                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 14a0502n.06

                                             No. 13-3466
                                                                                        FILED
                            UNITED STATES COURT OF APPEALS                           Jul 10, 2014
                                 FOR THE SIXTH CIRCUIT                        DEBORAH S. HUNT, Clerk


DARRELL W. BRUCE,                                 )
                                                  )
        Petitioner-Appellant,                     )
                                                  )        ON APPEAL FROM THE UNITED
                                                  )        STATES DISTRICT COURT FOR
v.                                                )        THE NORTHERN DISTRICT OF
                                                  )        OHIO
                                                  )
ROBERT WELCH, Warden,                             )             OPINION
                                                  )
        Respondent-Appellee.                      )
                                                  )


BEFORE: NORRIS, CLAY, and KETHLEDGE, Circuit Judges.

        ALAN E. NORRIS, Circuit Judge. Darrell Bruce appeals the denial by the district

court of his petition for a writ of habeas corpus, 28 U.S.C. § 2254. In 2008, a Cuyahoga County,

Ohio jury convicted him of two counts of rape, Ohio Rev. Code § 2907.02(A)(1)(b) (sex with a

person less than thirteen); three counts of gross sexual imposition, Ohio Rev. Code

§ 2907.05(A)(4) (sexual contact with a person less than thirteen); and one count of not reporting

a change of address due to his status as a prior sex offender, Ohio Rev. Code § 2950.05. The

sexual offenses involved his minor step-daughters. The court of common pleas sentenced

petitioner to two consecutive life terms for the rape convictions. In addition, it sentenced him to

consecutive terms of five years in prison for the gross sexual imposition offenses and a term of

five years of incarceration for his failure to register.




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       When it denied his petition for a writ of habeas corpus, the district court also declined to

issue a certificate of appealability (“COA”). However, this court granted a COA on the sole

question of whether the counts of the indictment charging him with gross sexual imposition

violated his right to due process because they provided him with insufficient information about

the nature of the offense and thereby compromised his ability to mount a defense. See Sixth

Circuit Order, Oct. 8, 2013 at 3.

                                                I.

       Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.

L. No. 104-132, 110 Stat. 1224, the findings of the state court are “presumed to be correct” and

the petitioner has “the burden of rebutting the presumption of correctness by clear and

convincing evidence.” 28 U.S.C. § 2254(e)(1). The last reasoned state-court opinion in this case

was issued in 2009 by the Court of Appeals of Ohio, Eighth District. State v. Bruce, 2009 WL

4170493 (Ohio Ct. App. Nov. 25, 2009); (Page ID 774.)          It set out the underlying facts as

follows:

       During the trial, the state proved that Bruce, an admitted sex offender, raped the
       nine- and seven-year-old daughters of his then wife E.B. He raped them
       separately over a period of four years according to their respective testimony.
       One victim, N.W., was fourteen years old at the time of trial and nine years old
       when the rapes began. She testified that shortly after her mother began dating
       Bruce in 2001, she and her sister D.W., 13 years old at the time of trial, would
       stay at Bruce’s house after school, until their mother came to pick them up after
       work. D.W. was 7 years old at the time.

       Bruce would rape N.W. approximately two out of five school days. The
       incidents generally occurred when D.W. was taking a nap or was in the front
       room. Bruce continued to rape N.W. after they began living with him, and
       continued after his marriage to her mother.

       N.W. further testified that the rapes occurred at every place the family resided.
       N.W. always resisted, but Bruce would eventually overpower her because of his
       size. . . . N.W. was afraid to disclose the rapes because she did not want others to
       know, and because Bruce was a minister, she feared no one would believe her.


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       In 2007, after Bruce was no longer living with the family, N.W. and her mother
       were at Golden Corral restaurant when she decided to talk about the rapes. N.W.
       told her mother that Bruce had been molesting and raping her for a number of
       years.

       D.W. testified that at first, Bruce began touching her on the buttocks. D.W. was
       unaware this was inappropriate behavior. Later, when her mother and sister were
       away, Bruce would rape her. Bruce would rape her on an ongoing basis at each
       place where the family resided.

