Davis v. Lafler

IV. conclusion,we search of hold Amendment, Fourth truck violates the resulting from that that all evidence suppressed. Trooper Bar-

search must be stop scope exceeded

ragan Zil-

extensively Macias and questioning purpose matters unrelated

lioux on itinerary trip. of their He thus uncon-

stitutionally the detention be- prolonged necessary investigate

yond the time justified stop.

circumstances

Moreover, suspi- there was no reasonable activity of additional criminal

cion detention. justify prolonged such a

would if that even actu-

We further hold Macias’s voluntary,

al such consent consent was act of free will. Be- independent

not an is all evidence of search thus

cause being other in- and there no

suppressed, to convict

culpatory evidence sufficient possession being a felon of a

Macias

firearm, judgment of conviction RE- VACATED, case

VERSED entry judgment of a

REMANDED

acquittal.

REVERSED, VACATED, and RE-

MANDED.

Tony DAVIS, Petitioner-Appellant, LAFLER, Warden,

Blaine

Respondent-Appellee.

No. 08-1291. of Appeals,

United States Court

Sixth Circuit. March 2011.

Argued: 3,Oct.

Decided and Filed: Myers, S.

ARGUED: Micah Wilmer LLP, Hale and Dorr Pickering Cutler D.C., Laura Washington, Appellant. for Cook, Michigan Attorney A. Office General, Michigan, Lansing, Appellee. for Myers, S. BRIEF: Micah Wilmer ON LLP, Pickering Hale Dorr Cutler D.C., grounds Laura now consider the two for Washington, Appellant. for We Cook, Michigan Attorney peti- Office of the relief that raises his A. habeas General, tion: there evi- Lansing, Michigan, Appellee. was insufficient dence to conviction for BATCHELDER, Judge; Before: Chief abetting a carjacking, that his COLE, MARTIN, BOGGS, MOORE, refusing trial counsel ineffective CLAY, GILMAN, GIBBONS, ROGERS, Washington, already call Marco who had SUTTON, COOK,-McKEAGUE, pled guilty to the actual as a carjacking, GRIFFIN, KETHLEDGE, and below, witness. For the reasons set forth STRANCH, Judges.* Circuit judgment we AFFIRM the of the district court. GILMAN, J., opinion the of delivered court, BATCHELDER, C.J., in which the I. BACKGROUND BOGGS, ROGERS, SUTTON, GIBBONS, denying petition Davis’s for a writ of COOK, McKEAGUE, GRIFFIN, and corpus § habeas under 28 the U.S.C. KETHLEDGE, MARTIN, JJ., joined. J. provided district court following the sum- 538^2), (pp. opinion delivered a separate mary of relevant the facts: concurring part dissenting in in part, and of a Petitioner’s convictions arise out STRANCH, J., MOORE, which joined. carjacking that occurred in the parking 542-48), (pp. separate J. delivered a Detroit, Michigan. lot of a restaurant dissenting opinion, in which and COLE that, Franklin Clarence on testified CLAY, JJ., joined. approximately March 10:00 p.m.’, stopped he at the China One Res- OPINION taurant, along with his fiancee Yvonne GILMAN, RONALD LEE Circuit Depriest 12-year-old and daughter,

Judge. Johnson. Brittany parked Franklin his Navigator. Lincoln daugh- He and his Tony Davis was a Michigan convicted ter went into the get restaurant to food of and abetting carjacking Depriest and remained in of the vehicle. receiving concealing and and stolen waiting After for approximately ten min- property. He filed an application for leave utes, got Franklin his the appeal food and left Michigan to his conviction with the restaurant. As he was saw leaving, he Appeals Court and the Su- Petitioner enter the restaurant. preme Court. Both courts denied Davis’s application for lack of merit. Davis then Franklin testified that Brittany sat sought a writ of corpus got habeas federal the backseat of the vehicle and he court, pursuant § to 28 to U.S.C. into the driver’s seat. his As he closed challenge door, his state-court conviction for aid- Washington approached Marco the and ing abetting carjacking. The district vehicle and ordered Franklin exit to [] court denied Davis A prior habeas relief. the Washington pointed vehicle. a .9- panel this court judgment reversed the mm at Franklin or- weapon again and court, the Franklin, district full him but out of the dered vehicle. panel vacated decision Brittany Depriest and set case and exited the vehicle. rehearing en banc. drove Washington the vehicle to * White, The Honorable Helene N. Circuit this case. decision of Judge, part took no in the consideration or key garage. er inside the Petitioner exit- the restaurant.

front of got pas- Washington’s Navigator into was found the restaurant ed Navigator. The Nav- senger seat pocket. parking then driven

igator was charged in an originally Davis was In- lot. robbery and formation with armed car- approx- vehicle was located Franklin’s jacking, pled guilty. he not which After later hours later. Franklin imately two evidence, Information the close as man with identified an additional amended include count of as he person and Petitioner gun receiving concealing property stolen the restaurant. saw inside $20,000. valued at over The state Mich- testified that she Depriest Yvonne igan tried Davis for the under Navigator while Franklin in the waited theory. Davis aiding-and-abetting did into the restaurant. Brittany went defense, testify in his own gray Chevrolet Cavalier She observed not to call defense counsel decided Wash- lot. She saw someone parking enter the request Davis’s ington testify despite and enter restaurant. vehicle exit the as a Washington be called witness. Brittany to and returned Franklin When carjacking convicted Davis of and a car, heard someone cock Depriest the receiving concealing property and val- they exit the vehi- gun demand and $20,000, him at over found ued but the ear. She testi- They all exited cle. guilty armed-robbery charge. on the then the res- that Petitioner exited fied trial, newly help After with the got passenger ap- into the side taurant and counsel, moved the pointed of the vehicle. Davis state on that, trial court to dismiss his conviction the as she Brittany testified Johnson (1) for their waiting father were bases there insufficient evi- and her food, entered the restaurant aiding Petitioner conviction for support dence his glass (2) a water. She and asked for his carjacking, and a and trial abetting Washington as the man who identified constitutionally in counsel was ineffective gun- them out of their vehicle forced a refusing to call as witness. as the point, and identified Petitioner his supporting an affidavit ineffective- it the vehicle before man who entered claim, Davis assistance-of-counsel stated way. drove Washington would admit to his belief that Konczal of the Officer Scott Police carjack- being sole Department testified the Police Detroit involved in ing and that Davis was not to a partner responded and his he [sic] offense. had men that someone observed call Davis’s The state denied mo- trial court on Navigator a Novara Street stripping tion. It reasoned that Officer Konczal testified in Detroit. light in a viewed most [t]he evidence a partner approached he and his prosecution favorable to the sufficient behind a vacant home. garage located aided and to find that Defendant abetted to be a A man who the officers believed in Defendant arrived in carjacking. something garage yelled into lookout perpetrator, the same car with the went apprehended He was later and fled. only ordered a into restaurant Anthony Johnson. Of- and identified as man took another cup water while run person Konczal saw second ficer car at Defendant immediate- gunpoint. gave garage. He chase from the vehicle two ly got into the stolen Offi- Washington. Marco apprehended found disman- and a half hours later was Petition- partner KonczaJ’s arrested cer in a An tling garage application on the eastside of for a writ of habeas cor- It town. reasonable inference from pus on behalf of a person custody in undisputed evidence that Defendant pursuant judgment to the of a State preplanned his role court shall not granted respect be thereby satisfying the intent element of adjudicated claim that was on the abetting carjacking.... proceedings merits State court unless deliberately got The fact that Defendant adjudication claim— into the stolen vehicle and not the car in resulted a decision that was which he arrived than indicates more to, contrary or involved an unreason- just presence mere and circumstance. of, application clearly able established claim The court also denied Davis’s law, Federal as determined ineffective, trial concluding counsel was Supreme States; Court of the United that Davis had failed to show that “but or for” his counsel’s failure to call Washing- resulted a decision that was ton, positive Davis “would have had a more based on an unreasonable determina- outcome at trial.” tion of the in light facts of the evi- petitioned Court of dence presented in the State court Appeals for leave to appeal file an on proceeding. essentially the same present- bases that he “ 2254(d) Section a ‘high creates ed the trial court of his ly deferential evaluating standard for motion to dismiss his conviction. re- His rulings,’ state-court which demands that quest appeal in a denied one-sen- state-court given decisions be the benefit tence sought order. He next ap- leave to Visciotti, of the doubt.” v. 537 Woodford peal Michigan to the Supreme Court on 19, 24, 357, U.S. 123 S.Ct. 154 L.Ed.2d 279 grounds. the same That court also denied (2002) (quoting Murphy, Lindh v. 521 U.S. request his in a one-sentence order. Davis 320, 7, 2059, n. 333 117 S.Ct. 138 L.Ed.2d petition then filed a for writ of habeas (1997)). 481 A state-court decision is con corpus § under 28 2254 in U.S.C. the Unit- trary clearly to established federal law ed States District Court for the Eastern only “if the state court arrives at a conclu District Michigan, raising the same opposite sion to that by reached [the Su grounds for relief presented that he had preme on a question of or if Court] law state court. The district court issued state court differently decides case than opinion denying petition. order Supreme [the on a has set of mate Court] appeals Davis now that decision. rially indistinguishable facts.” Williams v. Taylor, 362, 413,

