Joseph Coles v. Keith SmithJoseph Coles v. Keith Smith
OPINION
STRANCH, Circuit Judge.
Joseph Coles, an Ohio inmate, appeals the district court‘s denial of his petition for a writ of habeas corpus under
I. PROCEDURAL HISTORY
The State initiated the prosecution against Coles in March 2006 when a grand jury returned a 242-count indictment against him. The first 111 counts, which were alleged to have occurred between January 8, 1998 and January 7, 2001, when S.D. was not yet thirteen years of age, charged Coles with 37 counts of rape, 37 counts of gross sexual imposition, and 37 counts of kidnapping with sexual motivation specificаtions. The remaining 131 counts, which were alleged to have occurred between January 8, 2001 and July 5, 2004, after S.D. turned thirteen years of age, charged Coles with 43 counts of rape, 43 counts of gross sexual imposition, 43 counts of kidnapping with sexual motivation specifications, and two counts of child endangerment.
Coles moved for a bill of particulars. The State filed one, naming the victim, giving her date of birth, and specifying the communities where the crimes occurred. Coles then moved for a more specific bill of particulars. The State did not respond to the second motion, and the trial court did not rule on it. Coles did not request a ruling on the second motion or move to dismiss the indictment. The case proceeded to jury trial on September 18, 2006.
At the close of its case-in-chief, the State nolle prosequied 40 counts, including all of the kidnapping counts charged in the time period before S.D. turned thirteen years old. With the agreement of the defense, the State narrowed the dates charged in other counts. The remaining counts were then renumbered.
After hearing the testimony of several witnesses, including 18-year-old S.D., her mother, and Coles, the jury acquitted Coles of аll charges relating to the time period before S.D. reached thirteen years of age, as well as all counts of kidnapping and child endangerment for the period after she turned thirteen. The jury convicted Coles of 43 counts of rape and 43 counts of gross sexual imposition that occurred after S.D. turned thirteen years of age.
On direct appeal, the Ohio Court of Appeals held that the trial evidence was insufficient to support thе convictions for gross sexual imposition, prompting a reversal and remand with an instruction to vacate those convictions and sentences. State v. Coles, No. 90330, 2008 WL 4436872, *3-4 (Ohio Ct.App. Oct. 2, 2008). Because gross sexual imposition is a lesser-included offense of rape, the court reasoned, the prosecution could sustain convictions for both crimes only if the conduct supporting each charge of rape was separate from the conduct supporting each charge of gross sexual imposition. Id. at *3. S.D. testified that Coles raped her multiple times after she turned thirteen years of age, but she did not identify any separate sexual conduct to support the charges for gross sexual imposition. Id. at *3-4. The court affirmed the rape convictions and sentences, ruling that the identical counts in the indictment did not violate the petitioner‘s rights to notice and protection from double jeopardy, and the prosecutor‘s remarks during closing argument did not deny him a fair trial, particularly in light of the overwhelming evidence against him. Id. at *4-8, *10-12. In March 2009 the Ohio Supreme Court declined to take jurisdiction of the appeal for lack of a substantial constitutional question.
Coles filed a
Both Coles and the State filed objections to the Report and Recommendation. The district court adopted in part and rejected in part the Report and Recommendation and denied the habeas petition. The district court declined to apply Valentine because clearly established Federal law refers to relevant Supreme Court precedent, not circuit court opinions, citing Renico v. Lett, 559 U.S. 766, 778-79, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010). The court also ruled that the decision of the Ohio Court of Appeals on the notice issue was not contrary to clearly established Supreme Court cases concerning a state defendant‘s Sixth Amendment right tо be informed of the nature and cause of the accusation. The court also determined that the state appellate court‘s holding that any prosecutorial misconduct was harmless error was not contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court.
The district court granted Coles a certificate of appealability on these two claims. We have jurisdiction of the appeal under
II. STANDARD OF REVIEW
In a
A federal habeas court may issue the writ under the contrary to clause if the state court applies a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court has] done on a set of materially indistinguishable facts. Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). The court may grant relief under the unreasonable application clause if the state court correctly identifies the governing legal principle from [Supreme Court] decisions but unreasonably applies it to the facts of the particular case. Id. This latter inquiry focuses on whether the state court‘s application of clearly established federal law is objectively unreasonable, and an unreasonable application is different from an incorrect one. Id.
