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Rowe v. Clarke

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

September 6, 2019

DARREN M. ROWE, Petitioner,
HAROLD W. CLARKE, Respondent.

          Darren M. Rowe, Pro Se Petitioner;

          Virginia B. Theisen, Assistant Attorney General, Office of the Attorney General, Richmond, Virginia, for Respondent.



         In this Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254, a Virginia inmate proceeding pro se, contends that his confinement pursuant to a 2014 Judgment entered by a state court is unconstitutional. Upon review of the record, I conclude that the respondent's Motion to Dismiss must be granted, because the petition was untimely filed.


         From 2010 through 2013, Rowe was in an on-again, off-again relationship with Amanda Fitzgerald of Louisa County, Virginia.[1] Fitzgerald had previously been in an on-again, off-again relationship with O'Brien Johnson for ten years, which continued while she was seeing Rowe. Rowe testified that Johnson had made threats against him.

         On the evening of February 21, 2013, Rowe and his four-year-old daughter, DR, fell asleep at Fitzgerald's apartment while watching a movie. Around 11:00 p.m., all three of them were awakened by someone hitting the window of the apartment and shouting for Rowe to come outside. DR, who was closest to the window, began crying. Rowe and Fitzgerald saw Johnson run up on the hood of Rowe's car, stomp on its roof, and then drive away.[2] Rowe ran out of the apartment and got in his car, where he kept a .45 caliber firearm. He put the gun in his front pocket and drove off, intending to go to Johnson's mother's house to vandalize Johnson's car.

         On the way, Rowe saw Johnson sitting in his car, parked at the Louisa Mini-Mart. Rowe pulled in beside Johnson's car, jumped out of his vehicle, ran over, and kicked Johnson's car. Johnson got out and started shouting as he came around the car toward Rowe. Rowe claims that as Johnson came at him, he seemed to be reaching toward his pocket for something - possibly a weapon. Rowe then pulled his firearm from his jacket pocket and pointed it at Johnson to stop him from charging. Johnson did stop for a moment and then charged at Rowe, shouting, shoot me, n*****, shoot me, n*****. Rowe shot Johnson, and Johnson fell to the ground. Rowe claims that less than five minutes passed between Johnson's actions at Fitzgerald's apartment and the shooting.

         Johnson told police that he was at the mini-mart, parked in his car, talking to some friends on February 21, 2013, when Rowe unexpectedly arrived and confronted him. According to Johnson, the two men exchanged words, and then Rowe pulled out a firearm. Johnson asked, what are you going to do, shoot me? Rowe did, and Johnson fell, no longer able to feel or move his legs.

         After shooting Johnson, Rowe panicked and drove away. At some point, he went back to Fitzgerald's house, picked up his daughter, and disposed of the firearm. Police arrested Rowe the next morning at his mother's house.

         Rescue workers assisting Johnson found a single bullet wound on his left side, just under the armpit. Transported to the University of Virginia hospital, Johnson underwent emergency surgery. The surgeons removed the bullet, his spleen, and part of his large intestine. Because the bullet passed close to Johnson's spine, they believed he would possibly be paralyzed.

         On February 26, 2014, Rowe entered a guilty plea in the Circuit Court for Louisa County, pursuant to a written Plea Agreement, to charges of aggravated malicious wounding and use of a firearm in the commission of that felony. The latter offense carried a mandatory minimum three-year sentence. As to the former offense, the Plea Agreement provided for a maximum sentence of 50 years and an active term of incarceration of no more than 20 years in prison. Without the Plea Agreement, if convicted after a trial, the minimum total sentence the jury could have imposed on Rowe was 23 years.

         On July 2, 2014, the trial court conducted a lengthy sentencing hearing. Johnson, in a wheelchair, testified that he had not been able to walk since the shooting. Fitzgerald and Rowe testified about seeing Johnson damage Rowe's car. Rowe's former employers, his uncle, his mother and her fiancé, and his grandmother testified as character witnesses for Rowe. They described an intelligent, hard-working employee, a gentle and loving father, who had never displayed a tendency for violence and had no criminal history. All of them testified that the shooting was shocking to them, because it was so out of character for Rowe, as they had known him.

         The trial judge told Rowe that he would have imposed the 20-year active prison sentence permitted by the Plea Agreement if not for Rowe's good behavior before the crime. The judge stated that there was no viable argument for self-defense or legal provocation, but that substantial mitigating evidence existed for sentencing. The trial court sentenced Rowe to 40 years in prison for the aggravated malicious wounding conviction, with 30 years suspended, and to three years in prison for the firearm offense. The court entered its final order on August 28, 2014. Rowe did not appeal.

         In April 2016, Rowe filed a Petition for a Writ of Habeas Corpus in the Circuit Court for Louisa County. Rowe alleged that trial counsel provided ineffective assistance during the pretrial investigation, plea bargaining, and sentencing phases of the proceedings and thereafter, by failing to consult with him about an appeal. The circuit court denied the habeas petition, and Rowe appealed. The Supreme Court of Virginia ...

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