Valentine v. Konteh

Decision Date24 January 2005
Docket NumberNo. 03-4027.,03-4027.
Citation395 F.3d 626
PartiesMichael E. VALENTINE, Petitioner-Appellee, v. Khelleh KONTEH, Warden, Respondent-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

M. Scott Criss, Office of the Attorney General, Corrections Litigation Section, Columbus, Ohio, for Appellant. Barbara A. Farnbacher, Public Defender's Office, Columbus, Ohio, for Appellee.


M. Scott Criss, Assistant United States Attorney, Columbus, Ohio, for Appellant. Barbara A. Farnbacher, Public Defender's Office, Columbus, Ohio, for Appellee.

Before: MERRITT, MOORE, and GILMAN, Circuit Judges.


MERRITT, Circuit Judge.

An Ohio jury convicted Michael Valentine of 40 counts of sexual abuse, for which he was sentenced to 40 consecutive life sentences. In bringing a petition for habeas corpus, he contends that the Ohio indictment violated his constitutional right to due process. Valentine was convicted of 20 "carbon-copy" counts of child rape, each of which was identically worded so that there was no differentiation among the charges and 20 counts of felonious sexual penetration, each of which was also identically worded. The prosecution did not distinguish the factual bases of these charges in the indictment, in the bill of particulars, or even at trial. The only evidence as to the number of offenses was provided by the testimony of the child victim, who described typical abuse scenarios and estimated the number of times the abusive offenses occurred, e.g., "about 20," "about 15" or "about 10" times. The District Court issued the writ of habeas corpus with respect to all counts on the ground that the indictment and conviction violated Valentine's federal due process rights to notice of the crime charged with sufficient specificity so that he would not again be put in jeopardy of the same crime.

We conclude that in the view of the testimony and the indictment language, one of the child rape and one of the penetration counts can be sustained but that the others must be set aside. Valentine had notice that he was charged with the two separate crimes during the period of time specified in the indictment. But 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. Thus, we regard the 20 child rape counts as charging one crime and the 20 penetration counts as charging another single crime. Our ruling means that Valentine cannot be subsequently charged with the same crimes against the stepdaughter during the stated period.


Michael Valentine was prosecuted, tried, and convicted for the sexual abuse of his eight-year-old stepdaughter. Valentine began living with the victim's mother in August of 1991 and married her in February of 1994. On January 18, 1996, the child told her second-grade teacher that her stepfather had been abusing her. The teacher took her to the principal, who contacted the Cuyahoga County Department of Family Services and her mother.

On May 25, 1996, a grand jury in Cuyahoga County issued a forty-count indictment, charging Valentine with twenty counts of child rape and twenty counts of felonious sexual penetration of a minor. According to the indictment, all forty offenses occurred between March 1, 1995 and January 16, 1996. Each rape count alleged that Valentine "unlawfully engaged in sexual conduct with [the stepdaughter] not his spouse by purposely compelling her to submit by the use of force or threat of force, [the stepdaughter] being under the age of 13 years, to-wit: d.o.b. 11-18-87." No further information was included to differentiate one count from another. Likewise, each felonious sexual penetration count was identical, alleging that Valentine "unlawfully without privilege to do so inserted a part of the body, an instrument, apparatus or other object to-wit: finger, into the vaginal or anal cavity of another, to-wit: [the stepdaughter] not the spouse of the offender and who was under the age of 13 years, to-wit: d.o.b. 11-18-87, by purposely compelling her to submit by force or threat of force." The bill of particulars did not offer further differentiation among the counts. Instead, it merely restated the allegations and identified the family home as the location of all forty offenses.

At the 1996 jury trial, the only witness to testify as to the number of assaults committed by the defendant was the eight-year-old victim herself. She testified that Valentine forced her to perform fellatio in the family living room on "about twenty" occasions and that Valentine digitally penetrated her vagina in the family living room on "about fifteen" occasions. The child went on to testify generally as to further similar incidents occurring in her bedroom, in her siblings' bedroom, and in her mother and Valentine's bedroom. She additionally testified that Valentine achieved anal penetration with his penis on "about ten" occasions. As the Petitioner points out, the victim altered her numbers somewhat during cross-examination.

The jury returned a verdict convicting Valentine of all 40 counts, and the court of common pleas for Cuyahoga County sentenced him to 40 consecutive life terms. The Ohio Court of Appeals affirmed the convictions on all 20 counts of rape but only 15 of the 20 felonious sexual penetration counts. Finding that "no evidence supports the additional five counts," the court reversed the five convictions on Counts 36-40 and vacated the sentences imposed for them. The Ohio Court of Appeals presumably based these reversals on the child's testimony that Valentine had digitally penetrated her vagina "about fifteen" times. The Ohio Supreme Court denied leave to appeal. Valentine then unsuccessfully pursued state post-conviction remedies.

In March 1999, Valentine filed a petition in the Northern District of Ohio seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition, he raised four issues, only one of which is appealed to this court. Valentine claimed that his "constitutional right to due process of law was denied when he was tried and convicted on an indictment which did not specify a date or distinguish between conduct on any given date." The District Court issued the writ finding the indictment in the case violated Valentine's due process rights. Specifically, the court found that the identical counts in the indictment violated his due process right to be notified of the crime charged with reasonable certainty so that he could fairly protect himself from double jeopardy.


Valentine's petition was made pursuant to 28 U.S.C. § 2254 as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The relevant portion of the habeas statute provides:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was not adjudicated on the merits in the State court proceedings unless the adjudication of the claim —

(1) resulted in a decision that 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. § 2254(d)(1).

In order for Valentine to obtain federal habeas relief, he must demonstrate that his case satisfies the condition established by 28 U.S.C. § 2254(d)(1). In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Supreme Court explained the impact of this amendment:

Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing principle from this Court's decisions but unreasonably applies that principle of the facts of the prisoner's case.

529 U.S. at 412-13, 120 S.Ct. 1495. Writing for the Court, Justice O'Connor points out "that an unreasonable application of federal law is different from an incorrect application of federal law." Id. at 410, 120 S.Ct. 1495. The Court holds that "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." Id. at 411, 120 S.Ct. 1495. Instead, the writ may issue only if the state court's application of Supreme Court precedent is objectively unreasonable. Id. As this Court has noted, § 2254(d)(1) "tells federal courts: Hands off, unless the judgment in place is based on an error grave enough to be called `unreasonable.'" Herbert v. Billy, 160 F.3d 1131, 1135 (6th Cir.1998). As the District Court found, "the Ohio Court of Appeals correctly construed the issue to be whether the lack of specificity in the indictment as to dates and conduct resulted in a denial of Mr. Valentine's right to due process of law." Thus, Valentine's habeas petition turns on whether the Ohio state courts unreasonably applied Supreme Court precedent regarding the due process requirements for charging instruments.


In granting Valentine the writ, the District Court relied upon Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), and found that the Ohio Court of Appeals had unreasonably applied its due process principles in Valentine's appeal. In Russell, the Supreme Court put forth the criteria by which the sufficiency of an indictment is to be measured:

These criteria are, first, whether the indictment "contains the elements of the offense intended to be charged, `and sufficiently apprises the defendant...

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