Petition for Writ of Certiorari — Wilfred H., Petitioner v. Josh Ward, Interim Superintendent, Mount Olive Correctional Complex

No. 23IN THE

Supreme Court of the United States

___________

WILFRED H.,

v.

STATE OF WEST VIRGINIA,

___________

Petitioner,

Respondent.

On Petition for a Writ of Certiorari

to the West Virginia Supreme Court of Appeals

___________

PETITION FOR A WRIT OF CERTIORARI

___________

TOBIAS S. LOSS-EATON

CLAIRE HOMSHER

CHARLES W. JETTY

SIDLEY AUSTIN LLP

1501 K Street NW

Washington, D.C. 20005

(202) 736-8427

tlosseaton@sidley.com

JEFFERY T. GREEN *

DANIELLE HAMILTON

NORTHWESTERN SUPREME

COURT PRACTICUM

375 East Chicago Avenue

Chicago, IL 60611

(240) 286-5686

jeff@greenlawchartered.com

Counsel for Petitioner

May 24, 2024

* Counsel of Record

i

QUESTION PRESENTED

Does a state violate due process or double jeopardy

principles when it charges and convicts a defendant

on multiple, identical counts, with none connected to

specific factual allegations?

ii

PARTIES TO THE PROCEEDING

AND RULE 29.6 STATEMENT

The parties to the proceeding are listed in the caption. No party is a corporation.

iii

RULE 14.1(b)(iii) STATEMENT

This case arises from the following post-conviction

proceedings:

Wilfred H. v. Ames, Circuit Court of Randolph

County, West Virginia, No. 19-C-64; and

Wilfred H. v. Ames, Supreme Court of Appeals

of West Virginia, No. 22-0506.

This case also relates to the following original proceedings:

West Virginia v. Wilfred H., Circuit Court of

Randolph County, West Virginia, No. 14-F-117;

West Virginia v. Wilfred H., Supreme Court of

Appeals of West Virginia, No. 17-0170, 2018 WL

3005947; and

Wilfred H. v. W. Virginia, U.S. Supreme Court,

No. 18-7395, 139 S. Ct. 1274 (2019).

No other proceedings in state or federal courts, or

in this Court, directly relate to this case.

iv

TABLE OF CONTENTS

Page

QUESTION PRESENTED ...................................

i

PARTIES TO THE PROCEEDING AND RULE

29.6 STATEMENT ............................................

ii

RULE 14.1(b)(iii) STATEMENT ..........................

iii

TABLE OF AUTHORITIES .................................

vi

PETITION FOR A WRIT OF CERTIORARI .......

1

OPINIONS BELOW .............................................

1

JURISDICTION ...................................................

1

CONSTITUTIONAL

PROVISIONS

INVOLVED ........................................................

1

INTRODUCTION .................................................

2

STATEMENT OF THE CASE..............................

3

A. Factual background ..................................

3

B. The proceedings below. .............................

5

REASONS FOR GRANTING THE PETITION ...

6

I. Courts of appeals and state high courts

are openly split on the question presented. .

6

II. The decision below is wrong. ........................

12

III. This question is important and recurring. ...

16

IV. This case is an ideal vehicle. .........................

17

CONCLUSION .....................................................

17

PETITION APPENDIX

APPENDIX A: Opinion, Wilfred H. v. Ames, No.

22-0506 (W. Va. Jan. 25, 2024) .........................

1a

v

TABLE OF CONTENTS—continued

Page

APPENDIX B: Order Denying Writ of Habeas

Corpus, Hinchman v. Lanham, No. 19-C-64

(Randolph Cnty. Circuit Ct. June 3, 2022) ...... 10a

APPENDIX C: Indictment, Hinchman v. West

Virginia, No. 14-F-117 (Randolph Cnty. Circuit Ct. Oct. 28, 2014) ........................................ 59a

APPENDIX D: Motion for Bill of Particulars,

West Virginia v. Hinchman, No. 14-F-117

(Randolph Cnty. Circuit Ct. July 17, 2015) ...... 80a

APPENDIX E: Order, West Virginia v.

Hinchman, No. 14-F-117 (Randolph Cnty.

