Rowe v. Ballard

Filing 99

MEMORANDUM OPINION AND ORDER: the court OVERRULES petitioner's objections to Magistrate Judge VanDervort's PF&R. The court ADOPTS the 94 PROPOSED FINDINGS AND RECOMMENDATION by Magistrate Judge VanDervort, GRANTS respondent's 24 MOTION for Summary Judgment, DENIES petitioner's 80 MOTION for Summary Judgment, DISMISSES petitioner's 1 PETITION for Writ of Habeas Corpus, and DISMISSES this matter from the court's active docket. The court DENIES a certificate of appealability. Signed by Judge David A. Faber on 11/7/2014. (cc: counsel of record) (mjp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD

DAVID ALLEN ROWE,
Petitioner,
v.

Civil Action No: 1:07-0283

DAVID BALLARD,
Warden
Respondent.

MEMORANDUM OPINION AND ORDER
Pending before the court are petitioner’s petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254, (Doc. No.
1), respondent’s motion for summary judgment, (Doc. No. 24), and
petitioner’s motion for summary judgment.

(Doc. No. 80).

By

Standing Order, this matter was referred to United States
Magistrate Judge R. Clarke VanDervort for submission of proposed
findings and recommendations for disposition pursuant to 28
U.S.C. § 636(b)(1)(B).

(Doc. No. 3).

The magistrate judge

submitted his proposed findings and recommendation (“PF&R”) on
July 11, 2013.

(Doc. No. 94).

In accordance with the provisions of 28 U.S.C. § 636(b),
petitioner was allotted fourteen days, plus three mailing days,
in which to file any objections to the PF&R.

The court granted

petitioner’s motion for an extension of time to file objections
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to the PF&R.

(Doc. No. 97).

Petitioner timely filed objections

to the PF&R on August 19, 2013.

(Doc. No. 98).

Because

petitioner’s objections are without merit, the court overrules
his objections, accepts the findings contained in the PF&R, and
dismisses his petition for a writ of habeas corpus.
I.

Background
Following a jury trial conducted on January 21–23, 2004,

petitioner was convicted of four counts of sexual abuse by a
guardian.1

State v. Rowe, Criminal Action No. 03-F-186 (Cir. Ct.

Mercer Co.).

Petitioner appealed and the West Virginia Supreme

Court of Appeals refused his appeal.

State v. Rowe, Case No.

041603 (W. Va. Dec. 2, 2004).
On July 6, 2005, petitioner filed a petition for a writ of
habeas corpus in the Circuit Court of Mercer County.

Rowe v.

W. Va. Dep’t of Corr., Civil Action No. 05-C-437 (Cir. Ct.
Mercer Co. Apr. 17, 2006).

Petitioner alleged a number of

grounds for habeas relief, including:

1) the trial court erred

by failing to rule as a matter of law that petitioner was not a
“guardian,” or, alternatively, by failing to rule the element of
“guardian” was not proven beyond a reasonable doubt, and 2) the
trial court erred by allowing “intrinsic” evidence of prior acts
between petitioner and the victim which were lawful in other

1

The court relies on the PF&R for a detailed summary of the
factual background related to petitioner’s criminal charges.
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states.

Id.

After addressing the merits of his claims, the

Circuit Court denied his petition for a writ of habeas corpus by
order entered April 17, 2006.

Id.

Petitioner appealed this

ruling and, again, the West Virginia Supreme Court of Appeals
refused his appeal.

Rowe v. W. Va. Dep’t of Corr., Case No.

062739 (W. Va. Jan. 24, 2007).
On May 7, 2007, petitioner filed the instant petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Petitioner

asserts the following grounds for habeas relief as well as a
number of arguments related to each:

(1) West Virginia Code §

61-8D-5(1) is unconstitutionally vague and overbroad, asapplied, because the victim had reached the age of consent; (2)
that petitioner was denied meaningful and effective assistance
of counsel as guaranteed by the Sixth Amendment to the United
States Constitution; and (3) that petitioner was denied a fair
and impartial jury trial by admission of evidence regarding
petitioner’s and the victim’s conduct in other jurisdictions.
(Doc. No. 1).
On June 29, 2009, respondent filed a motion for summary
judgment, contending that West Virginia Code § 61-8D-5 is not
unconstitutionally vague; that trial counsel was not
ineffective; and that the trial court did not improperly admit
evidence.

(Doc. No. 26).

Petitioner filed his own motion for

summary judgment on July 16, 2012 along with a memorandum in
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support, arguing that petitioner is entitled to relief as a
matter of law.

(Doc. Nos. 80, 81).

On July 13, 2013, Magistrate Judge VanDervort issued his
PF&R addressing petitioner’s petition for a writ of habeas
corpus and the parties’ cross motions for summary judgment.

In

the PF&R, Judge VanDervort recommended that the court grant
respondent’s motion for summary judgment, deny petitioner’s
motion for summary judgment, and dismiss petitioner’s petition
for a writ of habeas corpus.

Petitioner filed objections to the

PF&R, each of which the court addresses in turn.
II.

Petitioner’s Objections to the PF&R

Petitioner raises a number of objections to the PF&R, and,
by his own admission, these objections relate to arguments made
by petitioner in his motion for summary judgment that, according
to petitioner, the PF&R does not address.

