                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 14a0650n.06

                                          No. 13-3280


                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                    FILED
                                                                              Aug 20, 2014
JOSEPH COLES,                                           )                 DEBORAH S. HUNT, Clerk
                                                        )
       Petitioner-Appellant,                            )
                                                               ON APPEAL FROM THE
                                                        )
                                                               UNITED STATES DISTRICT
v.                                                      )
                                                               COURT FOR THE
                                                        )
                                                               NORTHERN DISTRICT OF
KEITH SMITH, Warden,                                    )
                                                               OHIO
                                                        )
       Respondent-Appellee.                             )
                                                                           OPINION
                                                        )
                                                        )



       BEFORE:        GILMAN, GIBBONS, and STRANCH, Circuit Judges.

       STRANCH, Circuit Judge. Joseph Coles, an Ohio inmate, appeals the district court’s

denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Coles was convicted

by a jury on 43 counts of rape stemming from the sexual abuse of his step-daughter, S.D.,

between January 8, 2001 and July 5, 2004, when S.D. was over the age of thirteen. Coles raises

two issues on appeal: (1) whether the State violated his constitutional rights to notice and

protection from double jeopardy when it charged him with identical counts of rape alleging

undifferentiated misconduct over an extended period of time, and (2) whether the prosecutor’s

remarks in closing argument violated his right to a fair trial. For the reasons we explain below,

we AFFIRM the judgment of the district court.
No. 13-3280
Coles v. Smith

                                I. PROCEDURAL HISTORY

       The State initiated the prosecution against Coles in March 2006 when a grand jury

returned a 242-count indictment against him. The first 111 counts, which were alleged to have

occurred between January 8, 1998 and January 7, 2001, when S.D. was not yet thirteen years of

age, charged Coles with 37 counts of rape, 37 counts of gross sexual imposition, and 37 counts

of kidnapping with sexual motivation specifications. The remaining 131 counts, which were

alleged to have occurred between January 8, 2001 and July 5, 2004, after S.D. turned thirteen

years of age, charged Coles with 43 counts of rape, 43 counts of gross sexual imposition,

43 counts of kidnapping with sexual motivation specifications, and two counts of child

endangerment.

       Coles moved for a bill of particulars. The State filed one, naming the victim, giving her

date of birth, and specifying the communities where the crimes occurred. Coles then moved for

a more specific bill of particulars. The State did not respond to the second motion, and the trial

court did not rule on it. Coles did not request a ruling on the second motion or move to dismiss

the indictment. The case proceeded to jury trial on September 18, 2006.

       At the close of its case-in-chief, the State nolle prosequied 40 counts, including all of the

kidnapping counts charged in the time period before S.D. turned thirteen years old. With the

agreement of the defense, the State narrowed the dates charged in other counts. The remaining

counts were then renumbered.

       After hearing the testimony of several witnesses, including 18-year-old S.D., her mother,

and Coles, the jury acquitted Coles of all charges relating to the time period before S.D. reached

thirteen years of age, as well as all counts of kidnapping and child endangerment for the period

after she turned thirteen. The jury convicted Coles of 43 counts of rape and 43 counts of gross


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Coles v. Smith

sexual imposition that occurred after S.D. turned thirteen years of age. The trial court imposed a

sentence of 210 months in prison and, after a hearing, classified Coles as a sexual predator.

       On direct appeal, the Ohio Court of Appeals held that the trial evidence was insufficient

to support the convictions for gross sexual imposition, prompting a reversal and remand with an

instruction to vacate those convictions and sentences. State v. Coles, No. 90330, 2008 WL

4436872, *3–4 (Ohio Ct. App. Oct. 2, 2008). Because gross sexual imposition is a lesser-

included offense of rape, the court reasoned, the prosecution could sustain convictions for both

crimes only if the conduct supporting each charge of rape was separate from the conduct

supporting each charge of gross sexual imposition. Id. at *3. S.D. testified that Coles raped her

multiple times after she turned thirteen years of age, but she did not identify any separate sexual

conduct to support the charges for gross sexual imposition. Id. at *3–4. The court affirmed the

rape convictions and sentences, ruling that the identical counts in the indictment did not violate

the petitioner’s rights to notice and protection from double jeopardy, and the prosecutor’s

remarks during closing argument did not deny him a fair trial, particularly in light of the

overwhelming evidence against him. Id. at *4–8, *10–12. In March 2009 the Ohio Supreme

Court declined to take jurisdiction of the appeal for lack of a substantial constitutional question.

