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

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:

Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 786-87, 178 L.Ed.2d 624 (2011). A habeas petitioner proceeding under § 2254 bears the burden of showing that he is entitled to habeas relief under this highly deferential standard.

Finally, determinations of factual issues by the state court are presumed to be correct, and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). "Where the state court conducted an evidentiary hearing and explained its reasoning with some care, it should be particularly difficult to establish clear and convincing evidence of error on the state court's part." Sharpe v. Bell, 593 F.3d 372, 378 (4th Cir.2010). This standard "reflects Congress's view that there is no reason for a do-over in federal court when it comes to facts already resolved by state tribunals." Id. Accordingly, courts should not "casually cast aside a state court's factual findings." Id.

III. DISCUSSION

The only ground still at issue in this petition is Ground Four, which alleges that Petitioner "was denied his right to a unanimous jury verdict." In his most recent response, Respondent urges the Court to deny the petition because the West Virginia Supreme Court did not unreasonably apply clearly established United States Supreme Court precedent in denying habeas relief. For the following reasons, the Court finds that the instant habeas petition must be denied.2

A. Procedural Default

Respondent has not argued in his supplemental response that the claim is procedurally defaulted, but it was raised in his motion for summary judgment. (CM/ECF Doc. 11, pp. 19-22). However, even if Respondent did not raise procedural default as a grounds for denial of the petition, if a claim is procedurally defaulted then "concerns of comity and federalism counsel in favor of a federal habeas court declining to reach the merits of the federal claim." Yeatts v. Angelone, 166 F.3d 255, 261 (4th Cir.1999) (citing Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)); see also Granberry v. Greer, 481 U.S. 129, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987). The West Virginia Supreme Court found that Ground Four was waived for failing to comply with state law.

The United States Supreme Court has made clear that a federal district court reviewing a habeas petition filed by a state prisoner should not disturb the state's custody of that prisoner if the judgment is based on an independent and adequate state ground. See Coleman v. Thompson, 501 U.S. 722, 730-31, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). In describing the principles behind the independent and adequate state ground doctrine in the habeas context, the Supreme Court noted:

Id. The doctrine runs akin to the exhaustion requirement in the habeas statute because "a habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance." Id. at 732, 111 S.Ct. 2546. Thus, "there are no state remedies any longer `available'" to a habeas petitioner. Id. (quoting Engle v. Isaac, 456 U.S. 107, 125-126, n. 28, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982)).

In discussing one of the reasons for denying Petitioner's state habeas, the West Virginia Supreme Court explained,

Ballard v. Dilworth, 230 W.Va. 449, 739 S.E.2d 643, 652 n. 28 (2013) (internal quotations omitted). The court went on to find that Petitioner's challenge to the indictment was not jurisdictional, nor was the indictment so defective that it failed to charge a crime under West Virginia law. Id. Further, the state court found that Petitioner had not shown good cause for failing to timely raise the issue as required by the state procedural rules. Id. Thus, Petitioner "was not entitled to habeas relief because he waived the issue of alleged infirmities in the indictment by failing to follow [state] law in timely raising the issue prior to trial." Id.

Based on the foregoing, the Court finds that the state clearly and expressly stated, see Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), an independent and adequate ground for denying habeas relief. It is of no consequence that the state also addressed the merits of Petitioner's claim. As the United States Supreme Court has explained,

Harris v. Reed, 489 U.S. 255, 264 n. 10, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (internal citation omitted). Because there is an adequate and independent finding by the state court that Petitioner procedurally defaulted his challenge to the indictment, he would have to show "cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750, 111 S.Ct. 2546.

Petitioner has failed to show cause for the default. Although he contends that he raised the issue in his motion for acquittal at the close of the state's case, a review of the transcript shows a challenge to the state's evidence presented to establish that Petitioner was the "guardian" as charged in the indictment. Moreover, West Virginia Rule of Criminal Procedure 12(f) expressly states that the challenge to an indictment must be made before trial to avoid waiving any objections on appeal. Petitioner has also not made any allegations that "some objective factor external to the defense impeded [his] efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).

