                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                           File Name: 05a0035p.06

                        UNITED STATES COURTS OF APPEALS
                                       FOR THE SIXTH CIRCUIT
                                         _________________


                                                        X
                                 Petitioner-Appellee, -
 MICHAEL E. VALENTINE,
                                                         -
                                                         -
                                                         -
                                                             No. 03-4027
          v.
                                                         ,
                                                          >
 KHELLEH KONTEH, Warden,                                 -
                              Respondent-Appellant. -
                                                       N
                         Appeal from the United States District Court
                       for the Northern District of Ohio at Cleveland.
                    No. 99-00535—Lesley Brooks Wells, District Judge.
                                       Argued: September 23, 2004
                                  Decided and Filed: January 24, 2005
                      Before: MERRITT, MOORE, and GILMAN, Circuit Judges.
                                           _________________
                                                COUNSEL
ARGUED: M. Scott Criss, ASSISTANT UNITED STATES ATTORNEY, Columbus, Ohio, for Appellant.
Barbara A. Farnbacher, PUBLIC DEFENDER’S OFFICE, Columbus, Ohio, for Appellee. ON BRIEF:
M. Scott Criss, ASSISTANT UNITED STATES ATTORNEY, Columbus, Ohio, for Appellant. Barbara
A. Farnbacher, PUBLIC DEFENDER’S OFFICE, Columbus, Ohio, for Appellee.
       MERRITT, J., delivered the opinion of the court, in which MOORE, J., joined. GILMAN, J. (pp.
11-14), delivered a separate opinion concurring in part and dissenting in part.
                                           _________________
                                               OPINION
                                           _________________
         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


                                                      1
No. 03-4027             Valentine v. Konteh                                                            Page 2


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.
                                                      I.
       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
No. 03-4027            Valentine v. Konteh                                                              Page 3


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.
                                                     II.
        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 (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. 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. 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. 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.
                                                    III.
       In granting Valentine the writ, the District Court relied upon Russell v. United States, 369 U.S. 749
(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 of what he must be prepared
No. 03-4027                 Valentine v. Konteh                                                                              Page 4


         to meet,’” and, secondly, “‘in case any other proceedings are taken against him for a similar
         offense whether the record shows with accuracy to what extent he may plead a former
         acquittal or conviction.’”
369 U.S. at 763-64. Thus, an indictment is only sufficient if it (1) contains the elements of the charged
offense, (2) gives the defendant adequate notice of the charges, and (3) protects the defendant against double
jeopardy.1 While the federal right to a grand jury indictment has never been found to be incorporated
against the states, see Hurtado v. California, 110 U.S. 516, 534-35 (1884), courts have found that the due
process rights enunciated in Russell are required not only in federal indictments but also in state criminal
charges. See De Vonish v. Keane, 19 F.3d 107, 108 (2d Cir. 1994); Fawcett v. Bablitch, 962 F.2d 617, 618
(7th Cir. 1992); see also Isaac v. Grider, 2000 WL 571959, at *4 (6th Cir. 2000); Parks v. Hargett, 1999
WL 157431, at *3 (10th Cir. 1999).
        While the indictment in this case did comply with the first prong of Russell by adequately setting
out the elements of the charged offense, the multiple, undifferentiated charges in the indictment violated
Valentine’s rights to notice and his right to be protected from double jeopardy. The failure of the Ohio
Court of Appeals to rectify these violations constitutes an unreasonable application of well-established
constitutional law as announced by the Supreme Court.
                                                                A.
       Under Russell, criminal charges must give a defendant adequate notice of the charges in order to
enable him to mount a defense. 369 U.S. at 763-64. Fair notice is essential in criminal prosecutions:
         No principle of procedural due process is more clearly established than that notice of the
         specific charge, and a chance to be heard in a trial of the issues raised by the charge, if
         desired, are among the constitutional rights of every accused in a criminal proceeding in all
         courts, state or federal.
Cole v. Arkansas, 333 U.S. 196 (1948); see also Jackson v. Virginia, 443 U.S. 307, 314 (1979) (“[A]
conviction upon a charge not made . . . constitutes a denial of due process.”); In re Oliver, 333 U.S. 257,
273 (1948) (“A person’s right to reasonable notice of a charge against him, and an opportunity to be heard
in his defense . . . are basic in our system of jurisprudence.”); Madden v. Tate, 1987 WL 44909, at *3 (6th
Cir. 1987) (“The Due Process Clause of the Fourteenth Amendment mandates that whatever charging
method the state employs must give the criminal defendant fair notice of the charges against him to permit
adequate preparation of his defense.”).
       As the District Court decided this case on “double jeopardy” grounds, it did not rule on whether the
indictment provided Valentine with adequate notice. Yet the court did suggest that it was “doubtful that the
indictment in this case ‘sufficiently apprises the defendant of what he must be prepared to meet.’” Valentine
v. Huffman, 285 F. Supp. 2d at 1024 (quoting Russell, 369 U.S. at 763-64). Valentine essentially points to