       Coles filed a § 2254 habeas petition in federal court with the assistance of counsel in

March 2010, alleging six grounds for relief. A magistrate judge issued a lengthy Report and

Recommendation suggesting that the district court should grant habeas relief on the claim that

the identical counts of the indictment violated the petitioner’s rights to notice and protection

from double jeopardy, but that the court should deny relief on all other grounds. Applying this

court’s decision in Valentine v. Konteh, 395 F.3d 626 (6th Cir. 2005), the magistrate judge

determined that S.D.’s testimony sufficiently distinguished only six separate incidents of rape,


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Coles v. Smith

and concluded that the indictment and the trial evidence failed to give Coles proper notice so that

he could defend the remaining rape counts. Finding a violation of the petitioner’s due process

rights under Valentine, the magistrate judge recommended that the district court grant relief in

part by directing the State to vacate the convictions and sentences on 37 of the 43 counts of rape,

or the court should grant the writ. The magistrate judge found that comments made by the

prosecutor during closing argument were improper, but the remarks were not so flagrant as to

deny Coles a fair trial.

        Both Coles and the State filed objections to the Report and Recommendation. The

district court adopted in part and rejected in part the Report and Recommendation and denied the

habeas petition. The district court declined to apply Valentine because “clearly established

Federal law” refers to relevant Supreme Court precedent, not circuit court opinions, citing

Renico v. Lett, 559 U.S. 766, 778–79 (2010). The court also ruled that the decision of the Ohio

Court of Appeals on the notice issue was not contrary to clearly established Supreme Court cases

concerning a state defendant’s Sixth Amendment right to be informed of the nature and cause of

the accusation. The court also determined that the state appellate court’s holding that any

prosecutorial misconduct was harmless error was not contrary to, or an unreasonable application

of, clearly established federal law as determined by the Supreme Court.

        The district court granted Coles a certificate of appealability on these two claims. We

have jurisdiction of the appeal under 28 U.S.C. §§ 1291 & 2253.

                                II. STANDARD OF REVIEW

        In a § 2254 habeas proceeding, we review the district court’s legal conclusions de novo,

applying the standards set forth in the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”). See Moore v. Berghuis, 700 F.3d 882, 886 (6th Cir. 2012). We may grant a habeas


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Coles v. Smith

petition on a claim that was adjudicated on the merits in state court if the adjudication of the

claim “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” 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)(1) & (2).

          “A federal habeas court may issue the writ under the ‘contrary to’ clause if the state court

applies a rule different from the governing law set forth in [Supreme Court] cases, or if it decides

a case differently than [the Supreme Court has] done on a set of materially indistinguishable

facts.”    Bell v. Cone, 535 U.S. 685, 694 (2002).         “The court may grant relief under the

‘unreasonable application’ clause if the state court correctly identifies the governing legal

principle from [Supreme Court] decisions but unreasonably applies it to the facts of the particular

case.” Id. This latter inquiry focuses “on whether the state court’s application of clearly

established federal law is objectively unreasonable,” and “an unreasonable application is

different from an incorrect one.” Id.

          When the statute refers to “clearly established Federal law as determined by the Supreme

Court of the United States,” it means “the holdings, as opposed to the dicta, of [Supreme Court]

decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362,

412 (2000). We may not grant the writ simply because we conclude in our “independent

judgment that the relevant state-court decision applied clearly established federal law

erroneously or incorrectly.” Bell, 535 U.S. at 694 (quoting Williams, 529 U.S. at 411). AEDPA

imposes a standard that is highly deferential to state-court rulings, Renico, 559 U.S. at 773, and

Coles must show that the state court’s ruling on a claim “was so lacking in justification that there




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Coles v. Smith

was an error well understood and comprehended in existing law beyond any possibility of

fairminded disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786–87 (2011).

