UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ANGELA SIBLANI, #335313,

Petitioner,

CASE NO. 2:14-CV-13623

v. HONORABLE NANCY G. EDMUNDS

MILLICENT WARREN,

Respondent.

_____________________________________/

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF

HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY,

AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

I. Introduction

Michigan prisoner Angela Siblani (“Petitioner”) has filed a petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254 asserting that she is being held in violation of her

constitutional rights. Petitioner was convicted of armed robbery, MICH. COMP. LAWS §

750.526, following a jury trial in the Wayne County Circuit Court in 2011 and was sentenced

to 6 to 20 years imprisonment in 2012. In her pleadings, she raises claims concerning the

jury instructions and the effectiveness of trial counsel.

Promptly after the filing of a habeas petition, a federal district court must undertake

a preliminary review of the petition to determine whether “it plainly appears from the face

of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the

district court.” Rule 4, Rules Governing § 2254 Cases; see also 28 U.S.C. § 2243. If, after

preliminary consideration, the court determines that the petitioner is not entitled to relief,

the court must summarily dismiss the petition. Id., see also Allen v. Perini, 424 F.2d 134,

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141 (6th Cir. 1970) (district court has the duty to “screen out” petitions that lack merit on

their face). The court is authorized to summarily dismiss a habeas corpus petition if it

plainly appears from the face of the petition and any attached exhibits that the petitioner

is not entitled to federal habeas relief. McFarland v. Scott, 512 U.S. 849, 856 (1994);

Carson v. Burke, 178 F.3d 434, 436 (6th Cir. 1999); Rule 4, Rules Governing § 2254

Cases. No response to a habeas petition is necessary when the petition is frivolous,

obviously lacks merit, or where the necessary facts can be determined from the petition

itself without consideration of a response from the State. Allen, 424 F.2d at 141; Robinson

v. Jackson, 366 F. Supp. 2d 524, 525 (E.D. Mich. 2005).

After undertaking the review required by Rule 4, the Court finds that the habeas

claims lack merit and denies the petition. The Court also denies a certificate of

appealability and denies leave to proceed in forma pauperis on appeal.

II. Facts and Procedural History

Petitioner’s conviction arises from the armed robbery of a man whom she brought

to her apartment for a paid sexual act in Detroit, Michigan in 2011. For purposes of this

opinion, the Court accepts the statement of facts set forth in Petitioner’s brief on state direct

appeal. See Pet. Exh. D, App. Brief, pp. 7-13.

Following her conviction and sentencing, Petitioner filed an appeal of right with the

Michigan Court of Appeals raising the same two claims presented on habeas review. The

court denied relief on those claims and affirmed Petitioner’s conviction. People v. Siblani,

No. 3313760 (Mich. Ct. App. Jan. 16, 2014) (unpublished). Petitioner filed an application

for leave to appeal with the Michigan Supreme Court, which was denied in a standard

order. People v. Siblani, 496 Mich. 860, 847 N.W.2d 509 (2014).

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Petitioner then filed her federal habeas petition. She raises the following claims:

I. She was denied the effective assistance of counsel because her

attorney did not request that the judge instruct the jury that it must

unanimously agree on the factual theory of the crime.

II. She was denied due process because the trial court neglected its

duty, in the absence of a request from counsel, to instruct the jury that

to convict on the armed robbery charge it must unanimously agree on

the factual theory of the crime. In the alternative, trial counsel was

ineffective for not requesting such instructions.

III. Standard of Review

Federal law imposes the following standard of review for habeas cases:

An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted with respect

to any claim that was adjudicated on the merits in State court proceedings

unless the adjudication of the claim –

(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 on an unreasonable

determination of the facts in light of the evidence presented in

the State court proceedings.

28 U.S.C. § 2254(d).

“A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a rule

that contradicts the governing law set forth in [Supreme Court cases]’ or if it ‘confronts a

set of facts that are materially indistinguishable from a decision of [the Supreme] Court and

nevertheless arrives at a result different from [that] precedent.’” Mitchell v. Esparza, 540

U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06

(2000)); see also Bell v. Cone, 535 U.S. 685, 694 (2002).

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“[T]he ‘unreasonable application’ prong of § 2254(d)(1) permits a federal habeas

court to ‘grant the writ if the state court identifies the correct governing legal principle from

[the Supreme] Court but unreasonably applies that principle to the facts of petitioner’s

case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413); see

also Bell, 535 U.S. at 694. However, “[i]n order for a federal court find a state court’s

application of [Supreme Court] precedent ‘unreasonable,’ the state court’s decision must

have been more than incorrect or erroneous. The state court’s application must have been

‘objectively unreasonable.’” Wiggins, 539 U.S. at 520-21 (citations omitted); see also

Williams, 529 U.S. at 409. “AEDPA thus imposes a ‘highly deferential standard for

evaluating state-court rulings,’ and ‘demands that state-court decisions be given the benefit

of the doubt.’” Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Lindh, 521 U.S. at 333,

n. 7; Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).

