*1 materials, of its light other relevant Under persist. continued G-A- in Matter G-A-. circumstances, opinion must conclude we these analyze Alsafs Board failed light claim in Torture Against Convention applica conditions and country
of relevant prop Board Had the legal precedent.
ble relevant “all evidence
erly considered Iran, torture” of future possibility 367; G-A-, I. & N. Dec.
Matter of 208.16(c)(3), might it 8 C.F.R. accord VALENTINE, E. Michael differently. Alsafs claim adjudicated Petitioner-Appellee, is to Thus, course of action appropriate v. proper for to the Board remand this case See, e.g., claim. of Alsafs consideration KONTEH, Warden, Khelleh 463, 477-78 Ashcroft, 333 F.3d Zubeda v. Respondent-Appellant. Cir.2003) (3d (remanding where No. 03-4027. ... re “totally ignores opinion Board’s agencies and hu government ports from Appeals, United States Court that detail what rights organizations man Sixth Circuit. wide, systematic inci country appear mutilation, Argued: Sept. rape, and mass gang dents of INS, murder”); Kamalthas F.3d 24, 2005. Decided and Filed: Jan. Cir.2001) (9th (remanding did the opinion where “nowhere its country consider the documented
[Board] corroborate in Sri Lanka which
conditions of torture widespread practice INS, males”); Mansour v. F.3d
Tamil Cir.2000) (remanding where failed to discuss opinion
the Board’s report detailing country department
state observing that “had Iraq,
conditions Report might addressed the
the [Board] torture claim applicant’s]
have viewed [the
differently”).
III. foregoing, petition Alsafs
Given the GRANTED, the Board’s decision
review is hereby RE- and the is case VACATED
MANDED to the Board instructions analyze Against Tor- Alsafs Convention country light
ture claim in of the relevant in Iran as documented
conditions Country among Reports,
1999 and 2000 *2 Columbus, Ohio, Office, for Ap-
Defender’s pellee. MOORE, MERRITT,
Before: *3 GILMAN, Judges. Circuit OPINION MERRITT, Judge. Circuit Michael jury An Ohio convicted Valen- abuse, for which of 40 counts of sexual tine life was sentenced to consecutive he bringing petition for habe- sentences. in- he contends that the Ohio corpus, right his constitutional dictment violated was convicted of process. child each “carbon-copy” rape, counts of identically worded so of which was among no differentiation there was charges and 20 counts of felonious sexual each of which was also identi- penetration, cally worded. The did distinguish the factual bases these indictment, in charges in the the bill of only or even at trial. The particulars, evidence as to the number offenses testimony, of the child provided victim, typical abuse scenar- who described of times the ios and estimated the number occurred, 20,” e.g., offenses “about abusive The Dis- “about 15” or “about 10” times. of habeas cor- trict Court issued the writ to all counts on the pus respect with and conviction ground that the indictment violated Valentine’s federal due to notice of the crime rights specificity so that he would not sufficient of the same again put jeopardy crime. conclude that in the view of the
We testimony language, indictment and the pen- rape one of the child and one Criss, M. Office of Scott ARGUED: can etration counts be sustained but General, Litigation Attorney Corrections be set aside. Valentine the others must Columbus, Ohio, Section, Appellant. for charged with the had notice that he was Farnbacher, A. Public Defender’s Barbara during separate crimes two Office, Columbus, Ohio, Appellee. for ON But in the indictment. he specified time Criss, Assistant United BRIEF: M. Scott identify what he way had no to otherwise Ohio, Columbus, Attorney, Ap- repetitive against States was to defend Farnbacher, way to determine what counts and no A. Public pellant. Barbara of a similar nature could be force or threat of force.” The of par- bill brought him in against the future if he ticulars did not offer further differentiation Thus, regard were re-indicted. we the 20 among the counts. merely re- rape charging child counts as one crime stated the allegations and identified the penetration and the 20 counts as charging family home as the location of forty all single ruling another crime. Our means offenses. that Valentine cannot be subsequently trial, At the witness charged with the same crimes testify as to the number of assaults stepdaughter during period. the stated committed the defendant eight- was the year-old victim herself. She testified that *4 I. Valentine forced her perform fellatio in tried, Michael Valentine prosecuted, was family living room on twenty” “about and convicted for the sexual abuse of his occasions and that Valentine digitally pen- eight-year-old stepdaughter. Valentine etrated vagina her family living began living with the victim’s mother in room on “about fifteen” occasions. The August of 1991 and married her in Febru- child went on to testify generally as to ary 18, 1996, of 1994. January On further similar occurring incidents in her child second-grade told her teacher that bedroom, in siblings’ bedroom, her and in her stepfather had been abusing her. The her mother and Valentine’s bedroom. She teacher took her to the