                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 14a0907n.06

                                       Nos. 13-3808/3809
                                                                                       FILED
                                                                                 Dec 08, 2014
                                                                             DEBORAH S. HUNT, Clerk
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

LAURICE GILBERT,                                        )
                                                        )
       Petitioner-Appellant/Cross-Appellee              )
                                                                ON APPEAL FROM THE
       (13-3808 & 13-3809),                             )
                                                                UNITED STATES DISTRICT
                                                        )
                                                                COURT FOR THE
v.                                                      )
                                                                NORTHERN DISTRICT OF
                                                        )
                                                                OHIO
TERRY TIBBALS, Warden,                                  )
                                                        )
      Respondent-Appellee/Cross-Appellant               )
                                                                OPINION
      (13-3808 & 13-3809).                              )
_______________________________________



BEFORE:        BATCHELDER, GILMAN, and GIBBONS, Circuit Judges

       ALICE M. BATCHELDER, Circuit Judge. In 2007, an Ohio jury convicted Laurice

Gilbert on two counts of aggravated murder (including one for felony murder premised on

aggravated robbery) and on two aggravated-robbery counts. On direct appeal, the Ohio Court of

Appeals reversed Gilbert’s conviction on one count of aggravated robbery, after finding that the

trial judge had failed to instruct the jury properly on the mens rea required for that count, but

affirmed his conviction on the remaining counts. Gilbert sought federal habeas relief pursuant to

28 U.S.C. § 2254 on the remaining counts. Although it denied his other grounds for relief, the

district court reversed Gilbert’s conviction on the felony-murder count because it was unclear

whether the jury premised its verdict on the aggravated-robbery count that remained or the one

that had been overturned. Gilbert now appeals the denial of his claim of ineffective assistance of



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Gilbert v. Tibbals

counsel, and the Warden cross-appeals the district court’s granting of habeas relief on the felony-

murder count. For the reasons that follow, we AFFIRM the district court’s denial of habeas

relief on Gilbert’s ineffective-assistance-of-counsel claim and REVERSE the district court’s

granting of the writ on the felony-murder count.

                                                I.

       The Ohio Court of Appeals accurately summarized the facts of this 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.
       ....
               {¶ 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.

State v. Gilbert, No. 90615, 2009 WL 270522, at *1–2 (Ohio Ct. App. Feb. 5, 2009).

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       Gilbert was indicted on four counts in 2006. Count One charged aggravated murder,

defined as causing the death of another purposely and with prior calculation and design. Count

Two charged aggravated murder, more commonly known as felony murder, defined as purposely

causing the death of another while committing or attempting to commit, or while fleeing

immediately after committing or attempting to commit, aggravated robbery.             Count Three

charged aggravated robbery, defined as having a firearm/gun on or about the person or under

control and either displaying, brandishing, indicating possession of, or using the weapon in

attempting or committing a theft offense or in fleeing immediately after the attempt or offense.

Count Four charged aggravated robbery, defined as inflicting or attempting to inflict serious

physical harm on an individual while attempting or committing a theft offense or in fleeing

immediately after the attempt or offense.

       The jury found Gilbert guilty on all counts, and the court sentenced him to concurrent

sentences of thirty years to life imprisonment on each of the aggravated-murder counts, and eight

years’ imprisonment on each of the aggravated-robbery counts. The court also imposed three-

year terms for firearm specifications that merged with and were consecutive to these base terms.

In total, Gilbert’s aggregate sentence was imprisonment for thirty-three years to life.

       On direct appeal, the Ohio Court of Appeals reversed Gilbert’s conviction on the Count

Four aggravated-robbery charge because the trial judge had failed to instruct the jury properly on

the mens rea required for conviction on that count. Gilbert, 2009 WL 270522, at *5. The court

affirmed Gilbert’s conviction on all other counts. Id. The Ohio Supreme Court summarily

affirmed. State v. Gilbert, 919 N.E.2d 737 (Ohio 2009).