       At trial, D.W. related several instances of rape, including one occasion when
       Bruce instructed her to take off her clothes as if she was going to take a shower.
       D.W. proceeded to the bathroom, took off her clothes and was about to enter the
       shower, when Bruce summoned her to his room. On that day, he raped her.

       ....

       It was after Bruce moved out that D.W. and N.W. disclosed more about the
       incidents to their mother. D.W. had not previously disclosed the attacks because
       Bruce had instructed her not to tell her mother.

Bruce, 2009 WL 4170493, at *1–2 (footnote omitted); (Page ID 776-78). At trial, the victims’

mother, E.B., testified that petitioner disclosed to her “that he had been previously convicted of

sexually assaulting his biological daughter, that he had been imprisoned, and had been labeled a

sexual offender.” Id. at *2; (Page ID 779).

       In 2007, a grand jury returned a seven-count indictment: two for the rape of N.W.; one

for the rape of D.W.; three for gross sexual imposition directed at D.W.; and one for failing to

notify the county sheriff of a change of address as required. The jury returned guilty verdicts on

every count except the rape of D.W. Although not at issue in this appeal, the sexual assault

offenses all included a “sexually violent predator” specification, Ohio Rev. Code § 2941.148.

However, the Ohio Court of Appeals determined that this specification did not apply to petitioner




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and ordered him re-sentenced.1 Petitioner’s further attempts to reverse his convictions in the

state courts met with no success.

         The only issue certified on appeal concerns the three counts of gross sexual imposition

against D.W. (referred to as Jane Doe II in the indictment). The three counts are essentially

identical. They list the date of offense as November 20, 2001, through October 31, 2005. They

charge that defendant “had sexual contact with Jane Doe II, not his spouse, whose age at the time

of the said sexual contact was under 13 years, whether or not the offender knew the age of Jane

Doe II, to-wit: d.o.b. November 20, 1994.”

         The question before us is whether the Ohio Court of Appeals unreasonably applied

clearly established law when it determined that petitioner received constitutionally adequate

notice of the charges against him. For the reasons that follow, conclude that it did not, and deny

Petitioner’s habeas petition.

                                                II.

         We apply a highly deferential standard of review to habeas petitions filed after the

passage of AEDPA. Miller v. Stovall, 742 F.3d 642, 645 (6th Cir. 2014). When, as here, a state

court has adjudicated a claim on the merits, we will not grant a writ unless the adjudication

“resulted in a decision that was contrary to, or involved an unreasonable application of, clearly

established Federal law,” or “resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State court proceeding.”

28 U.S.C. § 2254(d). The Supreme Court has recently reminded us of this demanding standard

in these terms:

                Recognizing the duty and ability of our state-court colleagues to
         adjudicate claims of constitutional wrong, AEDPA erects a formidable barrier to
   1
       The sentence mentioned earlier is the one imposed after remand.


                                                4
       federal habeas relief for prisoners whose claims have been adjudicated in state
       court. AEDPA requires “a state prisoner [to] show that the state court’s ruling on
       the claim being presented in federal court was so lacking in justification that there
       was an error . . . beyond any possibility for fairminded disagreement.” Harrington
       v. Richter, 131 S. Ct. 770, 786–787 (2011). “If this standard is difficult to
       meet”—and it is—“that is because it was meant to be.” Id., at 786. We will not
       lightly conclude that a State’s criminal justice system has experienced the
       “extreme malfunctio[n]” for which federal habeas relief is the remedy. Id.
       (internal quotation marks omitted).

Burt v. Titlow, 134 S. Ct. 10, 15–16 (2013).

       On direct appeal, petitioner argued that all six sexual assault counts should be dismissed

because the dates were imprecise, making it difficult for him to defend against them. Each of the

counts alleged that the crime occurred sometime between November 20, 2001, and October 31,

2005. The Ohio Court of Appeals resolved the claim this way:

              In the sixth assigned error, Bruce argues the trial court should have
       dismissed Counts 1 through 6 because of the vague dates and date range. This
       assigned error lacks merit.