principal, who con- additionally testified that Valentine Cuyahoga County tacted the Department anal penetration achieved penis with his on Family Services and her mother. “about ten” occasions. As the Petitioner May On grand jury Cuya- out, points the victim altered her numbers hoga County a forty-count issued indict- somewhat during cross-examination. ment, charging twenty Valentine with counts of child rape twenty counts of returned a verdict convicting penetration felonious sexual of a minor. counts, Valentine of all 40 and the court of indictment, According to the forty all of- pleas common for Cuyahoga County sen- fenses occurred between March 1995 tenced him to 40 consecutive life terms. January rape 1996. Each count The Ohio of Appeals Court affirmed the alleged that “unlawfully engaged Valentine convictions on all rape 20 counts of but in sexual stepdaughter] conduct with [the the 20 pen- felonious sexual spouse by not his purposely compelling her Finding etration counts. that “no evidence by to submit the use of force or threat of supports counts,” the additional five force, stepdaughter] [the being under the court reversed the five convictions on age of years, to-wit: d.o.b. 11-18-87.” Counts 36-40 and vacated the sentences No further information was included to imposed for them. The Ohio Court of differentiate one count from another. Appeals presumably based these reversals Likewise, each felonious sexual penetration testimony the child’s that Valentine had identical, count was alleging that Valentine digitally penetrated vagina her fif- “about “unlawfully privilege without to do so in- ' Supreme teen” times. The Ohio Court part instrument, serted a body, of the appeal. denied leave to then Valentine apparatus object or other finger, to-wit: unsuccessfully pursued post-convic- state vaginal another, into the cavity or anal tion remedies. stepdaughter] to-wit: spouse [the not the In March petition Valentine filed a of the offender and who was under the age years, 11-18-87, seeking to-wit: the Northern District of Ohio by d.o.b. purposely compelling her to corpus submit writ of habeas pursuant to 28 on a that reached this Court site to petition, he raised In his § 2254.
U.S.C.
if
court
or
the state
appealed
question of law
issues,
of which is
only one
four
differently than this
that his
decides a case
claimed
to this court.
materially
indistin-
process of law
has on set
right to due
Court
“constitutional
the “unreason-
he
tried and convict-
facts. Under
guishable
was
denied when
clause,
specify
a federal
which did
habeas
application”
indictment
able
ed on an
conduct on
may grant
between
the writ
the state
distinguish
court
a date
Court is-
governing
The District
correct
date.”
court
identifies the
any given
in the
finding the indictment
but
the writ
from this Court’s decisions
principle
sued
process
principle
violated Valentine’s
unreasonably applies
case
found that
the court
Specifically,
rights.
case.
prisoner’s
the facts
indictment vio-
counts in the
the identical
1495. Writ-
notified of
right to be
his due
lated
Court,
points
O’Connor
ing for the
Justice
reasonable certain-
crime
application of
“that an unreasonable
out
fairly protect himself
ty
that he could
so
from an incorrect
federal law is different
jeopardy.
from double
law.” Id. at
application of federal
*5
“a
holds that
feder-
1495. The Court
S.Ct.
II.
may not issue the writ
al habeas court
pursuant
made
petition was
Valentine’s
concludes in its
simply because that court
by
§
amended
the
to
2254 as
28 U.S.C.
judgment
the relevant
independent
Penalty
and Effective Death
Antiterrorism
clearly
applied
decision
estab-
state-court
(AEDPA).
por-
The relevant
Act of 1996
erroneously or incorrect-
lished federal law
provides:
statute
tion of the habeas
1495.
ly.” Id. at
120 S.Ct.
(d)
a writ of habeas
application
An
only if the state court’s
the writ
issue
custody
person
of a
corpus on behalf
precedent
Court
is
application
Supreme
of a
pursuant
judgment
State
objectively
Id. As this
unreasonable.
respect
with
granted
court
not be
shall
2254(d)(1)
noted, §
“tells federal
Court has
adjudicated on
any
to
claim that was not
off,
judgment
unless the
courts: Hands
proceed-
court
in the State
the merits
grave enough
on an
to
place is based
error
adjudication of the
”
ings unless the
v. Bil-
called ‘unreasonable.’ Herbert
be
claim—
(6th Cir.1998).
As
ly, 160 F.3d
1135
(1)
that was
in a decision
resulted
found, “the
the District Court
Ohio Court
to,
contrary
or involved
unreason-
correctly
the issue to
Appeals
construed
of, clearly established
application
able
specificity
lack of
the
be whether the
law,
by
as determined
the
Federal
conduct result-
indictment as to dates and
of the United States.
Supreme Court
right
in a denial of Mr. Valentine’s
to
ed
2254(d)(1).
§
28 U.S.C.
Thus,
process
due
of law.”
Valentine’s
In
to obtain federal
order for Valentine
turns on whether the Ohio
petition
habeas
relief,
he must demonstrate
habeas
unreasonably applied Supreme
state courts
his
the condition established
case satisfies
precedent regarding
process
the due
Court
2254(d)(1).
§
by
In Williams v.
28 U.S.C.
charging instruments.
requirements for
Taylor,
120
146
529 U.S.
S.Ct.
III.
