Geboy v. Brigano

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 07a0216p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Petitioner-Appellant/Cross-Appellee, -

ALAN GEBOY,

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Nos. 05-3200/3201

v.

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ANTHONY BRIGANO, Warden, -

Respondent-Appellee/Cross-Appellant. -

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Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 03-00552—George C. Smith, District Judge.

Submitted: July 17, 2006

Decided and Filed: June 11, 2007

Before: BOGGS, Chief Judge; COLE, Circuit Judge; ROSEN, District Judge.*

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COUNSEL

ON BRIEF: Stuart A. Cole, OFFICE OF THE ATTORNEY GENERAL, Columbus, Ohio, for

Appellee. Alan Geboy, Lebanon, Ohio, pro se.

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OPINION

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ROSEN, District Judge.

I. INTRODUCTION

Petitioner/Appellant/Cross-Appellee Alan Geboy was tried and convicted by a Union

County, Ohio jury on nine counts of gross sexual imposition, two counts of felonious sexual

penetration, and five counts of rape, while being acquitted on two other counts of felonious sexual

penetration. These charges arose from allegations that Petitioner sexually abused his biological

daughter over an eleven-year period from 1988 to 1999, when his daughter was between the ages

of eight and nineteen years old. Following his conviction, Petitioner was sentenced to life

imprisonment for each count of felonious sexual penetration, as well as a combined term of over

fifty-three years of imprisonment for the remaining fourteen counts.

*

The Honorable Gerald E. Rosen, United States District Judge for the Eastern District of Michigan, sitting by

designation.

1

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After exhausting his state remedies, Petitioner commenced the present habeas action under

28 U.S.C. § 2254, advancing five claims of constitutional error. The district court granted the writ

as to the first of Petitioner’s claims, but found that his remaining claims lacked merit. The

Respondent warden, Anthony Brigano, now appeals this grant of relief to Petitioner, and Petitioner,

in turn, challenges the dismissal of his remaining claims. For the reasons set forth below, we reverse

the district court’s grant of relief to Petitioner and affirm the district court’s denial of relief as to the

two other claims for which Petitioner has secured a certificate of appealability.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. The Facts Underlying Petitioner’s State Court Conviction

The Ohio Court of Appeals summarized the pertinent facts and circumstances of the

underlying state court proceedings as follows:

[T]he Logan County Grand Jury returned an eighteen-count indictment

against [Petitioner], a resident of Bellefontaine, based upon evidence that he had

been sexually molesting his biological daughter, now twenty-one years[] old, since

the fall of 1988. [Petitioner] entered a plea of not guilty. Subsequently, the case was

tried to a jury and [Petitioner] was convicted on all eighteen counts. This court

reversed that conviction in State v. Geboy, 145 Ohio App.3d 706, 764 N.E.2d 451,

2001-Ohio-2214. Thereafter, a second trial commenced in March 2002, at which

time the state presented1 testimony from seven witnesses, including the alleged

victim, hereinafter D.D.[ ]

According to D.D., [Petitioner] began exposing himself to her when she was

eight years old. She alleged that, over time, the abuse escalated from fondling and

rubbing to oral sex and then ultimately to vaginal penetration. While in her first

quarter of college at The Ohio State University, Lima Campus, a friend, Josh

McKinley, confronted D.D. with suspicions that she was being sexually abused.

D.D. admitted to McKinley that her father was abusing her, but made him swear not

to tell. Initially, the boy complied with her request. However, after an incident in

which D.D. alleged her father accosted her in the shower, McKinley drove to

Bellefontaine from Lima and confided what he knew to D.D.’s older sister, Kelly.

Kelly confronted D.D. with the information and escorted her to the police to file a

report.

[Petitioner] presented eight witnesses in his defense. Ultimately, the jury

found [Petitioner] guilty of all but two counts contained in the indictment.

State v. Geboy, No. 14-02-09, 2003 WL 178616, at *1 (Ohio Ct. App. Jan. 28, 2003). We recount

the factual record in greater detail below, as pertinent to the issues presented on appeal.

B. Procedural Background

As noted by the Ohio appellate court, a Logan County, Ohio, grand jury issued an eighteen-

count indictment on April 10, 2000, charging Petitioner Alan Geboy with nine counts of gross sexual

imposition, four counts of felonious sexual penetration, and five counts of rape. These charges were

based upon Petitioner’s alleged sexual abuse of his biological daughter, Jodi Geboy, over an eleven-

year period spanning from 1988 to 1999, when Jodi was between the ages of eight and nineteen

years old. Petitioner initially was found guilty on all eighteen counts, but this conviction was

1

The Ohio Court of Appeals refers to Petitioner’s daughter, Jodi Geboy, as D.D.

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overturned by the Ohio Court of Appeals on the ground that the prosecutor improperly commented

upon and elicited testimony regarding Petitioner’s failure to profess his innocence to the authorities.

See State v. Geboy, 764 N.E.2d 451, 458-59 (Ohio Ct. App. 2001).