When the statute refers to clearly established Federal law as determined by the Supreme Court of the United States, it means the holdings, as opposed to the dicta, of [Supreme Court] decisions as of the time of the relevant state-court decision. Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). We may not grant the writ simply because we conclude in our independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Bell, 535 U.S. at 694 (quoting Williams, 529 U.S. at 411). AEDPA imposes a standard that is highly deferential to state-court rulings, Renico, 559 U.S. at 773, and Coles must show that the state court‘s ruling on a claim was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility of fairminded disagreement. Harrington v. Richter, 562 U.S. 86, 103, 131 S.Ct. 770, 786-87, 178 L.Ed.2d 624 (2011).
III. ANALYSIS
We now take up the two issues before us: whether the state grand jury indictment charging multiple, identical counts of rape violated the petitioner‘s constitutional rights to notice and protection from double jeopardy and whether the prosecutor‘s comments in closing argument resulted in an unfair trial. Because the decision of the Ohio Court of Appeals on these issues was not contrary to controlling Supreme Court law or an unreasonable application of clearly established Supreme Court law, we affirm the district court‘s judgment denying habeas relief.
A. Indictment on multiple, undifferentiated counts did not violate petitioner‘s rights
The rape counts against Coles tracked the statutory elements of the offense, but they did not include particular facts to differentiate one alleged violation from another. This charging method, Coles argues, violated his due process right to
1. The Fifth and Sixth Amendments
The Fifth Amendment provides that [n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury....
The Supreme Court has not applied to the States the Fifth Amendment‘s requirement that all prosecutions begin with a grand jury indictment. See Alexander v. Louisiana, 405 U.S. 625, 633, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972); Hurtado v. California, 110 U.S. 516, 538, 4 S.Ct. 111, 28 L.Ed. 232 (1884); Williams v. Haviland, 467 F.3d 527, 531-34 (6th Cir.2006). The Court has applied the Sixth Amendment to the States through the Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 92 L.Ed. 682 (1948). The Sixth Amendment provides in part that [i]n all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation.
Under the Fourteenth Amendment, the States are obliged to observe the prohibition against double jeopardy. Watson v. Jago, 558 F.2d 330, 338-39 (6th Cir.1977) (citing Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969)). The concept underlying this guarantee is that the State should not be allowed to make repeated attempts to convict an individual for an alleged offensе. Benton, 395 U.S. at 796.
These federal constitutional principles are embedded in Ohio state law. A person charged in Ohio with a felony offense is entitled to an indictment setting forth the ‘nature and cause of the accusation’ pursuant to
Our inquiry focuses on what was required to inform Coles of the nature and cause of the accusation. In federal prosecutions where the Fifth Amendment applies, the Supreme Court has instructed that a grand jury indictment must contain the elements of the offense charged, it must sufficiently apprise the defendant of what he must be prepared to meet, and it must aсcurately demonstrate to what extent he may plead a former acquittal or conviction to avoid double jeopardy if subsequent proceedings are brought against him for a similar offense. Hamling, 418 U.S. at 117-18; Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). A feder-
In Valentine v. Konteh, 395 F.3d 626, 631 (6th Cir.2005), this court applied Russell, Hamling, and Cruikshank to grant partial
The court reasoned that, in view of the testimony аnd the indictment language, one of the child rape and one of the penetration counts can be sustained but ... the others must be set aside. Id. at 628. In other words, the court determined that the twenty child-rape counts charged one crime and the twenty penetration counts charged another crime. Id. at 629. Under this reasoning, Valentine received notice that he was charged with these two separate crimes during the time period specified in the indictment, id. at 628, [b]ut he had no way to otherwise identify what he was to defend against in the repetitive counts and no way to determine what charges of a similar nature could be brought against him in the future if he were re-indicted. Id. at 628-29. Having been charged and convicted for a generic pattern of abuse rather than for forty separate abusive incidents, the court held Valentine was entitled to partial habeas relief. Id. at 634.
