Davis v. Lafler

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0278p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

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TONY DAVIS,
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Petitioner-Appellant,
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No. 08-1291
v.
,
>
BLAINE LAFLER, Warden, -
Respondent-Appellee. -
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Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 06-13659—Gerald E. Rosen, Chief District Judge.
Argued: March 2, 2011
Decided and Filed: October 3, 2011
Before: BATCHELDER, Chief Judge; MARTIN, BOGGS, MOORE, COLE, CLAY,
GILMAN, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN,
*
KETHLEDGE, and STRANCH, Circuit Judges.
_________________
COUNSEL
ARGUED: Micah S. Myers, WILMER CUTLER PICKERING HALE AND DORR LLP,
Washington, D.C., for Appellant. Laura A. Cook, OFFICE OF THE MICHIGAN
ATTORNEY GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: Micah S. Myers,
WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., for
Appellant. Laura A. Cook, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellee.
GILMAN, J., delivered the opinion of the court, in which BATCHELDER, C. J.,
BOGGS, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, and
KETHLEDGE, JJ., joined. MARTIN, J. (pp. 17–22), delivered a separate opinion
concurring in part and dissenting in part, in which STRANCH, J., joined. MOORE, J.
(pp. 23–32), delivered a separate dissenting opinion, in which COLE and CLAY, JJ., joined.

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

1
No. 08-1291 Davis v. Lafler Page 2

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OPINION
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RONALD LEE GILMAN, Circuit Judge. Tony Davis was convicted by a Michigan
jury of aiding and abetting a carjacking and of receiving and concealing stolen property. He
filed an application for leave to appeal his conviction with the Michigan Court of Appeals
and the Michigan Supreme Court. Both courts denied Davis’s application for lack of merit.
Davis then sought a writ of habeas corpus in federal court, pursuant to 28 U.S.C. § 2254, to
challenge his state-court conviction for aiding and abetting a carjacking. The district court
denied Davis habeas relief. A prior panel of this court reversed the judgment of the district
court, but the full court vacated the panel decision and set the case for rehearing en banc.

We now consider the two grounds for relief that Davis raises in his habeas petition:
(1) that there was insufficient evidence to support his conviction for aiding and abetting a
carjacking, and (2) that his trial counsel was ineffective in refusing to call Marco
Washington, who had already pled guilty to the actual carjacking, as a witness. For the
reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

In denying Davis’s petition for a writ of habeas corpus under 28 U.S.C. § 2254, the
district court provided the following summary of the relevant facts:

Petitioner’s convictions arise out of a carjacking that occurred in the
parking lot of a restaurant in Detroit, Michigan.
Clarence Franklin testified that, on March 27, 2002, at
approximately 10:00 p.m., he stopped at the China One Restaurant, along
with his fiancee Yvonne Depriest and 12-year-old daughter, Brittany
Johnson. Franklin parked his Lincoln Navigator. He and his daughter went
into the restaurant to get food and Depriest remained in the vehicle. After
waiting for approximately ten minutes, Franklin got his food and left the
restaurant. As he was leaving, he saw Petitioner enter the restaurant.
Franklin testified that Brittany sat in the backseat of the vehicle and
he got into the driver’s seat. As he closed his door, Marco Washington
approached the vehicle and ordered Franklin to [] exit the vehicle.
Washington pointed a .9-mm weapon at Franklin and again ordered him out
No. 08-1291 Davis v. Lafler Page 3

of the vehicle. Franklin, Brittany and Depriest exited the vehicle.
Washington drove the vehicle to the front of the restaurant. Petitioner exited
the restaurant and got into the passenger seat of the Navigator. The
Navigator was then driven from the parking lot.
Franklin’s vehicle was located approximately two hours later.
Franklin later identified Washington as the man with the gun and Petitioner
as the person he saw inside the restaurant.
Yvonne Depriest testified that she waited in the Navigator while
Franklin and Brittany went into the restaurant. She observed a gray
Chevrolet Cavalier enter the parking lot. She saw someone exit the vehicle
and enter the restaurant. When Franklin and Brittany returned to the car,
Depriest heard someone cock a gun and demand that they exit the vehicle.
They all exited the car. She testified that Petitioner then exited the
restaurant and got into the passenger side of the vehicle.
Brittany Johnson testified that, as she and her father were waiting for
their food, Petitioner entered the restaurant and asked for a glass of water.
She identified Washington as the man who forced them out of their vehicle
at gunpoint, and identified Petitioner as the man who entered the vehicle
before it drove way.
Police Officer Scott Konczal of the Detroit Police Department
testified the [sic] he and his partner responded to a call that someone had
observed men stripping a Navigator on Novara Street in Detroit. Officer
Konczal testified that he and his partner approached a garage located behind
a vacant home. A man who the officers believed to be a lookout yelled
something into the garage and fled. He was later apprehended and identified
as Anthony Johnson. Officer Konczal saw a second person run from the
garage. He gave chase and apprehended Marco Washington. Officer
Konczal’s partner arrested Petitioner inside the garage. The key to the
Navigator was found in Washington’s pocket.

Davis was originally charged in an Information with armed robbery and carjacking,
to which he pled not guilty. After the close of evidence, the Information was amended to
include an additional count of receiving and concealing stolen property valued at over
$20,000. The state of Michigan tried Davis for the carjacking under an aiding-and-abetting
theory. Davis did not testify in his own defense, and his defense counsel decided not to call
Washington to testify despite Davis’s request that Washington be called as a witness. The
jury convicted Davis of carjacking and of receiving and concealing property valued at over
$20,000, but found him not guilty on the armed-robbery charge.
No. 08-1291 Davis v. Lafler Page 4

After trial, with the help of newly appointed counsel, Davis moved the state trial
court to dismiss his conviction on the bases that (1) there was insufficient evidence to
support his conviction for aiding and abetting a carjacking, and (2) his trial counsel was
constitutionally ineffective in refusing to call Washington as a witness. In an affidavit
supporting his ineffective-assistance-of-counsel claim, Davis stated his belief that
Washington would admit to being the sole perpetrator of the carjacking and that Davis was
not involved in the offense.

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

[t]he evidence viewed in a light most favorable to the prosecution is
sufficient to find that Defendant aided and abetted in the carjacking.
Defendant arrived in the same car with the perpetrator, went into the
restaurant and only ordered a cup of water while another man took the car
at gunpoint. Defendant immediately got into the stolen vehicle and two and
a half hours later was found dismantling it in a garage on the eastside of
town. It is a reasonable inference from the undisputed evidence that
Defendant preplanned his role in the carjacking thereby satisfying the intent
element of aiding and abetting a carjacking. . . . The fact that Defendant
deliberately got into the stolen vehicle and not the car in which he arrived
indicates more than just mere presence and circumstance.

The court also denied Davis’s claim that his trial counsel was ineffective, concluding that
Davis had failed to show that “but for” his counsel’s failure to call Washington, Davis
“would have had a more positive outcome at trial.”

Davis petitioned the Michigan Court of Appeals for leave to file an appeal on
essentially the same bases that he presented to the trial court in support of his motion to
dismiss his conviction. His request to appeal was denied in a one-sentence order. He next
sought leave to appeal to the Michigan Supreme Court on the same grounds. That court also
denied his request in a one-sentence order. Davis then filed a petition for a writ of habeas
corpus under 28 U.S.C. § 2254 in the United States District Court for the Eastern District of
Michigan, raising the same grounds for relief that he had presented in state court. The
district court issued an opinion and order denying his petition. Davis now appeals that
decision.
No. 08-1291 Davis v. Lafler Page 5

II. ANALYSIS

A. Standard of review

We review the district court’s legal conclusions in a habeas proceeding de novo and
its factual findings under the clear-error standard. Awkal v. Mitchell, 613 F.3d 629, 638 (6th
Cir. 2010) (en banc). Our review of the Michigan state-court decisions in this case is
governed by the following standards set forth in the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d):

An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect
to any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim–
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.