                                         III. ANALYSIS

       We now take up the two issues before us: whether the state grand jury indictment

charging multiple, identical counts of rape violated the petitioner’s constitutional rights to notice

and protection from double jeopardy and whether the prosecutor’s comments in closing

argument resulted in an unfair trial. Because the decision of the Ohio Court of Appeals on these

issues was not contrary to controlling Supreme Court law or an unreasonable application of

clearly established Supreme Court law, we affirm the district court’s judgment denying habeas

relief. 28 U.S.C. § 2254(d)(1).

A. Indictment on multiple, undifferentiated counts did not violate petitioner’s rights

       The rape counts against Coles tracked the statutory elements of the offense, but they did

not include particular facts to differentiate one alleged violation from another. This charging

method, Coles argues, violated his due process right to notice of the charges against him and the

right to protection from double jeopardy.

       1. The Fifth and Sixth Amendments

       The Fifth Amendment provides that “[n]o person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or indictment of a grand jury . . . .” U.S.

Const. amend. V. A federal grand jury indictment may use the words of a statute to generally

describe the offense, “but it must be accompanied with such a statement of the facts and

circumstances as will inform the accused of the specific offen[s]e, coming under the general

description, with which he is charged.” Hamling v. United States, 418 U.S. 87, 117–18 (1974)

(internal quotation marks omitted).


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         The Supreme Court has not applied to the States the Fifth Amendment’s requirement that

all prosecutions begin with a grand jury indictment. See Alexander v. Louisiana, 405 U.S. 625,

633 (1972); Hurtado v. California, 110 U.S. 516, 538 (1884); Williams v. Haviland, 467 F.3d

527, 531–34 (6th Cir. 2006). The Court has applied the Sixth Amendment to the States through

the Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145, 149 (1968); In re Oliver,

333 U.S. 257, 273 (1948).       The Sixth Amendment provides in part that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the

accusation.” U.S. Const. amend. VI. “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 that 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, 201 (1948).

A defendant “cannot incur the loss of liberty for an offense without notice and a meaningful

opportunity to defend.” Jackson v. Virginia, 443 U.S. 307, 314 (1979).

         Under the Fourteenth Amendment, the States are “obliged to observe the prohibition

against double jeopardy.” Watson v. Jago, 558 F.2d 330, 338–39 (6th Cir. 1977) (citing Benton

v. Maryland, 395 U.S. 784 (1969)). The concept underlying this guarantee is that the State

“should not be allowed to make repeated attempts to convict an individual for an alleged

offense.” Benton, 395 U.S. at 796.

         These federal constitutional principles are embedded in Ohio state law. A person charged

in Ohio with a felony offense “is entitled to an indictment setting forth the ‘nature and cause of

the accusation’ pursuant to Section 10, Article I of the Ohio Constitution and the Sixth

Amendment to the United States Constitution.” State v. Sellards, 478 N.E.2d 781, 783 (Ohio

1985).


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       Our inquiry focuses on what was required to inform Coles of the “nature and cause of the

accusation.” In federal prosecutions where the Fifth Amendment applies, the Supreme Court has

instructed that a grand jury indictment must contain the elements of the offense charged, it must

sufficiently apprise the defendant of what he must be prepared to meet, and it must accurately

demonstrate to what extent he may plead a former acquittal or conviction to avoid double

jeopardy if subsequent proceedings are brought against him for a similar offense. Hamling,

418 U.S. at 117–18; Russell v. United States, 369 U.S. 749, 763–64 (1962). A federal indictment

must provide more than conclusions of law; it must “descend to particulars” to inform the

defendant of the facts alleged “with reasonable particularity of time, place, and circumstances.”

United States v. Cruikshank, 92 U.S. 542, 558 (1875). Because the Supreme Court has not

imposed the Fifth Amendment requirements for federal indictments on state charging

instruments, our court has recognized that “there is no constitutional right in a state prosecution

to a grand jury indictment with particular specificity.” Williams, 467 F.3d at 534.