The Valentine court based its legal reasoning on Supreme Court cases applicable to federal indictments, Russell, 369 U.S. at 763-64; Hamling, 418 U.S. at 117-18, and a few circuit cases, including Isaac v. Grider, 211 F.3d 1269, 2000 WL 571959, at *4 (6th Cir.2000), DeVonish v. Keane, 19 F.3d 107, 108 (2d Cir.1994), Fawcett v. Bablitch, 962 F.2d 617, 618-19 (7th Cir.1992), and Parks v. Hargett, 188 F.3d 519, 1999 WL 157431, at *3 (10th Cir.1999). Two of those cases, DeVonish and Fawcett, were decided before AEDPA was enacted in 1996, while Isaac and Parks—and Valentine itself—were decided before the Supreme Court issued Renico in 2010. In light of Renico‘s admonition that clearly established Federal law means relevant Supreme Court precedent and not circuit court opinions, see Renico, 559 U.S. at 778-79, and because no Supreme Court case has ever found the use of identically worded and factually indistinguish-
Even if we may look to Valentine, we nonetheless deny habeas relief on this issue. In rеjecting petitioner‘s direct appeal, the Ohio Court of Appeals observed that Valentine did not rule out multiple-count indictments, finding instead that, ‘[t]he due process problems in the indictment might have been cured had the trial court insisted that the prosecution delineate the factual bases for the forty separate incidents either before or during the trial.’ Coles, 2008 WL 4436872, at *4 (quoting Valentine, 395 F.3d at 634). The state appellate court reviewed its own case law, noting that in cases of sexual assault against children, indictments need not state with specificity the dates of the alleged abuse, so long as the prosecution establishes that the offense was committed within the time frame alleged. Id. (quoting State v. Yaacov, No. 86674, 2006 WL 2902794, at *3 (Ohio Ct.App. Oct. 12, 2006)). Specific times and dates are not elements of the crimes charged, and many children cannot recall exact dates and times. Id. at *5. The difficulty in obtaining factual specificity is increased when the accused and the victim live in the same residence and the circumstances permit extended periods of abuse. Id. As a result, allowances for reasonableness and inexactitude must be made. Id. (internal quotation marks omitted). The state appellate court аcknowledged, however, that there is an exception to the general rule if the failure to allege a specific date results in material detriment to the accused‘s ability to fairly defend himself, as where the accused asserts an alibi or claims that he was indisputably elsewhere during part, but not all, of the interval specified. Id. (quoting Yaacov, 2006 WL 2902794, at *3). In a case where the defendant, like Coles, denied any sexual conduct with the child victim, the lack of specificity in the indictment as to specific dates or places of the alleged abuse does not result in prejudice to the defense. Id. at *6 (citing State v. Ford, No. 88236, 2007 WL 1559560 (May 31, 2007)).
The state appellate court further determined that the State attempted to set forth the factual basis for each incident of molestation that occurred over a three and one-half year period. Id. at *7. The court pointed to the bill of particulars, which identified the victim, her date of birth, and the places the crimes occurred. Id. In addition, the victim described the sexual abuse to the jury in specific factual detail:
S.D. was able to recall when, where, and how the abuse occurred. She testified that the abuse started in the summer of 2001 when the family was living on Clifton Avenue in Lakewood. She testified that it was the summer between her seventh and eighth grade. Although she did not remember how it started, she remembered the abuse occurred in the living room or her mother‘s room. She was able to fully describe the house the family was living in and testified that Coles would wake her up at night when he was drunk and her mother was asleep. She testified that
Coles would tell her to come into his room or would wake her up in the middle of the night and tell her to take her clothes off and he would either have his boxer shorts on or he would be naked and he would tell her to have sex with him. She desсribed that he would either get on top of her or make her get on top of him and put his penis in her vagina. She also stated that Coles threatened her and told her that he would hurt her, kill her, break her neck, or hurt her mom if she told anyone about the abuse. S.D. testified that the abuse happened probably twice a week for the year that she was living in Lakewood. In June of 2002, when the family moved to Parma with Coles, S.D. testified that the abuse intensified so that she and Coles were having sex almost every day and that the abuse would occur in the finished basement, in Coles’ bedroom, or in her bedroom. She stated that he made her have sex with him just like he did in Lakewood and that the abuse usually occurred while her mother was at work or at night. Then S.D. became pregnant again in 2004 and Coles threatened her and told her to blame it on one of [her] guy friends. S.D. had an abortion on April 2, 2004, and remembered the date because it was also her little brother‘s birthday.1 S.D. testified that Coles made her start having sex with him one week after the abortion, telling her that she should be healed from the abortion. She then testified that Coles made her have sex a couple times a week between April 2 and July 5, 2004, when the family moved to Iowa.
Although, at one point during the trial, the State asked S.D. to estimate how many times Coles had molested her, we note that the estimation she gave was only for those crimes for which the jury acquitted Coles. In other words, S.D. guessed how many times Coles had molested her between the ages of ten and thirteen, but the jury acquitted him of those charges.
