Davis v. Lafler

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0278p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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TONY DAVIS,

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Petitioner-Appellant,

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No. 08-1291

v.

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BLAINE LAFLER, Warden, -

Respondent-Appellee. -

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Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 06-13659—Gerald E. Rosen, Chief District Judge.

Argued: March 2, 2011

Decided and Filed: October 3, 2011

Before: BATCHELDER, Chief Judge; MARTIN, BOGGS, MOORE, COLE, CLAY,

GILMAN, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN,

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KETHLEDGE, and STRANCH, Circuit Judges.

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COUNSEL

ARGUED: Micah S. Myers, WILMER CUTLER PICKERING HALE AND DORR LLP,

Washington, D.C., for Appellant. Laura A. Cook, OFFICE OF THE MICHIGAN

ATTORNEY GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: Micah S. Myers,

WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., for

Appellant. Laura A. Cook, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,

Lansing, Michigan, for Appellee.

GILMAN, J., delivered the opinion of the court, in which BATCHELDER, C. J.,

BOGGS, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, and

KETHLEDGE, JJ., joined. MARTIN, J. (pp. 17–22), delivered a separate opinion

concurring in part and dissenting in part, in which STRANCH, J., joined. MOORE, J.

(pp. 23–32), delivered a separate dissenting opinion, in which COLE and CLAY, JJ., joined.

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The Honorable Helene N. White, Circuit Judge, took no part in the consideration or decision of

this case.

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OPINION

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RONALD LEE GILMAN, Circuit Judge. Tony Davis was convicted by a Michigan

jury of aiding and abetting a carjacking and of receiving and concealing stolen property. He

filed an application for leave to appeal his conviction with the Michigan Court of Appeals

and the Michigan Supreme Court. Both courts denied Davis’s application for lack of merit.

Davis then sought a writ of habeas corpus in federal court, pursuant to 28 U.S.C. § 2254, to

challenge his state-court conviction for aiding and abetting a carjacking. The district court

denied Davis habeas relief. A prior panel of this court reversed the judgment of the district

court, but the full court vacated the panel decision and set the case for rehearing en banc.

We now consider the two grounds for relief that Davis raises in his habeas petition:

(1) that there was insufficient evidence to support his conviction for aiding and abetting a

carjacking, and (2) that his trial counsel was ineffective in refusing to call Marco

Washington, who had already pled guilty to the actual carjacking, as a witness. For the

reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

In denying Davis’s petition for a writ of habeas corpus under 28 U.S.C. § 2254, the

district court provided the following summary of the relevant facts:

Petitioner’s convictions arise out of a carjacking that occurred in the

parking lot of a restaurant in Detroit, Michigan.

Clarence Franklin testified that, on March 27, 2002, at

approximately 10:00 p.m., he stopped at the China One Restaurant, along

with his fiancee Yvonne Depriest and 12-year-old daughter, Brittany

Johnson. Franklin parked his Lincoln Navigator. He and his daughter went

into the restaurant to get food and Depriest remained in the vehicle. After

waiting for approximately ten minutes, Franklin got his food and left the

restaurant. As he was leaving, he saw Petitioner enter the restaurant.

Franklin testified that Brittany sat in the backseat of the vehicle and

he got into the driver’s seat. As he closed his door, Marco Washington

approached the vehicle and ordered Franklin to [] exit the vehicle.

Washington pointed a .9-mm weapon at Franklin and again ordered him out

No. 08-1291 Davis v. Lafler Page 3

of the vehicle. Franklin, Brittany and Depriest exited the vehicle.

Washington drove the vehicle to the front of the restaurant. Petitioner exited

the restaurant and got into the passenger seat of the Navigator. The

Navigator was then driven from the parking lot.

Franklin’s vehicle was located approximately two hours later.

Franklin later identified Washington as the man with the gun and Petitioner

as the person he saw inside the restaurant.

Yvonne Depriest testified that she waited in the Navigator while

Franklin and Brittany went into the restaurant. She observed a gray

Chevrolet Cavalier enter the parking lot. She saw someone exit the vehicle

and enter the restaurant. When Franklin and Brittany returned to the car,

Depriest heard someone cock a gun and demand that they exit the vehicle.

They all exited the car. She testified that Petitioner then exited the

restaurant and got into the passenger side of the vehicle.

Brittany Johnson testified that, as she and her father were waiting for

their food, Petitioner entered the restaurant and asked for a glass of water.

She identified Washington as the man who forced them out of their vehicle

at gunpoint, and identified Petitioner as the man who entered the vehicle

before it drove way.

Police Officer Scott Konczal of the Detroit Police Department

testified the [sic] he and his partner responded to a call that someone had

observed men stripping a Navigator on Novara Street in Detroit. Officer

Konczal testified that he and his partner approached a garage located behind

a vacant home. A man who the officers believed to be a lookout yelled

something into the garage and fled. He was later apprehended and identified

as Anthony Johnson. Officer Konczal saw a second person run from the

garage. He gave chase and apprehended Marco Washington. Officer

Konczal’s partner arrested Petitioner inside the garage. The key to the

Navigator was found in Washington’s pocket.

Davis was originally charged in an Information with armed robbery and carjacking,

to which he pled not guilty. After the close of evidence, the Information was amended to

include an additional count of receiving and concealing stolen property valued at over

$20,000. The state of Michigan tried Davis for the carjacking under an aiding-and-abetting

theory. Davis did not testify in his own defense, and his defense counsel decided not to call

Washington to testify despite Davis’s request that Washington be called as a witness. The

jury convicted Davis of carjacking and of receiving and concealing property valued at over

$20,000, but found him not guilty on the armed-robbery charge.

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After trial, with the help of newly appointed counsel, Davis moved the state trial

court to dismiss his conviction on the bases that (1) there was insufficient evidence to

support his conviction for aiding and abetting a carjacking, and (2) his trial counsel was

constitutionally ineffective in refusing to call Washington as a witness. In an affidavit

supporting his ineffective-assistance-of-counsel claim, Davis stated his belief that

Washington would admit to being the sole perpetrator of the carjacking and that Davis was

not involved in the offense.

The state trial court denied Davis’s motion. It reasoned that

[t]he evidence viewed in a light most favorable to the prosecution is

sufficient to find that Defendant aided and abetted in the carjacking.

Defendant arrived in the same car with the perpetrator, went into the

restaurant and only ordered a cup of water while another man took the car

at gunpoint. Defendant immediately got into the stolen vehicle and two and

a half hours later was found dismantling it in a garage on the eastside of

town. It is a reasonable inference from the undisputed evidence that

Defendant preplanned his role in the carjacking thereby satisfying the intent

element of aiding and abetting a carjacking. . . . The fact that Defendant

deliberately got into the stolen vehicle and not the car in which he arrived

indicates more than just mere presence and circumstance.

The court also denied Davis’s claim that his trial counsel was ineffective, concluding that

Davis had failed to show that “but for” his counsel’s failure to call Washington, Davis

“would have had a more positive outcome at trial.”

Davis petitioned the Michigan Court of Appeals for leave to file an appeal on

essentially the same bases that he presented to the trial court in support of his motion to

dismiss his conviction. His request to appeal was denied in a one-sentence order. He next

sought leave to appeal to the Michigan Supreme Court on the same grounds. That court also

denied his request in a one-sentence order. Davis then filed a petition for a writ of habeas

corpus under 28 U.S.C. § 2254 in the United States District Court for the Eastern District of

Michigan, raising the same grounds for relief that he had presented in state court. The

district court issued an opinion and order denying his petition. Davis now appeals that

decision.

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II. ANALYSIS

A. Standard of review

We review the district court’s legal conclusions in a habeas proceeding de novo and

its factual findings under the clear-error standard. Awkal v. Mitchell, 613 F.3d 629, 638 (6th

Cir. 2010) (en banc). Our review of the Michigan state-court decisions in this case is

governed by the following standards set forth in the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d):

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 proceeding.

Section 2254(d) creates a “‘highly deferential standard for evaluating state-court

rulings,’ which demands that state-court decisions be given the benefit of the doubt.”

Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (quoting Lindh v. Murphy, 521 U.S. 320, 333

n.7 (1997)). A state-court decision is contrary to clearly established federal law 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 decides a case differently than [the Supreme Court] has

on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000);

Brown v. Palmer, 441 F.3d 347, 350 (6th Cir. 2006) (quoting Williams).