    1
    See also U.S. v. Hamling, 418 U.S. 87, 118 (1974); U.S. v. Cruishank, 92 U.S. 542, 558 (1875). The Cruishank opinion
demonstrates that these principles have been well-established for quite some time:
    The object of the indictment is, first, to furnish the accused with such a description of the charge against him as will
    enable him to make his defence, and avail himself of his conviction or acquittal for protection against a further
    prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they
    are sufficient in law to support a conviction, if one should be had. For this, facts are to be stated, not conclusions of law
    alone. A crime is made up of acts and intent; and these must be set forth in the indictment, with reasonable particularity
    of time, place, and circumstances.
92 U.S. at 558.
No. 03-4027             Valentine v. Konteh                                                              Page 5


two notice problems with the indictment: (1) the wide date range and (2) the lack of differentiation among
the criminal charges.
        First, Valentine challenges the wide date range itself as standing in the way of his defense. Valentine
contends that the lack of specific dates and times prejudiced him as he had alibi defenses for large portions
of the period covered by the indictment. See Valentine, 285 F. Supp. 2d at 1025. The state maintains that
such indictments are necessary as the young victims in abuse cases like this one “have only a limited
perception of time and limited faculties to define specific dates and times of the traumatic sexual abuse they
endured.” Resp.’s Br. at 2. As the Ohio Court of Appeals decision emphasizes, Ohio law supports this
position. See State v. Daniel, 97 Ohio App. 3d 548, 556 (1994) (“It is well established that, particularly in
cases involving sexual misconduct with a child, the precise times and dates of the alleged offense or
offenses oftentimes cannot be determined with specificity.”); State v. Mundy, 99 Ohio App. 3d 275, 296
(1994) (“In many cases involving child sexual abuse, the victims are children of tender years who are simply
unable to remember exact dates and times, particularly where the crimes involve a repeated course of
conduct over an extended period of time.”).
        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.
        The problem in this case is not the fact that the prosecution did not provide the defendant with exact
times and places. If there had been singular counts of each offense, the lack of particularity would not have
presented the same problem. Instead, the problem is that within each set of 20 counts, there are absolutely
no distinctions made. Valentine was prosecuted for two criminal acts that occurred twenty times each,
rather than for forty separate criminal acts. In its charges and in its evidence before the jury, the prosecution
did not attempt to lay out the factual bases of forty separate incidents that took place. Instead, the 8-year-old
victim described “typical” abusive behavior by Valentine and then testified that the “typical” abuse occurred
twenty or fifteen times. Outside of the victim’s estimate, no evidence as to the number of incidents was
presented.
        Given the way Valentine was indicted and tried, it would have been incredibly difficult for the jury
to consider each count on its own. The jury could not have found Valentine guilty of Counts 1-5, but not
Counts 6-20. Nor could the jury have found him guilty of Counts 1, 3, 5 and 7, but not the rest. Such a
result would be unintelligible, because the criminal counts were not connected to distinguishable incidents.
The jury could have found him “not guilty” of some of the counts only if they reached the conclusion that
the child victim had overestimated the number of abusive acts. Just as courts should not permit abuse
prosecutions to be defeated due to the limited ability of child victims to remember precise temporal details,
they should for similar reasons not permit multiple convictions to stand based solely on a child’s numerical
estimate.
         As the forty criminal counts were not anchored to forty distinguishable criminal offenses, Valentine
had little ability to defend himself. In a similar case, the Court of Appeals for the Tenth Circuit reviewed
a habeas petition from a prisoner convicted of three counts of sexual abuse. Parks v. Hargett, 1999 WL
157431 (10th Cir. 1999). The charging information set forth multiple identically worded counts of sexual
abuse of an unnamed minor over a seventeen-month period: “[O]n or between July 1988 and November
1989 . . . defendant did unlawfully . . . look upon, touch and feel of the body and private parts of a six year
No. 03-4027                 Valentine v. Konteh                                                                             Page 6


old female child in a lewd and lascivious manner . . . in Bryan County, Oklahoma.” Id. at *2. The court
indicated that the charging information alone did not have the requisite specificity:
         “Where the statutory definition of an offense employs generic terms, it is not sufficient to
         charge the offense in the same terms employed by the statute; the indictment must ‘descend
         to particulars.’” United States v. Sullivan, 919 F.2d 1403, 1411 (10th Cir. 1990) (quoting
         Russell v. United States, 369 U.S. 749, 765 . . . (1962)); see also Hamling, 418 U.S. at 117-
         18 (“[t]he language of the statute may be used in the general description of an offence, but
         it must be accompanied with such a statement of the facts and circumstances as will inform
         the accused of the specific offence, coming under the general description, with which he is
         charged.”).
Id. at *3. Yet, the Parks court did not reach the issue as it determined that the defendant had adequate actual
notice of the charges against him. Id. At a pre-trial hearing, the defendant “received actual notice of the
name and identity of the six-year old child and the fact that he was charged with three separate incidents
of molestation, one alleged to have occurred in his bedroom, another in his hot tub, and a third in the
bathroom of his home.” Id. With this specific information, the court concluded that the defendant had
“actual notice of sufficiently specific facts to respond to the charges and prepare an adequate defense.” Id.