II. 529 U.S. ANALYSIS 120 S.Ct. (2000); Palmer, 146 L.Ed.2d 389 Brown v. A. Standard of review (6th Cir.2006) 441 F.3d 350 (quoting We review the district legal court’s Williams). conclusions in a proceeding habeas de novo “Under appli the ‘unreasonable and its factual findings under the dear- clause, cation’ a federal may habeas court Mitchell, error standard. Awkal 613 grant the writ if the state court (6th identifies Cir.2010) (en banc). 638 the correct governing legal principle Our review of Michigan state-court [Supreme Court] decisions but unreason governed decisions this case is by the ably applies following principle standards set forth in to the Anti- the facts of Williams, terrorism and Penalty prisoner’s Effective Death Act case.” 529 U.S. (AEDPA), 2254(d): 413, 120 § 28 U.S.C. at S.Ct. 1495. federal habeas “[A] evidence, weigh the and to simply mony, issue writ be- draw may not indepen- court concludes its facts cause that reasonable inferences from basic the relevant state- judgment ap- dent ultimate facts.” Id. This standard clearly established applied court decision explicit the sub- plied “with reference to incorrectly. erroneously or law federal elements of offense stantive the criminal as un- Rather, also be application must n. by state law.” at 324 defined Id, 120 S.Ct. reasonable.” 2781. And because both the Jackson S.Ct. apply AEDPA Virginia standard and addition, findings factual claims, “the defer- Davis’s law commands un presumed court are correct the state First, two levels in this case: ence presents clear and con petitioner less should be to the trier-of- given deference contrary. to the vincing evidence verdict, Jackson; contemplated by fact’s as 2254(e)(1). adjudi § decision “[A] U.S.C. second, deference given should be court and on the merits in a state cated Michigan consideration of [trial court’s] factual will not based on a determination verdict, by the trier-of-fact’s as dictated grounds on factual unless be overturned Palmer, of the AEDPA.” objectively light unreasonable See Tucker v. 541 F.3d pro (6th Cir.2008). presented the state-court evidence Hudson, Ayers v. 623 F.3d ceeding.” To convict Davis Cir.2010) omitted) (6th (brackets abetting the of Michi carjacking, the state Cockrell, Miller-El v. (quoting gan prove beyond had to a reasonable 1029, 154 L.Ed.2d 931 doubt that (2003)). (1) the crime committed charged AEDPA, the last Under we review person, defendant or some other decision to reach the merits state-court performed gave the defendant acts or being claims considered. particular encouragement that assisted the com- 592, 599 Bagley, Johnson v. crime, the defen- mission Cir.2008). The trial court was dant intended commission of court to the merits of the last state reach princi- crime or had that the knowledge sufficiency-of-the-evidence both Davis’s pal gave intended when the defendant ineffective-assistance-of-counsel encouragement. aid or claims. Brown, 441 (citing People F.3d at 351 v. Carines, 460 Mich. 597 N.W.2d Sufficiency of B. the evidence (1999)). phrase ‘aiding “The and abet 135 v. Virginia, In Jackson ting’ includes all actions words or (1979), 61 560 L.Ed.2d might encourage, support, defendant the standard Supreme Court set forth or incite the of the crime.” commission Id. sufficiency of the challenges based on Palmer, People v. Mich. (citing 392 evidence, ques holding that “the relevant (1974)). “An 220 N.W.2d 397 aider whether, viewing after the evidence tion is may and abettor’s state of mind be in prosecu most to the light favorable ferred from all the facts and circum tion, have any rational trier of fact could Carines, at stances.” 597 N.W.2d. 135 of the crime found the essential elements (hold (internal omitted) quotation marks 319, a reasonable Id. at beyond doubt.” ing that evidence and “[c]ircumstantial (emphasis original). S.Ct. arising that ev reasonable inferences full “gives Virginia standard Jackson satisfactory proof can idence constitute responsibility of the trier play to the (internal quota- of a to resolve in the testi- the elements crime” fairly fact conflicts “ omitted)). may ‘Factors that from the restaurant tion marks was found near the in- determining be considered [in intent] garage. between the de- clude a close association argues permits Davis that this evidence principal, the defendant’s fendant and nothing speculation more than that he or participation planning in the execution played carjacking a role in the itself or crime, flight of the and evidence of after requisite that he had the criminal intent. (internal quotation Id. marks crime.” established, He asserts that facts “[t]hese omitted). presence, or “But mere even most, acquiescence at and after-the-fact knowledge, that a crime is about to be assistance, neither which suffices for prove guilt is insufficient to un- committed conviction.” specifically relies on theory.” an aiding-and-abetting der Palmer, Brown v. 441 F.3d 347 Cir.