“Under the ‘unreasonable application’ clause, a federal habeas court may grant the

writ if the state court identifies the correct governing legal principle from [Supreme Court]

decisions but unreasonably applies that principle to the facts of the prisoner’s case.”

Williams, 529 U.S. at 413. “[A] federal habeas court may not issue the writ simply because

that court concludes in its independent judgment that the relevant state-court decision applied

clearly established federal law erroneously or incorrectly. Rather, that application must also

be unreasonable.” Id. at 411.

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In addition, the factual findings of the state court are presumed correct unless the

petitioner presents clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1).

“[A] decision adjudicated on the merits in a state court and based on a factual determination

will not be overturned on factual grounds unless objectively unreasonable in light of the

evidence presented in the state-court proceeding.” Ayers v. Hudson, 623 F.3d 301, 308 (6th

Cir. 2010) (brackets omitted) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)).

Under AEDPA, we review the last state-court decision to reach the merits of the

particular claims being considered. Johnson v. Bagley, 544 F.3d 592, 599 (6th Cir. 2008).

The Michigan trial court was the last state court to reach the merits of both Davis’s

sufficiency-of-the-evidence and ineffective-assistance-of-counsel claims.

B. Sufficiency of the evidence

In Jackson v. Virginia, 443 U.S. 307 (1979), the Supreme Court set forth the standard

for challenges based on sufficiency of the evidence, holding that “the relevant question is

whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Id. at 319 (emphasis in original). The Jackson v. Virginia standard

“gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to

ultimate facts.” Id. This standard is applied “with explicit reference to the substantive

elements of the criminal offense as defined by state law.” Id. at 324 n.16. And because both

the Jackson v. Virginia standard and AEDPA apply to Davis’s claims, “the law commands

deference at two levels in this case: First, deference should be given to the trier-of-fact’s

verdict, as contemplated by Jackson; second, deference should be given to the Michigan

[trial court’s] consideration of the trier-of-fact’s verdict, as dictated by AEDPA.” See Tucker

v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008).

To convict Davis of aiding and abetting the carjacking, the state of Michigan had to

prove beyond a reasonable doubt that

(1) the crime charged was committed by the defendant or some other person,

(2) the defendant performed acts or gave encouragement that assisted the

commission of the crime, and (3) the defendant intended the commission of

No. 08-1291 Davis v. Lafler Page 7

the crime or had knowledge that the principal intended it when the defendant

gave aid or encouragement.

Brown, 441 F.3d at 351 (citing People v. Carines, 597 N.W.2d 130, 135 (Mich. 1999)).

“The phrase ‘aiding and abetting’ includes all words or actions by the defendant that might

support, encourage, or incite the commission of the crime.” Id. (citing People v. Palmer, 220

N.W.2d 393, 397 (Mich. 1974)). “An aider and abettor’s state of mind may be inferred from

all the facts and circumstances.” Carines, 597 N.W.2d. at 135 (internal quotation marks

omitted) (holding that “[c]ircumstantial evidence and reasonable inferences arising from that

evidence can constitute satisfactory proof of the elements of a crime” (internal quotation

marks omitted)). “‘Factors that may be considered [in determining intent] include a close

association between the defendant and the principal, the defendant’s participation in the

planning or execution of the crime, and evidence of flight after the crime.” Id. (internal

quotation marks omitted). “But mere presence, or even knowledge, that a crime is about to

be committed is insufficient to prove guilt under an aiding-and-abetting theory.” Brown, 441

F.3d at 351 (citing People v. Wilson, 493 N.W.2d 471, 476 (Mich. Ct. App. 1992)).

The evidence introduced at trial showed that (1) Davis arrived at the restaurant where

the carjacking took place with Washington and an unidentified third person in a Chevrolet

Cavalier; (2) Davis entered the restaurant while two of the victims were inside; (3)

Washington stood outside the restaurant while the third person stayed in the Cavalier; (4)

Davis did not order any food, but rather asked for a cup of water; (5) after the two victims

inside the restaurant left to enter their Lincoln Navigator SUV and join a waiting passenger,

Washington ordered all three of the victims out of the vehicle at gunpoint; (6) Davis stood

at the window inside the restaurant while the carjacking was occurring; (7) Washington

drove the stolen SUV a few feet toward the restaurant and stopped, at which point Davis

immediately walked out and hopped into the SUV; (8) Washington then drove away from

the scene with Davis as a passenger; (9) the third person who was in the Cavalier drove off

after them; (10) roughly two-and-a-half hours later, Davis, Washington, and one other man

were caught stripping the SUV in a dilapidated garage behind an abandoned house;

(11) Davis was found lying flat on his back in the garage, working underneath the stolen

SUV when the police arrived; and (12) the Cavalier in which Davis and Washington drove

No. 08-1291 Davis v. Lafler Page 8

to the restaurant and that was seen trailing the SUV from the restaurant was found near the

garage.

Davis argues that this evidence permits nothing more than speculation that he played

a role in the carjacking itself or that he had the requisite criminal intent. He asserts that

“[t]hese facts established, at most, acquiescence and after-the-fact assistance, neither of

which suffices for a conviction.” Davis specifically relies on Brown v. Palmer, 441 F.3d 347

(6th Cir. 2006), to support his argument that the Michigan trial court’s conclusion to the

contrary was an unreasonable application of the Jackson v. Virginia standard.

In Brown, this court held that there was insufficient evidence to find the defendant

guilty of aiding and abetting a carjacking. Id. at 351-53. The evidence in Brown showed

that (1) Brown was parked in a car at a gas station; (2) the perpetrator exited the gas station’s

store and entered Brown’s car for an unstated but apparently very brief period of time; (3)

Brown then pulled forward to a gas pump and the perpetrator exited Brown’s car; (4) the

perpetrator immediately pointed a gun at a man attending to a Buick sedan, fired his gun in

the direction of the man as the latter ran away, then entered the Buick and drove off; (5)

Brown watched this occur from the driver’s seat of his car, after which he attempted to drive

off himself, but his tires skidded in the snow; (6) the Buick’s owner, who had been walking

from the gas station’s store toward his car when the carjacking occurred, ran over to Brown’s

car and punched Brown in the face; (7) Brown immediately told the Buick’s owner that he

had just met the perpetrator a few minutes before and had simply offered to give him a ride;

(8) aided by a friend, the Buick’s owner grabbed Brown, pulled him from the car, and drove

it to a police station to file a report; (9) Brown failed to retrieve his car afterwards; and (10)

the perpetrator was never apprehended. Id. at 349.

Davis’s reliance on Brown is misplaced because the factual differences between these

two cases are material. First, there was no evidence that Brown arrived at the scene with the

perpetrator. Brown in fact claimed that he had just met the man a few minutes earlier,

presumably at the gas station itself. Here, Davis arrived at the scene with Washington,

raising a compelling inference that they were previously acquainted.

Second, the behavior of Brown and Davis before and during the carjacking differed

significantly. Brown engaged in no overt acts to indicate that he was involved in the crime.

No. 08-1291 Davis v. Lafler Page 9

He simply sat in his car and watched the crime unfold in front of him, to his professed shock

and dismay. Davis, on the other hand, exited the Cavalier with Washington, entered the

restaurant, failed to order any food, and stood at the window. Davis would have had no other

way of so closely coordinating his actions with those of Washington if he had not been

actively watching what was taking place. In short, Davis’s behavior during the crime was

far closer to that of a coconspirator than Brown’s.

Another key difference between this case and Brown is that Davis fled the scene in

the stolen vehicle. Because Davis arrived at the crime scene in the Cavalier, and the Cavalier

subsequently followed the carjacked SUV, he could just as easily have departed in the same

car. Davis instead purposely chose to enter the SUV that he had just seen his companion

carjack.

For Brown to control the outcome in this case, Brown would have needed to arrive

at the gas station with the perpetrator, watch the carjacking occur, and then enter the stolen

Buick to drive off with the perpetrator. The fact pattern here is far more incriminating

because it indicates that Washington was expecting Davis to enter the SUV (without any

contemporaneous communication between them) that Washington had just stolen. The jury

could easily conclude from this evidence that Davis was involved in the planning and

execution of the carjacking. In contrast, the perpetrator in Brown did not wait for Brown to

enter the carjacked Buick, did not drive it towards Brown, and did nothing after the crime

to indicate that the two were working in tandem.