       In 2011, Gilbert filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,

raising several grounds for relief.    In relevant part, he claimed that his trial counsel was

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Gilbert v. Tibbals

ineffective for failing to seek a specific jury instruction on unanimity as to the offense conduct.

Further, he contended that Count Two (felony murder) should be dismissed because Count Four,

one of the aggravated-robbery counts, was dismissed on appeal as structurally flawed, and there

is no assurance that the petit jury did not use Count Four as the predicate for the felony-murder

conviction. The district court granted Gilbert’s petition with regard to the felony-murder count,

but denied the petition on all remaining grounds. The district court granted a Certificate of

Appealability pursuant to 28 U.S.C. § 1915(a)(3) on two issues: (1) the ineffective-assistance-of-

counsel claim, and (2) the felony-murder claim. Gilbert appeals the former, and the Warden

appeals the latter.

                                                II.

        We review de novo a district court’s legal conclusions and mixed questions of law and

fact, and review its factual findings for clear error. Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir.

1999). Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a district court

may not grant a habeas petition with respect to any claim that was adjudicated on the merits in

the state courts unless the adjudication of the claim “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.” 28 U.S.C. § 2254(d)(1). Under the “contrary to” clause, a

federal habeas court may grant the writ only 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 reaches a decision

different from that of the Supreme Court on a set of materially indistinguishable facts. Williams

v. Taylor, 529 U.S. 362, 412–13 (2000). 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


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Gilbert v. Tibbals

petitioner’s case.   Id.   In analyzing whether a state court decision is contrary to or an

unreasonable application of clearly established Supreme Court precedent, a federal court may

look only to “the holdings, as opposed to dicta,” of the Supreme Court’s decisions. Howes v.

Fields, 132 S. Ct. 1181, 1187 (2012) (quoting Williams, 529 U.S. at 412).

       To obtain habeas relief, “a state prisoner must show that the state court’s ruling on the

claim being presented in federal court was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for fairminded

disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786–87 (2011). This standard, we were

recently reminded by the Supreme Court, is “difficult to meet.” White v. Woodall, 134 S. Ct.

1697, 1702 (2014) (quoting Metrish v. Lancaster, 133 S. Ct. 1781, 1786 (2013)) (internal

quotation marks omitted). Further, in the context of ineffective-assistance-of-counsel claims

under Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court has stated that if

AEDPA review is a difficult standard to meet, “that is because it was meant to be.” Harrington,

131 S. Ct. at 786. “Establishing that a state court’s application of Strickland was unreasonable

under § 2254(d) is all the more difficult” because “the standards created by Strickland and §

2254(d) are both highly deferential,” and, “when the two apply in tandem, review is doubly so.”

Id. at 788 (internal citations and quotation marks omitted). When § 2254(d) applies, “the

question is not whether counsel’s actions were reasonable”; instead, “[t]he question is whether

there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Id.

                                                A.

       Gilbert’s claim on appeal is that the district court erred by rejecting his claim for

ineffective assistance of counsel based on his trial counsel’s failure to request a jury instruction

on particularized unanimity. Because Counts One, Two, and Three “could be committed in a


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myriad of different ways,” Gilbert argues the trial court should have instructed the jurors that

unanimity was required on the particular means of commission. The Supreme Court outlined the

test for a claim of ineffective assistance of counsel in Strickland v. Washington:

                A convicted defendant’s claim that counsel’s assistance was so defective
       as to require reversal of a conviction or death sentence has two components.
       First, the defendant must show that counsel’s performance was deficient. This
       requires showing that counsel made errors so serious that counsel was not
       functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.
       Second, the defendant must show that counsel’s errors were so serious as to
       deprive the defendant of a fair trial, a trial whose result is reliable. Unless a
       defendant makes both showings, it cannot be said that the conviction or death
       sentence resulted from a breakdown in the adversary process that renders the
       result unreliable.