Circuit Ct. Sept. 28, 2015) ................................. 82a

APPENDIX F: Stipulated Agreement on Defendant’s Motion for Bill of Particulars, West

Virginia v. Hinchman, No. 14-F-117 (Randolph Cnty. Circuit Ct. Nov. 30, 2015) ............. 87a

APPENDIX G: Trial Transcript Excerpts, West

Virginia v. Hinchman, No. 14-F-117 (Randolph Cnty. Circuit Ct. Aug. 2016) ................... 89a

vi

CASES

TABLE OF AUTHORITIES

Page

Ballard v. Dilworth, 739 S.E.2d 643 (W.

Va. 2013)..................................................... 7, 17

Benton v. Maryland, 395 U.S. 784 (1969) ....

16

Cole v. Arkansas, 333 U.S. 196 (1948)......... 12, 16

Commonwealth v. Hrycenko, 630 N.E.2d

258 (Mass. 1994) ....................................... 10, 11

Crawford v. Pennsylvania, 714 F. App’x

177 (3d Cir. 2017) .......................................

16

Dunn v. Maze, 485 S.W.3d 735 (Ky. 2016) ... 9, 10

Gerald S. v. Ballard, No. 14-0156, 2015

WL 1235949 (W. Va. Mar. 16, 2015) .........

7

Goforth v. State, 70 So. 3d 174 (Miss. 2011)

10

Luttrell v. State, 97 A.3d 70 (Del. 2014) .......

11

Miller v. Commonwealth, 283 S.W.3d 690

(Ky. 2009) ...................................................

15

Ohio v. Johnson, 467 U.S. 493 (1984) ..........

13

People v. Gurk, 722 N.W.2d 213 (Mich.

2006) ...........................................................

16

Russell v. United States, 369 U.S. 749

(1962) ...................................................... 2, 6, 12

Sanabria v. United States, 437 U.S. 54

(1978) ..........................................................

13

State v. David S., No. 22-0113, 2023 WL

6012817 (W. Va. Sept. 15, 2023)................

7

State v. Lente, 453 P.3d 416 (N.M. 2019) .....

15

State v. Michael H., No. 12-0253, 2013 WL

1632124 (W. Va. Apr. 16, 2013) .................

7

State v. Wilfred H., No. 17-0170, 2018 WL

3005947 (W. Va. June 15, 2018), cert.

denied, 139 S. Ct. 1274 (2019) ...................

5

United States v. Hillie, 227 F. Supp. 3d 57

(D.D.C. 2017) ................................. 13, 14, 15, 16

United States v. Miller, 471 U.S. 130 (1985)

12

vii

TABLE OF AUTHORITIES—continued

Page

United

States

v.

Panzavecchia,

421 F.2d 440 (5th Cir. 1970) .................. 8, 9, 16

Valentine v. Konteh, 395 F.3d 626 (6th Cir.

2005) ............................... 2, 3, 6, 7, 8, 12, 14, 15

Wooden v. United States, 595 U.S. 360

(2022) ..........................................................

16

CONSTITUTION AND STATUTES

U.S. Const. amend. V, § 2–3 .........................

U.S. Const. amend. XIV, § 1 .........................

28 U.S.C. § 1257 ............................................

1

1

1

PETITION FOR A WRIT OF CERTIORARI

Wilfred H. respectfully petitions for a writ of certiorari to review the judgment of the West Virginia Supreme Court of Appeals.

OPINIONS BELOW

The unreported opinion of the West Virginia Supreme Court of Appeals is available at 2024 WL

313316 and reproduced at Pet. App. 1a–9a. The unreported opinion of the Circuit Court of Randolph

County is reproduced at Pet. App. 10a-58a.

JURISDICTION

The West Virginia Supreme Court of Appeals entered judgment on January 25, 2024. Pet. App. 1a.

On April 11, 2024, Chief Justice Roberts extended the

time to file this petition to May 24, 2024. This Court

has jurisdiction under 28 U.S.C. § 1257.

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment provides: “No person … shall

be subject for the same offence to be twice put in

jeopardy of life or limb … nor be deprived of life, liberty, or property, without due process of law.” U.S.

Const. amend. V, § 2–3.