Another difference here is the lack of any proof to refute the circumstantial evidence

that Davis and Washington were previously acquainted. Brown, in contrast, denied any

advance knowledge about the carjacking and denied even knowing the perpetrator until they

met at the gas station. Furthermore, Brown made these denials immediately after the crime

and thus had little time to fabricate an exculpatory story.

Finally, Davis and Washington were found breaking down the stolen SUV shortly

after the carjacking. Although this act by itself does not constitute aiding and abetting the

carjacking, the overall sequence of events greatly strengthens the circumstantial case against

Davis. Pieces of evidence are not to be viewed in a vacuum; rather, they are viewed in

relation to the other evidence in the case. See United States v. Welch, 97 F.3d 142, 150-51

No. 08-1291 Davis v. Lafler Page 10

(6th Cir. 1996) (concluding that the circumstantial evidence “in its totality” was sufficient

to find the defendant guilty beyond a reasonable doubt). Together with the other

circumstantial evidence, the fact that Davis and Washington were continuously together from

the time that they arrived at the scene of the carjacking until they were caught stripping the

SUV—essentially sharing in the proceeds of the crime—is strong evidence of Davis’s aiding

and abetting the carjacking. See People v. Carines, 597 N.W.2d 130, 135 (Mich. 1999)

(holding that a close association between the defendant and the principal, and evidence of

flight after the crime, are factors that may be considered in determining intent in an aiding-

and-abetting case); People v. Allen, 505 N.W.2d 869, 871 (Mich. Ct. App. 1993)

(“Circumstantial evidence and reasonable inferences arising from that evidence can

constitute satisfactory proof of the elements of a crime.”).

Given the material differences between this case and Brown, and the strong

circumstantial evidence that Davis served as a lookout and/or helped plan the carjacking, we

find no basis to grant Davis habeas relief in light of the AEDPA deference that we are

obligated to apply. The key reason for granting habeas relief in Brown was that the evidence

there was deemed too speculative for a jury to find Brown guilty beyond a reasonable doubt.

See Brown, 441 F.3d at 352-53. But in light of AEDPA’s deferential standard, Brown was

a very close case. The present case, on the other hand, contains additional facts supporting

the jury’s verdict that make the verdict a far cry from being “objectively unreasonable.” See

Wiggins v. Smith, 539 U.S. 510, 520-21 (2003) (explaining that a state court’s decision must

be “objectively unreasonable” to merit habeas relief); see also White v. Steele, 602 F.3d 707,

709-11 (6th Cir. 2009) (distinguishing Brown and denying relief on an aiding-and-abetting,

sufficiency-of-the-evidence argument).

We further note that the Jackson v. Virginia standard is so demanding that “[a]

defendant who challenges the sufficiency of the evidence to sustain his conviction faces a

nearly insurmountable hurdle.” United States v. Oros, 578 F.3d 703, 710 (7th Cir. 2009)

(internal quotation marks omitted). Adding to this extremely high bar are the stringent and

limiting standards of AEDPA. Under AEDPA, we may reverse a state court’s decision that

correctly identified and applied the controlling Supreme Court precedent only if the

application of that precedent was “objectively unreasonable,” meaning “more than incorrect

or erroneous.” Wiggins, 539 U.S. at 520-21 (citations and internal quotation marks omitted);

No. 08-1291 Davis v. Lafler Page 11

see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (“It is not enough that a federal habeas

court, in its independent review of the legal question, is left with a firm conviction that the

state court was erroneous.” (internal quotation marks omitted)).

The precise definition of “objectively unreasonable” remains elusive. Maynard v.

Boone, 468 F.3d 665, 670-71 (10th Cir. 2006) (discussing the failure of most federal courts

to further define the phrase “objectively unreasonable” and collecting cases). Several of our

sister circuits, however, have attempted to clarify the term. The First Circuit has explained

that “if it is a close question whether the state decision is in error, then the state decision

cannot be an unreasonable application,” and that “‘some increment of incorrectness beyond

error is required.’” McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir. 2002) (en banc) (quoting

with approval Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).

Taking a somewhat different tack, the Seventh Circuit has explained that a state

court’s decision is sustainable under AEDPA if it “is at least minimally consistent with the

facts and circumstances of the case,” Hennon v. Cooper, 109 F.3d 330, 335 (7th Cir. 1997),

or even “if it is one of several equally plausible outcomes,” Hall v. Washington, 106 F.3d

742, 749 (7th Cir. 1997), and that a decision is objectively unreasonable only where it is

“well outside the boundaries of permissible differences of opinion,” Hardaway v. Young, 302

F.3d 757, 762 (7th Cir. 2002); see also Mendiola v. Schomig, 224 F.3d 589, 591 (7th Cir.

2000) (explaining that a state court’s decision is not unreasonable if it took the controlling

standard “seriously and produce[d] an answer within the range of defensible positions”).

The Tenth Circuit has similarly opined that “[i]t is not enough that the decision is clearly

wrong or that the reviewing court would have reached a contrary decision,” but instead “the

state court decision must be at such tension with governing U.S. Supreme Court precedents,

or so inadequately supported by the record, or so arbitrary as to be unreasonable.” Maynard,

468 F.3d at 671 (internal quotation marks omitted).

This court has not delved deeply into the issue, but one judge has indicated that

where a state court makes “a close call” on a constitutional question, this “militates against

the conclusion that the state court’s application of the relevant Supreme Court precedent was

objectively unreasonable.” Lopez v. Wilson, 426 F.3d 339, 358 n.1 (6th Cir. 2005) (en banc)

(Cole, J., concurring) (internal quotation marks omitted). Moreover, the Supreme Court has

No. 08-1291 Davis v. Lafler Page 12

recently explained that “[w]hen assessing whether a state court’s application of federal law

is unreasonable, ‘the range of reasonable judgment can depend in part on the nature of the

relevant rule’ that the state court must apply.” Renico v. Lett, 130 S. Ct. 1855, 1864 (2010)

(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

Accordingly, “‘the more general the rule’ at issue—and thus the greater the potential

for reasoned disagreement among fair-minded judges—‘the more leeway state courts have

in reaching outcomes in case-by-case determinations.’” Id. (brackets omitted) (quoting

Yarborough, 541 U.S. at 664). And the Jackson v. Virginia standard—requiring a court to

allow for a range of rational factfinders and to view the evidence in the light most favorable

to the prosecution—is exceedingly general. Foxworth v. St. Amand, 570 F.3d 414, 429 (1st

Cir. 2009) (concluding that Jackson v. Virginia enunciates “a general standard”); see also

Wright v. West, 505 U.S. 277, 308 (1992) (Kennedy, J., concurring) (identifying Jackson v.

Virginia as enunciating “a general standard”).

We must therefore give the Michigan trial court considerable leeway in the case

before us. In light of the strong circumstantial evidence that Davis was involved in the

planning and execution of the carjacking, at least one “rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.” See Jackson v. Virginia, 443

U.S. at 319; see also United States v. Algee, 599 F.3d 506, 512 (6th Cir. 2010)

(“Circumstantial evidence alone is sufficient to sustain a conviction and such evidence need

not remove every reasonable hypothesis except that of guilt.” (internal quotation marks

omitted)).

And when this case is given “double deference” through the lens of AEDPA, so that

we are limited to reviewing whether the state trial court’s decision was so objectively

unreasonable as to be “beyond error,” see McCambridge, 303 F.3d at 36 (citation omitted),

or “outside the boundaries of permissible differences of opinion,” see Hardaway, 302 F.3d

at 762, or more than “clearly wrong,” see Maynard, 468 F.3d at 671, we are unable to say

that the decision is so far out of line with the very general standard set forth in Jackson v.

Virginia as to warrant granting Davis habeas relief. We therefore conclude that the state trial

court’s decision to deny Davis’s motion to dismiss his conviction was not objectively

unreasonable.