Brown, (citing People 2006), argument Wilson, Mich.App. 493 N.W.2d Michigan trial court’s conclusion to the (1992)). 471, 476 contrary application unreasonable The evidence introduced at trial Virginia of the Jackson v. standard. (1) showed that Davis arrived at the res Brown, this court held that there was place taurant where the took and an unidentified third insufficient evidence to find the defendant (2) Cavalier; person a Chevrolet Davis guilty abetting carjacking. entered the restaurant while two of the 351-53. The evidence in Brown (3) inside; Washington victims were stood (1) showed that Brown parked a car per outside the restaurant while the third (2) station; gas at a perpetrator exited (4) Cavalier; stayed son in the Davis did gas station’s store and entered food, not order but rather asked for a Brown’s car for an apparent- unstated but (5) water; cup of after the two victims (3) ly very time; period brief Brown enter, inside the restaurant left to their then pulled gas pump forward to a and the Navigator join Lincoln SUV and a waiting (4) car; perpetrator exited Brown’s passenger, Washington ordered all three immediately pointed a gun at of the victims out gun of the vehicle at sedan, attending a man to a Buick fired his (6) point; Davis stood at the window inside gun the direction man as the the restaurant while the carjacking was away, latter ran then entered the Buick (7) occurring; Washington drove the sto off; and drove Brown watched this len SUV a few feet toward the restaurant car, occur from the driver’s seat of his stopped, at which point Davis immedi after which he attempted to drive off him- ately SUV; hopped walked out and into the self, snow; but his. tires skidded in the (8) Washington then away drove from the owner, the Buiek’s who had been walking (9) scene with passenger; Davis as a the gas from the station’s store toward his car person third in who was the Cavalier drove occurred, when the carjacking ran over to (10) them; off after roughly two-and-a-half punched Brown’s car and in Brown the later, Davis, Washington, hours and one (7) face; immediately Brown told the other man caught stripping were the SUV just Buick’s owner that he had met the in a dilapidated garage behind aban perpetrator a few minutes before had and (11) house; doned lying Davis was found (8) ride; simply give offered to him a aided flat on in garage, working his back the friend, by a grabbed the Buick’s owner underneath the po stolen SUV when the Brown, car, (12) pulled him from arrived; the and drove lice and the Cavalier in which police report; Davis and it to a station to file a Washington drove to the restau rant trailing and that was seen the SUV Brown failed to retrieve his car after- Washington expecting Davis to wards; was never was perpetrator and the (without any contempora- at 349. enter the SUV apprehended. them) that neous communication between misplaced on Brown is Davis’s reliance Washington just had stolen. The between the factual differences because easily could conclude from evidence First, there are material. these two cases in planning that Davis was involved the that Brown arrived at the no evidence In con- carjacking. execution of the and Brown in fact perpetrator. the scene with trast, perpetrator the in Brown did not just met the man a claimed that he had carjacked earlier, gas at the Brown to enter presumably minutes wait for few Here, Brown, at the Buick, Davis arrived station itself. it towards and did drive compel- Washington, raising scene with crime to indicate that nothing did after the they previously were ling inference that in working were tandem. the two acquainted. lack Another difference here is the Second, of Brown and the behavior any to refute the circumstantial evi- proof carjacking during Davis before Washington were dence that Davis in engaged Brown significantly. differed Brown, contrast, in previously acquainted. that he was in- acts to indicate no overt any knowledge denied advance about the in his simply in the crime. He sat volved knowing and denied even the crime unfold in front car and watched they gas until met at the sta- him, dismay. professed to his shock Furthermore, tion. Brown made these de- hand, Davis, the other exited the Cava- on immediately nials after the crime and thus Washington, entered the restau- lier with an exculpatory had little time to fabricate rant, food, and stood at failed to order story. have had no Davis would window. Finally, Washington Davis and were closely coordinating his way other of so breaking found down stolen SUV if he had Washington actions with those of shortly carjacking. Although after actively watching what was tak- not been this act itself does not constitute short, place. Davis’s behavior dur- ing abetting carjacking, the overall crime was far closer to that of a ing the sequence greatly strengthens than Brown’s. of events coconspirator against circumstantial case Davis. Pieces key difference between this Another of evidence are not to be viewed case and Brown is Davis fled vacuum; rather, they are viewed in rela- vehicle. Because Davis scene the stolen tion to the other evidence the case. See Cavalier, crime scene in the arrived Welch, States v. 150- United subsequently followed the and the Cavalier (6th Cir.1996) (concluding that the cir- SUV, just easily carjacked he could as totality” evidence “in its car. Davis cumstantial departed have same guilty to enter SUV be- purposely instead chose sufficient to find the defendant doubt). just car- companion that he had seen his yond Together a reasonable jack. evidence, the other circumstantial the fact that Davis and were continu- For Brown to control the outcome they ously together from the time that case, needed to Brown would have carjacking until arrived at the scene of gas perpetra- at the station with the arrive stripping the they caught were SUV—es- occur, tor, and then watch the sentially sharing proceeds in the Buick to drive off with enter stolen strong of Davis’s crime—is evidence here is far pattern The fact perpetrator. v. abetting carjacking. People See because it indicates incriminating more 534 130, AEDPA,

Carines, 750, AEDPA. Mich. 597 standards of Under we 460 N.W.2d (1999) that a close association (holding may 135 reverse a state court’s decision that principal, and the between the defendant correctly applied identified and con- .the crime, are flight after the evidence trolling Supreme only Court if precedent may factors that be considered deter application precedent of that was “ob- mining aiding-and-abetting intent in an unreasonable,” jectively meaning “more case); Allen, 98, People Mich.App. v. 201 Wiggins, than incorrect or erroneous.” (“Circumstan 869, 505 871 N.W.2d (cita- 520-21, 539 2527 U.S. 123 S.Ct. tial evidence and reasonable inferences quotation tions and internal marks omit- from that evidence arising can constitute ted); Andrade, Lockyer see also v. 538 satisfactory proof of the elements of a 1166, U.S. 123 S.Ct. 155 L.Ed.2d crime.”). (2003) (“It enough 144 is not that a federal court,

Given the material differences between independent habeas in its review of Brown, strong this case and and the cir- legal question, is left with a firm con- evidence Davis served as cumstantial that the viction state court was erroneous.” helped plan carjack- a lookout and/or (internal omitted)). quotation marks ing, grant we find no basis to Davis habeas precise “objectively definition of un in light relief of the AEDPA deference Maynard reasonable” remains elusive. v. obligated key that we are to apply. The (10th Boone, 665, 468 F.3d 670-71 Cir. granting reason for habeas relief in Brown 2006) (discussing the failure of most feder that the evidence there was deemed phrase al courts to further define the “ob speculative too for a to find Brown jectively unreasonable” and collecting guilty beyond a reasonable doubt. See cases). circuits, Several of our sister how Brown, 441 light F.3d at 352-53. But in ever, attempted have clarify the term. standard, AEDPA’s deferential Brown was explained The First has that “if Circuit it very case, close case. The on question close whether the state deci hand, the other contains additional facts error, sion then the state decision supporting jury’s verdict that make the cannot application,” be unreasonable cry being “objectively verdict a far “ and that ‘some increment of incorrect Smith, Wiggins v. unreasonable.” See 539 ” beyond required.’ ness error is McCam 510, 520-21, U.S. (1st Hall, bridge v. 303 F.3d Cir. L.Ed.2d 471 that a (explaining state (en 2002) banc) (quoting approval “objectively court’s decision must be un- Stone, (2d Francis S. v. 221 F.3d relief); reasonable” to merit habeas see Cir.2000)). Steele, also White v. 602 F.3d 709-11 (6th Cir.2009) (distinguishing Brown and Taking tack, a somewhat different denying relief on an aiding-and-abetting, has explained Seventh Circuit that a state sufficiency-of-the-evidence argument). court’s decision is AED- sustainable under minimally PA if it “is at least consistent

We further note that Jackson with the facts and circumstances of the Virginia demanding standard is so case,” Cooper, Hennon v. 109 F.3d defendant who challenges “[a] the suffi- (7th Cir.1997), or even “if it is one of ciency of the evidence to sustain his con- outcomes,” equally plausible several Hall nearly viction faces insurmountable hur- Oros, Washington, 106 F.3d Cir. dle.” United States v. (7th Cir.2009) (internal 1997), objectively a decision is quotation omitted). only marks unreasonable Adding extremely to this where is “well outside high bar are the stringent limiting permissible the boundaries of differences

535 Hardaway Young, Virginia v. 302 F.3d And the Jackson v. opinion,” of standard— (7th Cir.2002); 757, Mendiola 762 see also requiring a court to allow for a range of (7th 589, 224 591 Schomig, v. F.3d Cir. rational factfinders and to view the evi 2000) that a state court’s deci (explaining light dence in the most favorable to the not unreasonable if took the sion is prosecution exceedingly general. Fox —is “seriously pro controlling standard Amand, (1st 414, worth v. 570 St. 429 range an answer within the duce^] Cir.2009) (concluding that Jackson v. Vir The Tenth positions”). defensible Circuit standard”); ginia general enunciates “a similarly opined that is not “[i]t has West, 277, Wright 308, see also v. 505 U.S. enough clearly wrong that the decision is 112 S.Ct. 120 L.Ed.2d 225 reviewing or that court would have J., (Kennedy, concurring) (identifying decision,” contrary reached but instead Virginia enunciating gen Jackson v. as “a court decision at such “the state must be standard”). eral governing Supreme tension with U.S. precedents, inadequately sup or Court so give We must therefore the Michigan record, ported by arbitrary or so as to trial court leeway considerable the case at Maynard, be unreasonable.” 468 F.3d In light strong before us. circum (internal omitted). quotation 671 marks stantial evidence Davis was involved planning and execution deeply This court has not delved into the of the car issue, judge jacking, but one has indicated that at least one “rational trier fact where a state court makes “a close call” on could have found the essential elements of question, a constitutional this “militates beyond crime a reasonable doubt.” against the conclusion that the state Virginia, See Jackson v. 443 at U.S. application Supreme of the relevant court’s 2781; 99 S.Ct. see also United States v. precedent objectively unreason Court (6th Cir.2010) Algee, 599 F.3d Wilson, Lopez able.” 426 F.3d 358 (“Circumstantial evidence alone is suffi Cir.2005) (en banc) (Cole, J., n. 1 cient to sustain conviction and such evi (internal concurring) quotation marks dence need not every remove reasonable omitted). Moreover, Supreme Court (internal hypothesis except that of guilt.” recently explained has assess “[w]hen omitted)). quotation marks ing application whether a state court’s given And when this case is “double unreasonable, range federal law ‘the AEDPA, through deference” the lens of so judgment depend part can reasonable reviewing that we are limited to whether on the nature of the relevant rule’ the state trial court’s Lett, decision was so ob- apply.” state must Renico v. — -, 1855, 1864, jectively “beyond unreasonable as to be U.S. error,” (quoting Yarborough McCambridge, L.Ed.2d 678 see 303 F.3d at 36 Alvarado, (citation omitted), S.Ct. or “outside the bound- (2004)). 2140, 158 L.Ed.2d 938 permissible opinion,” differences of aries “ Hardaway, see or more Accordingly, general ‘the more “clearly wrong,” Maynard, than see greater rule’ at issue—and thus the say F.3d at are unable to we potential disagreement reasoned very decision is so far out of line with the among judges fair-minded more lee- —‘the forth in general standard set Jackson v. way reaching state courts have in out- ” ha- Virginia granting as to warrant case-by-case comes in determinations.’ (brackets omitted) beas relief. therefore conclude that We (quoting Yarbor- 2140). ough, deny the state trial court’s decision to U.S. S.Ct. 536 presumption his conviction dant must overcome the to dismiss