(2000),
Supreme
the
Court
L.Ed.2d 389
amendment:
explained
impact
writ,
the
this
In
granting Valentine
upon Russell v. Unit
clause,
District Court relied
“contrary to”
a federal
Under the
States,
1038, 8
may grant the writ if the
ed
habeas court
(1962),
and found that
oppo-
at a conclusion
L.Ed.2d
state court arrives
unreasonably
had
Court of
Wdiile the indictment
did
Ohio
case
process principles
comply
prong
its due
in Valen-
first
applied
by
of Russell
Russell,
appeal.
Supreme
adequately
out the
setting
tine’s
elements of the
offense,
put
forth the criteria
which the
the multiple,
Court
undifferenti-
sufficiency
of an indictment is to be mea-
ated
in the indictment violated
Valentine’s rights
sured:
to notice and
right
his
protected
from double jeopardy. The
are, first,
These criteria
whether
failure of the
Court of Appeals
Ohio
elements of
indictment “contains the
rectify these
un-
violations constitutes an
charged,
offense intended to be
‘and suf-
application
reasonable
of well-established
ficiently apprises the defendant of what
’
constitutional law as
announced
the Su-
meet,”
and,
prepared
must be
he
preme Court.
secondly,
any
‘“in
proceed-
case
other
him
ings
are taken
for a similar
A.
offense whether
record
shows with
Russell,
accuracy
may plead
he
what extent
Under
criminal
’
acquittal
must give
adequate
former
or conviction.”
defendant
notice
order
enable him to
763-64,
Thus,
U.S. at
S.Ct.
mount a
defense.
U.S. at
(1)
an indictment
sufficient
S.Ct. 1038. Fair notice
is essential
the charged
contains
elements of
of
prosecutions:
criminal
(2)
fense,
gives
adequate
the defendant
principle
No
procedural
(3)
charges,
protects
notice of the
*6
is more clearly established than that
against
jeopardy.1
defendant
double
specific charge,
notice of the
a
and
a
right
grand jury
While
federal
chance to be
in a
heard
trial of the
indictment has never
found to
been
desired,
issues raised
charge, if
states,
incorporated against the
see Hurta
among
are
rights
the constitutional
of
516, 534-35,
California,
v.
4
do
110 U.S.
every
a
proceeding
accused in
criminal
111,
232(1884),
S.Ct.
28 L.Ed.
courts have
courts,
in all
state
federal.
that
process rights
found
the due
enunciat
Arkansas,
required
196,
ed in Russell are
not
in Cole v.
333 U.S.
68 S.Ct.
514,
(1948);
crimi
federal indictments but also
state
sonable (“In in his involving heard defense child sexual many to be cases opportunity system jurispru- abuse, basic in our of tender ... are victims are children Tate, dence.”); 1987 WL v. Madden years simply unable to remember who are (“The (6th Cir.1987) Due Process at *3 times, particularly where exact dates the Fourteenth Amendment Clause repeated course of involve crimes charging that method mandates whatever time.”). period conduct an extended over give must criminal employs the state and numerous others This Court fair notice of defendant fairly time windows large have found that adequate prepara- him to permit prosecutions child the context of abuse defense.”). his tion of not with notice are in conflict constitutional District decided this case As the Court Grider, Isaac requirements. See v. grounds, it jeopardy” “double did (four months); Madden WL at *5 provided indictment rule on whether the (6th Tate, v. at *l-*3 1987 WL notice. adequate Yet Valentine (six Cir.1987) months); Fawcett v. see also that suggest court did that was “doubtful Bablitch, F.2d Cir. 618-19 ‘sufficiently ap- the indictment in this case 1992) (six months); Mexi Hunter v. New of what he must be prises the defendant ’ (10th Cir.1990) (three co, F.2d prepared meet.” Valentine Huff- years); Hargett, Parks v. 1999 WL man, (quoting at 1024 Rus- F.Supp.2d (seventeen (10th Cir.1999) months). *4 1038). sell, 369 U.S. at specif Certainly, prosecutors should be as notice essentially points two Valentine (1) possible ic the dates and delineating as wide problems with the indictment: offenses, (2) ac times of abuse but we must range and lack of differentia- date charges. among reality tion the criminal of situations where knowledge the young are involved. The child victims First, challenges wide date there Ohio Court of found standing way in the of his range itself specif was no the state had more evidence Valentine contends the lack defense. regarding ic information the time prejudiced times him specific dates and *7 regarding the abuse. Valentine’s claims large portions had alibi defenses for as he date-specific the lack time- and counts of by the indictment. of the covered Valentine, F.Supp.2d at 1025. fail. See therefore The that such indictments state maintains not the problem this case is necessary young are the victims fact prosecution provide that the did not a only abuse cases like this one “have places. the with exact times and defendant perception limited of time and limited fac- singular If of each had been counts there and specific ulties to define dates times of offense, particularity of the lack would they traumatic abuse the sexual endured.” In presented problem. have the same Resp.’s Br. 2. As the Ohio Court of stead, set problem the that within each emphasizes, law Appeals decision Ohio counts, absolutely of 20 are no dis there supports position. See State v. Dan- prosecuted tinctions made. Valentine was iel, 548, 556, 97 Ohio 647 N.E.2d App.3d twenty for two acts that criminal occurred (“It (1994) that, is well established each, than forty separate times rather involving pai'ticularly cases sexual mis- in its criminal acts. In its and child, precise conduct with the times and jury, the evidence before the or alleged offense offenses dates attempt lay did not out factual bases be with oftentimes cannot determined Mundy, forty place. of took specificity.”); separate v. 99 Ohio incidents that State “Where, statutory 8-year-old victim described definition of an terms, offense “typical” employs generic abusive behavior Valentine it is not sufficient “typical” charge and then testified.that abuse offense fifteen twenty statute; occurred times. Outside same terms employed estimate, no of the victim’s evidence as to the indictment must ‘descend to particu ” presented. Sullivan, the number of incidents was lars.’ United States (10th Cir.1990) F.2d (quoting way Given the Valentine indicted States, Russell v. United tried, and have been incredibly 8 L.Ed.2d ... jury difficult for the to consider each count (1962)); Hamling, see also 418 U.S. at jury its own. The could not have found (“[t]he 117-18, 94 language S.Ct. 2887 guilty Valentine of Counts but not the statute used in general could jury Counts 6-20. Nor offence, description of an but it must be guilty found him of Counts 5 and n accompaniedwith such statement of but not the a result rest. Such would be the facts and circumstances as will in unintelligible, the criminal because counts form offence, the specific accused of distinguishable were not connected to inci- coming general under the description, dents. The could have found him some, charged.”). which he is “not guilty” the counts they reached the conclusion that the child Yet, Id. at *3. the Parks court did not victim had overestimated the number of reach the issue as it determined that the abusive acts. Just as courts should not defendant had actual adequate notice of permit prosecutions abuse be defeated pre-trial him. Id. At a ability due to the limited child victims to hearing, the defendant “received actual no- details, precise temporal remember they tice of identity the name the six- permit should for similar reasons not mul- year old child and the fact that he was tiple solely convictions to stand based on a separate with three incidents of child’s numerical estimate. molestation, alleged one have occurred bedroom, tub, in his in his hot another forty
As the criminal counts were not a third in the bathroom of his home.” Id. distinguishable anchored forty criminal information, specific With this the court offenses, ability little had to de- concluded that the defendant had “actual case, fend himself. a similar the Court sufficiently specific notice of facts to re- for the Tenth Circuit reviewed spond prepare an ade- prisoner petition habeas from convicted quate defense.” Id. of three counts of sexual abuse. Parks v. *8 (10th Cir.1999). case, Hargett, 1999 In that victim WL 157431 the child would have The charging information set forth multi- demonstrated three distinct recollections: (1) (2) ple identically bedroom, worded counts of sexual abuse the defendant’s (3) tub, abuse of an minor over a abuse his hot and abuse in unnamed seven- his period: teen-month or bathroom. July jury presumably between The would “[0]n 1988 and 1989 ... have as to testimony November defendant heard each of the did unlawfully upon, ... look touch three recollections and would have as- and body parts feel of the sessed the of the private credibility and of a six child victim year regarding old female child a lewd and each count. the lascivi- case, Bryan County, ous manner ... no factual were Okla- distinctions made among any forty homa.” Id. at *2. The court counts. indicated that of the The rec- charging specification the ord information alone did not indicates that some was requisite possible. have the The described dif- specificity: child victim room, it, (bedroom, they understand living believe the evidence as ferent locations room), room, conviction, different siblings’ I comes back with a think parents’ and (fellatio, penetration, vaginal actions Apx. sexual nothing all or case.” this is a[n] day times of different penetration), anal added). The trial court (emphasis school, in the middle after (early morning, jury that acknowledged the either little Despite potential, this night). forty all counts or convict Valentine on the whole disaggregate made effort was forty prose- him of all counts. The acquit forty the case try and of the abuse not indicted and tried cution should have charged. as counts nothing” an “all or case the this as indictment, particulars, bill of The the permitted such trial court should not have at trial failed the evidence and even given must be ade- a trial. Defendants of what occurrences the defendant apprise notice of all the made quate criminal the bases formed legal them. had against While Valentine prosecuted was he faced. Valentine actual notice he must defend that of abuse generic pattern for a convicted allegations the child’s of sexual against inci- forty separate for abusive rather than period, a he abuse over ten-month authority to enact dents. States no notice of incidents given or regarding “pattern” criminal statutes which he was tried and convicted. They do “continuing course” of abuse.2 one for power prosecute not have the through simply charging B.
pattern of abuse
with the
basic offense
a defendant
same
process
requires
Due
also
that
many times over.
criminal defen
charges provide
criminal
problems in the indict-
ability
protect
with the
them
dants
had the trial
might have been cured
ment
pres
In the
jeopardy.
from double
selves
delin-
court insisted
case,
presented
ent
the indictment
two
forty sepa-
factual
for the
eate the
bases
jeopardy
problems.
double
important
during
or
incidents either before
rate
First,
specificity in
there was insufficient
But,
to differenti-
trial.
due to
failure
the indictment or in the trial record to
ate,
successfully de-
could
plead convictions
enable Valentine to
by
some of the
effec-
against
fend
acquittals
prosecutions.
bar to future
charges.
tively defending
all of
Second, counts intro
undifferentiated
difficulty
acknowledged
The trial court
very
possibility
real
that Valen
duced
attorneys:
“This
in chambers with the
subject
jeopardy
tine would be
to double
case;
reviewing
the evidence as I recall
being punished
chooses to in his initial trial
multi
my notes is
Fortier,
See,
over a
e.g.,
State v.
