                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 10-7598


DONALD RAYMOND BARBE,

                  Petitioner - Appellant,

           v.

THOMAS MCBRIDE,

                  Respondent - Appellee.



Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins.      John Preston Bailey,
Chief District Judge. (2:07-cv-00025-JPB-JES)


Argued:   March 20, 2012                    Decided:   April 12, 2012


Before WILKINSON, KING, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Virginia Whitner Hoptman, WOMBLE CARLYLE SANDRIDGE &
RICE, PLLC, Vienna, Virginia, for Appellant.       Robert David
Goldberg, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA,
Charleston, West Virginia, for Appellee.       ON BRIEF: Lesley
Whitcomb Fierst, WOMBLE CARLYLE SANDRIDGE & RICE, PLLC, Vienna,
Virginia, for Appellant.     Darrell V. McGraw, Jr., Attorney
General, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Following his conviction on two counts of second degree

sexual assault in state court, petitioner Donald Barbe filed a

federal    habeas     petition         challenging       his     conviction     on     due

process grounds.          The district court refused to grant relief on

that basis.       Petitioner now appeals, contending that the state

court’s    decision       to   amend    his     indictment       prior    to   trial    to

allege     “sexual        intrusion”     instead        of     “sexual    intercourse”

deprived    him      of     due   process.         Finding        no     constitutional

violation, we affirm.



                                           I.

     On September 13, 1999, a West Virginia grand jury returned

a   17-count   indictment         against       Barbe    consisting       of   multiple

charges of sexual assault, sexual abuse, and incest involving

three victims.        For purposes of this appeal, only Counts 10 and

11 are relevant.          Those two counts charged that Barbe had twice

     committed the offense of “Sexual Assault in the Second
     Degree” in that he unlawfully and feloniously engaged
     in sexual intercourse with B.H., a person known to the
     Grand Jury without that person’s consent, and the lack
     of consent resulted from forcible compulsion, against
     the peace and dignity of the State and in violation of
     West Virginia Code §61–8B–4(a)(2). *
     *
       Because the indictment referred to “forcible compulsion,”
it should have listed the corresponding statutory provision as
West Virginia Code § 61–8B–4(a)(1) instead of § 61–8B–4(a)(2).
Barbe has not challenged this minor drafting error on appeal.


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     On October 15, the State moved to amend Counts 10 and 11

“to allege that the offense was committed by engaging in sexual

intrusion   with     B.H.,”   rather       than     by     engaging    in   “sexual

intercourse.”      Under West Virginia law, “[s]exual intercourse”

is defined as “any act between persons involving penetration,

however slight, of the female sex organ by the male sex organ or

involving contact between the sex organs of one person and the

mouth or anus of another person.”                 W. Va. Code § 61-8B-1(7).

“Sexual intrusion,” by contrast, “means any act between persons

involving penetration, however slight, of the female sex organ

or of the anus of any person by an object for the purpose of

degrading   or     humiliating   the       person     so    penetrated      or   for

gratifying the sexual desire of either party.”                        Id. § 61-8B-

1(8).   Either act can constitute second degree sexual assault

under West Virginia Code § 61-B-4(a), which provides that

     A person is guilty of sexual assault in the second
     degree when:

     (1) Such person engages in sexual intercourse or
     sexual intrusion with another person without the
     person’s consent, and the lack of consent results from
     forcible compulsion; or

     (2) Such person engages in sexual intercourse or
     sexual intrusion with another person who is physically
     helpless.




                                       3
The state court held a hearing on the motion to amend on October

20.   After concluding that “the amendment in this case is not

substantial,” it granted the motion from the bench.

      The trial began on December 13, 1999.             The State’s case

proceeded on the theory that Barbe had committed second degree

sexual assault against B.H. by sexual intrusion.            B.H. testified

that Barbe, who was her counselor at a local 4-H club, would

sometimes drive her home from 4-H events and that he molested

her on two of these occasions.        According to B.H., one time when

she was sitting with Barbe in the front seat of his vehicle, he

asked or told her to lie down.            B.H. testified that after she

placed her “head in his lap,” Barbe “put his hand down the front

of my pants and started massaging my vagina.”

      B.H. also stated that on a different occasion, Barbe placed

her in that same position, but when she “tried to get back

up . . . he just pushed me back down with his arm and kept my

body laid down flat.”         According to B.H., he then “held my head

down in his lap and put his hand down the front of my pants and

massaged my vagina.”          She also confirmed that while Barbe “had

his hands down [her] pants,” there was “penetration to . . . the

outside   area   of   [her]    vagina.”    According   to   her   testimony,

these events occurred when she was nine years old.