        In that case, the child victim would have demonstrated three distinct recollections: (1) abuse in the
defendant’s bedroom, (2) abuse in his hot tub, and (3) abuse in his bathroom. The jury presumably would
have heard testimony as to each of the three recollections and would have assessed the credibility of the
child victim regarding each count. In the present case, no factual distinctions were made among any of the
forty counts. The record indicates that some specification was possible. The child victim described
different locations (bedroom, living room, parents’ room, siblings’ room), different sexual actions (fellatio,
vaginal penetration, anal penetration), different times of day (early morning, after school, in the middle of
the night). Despite this potential, little effort was made to disaggregate the whole of the abuse and try the
case in forty counts as charged.
        The indictment, the bill of particulars, and even the evidence at trial failed to apprise the defendant
of what occurrences formed the bases of the criminal charges he faced. Valentine was prosecuted and
convicted for a generic pattern of abuse rather than for forty separate abusive incidents. States      have the
authority to enact criminal statutes regarding a “pattern” or a “continuing course” of abuse.2 They do not
have the power to prosecute one for a pattern of abuse through simply charging a defendant with the same
basic offense many times over.
        The 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.
But, due to the failure to differentiate, Valentine could only successfully defend against some of the charges
by effectively defending against all of the charges. The trial court acknowledged this difficulty in chambers
with the attorneys: “This case; the evidence as I recall in reviewing my notes is that if the jury chooses to
believe the evidence as they understand it, and comes back with a conviction, I think this is a[n] all or

    2
      See, e.g., State v. Fortier, 780 A.2d 1243, 1249-50 (N.H. 2001) (discussing N.H. Rev. Stat. Ann. § 632-A: 2, III (2004));
People v. Quinones, 8 A.3d 589 (N.Y. App. Div. 2004) (discussing N.Y. Penal Law § 130.75 (McKinney 2003)). Such pattern
statutes are, in part, a response to the inability of child victims to provide specific information about abuse:
    Pattern statutes for sexual assaults have been enacted to respond to the concern that many young victims, who have been
    subject to repeated numerous incidents of sexual assault over a period of time by the same assailant, are unable to
    identify discrete acts of molestation. The focus of a pattern statute is to criminalize a continuing course of sexual
    assaults, not isolated instances. The essential culpable act is the pattern itself, that is, the occurrence of more than one
    sexual assault over a period of time, and not the specific assaults comprising the pattern.
6A Corpus Juris Secundum § 75 Sexual Assault (2004).
No. 03-4027             Valentine v. Konteh                                                              Page 7


nothing case.” Apx. 1300 (emphasis added). The trial court acknowledged that the jury would either
convict Valentine on all forty counts or acquit him of all forty counts. The prosecution should not have
indicted and tried this as an “all or nothing” case and the trial court should not have permitted such a trial.
Defendants must be given adequate notice of all of the charges made against them. While Valentine had
legal and actual notice that he must defend against the child’s allegations of sexual abuse over a ten-month
period, he was given no notice of the multiple incidents for which he was tried and convicted.
                                                      B.
        Due process also requires that criminal charges provide criminal defendants with the ability to
protect themselves from double jeopardy. In the present case, the indictment presented two important
double jeopardy problems. First, there was insufficient specificity in the indictment or in the trial record
to enable Valentine to plead convictions or acquittals as a bar to future prosecutions. Second, the
undifferentiated counts introduced the very real possibility that Valentine would be subject to double
jeopardy in his initial trial by being punished multiple times for what may have been the same offense.
       In Russell, the court found that indictments are only constitutionally sufficient if “the record shows
with accuracy to what extent he may plead a former acquittal or conviction” in proceedings taken against
him for a similar offense. 369 U.S. at 764. The District Court held that the indictments in this case failed
to comply with this mandate of Russell. 285 F. Supp. 2d at 1026-27. In Russell, a case in which the
defendants were being tried for their failure to answer questions before a congressional subcommittee, the
Court ruled that the charging information was specific enough to protect against double jeopardy:
       Since the indictments set out not only the times and places of the hearings at which
       petitioners refused to testify, but also specified the precise questions which they then and
       there refused to answer, it can hardly be doubted that the petitioners would be fully protected
       from again being put in jeopardy for the same offense, particularly when it is remembered
       that they could rely upon other parts of the present record in the event that future
       proceedings should be taken against them.
369 U.S. at 764. In this case, there was no specificity regarding the factual offenses Valentine allegedly
committed. If Valentine had been acquitted of these 40 charges, it is unclear what limitations would have
been imposed on his re-indictment. Would double jeopardy preclude any prosecution concerning the abuse
of this child victim, the abuse of this victim during the stated time period, the abuse of this victim at their
residence, the stated sexual offenses in the indictment, the offenses offered into evidence at trial, or some
group of forty specific offenses? We cannot be sure what double jeopardy would prohibit because we
cannot be sure what factual incidents were presented and decided by this jury. If Valentine had been found
not guilty, it is not clear to what extent he could ably assert that his acquittal barred prosecution for other
similar incidents.
        The state now declares it “is willing to stipulate, Valentine cannot be indicted for either rape or
felonious sexual penetration for the period set forth in the indictment.” Resp.’s Br. at 11. By their
argument, this stipulation would cure any double jeopardy problem. See Fawcett v. Bablitch, 962 F.2d 617,
619-20 (7th Cir. 1992) (“The prosecutor took care of the [double jeopardy issue] by stipulating that [the
defendant] would be immune from further prosecution for any sexual contact with [the victim] during the
entire six-month period [of the indictment].”) It appears that the present case is distinguishable as Ohio’s
current stipulation was made only after Valentine’s trial and conviction. The state additionally contends
that as a practical matter, Valentine will face no further prosecution. They argue that since Valentine is
serving 35 consecutive life sentences, any risk of double jeopardy is “purely theoretical.” Resp.’s Br. at 28-
29. This argument suggests that placing a defendant at risk of double jeopardy is acceptable so long as the
prosecution wins and is pleased with the verdict and sentence. In this appeal, it is immaterial that Valentine
faces no current risk of being tried a second time. Courts in habeas proceedings must ensure prisoners were
afforded proper constitutional protections during their state criminal proceedings. As the carbon-copy
No. 03-4027             Valentine v. Konteh                                                             Page 8


