Reply Brief — Wilfred H., Petitioner v. Josh Ward, Interim Superintendent, Mount Olive Correctional Complex

No. 23-7585

IN THE

Supreme Court of the United States

_____________

WILFRED H.,

v.

STATE OF WEST VIRGINIA,

_____________

Petitioner,

Respondent.

On Petition for Writ of Certiorari

to the West Virginia Supreme Court of Appeals

_____________

PETITIONER’S REPLY BRIEF

_____________

TOBIAS S. LOSS-EATON

CLAIRE HOMSHER

CHARLES W. JETTY

SIDLEY AUSTIN LLP

1501 K Street NW

Washington, D.C. 20005

292-736-8427

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

August 28, 2024

* Counsel of Record

i

TABLE OF CONTENTS

Page

Table of Authorities ..................................................... ii

REPLY BRIEF ............................................................. 1

I.

There is a clear and entrenched circuit split. ...... 1

II. The decision below is wrong.................................. 5

III. The split warrants review in this case. ................ 6

CONCLUSION............................................................. 9

ii

TABLE OF AUTHORITIES

CASES

Page

Coles v. Smith, 577 F. App’x 502 (6th Cir.

2014) ..........................................................

2

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

258 (Mass. 1994) .......................................

5

Dodd v. Clarke, No. 3:21-cv-259, 2022 WL

3587817 (E.D. Va. Aug. 22, 2022), appeal

dismissed, No. 22-7017, 2023 WL 8728475

(4th Cir. Dec. 19, 2023), cert. denied, No.

23-1036, 2024 WL 2262341 (U.S. May 20,

2024) ..........................................................

8

Dunn v. Maze, 485 S.W.3d. 735 (Ky.

2016) .......................................................... 4, 5

Foster v. Chatman, 578 U.S. 488 (2016)......

7

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

2011) .......................................................... 4, 5

Lawrence v. Florida, 549 U.S. 327 (2007) ...

7

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

5

Patterson v. New York, 432 U.S. 197

(1977) .........................................................

6

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

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

6

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

6

Tapper v. State, 47 So. 3d 95 (Miss. 2010) ..

5

United States v. Cervenak, 99 F.4th 852 (6th

Cir. 2024), reh’g en banc granted, vacated,

No. 23-3466, 2024 WL 3736787 (6th Cir.

Aug. 9, 2024)..............................................

2

United States v. Davis, No. 3:20-cr-575,

2021 WL 63345 (N.D. Tex. Jan. 7, 2021) .

3

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

(D.D.C. 2017) ............................................. 2, 5

United States v. Lanier, No. 23-5217, 2024

WL 915158 (6th Cir. Mar. 4, 2024) ..........

2

United States v. Panzavecchia, 421 F.2d 440

(5th Cir. 1970) ........................................... 3, 4

United States v. Rankin, 929 F.3d 399 (6th

Cir. 2019) ...................................................

2

United States v. Walsh, 194 F.3d 37 (2d Cir.

3

1999) ..........................................................

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

2005) ......................................................... 2, 3, 6

iii

TABLE OF AUTHORITIES – Continued

Page

STATUTES

28 U.S.C. § 2254(d)(1) ..................................

8

REPLY BRIEF

West Virginia insists that no “true” or “genuine” or

“hardened” split exists. E.g., Opp. 2, 20, 23. But these

weak qualifiers only confirm that the lower courts

have long and openly disagreed on the question presented. The Sixth Circuit has never “run away from”

Valentine, contra id. at 23, and cases from other jurisdictions “condemn[ing]” the Sixth Circuit’s approach,

id., are still further proof that a split exists. As to the

Fifth Circuit, the opposition similarly shows only that

other jurisdictions have disagreed with Panzavecchia,

which is the whole point. West Virginia also fails to

distinguish either these cases or the similar state supreme court decisions. And while West Virginia says

it “takes a common approach,” id. at 2, it cites no federal appellate or state high court decision upholding

an indictment with dozens or hundreds of identical

carbon-copy counts.

On the merits, the state largely ignores the serious

problems that its approach creates, pretending that

the issue is the nature of the offenses instead of their

identical wording. On whether the issue warrants review, the state ignores the many decisions of its own

high court, which show that the question presented is

recurring and important. And on vehicle issues, the

state second-guesses its own arguments below before

ultimately suggesting that petitioner come back after

he has sought relief under AEDPA—a Catch-22 that

would conveniently insulate West Virginia’s outlier

practices from constitutional scrutiny. The Court

should grant review now.