Following a successful effort to transfer venue in light of extensive local publicity, Petitioner

was retried by a Union County, Ohio jury and found guilty on all counts except two of the four

counts of felonious sexual penetration. Petitioner subsequently was sentenced to life imprisonment

for each of the two counts of felonious sexual penetration, plus consecutive prison terms totaling

fifty-three years and three months for the remaining counts. On appeal, the Ohio Court of Appeals

rejected Petitioner’s various challenges to his convictions, but remanded for resentencing in light

of the trial court’s failure to make a sufficient record of its reasons for imposing consecutive

sentences. On remand, the trial court imposed the same sentence, and Petitioner’s remaining state

court appeals were unavailing.

Petitioner then commenced the present action on June 18, 2003 by filing a petition for a writ

of habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the Southern District

of Ohio. In his petition, Petitioner asserted five claims for relief:

1) that the evidence was insufficient to sustain Petitioner’s conviction of the

felonious sexual penetration offenses charged in counts nine and ten of the

indictment, where he did not live at the family home during the relevant time periods

in the fall of 1992, and where there purportedly was no evidence of sexual abuse

outside the home;

2) that the evidence was insufficient to establish Petitioner’s guilt of the rape

charged in count seventeen of his indictment, where there allegedly was no proof of

sexual abuse during the relevant time period;

3) that the evidence was insufficient to sustain Petitioner’s conviction of the

rapes charged in counts thirteen through seventeen of his indictment, in light of the

purported absence of proof of force;

4) that Petitioner’s trial counsel provided ineffective assistance by failing to

object to prosecutorial misconduct and improper evidence, both of which purportedly

operated to unfairly bolster the credibility of Petitioner’s daughter; and

5) that Petitioner was denied a fair trial and his right to confront his accusers

through the trial court’s decision to admit into evidence a chart prepared by the

prosecutor.

(See 6/18/2003 Petition for Writ of Habeas Corpus, J.A. at 5-19.)

The matter was referred to a magistrate judge. On May 12, 2004, the magistrate judge issued

a report and recommendation (“R & R”) recommending that the petition be granted as to claim one,

but that the remainder of the Petitioner’s claims be dismissed as lacking in merit. Both Petitioner

and the Respondent warden, Anthony Brigano, filed objections to the R & R. In an opinion and

order dated December 9, 2004, the district court overruled the parties’ objections, adopted the R &

R, and granted the petition as to claim one. That same day, the court entered a final judgment

vacating Petitioner’s convictions of the felonious sexual penetration offenses charged in counts nine

and ten of the indictment, and dismissing the remainder of Petitioner’s claims.

Both Petitioner and Respondent now appeal from the district court’s rulings. Respondent

seeks to overturn the district court’s grant of relief under claim one of the habeas petition.

Petitioner, who was represented by counsel in the district court but is now proceeding pro se, seeks

Nos. 05-3200/3201 Geboy v. Brigano Page 4

to reverse the district court’s dismissal of his remaining four claims for relief. The district court

granted a certificate of appealability (“COA”) limited to Petitioner’s challenges to the dismissal of

claims two and five of his petition, and this court subsequently denied Petitioner’s request for an

expanded COA encompassing claims three and four of the petition. Accordingly, only claims one,

two, and five of the petition are presently before us. We now turn to these matters.

III. ANALYSIS

A. The Standards Governing Federal Habeas Review of Challenges to a State Court

Conviction

When considering a district court’s decision to grant or deny a habeas corpus petition, we

review findings of fact for clear error and conclusions of law de novo. Hicks v. Straub, 377 F.3d

538, 551 (6th Cir. 2004), cert. denied, 544 U.S. 928 (2005). Because the federal habeas petition in

this case was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of

1996, Pub. L. No. 104-132, 110 Stat. 1214 (“AEDPA”), its provisions govern here. See Hicks, 377

F.3d at 551.

Where, as here, the claims raised in a federal habeas petition have been addressed on the

merits by the state court, relief cannot be granted unless the state court’s adjudication of a 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; or (2) 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). As to the first part of this standard,

the Supreme Court recently explained:

A state-court decision is contrary to this Court’s clearly established precedents if it

applies a rule that contradicts the governing law set forth in our cases, or if it

confronts a set of facts that is materially indistinguishable from a decision of this

Court but reaches a different result. A state-court decision involves an unreasonable

application of this Court’s clearly established precedents if the state court applies this

Court’s precedents to the facts in an objectively unreasonable manner.

Brown v. Payton, 544 U.S. 133, 141, 125 S. Ct. 1432, 1438-39 (2005) (citations omitted). With

these standards in mind, we turn first to Respondent’s appeal of the district court’s grant of relief

to Petitioner on claim one of his habeas petition.

B. The Ohio Court of Appeals Did Not Render a Decision Contrary to Clearly Established

Federal Law in Upholding Petitioner’s Convictions Under Counts Nine and Ten of the

Indictment Despite a Variance Between the Bill of Particulars and the Evidence at

Trial.

Although the district court found that four of the five claims in Petitioner’s habeas petition

were lacking in merit, it granted him relief on claim one, in which Petitioner challenged the

sufficiency of the evidence to sustain his conviction of the felonious sexual penetration offenses

charged in counts nine and ten of the indictment. In particular, Petitioner argued, and the district

court agreed, that a bill of particulars supplied by the State operated to limit the location of these

offenses to the family home shared by Petitioner and the alleged victim, his daughter Jodi. Because

Petitioner was separated from his wife during the time period in the fall of 1992 when these two

offenses allegedly were committed, and because there was no evidence at trial that he lived at or

visited the family home during this period, the district court held that the evidence was insufficient

to establish Petitioner’s guilt of these offenses. Respondent now challenges this ruling, contending

that it rests upon a misapprehension of the legal significance of the discrepancy between the

allegations set forth in the bill of particulars and the evidence introduced at trial. We agree.

