Tony DAVIS, Petitioner-Appellant, v. Blaine LAFLER, Warden, Respondent-Appellee, 609 F.3d 870

RUSSELL, Chief D.J., delivered the opinion of the court, in which MOORE, J., joined. GILMAN, J. (pp. 880-85), delivered a separate dissenting opinion. OPINION THOMAS B. RUSSELL, Chief Judge. Petitioner-Appellant, Tony Davis, appeals the judgment of the District Court denying his petition for writ of habeas corpus. Following a jury trial, a Michigan state court convicted Davis of carjacking and receiving and concealing stolen property over a value of $20,000.00.

The Michigan Court of Appeals denied Davis’s application for leave to appeal for lack of merit, following which the Michigan Supreme Court also denied Davis’s application for leave to appeal. Upon Davis’s filing a petition for habeas relief, the district court concluded that the state court correctly applied clearly established federal law in finding the evidence presented was sufficient to find guilt beyond a reasonable doubt and the performance of trial counsel in refusing to call an exculpatory witness was not constitutionally deficient.

For the reasons set forth below, we REVERSE the decision of the district court and REMAND the case to the district court with instructions to grant a conditional writ of habeas corpus, giving the State of Michigan 120 days within which to provide Davis a new trial or, failing that, to release him. I. BACKGROUND On December 11, 2002, Petitioner-Appellant, Tony Davis, was convicted by a jury in the Wayne Circuit Court of carjacking and receiving and concealing stolen property over a value of $20,000.00 pursuant to Michigan statutes.

He was sentenced on January 8, 2003, to a prison term of 13 to 20 years for the carjacking conviction and received a concurrent term of 23 months to 10 years pursuant to the conviction for receiving and concealing stolen property. The district court summarized the relevant facts of this case as follows: 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 the exit the vehicle. Washington pointed a .9-mm weapon at Franklin and again ordered him out of the vehicle. Franklin, Brittany and Depriest exited the vehicle. Washington drove the vehicle to the 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 ... 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.... 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. Washington pled guilty in connection with the carjacking of Franklin. Davis was initially charged with armed robbery and carjacking, to which he pled not guilty and was appointed counsel, Robert Slameka. The State of Michigan tried Davis for the carjacking under an aiding and abetting theory.

The Information was amended after the close of evidence to include a count of receiving and concealing stolen property valued over $20,000.00. The jury returned a verdict finding Davis not guilty of armed robbery but convicting him of carjacking and receiving and concealing stolen property valued over $20,000.00. Davis was appointed new counsel following his conviction. Davis moved the trial court for dismissal on two grounds: (1) the evidence presented at trial was insufficient to support a conviction for aiding and abetting a carjacking and

(2) Slameka had been constitutionally ineffective due to his inadequate preparation and consultation with Davis prior to trial and due to his refusal to call Washington as a witness. The state trial court denied Davis’s motion for dismissal. Taking the evidence in a light most favorable to the prosecution, the court concluded the evidence was sufficient to find Davis aided and abetted the carjacking.

The court found the evidence showed Davis “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,” then “immediately got into the stolen vehicle and two and half hours later was found dismantling it.” From this, the court concluded it was a “reasonable inference” that Davis “preplanned his role in the carjacking thereby satisfying the intent element of aiding and abetting a carjacking.” The court also rejected Davis’s claim of ineffective assistance of counsel, concluding that Davis “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, [Davis] would have had a more positive outcome at trial.” Davis moved the Court of Appeals for the State of Michigan for leave to appeal on the same grounds after the trial court’s denial of his motion for dismissal.

Davis’s request to appeal was denied as unmeritorious in a one-sentence order with no supporting reasoning. On the same grounds, Davis sought leave to appeal to the Michigan Supreme Court. This request was also denied in a one-sentence order without supporting reasoning. Davis then filed a habeas petition under 28 U.S.C. § 2254 challenging his conviction on the same grounds raised before the state court: insufficiency of evidence and ineffective assistance of counsel. On January 31, 2008, the district court issued an opinion and order denying the petition. Davis now appeals this denial. II. ANALYSIS A.