       In Valentine v. Konteh, 395 F.3d at 631, this court applied Russell, Hamling, and

Cruikshank to grant partial § 2254 habeas relief where an Ohio inmate challenged a state

indictment similar to the one here. In that case the defendant was charged with sexually abusing

his eight-year-old stepdaughter between March 1, 1995 and January 16, 1996. Id. at 629. A jury

convicted him 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 identically worded.” Id. at 628. The prosecution did not

“distinguish the factual bases of these charges in the indictment, in the bill of particulars, or even

at trial.” Id. The only evidence of the number of offenses, the court noted, was the testimony of

the child victim, “who described typical abuse scenarios and estimated the number of times the


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abusive offenses occurred, e.g., ‘about 20,’ ‘about 15,’ or ‘about 10’ times.” Id. This court ruled

that the prosecution violated Valentine’s rights to adequate notice and protection from double

jeopardy, justifying a grant of habeas relief on all counts but two. Id. at 631, 639.

        The court reasoned that, in “view of the testimony and the indictment language, one of

the child rape and one of the penetration counts can be sustained but . . . the others must be set

aside.” Id. at 628. In other words, the court determined that the twenty child-rape counts

charged one crime and the twenty penetration counts charged another crime. Id. at 629. Under

this reasoning, Valentine received notice that he was charged with these two separate crimes

during the time period specified in the indictment, id. at 628, “[b]ut he had no way to otherwise

identify what he was to defend against in the repetitive counts and no way to determine what

charges of a similar nature could be brought against him in the future if he were re-indicted.” Id.

at 628–29. Having been charged and convicted for “a generic pattern of abuse rather than for

forty separate abusive incidents,” the court held Valentine was entitled to partial habeas relief.

Id. at 634.

        The Valentine court based its legal reasoning on Supreme Court cases applicable to

federal indictments, Russell, 369 U.S. at 763–64; Hamling, 418 U.S. at 117–18, and a few circuit

cases, including Isaac v. Grider, 211 F.3d 1269, 2000 WL 571959, at *4 (6th Cir. 2000),

DeVonish v. Keane, 19 F.3d 107, 108 (2d Cir. 1994), Fawcett v. Bablitch, 962 F.2d 617, 618–19

(7th Cir. 1992), and Parks v. Hargett, 188 F.3d 519, 1999 WL 157431, at *3 (10th Cir. 1999).

Two of those cases, DeVonish and Fawcett, were decided before AEDPA was enacted in 1996,

while Isaac and Parks—and Valentine itself—were decided before the Supreme Court issued

Renico in 2010. In light of Renico’s admonition that “clearly established Federal law” means

relevant Supreme Court precedent and not circuit court opinions, see Renico, 559 U.S. at 778–


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79, and because “no Supreme Court case has ever found the use of identically worded and

factually indistinguishable [state] indictments unconstitutional,” Valentine, 395 F.3d at 639

(Gilman, J., dissenting), we doubt our authority to rely on our own prior decision—Valentine—

to “independently authorize habeas relief under AEDPA.” Renico, 559 U.S. at 779. Rather,

Coles must point to a Supreme Court case that would mandate habeas relief in his favor. He has

not done so, and consequently, he has not demonstrated that the decision of the Ohio Court of

Appeals rejecting his Sixth Amendment claim 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); Renico, 559 U.S. at 779.

       Even if we may look to Valentine, we nonetheless deny habeas relief on this issue. In

rejecting petitioner’s direct appeal, the Ohio Court of Appeals observed that Valentine “did not

rule out multiple-count indictments, finding instead that, ‘[t]he due process problems in the

indictment might have been cured had the trial court insisted that the prosecution delineate the

factual bases for the forty separate incidents either before or during the trial.’” Coles, 2008 WL

4436872, at *4 (quoting Valentine, 395 F.3d at 634). The state appellate court reviewed its own

case law, noting that in cases of sexual assault against children, “indictments need not state with

specificity the dates of the alleged abuse, so long as the prosecution establishes that the offense

was committed within the time frame alleged.” Id. (quoting State v. Yaacov, No. 86674, 2006