counts of Valentine’s indictment would have complicated any subsequent assertion of double jeopardy, we
find that his due process rights were violated.
         In a similar case, this Court found that a petitioner’s convictions on several identically worded
charges put the defendant at risk of double jeopardy, and thus constituted an “unreasonable application” of
Russell. Isaac v. Grider, 211 F.3d 1269, 2000 WL 571959, at *5 (6th Cir. 2000). In Isaac, the petitioner
was tried on seventeen counts of sodomy and sexual abuse in connection with three child victims. Id. at *2.
Ten of those counts dealt with the abuse of one boy. Id. There were five identical counts of second degree
sodomy and five identical counts of second degree sexual abuse. Id. The trial court directed verdicts for
four of the ten counts and presented the remaining six counts to the jury. Id. The petitioner was convicted
on all six counts. On appeal, the court issued the writ, finding that the petitioner could have been convicted
of sexual abuse charges for which he had already been acquitted by a directed verdict: “the identical charges
introduced the risk of double jeopardy and, indeed may have already resulted in double jeopardy in this
prosecution . . . .” Id. at *5 (emphasis in original). Neither the indictment nor the jury instructions informed
the jury which factual incidents were connected to which charges. They had heard evidence of ten separate
incidents, but were called to decide only six charges. Thus, it was possible that the jury either convicted
him of counts for which he had been acquitted or convicted him without jury unanimity as to the underlying
factual offenses.
        Similar dangers were present in Valentine’s trial. As the charges were not linked to differentiated
incidents, there is resulting uncertainty as to what the trial jury actually found. On direct appeal, the Ohio
Court of Appeals ruled that there was no evidentiary basis for five of the felonious sexual penetration
charges. This ruling by the appeals court essentially acknowledges that Valentine was “over-convicted”
on the evidence presented, and thus likely subjected to double jeopardy in his initial trial. The appeals court
ruling suggests that the jury convicted him of 20 counts based on the evidence of 15. Due process requires
that criminal charges be specific enough to protect defendants from this danger of double jeopardy. The
multiple, identically worded counts deprived Valentine of this protection.
                                                      C.
        For the reasons stated above, we affirm the District Court’s ruling that the indictment charging
Valentine with multiple, identical and undifferentiated counts violated the constitutional requirements
imposed by due process. We agree with the District Court’s determination that “the Ohio Court of Appeals’
application of clearly established federal law was not only incorrect, but unreasonable.” When prosecutors
opt to use such carbon-copy indictments, the defendant has neither adequate notice to defend himself, nor
sufficient protection from double jeopardy. Even under the deferential standard of AEDPA, these
convictions resting on such a clear violation of federal law cannot stand.
                                                      IV.
       Importantly, the 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. The
exigencies of child abuse cases necessitate considerable latitude in the construction of criminal charges.
The prosecutors in this case, however, abused this wide latitude by piling on multiple identical counts.
Numerous charges cannot be made out through estimation or inference. Instead, if prosecutors seek multiple
charges against a defendant, they must link those multiple charges to multiple identifiable offenses. Due
process requires this minimal step. Courts cannot uphold multiple convictions when they are unable to
discern the evidence that supports each individual conviction.
       The deficient charging of the prosecution and the management failure of the trial court, however,
should not disturb the verdicts for Count 1 (the first rape count) and Count 21 ( the first felonious sexual
penetration count) of this case. The prosecutor presented substantial evidence of ongoing abuse, against
which Valentine had notice and opportunity to defend. The jury heard the witnesses, evaluated the
No. 03-4027             Valentine v. Konteh                                                             Page 9