The Fourteenth Amendment provides: “No State

shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws.” U.S. Const. amend. XIV, § 1.

2

INTRODUCTION

This case presents an important and recurring constitutional question on which West Virginia is a persistent outlier, openly disagreeing with other jurisdictions.

Under the Fifth and Fourteenth Amendments, an

indictment must be specific enough to give adequate

notice of the charges and protect against double jeopardy. See Russell v. United States, 369 U.S. 749,

763–65 (1962). Indictments with multiple factually

indistinguishable, identically worded counts fail to do

so: They neither provide sufficient notice to mount

an adequate defense nor make clear the allegations

on which the defendant cannot be tried or convicted

again. E.g., Valentine v. Konteh, 395 F.3d 626, 632,

635–36 (6th Cir. 2005).

But below, the West Virginia high court affirmed

Petitioner Wilfred H.’s convictions on three identically worded counts of first-degree sexual assault—each

alleging the exact same conduct at some point during

a two-and-a-half-year period—even though neither

prosecutors nor the trial court ever linked those carbon-copy counts to specific dates or incidents. It was

enough, the court said, that each count included “a

time period”—never mind that it was the same multiyear time period in all three. Pet. App. 5a. The West

Virginia court reiterated that it had “consistently declined” to follow federal appellate precedent on this

issue, thus refusing to “require greater specificity as

set forth in [the Sixth Circuit’s] Valentine” decision.

Id. In fact, the West Virginia high court has repeatedly rubber-stamped convictions on several, dozens,

or even hundreds of identically worded, factually indistinguishable counts.

3

At least two circuits and four state high courts reject West Virginia’s extreme approach. Those courts

emphasize the Constitution’s demand that “if a defendant is going to be charged with multiple counts of

the same crime, there must be some minimal differentiation between the counts.” E.g., Valentine, 395

F.3d at 638. These other courts would not have upheld petitioner’s carbon-copy convictions.

And with good reason. Without some basis to distinguish among these charges, petitioner could not

properly mount a defense, as due process requires.

Nor is it clear which incidents formed the basis for

these convictions—or even that they are based on

separate incidents at all. The convictions thus violate

double jeopardy as well. While cases involving repeated sexual abuse pose special challenges in this

area, other courts have appropriately addressed those

concerns while still respecting defendants’ constitutional rights. West Virginia must do the same.

STATEMENT OF THE CASE

A. Factual background.

In October 2014, petitioner Wilfred H. was indicted

on sixty-one counts, including thirty-seven counts of

first-degree sexual assault. Pet. App. 2a. Counts 1,

2, 4, 5, and 6 were identical. Each one alleged, in

verbatim language, that petitioner engaged in the

same conduct at some point during a period spanning

two-and-a-half years:

on, about, or between November 16, 2007, through

July 15, 2010 … did unlawfully and feloniously,

and being eighteen years of age or more at the

time of offense, engage in sexual intercourse or

sexual intrusion with another person who was

younger than twelve years of age and was not

4

married to that person, to wit: the Defendant …

did unlawfully and feloniously, and being eighteen years of age or more at the time of the offense, engage in oral sexual intercourse with a

juvenile identified by the initials M.A.H.

Pet. App. 59a (emphasis added).

The parties then stipulated to a bill of particulars.

It distinguished counts 1 and 2 from the other identical counts. But it offered no clarity as to counts 4, 5,

and 6, again alleging the same conduct during the

same wide date range:

The State of West Virginia is alleging that the

Defendant … did engage in contact between his

sex organ and the mouth of the victim, M.A.H. …

thereby constituting sexual intercourse as defined

by West Virginia Code, on at least three different

occasions occurring between November 16, 2007

and July 15, 2010.

Pet. App. 87a.

The case proceeded to trial in January 2016, during

which the state dismissed some other charges. But

the jury could not reach a unanimous verdict, so producing a mistrial. Pet. App. 2a.

A second trial followed in August 2016. The identical Counts 4, 5, and 6 remained. At trial, the victim

testified to the alleged sexual assaults with a broad

brush, recounting “typical abusive behavior” over a

three-year period. Pet. App. 40a. Her testimony did

not provide distinct factual bases for the identically

worded counts. She never described any specific incidents or referred to particular dates or narrower time

periods. Pet. App. 90a–91a.

