Davis v. Lafler

DISSENT

RONALD LEE GILMAN, Circuit Judge,

dissenting.

The majority finds this case indistinguishable from our decision in Brown v. Palmer, 441 F.3d 347 (6th Cir.2006), where this court granted habeas relief on the ground that the state court unreasonably concluded that the evidence was sufficient to convict Brown of aiding and abetting a carjacking. As the author of Brown, I respectfully disagree. I also believe that the majority fails to give proper deference to the Michigan trial court’s decision that we, as federal judges applying applicable *881Supreme Court precedent and the Antiterrorism and Effective Death Penalty Act (AEDPA), are required to give it. Accordingly, I dissent.

The evidence against Davis demonstrated that (1) he 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; (8) 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 nearby.

In contrast, 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 after-wards; and (10) the perpetrator was never apprehended. Id. at 349.

I believe that the factual differences between these two cases are material. First, there was no evidence that Brown arrived at the scene with the perpetrator. He claimed 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 clear 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. Even the majority acknowledges the assumption “that Davis was staring at the crime from the large front *882window of the restaurant.” (Maj. Op. at 12) Indeed, no other inference seems reasonable in light of the fact that Davis immediately walked out and hopped into the carjacked SUV when Washington drove it a few feet toward the restaurant. Davis would have had no other way of so closely coordinating his actions with those of Washington if he had not been watching the carjacking unfold. 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, 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. What else could more clearly indicate his connivance in the carjacking scheme?

For Brawn to arguably control the outcome in this case, Brown would have needed to exit his car at the gas station, watch the carjacking occur, and then enter the stolen car 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. 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. Furthermoi'e, 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 crime. 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. Warman, 578 F.3d 320, 338 (6th Cir.2009) (rejecting a sufficiency-of-the-evidence claim because various pieces of evidence “[t]aken together” were sufficient to meet the Jackson [v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)] standard); United States v. Siyam, 325 Fed.Appx. 675, 680 (10th Cir.2009) (noting, when discussing a sufficiency-of-the-evidence claim, that “[w]e do not view each piece of evidence in a vacuum; we consider the collective inferences drawn from the evidence as a whole”); People v. Carines, 460 Mich. 750, 597 N.W.2d 130, 135 (1999) (“An aider and abettor’s state of mind may be inferred from all the facts and circumstances.” (citation omitted)). 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. Allen, 201 Mich.App. 98, 505 N.W.2d 869, 871 (1993) (“Circumstantial evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of the elements of a crime.”).

Comparing the present case to a hypothetical situation further proves the point. *883Assume that a car arrives in a mini-mall parking lot. Two men exit. The first man goes into a restaurant with a clear view of a bank in the mall. He orders a glass of water and stares at the bank. The second man enters the bank, robs it at gunpoint, and reenters the car. He pulls the car closer to the restaurant, where the first man promptly exits the restaurant and hops in the vehicle. The two drive off, and several hours later are found dividing up the cash between them. In such a case, the fact that the two men are splitting the proceeds afterwards strongly indicates that the first man’s actions at the time of the robbery were meant to aid and abet the crime. To argue that such evidence is meaningless is the prerogative of a defense attorney in closing argument, not that of a federal appeals court reviewing a § 2254 petition. This is why I emphatically disagree with the majority’s reasoning that “the fact that Davis was found stripping the car several hours after the crime provides no indication or inference that Davis encouraged Washington in the commission of the crime in any way.” (Maj. Op. at 879-80)

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, I see 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 352-353. But in light of AEDPA’s deferential standard, Brown was a very close case. The present case, on the other hand, is distinguishable because the additional facts supporting the jury’s verdict push it well beyond an “objectively unreasonable” outcome that would entitle Davis to habeas relief. See Wiggins v. Smith, 539 U.S. 510, 520-21, 123 S.Ct. 2527, 156 L.Ed.2d 471 (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).

As the Michigan Assistant Attorney General put it at oral argument, this is a case that requires “double deference” to the jury’s verdict. See White, 602 F.3d at 710 (explaining that AEDPA accords a “double layer of deference”). The Michigan state courts were required to reject Davis’s postconviction sufficiency-of-the-evidence claim if, “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.” See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original). Even at this first level of deference, the Jackson 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) (citation omitted). Indeed, such a claim is so hard to prove on appeal that this court recently referred to it as a “perennial loser.” See Benning v. Warden, Lebanon Corr. Inst., 345 Fed.Appx. 149, 157-58 (6th Cir.2009).

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, 123 S.Ct. 2527 (citations and internal quotation marks omitted); see also Lockyer v. *884Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (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.” (citation and 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 most federal courts’ failure to further define “objectively unreasonable” and collecting cases). Several of our sister circuits, however, have attempted to clarify this 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 and agreeing with Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.2000)).

Taking a slightly 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, 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^] an answer within the range of defensible positions”). The Tenth Circuit 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 (citation and internal quotation omitted).

This court has not delved deeply into the issue, but Judge Cole 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) (citation and internal quotation marks omitted). Moreover, the Supreme Court has 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, — U.S.-,-, 130 S.Ct. 1855, 1864, 176 L.Ed.2d 678 (2010) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)).

Accordingly, “ ‘the more general the rale’ 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-ease determinations.’ ” Id. (brackets omitted) (quoting Yarborough, 541 U.S. at 664, 124 S.Ct. 2140). And the Jackson standard-requiring a court to allow for a range of rational fact-finders 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) (explaining that the Jackson standard is “a general standard”); see also Wright v. West, 505 U.S. 277, 308, 112 S.Ct. 2482, 120 *885L.Ed.2d 225 (1992) (Kennedy, J., concurring) (identifying Jackson as enunciating “a general standard”).

We must therefore give the Michigan trial court considerable leeway in the case before us. My own opinion is that Davis’s case fails to meet even the first level of deference as required by Jackson. This view is presumably shared by the district court below, which referred to the evidence in the case as “strong” and even denied a certificate of appealability. See, e.g., Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (explaining that a habeas petitioner is entitled to a certificate of appealability by simply showing “that reasonable jurists would find the district court’s assessment of the constitutional claims debatable” (citation and internal quotation marks omitted)). Given the strong circumstantial evidence that Davis was involved in the planning and execution of the crime, I firmly believe that at least one “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” See Jackson, 443 U.S. at 319, 99 S.Ct. 2781; 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.” (citation omitted)).

And when this case is given “double deference” through the lens of AEDPA, so that we are limited to reviewing whether the state 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, the outcome seems obvious. Even if the majority would have found differently had they sat in the jury box or heard this case on direct appeal, the Michigan trial court’s decision is certainly not so far out of line with the very general standard set forth in Jackson as to warrant giving Davis habeas relief. The state court’s decision was simply not objectively unreasonable. See Price v. Vincent, 538 U.S. 634, 639, 643, 123 S.Ct. 1848, 155 L.Ed.2d 877 (2003) (unanimously reversing the Sixth Circuit’s grant of habeas relief where the court “recited the standard” of AEDPA but failed to conduct an appropriately deferential review of the case). I therefore respectfully dissent.