Davis’s motion circumstances, objectively that, unreasonable. was not under the the chal- lenged might action be considered sound assistance of counsel C. Ineffective strategy. trial have concluded Because we (citation 689, 104 S.Ct. 2052 presented evidence was sufficient omitted). quotation internal marks Davis of and abet trial to convict argues Davis we should review his must now determine ting carjacking, we claim ineffective-assistance-of-counsel de Davis’s trial counsel was constitu whether “doubly rather than under the novo defer To establish the inef tionally ineffective. judicial applies ential review that to a counsel, fective assistance of Davis must claim evaluated under [AED- Strickland performance that his “counsel’s first show Mirzayance, See Knowles v. 556 PA].” Washington, v. was deficient.” Strickland 111, U.S. 129 S.Ct. 173 L.Ed.2d 2052, 80 (2009). 251 He first that the Mich asserts (1984). requires This a show L.Ed.2d 674 igan applied trial court an improper stan representation ing that “counsel’s fell be in analyzing dard his ineffective-assis objective standard of low an reasonable tance-of-counsel claim. The state trial Second, ness.” Id. at S.Ct. 2052. court held that Davis had not shown that prejudice by must show establishing “the failure to call the who probability that “there is a reasonable that, guilty to the pled prejudi unprofessional but for counsel’s er rors, the result of the proceeding would cial to the extent that but for that deficien A proba have been different. reasonable cy, posi Defendant would have had a more bility probability is a sufficient to under trial, necessary tive outcome at which is mine confidence the outcome.” Id. at presumption overcome the of trial strate high 104 S.Ct. 2052. This is a burden gy.” Michigan It relied on the case of to meet: Julian, People Mich.App. scrutiny of perform- Judicial counsel’s (1988), N.W.2d reach this conclu highly ance must be deferential. It is sion. all tempting too defendant to sec- Strickland, Supreme held Court ond-guess counsel’s assistance after con- that “a defendant need not show that coun- sentence,

viction or adverse and it is all deficient likely sel’s conduct more than not court, easy examining too for a counsel’s altered the outcome in the case” to succeed unsuccessful, proved defense after has on a claim of ineffective assistance of coun- particular to conclude that a act or omis- sel. Id. at 104 S.Ct. 2052. Davis sion of counsel was unreasonable. A upon language argues seizes attorney performance fair assessment of precisely this is where trial requires every effort be made to misapplied Supreme prece- court Court eliminate the distorting effects of hind- argues dent. He that we should therefore sight, to reconstruct the circumstances prejudice prong review the of his ineffec- conduct, challenged of counsel’s and to novo, tive-assistance-of-counsel claim de evaluate the per- conduct from counsel’s Bowlen, Dyer on relying spective at the time. Because of the (6th Cir.2006) (“When the state in making difficulties inherent the evalu- contrary issues a decision that to federal ation, indulge strong a court must law, petition- we review the merits of the presumption that counsel’s conduct falls novo.”). er’s claim de For the reasons set range within the pro- wide reasonable assistance; below, is, fessional the defen- forth we conclude that we do not obtain, prejudice prong ing need to address the she would but she would Davis’s ineffective-assistanee-of-counsel send a warrant for perjury. [sic] claim, and therefore need not decide which Also, Washington, Mr. since he hasn’t to applies aspect standard of review this sentence[d], been still has the Fifth his claim. that, Right. Amendment just Given I that, put want to on my the record argues

Davis also that we should review opinion, I do not want to call deficiency prong of the Strickland test Mr. Wash- witness, trial Michigan ington de novo because the as a important- and most prong. Wiggins this did not address See ly, what he [sic] realizes he has certain Smith, 510, 534, 123 S.Ct. rights. may He rights exercise those (2003) (holding 156 L.Ed.2d 471 that the testify. and not I get don’t want to to Supreme Court’s review was “not circum point, Judge.- just that I wanted to indi- by a state court conclusion with scribed to, cate that I’m not going as an officer respect prejudice, as neither of the state court, of this call Washington. Mr. prong of the courts below reached this provide These statements us in analysis”). Although Strickland ex sight into defense strategic counsel’s deci trial tent of court’s consider sion not to call Washington as a witness. clear, ation is less than issue we will First, he explained that he did not want analyze deficiency prong of Davis’s jury to associate Davis with Washing claim ineffective-assistance-of-counsel de given ton the fact Washington had because, novo even under that more liberal already guilty pled carjacking. to the And review, we standard conclude his in light prosecutor’s of the statement that counsel was not deficient. she seek to charge Washington would argues Davis trial counsel was perjury Davis, if he testified on behalf of constitutionally failing ineffective in to call counsel was Washington concerned that witness, Washington despite as a Davis’s would exercise his Fifth Amendment right request contrary. to the He asserts that to remain silent if called. The record thus Washington would have testified that carefully that counsel considered reflects knowledge Davis had no calling Washington as a witness Davis’s that Washington acted alone. But defense and made strategic decision trial explained Davis’s counsel to the state not to have Washington testify. “Strate why trial court he decided not to call gic, choices-made after thorough investiga Washington as a witness. The trial record law plausible tion of- and facts relevant to reads, part: in relevant options virtually unchallengeable; are My client has call asked me to Marco strategic choices made after less than com you as a witness and know plete investigation precisely are reasonable I Washington. the issue Marco told professional to the extent that reasonable I good didn’t think it was a [Davis] idea judgments support the limitations on in to call someone that would be a codefen- 690-91, Strickland, vestigation.” U.S. plead dant the minds of the who S.Ct. 2052. guilty. agree I think we on that. [sic] has produced not evidence know, you

But more as I importantly, adequately that defense failed to counsel my have to tell the what Prosecutor investigate or consider the of call- if, option are. Ms. me that plans Dawson told fact, ing Washington testify. proof Without Washington got Marco on the exculpated contrary, stand and in essence Mr. to the we must assume that Davis, say- that she adequately possibil- would seek—I’m counsel considered the his Fifth Amendment choose to exercise the best ultimately decided ity, but testify. if silent called Washington’s right to remain strategy was not Mitchell, alibi witnesses possible And unlike the testimony. See Carter Cir.2006) (holding Poindexter, allegedly pre- who would have burden not meet his did the defendant was not evidence that Poindexter sented pro- he failed to where occurred, under Strickland crime even when the de- that his counsel any evidence duce testimony, the district Washington’s as back- defendant’s investigate the clined to noted, nothing explain to “would do court family deciding not to call ground before restaurant, presence [Davis’s] sentencing during the testify to members abandoning the vehicle in which [Davis’s] phase). restaurant, pres- or his he arrived at the Booker, Navigator garage at the where on Poindexter ence