During deliberations, the jury submitted a written

question asking why the charges related to the iden-

5

tical counts “read the same.” Pet. App. 2a. In response, the trial court largely parroted the stipulated

bill of particulars, explaining that the identical

counts charged three occurrences of sexual intercourse as “defined by contact between the sex organ

of the [petitioner] … and the mouth of [M.A.H.], and

that such contact occurred on or about or between

November 16th, 2007, and July 15th, 2010.” Pet.

App. 3a. The court also “provided a hypothetical example of speeding multiple times during a month and

how that would be reflected with three charges having identical language in an indictment.” Id. The jury convicted petitioner on five counts of first-degree

sexual assault, including all three identically worded

counts. It did not reach a verdict on the remaining

counts. Id.

On direct appeal, petitioner pressed various procedural and evidentiary arguments, but did not raise

the constitutional issues presented by his indictment.

The state high court affirmed, see State v. Wilfred H.,

No. 17-0170, 2018 WL 3005947, at *9 (W. Va. June

15, 2018), and this Court denied certiorari, 139 S. Ct.

1274 (2019).

B. The proceedings below.

Petitioner sought state habeas relief. He was then

appointed counsel, who raised constitutional challenges to identically worded counts. Pet. App. 3a.

The trial court denied relief.

The state high court again affirmed. It reviewed de

novo the argument that “counts 4, 5, and 6 of the indictment, which contained identical charging language, were constitutionally insufficient due to a lack

of specificity.” Pet. App. 4a. Citing its own precedent, the court declared that “[a]n indictment need

only meet minimal constitutional standards.” Pet.

6

App. 5a. Those standards are met if the indictment

“substantially follows the language of the [state criminal] statute, fully informs the accused of the particular offense with which he is charged and enables the

court to determine the statute on which the charge is

based.” Id.

The indictment passed this lenient test. The identical counts “substantially follow[ed] the language of

the relevant statutes,” “identified the victim,” “described the sexual offenses at issue,” and “set out a

time period for the offenses”—“November 16, 2007,

through July 15, 2010.” Pet. App. 5a. This “detail”

sufficed to address any due process and double jeopardy concerns, though the court did not explain how.

Id. Nor did the court’s analysis address the jury’s

confusion about the multiple identical counts or the

trial court’s response. See id.

The West Virginia court thus refused to “require

greater specificity as set forth in Valentine v. Konteh,

395 F.3d 626 (6th Cir. 2005).” Pet. App. 5a. The

court noted that it had “consistently declined to do

so,” instead adopting “the dissent in Valentine” as

correctly stating the law. Id. (citing Ballard v. Dilworth, 739 S.E.2d 643, 649–51 (W. Va. 2013) (per curiam)).

REASONS FOR GRANTING THE PETITION

I. Courts of appeals and state high courts are

openly split on the question presented.

Under Russell v. United States, indictments must

(1) contain the elements of the charged offense,

(2) give adequate notice of the charges, and

(3) protect against double jeopardy. 369 U.S. at 763–

65.

7

Yet the West Virginia high court—in open disagreement with other jurisdictions—has repeatedly

upheld indictments with multiple, identically worded

counts. It has done so even when prosecutors provide

no clarifying information at trial to link those counts

to particular factual allegations. Thus, it routinely

allows prosecutors to charge, and juries to convict,

defendants on these carbon-copy counts with no realistic way to tell the charges apart or determine which

counts align with what conduct. See, e.g., Dilworth,

739 S.E.2d at 645 (ten identical counts); Gerald S. v.

Ballard, No. 14-0156, 2015 WL 1235949 at *3 (W. Va.

Mar. 16, 2015) (same); State v. Michael H., No. 120253, 2013 WL 1632124 at *1–2 (W. Va. Apr. 16,

2013) (twenty-two identical counts in four different

categories). Indeed, the West Virginia court recently

upheld a 516-count carbon-copy indictment with no

accompanying bill of particulars or explanation linking the counts to specific factual allegations at trial.