Thus, S.D. was able to put each incident in a time frame by detailing where it happened and which house she was living in. She was also able to place certain offenses within a particular time frame by tying the offenses to her grade in school. [case citations omitted] And, like Yaacov, but unlike the situations in Valentine and Hemphill, other evidence was presented to substantiate S.D.‘s claims. Dawn Coles testified that Coles admitted to her that he and her daughter were lovers. The medical records substantiated that S.D. had an abortion in April 2004. And the State was able to show that the frequency of rape increased when Dawn was pregnant.
In this case, the State attempted to set forth the factual basis for each incident of molestation that occurred over a three and one-half year period. The allegation was that Coles molested his stepdaughter repeatedly for over three years. The bill of particulars identified the victim, her date of birth, and the places the crimes occurred. The trial court instructed the jurors that each of the charges constitutes a distinct and separate offense, and that they must consider each count separately. [case citation omitted]
We also find that the failure to allege specific dates did not prejudice Coles’
Thus, we conclude the indictment was properly filed and alleged sufficient facts to apprise Coles of the charges against him. Coles, 2008 WL 4436872, at *6-8.2
Coles has not shown that the state appellate court‘s ruling on his claim was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility of fairminded disagreement. Richter, 131 S.Ct. at 786-87. Our conclusion is consistent with our prior decisions distinguishing Valentine in
B. The prosecutor‘s remarks in closing argument did not result in an unfair trial
Coles next contends that the prosecutor improperly vouched for S.D.‘s credibility and attacked his character during closing argument. A prosecutor‘s improper comments during closing argument violate the Constitution only if they so infect the trial with unfairness that the resulting conviction is a denial of due process. Parker v. Matthews, 567 U.S. 37, 45, 132 S.Ct. 2148, 2153, 183 L.Ed.2d 32 (2012) (citing Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986)).
The Ohio Court of Appeals observed that the State is permitted to comment on the testimony of witnesses and the evidence, and may suggest a logical conclusion that can be drawn. Coles, 2008 WL 4436872, at *11. The court agreed with Coles that the prosecutor improperly expressed a personal opinion during closing argument, but also ruled that the prosecutor was arguably commenting on what the evidence showed. The prosecutor was not averring to his personal knowledge, but he was using the statements to enforce what the evidence and testimony revealed. Id. In addition, the state appellate court noted that the trial court cautioned the prosecutor and instructed the jury to disregard the prosecutor‘s statements. Id. Finally, the court found that the overwhelming evidence of guilt renders this alleged error [of prosecutorial misconduct] harmless. The trial court instructed the jury that it must decide the case on the evidence and that ... closing arguments were not evidence. We presume that the jury followed the court‘s instructions. Id. The court determined that the prosecutor‘s comments did not prejudice Coles or deny him a fair trial, and the court could not say that absent the prosecutor‘s statements, the outcome of the trial would have been different. Id. at *11-12.
This state appellate decision is entitled to deference under AEDPA. See Parker, 132 S.Ct. at 2153. Even if the prosecutor‘s comments directed the jury‘s attention to inaрpropriate considerations, that would not establish that the [state appellate court‘s] rejection of the Darden prosecutorial misconduct claim ‘was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.’ Id. at 2155 (quoting Richter, 131 S.Ct. at 786-87). In Parker, the Supreme Court ruled that this circuit had no warrant to set aside the Kentucky Supreme Court‘s conclusion on a prosecutorial misconduct claim, and similarly, no warrant exists to do so here.
In his brief filed in this court, Coles mentions two other comments made by the prosecutor during closing argument, but the State correctly points out that those comments were not raised as the basis for the prosecutorial misconduct claim on direct appeal in state court. Any claim of prosecutorial misconduct springing from those comments is now procedurally defaulted, and Coles has not demonstrated cause and prejudice for the default or that a miscarriage of justice will result if the claim is not heard. See Bradshaw v. Richey, 546 U.S. 74, 79, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005) (per curiam).
IV. CONCLUSION
The Supreme Court has never held that a state prosecutor‘s use of a multiple-count, undifferentiated indictment violates a dеfendant‘s Sixth Amendment rights. Because of the lack of clearly established Supreme Court law on this point and the petitioner‘s failure to demonstrate that the decision of the Ohio Court of Appeals was contrary to, or an unreasonable application of, controlling Supreme Court law, Coles cannot obtain habeas relief on his claim that the indictment failed to give notice, to provide a fair opportunity to defend, and to provide protection from double jeopardy. In addition, the Supreme Court‘s decision in Parker compels us to defer to the stаte appellate court‘s decision that the prosecutor‘s comments during closing argument, though at times improper, did not result in an unfair trial.
Accordingly, we AFFIRM the judgment of the district court denying habeas relief.