No. 08-1291 Davis v. Lafler Page 13

C. Ineffective assistance of counsel

Because we have concluded that sufficient evidence was presented at trial to convict

Davis of aiding and abetting a carjacking, we must now determine whether Davis’s trial

counsel was constitutionally ineffective. To establish the ineffective assistance of counsel,

Davis must first show that his “counsel’s performance was deficient.” Strickland v.

Washington, 466 U.S. 668, 687 (1984). This requires a showing that “counsel’s

representation fell below an objective standard of reasonableness.” Id. at 688. Second,

Davis must show prejudice by establishing that “there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in the outcome.”

Id. at 694. This is a high burden to meet:

Judicial scrutiny of counsel’s performance must be highly deferential. It is

all too tempting for a defendant to second-guess counsel’s assistance after

conviction or adverse sentence, and it is all too easy for a court, examining

counsel’s defense after it has proved unsuccessful, to conclude that a

particular act or omission of counsel was unreasonable. A fair assessment

of attorney performance requires that every effort be made to eliminate the

distorting effects of hindsight, to reconstruct the circumstances of counsel’s

challenged conduct, and to evaluate the conduct from counsel’s perspective

at the time. Because of the difficulties inherent in making the evaluation, a

court must indulge a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance; that is, the defendant

must overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy.

Id. at 689 (citation and internal quotation marks omitted).

Davis argues that we should review his ineffective-assistance-of-counsel claim de

novo rather than under the “doubly deferential judicial review that applies to a Strickland

claim evaluated under [AEDPA].” See Knowles v. Mirzayance, 129 S. Ct. 1411, 1420

(2009). He first asserts that the Michigan trial court applied an improper standard in

analyzing his ineffective-assistance-of-counsel claim. The state trial court held that Davis

had not shown that “the failure to call the perpetrator who pled guilty to the carjacking was

prejudicial to the extent that but for that deficiency, Defendant would have had a more

positive outcome at trial, which is necessary to overcome the presumption of trial strategy.”

No. 08-1291 Davis v. Lafler Page 14

It relied on the Michigan case of People v. Julian, 429 N.W.2d 615 (Mich. Ct. App. 1988),

to reach this conclusion.

In Strickland, the Supreme Court held that “a defendant need not show that counsel’s

deficient conduct more likely than not altered the outcome in the case” to succeed on a claim

of ineffective assistance of counsel. Id. at 693. Davis seizes upon this language and argues

that this is precisely where the Michigan trial court misapplied Supreme Court precedent.

He argues that we should therefore review the prejudice prong of his ineffective-assistance-

of-counsel claim de novo, relying on Dyer v. Bowlen, 465 F.3d 280, 284 (6th Cir. 2006)

(“When the state court issues a decision that is contrary to federal law, we review the merits

of the petitioner’s claim de novo.”). For the reasons set forth below, we conclude that we

do not need to address the prejudice prong of Davis’s ineffective-assistance-of-counsel

claim, and therefore need not decide which standard of review applies to this aspect of his

claim.

Davis also argues that we should review the deficiency prong of the Strickland test

de novo because the Michigan trial court did not address this prong. See Wiggins v. Smith,

539 U.S. 510, 534 (2003) (holding that the Supreme Court’s review was “not circumscribed

by a state court conclusion with respect to prejudice, as neither of the state courts below

reached this prong of the Strickland analysis”). Although the extent of the Michigan trial

court’s consideration of this issue is less than clear, we will analyze the deficiency prong of

Davis’s ineffective-assistance-of-counsel claim de novo because, even under that more

liberal standard of review, we conclude that his counsel was not deficient.

Davis argues that his trial counsel was constitutionally ineffective in failing to call

Washington as a witness, despite Davis’s request to the contrary. He asserts that Washington

would have testified that Davis had no knowledge of the carjacking and that Washington

acted alone. But Davis’s trial counsel explained to the state trial court why he decided not

to call Washington as a witness. The trial record reads, in relevant part:

My client has asked me to call Marco Washington as a witness and

you know the issue of Marco Washington. I told [Davis] I didn’t think it

was a good idea to call someone that would be a codefendant in the minds

of the jury who plead [sic] guilty. I think we agree on that. But more

importantly, as you know, I have to tell the Prosecutor what my plans are.

Ms. Dawson told me that if, in fact, Marco Washington got on the stand and

No. 08-1291 Davis v. Lafler Page 15

in essence exculpated Mr. Davis, that she would seek—I’m not saying she

would obtain, but she would send [sic] a warrant for perjury.

Also, Mr. Washington, since he hasn’t been sentence[d], still has the

Fifth Amendment Right. Given that, I just want to put on the record that, in

my opinion, I do not want to call Mr. Washington as a witness, and most

importantly, what [sic] he realizes he has certain rights. He may exercise

those rights and not testify. I don’t want to get to that point, Judge. I just

wanted to indicate that I’m not going to, as an officer of this court, call Mr.

Washington.

These statements provide us insight into defense counsel’s strategic decision not to

call Washington as a witness. First, he explained that he did not want the jury to associate

Davis with Washington given the fact that Washington had already pled guilty to the

carjacking. And in light of the prosecutor’s statement that she would seek to charge

Washington with perjury if he testified on behalf of Davis, counsel was concerned that

Washington would exercise his Fifth Amendment right to remain silent if called. The record

thus reflects that counsel carefully considered calling Washington as a witness in Davis’s

defense and made the strategic decision not to have Washington testify. “[S]trategic choices

made after thorough investigation of law and facts relevant to plausible options are virtually

unchallengeable; and strategic choices made after less than complete investigation are

reasonable precisely to the extent that reasonable professional judgments support the

limitations on investigation.” Strickland, 466 U.S. at 690-91.

Davis has not produced any evidence that defense counsel failed to adequately

investigate or consider the option of calling Washington to testify. Without proof to the

contrary, we must assume that counsel adequately considered the possibility, but ultimately

decided that the best strategy was not to present Washington’s testimony. See Carter v.

Mitchell, 443 F.3d 517, 532 (6th Cir. 2006) (holding that the defendant did not meet his

burden under Strickland where he failed to produce any evidence that his counsel declined

to investigate the defendant’s background before deciding not to call family members to

testify during the sentencing phase).

Davis relies on Poindexter v. Booker, 301 F. App’x 522 (6th Cir. 2008), among other

cases, to support his argument that defense counsel was ineffective. In Poindexter, this court

held that counsel, the same trial counsel that represented Davis in this case, was

constitutionally ineffective because he failed to investigate possible alibi witnesses. The

No. 08-1291 Davis v. Lafler Page 16

evidence in that case showed that two alibi witnesses accompanied Poindexter to meetings

with his counsel, one of whom later approached Poindexter’s counsel about the possibility

of testifying on Poindexter’s behalf. Id. at 529. But Poindexter’s counsel never interviewed

either witness. When asked why he failed to make use of these potential witnesses,

Poindexter’s counsel responded: “I can’t honestly give you an answer to that.” Id. The

court concluded that the “[f]ailure to investigate two alibi witnesses, particularly when the

witnesses both personally offered to provide testimony beneficial to Poindexter, is therefore

objectively unreasonable” and “not the product of sound trial strategy.” Id.

But Poindexter is distinguishable from this case. Here, defense counsel offered

several strategic reasons for not calling Washington to testify, unlike his failure to offer any

reasons for not interviewing potential alibi witnesses in Poindexter. Davis’s counsel did not

want to link Washington, who had already pled guilty to the carjacking, with Davis. Further,

counsel was concerned that Washington might choose to exercise his Fifth Amendment right

to remain silent if called to testify. And unlike the possible alibi witnesses in Poindexter,

who would have allegedly presented evidence that Poindexter was not even present when

the crime occurred, Washington’s testimony, as the district court noted, “would do nothing

to explain [Davis’s] presence at the restaurant, [Davis’s] abandoning the vehicle in which

he arrived at the restaurant, or his presence at the garage where the Navigator was being

stripped.”

Given the high level of deference that we must afford a defense counsel’s strategic

choices, we conclude that Davis has failed to “overcome the presumption that, under the

circumstances, the challenged action might be considered sound trial strategy.” Strickland,

466 U.S. at 689 (internal quotation marks omitted). He has thus failed to satisfy Strickland’s

deficiency standard. Because Davis failed to make the necessary showing of deficiency, his

ineffective-assistance-of-counsel claim fails and we need not address the prejudice prong.

