Dilworth v. Markle

• Decision Date: 05 September 2013
• Docket Number: Civil Action No. 1:08CV200.
• Court: U.S. District Court — Northern District of West Virginia
• Parties: Steve Lee DILWORTH, Petitioner v. Shannon MARKLE, Respondent.

970 F.Supp.2d 498

Steve Lee DILWORTH, Petitioner

v.Shannon MARKLE, Respondent.

Civil Action No. 1:08CV200.

United States District Court,

N.D. West Virginia.

Sept. 5, 2013.

Ray M. Shepard, Smith, Gildea & Schmidt, Towson, MD, for Petitioner.

Dawn E. Warfield, WV State Auditor's Office, R. Christopher Smith, Attorney General's Office, Robert D. Goldberg, Office of the Attorney General, Charleston, WV, for Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION

IRENE M. KEELEY, District Judge.

On November 12, 2008, the petitioner, Steven Lee Dilworth (“Dilworth”), filed a petition in this Court pursuant to 28 U.S.C. § 2254. The Court referred this matter to United States Magistrate Judge James E. Seibert for initial screening and a report and recommendation in accordance with LR PL P 2. On April 22, 2009, the respondent, Shannon Markle, filed a Motion for Summary Judgment. (Dkt. No. 9). On June 10, 2009, Dilworth also filed for summary judgment. (Dkt. No. 17).

On September 9, 2009, Magistrate Judge Seibert issued an Opinion and Report and Recommendation (“R & R”), in which he recommended that Markle's motion for summary judgment be granted in part and denied in part, Dilworth's motion for summary be granted in part and denied in part, and Dilworth's petition for habeas be granted as to Ground Four.¹ (Dkt. No. 23). On February 2, 2010, the Court adopted the R & R in part and granted in part and denied in part the parties' cross-motions for summary judgment, dismissed in part with prejudice Dilworth's petition, held the remainder of the case in abeyance, and stayed the case in its entirety pending Dilworth's attempt to present certain, unexhausted portions of his claim to the courts of West Virginia. ( Dkt. No. 32).

On May 6, 2013, Dilworth filed a letter motion with the Court, attached to which was a copy of the February 22, 2013 per curiam opinion of the Supreme Court of Appeals of West Virginia addressing those portions of his claim the Court had determined were unexhausted. (Dkt. No. 46). Dilworth advised that the federal claim had been fully adjudicated in West Virginia state court, and he requested that the stay be lifted and the case reinstated to the Court's active docket. On May 9, 2013, the Court lifted the stay, and ordered Markle to file an answer to Dilworth's remaining habeas petition claim by June 10, 2013. (Dkt. No. 47). Markle responded on June 7, 2013 (dkt. no. 48), and Dilworth replied on August 8, 2013. (Dkt. No. 51).

On August 13, 2013, Magistrate Judge Seibert entered a second R & R in which he recommended that Dilworth's motion for summary judgment as to Ground Four be denied, Markle's motion for summary judgment as to Ground Four be granted, and the remainder of Dilworth's petition for a writ of habeas corpus be denied. (Dkt. No. 52). The R & R also specifically warned Dilworth that his failure to object to the recommendation would result in the waiver of any appellate rights he might otherwise have on this issue. The parties did not file any objections.^**

Consequently, finding no clear error, the Court ADOPTS the Report and Recommendation in its entirety (dkt. no. 52), GRANTS IN PART Markle's motion for summary judgment as to Ground Four (dkt. no. 9), DENIES IN PART Dilworth's motion for summary judgment as to Ground Four (dkt. no. 17), DENIES the § 2254 petition (dkt. no. 1) and ORDERS that this case be DISMISSED WITH PREJUDICE and stricken from the Court's docket.

It is so ORDERED.

Pursuant to Fed.R.Civ.P. 58, the Court directs the Clerk of Court to enter a separate judgment order and to transmit copies of both orders to counsel of record.

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

STEVE LEE DILWORTH, Petitioner,

v.

DAVID BALLARD, Warden,¹ Respondent.