State v. David S., No. 22-0113, 2023 WL 6012817, at

*1–2 (W. Va. Sept. 15, 2023).

These outlier decisions reason that an indictment

need only state the charged offense, the offense conduct, and “a time period”—no matter how long. Pet.

App. 5a. In so holding, the West Virginia court has

repeatedly refused to “require greater specificity as

set forth in” precedent from other jurisdictions. Id.

Indeed, at least two circuits and four states would

have vacated the duplicative convictions here.

The Sixth Circuit. The leading case in this area

is the one the court below has consistently rejected,

Valentine, 395 F.3d 626. The Sixth Circuit held there

that indictments that fail to link multiple “carboncopy” counts to identifiable offenses violate defendants’ due process rights and “likely subject[]” them to

double jeopardy at trial. Id. at 632, 636. Valentine

8

considered the sufficiency of a forty-count indictment

charging twenty identical counts of child rape and

twenty identical counts of felonious sexual penetration of a minor. Neither the indictment nor the bill of

particulars furnished further information to differentiate the counts. Even at trial, the prosecution did

not attempt to establish the factual bases of the forty

separate incidents that allegedly took place.

The Sixth Circuit concluded that because the indictment and subsequent prosecution made “absolutely no distinctions” within each set of 20 counts, it

failed to satisfy Russell’s second and third prongs. Id.

at 632. Valentine was effectively “prosecuted for two

criminal acts that occurred twenty times each, rather

than for forty separate criminal acts.” Id. He thus

lacked both “adequate notice to defend himself” and

“sufficient protection from double jeopardy.” Id. at

636. Further, the lack of differentiation between the

counts left “uncertainty as to what the trial jury actually found.” Id. If the jury had acquitted Valentine, for instance, it would have been “unclear what

limitations [were] imposed on his re-indictment.” Id.

at 635.

The Fifth Circuit. The Fifth Circuit likewise rejects carbon-copy indictments as constitutionally deficient. In United States v. Panzavecchia, the court

evaluated an indictment charging the defendant with

three identically worded counts of passing counterfeit

$10 bills with intent to defraud. 421 F.2d 440, 440–

41 (5th Cir. 1970). Before the district court, the government had presented evidence that the defendant

committed “three separate utterings occurring at different places and different times of the same day.”

Id. at 441. Upon Panzavecchia’s motion, the government was ordered to produce a bill of particulars.

But the bill of particulars failed to provide infor-

9

mation establishing the facts of each offense. Id. at

442. A jury found him guilty on two of the three

counts.

The Fifth Circuit reversed and dismissed the indictment: “While a Bill of Particulars can solve evidentiary problems,” the court explained, “it cannot

unlock the Grand Jury’s mind and cure a defective

indictment.” Id. By failing “to reveal which counts

the Grand Jury intended to apply to which offenses,”

the indictment “imperiled” any future pleas of former

acquittal or conviction. Id. To obviate double jeopardy problems, the Fifth Circuit required that indictments “set forth the offense with sufficient clarity

and certainty to apprise the accused of the crime with

which he is charged.” Id. at 441.

Kentucky. In Dunn v. Maze, the Supreme Court of

Kentucky foreclosed the possibility of a new trial

premised upon a carbon-copy indictment. 485 S.W.3d

735, 750 (Ky. 2016). The defendant was prosecuted

for seven counts of first-degree sodomy with a minor.

All counts of the indictment and the jury instructions

read identically, and Dunn was convicted on five

counts. After his conviction was vacated and remanded for a new trial, Dunn filed a petition for a

writ of prohibition in the intermediate appellate court

seeking to bar his retrial, claiming it would subject

him to double jeopardy. Id.

The Supreme Court of Kentucky agreed. Relying

on Valentine, the court noted that “[t]he core problem

when identical, generic counts are used is that ‘we

cannot be sure what factual incidents were presented

and decided by this jury.” Id. at 748 (quoting Valentine, 395 F.3d at 635). Carbon-copy indictments and

jury instructions pose a “two-fold” due process problem: they fail to give defendants adequate notice of

their charges, and they fail to provide adequate pro-

10

tection against double jeopardy in the future. Id. (citing Valentine, 395 F.3d at 631–32, 634–35). Verdicts

from trials infected with these problems render

courts unable to determine which acts the jury found

the defendant guilty of and which acts the defendant

was acquitted of. Id. Accordingly, Dunn’s conviction

on all counts was vacated. Id. at 749.