Section 2254(d) creates a “‘highly deferential standard for evaluating state-court
rulings,’ which demands that state-court decisions be given the benefit of the doubt.”
Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (quoting Lindh v. Murphy, 521 U.S. 320, 333
n.7 (1997)). A state-court decision is contrary to clearly established federal law only “if the
state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a
question of law or if the state court decides a case differently than [the Supreme Court] has
on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000);
Brown v. Palmer, 441 F.3d 347, 350 (6th Cir. 2006) (quoting Williams).

“Under the ‘unreasonable application’ clause, a federal habeas court may grant the
writ if the state court identifies the correct governing legal principle from [Supreme Court]
decisions but unreasonably applies that principle to the facts of the prisoner’s case.”
Williams, 529 U.S. at 413. “[A] federal habeas court may not issue the writ simply because
that court concludes in its independent judgment that the relevant state-court decision applied
clearly established federal law erroneously or incorrectly. Rather, that application must also
be unreasonable.” Id. at 411.
No. 08-1291 Davis v. Lafler Page 6

In addition, the factual findings of the state court are presumed correct unless the
petitioner presents clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1).
“[A] decision adjudicated on the merits in a state court and based on a factual determination
will not be overturned on factual grounds unless objectively unreasonable in light of the
evidence presented in the state-court proceeding.” Ayers v. Hudson, 623 F.3d 301, 308 (6th
Cir. 2010) (brackets omitted) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)).

Under AEDPA, we review the last state-court decision to reach the merits of the
particular claims being considered. Johnson v. Bagley, 544 F.3d 592, 599 (6th Cir. 2008).
The Michigan trial court was the last state court to reach the merits of both Davis’s
sufficiency-of-the-evidence and ineffective-assistance-of-counsel claims.

B. Sufficiency of the evidence

In Jackson v. Virginia, 443 U.S. 307 (1979), the Supreme Court set forth the standard
for challenges based on sufficiency of the evidence, holding that “the relevant question is
whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Id. at 319 (emphasis in original). The Jackson v. Virginia standard
“gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to
ultimate facts.” Id. This standard is applied “with explicit reference to the substantive
elements of the criminal offense as defined by state law.” Id. at 324 n.16. And because both
the Jackson v. Virginia standard and AEDPA apply to Davis’s claims, “the law commands
deference at two levels in this case: First, deference should be given to the trier-of-fact’s
verdict, as contemplated by Jackson; second, deference should be given to the Michigan
[trial court’s] consideration of the trier-of-fact’s verdict, as dictated by AEDPA.” See Tucker
v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008).

To convict Davis of aiding and abetting the carjacking, the state of Michigan had to
prove beyond a reasonable doubt that

(1) the crime charged was committed by the defendant or some other person,
(2) the defendant performed acts or gave encouragement that assisted the
commission of the crime, and (3) the defendant intended the commission of
No. 08-1291 Davis v. Lafler Page 7

the crime or had knowledge that the principal intended it when the defendant
gave aid or encouragement.

Brown, 441 F.3d at 351 (citing People v. Carines, 597 N.W.2d 130, 135 (Mich. 1999)).
“The phrase ‘aiding and abetting’ includes all words or actions by the defendant that might
support, encourage, or incite the commission of the crime.” Id. (citing People v. Palmer, 220
N.W.2d 393, 397 (Mich. 1974)). “An aider and abettor’s state of mind may be inferred from
all the facts and circumstances.” Carines, 597 N.W.2d. at 135 (internal quotation marks
omitted) (holding that “[c]ircumstantial evidence and reasonable inferences arising from that
evidence can constitute satisfactory proof of the elements of a crime” (internal quotation
marks omitted)). “‘Factors that may be considered [in determining intent] include a close
association between the defendant and the principal, the defendant’s participation in the
planning or execution of the crime, and evidence of flight after the crime.” Id. (internal
quotation marks omitted). “But mere presence, or even knowledge, that a crime is about to
be committed is insufficient to prove guilt under an aiding-and-abetting theory.” Brown, 441
F.3d at 351 (citing People v. Wilson, 493 N.W.2d 471, 476 (Mich. Ct. App. 1992)).

The evidence introduced at trial showed that (1) Davis arrived at the restaurant where
the carjacking took place with Washington and an unidentified third person in a Chevrolet
Cavalier; (2) Davis entered the restaurant while two of the victims were inside; (3)
Washington stood outside the restaurant while the third person stayed in the Cavalier; (4)
Davis did not order any food, but rather asked for a cup of water; (5) after the two victims
inside the restaurant left to enter their Lincoln Navigator SUV and join a waiting passenger,
Washington ordered all three of the victims out of the vehicle at gunpoint; (6) Davis stood
at the window inside the restaurant while the carjacking was occurring; (7) Washington
drove the stolen SUV a few feet toward the restaurant and stopped, at which point Davis
immediately walked out and hopped into the SUV; (8) Washington then drove away from
the scene with Davis as a passenger; (9) the third person who was in the Cavalier drove off
after them; (10) roughly two-and-a-half hours later, Davis, Washington, and one other man
were caught stripping the SUV in a dilapidated garage behind an abandoned house;
(11) Davis was found lying flat on his back in the garage, working underneath the stolen
SUV when the police arrived; and (12) the Cavalier in which Davis and Washington drove
No. 08-1291 Davis v. Lafler Page 8

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

Davis argues that this evidence permits nothing more than speculation that he played
a role in the carjacking itself or that he had the requisite criminal intent. He asserts that
“[t]hese facts established, at most, acquiescence and after-the-fact assistance, neither of
which suffices for a conviction.” Davis specifically relies on Brown v. Palmer, 441 F.3d 347
(6th Cir. 2006), to support his argument that the Michigan trial court’s conclusion to the
contrary was an unreasonable application of the Jackson v. Virginia standard.

In Brown, this court held that there was insufficient evidence to find the defendant
guilty of aiding and abetting a carjacking. Id. at 351-53. The evidence in Brown showed
that (1) Brown was parked in a car at a gas station; (2) the perpetrator exited the gas station’s
store and entered Brown’s car for an unstated but apparently very brief period of time; (3)
Brown then pulled forward to a gas pump and the perpetrator exited Brown’s car; (4) the
perpetrator immediately pointed a gun at a man attending to a Buick sedan, fired his gun in
the direction of the man as the latter ran away, then entered the Buick and drove off; (5)
Brown watched this occur from the driver’s seat of his car, after which he attempted to drive
off himself, but his tires skidded in the snow; (6) the Buick’s owner, who had been walking
from the gas station’s store toward his car when the carjacking occurred, ran over to Brown’s
car and punched Brown in the face; (7) Brown immediately told the Buick’s owner that he
had just met the perpetrator a few minutes before and had simply offered to give him a ride;
(8) aided by a friend, the Buick’s owner grabbed Brown, pulled him from the car, and drove
it to a police station to file a report; (9) Brown failed to retrieve his car afterwards; and (10)
the perpetrator was never apprehended. Id. at 349.

Davis’s reliance on Brown is misplaced because the factual differences between these
two cases are material. First, there was no evidence that Brown arrived at the scene with the
perpetrator. Brown in fact claimed that he had just met the man a few minutes earlier,
presumably at the gas station itself. Here, Davis arrived at the scene with Washington,
raising a compelling inference that they were previously acquainted.

Second, the behavior of Brown and Davis before and during the carjacking differed
significantly. Brown engaged in no overt acts to indicate that he was involved in the crime.
No. 08-1291 Davis v. Lafler Page 9

He simply sat in his car and watched the crime unfold in front of him, to his professed shock
and dismay. Davis, on the other hand, exited the Cavalier with Washington, entered the
restaurant, failed to order any food, and stood at the window. Davis would have had no other
way of so closely coordinating his actions with those of Washington if he had not been
actively watching what was taking place. In short, Davis’s behavior during the crime was
far closer to that of a coconspirator than Brown’s.

Another key difference between this case and Brown is that Davis fled the scene in
the stolen vehicle. Because Davis arrived at the crime scene in the Cavalier, and the Cavalier
subsequently followed the carjacked SUV, he could just as easily have departed in the same
car. Davis instead purposely chose to enter the SUV that he had just seen his companion
carjack.