146 N.H.
assault
of time
same
(2001)
assailant,
(discussing
identify
A.2d
1249-50
are unable to
discrete
(2004));
§
III
N.H.Rev.Stat. Ann.
632-A:
pattern
acts of
focus of a
molestation. The
Quinones,
People v.
8 A.D.3d
continuing
statute is to criminalize a
course
(2004) (discussing N.Y. Penal
N.Y.S.2d 131
assaults,
isolated
of sexual
instances.
*9
2003)).
(McKinney
pat-
§
Such
Law 130.75
pattern
culpable act
the
The essential
is
are,
part,
response
the
statutes
in
tern
itself,
is, the
more
that
occurrence of
than
provide specific
inability
child victims to
time,
period
sexual
one
assault over
about
information
abuse:
specific
comprising
and not
assaults
Pattern statutes for sexual assaults
pattern.
respond
to the concern that
been enacted
Corpus
§
6A
Juris Secundum 75 Sexual As-
victims,
subject
many young
have been
who
(2004).
sault
repeated
incidents of sexual
numerous
what factual
may
presented
for what
have been the
incidents were
pie times
jury.
offense.
decided
If
same
this
Valentine had
guilty,
been found not
it is not clear to
Russell,
In
the court found that indict-
ably
what extent he could
assert that his
only constitutionally
are
sufficient
ments
acquittal
prosecution
barred
for other sim-
accuracy to
“the record shows with
what
ilar incidents.
acquittal
a former
plead
extent he
against
taken
proceedings
conviction”
The state now declares it “is willing
him
at
for a similar offense. 369 U.S.
stipulate,
Valentine cannot be indicted
that
637
they
consistency
convictions when
are unable to dis-
opinion.
our
The dissent
supports
cern the evidence that
each indi-
holding
asserts that our
that there must be
vidual conviction.
some differentiation
multiple
between
counts is inconsistent
holding
with our
charging
The deficient
child abuse indictments need
always
not
management
and the
failure
point to specific times and locations. The
court, however,
of the trial
not
should
dis
dissent maintains that
“the
reason
(the
turb the verdicts for
1
Count
first
that there are no distinctions made within
count)
(the
rape
and Count 21
first feloni
each set of 20 counts is because the defen-
count)
penetration
ous sexual
of this case.
provided
dant was not
with the exact time
prosecutor presented
substantial evi
place
and
specifications.”
simply
This is
abuse,
of ongoing
dence
which
faulty logic. Requiring some minimal dif-
opportunity
Valentine had notice and
ferentiation between criminal counts is
witnesses,
jury
defend. The
heard the
quite different from requiring “exact time
evidence,
evaluated the
and was convinced
place specifications.”
Certainly, this
guilt.
Valentine’s
Had this case been
opinion
require
does not
that indictments
counts,
tried in two
the convictions would
allege
date, hour,
precise
location
Thus,
clearly
any
stand.
constitutional er
Instead,
defendant,
of crimes.
ror with regard to the other 38 counts
judge,
and the
must be able to tell
should not
render
invalid these
two
one count from another.
Abrahamson,
counts. See Brecht v.
sure,
U.S.
123 L.Ed.2d
To be
differentiation will often re-
(1993) (finding
quire
when federal
reference to
ranges
date
or time
convictions,
collaterally
courts
review
ranges
trial
or certain locations or certain ac-
they
errors are harmless unless
But,
“had a
tions.
differentiation does not re-
injurious
substantial and
effect or influ quire overly-burdensome precision. No-
verdict.”).
ence in determining
jury’s
tably,
every
each and
case cited
The constitutional errors in
this case lie
dissent demonstrates that differentiation
identical counts rather
than
quite
is
possible
exacting
without
specific-
generic
statutory language of the
ity.
Tate,
In Madden v.