Civ. No. 1:08–cv–200

REPORT & RECOMMENDATION

JAMES E. SEIBERT, United States Magistrate Judge.

I. INTRODUCTION

In 2006, Petitioner went to trial in Gilmer County, West Virginia, on a ten count indictment charging him with sexual contact with his stepdaughter on ten separate occasions in 2001. After hearing the evidence, which included testimony from the victim, her boyfriend, and the police officer that interviewed her, as well as a tape recorded and signed statement by Petitioner, the jury found him guilty on all counts. He was sentenced to not less than ten, nor more than twenty years on each count, with counts one through three running consecutive to each other and the rest running concurrent with the consecutive sentences. The sentence for count three was suspended placing the total penitentiary time at twenty to forty years. An appeal to the West Virginia Supreme Court of Appeals was taken, but that Court denied review.

On November 12, 2008, Petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. After a preliminary review, the undersigned issued an Order to Show Cause as to why the writ should not be granted, which Respondent did by filing a motion for summary judgment. Petitioner then filed his motion for summary judgment. After responses and replies were lodged by the respective parties, the undersigned issued a report and recommendation that Respondent's motion for summary judgment be granted on five of the six grounds contained in the writ. However, the undersigned found some issues with the notice provided by the indictment in this case, and the possibility of placing Petitioner at risk for double jeopardy in the future, and recommended that Petitioner's motion for summary judgment be granted in part as to ground four, which alleged that Petitioner did not receive a unanimous verdict. In short, the recommendation was that the conviction on only one count in the indictment should stand.

After objections were lodged to the report and recommendation, the Honorable Irene Keely adopted the portions of the recommendation that the writ be denied, but found that the federal constitutional question inherent in ground four was not fairly presented to the state's highest court as to give it the opportunity to pass on the federal constitutional issue raised. As such, Judge Keely held ruling on ground four in abeyance, stayed the case, and gave Petitioner an opportunity to raise the federal question to the state. Petitioner did so by filing a state habeas petition. The state habeas court agreed with the reasoning of the undersigned in the report and recommendation and entered an order that the conviction on nine of the ten counts in the indictment be set aside. Respondent appealed to the West Virginia Supreme Court, which, by written decision, reversed the lower court and reinstated the original sentence. In doing so, West Virginia's highest court squarely addressed the federal constitutional concerns. Following this ruling, the undersigned entered an order reinstating the case to this Court's active docket and directing Respondent to file a response to the remaining Ground Four claim. Respondent filed this response and Petitioner has replied. The remaining ground is now ripe for this Court's review.

II. STANDARD OF REVIEW

Summary judgment is appropriate in those cases where there is no genuine dispute as to any material fact, and it appears that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c)(2); United States v. Lee, 943 F.2d 366, 368 (4th Cir.1991). Any permissible inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587–88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Where, however, the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, disposition by summary judgment is appropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In viewing the motion for summary judgment, the Court must do so under the constraints imposed by the habeas statute. Under § 2254, this Court may not grant federal habeas relief unless it concludes that West Virginia's adjudication of the claim “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C.A. § 2254(d)(1); see also Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court decision is “contrary to ... clearly established Federal law, as determined by the Supreme Court,” 28 U.S.C.A. § 2254(d)(1), “if the state court arrives at a conclusion opposite to that reached by the Court on a question of law or if the state court decides a case differently than the Court has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 405, 120 S.Ct. 1495. A state court decision “involves an unreasonable application of[ ] clearly established Federal law, as determined by the Supreme Court,” 28 U.S.C.A. § 2254(d)(1), if the state court decision “identifies the correct governing legal principle from the Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Williams, 529 U.S. at 412, 120 S.Ct. 1495. An objectively “unreasonable application of federal law is different from an incorrect or erroneous application of federal law.” Id. Thus, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable” for habeas relief to be granted. Id. at 411, 120 S.Ct. 1495.

As these principles make clear, § 2254(d) imposes a powerful limit on the relitigation of claims that have already been rejected by state courts:

[Section 2254(d) ] preserves authority to issue the writ in cases where there is no possibility fair minded jurists could disagree that the state court's decision conflicts with [the Supreme]...