              Initially, we note the indictment recited the language for the definition of
       rape and gross sexual imposition as defined in the relevant statutes; therefore, the
       indictment properly apprised Bruce of the charged offenses. We conclude the
       indictment was not invalid for failure to state the exact date that the offenses were
       committed. Specificity as to the time and date of an offense is not required in an
       indictment.

               Further, under R.C. 2941.03, “an indictment or information is sufficient if
       it can be understood therefrom: * * * (E) That the offense was committed at some
       time prior to the time of filing of the indictment * * *.” Consequently, an
       indictment is not invalid for failing to state the time of an alleged offense or doing
       so imperfectly. The state’s only responsibility is to present proof of offenses
       alleged in the indictment, reasonably within the time frame alleged.

               Here, both victims were under ten years of age when the rapes began.
       Both victims testified that Bruce raped them at each and every address where the
       parties resided. E.B. testified that she and her daughters lived with Bruce at two
       locations in Cuyahoga County and two locations in Lorain County. E.B. testified
       as to the dates that the parties resided at the respective addresses.




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              Thus, Bruce had ample information regarding the date range of the
       offenses and could adequately prepare a defense. Accordingly, we
       overrule the sixth assigned error.

Bruce, 2009 WL 410493, at *5–6 (footnotes omitted); (Page ID 785-87).

       As is clear from the Ohio Court of Appeals’ reasoning, petitioner limited his “vagueness”

argument to the four-year time frame of the charges. The state court did not cite to federal law in

resolving this question. In the habeas proceedings below, however, petitioner expanded his

vagueness argument to include federal due process considerations. Specifically, the Fourteenth

Amendment’s Due Process Clause incorporates the right to fair notice embodied in the Sixth

Amendment. Watson v. Jago, 558 F.2d 330, 338 (6th Cir. 1977). The magistrate judge to whom

this matter was referred noted in his report and recommendation that the Constitution does not

require an indictment to issue in state-court criminal proceedings as long as sufficient notice of

the charges is given in some other manner. Bruce v. Welch, No. 1:10-cv-2894, 2012 WL

6861502, at *14 (N.D. Ohio Feb. 17, 2012); (Page ID 1980) (citing Koontz v. Glossa, 731 F.2d

365, 369 (6th Cir. 1984)). However, the Due Process Clause of the Fourteenth Amendment

requires fair notice of criminal charges sufficient to allow a defendant to prepare an adequate

defense. Williams v. Haviland, 467 F.3d 527, 535 (6th Cir. 2006). “To pass constitutional

muster, an indictment must meet a two-pronged test: first, the indictment must set out all of the

elements of the charged offense and must give notice to the defendant of the charges he faces;

second, the indictment must be sufficiently specific to enable the defendant to plead double

jeopardy in a subsequent proceeding, if charged with the same crime based on the same facts.”

Bruce, 2012 WL 6861502, at *14; (Page ID 1980) (quoting United States v. Martinez, 981 F.2d

867, 872 (6th Cir. 1992) (citing Russell v. United States, 369 U.S. 749, 763–64 (1962)).




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       The magistrate judge assessed the notice requirement in these terms:

       Bruce was fairly informed of the charges, and had sufficient information to
       adequately prepare a defense. He was told of the nature of the conduct alleged,
       the time period within which it allegedly occurred, and who he was alleged to
       have harmed. Further, through the course of discovery and the trial, he was
       informed of the precise location of certain alleged conduct, and a more detailed
       specification of the time periods in which each count was alleged to have
       occurred. . . . In fact, Bruce’s primary defense was his denial that any
       inappropriate conduct ever occurred with the children. Nothing other than the
       nature of the conduct and the identity of the victim was required in order for him
       to fashion and assert this defense.

Id. at *17 (Page ID 1982–83.) The district court adopted the report and recommendation. We

review the legal reasoning of the district court de novo. Peoples v. Lafler, 734 F.3d 503, 509

(6th Cir. 2013).

       Petitioner’s argument on appeal largely hinges on the applicability of Valentine v.

Konteh, 395 F.3d 626 (6th Cir. 2005) to his situation. In Valentine, which also stemmed from

events in Cuyahoga County, defendant was charged with twenty “carbon copy” counts of rape

and twenty counts of felonious sexual penetration of his eight-year-old step-daughter. Id. at 629.