Our would find that (1989), Mulkey, 316 Md. A.2d all of the convictions at issue in appeal the indictment demonstrates that even they should stand unreasonably are not charged when a defendant is with twelve require- inconsistent with constitutional crime, counts of the same the counts can concerning ments criminal charges. Nota- distinguished bly, from one another. any prece- dissent cannot offer Mulkey, any dents from this the defendant was Court other that support the use of four counts of abuse that multiple, identical occurred undifferentiated counts. summer of four counts the sum- primary objection in- perceived is over a mer of and four counts in the sum-
638 path as to strayed so far from that four has Even the 1984. mer of 72, id. at 123 habeas relief. See were distinct. See warrant summer within each 501, Md.App. 534 Mulkey, 73 S.Ct. v. State (1988), 1 1374, & n. overruled A.2d dissenting colleague agree with our We 475, 560 Mulkey, 316 Md. State responsive and courts must be aware that (1989). opin- court As the lower A.2d child abuse unique problems of indicates, separable: count was each ion agree adopting that hard-and- cases. We Mulkey 2, 6, allege that and 10 Counts a disservice rules would be pleading fast upon act James S. a sexual committed But, these difficulties this area of the law. Mulkey that alleged and Counts abandon the permit simply not us to do upon sexual act a different committed espe- law we find crime rule of because alleged and Counts James S. trial was cially abhorrent. Valentine’s a sexual act Mulkey committed from some core val- radically disconnected victim, Marilyn S. Counts upon another system. pros- Neither the legal ues of our Mulkey commit- allege that and 13 defense, court, ecutor, nor the upon Marilyn at S. sexual ted a different any incidents formed ever had idea of what the indictment did not at n. 1. While Id. are forty of the counts. There the bases times, locations, dates, and allege specific notice, ordinary of rules of du- violations among the ensure differentiation did jury unanimity, double plicity, multiplicity, After an exten- counts. otherwise similar sufficiency and of the evidence. jeopardy, search, cannot find one court we sive forty consecutive life He was sentenced to up- and actually considered the issue has a child’s round-num- sentences based on identically-worded multiple use of held the ber, many as to how times she guesstimate counts factually-indistinguishable was assaulted. any other. context or ruling that this There is little indication that we should urges The dissent “severely hamper” will treatment Appeals find the Ohio Court case, Even in this we crimes of abuse. application of of this case reasonable gave the two counts that no- upheld have law, Supreme as “no Court constitutional crimes, separate and the sentence is tice identically ever found the use case has sentences, an extreme- two consecutive life in factually indistinguishable
worded
Nothing in this
ly
punishment.
harsh
(Post,
11)
at
unconstitutional.”
dictments
prosecutions
abuse
opinion limits sexual
state courts do
(emphasis
original).
Yet
“exceedingly
precise
narrow and
so-called
simply because the
reign
free
expressly rejects
It
Valentine’s
charges.”
a case
Supreme
has not decided
Court
challenge
ground.
on that
The Constitu-
claim
issue.
exact
does, however,
that if a
tion
demand
defen-
relevant
“clearly
Federal law”
established
going
dant is
to be
govern
“the
encompasses
under AEDPA
crime, there
counts of the same
must
principles set forth
ing legal principle or
minimal differentiation between the
some
at the time the
Supreme
Court
point
proceeding.
at some
counts
state court renders
its decision.” See
differentiation,
prose-
these
Without such
Andrade,
63, 71-72,
Lockyer v.
nothing the consti-
cutions would reduce to
(2003).
L.Ed.2d 144
Fifth and Four-
protections
tutional
a clear
Supreme
Court has established
teenth Amendments.
regard
courts
path
and consistent
for the
We,
therefore,
affirm the District
sufficiency of criminal
ing
the due
regarding the carbon-
judgment
Court’s
charges, and the Ohio Court
upheld
2-20 and
copy charges
multiple identically-
Counts
Counts
the use
judg-
reverse the District Court’s
worded
factually-indistinguishable
regarding
convictions on
ment
Valentine’s
any
Op.
counts
this context or
other.”
*13
1 and
and remand to the
Count
Count
I
Although
dispute
do not
grant
instructions to
District Court with
research, I
majority’s
equally
find
telling
inappro-
vacates the
the writ unless Ohio
Supreme
the fact that no
Court case has
and re-sentences Valen-
priate convictions
identically
ever found the use of
worded
opinion.
in accordance with this
tine
factually indistinguishable
and
indictments
unconstitutional.
GILMAN,
RONALD LEE
Circuit
To
contrary, many
courts have found
in
Judge, concurring
part
dissenting
in
and
vague
the use of indictments that are
as to
part.
place
the time and
of multiple offenses to
I, II,
I concur
Parts
and IV of the
withstand constitutional attack. The de-
majority opinion
opinion
insofar as the
re
Tate,
fendant in Madden v.
No.
(the
verses the district court as to Count 1
(6th
at *1
Sept.30,
WL
Cir.
(the
count)
rape
first
first
Count
1987) (unpublished),
example,
was con-
count) by con
felonious-sexual-penetration
sexually
victed of
abusing
eight-year-
his
cluding
nondupli-
that those two counts are
old
My
majori
granddaughter
11-year-old
disagreement
cative.
with the
son.