Nos. 05-3200/3201 Geboy v. Brigano Page 5

As an initial matter, it is clear that neither the indictment nor the underlying Ohio statute that

Petitioner was charged with violating places any relevant restriction upon the location where the

charged offenses of felonious sexual penetration must have occurred. Count nine of the indictment

charges that “between the dates of September 1, 1992, and October 1, 1992,” and within “the County

of Logan,” Petitioner “without privilege to do so and purposely by force or threat of force, did insert

any part of the body into the vaginal cavity of another who is not the spouse of the offender when

the other person is less than 13 years of age, . . . in violation of Ohio Revised Code Section

2907.12(A)(1)(b).” (Indictment at 2, J.A. at 46.) Count ten reads essentially the same, except that

the offense charged in that count allegedly occurred “between the dates of October 1, 1992, and

November 1, 1992.” (Id. at 3, J.A. at 47.) Apart from the limitation to Logan County —a limitation

that Petitioner does not challenge — these two counts do not specify that the charged offenses

occurred at any particular locations.

Similarly, the Ohio statute cited in these counts does not dictate that the offense of felonious

sexual penetration must occur at any particular location. At the time that Petitioner allegedly

committed the offenses charged in counts nine and ten, this statute provided in pertinent part:

(A)(1) No person, without privilege to do so, shall insert any part of the body

or any instrument, apparatus, or other object into the vaginal or anal cavity of another

who is not the spouse of the offender or who is the spouse of the offender but is

living separate and apart from the offender, when any of the following applies:

****

(b) The other person is less than thirteen years of age,

whether or not the offender knows the age of the other person.

****

(B) Whoever violates this section is guilty of felonious sexual penetration,

an aggravated felony of the first degree. If the offender under division (A)(1)(b) of

this section purposely compels the victim to submit by force or threat of force,

whoever violates division (A)(1)(b) of this section shall be imprisoned for life.

Ohio Rev. Code Ann. § 2907.12 (West 1995).2 Plainly, nothing in this statute indicates that location

is an element of the offense of felonious sexual penetration.

Just as clearly, however, the bill of particulars supplied by the State of Ohio in this case does

specify a location at which the offenses charged in the indictment allegedly occurred. The bill of

particulars states, in pertinent part:

The facts in these Counts started when the Defendant’s daughter, Jodi Geboy,

was approximately eight years of age. Jodi was born on 6/25/80. The Defendant

began touching Jodi on her erogenous zones against her will. This activity started

and continued between the dates of September 1, 1988, and October 1, 1991.[3]

****

2

This statute was repealed effective September 3, 1996, and the offense of felonious sexual penetration was

merged into the offense of rape, codified at Ohio Rev. Code Ann. § 2907.02.

3

The end date of this time period was later amended to June 30, 1999.

Nos. 05-3200/3201 Geboy v. Brigano Page 6

Counts 9 through 12 involve the Defendant having sexual conduct with his

daughter. This Defendant abused the victim on a regular and on-going basis. The

sexual conduct involves digital penetration, wherein the Defendant inserted his

fingers into the vaginal cavity of his child.

****

The State’s evidence will establish that the victim was forced to engage in all

of the activities that the Defendant is indicted for. The difference in size and age

between the two constitutes the physical force used in these crimes. Psychological

force was used by the Defendant. The relationship between the perpetrator and

victim in this case is that of parent and child. The child’s will was overcome by fear,

duress and intimidation that was exercised upon her by the Defendant. The

Defendant threatened the victim using a number of tactics throughout the course of

the on-going abuse.

The crimes were committed in Logan County, Ohio, at the home of the

Defendant and victim.

(Petitioner’s 8/18/2005 Traverse, Ex. 1, 5/9/2000 Bill of Particulars at 1-2 (emphasis added).)4

If the last sentence of the bill of particulars is construed as referring exclusively to the family

home at 1169 County Road 200 in Bellefontaine, Ohio, where Petitioner’s daughter Jodi spent her

childhood years, and where Petitioner also resided for most of the relevant period from 1988 to

1999, then it cannot be said that the evidence at trial established that the offenses charged in counts

nine and ten of the indictment were committed at this location. The testimony of the victim herself,

Petitioner’s daughter Jodi, is the principal source of evidence on this point. In her testimony at trial,

Jodi described Petitioner’s escalating acts of sexual abuse throughout her childhood years, beginning

with incidents during Jodi’s grade-school years, when she was between the ages of eight and eleven

years old, in which Petitioner would expose himself to her, make her touch his penis, and feel her

breasts, and concluding in her teenage years when Petitioner made her perform5 oral sex on him and

engage in sexual intercourse with him. (See 3/14/2002 Trial Tr. at 492-97.) With regard to the

specific time period referenced in counts nine and ten of the indictment, when Jodi was twelve years

old and in middle school, she testified that Petitioner would “put[] his fingers down in [my] vaginal

area inside and on the outside, and he would rub himself on me.” (Id. at 496.)