The victim was the only person to testify and she told the jury that defendant forced her to

perform fellatio on “about twenty” occasions and digitally penetrated her “about fifteen” times.

The jury returned guilty verdicts on all forty counts.

       The Ohio courts affirmed with the exception of five of the penetration counts—

presumably because the victim testified to fifteen, not twenty, instances. Defendant sought a

writ of habeas corpus, which the district court granted as to all counts of conviction. Valentine

contended that the “carbon copy” counts of the indictment violated both his double jeopardy and

due process interests: first, the time frame when the charged offenses allegedly occurred was too

long; second, the crimes themselves were undifferentiated and therefore impossible to defend.




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        This court agreed with the latter proposition and reasoned that, “[a]s the forty criminal

counts were not anchored to forty distinguishable criminal offenses, Valentine had little ability to

defend himself.”    Id. at 633.   “[D]ue to the failure to differentiate, Valentine could only

successfully defend himself against some of the charges by effectively defending himself against

all of the charges.” Id. at 634. “[T]he constitutional error in this case is traceable not to the

generic language of the individual counts of the indictment but to the fact that there was no

differentiation among the counts.” Id. at 636. We also held that defendant’s double jeopardy

rights were infringed (an issue not before us in this appeal). Id. at 635. However, rather than

affirm the grant of the writ as to all counts, this court concluded that “in view of the testimony

and the indictment language, one of the child rape and one of the penetration counts can be

sustained.” Id. at 628.

        Germane to this appeal is the manner in which Valentine dealt with the contention that

the time frame charged was too long:

                This Court and numerous others have found that fairly large time windows
        in the context of child abuse prosecutions are not in conflict with constitutional
        notice requirements. See Isaac v. Grider, 2000 WL 571959 at *5 (four months);
        Madden v. Tate, 1987 WL 44909, at *1-*3 (6th Cir. 1987) (six months); see also
        Fawcett v. Bablitch, 962 F.2d 617, 618-19 (7th Cir. 1992) (six months); Hunter v.
        New Mexico, 916 F.2d 595, 600 (10th Cir. 1990) (three years); Parks v. Hargett,
        1999 WL 157431, at *4 (10th Cir. 1999) (seventeen months). Certainly,
        prosecutors should be as specific as possible in delineating the dates and times of
        abuse offenses, but we must acknowledge the reality of situations where young
        child victims are involved. The Ohio Court of Appeals found that there was no
        evidence the state had more specific information regarding the time period of the
        abuse. Valentine’s claims regarding the lack of time- and date-specific counts
        therefore fail.

Id. at 632.

        Where does this leave us? The warden contends that neither Russell nor Valentine, the

two cases primarily relied upon by petitioner, constitute “clearly established federal law” as



                                                 8
defined by AEDPA. 28 U.S.C. § 2254 (d)(1) (clearly established federal law to be “determined

by the Supreme Court of the United States”): Valentine is a Sixth Circuit, not a Supreme Court

decision; Russell involves the Fifth, not the Sixth Amendment. WE need not opine on this issue

because, even if we assume that Valentine and Russell represent clearly established federal law,

the facts of petitioner’s case are sufficiently distinguishable from that authority. First, as just

quoted, Valentine supports the conclusion that the four-year time frame charged in the indictment

does not conflict with constitutional notice requirements. Id. at 632. With respect to whether the

charges of gross sexual imposition were sufficiently distinguishable to allow petitioner to defend

against them, we note, as did the Ohio Court of Appeals and the magistrate judge below, that

testimony at trial supported the conclusion that petitioner sexually assaulted D.W. at each of the

four locations where he resided with the victims. We are not limited to assessing the indictment

alone in assessing notice. Pursuant to Valentine, we may also review the evidence at trial to

determine whether the notice requirements have been met. Id. at 634. That evidence supports

the conclusion that petitioner was provided with constitutionally adequate notice of the charges

against him.    In short, the Ohio Court of Appeals’ decision was not an “unreasonable”

application of established federal law as defined by AEDPA.

                                               III.

       The judgment is affirmed.




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