466 U.S. at 687. The Ohio Court of Appeals rejected all of Gilbert’s ineffective-assistance-of-

counsel claims because it did not find that “any of the claimed deficiencies were prejudicial to

Gilbert. Furthermore, even if we were to consider counsel’s performance as deficient in regard

to the claimed errors, we do not find that they rose to the level, individually or cumulatively, that

the result of Gilbert’s trial would have been different.” Gilbert, 2009 WL 270522, at *11. The

district court held that the state court’s application of Strickland was not unreasonable because

Gilbert had not shown any deficient performance.

       To show that the state court’s decision was an unreasonable application of Strickland,

Gilbert cites Richardson v. United States, 526 U.S. 813 (1999), and Schad v. Arizona, 501 U.S.

624 (1991), for the proposition that the state denies a defendant due process when the defendant

is convicted without a sufficient meeting of the minds regarding the offense conduct. He further

cites State v. Johnson, 545 N.E.2d 636 (Ohio 1989), to show that Ohio state law would require

an instruction on unanimity in these circumstances had trial counsel requested one.            Read

together, Gilbert believes these cases show that his counsel’s performance was deficient based on



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his contention that federal law allows an instruction on jury unanimity and that Ohio law requires

one.

       Gilbert’s argument, however, relies on misapprehensions of both federal and state law.

Although Richardson and Schad could form the basis for an objection based on the lack of a

unanimity instruction in certain circumstances, they are not categorical in their analyses. Instead,

both cases distinguish between “continuing series of violations” offenses and “alternative

means” offenses. A jury must “unanimously agree not only that the defendant committed some

‘continuing series of violations’ but also that the defendant committed each of the individual

‘violations’ necessary to make up that ‘continuing series.’” Richardson, 526 U.S. at 815. In

contrast, “[w]here, for example, an element of robbery is force or the threat of force, some jurors

might conclude that the defendant used a knife to create the threat; others might conclude he

used a gun.” Id. at 817. This “disagreement about means” is irrelevant “as long as all 12 jurors

unanimously concluded that the Government had proved the necessary related element, namely

that the defendant had threatened force.” Id.

       Similarly, the Court in Schad stated that it has “never suggested that in returning general

verdicts . . . the jurors should be required to agree upon a single means of commission.”

501 U.S. at 631. Rather, “different jurors may be persuaded by different pieces of evidence,

even when they agree upon the bottom line.” Id. at 631–32 (internal quotation marks omitted).

“Plainly there is no general requirement that the jury reach agreement on preliminary factual

issues which underlie the verdict.” Id. at 632.

       Ohio law tracks Richardson and Schad.              “In determining whether the state has

impermissibly interfered with a defendant’s . . . right to juror unanimity . . . , the critical inquiry

is whether the case involves ‘alternative means’ or ‘multiple acts.’” State v. Gardner, 889


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N.E.2d 995, 1005 (Ohio 2008). In an alternative-means case, unanimity is not required “as to the

means by which the crime was committed so long as substantial evidence supports each

alternative means.” Id. “In a multiple acts case, on the other hand, several acts are alleged and

any one of them could constitute the crime charged. In these cases, the jury must be unanimous

as to which act or incident constitutes the crime.” Id. at 1005–06.

       Although Gilbert is correct that Johnson requires a jury instruction on unanimity for a

count that can be divided into “distinct conceptual groupings,” the court there held that a count

strikingly similar to Gilbert’s counts involved alternative means and thus did not warrant an

instruction. Johnson, 545 N.E.2d at 644–45. Although the defendant in that case argued that he

could have been convicted by less than a unanimous jury since “some of the jurors could have

found that he murdered [the victim] while committing aggravated robbery, some that he

murdered her while attempting to commit aggravated robbery, some that he murdered her while

fleeing immediately after attempting aggravated robbery,” the court found the conviction to be

appropriate because “each juror still would have agreed that the appellant had murdered [the

victim] in conjunction with at least attempting to commit aggravated robbery, and this alone

would have been adequate to sustain the conviction.” Id. at 644–45.