I. There is a clear and entrenched circuit split.

A. West Virginia contends that Valentine is defunct,

distinguishable, and “condemned” by other courts. See

Opp. 19–25. But the state’s abrogation argument is

strange. It relies heavily on (i) mostly unpublished

Sixth Circuit decisions that factually distinguish Valentine, see id. at 23, and (ii) decisions from lower courts

in other jurisdictions that criticize Valentine’s reasoning, see id. at 23–24. Needless to say, none of that

shows abrogation.

In truth, the Sixth Circuit continues to cite Valentine

as supplying the controlling standard for “defendants’

2

right to fair notice” under due process. E.g., United

States v. Lanier, No. 23-5217, 2024 WL 915158, at *3

(6th Cir. Mar. 4, 2024); see also United States v. Cervenak, 99 F.4th 852, 868 (6th Cir. 2024) (Thapar, J.,

concurring), reh’g en banc granted, vacated, No. 233466, 2024 WL 3736787 (6th Cir. Aug. 9, 2024); United

States v. Rankin, 929 F.3d 399, 405 (6th Cir. 2019).

The Sixth Circuit has merely noted that a separate

holding in Valentine—that court of appeals decisions

can clearly establish federal law—no longer controls

under AEDPA.1 See Coles v. Smith, 577 F. App’x 502,

507 (6th Cir. 2014); Opp. 24–25. Valentine still controls on the underlying constitutional question. That

is no doubt why a sitting member of this Court has

adopted and applied its reasoning. See United States

v. Hillie, 227 F. Supp. 3d 57, 76–80 (D.D.C. 2017)

(Jackson, J.). 2 And it is surely why multiple state high

courts have expressly followed Valentine too. See Pet.

9–10.

Nor is Valentine distinguishable. Contra Opp. 22.

As the Sixth Circuit explained, Valentine’s indictment

violated the Due Process Clause because it made “absolutely no distinctions” between the identically

worded counts. Valentine v. Konteh, 395 F.3d 626, 632

(6th Cir. 2005). “Courts cannot uphold multiple convictions when they are unable to discern the evidence

that supports each individual conviction.” Id. at 636–

37. And “because the criminal counts were not connected to distinguishable incidents,” the jury could not

have found Valentine guilty of some counts but not

others, creating double jeopardy problems. Id. at 633.

So too here. As in Valentine, “The indictment, the

bill of particulars, and even the evidence at trial failed

1 Trying to stretch Cole to apply here, West Virginia alters the

court’s description of Valentine to refer to “habeas relief[] for a

state prisoner.” Opp. 24–25. The court actually referred to “habeas relief under AEDPA.” Coles, 577 F. App’x at 508 (emphasis

added). This is the only aspect of Valentine that the Sixth Circuit

has “retreated from.” See Opp. 2.

2 West Virginia claims that because the indictment here did not

quote statutory language that “proscribes a wide array of conduct

in the broadest, most generic terms,” this case is unlike Hillie.

Opp. 26 (quoting 227 F. Supp. 3d at 75). But that portion of Hillie

addressed a Sixth Amendment violation, not the issues here.

3

to apprise” petitioner of “what occurrences formed the

bases of the criminal charges he faced.” Id. His indictment contained three identically worded counts. The

bill of particulars the parties to which the parties stipulated made no distinctions among those counts. And

M.A.H.’s testimony offered no clarification, merely restating the allegations and providing that the alleged

conduct occurred “[f]our or five times” without meaningful factual support. Opp. 5.

West Virginia also emphasizes that other courts—

mostly state intermediate appellate courts—have declined to follow Valentine. See Opp. 10, 23–24. Since

none of those courts is the Sixth Circuit, their criticisms do not avoid the split; they illustrate it. And

while West Virginia tries to paint the Sixth Circuit as

a lone outlier, it admits that Valentine “[r]el[ied] on

cases from other circuit courts.” Id. at 20.

B. West Virginia fares no better with the Fifth Circuit. That court has never abrogated United States v.

Panzavecchia, 421 F.2d 440 (5th Cir. 1970), and courts

in the circuit continue to cite it, e.g., United States v.

Davis, No. 3:20-cr-575, 2021 WL 63345, at *1 n.5 (N.D.

Tex. Jan. 7, 2021). West Virginia’s contrary argument

relies largely on state-court decisions from outside the

Fifth Circuit that decline to follow Panzavecchia. See

Opp. 10. At most, those decisions simply underscore

the split as well.

West Virginia also cites more recent federal court decisions (again from other jurisdictions) to argue that

Panzavecchia is defunct. But those decisions actually

show the opposite. Opp. 11. For example, the Second

Circuit relied on Panzavecchia to explain that “a bill of

particulars or discovery cannot save a ‘defective indictment’”—a category that includes an indictment with

multiple “identically worded” counts. United States v.