When asked at trial how frequently this sort of conduct occurred through the course of the

eleven-year (1988-99) time period referenced in the indictment, Jodi testified that “[m]ost of the

time something happened every day,” and that “there was something that happened every day.” (Id.

at 515.) Defense counsel then returned to this subject on cross-examination:

Q: . . . . I heard you say on direct examination that was happening every day

after school. Do you recall that testimony?

A: Yes.

4

Unfortunately, the bill of particulars was not included in the joint appendix provided to this court.

Nonetheless, we have obtained a copy from the district court record.

5

Once again, most of the relevant pages of the trial transcript were not included in the joint appendix, but

instead have been obtained from the district court record.

Nos. 05-3200/3201 Geboy v. Brigano Page 7

Q: And are you saying that it was happening every day after school from your

second grade all the way through high school?

A: Yes.

Q: Every day after school.

A: Not — I mean every day something happened. I don’t — I mean, I’m sure

there’s days here and there that went by and nothing did, but for the most

part, yes.

(Id. at 569.)

Following Jodi’s testimony on direct examination regarding the various sorts of sexual abuse

in which Petitioner had engaged over the years, she then was asked where these incidents had

occurred:

Q: Okay. The acts that you’re describing, where did most — most of this take

place at?

A: In our house.

Q: Is that the same house that you previously testified about?

A: Yes.

Q: Did these acts ever occur anywhere else other than inside the family home?

A: Yes.

Q: Where else?

A: In the car if we were on the way to the grocery store. Outside, like behind

the barn. On vacations sometimes.

Q: And in what county did these acts occur?

A: Mostly Logan County.

(Id. at 507-08.) Plainly, this testimony exceeds the narrow limitation in the bill of particulars to acts

committed “at the home of the Defendant and victim.”

In addition to Jodi’s testimony concerning the types and frequency of Petitioner’s sexual

abuse and the locations where these acts were committed, the trial record also includes evidence of

Petitioner’s whereabouts during the time period in the fall of 1992 when he allegedly committed the

offenses charged in counts nine and ten of the indictment. Petitioner’s then-wife (and Jodi’s

mother), Janice Geboy, testified that she and Petitioner were separated in 1992, that Petitioner lived

in an apartment during this period, and that this separation lasted almost a year. (See 3/13/2002

Trial Tr. at 403-04.) Janice Geboy further testified that she saw Petitioner during this period

“[w]hen [she] took the kids over” to his apartment, as well as on other occasions when she and

Petitioner met at his apartment to talk about getting back together. (See id. at 451.) Finally,

Petitioner introduced the testimony of his landlord at the time, Ralph Ruggles, who stated that

Petitioner’s apartment rental spanned from September of 1992 until December of 1993. (See

3/14/2002 Trial Tr. at 649-50.)

Nos. 05-3200/3201 Geboy v. Brigano Page 8

Against this evidentiary backdrop, Petitioner argued before the Ohio Court of Appeals, and

again in support of claim one of his federal habeas petition, that the record at trial was insufficient

to sustain his conviction of the offenses charged in counts nine and ten of the indictment. In

particular, Petitioner contended that the jury could not permissibly have found that he committed

these offenses at the family home, as arguably alleged in the bill of particulars, where the record

established that he did not live at the family home when these offenses were committed in the fall

of 1992. Petitioner further asserted that there was no evidence of any act of sexual abuse occurring

at the apartment where he resided at the time.

In rejecting this challenge, the Ohio Court of Appeals reasoned as follows:

[Jodi Geboy] testified that from 1988 to 1999 she was continuously molested

by her father. She described in detail how the abuse began as mere genitalia

exposure in grade school and then escalated to sexual intercourse by the time she was

in high school. When asked how often the abuse occurred over an eleven-year time

span she responded as follows:

“Most of the time something happened every day, whether it

was while I was sitting and doing my homework and he’d come by

and grab me or something. I mean, there was something that

happened every day.”

[Jodi] would have been twelve-years old and in junior high during the time

frame alleged in counts nine and ten of the indictment. When asked about the

periods in which her parents separated, [Jodi] testified to remembering separations,

but could not recall dates. Thereafter, when asked if anything changed as far as type

of abuse that was occurring, [Jodi] stated that the abuse became more serious as she

got older and that by junior high he was penetrating her vagina with his fingers and

mouth. Later, when asked if the abuse ever occurred outside of the family home, the

victim responded affirmatively and testified to being abused “in the car if we were

on the way to the grocery store. Outside, like behind the barn. On vacations

sometimes.”

Additionally, [Jodi’s] mother testified that during the periods in which she

was separated from [Petitioner], she would drop [Jodi] off at his apartment for visits

and that [Petitioner] would occasionally visit the family home. Viewing this

evidence in a light most favorable to the prosecution, we find sufficient evidence

such that any rational trier of fact could have found that [Petitioner] committed

felonious sexual penetration with his daughter during the time he was separated from

his wife.

[Petitioner] next argues that even if sufficient evidence existed with regards

to counts nine and ten, the prosecution was confined to proving abuse in the family

home as stated in the bill of particulars. Contrary to what [Petitioner] argues, “the

purpose for giving a bill of particulars is ‘to elucidate or particularize the conduct of

the accused,’ but not ‘to provide the accused with specifications of evidence or to

serve as a substitute for discovery.’” State v. Avery (1998), 126 Ohio App.3d 36, 709

N.E.2d 875, quoting State v. Lawrinson (1990), 49 Ohio St.3d 238, 239, 551 N.E.2d

1261, 1262. Furthermore, “a certain degree of inexactitude in averments is not

necessarily fatal to a prosecution in cases dealing with sex offenses against victims

of tender years.” State v. Lawrinson (1990), 49 Ohio St.3d at 239, 551 N.E.2d 1261.