For Brown to control the outcome in this case, Brown would have needed to arrive
at the gas station with the perpetrator, watch the carjacking occur, and then enter the stolen
Buick to drive off with the perpetrator. The fact pattern here is far more incriminating
because it indicates that Washington was expecting Davis to enter the SUV (without any
contemporaneous communication between them) that Washington had just stolen. The jury
could easily conclude from this evidence that Davis was involved in the planning and
execution of the carjacking. In contrast, the perpetrator in Brown did not wait for Brown to
enter the carjacked Buick, did not drive it towards Brown, and did nothing after the crime
to indicate that the two were working in tandem.

Another difference here is the lack of any proof to refute the circumstantial evidence
that Davis and Washington were previously acquainted. Brown, in contrast, denied any
advance knowledge about the carjacking and denied even knowing the perpetrator until they
met at the gas station. Furthermore, Brown made these denials immediately after the crime
and thus had little time to fabricate an exculpatory story.

Finally, Davis and Washington were found breaking down the stolen SUV shortly
after the carjacking. Although this act by itself does not constitute aiding and abetting the
carjacking, the overall sequence of events greatly strengthens the circumstantial case against
Davis. Pieces of evidence are not to be viewed in a vacuum; rather, they are viewed in
relation to the other evidence in the case. See United States v. Welch, 97 F.3d 142, 150-51
No. 08-1291 Davis v. Lafler Page 10

(6th Cir. 1996) (concluding that the circumstantial evidence “in its totality” was sufficient
to find the defendant guilty beyond a reasonable doubt). Together with the other
circumstantial evidence, the fact that Davis and Washington were continuously together from
the time that they arrived at the scene of the carjacking until they were caught stripping the
SUV—essentially sharing in the proceeds of the crime—is strong evidence of Davis’s aiding
and abetting the carjacking. See People v. Carines, 597 N.W.2d 130, 135 (Mich. 1999)
(holding that a close association between the defendant and the principal, and evidence of
flight after the crime, are factors that may be considered in determining intent in an aiding-
and-abetting case); People v. Allen, 505 N.W.2d 869, 871 (Mich. Ct. App. 1993)
(“Circumstantial evidence and reasonable inferences arising from that evidence can
constitute satisfactory proof of the elements of a crime.”).

Given the material differences between this case and Brown, and the strong
circumstantial evidence that Davis served as a lookout and/or helped plan the carjacking, we
find no basis to grant Davis habeas relief in light of the AEDPA deference that we are
obligated to apply. The key reason for granting habeas relief in Brown was that the evidence
there was deemed too speculative for a jury to find Brown guilty beyond a reasonable doubt.
See Brown, 441 F.3d at 352-53. But in light of AEDPA’s deferential standard, Brown was
a very close case. The present case, on the other hand, contains additional facts supporting
the jury’s verdict that make the verdict a far cry from being “objectively unreasonable.” See
Wiggins v. Smith, 539 U.S. 510, 520-21 (2003) (explaining that a state court’s decision must
be “objectively unreasonable” to merit habeas relief); see also White v. Steele, 602 F.3d 707,
709-11 (6th Cir. 2009) (distinguishing Brown and denying relief on an aiding-and-abetting,
sufficiency-of-the-evidence argument).

We further note that the Jackson v. Virginia standard is so demanding that “[a]
defendant who challenges the sufficiency of the evidence to sustain his conviction faces a
nearly insurmountable hurdle.” United States v. Oros, 578 F.3d 703, 710 (7th Cir. 2009)
(internal quotation marks omitted). Adding to this extremely high bar are the stringent and
limiting standards of AEDPA. Under AEDPA, we may reverse a state court’s decision that
correctly identified and applied the controlling Supreme Court precedent only if the
application of that precedent was “objectively unreasonable,” meaning “more than incorrect
or erroneous.” Wiggins, 539 U.S. at 520-21 (citations and internal quotation marks omitted);
No. 08-1291 Davis v. Lafler Page 11

see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (“It is not enough that a federal habeas
court, in its independent review of the legal question, is left with a firm conviction that the
state court was erroneous.” (internal quotation marks omitted)).

The precise definition of “objectively unreasonable” remains elusive. Maynard v.
Boone, 468 F.3d 665, 670-71 (10th Cir. 2006) (discussing the failure of most federal courts
to further define the phrase “objectively unreasonable” and collecting cases). Several of our
sister circuits, however, have attempted to clarify the term. The First Circuit has explained
that “if it is a close question whether the state decision is in error, then the state decision
cannot be an unreasonable application,” and that “‘some increment of incorrectness beyond
error is required.’” McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir. 2002) (en banc) (quoting
with approval Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).

Taking a somewhat different tack, the Seventh Circuit has explained that a state
court’s decision is sustainable under AEDPA if it “is at least minimally consistent with the
facts and circumstances of the case,” Hennon v. Cooper, 109 F.3d 330, 335 (7th Cir. 1997),
or even “if it is one of several equally plausible outcomes,” Hall v. Washington, 106 F.3d
742, 749 (7th Cir. 1997), and that a decision is objectively unreasonable only where it is
“well outside the boundaries of permissible differences of opinion,” Hardaway v. Young, 302
F.3d 757, 762 (7th Cir. 2002); see also Mendiola v. Schomig, 224 F.3d 589, 591 (7th Cir.
2000) (explaining that a state court’s decision is not unreasonable if it took the controlling
standard “seriously and produce[d] an answer within the range of defensible positions”).
The Tenth Circuit has similarly opined that “[i]t is not enough that the decision is clearly
wrong or that the reviewing court would have reached a contrary decision,” but instead “the
state court decision must be at such tension with governing U.S. Supreme Court precedents,
or so inadequately supported by the record, or so arbitrary as to be unreasonable.” Maynard,
468 F.3d at 671 (internal quotation marks omitted).

This court has not delved deeply into the issue, but one judge has indicated that
where a state court makes “a close call” on a constitutional question, this “militates against
the conclusion that the state court’s application of the relevant Supreme Court precedent was
objectively unreasonable.” Lopez v. Wilson, 426 F.3d 339, 358 n.1 (6th Cir. 2005) (en banc)
(Cole, J., concurring) (internal quotation marks omitted). Moreover, the Supreme Court has
No. 08-1291 Davis v. Lafler Page 12

recently explained that “[w]hen assessing whether a state court’s application of federal law
is unreasonable, ‘the range of reasonable judgment can depend in part on the nature of the
relevant rule’ that the state court must apply.” Renico v. Lett, 130 S. Ct. 1855, 1864 (2010)
(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

Accordingly, “‘the more general the rule’ at issue—and thus the greater the potential
for reasoned disagreement among fair-minded judges—‘the more leeway state courts have
in reaching outcomes in case-by-case determinations.’” Id. (brackets omitted) (quoting
Yarborough, 541 U.S. at 664). And the Jackson v. Virginia standard—requiring a court to
allow for a range of rational factfinders and to view the evidence in the light most favorable
to the prosecution—is exceedingly general. Foxworth v. St. Amand, 570 F.3d 414, 429 (1st
Cir. 2009) (concluding that Jackson v. Virginia enunciates “a general standard”); see also
Wright v. West, 505 U.S. 277, 308 (1992) (Kennedy, J., concurring) (identifying Jackson v.
Virginia as enunciating “a general standard”).

We must therefore give the Michigan trial court considerable leeway in the case
before us. In light of the strong circumstantial evidence that Davis was involved in the
planning and execution of the carjacking, at least one “rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” See Jackson v. Virginia, 443
U.S. at 319; see also United States v. Algee, 599 F.3d 506, 512 (6th Cir. 2010)
(“Circumstantial evidence alone is sufficient to sustain a conviction and such evidence need
not remove every reasonable hypothesis except that of guilt.” (internal quotation marks
omitted)).