Mississippi. The Supreme Court of Mississippi also rejects carbon-copy indictments, on double jeopardy grounds. In Goforth v. State, the defendant was

indicted on five identically worded counts of sexual

battery. 70 So. 3d 174, 188 (Miss. 2011). At trial, jury

instructions failed to differentiate the counts. The

jury acquitted Goforth on three counts and found her

guilty on two counts.

The state high court reversed. It held that “as in

Valentine, the multiple, identically worded counts in

the indictment … failed to protect Goforth’s constitutional right against double jeopardy in the event of

future prosecution. Id. at 189 (citing Valentine, 395

F.3d at 628–29). With “no identifiable basis for their

distinction among the counts … the basis for the jury’s split verdict [could not] be determined without

conjecture.” Id. at 190. Since neither Goforth “nor

anyone else would be able to determine on which specific charges she previously was acquitted or convicted,” Goforth could not be prosecuted again on the five

counts “or for any same crimes that occurred during

the time period set forth in her indictment.” Id.

Massachusetts. The Supreme Judicial Court of

Massachusetts has likewise relied on double jeopardy

protections when confronted with similar questions.

In Commonwealth v. Hrycenko, the defendant was

indicted on six identically worded counts of aggravated rape. 630 N.E.2d 258, 260 (Mass. 1994). The state

high court dismissed the two identical counts and set

11

aside Hrycenko’s convictions. It held that it was “impossible to determine the bases of the first jury’s acquittals and convictions,” so Hrycenko was “subjected

at retrial to the risk that he would be convicted of the

alleged rapes of which he had been acquitted.” Id. at

263. And it “reach[ed] this conclusion even though

the uncertainty regarding a retrial may have been

avoided if the defendant had exercised his right to request a bill of particulars prior to the first trial.” Id.

at 260.

Delaware. Finally, in Luttrell v. State, the Supreme Court of Delaware considered the sufficiency of

carbon-copy indictments in a novel procedural posture. The defendant was indicted on three identically

worded counts of unlawful sexual contact. 97 A.3d 70

(Del. 2014). At trial, he moved for a bill of particulars. The trial court denied the motion and he was

subsequently convicted of all charges. Id. at 73–74.

He appealed the denial of the motion, arguing that he

was entitled to a new trial. Because the indictment

“did not clearly delineate the acts for which he was

being prosecuted or when they occurred,” he argued,

“it did not allow him to adequately prepare a defense

or protect him from double jeopardy.” Id. at 71, 77.

The state high court reversed the denial of his motion for a bill of particulars. Because the indictment

and the ensuing trial failed to provide him sufficient

information “to understand for what particular conduct he was being prosecuted,” the failure to grant

his motion “left him unable to adequately present a

defense.” Id. at 78. The court agreed with Luttrell

that he was entitled to a new trial and remanded the

case. Id.

The decision below conflicts with all these rulings.

Under West Virginia’s analysis, juries can convict defendants of a theoretically limitless number of identi-

12

cally worded charges without ever linking those

charges to specific factual allegations. That is precisely the problem these other courts properly guard

against. Had petitioner been prosecuted in any of

these other jurisdictions, his identical carbon-copy

convictions could not stand.

II. The decision below is wrong.

The decision below violates due process and double

jeopardy protections. The Constitution “demand[s]

that if a defendant is going to be charged with multiple counts of the same crime, there must be some

minimal differentiation between the counts at some

point in the proceeding. Without such differentiation

… prosecutions would reduce to nothing the constitutional protections of the Fifth and Fourteenth

Amendments.” Valentine, 395 F.3d at 638.

Due process requires that an indictment give the

defendant sufficient notice of the charges to mount a

defense. Russell, 369 U.S. at 763–64. This requirement is paramount. “No principle of procedural due

process is more clearly established than that notice of

the specific charge” is “among the constitutional

rights of every accused in a criminal proceeding in all

courts.” Cole v. Arkansas, 333 U.S. 196, 201 (1948);

cf. United States v. Miller, 471 U.S. 130, 134 (1985)

(indictment was proper because it gave defendant

“clear notice” of the allegation “he would have to defend against”).