Nos. 05-3200/3201 Geboy v. Brigano Page 9

Even if we were to find that the bill of particulars was not as specific with

respect to locations as it should have been, the [Petitioner] fails to show prejudice.

Both the indictment and the bill of particulars give specific dates such that at all

times [Petitioner] had the ability to defend himself from the allegations of abuse.

[Petitioner] was aware that he lived outside the family home during the periods

articulated in counts nine and ten and could have requested a more specific bill of

particulars with respect to locations. [Petitioner] had the opportunity to cross-

examine [Jodi] regarding the specific locations of her alleged abuse. Furthermore,

during closing arguments, [Petitioner’s] trial counsel pointed out to the jury that the

[Petitioner] lived in an apartment and that the victim never specifically identified the

apartment as a location of abuse. Clearly, [Petitioner] was not harmed by any

inconsistencies in the bill of particulars or the indictment.

State v. Geboy, supra, 2003 WL 178616, at *3.

In granting relief on claim one of Petitioner’s federal habeas petition, the district court found

that the decision of the Ohio Court of Appeals ran afoul of both parts of the two-part AEDPA

standard for federal habeas review of state court rulings. First, the district court held that the state

court’s decision 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)(2), where the district court was unable

to identify any support in the trial record for the Ohio appellate court’s determination that Petitioner

occasionally visited the family home during the two-month period cited in counts nine and ten of

the indictment. Next, the district court found that the state court’s decision was “contrary to, or

involved an unreasonable application of, clearly established Federal law,” 28 U.S.C. § 2254(d)(1),

to the extent that the state court found that Petitioner was not harmed by the inconsistencies between

the allegations in the bill of particulars and the evidence at trial. In the district court’s view, these

inconsistencies prejudiced Petitioner in his effort to “defend[] himself by arguing that the acts

alleged [in counts nine and ten of the indictment] never took place, and could not have taken place,

since he was not residing in the family home during the time periods at issue.” (District Court

12/9/2004 Op. at 4, J.A. at 694.)

We readily agree that the Ohio appellate court erred in citing the purported testimony of

Janice Geboy that Petitioner occasionally visited the family home during the time that he and his

wife were separated. Like the district court, we have been unable to identify any such testimony in

the record, nor any other evidence that Petitioner was present at the family home at any time during

this period. As stated earlier, if the bill of particulars is construed as alleging that all of Petitioner’s

crimes, including those charged in counts nine and ten, were committed in the family home, then

it may fairly be said that the evidentiary record fails to support this allegation as to the felonious

sexual penetration offenses charged in counts nine and ten.6

We part company with the district court, however, as to the legal significance of this

evidentiary disparity. In his habeas petition and other submissions in the court below, Petitioner

characterized his challenges to his felonious sexual penetration convictions as resting upon the

insufficiency of the evidence to prove these offenses. In assessing such a challenge, a reviewing

court must ask “whether, after viewing the evidence in the light most favorable to the prosecution,

6

In the court below, Respondent argued that the reference in the bill of particulars to “the home of the

Defendant and victim” could be construed as encompassing two residences — namely, the family home and the

apartment where Petitioner lived for part of the relevant 1988-99 period referenced in the indictment. It is unclear how

much Respondent gains from this broader construction, however, where Jodi did not identify her father’s apartment as

a place where sexual abuse occurred. In any event, Respondent is no longer advancing this argument on appeal, and our

disposition of this matter on other grounds makes it unnecessary for us to decide whether this is a plausible reading of

the bill of particulars.

Nos. 05-3200/3201 Geboy v. Brigano Page 10

any rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). In a habeas action,

we apply this Jackson standard “through the framework of [28 U.S.C.] § 2254(d).” Martin v.

Mitchell, 280 F.3d 594, 617 (6th Cir.), cert. denied, 537 U.S. 1004 (2002). Further, this standard

must be applied “with explicit reference to the substantive elements of the criminal offense as

defined by state law.” Jackson, 443 U.S. at 324 n.16, 99 S. Ct. at 2792 n.16.

Because the focus of a sufficiency challenge is on the “essential elements of the crime,”

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789, it would appear unlikely that a discrepancy between a

bill of particulars and the evidence at trial could sustain such a challenge. Under Ohio law —

which, as noted, determines the elements of the offenses charged in this case — the State cannot

permissibly amend an indictment, whether directly or through a bill of particulars, if the result would

be that the offenses charged in the original and amended indictments are different crimes that require

proof of different elements. See Ohio Crim. R. 7(D); see also State v. Vitale, 645 N.E.2d 1277,

1280-81 (Ohio Ct. App. 1994); State v. Barnecut, 542 N.E.2d 353, 356 (Ohio Ct. App. 1988). By

the same token, the State generally may amend an indictment or bill of particulars, even after trial

for the purpose of conforming to the evidence, so long as “no change is made in the name or identity

of the crime charged.” Ohio Crim. R. 7(D); see also State v. Daniel, 647 N.E.2d 174, 180 (Ohio Ct.