The United States Supreme Court recently held that “a state court’s determination

that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could

disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, _ U.S. _,

131 S. Ct. 770, 786 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The

Supreme Court emphasized “that even a strong case for relief does not mean the state

court’s contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S.

63, 75 (2003). Pursuant to § 2254(d), “a habeas court must determine what arguments or

theories supported or . . . could have supported, the state court’s decision; and then it must

ask whether it is possible fairminded jurists could disagree that those arguments or theories

are inconsistent with the holding in a prior decision” of the Supreme Court. Id. Thus, in

order to obtain federal habeas relief, a state prisoner must show that the state court’s

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rejection of his claim “was so lacking in justification that there was an error well understood

and comprehended in existing law beyond any possibility for fairminded disagreement.” 

Id.

Section 2254(d)(1) limits a federal habeas court’s review to a determination of

whether the state court’s decision comports with clearly established federal law as

determined by the Supreme Court at the time the state court renders its decision. Williams,

529 U.S. at 412; see also Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (noting that

the Supreme Court “has held on numerous occasions that it is not ‘an unreasonable

application of clearly established Federal law’ for a state court to decline to apply a specific

legal rule that has not been squarely established by this Court”) (quoting Wright v. Van

Patten, 552 U.S. 120, 125-26 (2008) (per curiam)); Lockyer v. Andrade, 538 U.S. 63, 71-72

(2003). Section 2254(d) “does not require a state court to give reasons before its decision

can be deemed to have been ‘adjudicated on the merits.’” Harrington, 131 S. Ct. at 785. 

Furthermore, it “does not require citation of [Supreme Court] cases–indeed, it does not

even require awareness of [Supreme Court] cases, so long as neither the reasoning nor

the result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8

(2002); see also Mitchell, 540 U.S. at 16. While the requirements of “clearly established

law” are to be determined solely by Supreme Court precedent, the decisions of lower

federal courts may be useful in assessing the reasonableness of the state court’s resolution

of an issue. See Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007) (citing Williams v.

Bowersox, 340 F.3d 667, 671 (8th Cir. 2003)); Dickens v. Jones, 203 F. Supp. 354, 359

(E.D. Mich. 2002).

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Lastly, a state court’s factual determinations are entitled to a presumption of

correctness on federal habeas review. 28 U.S.C. § 2254(e)(1). A petitioner may rebut this

presumption with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61

(6th Cir. 1998). Moreover, habeas review is “limited to the record that was before the state

court.” Cullen v. Pinholster, _ U.S. _, 131 S. Ct. 1388, 1398 (2011).

IV. Analysis

A. Jury Instruction Claim

Petitioner asserts that she is entitled to habeas relief because the trial court failed

to instruct the jury that it must unanimously agree on the factual theory of the crime to

convict her of armed robbery. According to Petitioner, there was testimony that a gun

and/or a cane were used in the incident such that the jury may not have agreed on the

underlying weapon used to support her armed robbery conviction.

In order for habeas relief to be warranted on the basis of incorrect jury instructions,

a petitioner must show more than that the instructions are undesirable, erroneous or

universally condemned. Rather, taken as a whole, they must be so infirm that they

rendered the entire trial fundamentally unfair. Estelle v. McGuire, 502 U.S. 62, 72 (1991);

Henderson v. Kibbe, 431 U.S. 145, 154 (1977). If an instruction is ambiguous and not

necessarily erroneous, it violates the Constitution only if there is a reasonable likelihood

that the jury applied the instruction improperly. Binder v. Stegall, 198 F.3d 177, 179 (6th

Cir. 1999). A jury instruction is not to be judged in artificial isolation, but must be

considered in the context of the instructions as a whole and the trial record. Grant v.

Rivers, 920 F. Supp. 769, 784 (E.D. Mich. 1996). Also, the failure to give an instruction that

is supported by the evidence does not automatically justify habeas relief – the failure to

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instruct must have rendered the trial fundamentally unfair. Cupp v. Naughten, 414 U.S.

141, 147 (1973); Daniels v. Lafler, 501 F.3d 735, 741 (6th Cir. 2007). A failure to instruct

does not cause fundamental unfairness when the instructions as a whole adequately

present the defense theory to the jury. Duckett v. Godinez, 67 F.3d 734, 743 (9th Cir.