(Doc. No. 98 at 1).

Petitioner’s first objection to the PF&R concerns his contention
that the trial court employed an unconstitutionally vague
definition of the term “guardian.”

Petitioner argues that the

PF&R both fails to address and misconstrues his argument,
“ignor[ing] evidence of the trial judge’s shifting
interpretation” of the term’s definition.

(Doc. No. 98 at 3).

Upon review, the court finds that the PF&R does address
this argument.

On page 29 of the PF&R, the magistrate judge

listed the statutory definition for “guardian” codified in West
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Virginia Code § 61-8D-1(5).

The PF&R then states:

“The

undersigned finds that the foregoing definition of ‘guardian’ is
not vague.

Additionally, the record reveals that the trial

court defined ‘guardian’ by use of the above statutory
definition.”

(Doc. No. 94 at 29).

Consequently, the PF&R does

not ignore petitioner’s argument on this point and the objection
is without merit.
Petitioner also argues that the PF&R does not address his
argument that the trial court failed to treat the term
“guardian” as a technical term and did not interpret the
charging statute in line with the rules of lenity or strict
construction.

(Doc. No. 98 at 4).

Petitioner further objects

that the trial court referenced evidence of events that occurred
outside the time period of the charged conduct to prove that
petitioner was the victim’s guardian.

Id.

However, upon review

of the record, the court finds that these objections lack merit,
as well.
Although the PF&R addresses these arguments briefly, it
nevertheless does address these arguments.

The PF&R lists the

jury instructions given by the trial court and then determines
that these instructions are “verbatim to the definition of
‘guardian’ as set forth in West Virginia Code § 61-8D-1.”
No. 94 at 31).

Further, the PF&R concludes that “the trial

court instructed the jury that it could ‘not consider
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(Doc.

[Petitioner’s] former relationship as her step-father as any
proof that he was her guardian.’”

Id.

As a result, the PF&R

finds that the trial court did not err in its instructions and
treated the term “guardian” appropriately.

Id.

Therefore,

petitioner’s objections with regard to these arguments are
overruled because the PF&R addressed petitioner’s contentions.
Finally, petitioner argues that the PF&R ignores his claim
that the guardian statute was unconstitutional as applied to
him, a claim petitioner argues was properly presented and
exhausted in state court.

(Doc. No. 98 at 5).

Furthermore,

petitioner argues that the PF&R “is silent on the issue” of his
related due process rights and refers the court to the arguments
made in his motion for summary judgment.

Id.

Again, the court

finds that petitioner’s objection lacks merit.
The PF&R addresses and rejects these arguments.

On page

32, the PF&R addresses petitioner’s claim that West Virginia’s
guardian statute is overbroad as-applied to him:

“Petitioner

appears to argue that West Virginia Code § 61-8D-5 is
contradicted by West Virginia Code § 43-8-301 and Lawrence v.
Texas” and finds that this claim is without merit.
at 32).

(Doc. No. 94

Further, the PF&R concludes that petitioner’s due

process rights were not violated, finding that “[a] criminal
statute complies with due process if the statute ‘provide[s]
adequate notice to a person of ordinary intelligence that his
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contemplated conduct is illegal.’”

(Doc. No. 94 at 27).

Because the guardian statute “defined the criminal offense with
sufficient definiteness that Petitioner could understand what
conduct was prohibited and in a manner that did not encourage
arbitrary and discriminatory enforcement,” it did not violate
his due process rights.

As a result, the court finds that the

PF&R did not ignore this argument, but addressed and resolved it
in a fashion unfavorable to petitioner.
III. Conclusion
While petitioner argues that the PF&R “does not address
[his] most basic and fundamental arguments,” the court finds
that the lengthy and comprehensive PF&R both addresses
petitioner’s many arguments and concludes that the law does not
support those arguments.

Accordingly, the court OVERRULES

petitioner’s objections to Magistrate Judge VanDervort’s PF&R.
The court ADOPTS the factual and legal analysis contained within
the PF&R, GRANTS respondent’s motion for summary judgment, (Doc.
No. 24), DENIES petitioner’s motion for summary judgment, (Doc.
No. 80), DISMISSES petitioner’s petition for a writ of habeas
corpus, (Doc. No. 1), and DISMISSES this matter from the court’s
active docket.
The court has additionally considered whether to grant a
certificate of appealability.

See 28 U.S.C. § 2253(c).

A

certificate will not be granted unless there is “a substantial
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showing of a denial of a constitutional right.”
2253(c)(2).

Id. §

The standard is satisfied only upon a showing that

reasonable jurists would find that any assessment of the
constitutional claims by this court is debatable or wrong and
that any dispositive procedural ruling is likewise debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336–38 (2003); Slack v.
McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676,
683–84 (4th Cir. 2001).

The court concludes that the governing

standard is not satisfied in this instance.

Accordingly, the

court DENIES a certificate of appealability.
The Clerk is directed to forward a copy of this Memorandum
Opinion and Order to counsel of record.
IT IS SO ORDERED on this 7th day of November, 2014.
ENTER:

David A. Faber
Senior United States District Judge

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