WL 2902794, at *3 (Ohio Ct. App. Oct. 12, 2006)). Specific times and dates are not elements of

the crimes charged, and many children cannot recall exact dates and times. Id. at *5. The

difficulty in obtaining factual specificity is increased when the accused and the victim live in the

same residence and the circumstances permit extended periods of abuse. Id. As a result,

allowances for “reasonableness and inexactitude” must be made. Id. (internal quotation marks


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omitted). The state appellate court acknowledged, however, that there is an exception to the

general rule if the failure to allege a specific date “results in material detriment to the accused’s

ability to fairly defend himself, as where the accused asserts an alibi or claims that he was

indisputably elsewhere during part, but not all, of the interval specified.” Id. (quoting Yaacov,

2006 WL 2902794, at *3). In a case where the defendant, like Coles, denied any sexual conduct

with the child victim, the lack of specificity in the indictment as to specific dates or places of the

alleged abuse does not result in prejudice to the defense. Id. at *6 (citing State v. Ford, No.

88236, 2007 WL 1559560 (May 31, 2007)).

       The state appellate court further determined that “the State attempted to set forth the

factual basis for each incident of molestation that occurred over a three and one-half year

period.” Id. at *7. The court pointed to the bill of particulars, which “identified the victim, her

date of birth, and the places the crimes occurred.” Id. In addition, the victim described the

sexual abuse to the jury in specific factual detail:

                S.D. was able to recall when, where, and how the abuse occurred. She
       testified that the abuse started in the summer of 2001 when the family was living
       on Clifton Avenue in Lakewood. She testified that it was the summer between
       her seventh and eighth grade. Although she did not remember how it started, she
       remembered the abuse occurred in the living room or her mother’s room. She
       was able to fully describe the house the family was living in and testified that
       Coles would wake her up at night when he was drunk and her mother was asleep.
       She testified that Coles would tell her to come into his room or would wake her
       up in the middle of the night and tell her to take her clothes off and he would
       either have his boxer shorts on or he would be naked and he would tell her to have
       sex with him. She described that he would either get on top of her or make her
       get on top of him and put his penis in her vagina. She also stated that Coles
       threatened her and told her that he would hurt her, kill her, break her neck, or hurt
       her mom if she told anyone about the abuse. S.D. testified that the abuse
       happened “probably twice a week” for the year that she was living in Lakewood.

                In June of 2002, when the family moved to Parma with Coles, S.D.
       testified that the abuse intensified so that she and Coles were having sex “almost
       every day” and that the abuse would occur in the finished basement, in Coles’
       bedroom, or in her bedroom. She stated that he made her have sex with him just

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         like he did in Lakewood and that the abuse usually occurred while her mother was
         at work or at night. Then S.D. became pregnant again in 2004 and Coles
         threatened her and told her to “blame it on one of [her] guy friends.” S.D. had an
         abortion on April 2, 2004, and remembered the date because it was also her little
         brother’s birthday.1 S.D. testified that Coles made her start having sex with him
         one week after the abortion, telling her that she should be healed from the
         abortion. She then testified that Coles made her have sex “a couple times a week”
         between April 2 and July 5, 2004, when the family moved to Iowa.

                 Although, at one point during the trial, the State asked S.D. to estimate
         how many times Coles had molested her, we note that the estimation she gave
         was only for those crimes for which the jury acquitted Coles. In other words,
         S.D. “guessed” how many times Coles had molested her between the ages of ten
         and thirteen, but the jury acquitted him of those charges.

                 Thus, S.D. was able to put each incident in a time frame by detailing
         where it happened and which house she was living in. She was also able to place
         certain offenses within a particular time frame by tying the offenses to her grade
         in school. [case citations omitted] And, like Yaacov, but unlike the situations in
         Valentine and Hemphill, other evidence was presented to substantiate S.D.’s
         claims. Dawn Coles testified that Coles admitted to her that he and her daughter
         were “lovers.” The medical records substantiated that S.D. had an abortion in
         April 2004. And the State was able to show that the frequency of rape increased
         when Dawn was pregnant.