Standard of review We review the legal conclusions of a district court in federal habeas corpus proceedings de novo, whereas the factual findings of the court will be set aside only if clearly erroneous. Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir.1999). The findings of fact by a district court are reviewed de novo, however, if they are based only upon review of the state court transcript. Dando v. Yukins, 461 F.3d 791, 796 (6th Cir. 2006). Review of state court determinations is governed by the Antiterrorism and Effective Death Penalty Act (“AEDPA”), codified at 28 U.S.C. § 2254(d).

AEDPA provides that [a]n 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. 28 U.S.C. § 2254(d).

State court application of federal law is contrary to clearly established federal law “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, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (O’Con-nor, J., concurring); Brown v. Palmer, 441 F.3d 347, 350 (6th Cir.2006).

The state court’s application of federal law is unreasonable where “the state court identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at 413, 120 S.Ct. 1495. The state court’s decision must have been objectively unreasonable. Wiggins v.

Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); Williams, 529 U.S. at 409, 120 S.Ct. 1495 (“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.”). An unreasonable application of federal law is distinct from an incorrect application of federal law. Williams, 529 U.S. at 410, 120 S.Ct. 1495; see also Macias v.

Makowski, 291 F.3d 447, 454 (6th Cir.2002) (“[T]he relevant question is not whether the state court’s decision was wrong, but whether it was an unreasonable application of clearly established federal law.”). Therefore, “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.” Williams, 529 U.S. at 411, 120 S.Ct. 1495.

The factual findings of the state court are presumed correct, but may be rebutted. 28 U.S.C. § 2254(e)(1). The applicant, or petitioner, bears the burden of rebutting the presumption of correctness by clear and convincing evidence. Id.; see also Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir.2003) (“Under AEDPA, primary or historical facts found by state courts are presumed correct and are rebuttable only by clear and convincing evidence.” (internal quotation marks omitted)). B.

Sufficiency of the Evidence to Support Conviction for Aiding and Abetting Carjacking Following the standard set forth in AEDPA, we must first determine 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. We agree with the district court that the state court incorporated the proper federal standard; therefore, it was not contrary to clearly established law.

The question remains whether the state court’s determination that there was sufficient evidence for a rational trier of fact to infer intent was an unreasonable application of that federal standard. We conclude the state court’s determination was an unreasonable application of the federal standard. The applicable clearly established federal standard is set out by the Supreme Court in Jackson v. Virginia, 443 U.S. 307, 309, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

In Jackson, the Supreme Court stated: “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, 99 S.Ct. 2781; see also In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (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, 99 S.Ct. 2781. However, “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, 99 S.Ct. 2781. “[W]hen such a conviction occurs in a state trial, it cannot constitutionally stand.” Id. at 318, 99 S.Ct. 2781.

The court 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, 99 S.Ct. 2781 (emphasis in original). 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, 99 S.Ct. 2781.

The State, in order to support a conviction for aiding and abetting a crime under Michigan law, must prove beyond a reasonable doubt that (1) the crime charged was committed by the defendant or some other person, (2) the defendant performed acts or gave encouragement that assisted the commission of the crime, and (3) the defendant intended the commission of the crime or had knowledge that the principal intended it when the defendant gave aid or encouragement. Brown, 441 F.3d at 351 (citing People v.

Cannes, 460 Mich. 750, 597 N.W.2d 130, 135 (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, 196 Mich.App. 604, 493 N.W.2d 471, 476 (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. However, “[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.” People v. Wilson, 196 Mich.App. 604, 493 N.W.2d 471, 476 (1992); Brown, 441 F.3d at 351.

The Michigan Supreme Court has also held that mere mental approval, passive acquiescence or consent are similarly insufficient to find a person an aider and abettor. Fuller v. Anderson, 662 F.2d 420, 424 (6th Cir. 1981) (quoting People v. Burrel, 253 Mich. 321, 235 N.W. 170 (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.” Fuller, 662 F.2d at 424. 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, 1987 WL 37432, at *2 (6th Cir. May 20, 1987) (citing People v. Lucas, 402 Mich. 302, 262 N.W.2d 662, 662-63 (1978)). Aiding and abetting of the crime must occur before or during the commission of the crime. See People v. Smith, Nos. 204474, 204476, 1999 WL 33453995, at *8 (Mich.Ct.App. Mar. 12, 1999). On appeal, Davis argues the evidence presented was insufficient to establish that he aided and abetted the carjacking. The following facts were introduced at trial:

(1) Davis arrived at the scene of the crime with Washington and a third person in a Chevrolet Cavalier;

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

(3) Washington stayed outside the restaurant and the third person stayed in the Cavalier;

(4) Davis ordered a cup of water and stood at a window inside the restaurant; (5) after the two victims exited the restaurant and entered their car, Washington ordered all three of the victims out of their car at gunpoint;

(6) Washington drove the stolen car a very short distance toward the restaurant where Davis entered the car;

(7) Washington then drove away from the scene with Davis in the car; (8) the third person who was in the Cavalier drove off after them;

(9) Davis, Washington and another man were caught stripping the car in a garage roughly two-and-a-half hours later; and (10) the Cavalier that was seen trailing Washington and Davis from the restaurant was found near the garage. Davis argues these facts permit only speculation that he played any role in the crime and only speculation that he had the requisite criminal intent.

Davis concludes that “[t]hese facts established, at most, acquiescence and after-the-fact assistance, neither of which suffices for a conviction.” The State argues the evidence presented at trial was “clearly sufficient to allow any rational trier of fact to conclude Davis aided and abetted in the commission of the carjacking offense.” The State’s theory is that Davis acted as a lookout for the carjacking.

The State also argues that although Davis may be able to present a reasonable alternative to the finding that he was aiding and abetting, the federal court may not substitute its view of the facts for that of the state court. This Court has addressed this situation in a similar case: Brown v. Palmer, 441 F.3d 347 (6th Cir.2006), which is binding precedent. The Brown court, applying Michigan law, held there was insufficient evidence to find the defendant guilty of aiding and abetting 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 ... however, the evidence pointing to Brown’s guilt becomes quite speculative.” Id. The Brown court went on to say, “[although 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 Brown in fact provided assistance or encouragement to the perpetrator. Id. at 352.

Being present at the scene was insufficient to establish that Brown aided and abetted beyond a reasonable doubt. Id. Additionally, the Brown court reasoned that flight from the scene was similarly insufficient as it is consistent with desire to avoid a confrontation from the victims of the carjacking, distinguishable from the inference of guilt that arises when one flees from law enforcement. Id. The Brown court also discussed and found persuasive two other cases from this Court which addressed similar circumstances: Fuller v. Anderson, 662 F.2d 420 (6th Cir.1981), and Hopson v.

Foltz, No. 86-1155, 818 F.2d 866,1987 WL 37432 (6th Cir. May 20, 1987). In Fuller, 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. Evidence was presented that petitioner “stood guard,” “turned his head from side to side more than twice,” and ran away with the perpetrator after the arson. Id.

However, the Fuller court held that while this evidence created reasonable speculation, there was no evidence the petitioner intended to burn the home, and the evidence Fuller acted as a lookout was “insufficient to establish beyond a reasonable doubt that [Fuller] took conscious action to aid [the perpetrator’s] commission of arson.” Id. at 424. In Hopson, the petitioner was tried for aiding and abetting second degree murder in Michigan. 1987 WL 37432, at *1.

The following evidence was presented: the petitioner and victim were seen with two others arguing in a bar where a comment was made to the victim implying 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; 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 the shells to the individual in the house. Id.

The Hopson court held that the testimony “indicates at most [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 someone else intended to harm [the victim], and that he may have taken the empty shell casing after the shooting.” Id at *2. However, the court found no proof was provided that he 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 concluded that the statements made may have shown animus but could not be construed as encouragement and that Hopson’s actions taking the shell casings may have made him an accessory after the fact but could not support a conviction as an aider and abettor. Id at *2. The court held that this evidence was insufficient to establish guilt beyond a reasonable doubt.

Id Applying to the case at hand this precedent of Broum, and the Fuller and Hopson cases that Broum approvingly endorsed, we conclude that the evidence presented at trial is not sufficient to support a conviction of guilt beyond a reasonable doubt. First, although the facts establish that Davis was at the scene, the law makes clear that this alone is not enough. Second, the evidence establishes that Davis entered the restaurant, ordered water, and remained in the restaurant until the crime was over.

