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Gilbert v. Tibbals

United States District Court, Sixth Circuit

June 5, 2013

TERRY TIBBALS, Warden, Respondent.


[Resolving Docs. 1, 15, 16]

JAMES S. GWIN, District Judge.

Laurice Gilbert petitions for a writ of habeas corpus under 28 U.S.C. § 2254.[1] An Ohio common pleas court found him guilty of two counts of aggravated murder and one count of aggravated robbery.[2] He seeks relief from these convictions.

On March 27, 2012, Magistrate Judge Armstrong filed a Report and Recommendation that recommended this Court deny Gilbert's petition.[3] Gilbert objects to the Report and Recommendation on a number of grounds.[4] For the reasons that follow, the Court CONDITIONALLY GRANTS IN PART AND DENIES IN PART Gilbert's petition. Because the jury may not have determined Gilbert's guilt on every element of felony murder beyond a reasonable doubt, the Court vacates Gilbert's guilty verdict on Count Two only. The Court does not disturb Gilbert's remaining convictions for aggravated murder and aggravated robbery.

I. Background

A Cuyahoga County, Ohio, jury found Gilbert guilty of two counts of aggravated murder and two counts of aggravated robbery, each with firearm specifications. The Ohio appellate court summarized the case:

[O]n October 11, 2006..., Dontay Minor, the victim, was shot to death while visiting an apartment in Cleveland. The apartment was the home of Davita Moton, who lived there with her five-year-old son and her boyfriend, Alan Davis.
{¶ 4} That morning, the victim arrived at the apartment and was playing video games with Davis. Moton was also home, but her son was at school. Gilbert arrived a little while later. All of the individuals present were friends.
{¶ 5} That afternoon, Moton left the apartment to get her son from school. Gilbert also left to pick up another friend, Jamie Byrd. Gilbert eventually returned to Moton's apartment with Byrd. On the way, Gilbert told Byrd that he had to go and pick up his money.
{¶ 6} When Gilbert and Byrd arrived at the apartment, Davis and the victim were present. Byrd began playing a video game, and Gilbert was having a conversation with the victim.
{¶ 7} Davis testified that he heard Gilbert say to the victim "cause I need that" and "you can't leave me f* * * *d up like that, " and that Gilbert kept saying "just give me my s* * *." Davis heard the victim say that he didn't have anything and observed the victim take off his shoes and empty his pockets to display that nothing was in them. Davis then heard the victim say, "I see you got your little gun. I don't know if you gonna shoot me or pistol-whip me or whatever you gonna do." When Davis turned to look, he saw that Gilbert was brandishing a gun in the victim's direction. Davis ran to the porch and heard gunshots.
{¶ 8} Byrd testified that he was playing a video game, that Gilbert and the victim were having a conversation, that he heard gunshots, that he ran to the porch with Davis, and that he heard more shots. After hearing the door open and close, Byrd ran out of the apartment.
{¶ 9} Davis testified that he saw the victim dragging himself out of the back room and that he, Davis, called 911. Davis testified that he sat with the victim as other people started coming into the apartment. One of the persons who arrived was Carlos Jackson. Davis testified that Carlos Jackson was not previously in the apartment and that he was just looking.
{¶ 10} The victim suffered multiple gunshot wounds and died on the scene. He was found to have approximately $2, 000 in cash in the seat of his boxer shorts.
{¶ 11} Approximately two hours after the shooting, Gilbert purchased a one-way ticket to Los Angeles. He was apprehended in Los Angeles approximately six months later.
{¶ 12} As part of their investigation, the police performed gunshot residue tests on Davis, Moton, and Jackson. Each tested positive for gunshot residue on the right hand, but not the left. Testimony was presented that this indicated these individuals had either fired a weapon, were close to the discharge of a weapon, or handled a recently fired weapon or touched a surface with primer residue on it. Testimony was also presented that Davis and Jackson were not considered suspects, but that Gilbert and Byrd were considered possible suspects in the case.[5]

On direct appeal, the Ohio Court of Appeals reversed Gilbert's conviction on one count of aggravated robbery, Count Four, after finding the trial judge failed to properly instruct the jury on the mens rea required for that count.[6] The Ohio appellate court affirmed Gilbert's convictions for aggravated murder with prior calculation and design as charged in Count One; affirmed his conviction for aggravated murder involving aggravated robbery (felony murder) as charged in Count Two; and affirmed his conviction for aggravated robbery as charged in Count Three.[7] The Ohio Supreme Court affirmed.[8]

