district court's decision denying just of coals petition for perth for corpus relief at the outset i want to acknowledge that valentine is not binding on this court nor is it binding on any court as far as i can tell what it did was provide a framework that some courts in ohio at least and many prosecutors offices adopted and frankly to the good but with that said whether this decision whether that decision was grounded on clearly established federal constitutional precedent or not mr coles is intitled to better noticed than what he received here in court most of the arkansas versus coles calls for his arkansas to just the general notice principles i don't i don't think and i don't believe that the attorney general has suggested that notice is not something that that the people need to address judge gilman's dissent in valentine i think by doing so during the course of this our argument or at least i hope by doing so during the course of this argument to demonstrate why in this case mr coles is entitled to relief  h that said judge gellman you noted in valentine dissent the child abuse cases are are difficult to prosecute and i just want to address that at the outset because i think that that's a concern that repeatedly and five the indictments have have not dropped and they've they've leveled out to this point at about three hundred there were two hundred sixty two the year that the valentine decision was decided and their head they're currently stable at about two hundred ninety  and i realize that's not in my record to the extent that the court would like additional briefing or supplemental briefing to address those concerns i'd be happy to do that but so well i do acknowledge that these child abuse cases are there reporting problems with them because it was a child who their memory concerns for children there's all kinds of structural family problems that may be may occur in situations of valving children which make it difficult to get the report going but without said once the issues reported prosecuting them i don't believe in it the data bears out that they're difficult to prosecute once they're indicted and i think the data at least in my county supports that and certainly it supports the idea that valentine did not hurt the prosecution of these cases in my county at least with that said obviously i think the next concern here that judge gellman raised was that this is majority in valentine more than one occasion it's looking to do well with constitutional law as announced by the supreme court are we free to disregard that supreme court precedent might care on whether the majority was doing what is required as it was sort of reaching that conclusion based not on any directly controlling supreme court precedent but extrapolation from other cases some of which were not perhaps directly applicable in the contest but were never the less we do look to supreme court precedent but when we've got a circuit precedent that says this is what the supreme court precedent is how do we so glibly ignore that we're banned by our own circuit precedent  i'm not sure what you do and i frankly i i mean i think that and i i put this in my brief i'm not sure that you are free to ignore it but you know that is the rule the limit board because i mean judge gilman looked really doubt that gets the well then that i guess i guess first i think we have to this court has to accept my argument that that notice principles apply to indictments just generally look at what the actual testimony at trial was i mean it's pretty clear what he was the charged with what the allegations were the victim was fairly specific in her testimony i mean how do we deal rial and under the law that was applicable in ohio at the time of this case are we had very very limited discovery at the time and he was denied but but yet he sought a more specific bill didn't get it and had a list of witnesses going into this trial he was not intitled under the discovery rules at the time and they have since changed as of two thousand and ten ohio has adopted broader broader more reasonable equitable discovery but at the time he was not entitled to police reports he was not entitled to witness statements all he got was a list of witnesses and the defendant's statements and he already knows what those are so so at the time this case went to trial then witness statements you're only entitle to those after the witness testifies and the judge first has to look at those statements to determine whether or not they're there impeaching and then once the judge determines that the you look at the statements before you cross examine the witness so really judge givens they went into this blind and they went into this with two hundred forty five counts many rapes many  kidnappings alleged over a six year period and something else i want to point out customarily we come to look at allegations of kidnapping gross sexual imposition and rape as part and parcel of one in one incident  rapes and the jury is never given to understand one way or the other whether they're linked up to one incident or or anything they're just thrown at the jury this co use his defense was not that oh i didn't do that one or i mean are the one again we're going back to notice and notice is about what what you're facing so you can prepare a defense so so i understand that there was no actual alibi explained and judge gellman addressing what you had you had explained in in the valentine case that he should have just put on whatever alibi he thought he had and that might have been possible in valentine although i dispute that a little bit but the tears the timeframe was much more narrow we're talking he wasn't there they didn't get married actually until two thousand and three and a lot of the allegations stem from one thousand nine hundred eight up through two thousand and four so so there is there was and he was thrown out of the house for a while and i mean there was some definite back and forth there was another family involved so yeah there there is a dispute with that but no correct there was no alibi defense put on but but i pose it that that the reason why there was no alibi put on his there you couldn't have presented an alibi here to for the defense counsel and and i i think this applies the same to valentine for the defense counsel to to be in a situation where he's putting on an alibi in a situation like this he's committing malpractise he's literally step you've set up a straw