Davis relies (6th Cir.2008), among Fed.Appx. being stripped.” was cases, argument his to other of deference that we high Given the level ineffective. In Poin- was defense counsel strategic counsel’s must afford defense counsel, dexter, held that this court choices, has failed we conclude Davis represented trial counsel same that, under presumption to “overcome the case, constitutionally ineffective in this circumstances, challenged action investigate possible to he failed because strategy.” trial might be considered sound in that case The evidence alibi witnesses. Strickland, 104 S.Ct. 2052 accompa- that two alibi witnesses showed (internal omitted). He quotation marks his coun- meetings to with nied Poindexter satisfy failed to Strickland’s defi- has thus sel, Poin- approached whom later one of Because Davis failed to ciency standard. possibility counsel about the dexter’s deficiency, necessary showing of make the Id. at testifying on Poindexter’s behalf. claim his ineffective-assistance-of-eounsel counsel never inter- But Poindexter’s preju- fails and we need not address why witness. asked viewed either When id. at 104 S.Ct. 2052 prong. dice See potential to make use of these he failed (“Failure showing of required to make the witnesses, responded: Poindexter’s counsel or sufficient performance either deficient honestly you an answer to give “I can’t ineffectiveness prejudice defeats that the that.” The court concluded Id. claim.”). witnesses, investigate two alibi “[f]ailure per- both when the witnesses particularly III. CONCLUSION provide testimony bene- sonally offered above, all the reasons set forth we For Poindexter, objectively ficial to is therefore judgment AFFIRM the of the district product and “not unreasonable” court. strategy.” sound trial distinguishable But Poindexter MARTIN, JR., BOYCE F. Circuit Here, defense counsel offered this case. part dissenting Judge, concurring strategic calling reasons for not several joins. Judge in which STRANCH part, testify, failure to

Washington to unlike his majority’s I with the conclusion agree interviewing po- for not offer reasons properly district court denied in Poindexter. tential alibi witnesses respect to his Davis habeas relief with not want to link Wash- Davis’s counsel did claim. How- insufficiency of the evidence already guilty to the ington, pled who had ever, majority’s conclu- Further, disagree I counsel carjacking, with Davis. properly denied might sion that the district concerned that Pinholster, U.S. -, relief with respect Davis habeas 1398, 179 (2011). However, assistance of claim. I ineffective counsel L.Ed.2d 557 that the district court its I believe abused this case believe that AEDPA does not failing grant Davis an evi- apply discretion and both the deficiency prong and dentiary hearing to him to prejudice prong allow further of Davis’s ineffective the factual for this claim. develop subject basis assistance claim are to de novo Thus, judgment I VACATE the would review.

the district court and REMAND for an prejudice prong subject to de evidentiary hearing. novo review because the Michigan trial court, governing

The rules federal habeas re highest issue, court to reach this provide petition lief that: “If the analyzed is not it under an improper standard. dismissed, judge must an review the The trial court held that Davis did not swer, any transcripts and records of [and] demonstrate ineffective assistance because ... proceedings state-court to determine he did not show that trial counsel’s failure evidentiary an hearing whether is warrant to call Washington prejudicial “was to the Cases, § Governing ed.” Rules 2254 Rule extent that but for that deficiency, [Davis] 8, § 28 U.S.C.A. foil. 2254. We review the would have had a more positive outcome trial,

district court’s decision not an necessary to hold evi at which is to overcome the dentiary hearing for presumption abuse strategy.” trial People v. discretion. Houk, (6th 553, Davis, (Mich. Dixon v. 02-4943-02, 560 slip No. at 1 op. Cir.2010). However, 2004) statutory 15, several Cir.Ct. Nov. (emphasis supplied). provisions impose Court, limitations on Supreme contrast, the discre The in has made tion federal habeas courts to take new clear that under the prejudice prong, evidentiary evidence in an If hearing. only a Davis need establish “a reasonable prisoner develop that, has “failed to the factual probability but for counsel’s unpro- in proceed errors, basis of claim State court fessional the result of proceed- ings,” then a federal court prohibited ing would have been different.” Strick- holding evidentiary hearing an Washington, 668, 694, unless land v. 466 U.S. 104 req petitioner 2052, statutory meets certain S.Ct. 80 L.Ed.2d 674 (empha- 2254(e)(2). § 28 U.S.C. supplied). Supreme sis The empha- Court uirements.1 “[bjecause Furthermore, the deferential sized that “a defendant need not show that prescribed by standards control likely [AEDPA] counsel’s deficient conduct more grant relief, whether to habeas a federal than not altered the in outcome the case.” 693, court must take Rather, into account those stan at Id. 104 S.Ct. 2052. “[a] deciding in evidentiary dards whether an probability reasonable is a probability suf- hearing appropriate.” v. Schriro Lan ficient to undermine confidence the out- drigan, 1933, 694, 550 U.S. 127 S.Ct. come.” at 104 S.Ct. 2052. The (2007). 167 Supreme L.Ed.2d 836 The clearly trial court applied the recently Court has clarified that Bell, “review incorrect standard.2 West v. 550 Cf. 2254(d)(1) (6th Cir.2008) § 542, under is limited to the record F.3d (holding 553 adjudi that was before the state court that wrong state court used the standard cated the claim on the merits.” Cullen v. determining prejudice when it stated challenged The United States has not point 2. The United States did not contest this request hearing ground, Davis’s for a on this argument. at oral requested hearing and in event Davis diligent attempting state court and was document his claim. “adjudica- has been an only where there preponder was a proof the burden pro- in a state court a reason on the merits” than tion rather ance of the evidence (“If Cullen, decision 131 S.Ct. ceeding. A “state-court probability). able Cf. clearly contrary to our certainly a claim has application be includes will court if the state precedent ‘adjudicated established on the merits State been govern a rule that contradicts applies 2254(d), § an additional proceedings,’ court Miller v. cases.” law set forth our ing Thus, deficiency applies.”). restriction 913, Cir. Stovall, 922 n. F.3d subject to de novo review. is also prong 2010) Taylor, 529 (citing Williams U.S. Smith, 539 U.S. Wiggins See 146 L.Ed.2d 389 120 S.Ct. L.Ed.2d 471 123 S.Ct. Thus, (2000)). prong prejudice Supreme that the Court’s review (holding de novo review. subject Davis’s claim is by a state court circumscribed was “not ‘uncon “we are (holding that See id. prejudice, respect as conclusion 2254(d)(1) the state- § because strained reached of the state courts below neither provision’s falls decision within analysis”). of the Strickland prong clause,’ our is de ‘contrary to’ review before us is thus whether question Williams, (citing novo” discretion in the district court its abused Bowlen, 1495)); Dyer v. evidentiary grant an hear- failing to Cir.2006) (“When (6th state understanding that both ing, to' contrary that is issues decision assistance claim prongs of his ineffective law, the merits we review federal “In novo review. subject are to de decid- novo.”). claim de petitioner’s evidentiary an hear- grant whether to ing subject de deficiency prong is to The consider whether ing, a federal court must as well novo review because applicant enable an to hearing such a could prong. court failed to address trial allegations, factual prove petition’s Davis’s analysis trial court’s entire true, which, applicant if entitle would claim reads: assistance ineffective Schriro, relief.” to federal habeas Further, not demonstrat- Defendant has 474, 127 1933. This Court U.S. S.Ct. of counsel. De- ed ineffective assistance gener- applicant that a is has held habeas that the failure to fendant has not shown evidentiary hearing if he ally to an entitled pled guilty who call the release, for rel- “alleges grounds sufficient ex- prejudicial to the was dispute, and the state evant facts are deficiency, Defen- tent but fair not hold a full and eviden- courts did positive have a more dant would had Hofbauer, 299 tiary hearing.” Sawyer v. trial, necessary to outcome which (6th Cir.2002) (internal 605, 610-11 of trial strat- presumption overcome omitted). marks citation quotation egy. dispute no that the state courts There is 02-4943-02, Davis, op. at 1. The slip No. fair evidentiary not hold a full and did that Davis Michigan trial court found not apply Because AEDPA does hearing. and it satisfy prejudice prong, failed claim, and assistance to Davis’s ineffective analysis no on the deficien conducted thus Pinholster, I do the restrictions neither Prelesnik, Avery v. 548 F.3d prong. cy Cf. Davis has al- therefore consider whether (court (6th Cir.2008) did “not find for release leged grounds sufficient that the trial court the record evidence in dispute. are whether relevant facts complete in a Strickland seriously engaged evidentiary hearing might have al- An analysis”). provi The review prejudice 2254(d) prove deficiency under the lowed Davis apply required sions section representation -case, that “counsel’s fell prong would undermine Davis’s because tri objective standard of reasonable- appear below al counsel did not to confirm that — Richter, Harrington v. ness.” U.S. Washington would remain silent and could -, 178 L.Ed.2d 624 have promising jury avoided (2011) (internal quotation marks and cita- Washington testify. would On the record omitted). objectively It unreason- tion us, before there are questions serious as to attorney for an to make a decision to able whether his failure to call Washington call decline to a defense witness “without could have been trial strategy. sound Cf. witness], investigating or at least [the first (6th Sherry, Johnson 586 F.3d making professional judgment reasoned Cir.2009) (evidentiary hearing was war investigation unnecessary.” that such was ranted to if trial determine counsel’s fail Smith, Towns object ure to per constituted deficient Cir.2005). us, On the record before it is formance when no court had conducted an unclear to what extent trial counsel inves- evidentiary hearing and it was difficult to tigated Washington or made reasoned see how the failure could have been strate professional judgment investigation gic). The majority repeatedly faults unnecessary. There is no record of Davis—who was proceed incarcerated and having actually spoken trial counsel to ing pro se—for not introducing evidence Trial Washington. explained counsel dur- that trial counsel failed to adequately in ing trial that he had three main reasons vestigate calling or consider Washington. call Washington for his decision not to as a However, Davis gather was unable to witness: he did not want the to introduce such factual evidence without a Washington given associate Davis with Thus, hearing. an evidentiary hearing already pled guilty had necessary to determine whether trial (2) carjacking; he was concerned that counsel’s failure to call Washington consti Washington would exercise Fifth tuted deficient performance. right Amendment to remain silent if An evidentiary hearing might also have (3) called; prosecutor threatened prove allowed Davis to under prejudice charge Washington to with if perjury he prong that, “a probability reasonable but Only testified. the first two reasons relate unprofessional errors, for counsel’s the re- to Davis’s opposed interests as to Wash- proceeding sult of the would have been ington’s. Trial counsel’s mere articulation different.” Harrington, 131 at S.Ct. 787 of some basis for his decision does not es- (internal quotation marks and citation performance tablish that his was sufficient. omitted). This court repeatedly has found Roe v. Flores-Ortega, 528 U.S. prejudice resulting from trial counsel fail- 1029, 120 S.Ct. 145 L.Ed.2d 985 ing investigate to or present favorable wit- (“The question relevant is not whether See, Haviland, nesses. e.g., Bigelow v. 576 strategic, counsel’s choices were but (6th Cir.2009) (failure F.3d 291-92 to reasonable.”). Here, they whether were it witness); investigate alibi Ramonez v. reasoning is not clear that trial counsel’s (6th Cir.2007) Berghuis, 490 F.3d It may was sound. have been unreason- (failure present to three favorable wit- able for trial presume counsel to' that nesses); Wolfenbarger, Stewart v. 468 F.3d Washington’s guilty plea would undermine (6th Cir.2006) (failure 338, case, present parties Davis’s because the did not witness). Although join majori- I that dispute Washington had been the alibi ty opinion carjacker. Furthermore, regarding sufficiency Davis’s of principal may claim, original have been unreasonable for trial counsel the evidence both the panel presume Washington remaining separate silent decision this case and the dis- MOORE, dissenting. claim KAREN NELSON issue show this