Gilbert then filed this petition seeking a writ of habeas corpus. He raises eleven claims for relief. First, Gilbert says that he "was denied due process because he was charged, tried and convicted on the basis that the brandishing of the firearm was a strict liability element when it required a mens rea of recklessness.'"[9] Second, Gilbert says that the state courts violated his due process rights because it treated "brandishing a firearm" as a strict liability element when "brandishing a firearm" required a mens rea of recklessness.[10] Third, Gilbert says his due process rights were violated when an investigating officer testified that he did not consider Davis and Jackson to be suspects, but considered Gilbert to be a suspect.[11] Fourth, Gilbert says that the "disjunctive nature of the indictment" denied him due process.[12] Fifth, Gilbert says that "the trial court's failure to specifically instruct the petit jury about a particularized unanimity as to the offense conduct did not ensure the jury agreed on the offense conduct."[13] Sixth, Gilbert says that his felony murder conviction for aggravated murder committed during an aggravated robbery must be reversed because Count Four's aggravated robbery conviction may have served as the predicate offense.[14] Seventh, Gilbert says that there is insufficient evidence to sustain his remaining aggravated robbery conviction and, by extension, the felony murder charge.[15] Eighth, Gilbert says that there was insufficient evidence to sustain his conviction for aggravated murder with prior calculation and design.[16] Ninth, Gilbert says that prosecutors violated his Fifth Amendment right to remain silent when it gave testimony that Gilbert did not say anything after being arrested.[17] Tenth, Gilbert says the prosecutor's emotional appeal in closing argument denied due process.[18] Finally, Gilbert says that he received the ineffective assistance of counsel "when counsel failed to object to the admission of his post-arrest silence, failed to object to deficiencies in the indictment, " failed to seek unanimity in the jury instructions, and failed to object to the prosecutor's closing argument.[19]

Gilbert's petition was referred to a Magistrate Judge pursuant to Local Rule 72.2(b). On May 27, 2012, Magistrate Judge Armstrong issued a Report and Recommendation, which recommended that Gilbert's petition be denied.[20] Gilbert now objects to the Magistrate Judge's determinations on all but his fourth (disjunctive nature of the indictment), fifth (failure to instruct as to specific unanimity in elements), and ninth (post-arrest silence) grounds.[21] Gilbert agrees that this Court may only consider these claims if it finds that Gilbert received ineffective assistance of counsel.[22]

II. Legal Standard

A. Federal Magistrates Act

Under the Federal Magistrates Act, a district court only needs to conduct a de novo review of those portions of a Report and Recommendation to which the parties have made an objection.[23]

B. The Antiterrorism and Effective Death Penalty Act

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")[24] governs a federal court's review of a state prisoner's habeas corpus petition. AEDPA limits federal review to only those claims in which a petitioner contends that he is in custody in violation of the Constitution, laws, or treaties of the United States.[25] And a federal court cannot grant a habeas petition for any claim that the state court adjudicated on the merits unless the adjudication:

(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 upon an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.[26]

To justify any grant of habeas relief, "a federal court must find a violation of law clearly established' by holdings of the Supreme Court, as opposed to its dicta, as of the time of the relevant state court decision."[27] Furthermore,

under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.[28]

The Sixth Circuit holds that, even if a federal court could determine that a state court incorrectly applied federal law, the court still should not grant relief unless it also finds that the state court ruling was unreasonable.[29]

"A petitioner must fairly present to the state courts either the substance of or the substantial equivalent of the federal claim that he is presenting to a federal habeas court."[30] "To fairly present a claim to a state court a petitioner must assert both the legal and factual basis for his or her claim.[31] To determine whether a federal legal claim has been fairly presented to the state court, a federal habeas court considers whether:

1) the petitioner phrased the federal claim in terms of the pertinent constitutional law or in terms sufficiently particular to allege a denial of the specific constitutional right in question; 2) the petitioner relied upon federal cases employing the constitutional analysis in question; 3) the petitioner relied upon state cases employing the federal constitutional analysis in question; or 4) the petitioner alleged "facts well within the mainstream of [the pertinent] constitutional law."[32]

Where a petitioner fails to fairly present a federal claim in state court, the petitioner forfeits that claim in later proceedings unless the petition can show both cause for, and prejudice resulting from, the default.[33]

Where the state court did not adjudicate a federal constitutional claim on the merits even though it was fairly presented, AEDPA deference does not apply.[34] In such cases, a federal court applies the pre-AEDPA standard of review and reviews questions of law de novo and questions of fact for clear error.[35] Nonetheless, "when a state court issues an order that summarily rejects without discussion all the claims raised by a defendant, including a federal claim... the federal habeas court must presume (subject to rebuttal) that the federal claim was adjudicated on the merits."[36] The same rule applies "when the state court addresses some of the claims raised by a defendant but not a claim that is later raised in a federal habeas proceeding."[37]

III. Analysis

A. Grounds One and Two: Mens Rea of Recklessness

With his first and second claims for relief, Gilbert says that he "was denied due process because he was charged, tried and convicted on the basis that the brandishing of the firearm was a strict liability element when it required a mens rea of recklessness.'"[38] He says that Ohio Criminal Rule 12(C)(2) allows him to bring this claim at any time.[39] The Warden responds that Gilbert procedurally defaulted this claim by failing to raise it before the state courts; that the state appellate court's review of this claim for plain error does not cure any ...

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