Walsh, 194 F.3d 37, 45 (2d Cir. 1999) (quoting 421 F.2d

at 441–42). In any event, as the petition explained and

the state nowhere disputes, “discovery and trial” provided no information connecting any of the three identical counts here to any specific factual allegations.

Contra Opp. 11.

Nor is Panzavecchia meaningfully different from

this case. West Virginia claims that because petitioner

was convicted of all three identically worded counts,

4

whereas the Panzavecchia defendant was acquitted of

one such count but found guilty of the others, “Petitioner needn’t concern himself with which counts offer

protection from future prosecution and which ones

don’t.” Opp. 11. That misses the point. Petitioner was

indicted and convicted on three counts of first-degree

sexual assault that occurred between November 16,

2007 and July 15, 2010. Pet. App. 2a n.3. But M.A.H

testified in broad strokes that this occurred “[f]our or

five” times. Opp. 5. Thus, if Petitioner is indicted on

the same charges during the same time frame in the

future, he will have no means of knowing whether this

subsequent indictment concerns instances for which

was already convicted. Petitioner’s indictment and

trial thus “imperiled” any future pleas of former conviction. Panzavecchia, 421 F.2d at 442.

C. West Virginia also fails to distinguish the highcourt opinions from Kentucky, Massachusetts, Mississippi, and Delaware. See Pet. 9–12; Opp. 12–20. Each

jurisdiction recognizes “[t]he core problem when identical, generic counts are used”: no one can be sure

“what factual incidents were presented and decided by

[the] jury.” See Dunn v. Maze, 485 S.W.3d. 735, 748

(Ky. 2016) (quoting Valentine, 395 F.3d at 635). See

also Goforth v. State, 70 So. 3d 174, 189 (Miss. 2011)

(“[A]s in Valentine, the multiple, identically worded

counts in the indictment [violated] Goforth’s constitutional right against double jeopardy in the event of future prosecution.”).

West Virginia argues that Kentucky and Mississippi

would have convicted petitioner on the identically

worded counts because there was no double jeopardy

issue, since “the threat of a second trial [is] not yet

ripe.” Opp. 13. West Virginia again misunderstands

the cases. Dunn made clear that carbon-copy indictments pose “present” due-process problems sufficient

to defeat a defective indictment. 485 S.W.3d. at 748.

And although Tapper v. State, 47 So. 3d 95 (Miss.

2010), indeed held that a trial court had not erred in

refusing to quash a defendant’s carbon-copy indictment, Opp. 15–16, the Mississippi Supreme Court

clarified a year later that it had not considered the

double-jeopardy issue in Tapper because it was not

raised on appeal, Goforth, 70 So. 3d at 188–89. When

the court did consider a similar question, it found that

5

where “[n]either the indictment nor the charging instruction differentiate” among multiple, identically

worded counts, the indictment fails “to protect [a defendant’s] constitutional right against double jeopardy

in the event of future prosecution.” Id. at 189.

As West Virginia acknowledges, prosecutors in Massachusetts and Delaware may be able to avoid constitutional problems “if the defendant has the opportunity to obtain, through a bill of particulars, sufficient

information to enable him to understand the charges

against him and to prepare his defense.” Opp. 17–18;

Commonwealth v. Hrycenko, 630 N.E.2d 258, 261

(Mass. 1994); accord Luttrell v. State, 97 A.3d 70, 77–

78 (Del. 2014). But that does not avoid the conflict

here, since the bill of particulars below essentially regurgitated the indictment. Pet. App. 87a.

II. The decision below is wrong.

West Virginia says an indictment is constitutional if

it provides “(a) [the] elements of the offense, (b) adequate notice, and (c) protection against double jeopardy.” Opp. 25–26. But the decision below violates the

second and third requirements. It is not enough that

petitioner received notice of “the nature of the offenses

charged against him.” Id. at 28. Rather, “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 Hillie, 227 F. Supp. 3d at 80 (emphasis

added) (cleaned up). That was not possible here, and

the state does not claim otherwise. Nor does it dispute

that adequate notice requires that counts be distinguishable from one another. It simply declares that

“an approximate date range” is enough. See Opp. 26–

27. That is wrong. See Pet. 8–12. And the upshot is

that, in West Virginia’s view, the state can charge and

convict a defendant of dozens, hundreds, or even thousands of identically worded charges without ever linking those charges to specific factual allegations. E.g.,

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

*1–2 (W. Va. Sept. 15, 2023) (upholding 516-count carbon-copy indictment). Moreover, West Virginia’s tolerance for such indictments effectively shifts the burden to defendants to prove a broad negative—which

courts also cannot constitutionally do. E.g., Patterson

6

v. New York, 432 U.S. 197, 215 (1977) (a state “must

prove every ingredient of an offense beyond a reasonable doubt” and “may not shift the burden of proof to the

defendant by presuming that ingredient upon proof of

the other elements.”).