man because  the prosecution can come in and say well you can't account for your whereabouts every single minute of every single day you had to have been alone with that child at one point or another so so so the alibi does i think that doesn't work the the idea that you could simply put it on i think he was forced into this defense because of the scatter gun nature of the charges but but more and more than that i'm consumed a whole bunch of my time but just more than that there's  knowing not just his whereabouts but her whereabouts how was she doing in school were there certain periods of time when she was having psychological trouble thereby maybe contradicting or confirming the abus is it is completely hampered without more specifics they can ascertain when the when the allegations happen in order to line them up with other evidence that could have been amassed the multiplicati nature of these charges uniquely in this case because really there is unprecedented in all the cases that we've cited either sides have cited or have been looked at in valentine this really really is an unprecedented situation and i think based on that there was no notice and therefore his rights under the constitution were clearly established rights were violated in this case  alibi doesn't answer the question of whether a rule of law that you're asking us to affirm provide someone who may have an alibi to finance the right to use it appropriately i completely agree your honor and there was a possibility of an alibi defense in this case the notice that was provided to the defendant in this case did not stem solely from the indictment it stemmed from discovery it stemmed from the trial testimony during the trial the victim testified not only to the entire three and a half period of a year period of abuse i don't dispute that i think clearly you've got that corner of valentine that there was testimony at trial but we're talking a brand preparation we're talking about the ability to put together a good chance so that when you get to trial you're prepared to respond and put on affirmatively the things that you believe the impact the indictment you know the count again vanish how do you address the issue of the right to know so that you are able to be prepared to offer a different well that the notice requirements are not specific to  pretrial notice this court even in valentine said notice kempe you provided pretrial and during the trial and the supreme court in all its cases has not specified that notice has to come before trial now in this case the petitioner has stated a lot of things in her argument that are off the off the record and the record indicates that they did have discovery the docket sheets in this case show discovery there's nothing in this cases record that says that discovery was an adequate there's nothing in this cases record that says that that the petition dismiss the indictment he didn't if the indictment was truly inadequate and failed to provide him notice he should have moved to dismiss or question the indictment that never happened in this case bill particularly moved to supplement the bill of particulars and in indicates a discovery was limited in that way and once the state provided discovery and i think we have to i think it's very important that we have to rely on the record and i want counsel is telling us about the various practices in the cuyahoga county court there's nothing in the record that says that discovery was limited in that way once the state provided discovery there was the docket sheet is silent about any other problems in terms of notice there's nothing there's no motion but all these cases deal with the six amendment right of an accused to be informed of the nature and cause of the accusation and the due process requirements of fair and reasonable notice and that is what we are left with the  to answer your first question judge gibbons about valentine and why we why this court should not rely on it the valentine court did refer to what if thought was clearly established law supreme court law russell and in doing so it relied on circuit court opinions which said that russell was the appropriate law to look at and with respect to his state defend it well the supreme court has since then said over and over again you may not rely on circuit court opinions so the valentine's court's incorporation of what it thought was clearly established federal law was based on something that the supreme court has since said you may not do in fact the supreme court has said over and over it's plain era for this circuit to rely on its own precedence in deciding clearly established law  since the law that we're dealing with is fair and reasonable notice which is a very general concept the state court has a wide range of reasonable applications available to it and i guess the question before us is a practice that appears to not be universal the filing of two hundred  forty five that are effectively identical i'm struggling with how it's notice to the same identical accounts that merely list the elements of the charge over and over i am i guess i would say to you that it it seems to me that because that is not the practice in the majority or vast majority of other locations it raises questions in my mind how did it how do you say that that gives notice well first of all the issue is not the two hundred forty two charges the issue in this case is did he receive adequate notice of the forty three counts of rape that's the issue he was acquitted or the state no lead the other counts so that is the issue in this case secondly if ohio had a course conduct law which allowed it to prosecute on the basis of a pattern of behavior it would include all this in one count however ohio doesn't have such a lock so the prosecution is essentially if you want starr she wants to prosecute to the fullest extent of the law and show you keep within principles of justice and proportionality he must prosecute for each count that was committed every count of rape why should a defendant who commits forty three counts of rape only be prosecuted for one why should a victim receive that kind of justice read but it still leaves the question in my mind how do you say to this guy no matter how reprehensible you want to or people agree the conduct dia's you want to say to him you're forty three and here they are but you need to get out are and give me your defense to the because that's what we are accusing you of doing i'm