      At the end of trial, the state court charged the jury.             In

keeping with the amended indictment, it instructed the jury that

                                      4
the offense charged in Counts 10 and 11 “is sexual assault in

the second degree” and that that offense “is committed when any

person engages in sexual intrusion with another person without

the consent of the other person and the lack of consent results

from forcible compulsion.”              The jury convicted Barbe on eight

counts,    including       Counts      10   and   11,    and     the    state      court

sentenced him to no less than 80 years’ imprisonment.

      Following his conviction, Barbe sought both appellate and

habeas    relief    in     the    state     and   federal      courts.        We   have

previously described much of this procedural history in detail,

see Barbe v. McBride, 521 F.3d 443, 448-52 (4th Cir. 2008), and

we see no reason to repeat those efforts here.                    For the purposes

of this appeal, our review is limited to a single due process

claim contained in Barbe’s second federal habeas petition.                            In

the   district     court    below,     petitioner       sought    relief      under   28

U.S.C. § 2254 on the grounds that the state court violated his

due   process      rights        “by   instructing       the     jury    on     ‘sexual

intrusion,’ rather than ‘sexual intercourse’ as charged” in the

original indictment.         Barbe v. McBride, 740 F. Supp. 2d 759, 763

(N.D.W. Va. 2010).          The court refused to grant relief on this

basis.    Id. at 772.         Barbe appeals that ruling, and we review

the denial of his § 2254 petition de novo.                  Longworth v. Ozmint,

377 F.3d 437, 443 (4th Cir. 2004).



                                            5
                                            II.

       Rather than focus on the jury instructions on appeal, Barbe

contends that the state trial court violated his right to due

process by amending his indictment to allege “sexual intrusion”

instead of “sexual intercourse.”                  It is important to clarify the

limited nature of this claim.                    Petitioner concedes that while

the Fifth Amendment guarantees that an indictment’s “charges may

not    be   broadened   through          amendment     except     by    the   grand   jury

itself,” Stirone v. United States, 361 U.S. 212, 215-16 (1960),

this    right    “has   yet    to   be     incorporated         against   the   states.”

Petitioner’s Br. at 34 (citing Hurtado v. California, 110 U.S.

516,    534-35    (1884)).         He    therefore      relies     on   the   Fourteenth

Amendment’s      Due    Process         Clause    to    challenge       the   amendment.

Because the Due Process Clause guarantees Barbe the “right to

reasonable notice of a charge against him, and an opportunity to

be heard his defense,” In re Oliver, 333 U.S. 257, 273 (1948),

he contends that the amendment provided him with insufficient

notice “to prepare an adequate defense.”                         Petitioner’s Br. at

36.

       We are not persuaded.             “Variances and other deficiencies in

state court indictments are not ordinarily a basis of federal

habeas corpus relief unless the deficiency makes the trial so

egregiously      unfair       as    to    amount       to   a    deprivation     of    the

defendant's right to due process.”                  Ashford v. Edwards, 780 F.2d

                                             6
405, 407 (4th Cir. 1985).               Barbe cannot make this showing for a

variety of reasons.

     To    begin       with,   the     amendment         to   his     indictment      did     not

broaden the nature of the State’s case.                          Petitioner’s original

indictment charged him with “committ[ing] the offense of ‘Sexual

Assault    in    the    Second      Degree,’”        and      this    charge    put    him     on

notice that he could be convicted for having engaged in either

sexual intercourse or sexual intrusion.                          This is because West

Virginia law provides that a “person is guilty of sexual assault

in the second degree” if he “engages in sexual intercourse or

sexual     intrusion         with     another       person       without     the      person’s

consent,     and       the     lack     of     consent         results      from      forcible

compulsion.”           W.    Va.     Code     § 61-B-4(a)(1)           (emphasis       added).

Written in the disjunctive, this statute indicates that “sexual

intercourse”          and    “sexual     intrusion”           are     not    two      separate

offenses,       but    two     alternative         methods       of    proving     the      same

offense of second degree sexual assault.

     Thus, from the time of his original indictment, Barbe knew

or should have known that he could be convicted for engaging in

either form of sexual conduct.                     That was sufficient notice for

constitutional         purposes.         The       Due    Process      Clause      “does      not

require    the     method      by     which    the       crime   was     committed       to   be

alleged in the indictment,” Hartman v. Lee, 283 F.3d 190, 194

n.3 (4th Cir. 2002), nor does it prevent a state court from

                                               7
amending that portion of the indictment when necessary.                               As the

district court pointed out, petitioner “was on notice from the

very beginning of the criminal proceedings against him that the

State    was    attempting      to    prove     that    he     had    committed       Second

Degree Sexual Assault against B.H.” and that it “could do so by

either a showing of sexual intercourse or sexual intrusion.”

