rights were violated when the sentencing court sentenced him under the 1991 version of West Virginia Code § 61-8B-4; and, second, that his due process rights were violated when the state court impermissibly broadened the offenses charged in Counts Ten and Eleven of the Indictment by instructing the jury on "sexual intrusion," rather than "sexual intercourse" as charged in the Indictment.

I. The Petitioner's Ex Post Facto Rights Were Violated When the Sentencing Court Sentenced Him Under the 1991 Version of West Virginia Code § 61-8B-4

The petitioner argues that his ex post facto rights were violated when the sentencing court sentenced him on counts Ten and Eleven of the Indictment using the 1991 version of West Virginia Code § 61-8B-4, when the evidence adduced at trial proved that the two incidents charged in those counts occurred in 1989 or 1990. The 1991 version of West Virginia Code § 61-8B-4 increased the maximum sentence for a conviction of Sexual Abuse in the Second Degree from twenty years to twenty-five years.

As noted by Magistrate Judge Seibert in his R & R, the respondent concedes in his Memorandum of Law in Support of Motion for Partial Summary Judgment that the sentences imposed on the petitioner with regard to Counts Ten and Eleven of the Indictment did violate the Ex Post Facto clause of the United States Constitution. (Doc. 30 at 13). In his R & R, Magistrate Judge Seibert agreed with the respondent and recommended that the petitioner's § 2254 Petition be granted with regard to the petitioner's contention that his ex post facto rights were violated when the state court sentenced him under the 1991 version of W. Va.Code § 61-8B-4 on Counts Ten and Eleven of the Indictment and that this civil action be remanded to the state court for re-sentencing. The petitioner has not objected to this recommendation of the Magistrate Judge, and this Court, agreeing with both parties and Magistrate Judge Seibert that the petitioner's ex post facto rights were violated when the state court sentenced him under the 1991 version of W. Va.Code § 61-8B-4 on Counts Ten and Eleven of the Indictment, hereby ADOPTS Magistrate Judge Seibert's R & R with regard to this issue without any further discussion. The Court will also issue a writ of habeas corpus, vacate the sentences imposed on the petitioner with regard to Counts Ten and Eleven of the Indictment, and remand this issue to the state court for re-sentencing.

II. The Petitioner's Due Process Rights Were Not Violated When the State Court Instructed the Jury on "Sexual Intrusion" Rather Than "Sexual Intercourse" as Charged in Counts Ten and Eleven of the Indictment

In his second ground for relief, the petitioner alleges that his due process rightswere violated when the state court impermissibly broadened the offenses charged in Counts Ten and Eleven of the Indictment by instructing the jury on "sexual intrusion," rather than "sexual intercourse" as charged in the Indictment. Specifically, the petitioner the notes that the prosecution failed to produce proof of "sexual intercourse," and that it should have returned the Indictment to the grand jury to seek an amendment to Counts Ten and Eleven thereof. The petitioner contends, however, that what occurred, instead, was that the state court charged the jury on "sexual intrusion" and, thus, amended the charges that had been made in Counts Ten and Eleven of the Indictment. The petitioner argues that the state court's action in this regard constituted a constructive amendment of the charges set forth in Counts Ten and Eleven of the Indictment which is violative of the ruling of the United States Supreme Court in Stirone v. United States, 361 U.S. 212, 215-216, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), wherein the Court held that a constructive amendment to an Indictment violated a defendant's Fifth Amendment right under the grand jury clause.

In its Supplemental Memorandum of Law in Support of Motion for Partial Summary Judgment, the respondent argues first that the petitioner's Stirone claim was unexhausted since neither the petitioner's state habeas petition...