App. 1994); State v. Madden, 472 N.E.2d 1126, 1128-29 (Ohio Ct. App. 1984). From these

principles, it readily follows that the sorts of details supplied in a bill of particulars typically do not

qualify as elements of the offenses charged in an underlying indictment. See, e.g., State v. Sellards,

478 N.E.2d 781, 783-84 (Ohio 1985) (distinguishing between an indictment, in which the State

“aver[s] all material facts constituting the essential elements of an offense,” and a bill of particulars,

which serves to “elucidate or particularize the conduct of the accused alleged to constitute the

charged offense”).

As an example, the Ohio courts have concluded in a number of cases that precise dates and

times were not elements of the charged offenses, and thus need not have been set forth in the

indictment. See, e.g., State v. Lawrinson, 551 N.E.2d 1261, 1262 (Ohio 1990); State v. Grewell, 543

N.E.2d 93, 98-99 (Ohio 1989); Sellards, 478 N.E.2d at 785; Daniel, 647 N.E.2d at 557. Rather, such

information must be provided only upon a defendant’s request for a bill of particulars — and, even

then, only if “the state possesses the specific information requested by the accused” and this

information “is material to the defendant’s ability to prepare and present a defense.” Lawrinson, 551

N.E.2d at 1262. If, as happened here, the State provides more detailed allegations in a bill of

particulars that differ from the evidence at trial, this discrepancy does not elevate these additional

details into “elements” that must have been included in the indictment. See State v. Webb, 596

N.E.2d 489, 491 (Ohio Ct. App. 1991). Instead, the discrepancy is properly characterized as a mere

variance, and the relevant question is whether the defendant was prejudiced by this variance. See

Grewell, 543 N.E.2d at 99 & n.9; Daniel, 647 N.E.2d at 180-81; Webb, 596 N.E.2d at 490-91.7

7

Federal law recognizes a similar distinction. As we have explained:

The Fifth Amendment guarantees that an accused be tried only on those offenses presented

in an indictment and returned by a grand jury. The constitutional rights of an accused are violated

when a modification at trial acts to broaden the charge contained in an indictment. A variance to the

indictment occurs when the charging terms of the indictment are unchanged, but the evidence at trial

proves facts materially different from those alleged in the indictment. In contrast, an amendment

involves a change, whether literal or in effect, in the terms of the indictment. This Circuit has held

that a variance rises to the level of a constructive amendment when the terms of an indictment are in

effect altered by the presentation of evidence and jury instructions which so modify essential elements

of the offense charged that there is a substantial likelihood that the defendant may have been convicted

of an offense other than that charged in the indictment . . . .

While the distinction between a variance and a constructive amendment is sketchy, the

Nos. 05-3200/3201 Geboy v. Brigano Page 11

Applying these principles of Ohio law to the present case, we conclude that the specific

reference in the bill of particulars to “the home of the Defendant and victim” did not operate to

elevate this location to an element of the various offenses charged in the indictment. As noted

earlier, nothing in the indictment or the underlying statute that defines the crime of felonious sexual

penetration indicates that location is an element of this offense. Rather, the statute is silent as to

location, and the indictment alleges only that Petitioner committed his offenses in Logan County.

Petitioner has not suggested that the indictment was deficient under Ohio law for lack of a more

specific location where these offenses allegedly were committed. Consequently, because location

was not an element of the offenses charged in counts nine and ten of the indictment, Petitioner’s

sufficiency challenge need not be evaluated by reference to whether the State proved the allegation

in the bill of particulars that these offenses were committed “at the home of the Defendant and

victim.” It matters only whether a “rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S. Ct. at 2789 (emphasis

added).

Viewing Petitioner’s sufficiency challenge in this light, we perceive no defect in the Ohio

court’s resolution of this issue that would warrant federal habeas relief. To be sure, and as the

district court correctly observed, there was no evidence at trial that Petitioner lived at or visited the

family home during the time periods in which he allegedly committed the offenses charged in counts

nine and ten of the indictment. Nonetheless, the Ohio Court of Appeals pointed to the testimony of

Petitioner’s daughter, Jodi, that her father’s acts of sexual abuse were not strictly confined to the

family home, but also occurred at other locations. The state court further noted Jodi’s testimony that

Petitioner sexually abused her nearly every day over an eleven-year period, a time span that

encompassed the two one-month periods specified in counts nine and ten. As explained, any gaps

in this testimony, or in the record generally, as to precisely where this misconduct occurred is

irrelevant to Petitioner’s sufficiency challenge, because nothing in Ohio law holds that location is

an element of the offense of felonious sexual penetration. Accordingly, we find that the Ohio

court’s rejection of Petitioner’s sufficiency challenge was wholly consistent with, and not at all

contrary to, the clearly established federal law governing this subject.

This leaves only the question whether Petitioner was prejudiced by the variance between the

allegation in the bill8 of particulars and the evidence at trial regarding the precise location of

Petitioner’s offenses. As the Supreme Court has explained, such a variance in proof warrants the

reversal of a conviction only if it “affect[s] the substantial rights of the accused.” Berger v. United

States, 295 U.S. 78, 82, 55 S. Ct. 629, 630 (1935) (internal quotation marks omitted); see also

Chilingirian, 280 F.3d at 712; United States v. Zelinka, 862 F.2d 92, 97 (6th Cir. 1988). A

consequences of each are significantly different. A variance will not constitute reversible error unless

substantial rights of the defendant have been affected. A constructive amendment, on the other hand,

is a variance that is accorded the per se prejudicial treatment of an amendment, because, like an actual

amendment, it infringes upon the Fifth Amendment’s grand jury guarantee. Consequently, a

constructive amendment warrants reversal of a conviction.