evidence, and was convinced of Valentine’s guilt. Had this case been tried in two counts, the convictions
would clearly stand. Thus, any constitutional error with regard to the other 38 counts should not render
invalid these two counts. See Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (finding that when federal
courts collaterally review convictions, trial errors are harmless unless they “had a substantial and injurious
effect or influence in determining the jury’s verdict.”). The constitutional errors in this case lie in the
multiple identical counts rather than the generic statutory language of the charges or the wide time frame
of the indictment. The evidence in the record does not indicate that these identical counts made an impact
on the jury’s consideration of Count 1 and Count 21. Without such evidence, issuance of an unconditional
writ of habeas corpus is inappropriate.
        Our dissenting colleague would find that all of the convictions at issue in this appeal should stand
as they are not unreasonably inconsistent with constitutional requirements concerning criminal charges.
Notably, the dissent cannot offer any precedents from this Court or any other that would support the use of
multiple, identical and undifferentiated counts. Instead, the primary objection is over a perceived
inconsistency in our opinion. The dissent asserts that our holding that there must be some differentiation
between multiple counts is inconsistent with our holding that child abuse indictments need not always point
to specific times and locations. The dissent maintains that “the only reason that there are no distinctions
made within each set of 20 counts is because the defendant was not provided with the exact time and place
specifications.” This is simply faulty logic. Requiring some minimal differentiation between criminal
counts is quite different from requiring “exact time and place specifications.” Certainly, this opinion does
not require that indictments allege the date, hour, and precise location of crimes. Instead, the defendant, the
judge, and the jury must be able to tell one count from another.
         To be sure, differentiation will often require reference to date ranges or time ranges or certain
locations or certain actions. But, differentiation does not require overly-burdensome precision. Notably,
each and every case cited by the dissent demonstrates that differentiation is quite possible without exacting
specificity. In Madden v. Tate, 1987 WL 44909 (6th Cir. 1987), the indictment at issue, as clarified by the
bill of particulars, used different wide time frames, different generic locations, and different sexual offenses
to distinguish among the three counts. Likewise, in Fawcett v. Bablitch, 962 F.2d 617, 619 (7th Cir. 1992),
the defendant was charged with two differentiated sexual offenses. Finally, in State v. Mulkey, 560 A.2d
24 (Md. 1989), the indictment demonstrates that even when a defendant is charged with twelve counts of
the same crime, the counts can be distinguished from one another. In Mulkey, the defendant was charged
with four counts of abuse that occurred in the summer of 1982, four counts in the summer of 1983, and four
counts in the summer of 1984. Even the four charges within each summer were distinct. See State v.
Mulkey, 534 A.2d 1374, 1376 & n.1 (Md. Ct. App. 1988), overruled by State v. Mulkey, 560 A.2d 24 (Md.
1989). As the lower court opinion indicates, each count was separable:
       Counts 2, 6, and 10 allege that Mulkey committed a sexual act upon James S. Counts 3, 7,
       and 11 alleged that Mulkey committed a different sexual act upon James S. Counts 4, 8, and
       12 alleged that Mulkey committed a sexual act upon another victim, Marilyn S. Counts 5,
       9, and 13 allege that Mulkey committed a different sexual at upon Marilyn S.
Id. at n.1. While the indictment did not allege specific dates, times, and locations, it did ensure
differentiation among the otherwise similar counts. After an extensive search, we cannot find one court that
has actually considered the issue and upheld the use of multiple identically-worded and factually-
indistinguishable counts in this context or any other.
        The dissent urges that we should find the Ohio Court of Appeals treatment of this case a reasonable
application of constitutional law, as “no Supreme Court case has ever found the use of identically worded
and factually indistinguishable indictments unconstitutional.” (Post. at 11) (emphasis in original). Yet state
courts do not have free reign simply because the Supreme Court has not decided a case on the exact claim
at issue. Instead, the “clearly established Federal law” relevant under AEDPA encompasses “the governing
legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.”
No. 03-4027            Valentine v. Konteh                                                          Page 10


See Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). The Supreme Court has established a clear and
consistent path for the courts regarding the due process sufficiency of criminal charges, and the Ohio Court
of Appeals has strayed so far from that path as to warrant habeas relief. See id. at 72.
         We agree with our dissenting colleague that courts must be aware and responsive to the unique
problems of child abuse cases. We agree that adopting hard-and-fast pleading rules would be a disservice
in this area of the law. But, these difficulties do not permit us to simply abandon the rule of law because
we find a crime especially abhorrent. Valentine’s trial was radically disconnected from some core values
of our legal system. Neither the prosecutor, the defense, the court, nor the jury ever had any idea of what
incidents formed the bases of the forty counts. There are violations of ordinary rules of notice, duplicity,
multiplicity, jury unanimity, double jeopardy, and sufficiency of the evidence. He was sentenced to forty
consecutive life sentences based on a child’s round-number, guesstimate as to how many times she was
assaulted.
       There is little indication that this ruling will “severely hamper” the prosecution of crimes of abuse.
Even in this case, we have upheld the two counts that gave notice of separate crimes, and the sentence is
two consecutive life sentences, an extremely harsh punishment. Nothing in this opinion limits sexual abuse
prosecutions to so-called “exceedingly narrow and precise charges.” It expressly rejects Valentine’s
challenge on that ground. The Constitution does, however, demand that if a defendant is going to be
charged with multiple counts of the same crime, there must be some minimal differentiation between the
counts at some point in the proceeding. Without such differentiation, these prosecutions would reduce to
nothing the constitutional protections of the Fifth and Fourteenth Amendments.
       We, therefore, affirm the District Court’s judgment regarding the carbon-copy charges in Counts 2-
20 and Counts 22-35, reverse the District Court’s judgment regarding Valentine’s convictions on Count 1
and Count 21, and remand to the District Court with instructions to grant the writ unless Ohio vacates the
inappropriate convictions and re-sentences Valentine in accordance with this opinion.
No. 03-4027             Valentine v. Konteh                                                              Page 11


                         ______________________________________________
                          CONCURRING IN PART, DISSENTING IN PART
                         ______________________________________________
         RONALD LEE GILMAN, Circuit Judge, concurring in part and dissenting in part. I concur in Parts
I, II, and IV of the majority opinion insofar as the opinion reverses the district court as to Count 1 (the first
rape count) and Count 21 (the first felonious-sexual-penetration count) by concluding that those two counts
are nonduplicative. My disagreement with the majority comes with respect to Part III of its opinion, which
concludes that the district court was not in error when it granted Valentine’s petition for habeas corpus relief
on Counts 2-20 and 22-35. Although the majority has properly acknowledged that this case is governed by
the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254 (AEDPA), which increased
the deference that federal courts must give to state-court decisions, the Supreme Court has cautioned against
simply “recit[ing] this standard [and then evaluating] respondent’s claim de novo rather than through the
lens of § 2254(d) . . . .” Price v. Vincent, 538 U.S. 634, 639 (2003).
        The majority first concludes on the merits that Valentine’s due process rights were violated because
the indictment in question failed under Russell to appraise Valentine of what he must be prepared to meet.
But the majority cites no authority for its conclusion that the use of multiple identical counts in instances
of child abuse failed to sufficiently apprise Valentine of the charges he faced. The majority further claims
that it “cannot find one court that has actually considered the issue and upheld the use of multiple
identically-worded and factually-indistinguishable counts in this context or any other.” Maj. Op. at 9.
Although I do not dispute the majority’s research, I find equally telling the fact that no Supreme Court case
has ever found the use of identically worded and factually indistinguishable indictments unconstitutional.
        To the contrary, many courts have found the use of indictments that are vague as to the time and
place of multiple offenses to withstand constitutional attack. The defendant in Madden v. Tate, No.
85-3061, 1987 WL 44909, at *1 (6th Cir. Sept. 30, 1987) (unpublished), for example, was convicted of
sexually abusing his eight-year-old granddaughter and 11-year-old son. In rejecting Madden’s argument
that the indictment failed to provide him with sufficient notice of the charges to enable him to prepare his
defense, the court concluded that the
        [f]ailure to specify the precise dates upon which the alleged crimes occurred does not
        deprive the defendant of his constitutional right to due process where time is not of the
        essence of the offense and where the dates used are not picked arbitrarily . . . . Neither is this
        a case where the prosecution deliberately refused to provide dates; the young victims were
        not in fact able to provide dates, and the time frames provided were based upon their best
        recollections. There was no denial of due process.
Id. at *3. Cf. Fawcett v. Bablitch, 962 F.2d 617 (7th Cir. 1992) (rejecting a defendant’s argument that his
conviction on two counts of sexual misconduct over a six-month period provided him with insufficient
information to mount a defense); State v. Mulkey, 560 A.2d 24, 30 (Md. 1989) (rejecting a defendant’s
argument that his conviction on twelve counts of third-degree sexual offense—some of which were
duplicates of each other—violated his right to present a defense, and noting that “[b]ecause the charges
involved multiple sexual offense violations, the child-victims were unable to specify the exact dates or times
of the acts. [The defendant] was apprised of the continuing nature of the offenses such that his defense was
not prejudiced.”).
        I acknowledge that none of these cases has gone to the extent of finding constitutionally sound 20
or more factually indistinguishable counts. But I note that the linchpin of the majority’s analysis in this case
is based upon the fact that “within each set of 20 counts, there are absolutely no distinctions made.” Maj.
Op. at 5. Just two sentences earlier, however, the majority concedes that “[t]he problem in this case is not
the fact that the prosecution did not provide the defendant with exact times and places.” Id. I frankly find
these two statements contradictory. In effect, the only reason that there are no distinctions made within each
No. 03-4027             Valentine v. Konteh                                                             Page 12