Barbe, 740 F. Supp. 2d at 772.                  The fact that the latter method

replaced the former in the terms of his indictment does not

offend constitutional guarantees.

       Moreover, Barbe’s amended indictment matched up with the

state court’s jury charge.                This was not a case in which the

trial     court     deprived     a     defendant         of     adequate       notice     by

instructing       the    jury   on    a    different          offense       from    the   one

enumerated in the charging information.                        See, e.g., Hunter v.

New    Mexico,     916   F.2d   595,      599    (10th       Cir.    1990).         Instead,

Barbe’s indictment -- both before and after its amendment -- and

the trial court’s jury instructions concerned the same offense

of     second     degree    sexual     assault.           And        both    the     amended

indictment and the jury instructions discussed the commission of

that    offense     through     the    specific        act     of    sexual        intrusion.

Thus, rather than exposing Barbe “to charges for which he had no

notice and thus no opportunity to plan a defense,” see Lucas v.

O’Dea, 179 F.3d 412, 417 (6th Cir. 1999), the state court’s jury

instructions       simply    reiterated         the    same     charges       Barbe    faced

                                            8
before the trial began.               There was no due process violation

here.

      What is more, the substitution of terms in the indictment

did   not   actually      prejudice        petitioner.      In    order       to    succeed

here,   Barbe     must    show     that    the    amendment    prevented           him    from

being able to construct an adequate defense.                      See Bae v. Peters,

950 F.2d 469, 478 (7th Cir. 1991) (“[A] last-minute change in

the charge could prejudice a defendant's opportunity to defend

himself;    if    that     prejudice       is    severe   enough,       a    due    process

violation could occur.”).              This he cannot do.               There is ample

evidence that petitioner had sufficient notice of the State’s

case against him to mount an adequate defense.

      For   one      thing,      Barbe’s    indictment      was    amended          well   in

advance of trial.          The state court granted the motion to amend

on    October     20,     over    seven     weeks    before       his       trial    began.

Petitioner attempts to downplay this fact by pointing out that

his   trial     was     originally     scheduled      for     October        27     but    was

delayed due to his hospitalization following the hearing on the

motion to amend.          But those circumstances do not change the fact

that he and his counsel had notice of the State’s precise theory

of the case nearly two months before the actual trial began.

That is more than sufficient for purposes of the Due Process

Clause.     See Stephens v. Borg, 59 F.3d 932, 936 (9th Cir. 1995)

(holding      that    a   defendant’s        constitutional        rights         were     not

                                             9
violated because        he   “had    five   days    of   actual      notice”   before

closing arguments “of the prosecution's intention to rely on a

felony-murder theory” that was not enumerated in the original

charging information).

       And even before his indictment was amended, Barbe knew of

the nature of B.H.’s testimony.                As the State pointed out during

the hearing on the motion to amend, it had provided a recording

of B.H.’s statement to Barbe’s counsel on September 29, over two

weeks before it filed its motion to amend.                       In that recorded

statement, B.H. set forth her account of the sexual assaults,

and petitioner does not contend that she changed her story.                        As

the state court observed, Barbe could not be “taken by surprise

with    the . . . revision      because        basically   the    information     was

available both before the amendment and after the amendment.”

In other words, the alteration to his indictment was one of

form,    not    substance.          The   trial    court    simply     amended    the

indictment in order to reflect the evidence the State intended

all along to present at trial.

       Like    the   district   court,      we    also   find   it    difficult   “to

conceive of how [Barbe’s] defense to charges of Second Degree

Sexual Assault by sexual intrusion would have been any different

from his defense to charges of Second Degree Sexual Assault by

sexual intercourse.”          Barbe, 740 F. Supp. 2d at 772.                   Whether

they alleged intrusion or intercourse, Counts 10 and 11 involved

                                          10
the same victim and the same two occasions.               Id.      Moreover,

Barbe’s     defense   at   trial     was    that   B.H.   fabricated    her

allegations, and that strategy would apply equally to charges of

intercourse or intrusion.     It is hard to believe that petitioner

would   have   radically   altered    his    defense   had   the   original

indictment charged him with sexual intrusion.



                                   III.

     In sum, there is no question that the trial court provided

Barbe with sufficient notice under the Due Process Clause.              For

the foregoing reasons, the judgment of the district court is

affirmed.

                                                                   AFFIRMED




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