Further, the Court can find no actual prejudice or a fundamental miscarriage of justice resulting from any defect in the indictment. Included in the evidence presented at trial was the testimony of the victim, who testified as follows:

The state then introduced the video recorded interview of Petitioner in the back of the police car the night he was arrested. Although not visible in the video, the following conversation was heard by the jury:

Thus, the jury had evidence to support its decision as to each count of the ten count indictment. Further, the trial judge specifically addressed the jury after the close of the evidence that it had to find that Petitioner was guilty beyond a reasonable doubt for ten separate acts, and the jury was polled after its verdict to reflect that the verdict was reached by each individual juror.

Accordingly, because the state court rested its decision to deny relief on an independent and adequate state ground, and Petitioner has failed to show cause or prejudice, this Court should not entertain the claim. See also Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973) (finding defaulted an identical federal claim pursuant to Federal Rule of Criminal Procedure 12(b)(2)); Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976) (extending Davis to state court decision finding a waiver to grand jury composition challenge because it was not made pre-trial as the state's rules required).

B. Merits

Although Ground Four was procedurally defaulted and the Court should not review the claim, for the purpose of a complete report and recommendation the Court will also address why no relief can be granted on the merits of Petitioner's claim. Petitioner's ground for relief is not exactly clear. The title contends that he was denied a unanimous verdict. If that was the lone contention, it is certainly clear that no relief could be granted because "a state criminal defendant, at least in noncapital cases, has no federal right to a unanimous jury verdict[.]" Schad v. Arizona, 501 U.S. 624, 634 n. 5, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) (citing Johnson v. Louisiana, 406 U.S. 356, 359-62, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972)). And, as the habeas statute and the Supreme Court have made clear, it is "only noncompliance with federal law [that] renders a State's criminal judgment susceptible to collateral attack in federal courts." Wilson v. Corcoran, ___ U.S. ___, 131 S.Ct. 13, 16, 178 L.Ed.2d 276 (2010) (per curiam) (emphasis in original). Because Petitioner does not have a federal Constitutional right to a unanimous jury verdict, he cannot show that the state court's resolution of this claim was contrary to or an unreasonable application of "clearly established" Supreme Court precedent. 28 U.S.C. § 2254(d).

That is not the end of it, however, because the reasoning behind Petitioner's unanimous verdict challenge is that the indictment was flawed because each count alleges a single sexual act without differentiating which act is charged — there were no dates and locations in the counts, only that each count occurred in 2001. That, too, however, does not rise to a constitutional question cognizable in habeas review. It has long been held that "the sufficiency of an indictment cannot be reviewed in habeas corpus proceedings." Knewel v. Egan, 268 U.S. 442, 446, 45 S.Ct. 522, 69 L.Ed. 1036 (1925). In fact, the Fifth Amendment requirement of an indictment by a grand jury has never been extended to the states. See Alexander v. Louisiana, 405 U.S. 625, 633, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1973) ("Although the Due Process Clause guarantees petitioner a fair trial, it does not require the States to observe the Fifth Amendment's provision for presentment or indictment by a grand jury.") It then follows that because there is no federal constitutional requirement that a state proceed on criminal charges by way of indictment, then there can be no constitutional challenge to the sufficiency of the indictment itself.3 What is required of a state indictment turns purely on an interpretation of state law, as evidenced by the West Virginia Supreme Court's lengthy discussion on the state statutory requirements of an indictment, and that Court's interpretation of those statutes.