set of 20 counts is because the defendant was not provided with the exact time and place specifications. Yet,
based on the authorities cited above, I can discern no constitutional requirement that exact time and place
specifications be provided within such an indictment. This holds true whether the number of identical
counts be two or twenty.
         In support of its position, the majority cites Parks v. Hargett, No. 98-7068, 1999 WL 157431 (10th
Cir. Mar. 23, 1999) (unpublished), in which the petitioner was charged with three counts of molesting a six-
year old girl. These counts, the petitioner claimed, were so vague that he was “unable to adequately prepare
a defense.” Id. at *1. The court ultimately rejected the petitioner’s arguments, but noted in dicta that
“[w]here the statutory definition of an offense employs generic terms, it is not sufficient to charge the
offense in the same terms employed by the statute; the indictment must ‘descend to particulars.’” Id. at *3
(quoting United States v. Sullivan, 919 F.2d 1403, 1411 (10th Cir.1990)). This discussion, however, applied
not to the adequacy of the time and place specifics provided to the defendant (as is the case here), but with
the specificity of the charge. Valentine has conceded that the indictment in question is specific enough to
satisfy the Russell’s first requirement that “the indictment contain[] the elements of the offense intended to
be charged.” Russell, 369 U.S. at 764. I therefore find the majority’s reliance on this discussion in Parks
puzzling.
        Less puzzling and more disturbing in my opinion is that prohibiting the use of multiple identical
charges in a single indictment would severely hamper a state’s ability to prosecute crimes where a young
child is both the victim and the sole witness. Young children often make difficult, forgetful, or
uncooperative witnesses in abuse cases. Their limited understanding, combined with a subconscious desire
to “forget” the abuse, often makes them vague and unretentive. See Pennsylvania v. Ritchie, 480 U.S. 39,
60 (1987) (“Child abuse is one of the most difficult crimes to detect and prosecute, in large part because
there often are no witnesses except the victim. A child’s feelings of vulnerability and guilt and his or her
unwillingness to come forward are particularly acute when the abuser is a parent.”); State v. Mundy, 650
N.E.2d 502, 515 (Ohio Ct. App. 1992) (“In many cases involving child sexual abuse, the victims are
children of tender years who are simply unable to remember exact dates and times, particularly where the
crimes involve a repeated course of conduct over an extended period of time.”).
        Utilizing children as witnesses is widely understood by the courts and legal observers to be the only
mechanism by which many sexual offenders may be brought to justice. Because of the nature of the crime,
the sexual abuse of children typically occurs in private, in the residence, and away from other adults. See
generally Bureau of Justice Statistics, Sexual Assault of Young Children As Reported to Law Enforcement:
Victim, Incident, and Offender Characteristics 5-7 (July 2000), available at
http://www.ojp.usdoj.gov/bjs/pub/pdf/saycrle.pdf (noting that 77 percent of juvenile sexual assaults take
place in a private residence, as opposed to 55 percent of adult assaults). Corroborating physical evidence
might also be unavailable because the offender has verbally threatened the child, as opposed to using actual
force. And, because a child often delays in reporting the abuse, visible injuries might not be documented.
Under a rule restricting prosecutions to exceedingly narrow and precise charges, a sex-abuse charge would
presumptively be limited to a single instance of abuse, despite clear evidence of multiple occasions, unless
the child can remember the specific time and place details for each occurrence. Such an outcome is contrary
to judicial precedent and is not constitutionally required.
        I also believe that the majority’s holding unnecessarily substitutes a rigid rule for what should
properly be the jury’s factfinding powers. The majority notes that Valentine was “sentenced to forty
consecutive life sentences based on a child’s round-number, guesstimate as to how many times she was
assaulted.” Maj. Op. at 10. But to characterize the child’s testimony as simply a “guesstimate,” as opposed
to reliable evidence of the multiple offenses, is a judgment call best left to the jury. In fact, the jury in the
present case weighed and considered all of the available facts when it determined that Valentine was guilty
of forty (not one, not two, not twenty) counts of rape or forcible penetration. If Valentine had sought to
rebut any of the charges against him—with information, for example, about his daily whereabouts or
concerning his relationship with the little girl—he was free to present it to the jury. The jury would have
No. 03-4027             Valentine v. Konteh                                                             Page 13