sent on Thus, the lack question. a close presented case is a theory prosecution’s The guilt of Davis’s overwhelming evidence of prosecution says convenient one. finding prejudice. for a support provides Marco acted as a lookout while Tony Davis Strickland, 104 S.Ct. 466 U.S. See a on Washington committed or conclusion (stating that a “verdict But, prosecution as the March by the record weakly supported only walk into acknowledges, all Davis did was by affected errors likely to have been more carjacking, nearby restaurant before a sup- overwhelming record a than one in the restaurant with at a window stand Furthermore, inappropriate water, Washington it was and leave with port”). glass of words, that a presume carjacking. In other after the for the district Davis was theory is that prosecution’s credible. not find would (stat- never needed to sound Ramonez, lookout who See, at 490 490 F.3d e.g., alarm, guilt Davis’s sought prove and it evaluating “in the context ing that alone. “The web through speculation probability there is reasonable whether facts,” on these is too weak inference[s] testimony ... would witness’s [a] however, any rational trier of permit “to ... the trial changed the outcome of have be- fact, speculation, to find absent sheer jury, it to leaves our Constitution ” doubt that Davis acted yond a reasonable credibility of to evaluate the judge, carjacking. impending witnesses”). particularly This is true Sliwo, 630, 637 United States evidentiary hearing. of an the absence Cir.2010) (internal (6th quotation marks Allison, 63, 82 Blackledge v. See omitted). L.Ed.2d 136 n. (‘When contrary, presented the evidence credibility, reso- To the the issue is one provide here does not prosecution rarely can on the basis of affidavits lution inferring that Davis basis for (internal reasonable quotation marks be conclusive.” specific purpose for the omitted)); Petty v. Metro. citation cf. did, all a lookout. If it then acting as Cnty., 538 Nashville-Davidson Gov’t of would need to establish prosecution Cir.2008) (“[Credi- n. 1 a for trial in order to attain conviction inappropriate are for bility determinations that an indi- abetting proof is Thus, an eviden- summary judgment.”). at the scene of the vidual was necessary to deter- tiary hearing was also acquainted perpetrator. with the crime and prove prejudice Davis could mine whether doubt, reasonable the standard of Under call from trial counsel’s failure to resulting however, un- distinguish between we must Washington. and reasonable speculation substantiated alleg- claim Davis’s ineffective assistance Patrolling the between inference. border release, and rele- grounds es sufficient unreasonably to avoid the two is essential dispute regarding in both vant facts are sufficiency-of-the-evidence applying deficiency prejudice prongs. Virginia, in standard set out Jackson Cf. Thus, I Sawyer, 299 F.3d at 610. believe 307, 2781, 61 L.Ed.2d 560 99 S.Ct. U.S. discretion (1979). that the district court abused its I believe that the state Because evidentiary hearing failing to conduct an unreasonably applied Jack- court has claim, by specula- I mere permitting on this and would VACATE standard son I proving guilt, respectful- RE- judgment of the district court and tion to suffice ly evidentiary hearing. dissent. MAND for an “whether, LAW termine after viewing I. BACKGROUND the evi- light dence most favorable to the the standard set forth in Following prosecution, any rational trier fact of could AEDPA, question the critical this case have found the essential elements of the whether the trial court’s denial beyond crime a reasonable doubt.” Id. at of Davis’s claim insufficient evidence 319, 99 S.Ct. 2781. This “standard must to, contrary appli- or an unreasonable applied be of, explicit with reference to clearly federal law. cation established 2254(d)(1). § I agree See 28 U.S.C. substantive elements of the criminal of- court that court in- the district state by fense as defined state law.” Id. at 324 standard, corporated proper federal Furthermore, n. 99 S.Ct. 2781. in a sufficiency-of-the-evidence standard AEDPA, governed by case if the evidence Virginia, set out in Jackson v. conviction, is not sufficient to a we 307, 309, 99 S.Ct. 61 L.Ed.2d 560 must next “ask whether the state court (1979). result, As state court’s deci- objectively in concluding unreasonable contrary clearly sion was not estab- that a rational trier fact could find [the believe, however, I lished law. that the guilty beyond a defendant] reasonable state court’s determination that there was doubt.” Stewart v. Wolfenbarger, 595 F.3d sufficient evidence for rational trier of (6th Cir.2010) (internal 647, 653 quotation fact to infer that Davis acted as lookout omitted). marks See also Williams v. application was an unreasonable of that Taylor, U.S. 120 S.Ct. federal standard. (2000) (“Stated 146 L.Ed.2d 389 simply, a prohibits