West Virginia also intimates that carbon-copy indictments raise double-jeopardy concerns only when a

case is to be reindicted or retried. Opp. 13. But courts

rightly take these constitutional concerns into account

during the initial proceedings. See, e.g., Valentine, 395

F.3d at 635 (clarifying that constitutional concerns

arise because of the hypothetical challenges re-indictment would pose). Indeed, West Virginia’s arguments

only demonstrate that it is entrenched in this unconstitutional practice.

Lastly, West Virginia asserts that petitioner’s “approach seems entirely arbitrary,” because the petition

“endorses an indictment that breaks out counts by sixmonth intervals while not alleging ‘what specific sex

acts [the defendant] was alleged to have committed.”

Opp. 31 (quoting State v. Lente, 453 P.3d 416, 427

(N.M. 2019)) (brackets in original). The state should

read Lente again. See 453 P.3d at 427 (“Lente’s indictment alleges that he engaged in specific sex acts with

M.C. during specific, consecutive, six-month intervals. . . . We do know, based on the indictment, what

specific sex acts Lente was alleged to have committed.”) (emphasis added). Indeed, cases like Lente show

how prosecutors can appropriately charge patterns of

sexual abuse without simply ignoring defendants’ constitutional rights—as West Virginia does.

III. The split warrants review in this case.

According to West Virginia, the petition “tacitly concedes that the matter is not repeatedly arising in the

courts below.” Opp. 32. But the state ignores the petition’s showing that this issue arises regularly in West

Virginia alone. Pet. 7. Indeed, West Virginia’s own

arguments effectively concede that this issue can arise

in every case that involves a pattern of child sexual

abuse, see Opp. 30–31, and there are unfortunately

many such cases around the country at any given time.

Likewise, it is odd for the state to declare that “[n]o

scholars are flagging this issue as a problematic one,”

7

id. at 32, while citing scholarly commentary calling the

question presented “controversial,” id. at 19.

West Virginia’s vehicle arguments are meritless. It

first claims petitioner “effectively invited the error of

which he now complains.” Opp. 33–34. But the state

high court reviewed this issue de novo—at the state’s

urging. West Virginia told the court below that all

“questions of law” in the case were “subject to a de novo

review,” and did not contend that petitioner invited (or

failed to preserve) this error. See Respondent’s Brief

6, 13, No. 22-0506 (W. Va. filed Nov. 21, 2022). It is

too late for the state to claim otherwise now.

West Virginia next asserts that the petition “seems

to reconfigure [petitioner’s] claim into one challenging

the sufficiency of the evidence.” Opp. 34. Nonsense.

The issue here is legal. The petition discusses the trial

evidence only to underscore that it did not help the

jury tie any count to any particular factual allegations.

See Pet. 4, 14.

Finally, West Virginia suggests petitioner should

seek federal habeas relief because “the Court ‘rarely’

grants direct review of state postconviction proceedings.” Opp. 35 (quoting language that originated in a

pre-AEDPA concurrence). Since AEDPA, however, the

“trend” has been the opposite: “Recently, this Court

has evidenced a predilection for granting review of

state-court decisions denying postconviction relief[.]” Foster v. Chatman, 578 U.S. 488, 524 (2016)

(Alito, J., concurring in the judgment); see Lawrence v.

Florida, 549 U.S. 327, 343 n.7 (2007) (Ginsburg, J., dissenting) (citing examples).

And with good reason. In the current posture, review is de novo, so this Court can reach the merits of

the constitutional question directly. Under AEDPA,

however, the question presented would be different:

The federal courts would be constrained to ask

whether the decision below “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by [this] Court.” 28

U.S.C. § 2254(d)(1). And this Court has never addressed the precise question presented. West Virginia’s position thus amounts to a Catch-22: Petitioning after state post-conviction proceedings is too early,

8

and petitioning after federal habeas proceedings is too

late. The Court has rightly rejected that view.

This difference in posture likewise distinguishes

failed petitions that West Virginia wrongly identifies

as “presenting [the] same question.” See Opp. 3. In

Dodd, for example, this Court denied review of a Valentine-based ineffective-assistance claim governed by

AEDPA. See Dodd v. Clarke, No. 3:21-cr-259, 2022

WL 3587817, at *7 (E.D. Va. Aug. 22, 2022), appeal

dismissed, No. 22-7017, 2023 WL 8728475 (4th Cir.

Dec. 19, 2023), cert. denied, No. 23-1036, 2024 WL

2262341 (U.S. May 20, 2024). The failure of that double-bank-shot argument reveals nothing about the

merits of this petition.

9

CONCLUSION

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

292-736-8427

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

August 28, 2024

*Counsel of Record