                 In this case, the State attempted to set forth the factual basis for each
         incident of molestation that occurred over a three and one-half year period. The
         allegation was that Coles molested his stepdaughter repeatedly for over three
         years. The bill of particulars identified the victim, her date of birth, and the places
         the crimes occurred. The trial court instructed the jurors that each of the charges
         constitutes a distinct and separate offense, and that they must consider each count
         separately. [case citation omitted]

                 We also find that the failure to allege specific dates did not prejudice
         Coles’ ability to defend himself because his defense strategy centered on his claim
         that he never engaged in sexual conduct with S.D., regardless of the date or place
         she alleged the abuse took place. See Yaacov; State v. Bennett, Brown App. No.
         CA2004–09–028, 2005–Ohio–5898, ¶ 33 (remanded by In re Ohio Crim.
         Sentencing Statutes Cases, 109 Ohio St.3d 313, 2006–Ohio–2109, 847 N.E.2d
         1174); State v. Carnes, Brown App. No. CA2005–01–001, 2006–Ohio–2134;
         State v. Barnecut (1988), 44 Ohio App.3d 149, 152, 542 N.E.2d 353.




         The record reflects this was S.D.’s second abortion resulting from her sexual abuse by
         1

Coles.
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               Thus, we conclude the indictment was properly filed and alleged sufficient
       facts to apprise Coles of the charges against him.

Coles, 2008 WL 4436872, at *6–8.2

       Coles has not shown that the state appellate court’s ruling on his claim “was so lacking in

justification that there was an error well understood and comprehended in existing law beyond

any possibility of fairminded disagreement.” Richter, 131 S. Ct. at 786–87. Our conclusion is

consistent with our prior decisions distinguishing Valentine in § 2254 cases. See Bruce v. Welch,

___ F. App’x ___, 2014 WL 3360686, at *5 (6th Cir. July 10, 2014) (observing that “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” and “petitioner was

provided with constitutionally adequate notice of the charges against him”); Hardy v. Beightler,

538 F. App’x 624, 629 (6th Cir. 2013) (distinguishing Valentine, noting the sexual assault

prosecution “did not present the problems highlighted by this Court in Valentine” and “the record

in this case allows us to be sure what double jeopardy would prohibit in the event of future

proceedings because we can be sure of the factual incidents upon which the jury based its

verdict”); Cowherd v. Million, 260 F. App’x 781, 786–87 (6th Cir. 2008) (per curiam) (holding

the adult victim’s trial testimony provided the necessary factual predicate for six sexual offense

convictions and the testimony cured any defects in the indictment’s drafting; “[t]he confluence of

the charges, the trial testimony, and the jury verdicts . . . ensures both that Cowherd could


       2
         We note that Valentine also recognized “fairly large time windows in the context of
child abuse prosecutions are not in conflict with constitutional notice requirements.” Valentine,
395 F.3d at 632 (citing Isaac, 2000 WL 571959, at *5 and Madden v. Tate, No. 85-3061, 1987
WL 44909, at *1-3 (6th Cir. 1987)). This court repeated the same proposition recently in
affirming the denial of habeas relief in a Michigan case involving a constitutional challenge to
the notice given by the charging information in a child sexual abuse prosecution. Stevenson v.
Scutt, 531 F. App’x 576, 580 (6th Cir. 2013) (citing Valentine).

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successfully plead these convictions as a bar to any future prosecution based upon these acts, and

that Cowherd was punished only for these six crimes and only once for each of the six

offenses”). Accordingly, we affirm the district court’s opinion on this issue.

B. The prosecutor’s remarks in closing argument did not result in an unfair trial

       Coles next contends that the prosecutor improperly vouched for S.D.’s credibility and

attacked his character during closing argument. A prosecutor’s improper comments during

closing argument violate the Constitution only if they so infect the trial with unfairness that the

resulting conviction is a denial of due process. Parker v. Matthews, 132 S. Ct. 2148, 2153

(2012) (citing Darden v. Wainwright, 477 U.S. 168 (1986)).