Double jeopardy principles likewise require clarity

at the charging stage. The Double Jeopardy Clause

“affords a defendant three basic protections: [It] protects against a second prosecution for the same offense after acquittal. It protects against a second

prosecution for the same offense after conviction.

And it protects against multiple punishments for the

13

same offense.” Ohio v. Johnson, 467 U.S. 493, 497–

98 (1984) (cleaned up). These protections are thwarted if an indictment is too vague. “The precise manner

in which an indictment is drawn cannot be ignored,

because an important function of the indictment is to

ensure that, in case any other proceedings are taken

against the defendant for a similar offence, the record

will show with accuracy to what extent he may plead

a former acquittal or conviction.” Sanabria v. United

States, 437 U.S. 54, 65–66 (1978) (cleaned up).

Prosecutions based on multiple carbon-copy charges

violate each of these protections. As then-Judge

Jackson has explained, “if a criminal indictment is

going to be drafted to provide adequate notice … and

to avoid the risk of double jeopardy—as the Constitution demands—then the defendant, the judge, and

the jury must be able to tell one count from another.”

See United States v. Hillie, 227 F. Supp. 3d 57, 80

(D.D.C. 2017) (cleaned up). If that requirement is not

met, “any attempt on [the defendant’s] part to mount

a meaningful defense against the indictment’s multiple, undifferentiated charges is impermissibly frustrated.” Id. at 76. Likewise, “multiple, identically

worded counts” raise two double jeopardy concerns—

they do not enable a defendant “to plead convictions

or acquittals as a bar to a future prosecution,” and

they “create a risk that [he] might be punished more

than one time for the same offense in the present

criminal prosecution.” Id. at 78 (quoting Valentine,

395 F.3d at 635). Indeed, such carbon-copy charges

“could result in a unanimous consensus among the

jurors regarding [a defendant’s] guilt with respect to

a particular count, but a lack of unanimity regarding

the offensive conduct that is the basis for each juror’s

vote.” Id. at 79 (citing Valentine, 395 F.3d at 636).

Hillie thus dismissed without prejudice seven carbon-

14

copy counts alleging the same conduct “during periods of time that span two to three years.” Id. at 72.

The same reasoning applies here. Petitioner was

not afforded fair notice. The three surviving identical

counts each alleged the same conduct, in verbatim

language, at some point during a nearly-three-year

period. Pet. App. 59a–60a. Petitioner thus had no

way to know which count corresponded with what alleged events, or even whether they reflected separate

alleged incidents.

The jury was similarly perplexed by these identically worded counts. The trial evidence did not distinguish among them, and the trial court’s explanation

did not solve the problem. The court did not specify

factual allegations to distinguish the counts. Pet.

App. 95a. Even the hypothetical analogous indictment provided by the trial court would have been

constitutionally deficient. If a state indicted and

tried a defendant for speeding three times in July

without providing any additional factual information

to distinguish those charges, the defendant would not

have adequate notice. Id. And again, the time period

here is not a single month, but two-and-a-half years.

Likewise, the indictment violated double jeopardy

principles in both ways noted in Hillie. Given the

long time period involved and the vague trial evidence, “it is unclear what limitations would have

been imposed on [petitioner’s] re-indictment” on similar charges. See Valentine, 395 F.3d at 635. Would

double jeopardy preclude any prosecution concerning

the abuse of M.A.H., the abuse of M.A.H. between

November 16, 2007, through July 15, 2010, the offenses offered into evidence at trial, or some group of

three specific offenses? Because it is not apparent

what factual incidents were presented to and decided

15

by the jury, those questions are impossible to answer.

See id.; Hillie, 227 F. Supp. 3d at 79.

Further, had the jury convicted on some but not all

of these identical charges, there would be no way to

tell what allegations or incidents were off-limits to

future prosecution—or whether the jurors even

agreed on which incidents they had resolved. Cf. Miller v. Commonwealth, 283 S.W.3d 690, 694 (Ky. 2009)

(reversing convictions where charges and jury instructions provided “no assurance that the jurors

were voting for the same factually distinct crime”).