And when this case is given “double deference” through the lens of AEDPA, so that
we are limited to reviewing whether the state trial court’s decision was so objectively
unreasonable as to be “beyond error,” see McCambridge, 303 F.3d at 36 (citation omitted),
or “outside the boundaries of permissible differences of opinion,” see Hardaway, 302 F.3d
at 762, or more than “clearly wrong,” see Maynard, 468 F.3d at 671, we are unable to say
that the decision is so far out of line with the very general standard set forth in Jackson v.
Virginia as to warrant granting Davis habeas relief. We therefore conclude that the state trial
court’s decision to deny Davis’s motion to dismiss his conviction was not objectively
unreasonable.
No. 08-1291 Davis v. Lafler Page 13

C. Ineffective assistance of counsel

Because we have concluded that sufficient evidence was presented at trial to convict
Davis of aiding and abetting a carjacking, we must now determine whether Davis’s trial
counsel was constitutionally ineffective. To establish the ineffective assistance of counsel,
Davis must first show that his “counsel’s performance was deficient.” Strickland v.
Washington, 466 U.S. 668, 687 (1984). This requires a showing that “counsel’s
representation fell below an objective standard of reasonableness.” Id. at 688. Second,
Davis must show prejudice by establishing that “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Id. at 694. This is a high burden to meet:

Judicial scrutiny of counsel’s performance must be highly deferential. It is
all too tempting for a defendant to second-guess counsel’s assistance after
conviction or adverse sentence, and it is all too easy for a court, examining
counsel’s defense after it has proved unsuccessful, to conclude that a
particular act or omission of counsel was unreasonable. A fair assessment
of attorney performance requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective
at the time. Because of the difficulties inherent in making the evaluation, a
court must indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.

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

Davis argues that we should review his ineffective-assistance-of-counsel claim de
novo rather than under the “doubly deferential judicial review that applies to a Strickland
claim evaluated under [AEDPA].” See Knowles v. Mirzayance, 129 S. Ct. 1411, 1420
(2009). He first asserts that the Michigan trial court applied an improper standard in
analyzing his ineffective-assistance-of-counsel claim. The state trial court held that Davis
had not shown that “the failure to call the perpetrator who pled guilty to the carjacking was
prejudicial to the extent that but for that deficiency, Defendant would have had a more
positive outcome at trial, which is necessary to overcome the presumption of trial strategy.”
No. 08-1291 Davis v. Lafler Page 14

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

In Strickland, the Supreme Court held that “a defendant need not show that counsel’s
deficient conduct more likely than not altered the outcome in the case” to succeed on a claim
of ineffective assistance of counsel. Id. at 693. Davis seizes upon this language and argues
that this is precisely where the Michigan trial court misapplied Supreme Court precedent.
He argues that we should therefore review the prejudice prong of his ineffective-assistance-
of-counsel claim de novo, relying on Dyer v. Bowlen, 465 F.3d 280, 284 (6th Cir. 2006)
(“When the state court issues a decision that is contrary to federal law, we review the merits
of the petitioner’s claim de novo.”). For the reasons set forth below, we conclude that we
do not need to address the prejudice prong of Davis’s ineffective-assistance-of-counsel
claim, and therefore need not decide which standard of review applies to this aspect of his
claim.

Davis also argues that we should review the deficiency prong of the Strickland test
de novo because the Michigan trial court did not address this prong. See Wiggins v. Smith,
539 U.S. 510, 534 (2003) (holding that the Supreme Court’s review was “not circumscribed
by a state court conclusion with respect to prejudice, as neither of the state courts below
reached this prong of the Strickland analysis”). Although the extent of the Michigan trial
court’s consideration of this issue is less than clear, we will analyze the deficiency prong of
Davis’s ineffective-assistance-of-counsel claim de novo because, even under that more
liberal standard of review, we conclude that his counsel was not deficient.

Davis argues that his trial counsel was constitutionally ineffective in failing to call
Washington as a witness, despite Davis’s request to the contrary. He asserts that Washington
would have testified that Davis had no knowledge of the carjacking and that Washington
acted alone. But Davis’s trial counsel explained to the state trial court why he decided not
to call Washington as a witness. The trial record reads, in relevant part:

My client has asked me to call Marco Washington as a witness and
you know the issue of Marco Washington. I told [Davis] I didn’t think it
was a good idea to call someone that would be a codefendant in the minds
of the jury who plead [sic] guilty. I think we agree on that. But more
importantly, as you know, I have to tell the Prosecutor what my plans are.
Ms. Dawson told me that if, in fact, Marco Washington got on the stand and
No. 08-1291 Davis v. Lafler Page 15

in essence exculpated Mr. Davis, that she would seek—I’m not saying she
would obtain, but she would send [sic] a warrant for perjury.
Also, Mr. Washington, since he hasn’t been sentence[d], still has the
Fifth Amendment Right. Given that, I just want to put on the record that, in
my opinion, I do not want to call Mr. Washington as a witness, and most
importantly, what [sic] he realizes he has certain rights. He may exercise
those rights and not testify. I don’t want to get to that point, Judge. I just
wanted to indicate that I’m not going to, as an officer of this court, call Mr.
Washington.

These statements provide us insight into defense counsel’s strategic decision not to
call Washington as a witness. First, he explained that he did not want the jury to associate
Davis with Washington given the fact that Washington had already pled guilty to the
carjacking. And in light of the prosecutor’s statement that she would seek to charge
Washington with perjury if he testified on behalf of Davis, counsel was concerned that
Washington would exercise his Fifth Amendment right to remain silent if called. The record
thus reflects that counsel carefully considered calling Washington as a witness in Davis’s
defense and made the strategic decision not to have Washington testify. “[S]trategic choices
made after thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable; and strategic choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional judgments support the
limitations on investigation.” Strickland, 466 U.S. at 690-91.

Davis has not produced any evidence that defense counsel failed to adequately
investigate or consider the option of calling Washington to testify. Without proof to the
contrary, we must assume that counsel adequately considered the possibility, but ultimately
decided that the best strategy was not to present Washington’s testimony. See Carter v.
Mitchell, 443 F.3d 517, 532 (6th Cir. 2006) (holding that the defendant did not meet his
burden under Strickland where he failed to produce any evidence that his counsel declined
to investigate the defendant’s background before deciding not to call family members to
testify during the sentencing phase).

Davis relies on Poindexter v. Booker, 301 F. App’x 522 (6th Cir. 2008), among other
cases, to support his argument that defense counsel was ineffective. In Poindexter, this court
held that counsel, the same trial counsel that represented Davis in this case, was
constitutionally ineffective because he failed to investigate possible alibi witnesses. The
No. 08-1291 Davis v. Lafler Page 16

evidence in that case showed that two alibi witnesses accompanied Poindexter to meetings
with his counsel, one of whom later approached Poindexter’s counsel about the possibility
of testifying on Poindexter’s behalf. Id. at 529. But Poindexter’s counsel never interviewed
either witness. When asked why he failed to make use of these potential witnesses,
Poindexter’s counsel responded: “I can’t honestly give you an answer to that.” Id. The
court concluded that the “[f]ailure to investigate two alibi witnesses, particularly when the
witnesses both personally offered to provide testimony beneficial to Poindexter, is therefore
objectively unreasonable” and “not the product of sound trial strategy.” Id.

But Poindexter is distinguishable from this case. Here, defense counsel offered
several strategic reasons for not calling Washington to testify, unlike his failure to offer any
reasons for not interviewing potential alibi witnesses in Poindexter. Davis’s counsel did not
want to link Washington, who had already pled guilty to the carjacking, with Davis. Further,
counsel was concerned that Washington might choose to exercise his Fifth Amendment right
to remain silent if called to testify. And unlike the possible alibi witnesses in Poindexter,
who would have allegedly presented evidence that Poindexter was not even present when
the crime occurred, Washington’s testimony, as the district court noted, “would do nothing
to explain [Davis’s] presence at the restaurant, [Davis’s] abandoning the vehicle in which
he arrived at the restaurant, or his presence at the garage where the Navigator was being
stripped.”

Given the high level of deference that we must afford a defense counsel’s strategic
choices, we conclude that Davis has failed to “overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial strategy.” Strickland,
466 U.S. at 689 (internal quotation marks omitted). He has thus failed to satisfy Strickland’s
deficiency standard. Because Davis failed to make the necessary showing of deficiency, his
ineffective-assistance-of-counsel claim fails and we need not address the prejudice prong.
See id. at 700 (“Failure to make the required showing of either deficient performance or
sufficient prejudice defeats the ineffectiveness claim.”).