The only challenge to the way a state charges a criminal defendant, grounded in the notions of due process, can be whether Petitioner received adequate notice of the charges he was facing in order to present an adequate defense to those charges. Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 92 L.Ed. 644 (1948); Hartman v. Lee, 283 F.3d 190, 195 n. 5 (4th Cir.2002), cert. denied, 537 U.S. 1114, 123 S.Ct. 851, 154 L.Ed.2d 789 (2003). The West Virginia Supreme Court found, with regard to the notice provided, that

It is clearly established federal law that "[n]o principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by the charged ... are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal." Cole, 333 U.S. at 201, 68 S.Ct. 514. Adequate notice is that which allows a defendant "to identify the issues on which a decision may turn." Lankford v. Idaho, 500 U.S. 110, 126 n. 22, 111 S.Ct. 1723, 114 L.Ed.2d 173 (1991); see also In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 92 L.Ed. 682 (1948) (holding that due process requires that a person be given "reasonable notice of a charge against him, and an opportunity to be heard in his defense... to examine the witnesses against him, to offer testimony, and to be represented by counsel").

Petitioner cannot show that the West Virginia Supreme Court's ruling was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair minded disagreement." Harrington, 131 S.Ct. at 787. In fact, it is clear that Petitioner was apprised of the "issues on which a decision may turn." Cole, 333 U.S. at 201, 68 S.Ct. 514. In its simplest form, the indictment told Petitioner that he was being charged with sexually touching his stepdaughter on ten separate occasions in 2001. It is further clear that Petitioner understood these accusations because counsel vigorously cross examined the victim to put before the jury the instances she could remember explicit details about, and the ones she more generally just remembered that they happened.

With regard to Petitioner's final contention that he could not plead double jeopardy as a defense to further prosecution, the West Virginia Supreme Court found that "[i]f the State of West Virginia were to charge [Petitioner]with similar crimes against this victim and allege that the crimes occurred in 2001, there is nothing that would prevent [Petitioner] from asserting double jeopardy in connection with these later charged, similar offenses." Ballard, 739 S.E.2d at 652 n. 24. This Court cannot find that this is contrary to, or an unreasonable application, of clearly established federal law as determined by the Supreme Court. Clearly if the state seeks charges in the future for acts that occurred during 2001, then Petitioner could raise double jeopardy as a bar to those prosecutions. Thus, this argument is premature because Petitioner has not been placed in double jeopardy. Nor is the indictment so vague as to preclude Petitioner from raising the instant conviction to bar future prosecution. Accordingly, because there is no federal constitutional right to a unanimous verdict or indictment, and because the West Virginia Supreme Court did not unreasonably apply clearly established federal law regarding the due process required of a charging instrument, then no habeas relief can be granted.

IV. CONCLUSION & RECOMMENDATION

The West Virginia Supreme Court of Appeals, as the last state court to address Petitioner's claim, held that the claim was procedurally defaulted because he did not bring a challenge to the indictment prior to trial as required by the West Virginia Rules of Criminal Procedure. This is an adequate and independent state ground which bars this Court from hearing the claim. Moreover, in addressing the merits of Petitioner's claim, the West Virginia Supreme Court did not come to a conclusion that was contrary to, or an unreasonable application of, clearly established federal law as determined by the United States Supreme Court. Accordingly, the undersigned RECOMMENDS that Petitioner's motion for summary judgment on Ground Four be DENIED, Respondent's motion for summary judgment on Ground Four be GRANTED, and that the petition for writ of habeas corpus be DENIED and stricken from the active docket of this Court.

Any party may, within fourteen [14] days of the filing of this recommendation, file with the Clerk of Court written objections identifying those portions of the recommendation to which objection is made and the basis for such objections. A copy of any objections shall also be submitted to the United States District Judge of record. Failure to timely file objections to this recommendation will result in waiver of the right to appeal from a judgment of this Court based upon such recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir.1985): United States v. Schronce, 727 F.2d 91 (4th Cir.1984), cert. denied, 467 U.S. 1208, 104 S.Ct. 2395, 81 L.Ed.2d 352 (1984).

The Clerk is directed to mail a copy of this Report and Recommendation to Plaintiff, and transmit a copy to all counsel of record.

Dated: August 13, 2013.