The State asserts this is circumstantial evidence of Davis’s role as a lookout, but there is no evidence of him looking around, which itself was not enough in Fuller. Nor is there testimony about Davis’s behavior while the carjacking was taking place. Franklin, one of the victims, testified that Davis stood at the window during the crime. However, unlike in Broum, there is no evidence he was facing the parking lot and staring or even looking at the crime.

Nor is the testimony clear as to which window Davis was standing near: the large window that forms part of the restaurant’s facade or the service window inside the restaurant. Even taking the facts in a light most favorable to the prosecution, and even assuming that Davis was staring at the crime from the large front window of the restaurant, these same facts in Broum were held to be insufficient to establish aiding and abetting.

Also, the State presented no evidence 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 Davis created a distraction. Third, there is testimony that Davis entered the stolen vehicle when the perpetrator stopped to allow him to get in and fled the scene. Flight, as in the Fuller case, may be less indicative of guilt when the individual is fleeing for other reasons, such as desire to avoid confrontation, rather than fleeing from law enforcement.

Here, the victims of the crime were still in the parking lot and may have associated Davis with the crime. This fact does not establish that Davis was encouraging, supporting, or inciting the crime. First, the crime had been committed by the time he entered the vehicle.

In order to establish the crime of carjacking the State must establish “(1) that the defendant took a motor vehicle from another person, (2) that the defendant did so in the presence of that person, a passenger, or any other person in lawful possession of the motor vehicle, and (3) that the defendant did so either by force or violence, by threat of force or violence, or by putting the other person in fear.” People v. Davenport, 230 Mich.App. 577, 583 N.W.2d 919, 921 (1998). At the time Davis entered the stolen vehicle the elements of the crime had been satisfied.

Second, although flight in this instance may provide an inference of knowledge of the crime, it does not similarly provide an inference that Davis took a conscious action to aid the commission of the crime. Finally, 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. This fact may provide 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.

See Hopson, 1987 WL 37432, at *2 (holding that post-crime conduct does not support finding beyond a reasonable doubt that defendant aided crime). Furthermore, taking the facts together does not support a finding of guilt beyond a reasonable doubt. These facts provide reason to speculate that Davis acted as a lookout for Washington’s crime; however, “reasonable speculation” is distinct from “sufficient evidence” under Jackson. Brown, 441 F.3d at 352.

While there is considerable circumstantial evidence that Davis was aware of the plan to commit the carjacking, no rational trier of fact could infer beyond a reasonable doubt that Davis performed

an act or provided encouragement before or during the commission of the crime, a necessary element of the charge of aiding and abetting. Even taken in a light most favorable to the prosecution, the evidence did not establish beyond a reasonable doubt that Davis performed acts or gave encouragement that assisted the crime, especially in view of the precedent of this Court regarding which acts constitute aiding and abetting.

The district court in this case found that the state court incorporated the proper Jackson standard and concluded that the “state court’s decision that sufficient evidence was presented to sustain [Davis’s] conviction did not result in a decision that involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the Untied States.” After de novo review, taking the facts in the light most favorable to the State and drawing all reasonable inferences consistent with the verdict, the Court concludes the facts presented in this case simply do not provide sufficient evidence on which to find Davis aided and abetted carjacking beyond a reasonable doubt.

Based on the facts relied on by the state court, it was unreasonable to determine that any rational trier of fact could infer beyond a reasonable doubt that Davis performed

an act or gave encouragement while the crime was being committed. We conclude the district court erred in finding the state court decision did not involve an unreasonable application of federal law. As we have found there was insufficient evidence on which to base Davis’s conviction for aiding and abetting the carjacking, there are sufficient grounds for grant of a conditional writ of habeas. Therefore, we need not address Davis’s ineffective assistance of counsel ground for habeas relief. III.

CONCLUSION We therefore REVERSE the district court’s denial of Davis’s habeas petition and REMAND the case to the district court with instructions to grant a conditional writ of habeas corpus, giving the State of Michigan 120 days within which to provide Davis a new trial or, failing that, to release him. . In order to be clearly established law, the law relied on by the petitioner must be law that was clearly established at the time the state court decision became final, not afterward. Williams, 529 U.S. at 380, 120 S.Ct. 1495.

Additionally, the Court is also limited to law “as determined by the Supreme Court.” Id. at 381-82, 120 S.Ct. 1495. However, 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 [the court has] 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).