III. CONCLUSION

For all the reasons set forth above, we AFFIRM the judgment of the district court.
No. 08-1291 Davis v. Lafler Page 17

____________________________________________________

CONCURRING IN PART AND DISSENTING IN PART
____________________________________________________

BOYCE F. MARTIN, JR., Circuit Judge, concurring in part and dissenting in part,
in which Judge Stranch joins. I agree with the majority’s conclusion that the district court
properly denied Davis habeas relief with respect to his insufficiency of the evidence claim.
However, I disagree with the majority’s conclusion that the district court properly denied
Davis habeas relief with respect to his ineffective assistance of counsel claim. I believe that
the district court abused its discretion in failing to grant Davis an evidentiary hearing to
allow him to further develop the factual basis for this claim. Thus, I would VACATE the
judgment of the district court and REMAND for an evidentiary hearing.

The rules governing federal habeas relief provide that: “If the petition is not
dismissed, the judge must review the answer, [and] any transcripts and records of state-court
proceedings . . . to determine whether an evidentiary hearing is warranted.” Rules
Governing § 2254 Cases, Rule 8, 28 U.S.C.A. foll. § 2254. We review the district court’s
decision not to hold an evidentiary hearing for abuse of discretion. Dixon v. Houk, 627 F.3d
553, 560 (6th Cir. 2010). However, several statutory provisions impose limitations on the
discretion of federal habeas courts to take new evidence in an evidentiary hearing. If a
prisoner has “failed to develop the factual basis of a claim in State court proceedings,” then
a federal court is prohibited from holding an evidentiary hearing unless the petitioner meets
1
certain statutory requirements. 28 U.S.C. § 2254(e)(2). Furthermore, “[b]ecause the
deferential standards prescribed by [AEDPA] control whether to grant habeas relief, a federal
court must take into account those standards in deciding whether an evidentiary hearing is
appropriate.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007). The Supreme Court has
recently clarified that “review under § 2254(d)(1) is limited to the record that was before the
state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 US __, 131
S. Ct. 1388, 1398 (2011). However, in this case I believe that AEDPA does not apply and

1
The United States has not challenged Davis’s request for a hearing on this ground, and in any
event Davis requested a hearing in state court and was diligent in attempting to document his claim.
No. 08-1291 Davis v. Lafler Page 18

both the deficiency prong and the prejudice prong of Davis’s ineffective assistance claim are
subject to de novo review.

The prejudice prong is subject to de novo review because the Michigan trial court,
the highest court to reach this issue, analyzed it under an improper standard. The trial court
held that Davis did not demonstrate ineffective assistance because he did not show that trial
counsel’s failure to call Washington “was prejudicial to the extent that but for that
deficiency, [Davis] would have had a more positive outcome at trial, which is necessary to
overcome the presumption of trial strategy.” People v. Davis, No. 02-4943-02, slip op. at
1 (Mich. Cir. Ct. Nov. 15, 2004) (emphasis supplied). The Supreme Court, in contrast, has
made clear that under the prejudice prong, Davis need only establish “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984) (emphasis
supplied). The Supreme Court emphasized that “a defendant need not show that counsel’s
deficient conduct more likely than not altered the outcome in the case.” Id. at 693. Rather,
“[a] reasonable probability is a probability sufficient to undermine confidence in the
2
outcome.” Id. at 694. The Michigan trial court clearly applied the incorrect standard. Cf.
West v. Bell, 550 F.3d 542, 553 (6th Cir. 2008) (holding that the state court used the wrong
standard for determining prejudice when it stated that the burden of proof was a
preponderance of the evidence rather than a reasonable probability). A “state-court decision
will certainly be contrary to our clearly established precedent if the state court applies a rule
that contradicts the governing law set forth in our cases.” Miller v. Stovall, 608 F.3d 913,
922 n.7 (6th Cir. 2010) (citing Williams v. Taylor, 529 U.S. 362, 405 (2000)). Thus, the
prejudice prong of Davis’s claim is subject to de novo review. See id. (holding that “we are
‘unconstrained by § 2254(d)(1) because the state-court decision falls within that provision’s
‘contrary to’ clause,’ and our review is de novo” (citing Williams, 529 U.S. at 406)); Dyer
v. Bowlen, 465 F.3d 280, 284 (6th Cir. 2006) (“When the state court issues a decision that
is contrary to federal law, we review the merits of the petitioner’s claim de novo.”).

2
The United States did not contest this point at oral argument.
No. 08-1291 Davis v. Lafler Page 19

The deficiency prong is subject to de novo review as well because the Michigan trial
court failed to address this prong. The trial court’s entire analysis of Davis’s ineffective
assistance claim reads:

Further, Defendant has not demonstrated ineffective assistance of counsel.
Defendant has not shown that the failure to call the perpetrator who pled
guilty to the carjacking was prejudicial to the extent that but for that
deficiency, Defendant would have had a more positive outcome at trial,
which is necessary to overcome the presumption of trial strategy.

Davis, No. 02-4943-02, slip op. at 1. The Michigan trial court found that Davis failed to
satisfy the prejudice prong, and it thus conducted no analysis on the deficiency prong. Cf.
Avery v. Prelesnik, 548 F.3d 434, 438 (6th Cir. 2008) (court did “not find in the record
evidence that the trial court seriously engaged in a complete Strickland prejudice analysis”).
The review provisions required by section 2254(d) apply only where there has been an
“adjudication on the merits” in a state court proceeding. Cf. Cullen, 131 S. Ct. at 1398 (“If
an application includes a claim that has been ‘adjudicated on the merits in State court
proceedings,’ § 2254(d), an additional restriction applies.”). Thus, the deficiency prong is
also subject to de novo review. See Wiggins v. Smith, 539 U.S. 510, 534 (2003) (holding that
the Supreme Court’s review was “not circumscribed by a state court conclusion with respect
to prejudice, as neither of the state courts below reached this prong of the Strickland
analysis”).

The question before us is thus whether the district court abused its discretion in
failing to grant Davis an evidentiary hearing, with the understanding that both prongs of his
ineffective assistance claim are subject to de novo review. “In deciding whether to grant an
evidentiary hearing, a federal court must consider whether such a hearing could enable an
applicant to prove the petition’s factual allegations, which, if true, would entitle the applicant
to federal habeas relief.” Schriro, 550 U.S. at 474. This Court has held that a habeas
applicant is generally entitled to an evidentiary hearing if he “alleges sufficient grounds for
release, relevant facts are in dispute, and the state courts did not hold a full and fair
evidentiary hearing.” Sawyer v. Hofbauer, 299 F.3d 605, 610-11 (6th Cir. 2002) (internal
quotation marks and citation omitted). There is no dispute that the state courts did not hold
a full and fair evidentiary hearing. Because AEDPA does not apply to Davis’s ineffective
No. 08-1291 Davis v. Lafler Page 20

assistance claim, and neither do the restrictions in Pinholster, I therefore consider whether
Davis has alleged sufficient grounds for release and whether relevant facts are in dispute.

An evidentiary hearing might have allowed Davis to prove under the deficiency
prong that “counsel’s representation fell below an objective standard of reasonableness.”
Harrington v. Richter, 131 S. Ct. 770, 787 (2011) (internal quotation marks and citation
omitted). It is objectively unreasonable for an attorney to make a decision to decline to call
a defense witness “without first investigating [the witness], or at least making a reasoned
professional judgment that such investigation was unnecessary.” Towns v. Smith, 395 F.3d
251, 260 (6th Cir. 2005). On the record before us, it is unclear to what extent trial counsel
investigated Washington or made a reasoned professional judgment that investigation was
unnecessary. There is no record of trial counsel having actually spoken to Washington.
Trial counsel explained during trial that he had three main reasons for his decision not to call
Washington as a witness: (1) he did not want the jury to associate Davis with Washington
given that Washington had already pled guilty to the carjacking; (2) he was concerned that
Washington would exercise his Fifth Amendment right to remain silent if called; and (3) the
prosecutor threatened to charge Washington with perjury if he testified. Only the first two
reasons relate to Davis’s interests as opposed to Washington’s. Trial counsel’s mere
articulation of some basis for his decision does not establish that his performance was
sufficient. Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000) (“The relevant question is not
whether counsel’s choices were strategic, but whether they were reasonable.”). Here, it is
not clear that trial counsel’s reasoning was sound. It may have been unreasonable for trial
counsel to presume that Washington’s guilty plea would undermine Davis’s case, because
the parties did not dispute that Washington had been the principal carjacker. Furthermore,
it may have been unreasonable for trial counsel to presume that Washington remaining silent
would undermine Davis’s case, because trial counsel did not appear to confirm that
Washington would remain silent and could have avoided promising the jury that Washington
would testify. On the record before us, there are serious questions as to whether his failure
to call Washington could have been sound trial strategy. Cf. Johnson v. Sherry, 586 F.3d
439, 446 (6th Cir. 2009) (evidentiary hearing was warranted to determine if trial counsel’s
failure to object constituted deficient performance when no court had conducted an
evidentiary hearing and it was difficult to see how the failure could have been strategic).
No. 08-1291 Davis v. Lafler Page 21

The majority repeatedly faults Davis—who was incarcerated and proceeding pro se—for not
introducing evidence that trial counsel failed to adequately investigate or consider calling
Washington. However, Davis was unable to gather and introduce such factual evidence
without a hearing. Thus, an evidentiary hearing was necessary to determine whether trial
counsel’s failure to call Washington constituted deficient performance.

