Joseph Coles v. Keith Smith

Filing

OPINION filed : the judgment of the district court is AFFIRMED; decision not for publication. Ronald Lee Gilman, Julia Smith Gibbons, and Jane Branstetter Stranch (Authoring), Circuit Judges. Motion to proceed ifp [4834282-2] filed by Ms. Erika Bloomfield Cunliffe is moot.

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NOT RECOMMENDED FOR PUBLICATION
File Name: 14a0650n.06
No. 13-3280

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JOSEPH COLES,
Petitioner-Appellant,
v.
KEITH SMITH, Warden,
Respondent-Appellee.

BEFORE:

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FILED
Aug 20, 2014
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE
NORTHERN DISTRICT OF
OHIO
OPINION

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.

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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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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 lesserincluded 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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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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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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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

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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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No. 13-3280
Coles v. Smith
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.

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Case: 13-3280

Document: 48-2

Filed: 08/20/2014

Page: 16

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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