       On direct appeal, Coles pointed to two instances of alleged unfair prosecutorial vouching

for S.D.’s credibility during closing argument. The prosecutor made the first remark at the

beginning of closing argument: “I can’t imagine a victim or witness in any case that would be

more credible and believable than [S.D.] was in this case.” The trial court sustained the defense

objection, reminded the prosecutor to argue only the logical inferences to be drawn from the

evidence and how to apply the law, and directed the prosecutor to start over. The prosecutor’s

second comment was: “[S.D.] did not [waver] from what she said before. She told the truth.

You could see the demeanor.” The trial court overruled the defense objection to this comment.

The prosecutor’s third remark was: “He is an abuser. He does his whoopings. He beats Dawn

[S.D.’s mother].    Complete careless [dis]regard for anybody but himself.           He gets his

gratification off of beating people and off of raping [S.D.]” Defense counsel failed to object, but

Coles now contends that the prosecutor asked the jury to infer his bad character, argued that he

acted in conformity with his bad character, and was most likely guilty because of his bad

character.


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       The Ohio Court of Appeals observed that the “State is permitted to comment on the

testimony of witnesses and the evidence, and may suggest a logical conclusion that can be

drawn.” Coles, 2008 WL 4436872, at *11. The court agreed with Coles that the prosecutor

improperly expressed a personal opinion during closing argument, but also ruled that the

prosecutor “was arguably commenting on what the evidence showed. The prosecutor was not

averring to his personal knowledge, but he was using the statements to enforce what the evidence

and testimony revealed.” Id. In addition, the state appellate court noted that the trial court

cautioned the prosecutor and instructed the jury to disregard the prosecutor’s statements. Id.

Finally, the court found “that the overwhelming evidence of guilt renders this alleged error [of

prosecutorial misconduct] harmless. The trial court instructed the jury that it must decide the

case on the evidence and that . . . closing arguments were not evidence. We presume that the

jury followed the court’s instructions.” Id. The court determined that the prosecutor’s comments

did not prejudice Coles or deny him a fair trial, and the court could not say “that absent the

prosecutor’s statements, the outcome of the trial would have been different.” Id. at *11–12.

       This state appellate decision is entitled to deference under AEDPA. See Parker, 132 S.

Ct. at 2153. Even if the prosecutor’s comments directed “the jury’s attention to inappropriate

considerations, that would not establish that the [state appellate court’s] rejection of the Darden

prosecutorial misconduct claim ‘was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for fairminded

disagreement.’” Id. at 2155 (quoting Richter, 131 S. Ct. at 786–87). In Parker, the Supreme

Court ruled that this circuit “had no warrant to set aside the Kentucky Supreme Court’s

conclusion” on a prosecutorial misconduct claim, and similarly, no warrant exists to do so here.




                                               -15-
No. 13-3280
Coles v. Smith

       In his brief filed in this court, Coles mentions two other comments made by the

prosecutor during closing argument, but the State correctly points out that those comments were

not raised as the basis for the prosecutorial misconduct claim on direct appeal in state court. Any

claim of prosecutorial misconduct springing from those comments is now procedurally defaulted,

and Coles has not demonstrated cause and prejudice for the default or that a miscarriage of

justice will result if the claim is not heard. See Bradshaw v. Richey, 546 U.S. 74, 79 (2005) (per

curiam).

                                       IV. CONCLUSION

       The Supreme Court has never held that a state prosecutor’s use of a multiple-count,

undifferentiated indictment violates a defendant’s Sixth Amendment rights. Because of the lack

of clearly established Supreme Court law on this point and the petitioner’s failure to demonstrate

that the decision of the Ohio Court of Appeals was contrary to, or an unreasonable application of,

controlling Supreme Court law, Coles cannot obtain habeas relief on his claim that the

indictment failed to give notice, to provide a fair opportunity to defend, and to provide protection

from double jeopardy. In addition, the Supreme Court’s decision in Parker compels us to defer

to the state appellate court’s decision that the prosecutor’s comments during closing argument,

though at times improper, did not result in an unfair trial.

       Accordingly, we AFFIRM the judgment of the district court denying habeas relief.




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