An evidentiary hearing also might have allowed Davis to prove under the prejudice
prong “a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Harrington, 131 S. Ct. at 787 (internal quotation
marks and citation omitted). This court has repeatedly found prejudice resulting from trial
counsel failing to investigate or present favorable witnesses. See, e.g., Bigelow v. Haviland,
576 F.3d 284, 291-92 (6th Cir. 2009) (failure to investigate alibi witness); Ramonez v.
Berghuis, 490 F.3d 482, 491 (6th Cir. 2007) (failure to present three favorable witnesses);
Stewart v. Wolfenbarger, 468 F.3d 338, 357 (6th Cir. 2006) (failure to present alibi witness).
Although I join the majority opinion regarding Davis’s sufficiency of the evidence claim,
both the original panel decision in this case and the separate dissent on this issue show that
the claim presented a close question. Thus, the lack of overwhelming evidence of Davis’s
guilt provides support for a finding of prejudice. See Strickland, 466 U.S. at 696 (stating that
a “verdict or conclusion only weakly supported by the record is more likely to have been
affected by errors than one with overwhelming record support”). Furthermore, it was
inappropriate for the district court to presume that a jury would not find Washington
credible. See, e.g., Ramonez, 490 F.3d at 490 (stating that “in the context of evaluating
whether there is a reasonable probability that [a] witness’s testimony . . . would have
changed the outcome of the trial . . . our Constitution leaves it to the jury, not the judge, to
evaluate the credibility of witnesses”). This is particularly true in the absence of an
evidentiary hearing. See Blackledge v. Allison, 431 U.S. 63, 82 n.25 (1977) (“When the
issue is one of credibility, resolution on the basis of affidavits can rarely be conclusive.”
(internal quotation marks and citation omitted)); cf. Petty v. Metro. Gov’t of Nashville-
Davidson Cnty., 538 F.3d 431, 435 n.1 (6th Cir. 2008) (“[C]redibility determinations are
inappropriate for summary judgment.”). Thus, an evidentiary hearing was also necessary to
determine whether Davis could prove prejudice resulting from trial counsel’s failure to call
Washington.
No. 08-1291 Davis v. Lafler Page 22

Davis’s ineffective assistance claim alleges sufficient grounds for release, and
relevant facts are in dispute regarding both the deficiency and prejudice prongs. Cf. Sawyer,
299 F.3d at 610. Thus, I believe that the district court abused its discretion in failing to
conduct an evidentiary hearing on this claim, and I would VACATE the judgment of the
district court and REMAND for an evidentiary hearing.
No. 08-1291 Davis v. Lafler Page 23

_________________

DISSENT
_________________

KAREN NELSON MOORE, dissenting. The prosecution’s theory in this case is a
convenient one. The prosecution says that Tony Davis acted as a lookout while Marco
Washington committed a carjacking on March 27, 2002. But, as the prosecution
acknowledges, all Davis did was walk into a nearby restaurant before the carjacking, stand
at a window in the restaurant with a glass of water, and leave with Washington after the
carjacking. In other words, the prosecution’s theory is that Davis was a lookout who never
needed to sound the alarm, and it sought to prove Davis’s guilt through speculation alone.
“The web of inference[s] is too weak on these facts,” however, “to permit any rational trier
of fact, absent sheer speculation, to find beyond a reasonable doubt ” that Davis acted in
support of the impending carjacking. United States v. Sliwo, 620 F.3d 630, 637 (6th Cir.
2010) (internal quotation marks omitted).

To the contrary, the evidence presented by the prosecution here does not provide a
reasonable basis for inferring that Davis was present for the specific purpose of acting as a
lookout. If it did, then all that the prosecution would need to establish at trial in order to
attain a conviction for aiding and abetting is proof that an individual was present at the scene
of the crime and acquainted with the perpetrator. Under the standard of reasonable doubt,
however, we must distinguish between unsubstantiated speculation and reasonable inference.
Patrolling the border between the two is essential to avoid unreasonably applying the
sufficiency-of-the-evidence standard set out in Jackson v. Virginia, 443 U.S. 307 (1979).
Because I believe that the state court has unreasonably applied the Jackson standard by
permitting mere speculation to suffice in proving guilt, I respectfully dissent.

I. BACKGROUND LAW

Following the standard set forth in AEDPA, the critical question in this case is
whether the Michigan trial court’s denial of Davis’s claim of insufficient evidence was
contrary to, or an unreasonable application of, clearly established federal law. See 28 U.S.C.
§ 2254(d)(1). I agree with the district court that the state court incorporated the proper
federal standard, the sufficiency-of-the-evidence standard set out in Jackson v. Virginia, 443
No. 08-1291 Davis v. Lafler Page 24

U.S. 307, 309 (1979). As a result, the state court’s decision was not contrary to clearly
established law. I believe, however, that the state court’s determination that there was
sufficient evidence for a rational trier of fact to infer that Davis acted as a lookout was an
unreasonable application of that federal standard.

“The Constitution prohibits the criminal conviction of any person except upon proof
of guilt beyond a reasonable doubt” of each element of the offense. Jackson, 443 U.S. at
309; see also In re Winship, 397 U.S. 358, 364 (1970) (“[W]e explicitly hold that the Due
Process Clause protects the accused against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the crime with which he is charged.”).
This “doctrine requires more than simply a trial ritual,” it requires “that the factfinder will
rationally apply the standard to the facts in evidence.” Jackson, 443 U.S. at 316–17.
Nonetheless, “a properly instructed jury may occasionally convict even when it can be said
that no rational trier of fact could find guilt beyond a reasonable doubt.” Id. at 317.
“[W]hen such a conviction occurs in a state trial, it cannot constitutionally stand.” Id. at 318.

As a safeguard, a court faced with a sufficiency-of-the-evidence claim must
determine “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Id. at 319. This “standard must be applied with explicit
reference to the substantive elements of the criminal offense as defined by state law.” Id. at
324 n.16. Furthermore, in a case governed by AEDPA, if the evidence is not sufficient to
support a conviction, we must next “ask whether the state court was objectively unreasonable
in concluding that a rational trier of fact could find [the defendant] guilty beyond a
reasonable doubt.” Stewart v. Wolfenbarger, 595 F.3d 647, 653 (6th Cir. 2010) (internal
quotation marks omitted). See also Williams v. Taylor, 529 U.S. 362, 409 (2000) (“Stated
simply, a federal habeas court making the ‘unreasonable application’ inquiry should ask
whether the state court’s application of clearly established federal law was objectively
unreasonable.”).

In Michigan, a conviction for aiding and abetting a crime requires the state to prove
beyond a reasonable doubt that
No. 08-1291 Davis v. Lafler Page 25

(1) the crime charged was committed by the defendant or some other person,
(2) the defendant performed acts or gave encouragement that assisted the
commission of the crime, and (3) the defendant intended the commission of
the crime or had knowledge that the principal intended it when the defendant
gave aid or encouragement.

