Lead Opinion
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. 538^2), delivered a separate opinion concurring in part and dissenting in part, in which STRANCH, J., joined. MOORE, J. (pp. 542-48), delivered a separate dissenting opinion, in which COLE and CLAY, JJ., joined.
OPINION
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 of the vehicle. Franklin, Brittany and Depriest exited the vehicle. Washington drove the vehicle to the*529 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 ear. 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 KonczaJ’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.
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 disman*530 tling 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.
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 dear-error standard. Awkal v. Mitchell,
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,
“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,
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,
Under AEDPA, we review the last state-court decision to reach the merits of the particular claims being considered. Johnson v. Bagley,
B. Sufficiency of the evidence
In Jackson v. Virginia,
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 the crime or had knowledge that the principal intended it when the defendant gave aid or encouragement.
Brown,
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 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,
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 Buiek’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 after-
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. 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,
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,
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,
The precise definition of “objectively unreasonable” remains elusive. Maynard v. Boone,
Taking a somewhat different tack, the Seventh Circuit has explained that a state court’s decision is sustainable under AED-PA if it “is at least minimally consistent with the facts and circumstances of the case,” Hennon v. Cooper,
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,
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,
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,
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,
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,
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,
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 [AED-PA].” See Knowles v. Mirzayance,
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 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,
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 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. “Strategic, 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,
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 possibil
Davis relies on Poindexter v. Booker,
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,
III. CONCLUSION
For all the reasons set forth above, we AFFIRM the judgment of the district court.
Concurrence Opinion
concurring in part and dissenting in part, in which
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
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. foil. § 2254. We review the district court’s decision not to hold an evidentiary hearing for abuse of discretion. Dixon v. Houk,
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,
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,
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,
An evidentiary hearing might have allowed Davis to prove under the deficiency
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,
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,
Notes
. 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.
. The United States did not contest this point at oral argument.
Dissenting Opinion
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,
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,
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,
“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,
As a safeguard, a court faced with a sufficieney-of-the-evidenee 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,
In Michigan,,a conviction for aiding and abetting a crime requires the state 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 the crime or had knowledge that the principal intended it when the defendant gave aid or encouragement.
Brown v. Palmer,
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,
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,
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 evidence that the defendant had aided and abetted carjacking.
(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
The Brown court also found persuasive two other eases 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.
In Hopson v. Foltz, the petitioner was tried for aiding and abetting second-degree murder in Michigan.
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 Hop-son 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.
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,
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 533. 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,
The majority also decries “the lack of any proof to refute the circumstantial evidence that Davis and Washington were previously acquainted.” Id. at 533. This, however, is simply an attempt to double-count the evidence of their acquaintance. Davis does not bear the 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 ease, one of the victims testified that Davis stood at the window during the crime. The testimony does not
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 533. In support of this notion, the majority 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 533. 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,
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,
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,
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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 534. 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 535. 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,
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.
. 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,
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,