United States v. Chilingirian, 280 F.3d 704, 711-12 (6th Cir. 2002) (internal quotation marks, citations, and alterations

omitted).

8

Notably, in his submissions in the court below, Petitioner disavowed any such claim of an impermissible

variance between the bill of particulars and the evidence at trial, and instead insisted that he was pursuing only a

sufficiency challenge. (See, e.g., Petitioner’s 8/18/2005 Traverse at 10.) The district court, likewise, opined that

Respondent had “mischaracterize[d]” Petitioner’s claim as resting upon adequacy of notice rather than sufficiency of

the evidence. (District Court 12/9/2004 Op. at 2-3.) Nonetheless, the district court recognized, albeit only implicitly,

that the variance between the bill of particulars and the evidence at trial implicated issues beyond sufficiency of the

evidence, as it proceeded to inquire whether Petitioner had been prejudiced by this variance. (See id. at 4.) As we

observed earlier, a showing of prejudice is essential to a claim of an impermissible variance, but is immaterial to a

sufficiency challenge.

Nos. 05-3200/3201 Geboy v. Brigano Page 12

defendant’s substantial rights are affected where he is “prejudicially surprised” by the variance, or

where it otherwise “prejudice[s] the fairness of [the defendant’s] trial.” United States v. Miller, 471

U.S. 130, 134-35, 105 S. Ct. 1811, 1814 (1985); see also United States v. Ragen, 314 U.S. 513, 526,

62 S. Ct. 374, 380 (1942); Berger, 295 U.S. at 82, 55 S. Ct. at 630; Zelinka, 862 F.2d at 97.

The Ohio Court of Appeals found no such prejudice, but the district court concluded

otherwise. For its part, the state court found that, because the indictment identified specific ranges

of dates within which Petitioner allegedly committed the offenses charged in counts nine and ten,

this afforded him sufficient notice and opportunity to develop evidence and arguments as to any

discrepancies between the locations of the alleged abuse and his whereabouts during these periods.

See Geboy, 2003 WL 178616, at *3. The state court further observed that Petitioner had availed

himself of this opportunity by cross-examining his daughter Jodi “regarding the specific locations

of her alleged abuse,” and then pointing out during closing argument that he had lived in an

apartment during the relevant periods and that “the victim never specifically identified the apartment

as a location of abuse.” Id. The district court, in contrast, found that Petitioner had been prejudiced

by the variance between the bill of particulars and the evidence at trial, reasoning that he had

“defended himself by arguing that the acts alleged never took place, and could not have taken place,

since he was not residing in the family home during the time periods at issue.” (District Court

12/9/2004 Op. at 4, J.A. at 694.)

While the reference to a specific location in the bill of particulars surely could have led

Petitioner to adopt the defense that he never visited this location during the periods encompassed

by counts nine and ten of the indictment, we find no basis under the governing AEDPA standards

to disturb the state court’s determination that Petitioner did not, in fact, pursue such a defense at

trial. Petitioner’s principal defense was, quite simply, that the abuse described by his daughter did

not happen. As stated by his counsel near the outset of closing argument, “the issue gets to be, Jodi

said he did it, [Petitioner] said I didn’t.” (3/15/2002 Trial Tr. at 781.) Counsel later described

Petitioner’s “frustrat[ion] . . . in this particular situation because he says I didn’t do it, how do I

prove that I didn’t do it?” (Id. at 785.) Finally, near the conclusion of his closing argument,

Petitioner’s counsel opined that “[t]he issue is can you believe what Jodi had to say?” (Id. at 804.)

While Petitioner and his counsel did advance an argument based on the evidence of

Petitioner’s whereabouts during the time frame of the offenses charged in counts nine and ten, this

argument actually belies, rather than supports, the notion that Petitioner was somehow misled or

prejudiced by the variance between the bill of particulars and the proof at trial. As noted, Petitioner

adduced evidence, including the testimony of his landlord, that he lived at an apartment rather than

the family home during this period, and nothing in the record indicates that he even visited the

family home during the time that he was separated from his wife. Yet, Petitioner did not point to

this evidence as proof that he could not have committed the offenses charged in counts nine and ten

“at the home of the Defendant and victim,” as alleged in the bill of particulars. Instead, his counsel

cited the absence of any testimony or other evidence “that anything happened at [Petitioner’s]

apartment.” (Id. at 785.) Petitioner’s counsel then explained the significance of this evidentiary

gap:

I told you about [Petitioner’s landlord]. His testimony was relevant as far as

counts nine, ten, 11 and 12 when Jodi says through the indictment that there was

felonious sexual penetration going on, where you heard her say that it happened at

the house and it happens in the car. Never heard at the apartment.

And when these counts are filed — with these counts, dates of these counts

are of a period of time when [Petitioner] was living at an apartment, not at home.

The fact that that is — I could prove to you that that’s a lie, the fact that they — that

we have this lie here, helps prove that the rest of this is a lie.