Brown v. Palmer, 441 F.3d 347, 351 (6th Cir. 2006) (citing People v. Carines, 597 N.W.2d
130, 135 (Mich. 1999)). “Aiding and abetting” consists of all forms of assistance rendered
to the perpetrator of a crime, including all words or deeds that might support, encourage, or
incite the commission of a crime. Carines, 597 N.W.2d at 135. “Although intent is a
required element for the aiding-and-abetting offense, intent may be inferred from
circumstantial evidence.” Brown, 441 F.3d at 351 (citing People v. Wilson, 493 N.W.2d 471,
476 (Mich. Ct. App. 1992)); Carines, 597 N.W.2d at 135 (holding intent may be inferred
from all facts and circumstances). Several factors may be considered in determining intent,
including “a close association between the defendant and the principal, the defendant’s
participation in the planning or execution of the crime, and evidence of flight after the
crime.” Carines, 597 N.W.2d at 135 (internal quotation marks omitted).

There are limits, however, to how far inferences can be stretched from circumstantial
evidence. Significantly, “[m]ere presence, even with knowledge that an offense is about to
be committed or is being committed, is insufficient to show that a person is an aider and
abettor.” Wilson, 493 N.W.2d at 476; Brown, 441 F.3d at 351. The Michigan Supreme
Court has also held that “mere mental approval, . . . passive acquiescence or consent” are
insufficient to find a person an aider and abettor. Fuller v. Anderson, 662 F.2d 420, 424 (6th
Cir. 1981) (quoting People v. Burrel, 235 N.W. 170 (Mich. 1931)). “In other words, the
accused must take some conscious action designed to make the criminal venture succeed in
order to be guilty of aiding and abetting.” Id. (emphasis added).

Finally, under Michigan law, “[a] person cannot be convicted as an aider and abettor
on the basis that he was an accessory after the fact.” Hopson v. Foltz, No. 86-1155, 818 F.2d
866 (table), 1987 WL 37432, at *2 (6th Cir. May 20, 1987) (citing People v. Lucas, 262
N.W.2d 662, 662–63 (Mich. 1978)). Aiding and abetting of the crime must occur before or
during the commission of the crime. People v. Smith, Nos. 204474, 204476, 1999 WL
33453995, at *8 (Mich. Ct. App. Mar. 12, 1999).
No. 08-1291 Davis v. Lafler Page 26

A prior post-AEDPA habeas case from this court provides useful guidance. In
Brown v. Palmer, this court, applying Michigan law, held that there was insufficient
1
evidence that the defendant had aided and abetted carjacking. 441 F.3d at 351–53. The
facts presented at trial consisted of the following:

(1) Brown was present before and during the carjacking, (2) he and the
perpetrator were in the car together before the perpetrator committed the
offenses, (3) he stared at the victims while the perpetrator fired the shots, (4)
he never got gas even though he was parked near a gas pump, (5) he
attempted to flee as soon as the perpetrator drove off in the car, and (6) he
failed to contact the police to retrieve his car.

Id. at 351. The Brown court concluded that the evidence “clearly demonstrates that Brown
was present at the scene and had some acquaintance with the perpetrator. Beyond that,
however, the evidence pointing to Brown’s guilt becomes quite speculative.” Id. In
addition, the Brown court reasoned that flight from the scene was insufficient to support a
finding of guilt. Id. When a person flees from law enforcement, a jury may draw a
reasonable inference of guilt, but when a person merely flees the scene of a crime, such a
speculative leap ceases to provide reasonable evidence of guilt. Id. Thus, “[a]lthough the
facts viewed in the light most favorable to the state may have created ‘reasonable
speculation’ that Brown aided and abetted the carjacking and armed robbery,” there were no
facts “demonstrating that Brown in fact provided assistance or encouragement to the
perpetrator.” Id. at 352.

The Brown court also found persuasive two other cases from this court, both of
which addressed similarly speculative evidence that was insufficient to support a conviction.
In Fuller v. Anderson, the petitioner allegedly acted as a lookout while another person
committed arson by throwing a Molotov cocktail at the victim’s home. 662 F.2d at 421–23.

1
In order to be clearly established law, the law relied on by the habeas petitioner must be law that
was clearly established at the time the state court decision became final, not afterward. Williams v. Taylor,
529 U.S. 362, 380 (2000). Moreover, the law must be that “determined by the Supreme Court.” Id. at
381–82. As we have observed,
Although only Supreme Court case law is relevant under the AEDPA in examining what
Federal law is “clearly established,” the decisions of the United States Courts of
Appeals may be informative to the extent we have already reviewed and interpreted the
relevant Supreme Court case law to determine whether a legal principle or right had
been clearly established by the Supreme Court.
Hill v. Hofbauer, 337 F.3d 706, 716 (6th Cir. 2003).
No. 08-1291 Davis v. Lafler Page 27

Evidence was presented that the petitioner “stood guard,” “turned his head from side to side
more than twice,” and ran away with the perpetrator after the arson. Id. at 424. Yet the
Fuller court held that, although this evidence permitted speculation that the petitioner was
involved in the crime, there was no evidence from which a jury could reasonably infer that
the petitioner intended to burn the home. Thus, the evidence was “insufficient to establish
beyond a reasonable doubt that Fuller took conscious action to aid [the perpetrator’s]
commission of arson.” Id.

In Hopson v. Foltz, the petitioner was tried for aiding and abetting second-degree
murder in Michigan. 1987 WL 37432, at *1. At trial, the government presented evidence
that: the petitioner and victim were seen with two other individuals arguing in a bar when
a comment was made to the victim implying a threat of serious injury; just prior to the
shooting, the petitioner and victim were seen arguing on a street corner; the perpetrator
arrived in a car and removed a gun from his trunk; several shots were fired; and the petitioner
was observed leaving an alley and walking to his house where he appeared to hand
something to someone inside. Id. The state theorized that the petitioner had taken spent
shotgun shell casings to the individual in the house. Id.

Nonetheless, the Hopson court held that the testimony “indicates at most [that the
petitioner] was present at the shooting, that he may have argued with the victim during the
evening prior to the shooting, that he may have known that someone else intended to harm
[the victim], and that he may have taken the empty shell casing after the shooting.” Id. at *2.
The court found that there was no proof that the petitioner acted in concert with the
perpetrator or that he “did anything to support, encourage, or incite the commission of the
crime.” Id. The Hopson court therefore concluded that, although the petitioner’s statements
may have shown animus, they could not be construed as encouragement. Id. at *2.
Furthermore, although taking the shell casings may have rendered Hopson an accessory after
the fact, the evidence could not support a conviction as an aider and abettor. Id. The
evidence, according to the court, was simply insufficient to establish guilt beyond a
reasonable doubt. Id.
No. 08-1291 Davis v. Lafler Page 28

II. THE EVIDENCE

With these cases in mind, a close look at the circumstantial evidence in this case
shows that the state court’s application of Jackson v. Virginia to Davis’s conviction was
“objectively unreasonable.” Williams, 529 U.S. at 409. The case against Davis comes down
to evidence that Davis was present for the commission of the carjacking, was acquainted
with the perpetrator, and was found working on the car after the crime. The prosecution
adduced no evidence that Davis acted in a way that would indicate specifically that he
functioned as a lookout. At most, the evidence indicates that Davis knew or had reason to
know of the carjacking; it provides no basis, however, for a jury to conclude beyond a
reasonable doubt that Davis did anything to assist the commission of the crime. Because
“mere presence, or even knowledge, that a crime is about to be committed is insufficient to
prove guilt under an aiding-and-abetting theory,” Brown v. Palmer, 441 F.3d 347, 351 (6th
Cir. 2006), the conviction violates due process. A contrary result cannot be reconciled with
this court’s prior decisions.

Association. Although the facts establish that Davis was at the scene, Brown makes
clear that presence alone is not enough to infer participation. The majority attempts to
distinguish Brown by pointing to the fact that Davis and Washington arrived at the scene
together. From their arrival together, the majority derives “a compelling inference that
[Davis and Washington] were previously acquainted.” Maj. Op. at 9. As an initial matter,
the defendant in Brown claimed that he had just met the perpetrator, and the prosecution
could not prove otherwise because they never discovered the perpetrator’s identity. Brown,
441 F.3d at 349, 353. The Brown court noted, moreover, that, “the evidence clearly
demonstrates” that the defendant and perpetrator had “some acquaintance.” Id. at 351. In
any event, this factual distinction is not material. The fact that one man knows another does
not permit a reasonable inference that the first participated in the second’s scheme. Only
by making a series of tenuous inferential jumps can mere acquaintance provide proof that
an individual acted in support of the commission of another’s crime.