1995). “An omission, or an incomplete instruction, is less likely to be prejudicial than a

misstatement of the law.” Henderson, 431 U.S. at 155. State law instructional errors rarely

form the basis for federal habeas relief. Estelle, 502 U.S. at 71-72.

The Michigan Court of Appeals rendered the last reasoned decision on this claim

and denied relief. The court explained:

A jury verdict must be unanimous. MCR 6.410(B). The trial court must

properly instruct the jury of this unanimity requirement. People v Cooks, 446

Mich 503, 512; 521 NW2d 275 (1994); People v Gadomski, 232 Mich App 24,

30; 592 NW2d 75 (1998). While the trial court provided the jury with a general

unanimity instruction, defendant contends that the jury should have been

given a specific unanimity instruction since there were two bases for the

underlying armed robbery count. “In some circumstances, a general

unanimity instruction . . . is not adequate to ensure a defendant’s right to a

unanimous jury verdict.” People v Gadomski, 232 Mich App 24, 30; 592

NW2d 75 (1998). One circumstance where a general unanimity instruction

is insufficient is “when the prosecution offers evidence of multiple acts by a

defendant, each of which would satisfy the actus reus element of a single

charged offense.” Id. (emphasis added), citing Cooks, 446 Mich at 530. Here,

only one act of robbery was alleged, with multiple theories regarding the

weapon with which it was committed. And this Court has established that

such “multitheory” cases do not fall under the rule of Cooks. People v Lynn,

223 Mich App 364, 367 n 1; 566 NW2d 45 (1997). As a result, defendant was

not denied a fair trial by virtue of the trial court failing to provide the

instruction.

Siblani, No. 313760 at *3.

The state court’s denial of relief is neither contrary to Supreme Court precedent nor

an unreasonable application of federal law or the facts. First, to the extent that Petitioner

asserts a violation of Michigan law or the Michigan Constitution, she is not entitled to relief. 

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Such a claim is not cognizable on federal habeas review because it is a state law claim. 

See Austin v. Jackson, 213 F.3d 298, 300 (6th Cir. 2000). State courts are the final arbiters

of state law and the federal courts will not intervene in such matters. Lewis v. Jeffers, 497

U.S. 764, 780 (1990); Oviedo v. Jago, 809 F.2d 326, 328 (6th Cir. 1987); see also

Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Sanford v. Yukins, 288 F.3d 855, 860 (6th Cir.

2002). Habeas relief does not lie for perceived errors of state law. Estelle, 502 U.S. at 67-

68. Petitioner thus fails to state a claim upon which relief may be granted as to any such

claim.

Second, while Michigan law provides a right to a unanimous verdict in criminal

cases, there is no federal constitutional right to a unanimous verdict in a state criminal trial. 

See Apodaca v. Oregon, 406 U.S. 404, 406 (1972) (state criminal conviction by less than

unanimous jury does not violate Sixth Amendment right to trial by jury); see also

Richardson v. United States, 536 U.S. 813, 821 (1999) (“this Court has not held that the

Constitution imposes a jury-unanimity requirement in state cases”); Schad v. Arizona, 510

U.S. 624, 631 (1991); Brown v. Louisiana, 447 U.S. 323, 330-31 (1980). Consequently,

a jury unanimity claim arising from a state criminal trial fails to provide a basis for federal

habeas relief.

Third, neither state nor federal law guarantee a criminal defendant the right to jury

unanimity on the factual basis or theory for a crime. See People v Lynn, 223 Mich. App.

364, 367 n. 1, 566 N.W.2d 45 (1997); Richardson, 526 U.S. at 817 (distinguishing between

elements of a crime, which must be determined unanimously, and the means by which an

element may be accomplished); Schad, 510 U.S. at 631-32 (conviction for first-degree

murder with instruction that did not require jury to unanimously agree on one of the

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alternate theories of premeditated and felony murder did not violate due process); United

States v. DeJohn, 368 F.3d 533, 542 (6th Cir. 2004) (under federal firearm statute, jury

need not be instructed that it must unanimously find possession of a particular weapon);

Rogers v. Howes, 64 F. App’x. 450, 454 (6th Cir. 2003) (citing Schad and ruling that a jury

is not required to agree upon a theory of guilt); Brown v. Bergh, No. 2:11-CV-10571, 2013

WL 2338415, *6 (E.D. Mich. May, 29, 2013) (denying habeas relief on similar claim). 

Petitioner thus fails to state a claim upon which relief may be granted as to this issue.

Moreover, Petitioner admits that the trial court gave a general unanimity instruction

and the jury convicted her of armed robbery under those instructions. Petitioner has not

shown that the jury instructions, as given, were improper – or that they rendered her trial

fundamentally unfair. She received all of the process she was due. Habeas relief is not

warranted on this claim.