III
ty
respect
comes with
to Part
of its
In rejecting
argument
Madden’s
that the
opinion, which concludes that the district
provide
indictment failed to
him with suffi-
it granted
court was not
error when
cient notice of the
to
him
enable
to
petition
corpus
Valentine’s
for habeas
re
defense,
prepare his
the court concluded
Although
lief on Counts 2-20 and 22-35.
that the
majority
acknowledged
properly
has
[fjailure
specify
dates
precise
governed by
that this case is
the Antiter-
upon
alleged
which the
crimes occurred
Penalty Act of
rorism and Effective Death
deprive
does not
the defendant of his
(AEDPA),
§ 2254
which
28 U.S.C.
right
constitutional
to due
where
increased the deference that federal courts
time is not of the essence of the offense
decisions,
give
must
to state-court
the Su
picked
and where the dates used are not
preme
against simply
Court has cautioned
arbitrarily ....
is this a
Neither
case
“recit[ing]
[and
this standard
then evaluat
prosecution deliberately
where the
re-
ing] respondent’s claim
rather
de novo
dates;
young
provide
fused to
vic-
”
2254(d)
through
§
than
the lens of
....
provide
tims were not
fact able to
Vincent,
Price v.
dates,
provided
and the
frames
time
(2003).
1848, 155
S.Ct.
L.Ed.2d 877
upon
were based
their best recollections.
majority
first concludes on the mer-
process.
There was no denial of due
process rights
its that Valentine’s due
Bablitch,
Id. at *3.
Fawcett v.
962 F.2d
Cf.
were violated because the indictment
(7th Cir.1992)
(rejecting
defendant’s
to appraise
failed under Russell
question
argument that his conviction on two counts
prepared
Valentine of what he must be
pe
of sexual misconduct over
six-month
authority
majority
meet. But the
cites no
him
infor
provided
riod
with insufficient
for its conclusion that the use of
defense);
v. Mul
mation to mount
State
of child
identical counts
instances
abuse
(1989)
24, 30
key, 316 Md.
560 A.2d
sufficiently apprise
failed to
Valentine of
that his
(rejecting
argument
a defendant’s
majority
he faced. The
fur-
third-degree
conviction on twelve counts of
ther claims that it “cannot find one court
dupli
actually
that has
considered the issue and sexual offense—some of which were
Sullivan,
right
(quoting
his
to at *3
United States
each other —violated
cates of
Cir.1990)).
defense,
noting
that “[b]e-
This
919 F.2d
multiple sexual
however,
involved
discussion,
canse the
applied not
violations,
child-victims were
offense
adequacy
place specifics
of the time and
dates or times
the exact
specify
unable
(as
is the case
provided
the defendant
apprised
defendant]
the acts.
[The
here),
specificity
but with
continuing nature of the offenses
charge.
has conceded that the
preju
was not
that his defense
such
specific enough
question
indictment
diced.”).
satisfy
requirement
first
the Russell’s
*14
that none of these cases
acknowledge
I
the elements of
contain[]
“the indictment
finding constitu-
to the extent of
gone
has
charged.”
the offense intended to be
Rus-
factually indis-
20 or more
tionally sound
sell,
at
I
369 U.S.
But I note that the
counts.
tinguishable
majority’s
therefore find the
reliance on
analysis in
majority’s
linchpin of the
in
puzzling.
this discussion Parks
fact that “within
upon the
case is based
in
disturbing
and more
puzzling
Less
counts,
absolutely
are
of 20
there
each set
my
prohibiting
is that
the use of
opinion
Op. at 632. Just
no distinctions made.”
single
in a
in-
multiple
identical
earlier, however,
majori-
two sentences
severely hamper a
dictment would
state’s
problem in this
ty concedes that “[t]he
ability
young
crimes
prosecute
to
where
that the
did
case is not the fact
and the
wit-
child is both the victim
sole
with exact times
provide
not
the defendant
difficult,
Young
ness.
children often make
frankly
I
find these two
places.”
Id.
effect,
contradictory.
In
forgetful,
uncooperative
statements
witnesses
are no distinctions
only reason that there
understanding,
limited
abuse cases. Their
of 20 counts is be-
made within each set
with a
desire to
combined
subconscious
provided
was not
cause the defendant
abuse,
“forget” the
often makes them
specifications.
place
the exact time and
Pennsylvania
vague and unretentive. See
above,
Yet,
I
the authorities cited
based on
Ritchie,
S.Ct.