       Gilbert’s argument boils down to his belief Counts One, Two, and Three each clearly

features “distinct conceptual groupings” and thus any counsel would be ineffective for failing to

object to the lack of a unanimity instruction under either federal or state law. The cases he cites,

however, merely beg the question; rather than provide analysis on whether these counts in fact

involve distinct conceptual groupings, they simply outline the requirements for counts already

determined to feature distinct conceptual groupings. Johnson, the state-law case on which

Gilbert heavily relies, analyzes similar counts in terms of alternative means, not distinct


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conceptual groupings. At best, therefore, the counts against him are ambiguous as to whether

they involve alternative means or distinct conceptual groupings; at worst, they are clearly

alternative means. Either way, it would not be deficient performance by his trial counsel not to

object to the lack of a unanimity instruction given the counts against him.

       Gilbert thus fails both prongs of Strickland’s test for ineffective assistance of counsel.

Both clearly established Supreme Court precedent and Ohio law support the proposition that the

offenses charged in Counts One, Two, and Three are offenses involving alternative means, and

such offenses do not require a jury instruction on particularized unanimity. It is therefore not at

all clear that such an instruction would have been available to Gilbert had his counsel sought

one; hence the failure to seek the instruction or to object to its omission did not prejudice him.

Reviewing this claim, as we must, under AEDPA’s doubly deferential standard, we find no merit

to the claim of ineffective assistance of counsel.

                                                 B.

       The Warden cross-appeals the district court’s granting of habeas relief to Gilbert on the

felony-murder conviction. The district court held that because Count Two was premised on a

theory that Gilbert committed a murder “while committing” an aggravated robbery, and because

the “while committing” element was part of aggravated robbery as charged in both Count Three

and Count Four, the jury might have used the aggravated robbery in Count Four to support the

conviction on Count Two. Because the conviction on Count Four was reversed on direct appeal,

the district court reasoned, this uncertainty as to which aggravated-robbery conviction was the

basis for the conviction on Count Two violated Gilbert’s right under the Sixth Amendment and

the Due Process Clause to “a jury determination that [he] is guilty of every element of the crime




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with which he is charged, beyond a reasonable doubt.” For this principle, the district court cited

Apprendi v. New Jersey, 530 U.S. 466, 477 (2000).

       But Apprendi is a sentencing case, and in it, the Court held that “any fact that increases

the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury,

and proved beyond a reasonable doubt.” Id. at 490. The issue in the habeas petition here is

whether the reversal of Count Four could possibly have made any difference to the jury’s verdict.

And if the charge would have made no difference, it does not merit habeas relief. See Brecht v.

Abrahamson, 507 U.S. 619, 637 (holding that under the harmless-error standard, petitioners are

entitled to habeas relief only if the alleged error resulted in “actual prejudice”). The crime at

issue was the felony murder charged in Count Two; that is, purposely causing the death of

another while committing or attempting to commit, or while fleeing immediately after

committing or attempting to commit, aggravated robbery. The jury found Gilbert guilty beyond

a reasonable doubt of the aggravated, non-felony murder charged in Count One, and of the

aggravated robbery through the use of a weapon charged in Count Three. Those verdicts were

affirmed on direct appeal and have not been challenged collaterally. At the very least, therefore,

the jury concluded beyond a reasonable doubt that Gilbert had, during the same incident,

committed a felony—aggravated robbery—and murdered the individual he had robbed. In light

of those determinations, no reasonable jury could have also found that Gilbert was not guilty of

felony murder.

       The later—and subsequently overruled—reversal of the conviction on the aggravated

robbery charged in Count Four is immaterial to the conviction on Count Two, and no Supreme

Court precedent requires a contrary conclusion. The district court therefore erred in granting

habeas relief on Count Two.


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                                             III.

       For the foregoing reasons, we AFFIRM the district court’s denial of habeas relief on

Gilbert’s ineffective-assistance-of-counsel claim and REVERSE the district court’s granting of

the writ on the felony-murder count.




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