B. Effectiveness of Trial Counsel

Petitioner relatedly asserts that she is entitled to habeas relief because trial counsel

was ineffective for failing to request the aforementioned specific unanimity jury instruction. 

The Sixth Amendment to the United States Constitution guarantees a criminal defendant

the right to the effective assistance of counsel. In Strickland v. Washington, 466 U.S. 668

(1984), the United States Supreme Court set forth a two-prong test for determining whether

a habeas petitioner has received ineffective assistance of counsel. First, a petitioner must

prove that counsel's performance was deficient. This requires a showing that counsel

made errors so serious that he or she was not functioning as counsel as guaranteed by the

Sixth Amendment. Id. at 687. Second, the petitioner must establish that counsel's deficient

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performance prejudiced the defense. Counsel's errors must have been so serious that they

deprived the petitioner of a fair trial or appeal. Id. 

To satisfy the performance prong, a petitioner must identify acts that were "outside

the wide range of professionally competent assistance." Id. at 690. The reviewing court's

scrutiny of counsel's performance is highly deferential. Id. at 689. There is a strong

presumption that trial counsel rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment. Id. at 690. The petitioner

bears the burden of overcoming the presumption that the disputed actions were sound trial

strategy.

As to the prejudice prong, a petitioner must show that "there is a reasonable

probability that, but for counsel's unprofessional errors, the result of the proceeding would

have been different." Id. at 694. A reasonable probability is one that is sufficient to

undermine confidence in the outcome of the proceeding. Id. "On balance, the benchmark

for judging any claim of ineffectiveness must be whether counsel's conduct so undermined

the proper functioning of the adversarial process that the [proceeding] cannot be relied on

as having produced a just result." Strickland, 466 U.S. at 686.

The Supreme Court has confirmed that a federal court's consideration of ineffective

assistance of counsel claims arising from state criminal proceedings is quite limited on

habeas review due to the deference accorded trial attorneys and state appellate courts

reviewing their performance. "The standards created by Strickland and § 2254(d) are both

‘highly deferential,' and when the two apply in tandem, review is ‘doubly' so." Harrington,

131 S. Ct. at 788 (internal and end citations omitted). "When § 2254(d) applies, the

question is not whether counsel's actions were reasonable. The question is whether there

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is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.

The Michigan Court of Appeals rendered the last reasoned decision on this issue

and denied relief. The court ruled that Petitioner was not denied the effective assistance

of trial counsel because the underlying jury instruction claim lacked merit and counsel did

not have a duty to make a meritless argument. Siblani, No. 313760 at *3-4.

The state court’s denial of relief is neither contrary to Supreme Court precedent nor

an unreasonable application of federal law or the facts. Given the state court’s ruling and

this Court’s determination that the underlying jury instruction claim lacks merit, Petitioner

cannot establish that counsel erred and/or that she was prejudiced by counsel’s conduct

in not requesting the specific unanimity instruction. Counsel cannot be ineffective for failing

to make a futile or meritless request. See Coley v. Bagley, 706 F.3d 741, 752 (6th Cir.

2014) (“Omitting meritless arguments is neither professionally unreasonable nor

prejudicial.”); United States v. Steverson, 230 F.3d 221, 225 (6th Cir. 2000). Habeas relief

is not warranted on this claim.

V. Conclusion

For the reasons stated, the Court concludes that Petitioner’s claims lack merit and

that she is not entitled to federal habeas relief. Accordingly, the Court DENIES and

DISMISSES WITH PREJUDICE her petition for a writ of habeas corpus.

Before Petitioner may appeal this decision, a certificate of appealability must issue. 

See 28 U.S.C. § 2253(c)(1)(a); FED. R. APP. P. 22(b). A certificate of appealability may

issue “only if the applicant has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). When a district court denies relief on the merits, the

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substantial showing threshold is met if the petitioner demonstrates that reasonable jurists

would find the court’s assessment of the constitutional claim debatable or wrong. Slack v.

McDaniel, 529 U.S. 473, 484-85 (2000). “A petitioner satisfies this standard by

demonstrating that . . . jurists could conclude the issues presented are adequate to deserve

encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). 

Petitioner has not done so. She fails to make a substantial showing of the denial of a

constitutional right as to her claims. Accordingly, the Court DENIES certificate of

appealability. Lastly, the Court DENIES Petitioner leave to proceed in forma pauperis on

appeal as an appeal cannot be taken in good faith. See FED. R. APP. P. 24(a).

IT IS SO ORDERED.

s/ Nancy G. Edmunds 

NANCY G. EDMUNDS

UNITED STATES DISTRICT JUDGE

Dated: September 29, 2014

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