requirement
can discern no constitutional
(1987) (“Child
ries not be documented. to, contrary Appeals the Ohio Court of was exceeding- to restricting prosecutions rule of, application or involvéd an unreasonable a sex-abuse ly precise charges, narrow In clearly federal law. its dis- established be limited to a charge presumptively cussion, court appellate applied the state abuse, despite clear single instance of evi- subject law on the of child existing Ohio occasions, multiple unless the dence of victims, weighed policy the much of which specific time and child can remember analy- considerations involved in a Russell occurrence. an details for each Such place Appeals,' of for exam- sis. The Ohio Court contrary judicial precedent to outcome is ple, observed that is well-established “[i]t constitutionally required. and is not that, particularly involving cases sexual child, majority’s holding precise misconduct with a times I also believe that the alleged a rule for of the offense or offenses unnecessarily rigid substitutes dates specificity,” cit- jury’s fact- cannot be determined with properly what should Daniel, 548, majority ing App.3d v. 97 Ohio finding powers. The *16 contrast, Requiring acquitted Valentine was not on clearly established federal law. him, any charges against so he was utilizing multiple that an indictment identi charges present being cal a material detriment not at risk of tried twice for the dangers present to be constitu same offense. The the defendant order tionally hardly contrary conspicuously trial were therefore significant is to Isaac’s existing Supreme Court caselaw. absent Valentine’s. addition, In requirement stipulated
Russell’s last that “the rec- the state has that accuracy to what extent will not be the future show[] ord any taking may plead acquit- place during a former conduct [the defendant] conviction,” by tal or at time covered case. (citations omitted), at has been common- This means that Valentine will never be ly interpreted being to act tried twice for the same as restriction risk incident, any which I might jeop- indictments that raise double believe cures double ardy contrary major- jeopardy problem. majority argues concerns. But to the The conclusion, Russell, ity’s that prong suggests “placing read that such view literally, jeopardy at suggest does not a restriction on defendant risk of double prosecution wins single acceptable long identical within a indict- so as the language clearly pro- pleased ment. and is with the verdict and sen- contrary, future, Op. tects the so that tence.” at 635. To the defendant in the may jeopardy the current record demonstrate risk of double is nonexistent “with accuracy” acquittal legally again a “former or convic- the state is bound to never any tion.” violation that jeopardy prosecute. The Russell double test So by stipu- protect thus serves to defendants from occurred here is cured state’s lation, regardless of in- having confusing record of used the motivations Fawcett, 962 F.2d 618-19 volved. See Douglas PARKS, R. Plaintiff-
(“The care of the prosecutor [due took Appellant, that requirements] stipulating be immune from further Fawcett would any sexual contact with prosecution for COLUMBUS, CITY OF Richard C. six-month during the entire [the victim] Pfeiffer, Jr., capacity in his official as moreover, no period.”) majority, cites City Attorney City for the of Colum- authority for its conclusion that the state’s bus, Ohio, Jackson, and James G. potential for a stipulation fails cure capacity his official as Chief of Po- jeopardy problem. double lice, City Columbus, Ohio, for the sum, I do not believe that Valentine Defendants-Appellees. insufficiently appraised was No. 03-4096. him or that he faces a risk of Appeals, United States Court of I fail jeopardy. double also to see where Sixth Circuit. analysis the Ohio Court to, contrary or involved unreason- Argued: Oct. 2004. of, clearly application able established fed- Decided and Filed: Jan. existing eral law. Decades of caselaw that, precedent have established the when victims, to child indictments comes necessity vague
might of place.
details of time and This does not
mean, however, they are constitution-
ally To the extent that this is a deficient. impression,
case of first there is no author-
ity support finding the Ohio *17 unreasonably applied ex-
Court of
isting precedent. I there- Supreme Court
fore believe we should reverse granting
district court’s of an uncondition- corpus
al writ of and remand with habeas habeas
instructions to dismiss Valentine’s
petition entirety. its notes State (1994). 174, It forty 647 N.E.2d also noted was “sentenced consecu- that, case, victim an present on a child’s in the “is tive life based sentences round-number, eight-year old child who not be able to guesstimate as how times, Maj. dates and consider- many Op. times she was assaulted.” remember exact during occurred ing But to characterize the that the same conduct at 638. child’s as a ten-month of time and continued testimony simply “guesstimate,” as a multi- until she it to her teacher.” Ulti- opposed reported to reliable evidence of the offenses, mately, the court’s decision turned on the judgment is a call best left to ple fact, young child. jury. jury present In in the fact that the victim was individuals con- all of the Because Russell dealt with weighed case and considered questions refusing to answer facts when it determined victed available (not subcommittee, one, guilty forty posed by congressional not Valentine was two, policy concerns rape special public or forcible not with the twenty) counts child is both the young involved where a penetration. sought If Valentine had witness, nothing I him— and the sole see any charges against of the victim rebut information,- opinion that is unrea- example, for about his the state-court not, It against them at a later time. does of the Russell stan- application sonable majority suggests, protect serve to as dard. counts defendants from identical Appeals further ob Court The Ohio same indictment. contained within the has failed to dem served that ‘Valentine on Rus Very expounded few cases have detriment to his abil any material onstrate and the one relied resulting requirement, from the sell ’s last himself ity to defend majority distinguishable is from listed on specificity of the dates lack case is Isaac v. key to the case. This This conclusion is indictment.” Grider, 211 F.3d No. Supreme Court the case. Under Ohio May at *1 inability produce U.S.App. LEXIS Cir. “where the precedent, 2000) (unpublished), public where the time when the criminal specific or date is policy highlighted ... material concern Russell occurred is without conduct case, defense, clearly paramount. In that preparation of a detriment one, charged with multi prejudice, without the defendant was the omission is ple “cookie cutter” counts of sexual abuse consequence.” without constitutional State Sellards, But, Valentine, unlike Isaac 478 N.E.2d of minors. Ohio St.3d (1985). however, through counts majority, acquitted several to his trial. explain why prior this conclusion of the directed verdict Which fails to, contrary remained consideration Ohio Court of, by unclear. application an unreasonable was therefore involves