And given the jury’s confusion and the court’s failure

to provide adequate clarification, petitioner may well

have been punished multiple times for the same offense in this very case. See Valentine, 395 F.3d at

636.

None of this means courts cannot recognize that the

“exigencies of child abuse cases necessitate considerable latitude in the construction of criminal charges.”

Id. Indeed, many courts hold “in the context of child

abuse prosecutions” that “fairly large time windows”—standing alone—“are not in conflict with constitutional notice requirements.” Id. at 632. Constitutional problems arise when prosecutors allege multiple identical charges during the same long time period. See id. at 638. And this charging practice is not

necessary to ensure that abusers face proportionate

punishment. In other states, prosecutors address

these issues by charging “specific” acts “during specific, consecutive . . . intervals,” with no specific offense

alleged “more than once in any given interval.” See

State v. Lente, 453 P.3d 416, 427 (N.M. 2019). This

practice “eliminates the concerns” that arise in cases

like this one, id., while properly allowing for imprecise or general victim testimony.

16

West Virginia, however, simply runs roughshod

over these bedrock constitutional protections. That is

neither necessary nor permissible.

III. This question is important and recurring.

The question presented is vital because it goes to

the most basic protections afforded to criminal defendants. An essential part of the Constitution’s dueprocess guarantee is the principle of “fair notice.” See

Wooden v. United States, 595 U.S. 360, 389 (2022)

(Gorsuch, J., concurring); Cole, 333 U.S. at 201.

Likewise, “the double jeopardy prohibition of the

Fifth Amendment represents a fundamental ideal in

our constitutional heritage.” Benton v. Maryland,

395 U.S. 784, 794 (1969).

This question also arises frequently. It comes up

most often in sexual-abuse cases, but it can arise in

any case involving an alleged pattern or sequence of

conduct across some period of time. E.g., Panzavecchia, 421 F.2d at 440–41 (passing counterfeit bills).

Indeed, this issue arises often in West Virginia alone,

as the cases cited above illustrate. And the lower

courts need guidance. “Supreme Court precedent in

this area is very general and lacks a specific application to the problems encountered in prosecutions of

child sexual abuse.” Crawford v. Pennsylvania, 714

F. App’x 177, 180 (3d Cir. 2017). And as already explained, courts openly disagree about how to address

those problems—or whether to simply ignore them,

like the court below. Compare People v. Gurk,

722 N.W.2d 213, 213 (Mich. 2006) (Corrigan, J., concurring) (arguing to reject Valentine’s reasoning),

with id. at 214 (Kelly, J., dissenting) (endorsing Valentine as “well reasoned”); see also, e.g., Hillie, 227 F.

Supp. 3d at 78 (following Valentine); Pet. App. 5a (following “the dissent in Valentine”).

17

IV. This case is an ideal vehicle.

No obstacles prevent reaching the question presented here. The judgment below is final. The issue

was preserved at each level of the state habeas proceedings and decided de novo below. The relevant

facts are undisputed. And the question presented is

outcome-determinative as to the counts at issue. Had

the court below followed the other jurisdictions discussed above, petitioner’s convictions on these counts

would have been vacated. And there is no realistic

chance the West Virginia court will reverse itself after having explicitly rejected Valentine’s reasoning on

multiple occasions. See Pet. App. 5a; Dilworth, 739

S.E.2d at 650–51 & n.18.

CONCLUSION

For these reasons, the petition should be granted.

Respectfully submitted,

TOBIAS S. LOSS-EATON

CLAIRE HOMSHER

CHARLES W. JETTY

SIDLEY AUSTIN LLP

1501 K Street NW

Washington, D.C. 20005

(202) 736-8427

tlosseaton@sidley.com

JEFFERY T. GREEN*

DANIELLE HAMILTON

NORTHWESTERN SUPREME

COURT PRACTICUM

375 East Chicago Avenue

Chicago, IL 60611

(240) 286-5686

jeff@greenlawchartered.com

Counsel for Petitioner

May 24, 2024

* Counsel of Record