“The Constitution the criminal federal habeas court making the ‘unrea- any person except upon proof conviction of application’ sonable inquiry should ask guilt beyond a reasonable doubt” of whether application state court’s Jackson, each element the offense. 443 clearly objec- established federal law was 2781; U.S. at 99 S.Ct. see also In re unreasonable.”). tively Winship, 397 U.S. In Michigan,,a conviction for aiding and (1970) (“[W]e explicitly L.Ed.2d 368 abetting a crime requires the state to protects hold that the Due Process Clause prove beyond a reasonable doubt against except upon the accused conviction (1) charged the crime was committed beyond proof every a reasonable doubt of person, the defendant or some other fact necessary to constitute the crime with n performed the defendant gave acts or he charged.”). which This “doctrine re- encouragement that assisted the com- ritual,” quires simply more than a trial crime, mission of the the defen- requires rationally “that the factfinder will dant intended the commission of the apply the standard to the facts evi- crime knowledge princi- or had that the Jackson, 316-17, dence.” 443 U.S. at pal intended it when the gave defendant Nonetheless, properly S.Ct. 2781. “a in- aid or encouragement. jury may occasionally structed convict even it can when be said that no rational Palmer, (6th 347, Brown v. 441 F.3d 351 trier of fact guilt beyond could find a rea- Cir.2006) Carines, (citing People v. 460 317, at sonable doubt.” Id. 99 S.Ct. 2781. (1999)). 750, 130, Mich. 597 N.W.2d 135 “[Wjhen such a conviction occurs in a state “Aiding abetting” and of all consists forms trial, it constitutionally cannot stand.” Id. perpetrator of assistance rendered to the 318, at 99 2781. S.Ct. crime, including of a all words or deeds might support, encourage, safeguard, As a a court with a or incite faced Carines, sufficieney-of-the-evidenee claim must de- a the commission of crime. 597 544 law, Finally, “Although person is a re under “[a] intent

N.W.2d at 135. an and aiding-and-abetting cannot be convicted as aider abet quired for the element accessory cir tor on the that he was an offense, may be inferred from basis intent Foltz, Brown, after the v. No. Hopson fact.” 86- cumstantial evidence.” 1155, (table), Wilson, 37432, v. 196 Mich. 818 F.2d 866 1987 WL (citing People at 351 (6th 1987) 471, (1992)); 20, (citing *2 604, May People 476 at Cir. App. 493 N.W.2d Lucas, 662, Carines, at 135 intent v. 262 N.W.2d (holding Mich. 597 N.W.2d (1978)). abetting may Aiding all facts and circum 662-63 and inferred from be stances). may during factors be consid crime must occur before or the Several intent, Smith, determining including People “a commission of the crime. v. ered in 204474,204476,1999 between defendant Nos. WL at close association 12, 1999). Mar. principal, partic (Mich.Ct.App. and defendant’s *8 or ipation planning in the execution of A prior post-AEDPA habeas case from flight crime, after the and evidence guidance. this court provides useful (in Carines, 597 N.W.2d at 135 crime.” Palmer, court, v. applying Brown omitted). marks quotation ternal Michigan law, held there was insuffi- cient had evidence that the defendant aid- limits, however, are to how far There carjacking.1 ed and abetted F.3d at inferences can be stretched from circum 351-53. at trial presented The facts con- Significantly, stantial evidence. “[m]ere sisted of the following: presence, knowledge even with that an (1) Brown present before dur- be offense is about to committed or is (2) ing the he and the carjacking, perpe- committed, is being insufficient to show together trator were in the car before is an aider person a and abettor.” offenses, perpetrator committed the 476; Brown, Wilson, 493 N.W.2d (3) he stared at the victims while the Michigan Supreme F.3d at 351. The shots, perpetrator he fired the never held that Court has also “mere mental got gas though parked he was even near approval, passive acquiescence ... or con gas attempted he pump, flee as sent” to find person are insufficient soon as off in drove Anderson, aider Fuller v. and abettor. car, (.6) failed to contact he 1981) Cir. (quoting police to his car. retrieve Burrel, People 253 Mich. 235 N.W. (1931)). words, “In other the accused Id. at 351. Brown court concluded designed “clearly

must take some conscious action the evidence demonstrates make the criminal venture succeed that Brown at the scene guilty abetting.” acquaintance perpetra- order to be had some with the added). however, Beyond that, Id. (emphasis tor. the evidence law, established,” clearly "clearly be what In order to established Federal law is petitioner law relied on the habeas must be United States decisions of the Courts of clearly law that was established the time Appeals may be informative to extent final, court decision became af state already interpreted we have reviewed and Taylor, terward. Williams Supreme the relevant Court case law to (2000). 146 L.Ed.2d 389 legal principle right determine or whether Moreover, the law must be that "determined clearly by had established the been Su 381-82, by Supreme the Court.” Id. at preme Court. observed, we have S.Ct. 1495. As Hofbauer, Hill v. Cir. Supreme Although only Court case law is 2003). examining relevant the AEDPA under guilt quite Brown’s becomes made to the victim pointing implying .a threat of n addition, Id. In the Brown speculative.” injury; just prior serious to the shooting, flight that from the scene reasoned petitioner the and victim were argu- seen support finding a was insufficient corner; a ing on street the person a flees from law guilt. Id. When in a gun arrived car and removed a enforcement, jury may a draw a reason- trunk; fired; several shots were guilt, person able inference but when petitioner the was leaving observed an al- crime, the scene of a such a merely flees ley walking to his house where he leap provide ceases to reason- speculative appeared to something hand to someone guilt. Thus, able evidence “[a]l- inside. Id. The state theorized the viewed in the though light the facts most petitioner spent had takén shotgun shell may to the state favorable have created casings to the individual the house. Id. speculation’ ‘reasonable that Brown aided Nonetheless, Hopson the court held that the and abetted and armed rob- testimony the “indicates most [that bery,” no “demonstrating there were facts petitioner] was at the shooting, provided that Brown fact assistance or may that he have argued with the victim encouragement perpetrator.” to the Id. at ' during the evening prior-to shooting, may that he have known that someone else The Brown court also found persuasive victim], intended to harm [the and that he court, eases from two other both of may have taken the empty shell casing similarly speculative which addressed evi- shooting.” after the that was insufficient to Id. at *2. The court support dence Anderson, In Fuller v. conviction. found that there proof was no petitioner allegedly acted as a lookout petitioner acted in concert perpe- with the person another committed arson while trator or that he anything support, “did throwing a Molotov cocktail at the victim’s encourage, or incite the commission of the home. 662 F.2d at Evidence 421-23. was Hopson crime.” Id. The court therefore presented petitioner “stood that, although concluded petitioner’s guard,” his head from “turned side side may animus, statements they have shown twice,” away more than and ran with the could not be encouragement. construed as perpetrator after the arson. Id. at 424. Furthermore, Id. at *2. although taking that, Yet the Fuller court held although casings may shell have rendered Hop- permitted speculation this evidence accessory fact, son an after the the evi- crime, petitioner was involved in the dence could not a conviction anas there was no evidence from which a evidence, aider and abettor. Id. The ac- reasonably petitioner could infer that the court, cording to the simply was insuffi- Thus, intended to burn the home. guilt beyond cient to establish a reasonable evidence was “insufficient to establish be- doubt. Id. yond reasonable doubt that Fuller took action to aid perpetrator’s] [the conscious II. THE EVIDENCE commission of arson.” Id. mind, With these cases in a close look at Foltz, Hopson petitioner the circumstantial evidence in this case abetting tried second-de- application shows the state court’s gree Michigan. murder 1987 WL Virginia Jackson v. to Davis’s conviction trial, *1. government pre- At “objectively unreasonable.” petitioner sented evidence that: Williams, 529 U.S. at victim were seen two other individu- S.Ct. 1495. arguing against als a bar when a comment was The case Davis comes down to “the lack of majority also decries the The Davis was that evidence the circumstantial evi- acquain- to refute carjacking, any proof the was commission found Washington and was were perpetrator, the dence that Davis ted with The This, the crime. the car after working on at 533. acquainted.” Id. previously no evidence adduced prosecution however, simply attempt an to double- way that would indicate in a Davis acted acquaintance. of their count the evidence as a lookout. that he functioned specifically disprov- not bear the burden Davis does that Davis most, indicates the evidence At if Davis were a lookout ing guilt. Even of the car- to know or had reason knew never needed sound simply who basis, however, for no jacking; provides alarm, prove must still prosecution beyond a reasonable a to conclude as a lookout. Under that he in fact served anything to assist did doubt acquaintance an majority’s opinion, “mere the crime. Because commission prove at the scene must passively present crime knowledge; that a or even presence, were in fact inno- that her innocent actions is insufficient to be committed is about cent. aiding-and-abetting an guilt under prove ar- Washington that Davis and The fact Palmer, theory,” Brown together therefore does rived at the scene (6th Cir.2006), the conviction violates that Davis acted as nothing to show almost contrary A result cannot be process. due enough to certainly It is not a lookout. prior court’s with this reconciled decisions. overcome reasonable doubt. Although the facts establish Association. evidence that Nor is there Observation. scene, makes at the Brown