The majority also decries “the lack of any proof to refute the circumstantial evidence
that Davis and Washington were previously acquainted.” Id. at 10. This, however, is simply
an attempt to double-count the evidence of their acquaintance. Davis does not bear the
No. 08-1291 Davis v. Lafler Page 29

burden of disproving his guilt. Even if Davis were a lookout who simply never needed to
sound the alarm, the prosecution must still prove that he in fact served as a lookout. Under
the majority’s opinion, an acquaintance passively present at the scene must prove that her
innocent actions were in fact innocent.

The fact that Davis and Washington arrived at the scene together therefore does
almost nothing to show that Davis acted as a lookout. It certainly is not enough to overcome
reasonable doubt.

Observation. Nor is there evidence that Davis engaged in incriminating behavior
while the carjacking was taking place. During the carjacking, the evidence establishes that
Davis entered the restaurant, ordered water, and remained in the restaurant until the crime
was over. The prosecution asserts that this is circumstantial evidence of Davis’s role as a
lookout. But the Fuller court determined that more is required to overcome reasonable
doubt. In Fuller, testimony that the defendant stood near the crime scene and looked around
for several minutes while watching the perpetrator commit the crime was insufficient to
establish proof that he acted as a lookout. In this case, there is no evidence that Davis even
looked around, much less that he signaled to Washington in any way.

Similarly, in Brown, evidence that the defendant stared at the crime as it unfolded
was insufficient to support a finding of guilt. In this case, one of the victims testified that
Davis stood at the window during the crime. The testimony does not identify which window
Davis was standing near—the large window that forms part of the restaurant’s facade or the
service window inside the restaurant. The prosecution presented no testimony that Davis
faced the parking lot or even looked in the direction of the crime scene. Nor did the
prosecution suggest that Davis took any action to prevent anyone in the restaurant from
leaving or seeing the crime taking place—i.e., there was no evidence that Davis created a
distraction. In any event, assuming that Davis was watching the crime from the large front
window of the restaurant, we held these same facts in Brown—watching the crime as it
unfolded—to be insufficient evidence of aiding and abetting.

Coordination. In the majority’s view, Davis’s actions during the carjacking show
that Davis was able to “closely coordinate[]” his actions with Washington’s because he was
“watching the carjacking unfold.” Maj. Op. at 9. In support of this notion, the majority
No. 08-1291 Davis v. Lafler Page 30

points out only that Davis exited the Cavalier at the same time as Washington and that Davis
left the restaurant right after Washington committed the carjacking. To be sure, there is
testimony that Washington drove up to the restaurant after the carjacking and that Davis left
the restaurant and entered the stolen vehicle. Washington then drove the car away. This
testimony permits the inference that Davis was aware that the carjacking had been
committed. But that Davis knew the crime was committed after the fact says nothing about
what he did in support of its commission. Indeed, there is no evidence that Davis did
something particular to the role of a lookout. Without this evidence, the prosecution has not
proved its case that Davis acted in support of the carjacking as opposed to his merely being
present for and failing to object to the commission of the crime. Again, the majority here
relies on evidence of association to infer guilt because there is no other evidence linking
Davis to the actual planning or commission of the carjacking.

The majority also finds inferences to be drawn from the fact that “Davis fled the
scene in the stolen vehicle” and he “purposely chose to enter the SUV that he had just seen
his companion carjack,” rather than the Cavalier. Maj. Op. at 9. In both Brown and this
case, the defendant and perpetrator were seen together before commission of the crime, the
defendant allegedly stood watch during the crime, and the defendant fled. Flight from the
scene of a crime, however, is “fully consistent with [a defendant’s] desire to avoid a
confrontation with” anyone nearby. Brown, 441 F.3d at 352. It is thus “distinguishable from
the inference of guilt that arises when one flees from a law enforcement officer.” Id. Here,
the victims of the crime were still in the parking lot. Consequently, the fact that Davis left
the restaurant and got into the car does not establish that Davis was encouraging, supporting,
or inciting the carjacking. It therefore would not permit any rational juror to conclude
beyond a reasonable doubt that Davis acted as a lookout.

Indeed, the facts in Brown were more suggestive of guilt than the facts in this case.
In Brown, the prosecution presented direct evidence that the defendant watched the crime
take place and fled the establishment without using any of its services. Here, the evidence
established only that Davis stood by a window and left with the defendant. Yet the Brown
court granted the writ of habeas corpus, despite applying AEDPA deference, because “none
of this evidence suggests that Brown assisted or encouraged the gunman in the
. . . carjacking.” Brown, 441 F.3d at 353. These facts alone could not prove that the
No. 08-1291 Davis v. Lafler Page 31

defendant acted as a lookout because merely being present at the scene was insufficient to
establish beyond a reasonable doubt that Brown aided and abetted the crime. As in Brown,
it is unreasonable to conclude that this evidence establishes beyond any reasonable doubt
that Davis acted as a lookout.

Post-Crime Conduct. Finally, the fact that Davis was found stripping the car several
hours after the crime does not reasonably lead to the conclusion that Davis encouraged
Washington in the commission of the carjacking. This fact provides evidence that Davis was
an accessory after the fact; however, assisting after the fact is not sufficient to find Davis
guilty of aiding and abetting the carjacking crime itself. See Hopson, 1987 WL 37432, at
*2 (holding that post-crime conduct does not support finding beyond a reasonable doubt that
defendant aided crime). After-the-fact-assistance, without more, shows only that Davis was
aware of, but merely acquiesced in, the carjacking by Washington. It therefore does nothing
to remove the reasonable doubt of any rational juror concerning whether Davis actually was
a lookout.

***

Ultimately, the majority cannot identify precisely what Davis did in support of the
carjacking. The majority states that a reasonable jury could find that “Davis served as a
lookout and/or helped plan the carjacking.” Maj. Op. at 11. At another point, the majority
speaks of “the strong circumstantial evidence that Davis was involved in the planning and
execution of the carjacking.” Id. at 13. Surely a “strong” inference that he was
“involved”—without a more precise explanation of his role in the offense—cannot suffice
to show criminal liability. The majority’s reasoning simply fails to focus on what the
evidence actually shows about Davis’s alleged acts in support of the crime of aiding and
abetting the carjacking. This imprecision belies the difficulty in piling inference upon
inference from unrevealing pieces of circumstantial evidence.

Taking the facts together in the light most favorable to the prosecution, there is
reason to speculate that Davis acted as a lookout for Washington’s crime; however, sheer
“speculation” does not constitute “sufficient evidence” under Jackson. Brown, 441 F.3d at
352. This is especially so in view of precedent regarding innocent acts which are insufficient
to support a conviction for aiding and abetting. Thus, no rational trier of fact could infer
No. 08-1291 Davis v. Lafler Page 32

beyond a reasonable doubt that Davis performed an act or provided encouragement before
or during the commission of the carjacking—a necessary element of the charge of aiding and
abetting. This case, therefore, is not one in which the state court’s decision is “at least
minimally consistent with the facts and circumstances of the case,” Hennon v. Cooper, 109
F.3d 330, 335 (1st Cir. 1997), nor is it “one of several equally plausible outcomes,” Hall v.
Washington, 106 F.3d 742, 749 (7th Cir. 1997). Rather, it is “so inadequately supported by
the record . . . as to be unreasonable.” Maynard v. Boone, 468 F.3d 665, 671 (10th Cir. 2006)
(quoting Badelle v. Correll, 452 F.3d 648, 655 (7th Cir. 2006)).

I believe that the inferences in this case are insufficient to permit any rational juror
from finding that Davis acted as a lookout. Were there at least some evidence that Davis did
something particular to the role of a lookout, then it would be appropriate to deny relief.
Because such evidence is not present in this case, I respectfully dissent.