struggling with you put him on notice so that he comes forward and gets his day in court and then if he's i understand that you are troubled by this but the supreme court has not said in any of its cases that you may not issue indictments where with multiple counts that are factually indistinguishable as judge gilman had practice then we this court would have to say that it's not an unreasonable application of a contrary to supreme court precedent of vellum majority said the opposite are we for it yes because since first of all as i said earlier valentine relies on circuit court cases to incorporate the notion that notions and principles of the baseball glitter supreme court valentine determined that the clear i mean we don't think that in a lick will be the correct approach but we have a real problem with the idea that we are supposed to firms of your disregard of precedent i mean wouldn't it be better to look at what the evidence really was in this case and to focus on what actually happened here it would be to toss out valentine which is a procedure that we have to deal with i am not asking you to overrule valen time i am asking you not you could have i am asking you not to rely on it as clearly established supreme court law and that for of the purposes and of our work is ignoring that well i think that if you did rely on it just as the supreme court has done in several other cases recently it would say this is playing era and you may not do that and the argument that you could win even under yes i think that our case is distinguishable from valentine for various reasons as the other a number of other cases have distinguished themselves yes and in this case for example one of the problems that the ballantine court had was with the nature of the evidence that it was speculative that it relied on guesstimates i believe just some of the language for how often this poor child was abused and in our case the prosecution was very careful not to elicit that type of evidence he did ask her how many times where you've used but the responses were not couched as estimates additionally valentine had a problem with the fact that the evidence showed typical abuse and other words she told about  a certain incident and then it was supposed to be representative in our case there wasn't evidence of anything typical and you know i hate to even use the word typical because clearly the victim didn't feel that it was i mean she testified to numerous vege and all rapes that occurred during this time period in addition in this case there was corroborating evidence other than the victim's testimony the mother of the victim testified that the defendant had it emitted to her that they that the victim and the defendant were lovers this occurred after she confronted him when the victim finally reported the abuse places or named where the abuse occurred the in cleveland and in parma and and other than that there really the record isn't especially clear on what requirements for the provision of discovery of time and the reason i cited that is is not that it matters what they were but you could reasonably infer that what was provided with what was the what was required was what was provided i don't i don't it's not the habit of prosecutors to provide a bunch of information that i don't i don't have any reason to believe  wasn't proper in this case one would want proper discovery a billion what would proper discovery have been well i mean they could have asked for more information so what did the rules require the prosecutor to turn over  rule i don't have the language well i don't know i mean the federal discovery rules have never been in criminal cases have never been what you might consider broad and ms collins suggested that the rules were substantially let me just start with have you finished the discovery rules will sixteen they were changed to much concern in ohio in two thousand and ten there is a lot of discussion about fair discovery even discoveries a lot of it is the role that during the relevant time period the defendant was entitle to a list of witnesses a bill of particulars any statements he had given and any reports  correct have out psychological evaluations of if a psychological evaluation were done you would be entitled to that in advance of trial numbers how did you move again why was there a second motion for bill of particulars with the position  what that's that's what you got going into trial at the time and seeing that this was a problem the state of ohio rectified it and now there's there is balance discovery on either side and i think that that when the case is likely that they cited in valentine and valentine majority when they when they said yes discuss notice can be provided during the course of the trial that that presupposes the discovery was more ample than what we had here and otherwise providing discovery during the course of the trial frankly it's absurd because by then the defendant has already laid out he's already cross examine witnesses where in the home a shared at least part of the time it seems that he would have known everything you needed to know in order to seek to establish the alibis you suggested you know his presence in the  when he was there when he was in her absence at various times you know information about boyfriends and he would have known he was going to have to do you probably with this evidence of abortion and you know other so other relationships might have been relevant i mean he would have known all that prior to trial it's and well timing i'm not necessarily sure and again i'm not sure i agree with you  judge that that over a six year period of time you can lay out your whereabouts i don't know but you would know i mean your when we ask you about that you said well he wasn't in the home all the time he was and so he'd know what periods he was in you know that might well have been a fruitful area for cross examination because it leaves our read the descriptions of her testimony as suggesting that they were that there were  absences there were it frequent but i mean all of that could have been pursued prior to trial presumably perhaps but then you're still laying yourself open for the prosecution's argument that your alibi is is i aside this this defendant is entitled to better notice and he got here whatever this court decides to do with valentine and and frankly i can't if i see him i think that mr coles is entitle to relief of some kind either a new trial