See id. at 700 (“Failure to make the required showing of either deficient performance or

sufficient prejudice defeats the ineffectiveness claim.”).

III. CONCLUSION

For all the reasons set forth above, we AFFIRM the judgment of the district court.

No. 08-1291 Davis v. Lafler Page 17

____________________________________________________

CONCURRING IN PART AND DISSENTING IN PART

____________________________________________________

BOYCE F. MARTIN, JR., Circuit Judge, concurring in part and dissenting in part,

in which Judge Stranch joins. I agree with the majority’s conclusion that the district court

properly denied Davis habeas relief with respect to his insufficiency of the evidence claim.

However, I disagree with the majority’s conclusion that the district court properly denied

Davis habeas relief with respect to his ineffective assistance of counsel claim. I believe that

the district court abused its discretion in failing to grant Davis an evidentiary hearing to

allow him to further develop the factual basis for this claim. Thus, I would VACATE the

judgment of the district court and REMAND for an evidentiary hearing.

The rules governing federal habeas relief provide that: “If the petition is not

dismissed, the judge must review the answer, [and] any transcripts and records of state-court

proceedings . . . to determine whether an evidentiary hearing is warranted.” Rules

Governing § 2254 Cases, Rule 8, 28 U.S.C.A. foll. § 2254. We review the district court’s

decision not to hold an evidentiary hearing for abuse of discretion. Dixon v. Houk, 627 F.3d

553, 560 (6th Cir. 2010). However, several statutory provisions impose limitations on the

discretion of federal habeas courts to take new evidence in an evidentiary hearing. If a

prisoner has “failed to develop the factual basis of a claim in State court proceedings,” then

a federal court is prohibited from holding an evidentiary hearing unless the petitioner meets

1

certain statutory requirements. 28 U.S.C. § 2254(e)(2). Furthermore, “[b]ecause the

deferential standards prescribed by [AEDPA] control whether to grant habeas relief, a federal

court must take into account those standards in deciding whether an evidentiary hearing is

appropriate.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007). The Supreme Court has

recently clarified that “review under § 2254(d)(1) is limited to the record that was before the

state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 US __, 131

S. Ct. 1388, 1398 (2011). However, in this case I believe that AEDPA does not apply and

1

The United States has not challenged Davis’s request for a hearing on this ground, and in any

event Davis requested a hearing in state court and was diligent in attempting to document his claim.

No. 08-1291 Davis v. Lafler Page 18

both the deficiency prong and the prejudice prong of Davis’s ineffective assistance claim are

subject to de novo review.

The prejudice prong is subject to de novo review because the Michigan trial court,

the highest court to reach this issue, analyzed it under an improper standard. The trial court

held that Davis did not demonstrate ineffective assistance because he did not show that trial

counsel’s failure to call Washington “was prejudicial to the extent that but for that

deficiency, [Davis] would have had a more positive outcome at trial, which is necessary to

overcome the presumption of trial strategy.” People v. Davis, No. 02-4943-02, slip op. at

1 (Mich. Cir. Ct. Nov. 15, 2004) (emphasis supplied). The Supreme Court, in contrast, has

made clear that under the prejudice prong, Davis need only establish “a reasonable

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

have been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984) (emphasis

supplied). The Supreme Court emphasized that “a defendant need not show that counsel’s

deficient conduct more likely than not altered the outcome in the case.” Id. at 693. Rather,

“[a] reasonable probability is a probability sufficient to undermine confidence in the

2

outcome.” Id. at 694. The Michigan trial court clearly applied the incorrect standard. Cf.

West v. Bell, 550 F.3d 542, 553 (6th Cir. 2008) (holding that the state court used the wrong

standard for determining prejudice when it stated that the burden of proof was a

preponderance of the evidence rather than a reasonable probability). A “state-court decision

will certainly be contrary to our clearly established precedent if the state court applies a rule

that contradicts the governing law set forth in our cases.” Miller v. Stovall, 608 F.3d 913,

922 n.7 (6th Cir. 2010) (citing Williams v. Taylor, 529 U.S. 362, 405 (2000)). Thus, the

prejudice prong of Davis’s claim is subject to de novo review. See id. (holding that “we are

‘unconstrained by § 2254(d)(1) because the state-court decision falls within that provision’s

‘contrary to’ clause,’ and our review is de novo” (citing Williams, 529 U.S. at 406)); Dyer

v. Bowlen, 465 F.3d 280, 284 (6th Cir. 2006) (“When the state court issues a decision that

is contrary to federal law, we review the merits of the petitioner’s claim de novo.”).

2

The United States did not contest this point at oral argument.

No. 08-1291 Davis v. Lafler Page 19

The deficiency prong is subject to de novo review as well because the Michigan trial

court failed to address this prong. The trial court’s entire analysis of Davis’s ineffective

assistance claim reads:

Further, Defendant has not demonstrated ineffective assistance of counsel.

Defendant has not shown that the failure to call the perpetrator who pled

guilty to the carjacking was prejudicial to the extent that but for that

deficiency, Defendant would have had a more positive outcome at trial,

which is necessary to overcome the presumption of trial strategy.

Davis, No. 02-4943-02, slip op. at 1. The Michigan trial court found that Davis failed to

satisfy the prejudice prong, and it thus conducted no analysis on the deficiency prong. Cf.

Avery v. Prelesnik, 548 F.3d 434, 438 (6th Cir. 2008) (court did “not find in the record

evidence that the trial court seriously engaged in a complete Strickland prejudice analysis”).

The review provisions required by section 2254(d) apply only where there has been an

“adjudication on the merits” in a state court proceeding. Cf. Cullen, 131 S. Ct. at 1398 (“If

an application includes a claim that has been ‘adjudicated on the merits in State court

proceedings,’ § 2254(d), an additional restriction applies.”). Thus, the deficiency prong is

also subject to de novo review. See Wiggins v. Smith, 539 U.S. 510, 534 (2003) (holding that

the Supreme Court’s review was “not circumscribed by a state court conclusion with respect

to prejudice, as neither of the state courts below reached this prong of the Strickland

analysis”).

The question before us is thus whether the district court abused its discretion in

failing to grant Davis an evidentiary hearing, with the understanding that both prongs of his

ineffective assistance claim are subject to de novo review. “In deciding whether to grant an

evidentiary hearing, a federal court must consider whether such a hearing could enable an

applicant to prove the petition’s factual allegations, which, if true, would entitle the applicant

to federal habeas relief.” Schriro, 550 U.S. at 474. This Court has held that a habeas

applicant is generally entitled to an evidentiary hearing if he “alleges sufficient grounds for

release, relevant facts are in dispute, and the state courts did not hold a full and fair

evidentiary hearing.” Sawyer v. Hofbauer, 299 F.3d 605, 610-11 (6th Cir. 2002) (internal

quotation marks and citation omitted). There is no dispute that the state courts did not hold

a full and fair evidentiary hearing. Because AEDPA does not apply to Davis’s ineffective

No. 08-1291 Davis v. Lafler Page 20

assistance claim, and neither do the restrictions in Pinholster, I therefore consider whether

Davis has alleged sufficient grounds for release and whether relevant facts are in dispute.

An evidentiary hearing might have allowed Davis to prove under the deficiency

prong that “counsel’s representation fell below an objective standard of reasonableness.”

Harrington v. Richter, 131 S. Ct. 770, 787 (2011) (internal quotation marks and citation

omitted). It is objectively unreasonable for an attorney to make a decision to decline to call

a defense witness “without first investigating [the witness], or at least making a reasoned

professional judgment that such investigation was unnecessary.” Towns v. Smith, 395 F.3d

251, 260 (6th Cir. 2005). On the record before us, it is unclear to what extent trial counsel

investigated Washington or made a reasoned professional judgment that investigation was

unnecessary. There is no record of trial counsel having actually spoken to Washington.