then been able to consider the information as it weighed the evidence in determining the number of charges
that it believed was established beyond a reasonable doubt. But creating a per se rule that unduly narrows
the number of identical charges that may be filed, as the majority has done, takes away the jury’s power to
determine whether multiple crimes have occurred. The effect of failing to recall time and place details is
a matter appropriately assessed by the jury, not by a per se rule.
         Furthermore, the majority does not articulate why, in its opinion, the decision of the Ohio Court of
Appeals was contrary to, or involved an unreasonable application of, clearly established federal law. In its
discussion, the state appellate court applied existing Ohio law on the subject of child victims, much of which
weighed the policy considerations involved in a Russell analysis. The Ohio Court of Appeals, for example,
observed that “[i]t is well-established that, particularly in cases involving sexual misconduct with a child,
the precise times and dates of the alleged offense or offenses cannot be determined with specificity,” citing
State v. Daniel, 647 N.E.2d 174, 180 (Ohio Ct. App. 1994). It also noted that, in the present case, the victim
“is an eight-year old child who may not be able to remember exact dates and times, considering that the
same conduct occurred during a ten-month period of time and continued until she reported it to her teacher.”
Ultimately, the court’s decision turned on the fact that the victim was a young child. Because Russell dealt
with individuals convicted of refusing to answer questions posed by a congressional subcommittee, not with
the special public policy concerns involved where a young child is both the victim and the sole witness, I
see nothing in the state-court opinion that is an unreasonable application of the Russell standard.
        The Ohio Court of Appeals further observed that “Valentine has failed to demonstrate any material
detriment to his ability to defend himself resulting from the lack of specificity of the dates listed in the
indictment.” This conclusion is the key to the case. Under Ohio Supreme Court precedent, “where the
inability to produce a specific time or date when the criminal conduct occurred is . . . without material
detriment to the preparation of a defense, the omission is without prejudice, and without constitutional
consequence.” State v. Sellards, 478 N.E.2d 781, 785 (Ohio 1985). The majority, however, fails to explain
why this conclusion of the Ohio Court of Appeals is contrary to, or involves an unreasonable application
of, clearly established federal law. Requiring that an indictment utilizing multiple identical charges present
a material detriment to the defendant in order to be constitutionally significant is hardly contrary to existing
Supreme Court caselaw.
         Russell’s last requirement that “the record show[] with accuracy to what extent [the defendant] may
plead a former acquittal or conviction,” 369 U.S. 764 (citations omitted), has been commonly interpreted
to act as a restriction on indictments that might raise double jeopardy concerns. But contrary to the
majority’s conclusion, this prong of Russell, read literally, does not suggest a restriction on identical charges
within a single indictment. Instead, the language clearly protects the defendant in the future, so that the
current record may demonstrate “with accuracy” a “former acquittal or conviction.” The Russell double
jeopardy test thus serves to protect defendants from having a confusing record of charges used against them
at a later time. It does not, as the majority suggests, serve to protect defendants from multiple identical
counts contained within the same indictment.
         Very few cases have expounded on Russell’s last requirement, and the one relied on by the majority
is distinguishable from the present case. This case is Isaac v. Grider, No. 98-6376, 2000 U.S. App. LEXIS
9629, at *1 (6th Cir. May 4, 2000) (unpublished), where the public policy concern highlighted by Russell
is clearly paramount. In that case, as in this one, the defendant was charged with multiple “cookie cutter”
counts of sexual abuse of minors. But, unlike Valentine, Isaac was acquitted on several counts through a
directed verdict prior to his trial. Which of the charges remained for consideration by the jury was therefore
unclear. In contrast, Valentine was not acquitted on any of the charges against him, so he was not at risk
of being tried twice for the same offense. The dangers present in Isaac’s trial were therefore conspicuously
absent in Valentine’s.
       In addition, the state has stipulated that Valentine will not be charged in the future for any conduct
taking place during the time period covered by the present case. This means that Valentine will never be
No. 03-4027              Valentine v. Konteh                                                              Page 14


at risk of being tried twice for the same incident, which I believe cures any double jeopardy problem. The
majority argues that such a view suggests that “placing a defendant at risk of double jeopardy is acceptable
so long as the prosecution wins and is pleased with the verdict and sentence.” Maj. Op. at 7. To the
contrary, the risk of double jeopardy is nonexistent if the state is legally bound to never again prosecute.
So any violation that may have occurred here is cured by the state’s stipulation, regardless of the
motivations involved. See Fawcett, 962 F.2d at 618-19 (“The prosecutor took care of the [due process
requirements] by stipulating that Fawcett would be immune from further prosecution for any sexual contact
with [the victim] during the entire six-month period.”) The majority, moreover, cites no authority for its
conclusion that the state’s stipulation fails to cure the potential for a double jeopardy problem.
        In sum, I do not believe that Valentine was insufficiently appraised of the charges against him or that
he faces a risk of double jeopardy. I also fail to see where the analysis by the Ohio Court of Appeals was
contrary to, or involved an unreasonable application of, clearly established federal law. Decades of existing
caselaw have established the precedent that, when it comes to child victims, indictments might of necessity
be vague as to the details of time and place. This does not mean, however, that they are constitutionally
deficient. To the extent that this is a case of first impression, there is no authority to support the finding that
the Ohio Court of Appeals unreasonably applied existing Supreme Court precedent. I therefore believe that
we should reverse the district court’s granting of an unconditional writ of habeas corpus and remand with
instructions to dismiss Valentine’s habeas petition in its entirety.