Nos. 05-3200/3201 Geboy v. Brigano Page 13

(Id. at 801-02.)

If Petitioner truly had been misled by the allegation in the bill of particulars that his alleged

abuse of his daughter occurred solely “at the home of the Defendant and victim,” there would have

been no reason for Petitioner and his counsel to point to the absence of evidence of abuse at other

locations, such as his apartment. Rather, it would have been enough simply to explain to the jury

that Petitioner could not possibly be guilty of the offenses charged in counts nine and ten, where no

evidence placed him at the specified location of these offenses during the time period encompassed

by these two counts. By emphasizing the absence of evidence of abuse at Petitioner’s apartment,

Petitioner and his counsel plainly elected to pursue a different line of defense — namely, that the

victim’s testimony was not credible because she failed to identify Petitioner’s apartment, where he

lived during the time span encompassed by counts nine through twelve of the indictment, as a

location where any abuse occurred. The variance between the bill of particulars and the evidence

at trial did nothing to undermine or otherwise prejudice this attack upon the credibility of

Petitioner’s daughter.

Under this record, we cannot say that the decision of the Ohio Court of Appeals 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)(2). Nor can we conclude that the state court’s finding of no

prejudice reflected an “unreasonable application” of the federal law governing variances of proof.

28 U.S.C. § 2254(d)(1). Accordingly, we reverse the district court’s grant of relief to Petitioner

under claim one of his habeas petition.

C. Petitioner Has Failed to Advance Any Arguments in Support of the Issues Properly

Raised in His Cross-Appeal.

Having addressed the issue raised in Respondent’s appeal, we now turn to Petitioner’s cross-

appeal. As a threshold matter, Respondent contends in his brief on appeal that we should dismiss

Petitioner’s cross-appeal for failure to file a brief by the court-ordered due date of October 24, 2005.

Petitioner instead filed his appellate brief on December 20, 2005, nearly two months after the

deadline, without in any way acknowledging or explaining this untimely submission. This course

of conduct runs afoul of Sixth Circuit Rule 26, which states that “[t]his Court does not favor

applications for extensions of time for the filing of briefs,” Sixth Circuit Rule 26(b), and which

further provides:

Any late documents for which there is a submission deadline and which are

tendered after that deadline has passed, shall be accompanied by a motion for leave

to file out-of-time and a memorandum explaining the circumstances. Absent the

grant of such a motion, the documents will not be acted on.

Sixth Circuit Rule 26(c); see also Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996) (observing

that the “lenient treatment generally accorded to pro se litigants has limits,” and ordinarily does not

extend to a “fail[ure] to comply with an easily understood court-imposed deadline”). Because

Petitioner did not request, much less obtain, leave of this court to file his appellate brief after the

October 24, 2005 due date, our rules seemingly preclude us from considering his untimely

submission.

We find it unnecessary to decide this question, however, because Petitioner’s brief on appeal

utterly fails to address either of the claims for which he has obtained a certificate of appealability

(“COA”). As noted earlier, the COA granted by the district court was limited to Petitioner’s

challenges to the dismissal of claims two and five of his petition, and this Court subsequently denied

Petitioner’s request for an expanded COA encompassing claims three and four of the petition. Thus,

only two issues are properly before us on Petitioner’s cross-appeal: (i) whether the evidence was

Nos. 05-3200/3201 Geboy v. Brigano Page 14

sufficient to establish Petitioner’s guilt of the rape charged in count seventeen of his indictment, and

(ii) whether Petitioner was denied a fair trial and his right to confront his accusers through the state

trial court’s decision to admit into evidence a chart prepared by the prosecutor.

Petitioner’s untimely brief on appeal notably fails to advance any arguments bearing upon

these issues. Rather, his entire brief is devoted to challenging the admissibility of the testimony of

one of the State’s witnesses, Andrew Stoner. This issue, however, is relevant only to claim four of

Petitioner’s habeas petition, and no COA has been granted as to this claim. As to the claims that are

properly before us, Petitioner has not suggested any defects in the district court’s dismissal of these

claims, much less advanced any sort of argument for the reversal of the district court’s rulings on

these matters. We decline to identify and address the arguments that Petitioner could have made but

did not, and instead find that he has waived any possible challenge to the dismissal of claims two

and five of his habeas petition. See Dillery v. City of Sandusky, 398 F.3d 562, 569 (6th Cir. 2005)

(“It is well-established that issues adverted to in a perfunctory manner, unaccompanied by some

effort at developed argumentation, are deemed waived.” (internal quotation marks and citations

omitted)); see also Coleman v. Shoney’s, Inc., No. 02-5991, 79 F. App’x 155, 156-57 (6th Cir. Oct.

24, 2003) (confirming that this principle applies to pro se litigants).9

IV. CONCLUSION

For the reasons set forth above, we REVERSE the district court’s grant of relief to Petitioner

Alan Geboy on claim one of his habeas petition, AFFIRM the denial of relief as to claims two and

five of this petition, and REMAND with instructions to dismiss the petition in its entirety.

9

In any event, we have reviewed the district court’s rulings as to claims two and five of the habeas petition,

as well as the corresponding arguments advanced by Petitioner’s counsel in the court below, and we are satisfied that

the district court did not err in its disposition of these claims.