Trial counsel explained during trial that he had three main reasons for his decision not to call

Washington as a witness: (1) he did not want the jury to associate Davis with Washington

given that Washington had already pled guilty to the carjacking; (2) he was concerned that

Washington would exercise his Fifth Amendment right to remain silent if called; and (3) the

prosecutor threatened to charge Washington with perjury if he testified. Only the first two

reasons relate to Davis’s interests as opposed to Washington’s. Trial counsel’s mere

articulation of some basis for his decision does not establish that his performance was

sufficient. Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000) (“The relevant question is not

whether counsel’s choices were strategic, but whether they were reasonable.”). Here, it is

not clear that trial counsel’s reasoning was sound. It may have been unreasonable for trial

counsel to presume that Washington’s guilty plea would undermine Davis’s case, because

the parties did not dispute that Washington had been the principal carjacker. Furthermore,

it may have been unreasonable for trial counsel to presume that Washington remaining silent

would undermine Davis’s case, because trial counsel did not appear to confirm that

Washington would remain silent and could have avoided promising the jury that Washington

would testify. On the record before us, there are serious questions as to whether his failure

to call Washington could have been sound trial strategy. Cf. Johnson v. Sherry, 586 F.3d

439, 446 (6th Cir. 2009) (evidentiary hearing was warranted to determine if trial counsel’s

failure to object constituted deficient performance when no court had conducted an

evidentiary hearing and it was difficult to see how the failure could have been strategic).

No. 08-1291 Davis v. Lafler Page 21

The majority repeatedly faults Davis—who was incarcerated and proceeding pro se—for not

introducing evidence that trial counsel failed to adequately investigate or consider calling

Washington. However, Davis was unable to gather and introduce such factual evidence

without a hearing. Thus, an evidentiary hearing was necessary to determine whether trial

counsel’s failure to call Washington constituted deficient performance.

An evidentiary hearing also might have allowed Davis to prove under the prejudice

prong “a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Harrington, 131 S. Ct. at 787 (internal quotation

marks and citation omitted). This court has repeatedly found prejudice resulting from trial

counsel failing to investigate or present favorable witnesses. See, e.g., Bigelow v. Haviland,

576 F.3d 284, 291-92 (6th Cir. 2009) (failure to investigate alibi witness); Ramonez v.

Berghuis, 490 F.3d 482, 491 (6th Cir. 2007) (failure to present three favorable witnesses);

Stewart v. Wolfenbarger, 468 F.3d 338, 357 (6th Cir. 2006) (failure to present alibi witness).

Although I join the majority opinion regarding Davis’s sufficiency of the evidence claim,

both the original panel decision in this case and the separate dissent on this issue show that

the claim presented a close question. Thus, the lack of overwhelming evidence of Davis’s

guilt provides support for a finding of prejudice. See Strickland, 466 U.S. at 696 (stating that

a “verdict or conclusion only weakly supported by the record is more likely to have been

affected by errors than one with overwhelming record support”). Furthermore, it was

inappropriate for the district court to presume that a jury would not find Washington

credible. See, e.g., Ramonez, 490 F.3d at 490 (stating that “in the context of evaluating

whether there is a reasonable probability that [a] witness’s testimony . . . would have

changed the outcome of the trial . . . our Constitution leaves it to the jury, not the judge, to

evaluate the credibility of witnesses”). This is particularly true in the absence of an

evidentiary hearing. See Blackledge v. Allison, 431 U.S. 63, 82 n.25 (1977) (“When the

issue is one of credibility, resolution on the basis of affidavits can rarely be conclusive.”

(internal quotation marks and citation omitted)); cf. Petty v. Metro. Gov’t of Nashville-

Davidson Cnty., 538 F.3d 431, 435 n.1 (6th Cir. 2008) (“[C]redibility determinations are

inappropriate for summary judgment.”). Thus, an evidentiary hearing was also necessary to

determine whether Davis could prove prejudice resulting from trial counsel’s failure to call

Washington.

No. 08-1291 Davis v. Lafler Page 22

Davis’s ineffective assistance claim alleges sufficient grounds for release, and

relevant facts are in dispute regarding both the deficiency and prejudice prongs. Cf. Sawyer,

299 F.3d at 610. Thus, I believe that the district court abused its discretion in failing to

conduct an evidentiary hearing on this claim, and I would VACATE the judgment of the

district court and REMAND for an evidentiary hearing.

No. 08-1291 Davis v. Lafler Page 23

_________________

DISSENT

_________________

KAREN NELSON MOORE, dissenting. The prosecution’s theory in this case is a

convenient one. The prosecution says that Tony Davis acted as a lookout while Marco

Washington committed a carjacking on March 27, 2002. But, as the prosecution

acknowledges, all Davis did was walk into a nearby restaurant before the carjacking, stand

at a window in the restaurant with a glass of water, and leave with Washington after the

carjacking. In other words, the prosecution’s theory is that Davis was a lookout who never

needed to sound the alarm, and it sought to prove Davis’s guilt through speculation alone.

“The web of inference[s] is too weak on these facts,” however, “to permit any rational trier

of fact, absent sheer speculation, to find beyond a reasonable doubt ” that Davis acted in

support of the impending carjacking. United States v. Sliwo, 620 F.3d 630, 637 (6th Cir.

2010) (internal quotation marks omitted).

To the contrary, the evidence presented by the prosecution here does not provide a

reasonable basis for inferring that Davis was present for the specific purpose of acting as a

lookout. If it did, then all that the prosecution would need to establish at trial in order to

attain a conviction for aiding and abetting is proof that an individual was present at the scene

of the crime and acquainted with the perpetrator. Under the standard of reasonable doubt,

however, we must distinguish between unsubstantiated speculation and reasonable inference.

Patrolling the border between the two is essential to avoid unreasonably applying the

sufficiency-of-the-evidence standard set out in Jackson v. Virginia, 443 U.S. 307 (1979).

Because I believe that the state court has unreasonably applied the Jackson standard by

permitting mere speculation to suffice in proving guilt, I respectfully dissent.

I. BACKGROUND LAW

Following the standard set forth in AEDPA, the critical question in this case is

whether the Michigan trial court’s denial of Davis’s claim of insufficient evidence was

contrary to, or an unreasonable application of, clearly established federal law. See 28 U.S.C.

§ 2254(d)(1). I agree with the district court that the state court incorporated the proper

federal standard, the sufficiency-of-the-evidence standard set out in Jackson v. Virginia, 443

No. 08-1291 Davis v. Lafler Page 24

U.S. 307, 309 (1979). As a result, the state court’s decision was not contrary to clearly

established law. I believe, however, that the state court’s determination that there was

sufficient evidence for a rational trier of fact to infer that Davis acted as a lookout was an

unreasonable application of that federal standard.

“The Constitution prohibits the criminal conviction of any person except upon proof

of guilt beyond a reasonable doubt” of each element of the offense. Jackson, 443 U.S. at

309; see also In re Winship, 397 U.S. 358, 364 (1970) (“[W]e explicitly hold that the Due

Process Clause protects the accused against conviction except upon proof beyond a

reasonable doubt of every fact necessary to constitute the crime with which he is charged.”).

This “doctrine requires more than simply a trial ritual,” it requires “that the factfinder will

rationally apply the standard to the facts in evidence.” Jackson, 443 U.S. at 316–17.

Nonetheless, “a properly instructed jury may occasionally convict even when it can be said

that no rational trier of fact could find guilt beyond a reasonable doubt.” Id. at 317.

“[W]hen such a conviction occurs in a state trial, it cannot constitutionally stand.” Id. at 318.

As a safeguard, a court faced with a sufficiency-of-the-evidence claim must

determine “whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Id. at 319. This “standard must be applied with explicit

reference to the substantive elements of the criminal offense as defined by state law.” Id. at

324 n.16. Furthermore, in a case governed by AEDPA, if the evidence is not sufficient to

support a conviction, we must next “ask whether the state court was objectively unreasonable

in concluding that a rational trier of fact could find [the defendant] guilty beyond a

reasonable doubt.” Stewart v. Wolfenbarger, 595 F.3d 647, 653 (6th Cir. 2010) (internal

quotation marks omitted). See also Williams v. Taylor, 529 U.S. 362, 409 (2000) (“Stated

simply, a federal habeas court making the ‘unreasonable application’ inquiry should ask

whether the state court’s application of clearly established federal law was objectively

unreasonable.”).

In Michigan, a conviction for aiding and abetting a crime requires the state to prove

beyond a reasonable doubt that

No. 08-1291 Davis v. Lafler Page 25

(1) the crime charged was committed by the defendant or some other person,

(2) the defendant performed acts or gave encouragement that assisted the

commission of the crime, and (3) the defendant intended the commission of

the crime or had knowledge that the principal intended it when the defendant

gave aid or encouragement.