that Davis was behavior engaged incriminating to Davis enough alone is not presence clear that place. majority attempts taking while participation. infer by pointing to the distinguish Brown the evidence estab- During carjacking, arrived at Washington restaurant, that Davis and fact lishes that Davis entered arrival together. From their the scene water, remained the restau- ordered majority compel- derives “a together, the prose- until the crime was over. The rant Washington] ling [Davis inference asserts that this is circumstantial cution Maj. Op. at acquainted.” previously were But of Davis’s role as a lookout. evidence matter, an initial the defendant 533. As that more Fuller court determined just claimed that he had met Brown reasonable doubt. required to overcome could not prosecution and the perpetrator, Fuller, testimony In the defendant they never dis- otherwise because prove and looked stood near the crime scene identity. perpetrator’s covered watching while around for several minutes Brown, 353. The Brown the crime was in- perpetrator commit noted, moreover, that, “the evidence that he acted proof to establish sufficient clearly that the defendant demonstrates” case, there is no as a lookout. In this acquaintance.” had “some around, evidence that Davis even looked event, dis- at 351. In this factual signaled much less that he one not material. The fact that tinction is any way. permit man knows another does Brown, Similarly, in evidence partici- inference that the first reasonable it unfold- at the crime as defendant stared Only by scheme. pated the second’s support finding ed insufficient to of tenuous inferential making series ease, victims one of the guilt. acquaintance provide can mere jumps Davis stood at the window testified that acted in proof that individual testimony does not the crime. The during of another’s crime. the commission identify standing which window Davis was linking evidence Davis to the actual plan- large part window that forms near —the ning or commission of carjacking. the facade or the service win- the restaurant’s The majority also finds inferences to be prosecu- the restaurant. The dow inside drawn from the fact that “Davis fled the presented testimony tion no that Davis scene the stolen “pur- vehicle” and he lot or even parking faced the looked the posely chose to enter the SUV that he had of the crime scene. Nor did direction the just carjack,” seen his companion rather prosecution suggest any that Davis took Maj. than the Cavalier. Op. at 533. In prevent anyone action to in the restaurant case, both Brown and this the defendant leaving seeing taking or the crime together were seen before place ie., there was no evidence that — crime, commission of the the defendant event, Davis created a distraction. In allegedly during crime, stood watch the assuming watching that Davis was and the defendant fled. Flight from the large crime from the front window of the crime, however, scene of a “fully consis- restaurant, we held these same facts tent with [a desire to defendant’s] avoid a watching the crime as unfold- Brown— confrontation anyone with” nearby. ed-—-to be insufficient evidence of Brown, 441 F.3d at 352. It abetting. is thus “distin- guishable from the guilt inference of that view, In majority’s Coordination. arises when one flees from a law enforce- during carjacking Davis’s actions show Here, ment officer.” Id. the victims of the “closely able to Davis was coordi- crime were still in parking lot. Conse- Washington’s his actions with be- nate!]]” quently, the fact that Davis left the restau- “watching carjacking cause he was un- rant got into Maj. fold.” In the car does not Op. of this establish notion, majority points only encouraging, out Davis was supporting, or Davis exited the Cavalier at the same time inciting the It carjacking. therefore would Washington as and that Davis left the permit any juror rational to conclude right Washington restaurant after commit- beyond a reasonable doubt that Davis act- sure, carjacking. ted the To be there is ed as lookout. testimony Washington up drove to the Indeed, the facts Brown were more restaurant after carjacking and that suggestive guilt than the facts in this Davis left the restaurant and entered the Brown, case. the prosecution present- stolen vehicle. then drove the ed direct evidence that the defendant away. testimony permits car This in- place watched the crime take and fled the ference that Davis was aware that establishment using any without of its ser- carjacking had been committed. But that Here, vices. the evidence established Davis knew the crime was committed after only that Davis stood a window and says nothing the fact about what he did in left with the defendant. Yet the Brown Indeed, support of its commission. there is granted the writ corpus, of habeas no evidence that Davis did something par- despite applying deference, AEDPA be- ticular to the role aof lookout. Without cause “none of this suggests evidence evidence, prosecution has not Brown assisted or encouraged gun- proved its case that in support Davis acted Brown, man in the ... carjacking.” as opposed merely to his 353. These facts alone could not being present object failing prove that the defendant acted as look- the commission of the Again, crime. majority merely out because being present here relies on evidence of associa- at the tion to guilt infer because there is no beyond other scene was insufficient to establish of cir- unrevealing pieces and inference Brown aided doubt a reasonable Brown, it is un- cumstantial evidence. crime. As abetted this evidence to conclude reasonable light in the together facts Taking the doubt beyond reasonable establishes prosecution, there favorable to most as a lookout. Davis acted a that Davis acted as speculate reason fact Finally, the Conduct. Post-Crime however, crime; Washington’s lookout the car stripping found that Davis was “speculation” does not constitute sheer crime does hours after several under evidence” Jackson. “sufficient to the conclusion lead reasonably Brown, 441 especially F.3d 352. This is Washington in the com- encouraged Davis precedent regarding innocent so view pro- fact carjacking. This mission of are a support acts which insufficient to accessory Davis was vides evidence Thus, abetting. aiding conviction for however, fact; assisting after after the beyond trier of fact could infer no rational guilty of to find Davis not sufficient fact is performed that Davis a doubt reasonable carjacking crime abetting the aiding and encouragement before provided an act or 37432, at *2 1987 WL Hopson, itself. See carjack of the during the commission or conduct does not post-crime (holding that charge of necessary element of the ing—a beyond a reasonable doubt finding support therefore, case, aiding abetting. This crime). After-the- aided that defendant decision in which the state court’s not one more, fact-assistance, only shows without minimally consistent with the is “at least of, merely ac- aware but that Davis was case,” Hen of the facts and circumstances in, carjacking by Washington. quiesced (7th Cooper, 109 F.3d non v. remove the nothing to It therefore does Cir.1997), equally it “one of several nor is juror con- any rational doubt of reasonable outcomes,” Washington, Hall v. plausible a actually look- cerning whether Cir.1997). (7th Rather, it 106 F.3d out. by the rec inadequately supported is “so

[*] ^{[*] [*]} ord ... as to be unreasonable.” Maynard Cir.2006) Boone, identify cannot Ultimately, majority Correll, (quoting Badelle Davis did precisely what (7th Cir.2006)). that a majority states carjacking. The that “Davis jury could find reasonable in this case I that the inferences believe plan the helped served as a lookout and/or ju- permit any rational are insufficient At Maj. at 534. another carjacking.” Op. finding that Davis acted as ror from strong “the majority speaks of point, the evidence there at least some lookout. Were in- Davis was evidence that circumstantial particular to the something did that Davis and execution of the planning in the volved lookout, appro- then would be role of “strong” Surely carjacking.” Id. Because such evi- priate deny relief. “involved”—without inference that he was case, I respect- in this dence is not of his role in explanation precise a more fully dissent. crimi- suffice to show the offense-—cannot majority’s reasoning liability. nal the evidence

simply fails to focus on what alleged acts

actually about Davis’s shows and abet- the crime of support of imprecision be-

ting carjacking. This upon inference difficulty piling

lies

Case Details

Case Name: Davis v. Lafler

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jun 25, 2010

Citation: 658 F.3d 525

Docket Number: 08-1291

Court Abbreviation: 6th Cir.