Brown v. Palmer, 441 F.3d 347, 351 (6th Cir. 2006) (citing People v. Carines, 597 N.W.2d

130, 135 (Mich. 1999)). “Aiding and abetting” consists of all forms of assistance rendered

to the perpetrator of a crime, including all words or deeds that might support, encourage, or

incite the commission of a crime. Carines, 597 N.W.2d at 135. “Although intent is a

required element for the aiding-and-abetting offense, intent may be inferred from

circumstantial evidence.” Brown, 441 F.3d at 351 (citing People v. Wilson, 493 N.W.2d 471,

476 (Mich. Ct. App. 1992)); Carines, 597 N.W.2d at 135 (holding intent may be inferred

from all facts and circumstances). Several factors may be considered in determining intent,

including “a close association between the defendant and the principal, the defendant’s

participation in the planning or execution of the crime, and evidence of flight after the

crime.” Carines, 597 N.W.2d at 135 (internal quotation marks omitted).

There are limits, however, to how far inferences can be stretched from circumstantial

evidence. Significantly, “[m]ere presence, even with knowledge that an offense is about to

be committed or is being committed, is insufficient to show that a person is an aider and

abettor.” Wilson, 493 N.W.2d at 476; Brown, 441 F.3d at 351. The Michigan Supreme

Court has also held that “mere mental approval, . . . passive acquiescence or consent” are

insufficient to find a person an aider and abettor. Fuller v. Anderson, 662 F.2d 420, 424 (6th

Cir. 1981) (quoting People v. Burrel, 235 N.W. 170 (Mich. 1931)). “In other words, the

accused must take some conscious action designed to make the criminal venture succeed in

order to be guilty of aiding and abetting.” Id. (emphasis added).

Finally, under Michigan law, “[a] person cannot be convicted as an aider and abettor

on the basis that he was an accessory after the fact.” Hopson v. Foltz, No. 86-1155, 818 F.2d

866 (table), 1987 WL 37432, at *2 (6th Cir. May 20, 1987) (citing People v. Lucas, 262

N.W.2d 662, 662–63 (Mich. 1978)). Aiding and abetting of the crime must occur before or

during the commission of the crime. People v. Smith, Nos. 204474, 204476, 1999 WL

33453995, at *8 (Mich. Ct. App. Mar. 12, 1999).

No. 08-1291 Davis v. Lafler Page 26

A prior post-AEDPA habeas case from this court provides useful guidance. In

Brown v. Palmer, this court, applying Michigan law, held that there was insufficient

1

evidence that the defendant had aided and abetted carjacking. 441 F.3d at 351–53. The

facts presented at trial consisted of the following:

(1) Brown was present before and during the carjacking, (2) he and the

perpetrator were in the car together before the perpetrator committed the

offenses, (3) he stared at the victims while the perpetrator fired the shots, (4)

he never got gas even though he was parked near a gas pump, (5) he

attempted to flee as soon as the perpetrator drove off in the car, and (6) he

failed to contact the police to retrieve his car.

Id. at 351. The Brown court concluded that the evidence “clearly demonstrates that Brown

was present at the scene and had some acquaintance with the perpetrator. Beyond that,

however, the evidence pointing to Brown’s guilt becomes quite speculative.” Id. In

addition, the Brown court reasoned that flight from the scene was insufficient to support a

finding of guilt. Id. When a person flees from law enforcement, a jury may draw a

reasonable inference of guilt, but when a person merely flees the scene of a crime, such a

speculative leap ceases to provide reasonable evidence of guilt. Id. Thus, “[a]lthough the

facts viewed in the light most favorable to the state may have created ‘reasonable

speculation’ that Brown aided and abetted the carjacking and armed robbery,” there were no

facts “demonstrating that Brown in fact provided assistance or encouragement to the

perpetrator.” Id. at 352.

The Brown court also found persuasive two other cases from this court, both of

which addressed similarly speculative evidence that was insufficient to support a conviction.

In Fuller v. Anderson, the petitioner allegedly acted as a lookout while another person

committed arson by throwing a Molotov cocktail at the victim’s home. 662 F.2d at 421–23.

1

In order to be clearly established law, the law relied on by the habeas petitioner must be law that

was clearly established at the time the state court decision became final, not afterward. Williams v. Taylor,

529 U.S. 362, 380 (2000). Moreover, the law must be that “determined by the Supreme Court.” Id. at

381–82. As we have observed,

Although only Supreme Court case law is relevant under the AEDPA in examining what

Federal law is “clearly established,” the decisions of the United States Courts of

Appeals may be informative to the extent we have already reviewed and interpreted the

relevant Supreme Court case law to determine whether a legal principle or right had

been clearly established by the Supreme Court.

Hill v. Hofbauer, 337 F.3d 706, 716 (6th Cir. 2003).

No. 08-1291 Davis v. Lafler Page 27

Evidence was presented that the petitioner “stood guard,” “turned his head from side to side

more than twice,” and ran away with the perpetrator after the arson. Id. at 424. Yet the

Fuller court held that, although this evidence permitted speculation that the petitioner was

involved in the crime, there was no evidence from which a jury could reasonably infer that

the petitioner intended to burn the home. Thus, the evidence was “insufficient to establish

beyond a reasonable doubt that Fuller took conscious action to aid [the perpetrator’s]

commission of arson.” Id.

In Hopson v. Foltz, the petitioner was tried for aiding and abetting second-degree

murder in Michigan. 1987 WL 37432, at *1. At trial, the government presented evidence

that: the petitioner and victim were seen with two other individuals arguing in a bar when

a comment was made to the victim implying a threat of serious injury; just prior to the

shooting, the petitioner and victim were seen arguing on a street corner; the perpetrator

arrived in a car and removed a gun from his trunk; several shots were fired; and the petitioner

was observed leaving an alley and walking to his house where he appeared to hand

something to someone inside. Id. The state theorized that the petitioner had taken spent

shotgun shell casings to the individual in the house. Id.

Nonetheless, the Hopson court held that the testimony “indicates at most [that the

petitioner] was present at the shooting, that he may have argued with the victim during the

evening prior to the shooting, that he may have known that someone else intended to harm

[the victim], and that he may have taken the empty shell casing after the shooting.” Id. at *2.

The court found that there was no proof that the petitioner acted in concert with the

perpetrator or that he “did anything to support, encourage, or incite the commission of the

crime.” Id. The Hopson court therefore concluded that, although the petitioner’s statements

may have shown animus, they could not be construed as encouragement. Id. at *2.

Furthermore, although taking the shell casings may have rendered Hopson an accessory after

the fact, the evidence could not support a conviction as an aider and abettor. Id. The

evidence, according to the court, was simply insufficient to establish guilt beyond a

reasonable doubt. Id.

No. 08-1291 Davis v. Lafler Page 28

II. THE EVIDENCE

With these cases in mind, a close look at the circumstantial evidence in this case

shows that the state court’s application of Jackson v. Virginia to Davis’s conviction was

“objectively unreasonable.” Williams, 529 U.S. at 409. The case against Davis comes down

to evidence that Davis was present for the commission of the carjacking, was acquainted

with the perpetrator, and was found working on the car after the crime. The prosecution

adduced no evidence that Davis acted in a way that would indicate specifically that he

functioned as a lookout. At most, the evidence indicates that Davis knew or had reason to

know of the carjacking; it provides no basis, however, for a jury to conclude beyond a

reasonable doubt that Davis did anything to assist the commission of the crime. Because

“mere presence, or even knowledge, that a crime is about to be committed is insufficient to

prove guilt under an aiding-and-abetting theory,” Brown v. Palmer, 441 F.3d 347, 351 (6th

Cir. 2006), the conviction violates due process. A contrary result cannot be reconciled with

this court’s prior decisions.

Association. Although the facts establish that Davis was at the scene, Brown makes

clear that presence alone is not enough to infer participation. The majority attempts to

distinguish Brown by pointing to the fact that Davis and Washington arrived at the scene

together. From their arrival together, the majority derives “a compelling inference that

[Davis and Washington] were previously acquainted.” Maj. Op. at 9. As an initial matter,

the defendant in Brown claimed that he had just met the perpetrator, and the prosecution

could not prove otherwise because they never discovered the perpetrator’s identity. Brown,

441 F.3d at 349, 353. The Brown court noted, moreover, that, “the evidence clearly

demonstrates” that the defendant and perpetrator had “some acquaintance.” Id. at 351. In

any event, this factual distinction is not material. The fact that one man knows another does

not permit a reasonable inference that the first participated in the second’s scheme. Only

by making a series of tenuous inferential jumps can mere acquaintance provide proof that

an individual acted in support of the commission of another’s crime.

The majority also decries “the lack of any proof to refute the circumstantial evidence

that Davis and Washington were previously acquainted.” Id. at 10. This, however, is simply

an attempt to double-count the evidence of their acquaintance. Davis does not bear the

No. 08-1291 Davis v. Lafler Page 29

burden of disproving his guilt. Even if Davis were a lookout who simply never needed to

sound the alarm, the prosecution must still prove that he in fact served as a lookout. Under

the majority’s opinion, an acquaintance passively present at the scene must prove that her

innocent actions were in fact innocent.

The fact that Davis and Washington arrived at the scene together therefore does

almost nothing to show that Davis acted as a lookout. It certainly is not enough to overcome

reasonable doubt.

Observation. Nor is there evidence that Davis engaged in incriminating behavior

while the carjacking was taking place. During the carjacking, the evidence establishes that

Davis entered the restaurant, ordered water, and remained in the restaurant until the crime

was over. The prosecution asserts that this is circumstantial evidence of Davis’s role as a

lookout. But the Fuller court determined that more is required to overcome reasonable

doubt. In Fuller, testimony that the defendant stood near the crime scene and looked around

for several minutes while watching the perpetrator commit the crime was insufficient to

establish proof that he acted as a lookout. In this case, there is no evidence that Davis even

looked around, much less that he signaled to Washington in any way.

Similarly, in Brown, evidence that the defendant stared at the crime as it unfolded

was insufficient to support a finding of guilt. In this case, one of the victims testified that

Davis stood at the window during the crime. The testimony does not identify which window

Davis was standing near—the large window that forms part of the restaurant’s facade or the

service window inside the restaurant. The prosecution presented no testimony that Davis

faced the parking lot or even looked in the direction of the crime scene. Nor did the

prosecution suggest that Davis took any action to prevent anyone in the restaurant from

leaving or seeing the crime taking place—i.e., there was no evidence that Davis created a

distraction. In any event, assuming that Davis was watching the crime from the large front

window of the restaurant, we held these same facts in Brown—watching the crime as it

unfolded—to be insufficient evidence of aiding and abetting.

Coordination. In the majority’s view, Davis’s actions during the carjacking show

that Davis was able to “closely coordinate[]” his actions with Washington’s because he was

“watching the carjacking unfold.” Maj. Op. at 9. In support of this notion, the majority

No. 08-1291 Davis v. Lafler Page 30

points out only that Davis exited the Cavalier at the same time as Washington and that Davis

left the restaurant right after Washington committed the carjacking. To be sure, there is

testimony that Washington drove up to the restaurant after the carjacking and that Davis left

the restaurant and entered the stolen vehicle. Washington then drove the car away. This

testimony permits the inference that Davis was aware that the carjacking had been

committed. But that Davis knew the crime was committed after the fact says nothing about

what he did in support of its commission. Indeed, there is no evidence that Davis did

something particular to the role of a lookout. Without this evidence, the prosecution has not

proved its case that Davis acted in support of the carjacking as opposed to his merely being

present for and failing to object to the commission of the crime. Again, the majority here

relies on evidence of association to infer guilt because there is no other evidence linking

Davis to the actual planning or commission of the carjacking.

The majority also finds inferences to be drawn from the fact that “Davis fled the

scene in the stolen vehicle” and he “purposely chose to enter the SUV that he had just seen

his companion carjack,” rather than the Cavalier. Maj. Op. at 9. In both Brown and this

case, the defendant and perpetrator were seen together before commission of the crime, the

defendant allegedly stood watch during the crime, and the defendant fled. Flight from the

scene of a crime, however, is “fully consistent with [a defendant’s] desire to avoid a

confrontation with” anyone nearby. Brown, 441 F.3d at 352. It is thus “distinguishable from

the inference of guilt that arises when one flees from a law enforcement officer.” Id. Here,

the victims of the crime were still in the parking lot. Consequently, the fact that Davis left

the restaurant and got into the car does not establish that Davis was encouraging, supporting,

or inciting the carjacking. It therefore would not permit any rational juror to conclude

beyond a reasonable doubt that Davis acted as a lookout.

Indeed, the facts in Brown were more suggestive of guilt than the facts in this case.

In Brown, the prosecution presented direct evidence that the defendant watched the crime

take place and fled the establishment without using any of its services. Here, the evidence

established only that Davis stood by a window and left with the defendant. Yet the Brown

court granted the writ of habeas corpus, despite applying AEDPA deference, because “none

of this evidence suggests that Brown assisted or encouraged the gunman in the

. . . carjacking.” Brown, 441 F.3d at 353. These facts alone could not prove that the

No. 08-1291 Davis v. Lafler Page 31

defendant acted as a lookout because merely being present at the scene was insufficient to

establish beyond a reasonable doubt that Brown aided and abetted the crime. As in Brown,

it is unreasonable to conclude that this evidence establishes beyond any reasonable doubt

that Davis acted as a lookout.

Post-Crime Conduct. Finally, the fact that Davis was found stripping the car several

hours after the crime does not reasonably lead to the conclusion that Davis encouraged

Washington in the commission of the carjacking. This fact provides evidence that Davis was

an accessory after the fact; however, assisting after the fact is not sufficient to find Davis

guilty of aiding and abetting the carjacking crime itself. See Hopson, 1987 WL 37432, at

*2 (holding that post-crime conduct does not support finding beyond a reasonable doubt that

defendant aided crime). After-the-fact-assistance, without more, shows only that Davis was

aware of, but merely acquiesced in, the carjacking by Washington. It therefore does nothing

to remove the reasonable doubt of any rational juror concerning whether Davis actually was

a lookout.

***

Ultimately, the majority cannot identify precisely what Davis did in support of the

carjacking. The majority states that a reasonable jury could find that “Davis served as a

lookout and/or helped plan the carjacking.” Maj. Op. at 11. At another point, the majority

speaks of “the strong circumstantial evidence that Davis was involved in the planning and

execution of the carjacking.” Id. at 13. Surely a “strong” inference that he was

“involved”—without a more precise explanation of his role in the offense—cannot suffice

to show criminal liability. The majority’s reasoning simply fails to focus on what the

evidence actually shows about Davis’s alleged acts in support of the crime of aiding and

abetting the carjacking. This imprecision belies the difficulty in piling inference upon

inference from unrevealing pieces of circumstantial evidence.

Taking the facts together in the light most favorable to the prosecution, there is

reason to speculate that Davis acted as a lookout for Washington’s crime; however, sheer

“speculation” does not constitute “sufficient evidence” under Jackson. Brown, 441 F.3d at

352. This is especially so in view of precedent regarding innocent acts which are insufficient

to support a conviction for aiding and abetting. Thus, no rational trier of fact could infer

No. 08-1291 Davis v. Lafler Page 32

beyond a reasonable doubt that Davis performed an act or provided encouragement before

or during the commission of the carjacking—a necessary element of the charge of aiding and

abetting. This case, therefore, is not one in which the state court’s decision is “at least

minimally consistent with the facts and circumstances of the case,” Hennon v. Cooper, 109

F.3d 330, 335 (1st Cir. 1997), nor is it “one of several equally plausible outcomes,” Hall v.

Washington, 106 F.3d 742, 749 (7th Cir. 1997). Rather, it is “so inadequately supported by

the record . . . as to be unreasonable.” Maynard v. Boone, 468 F.3d 665, 671 (10th Cir. 2006)

(quoting Badelle v. Correll, 452 F.3d 648, 655 (7th Cir. 2006)).

I believe that the inferences in this case are insufficient to permit any rational juror

from finding that Davis acted as a lookout. Were there at least some evidence that Davis did

something particular to the role of a lookout, then it would be appropriate to deny relief.

Because such evidence is not present in this case, I respectfully dissent.