Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
The opinion of the court was delivered by: Ronald Lee Gilman, Circuit Judge.
Gerald E. Rosen, Chief District Judge.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
Before: BATCHELDER, Chief Judge; MARTIN, BOGGS, MOORE, COLE, CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE, and STRANCH, Circuit Judges.*fn1
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.
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.
In denying Davis's petition for a writ of habeas corpus under 28 U.S.C. § 2254, the district court provided the following summary of the relevant facts:
Petitioner's convictions arise out of a carjacking that occurred in the parking lot of a restaurant in Detroit, Michigan.
Clarence Franklin testified that, on March 27, 2002, at approximately 10:00 p.m., he stopped at the China One Restaurant, along with his fiancee Yvonne Depriest and 12-year-old daughter, Brittany Johnson. Franklin parked his Lincoln Navigator. He and his daughter went into the restaurant to get food and Depriest remained in the vehicle. After waiting for approximately ten minutes, Franklin got his food and left the restaurant. As he was leaving, he saw Petitioner enter the restaurant.
Franklin testified that Brittany sat in the backseat of the vehicle and he got into the driver's seat. As he closed his door, Marco Washington approached the vehicle and ordered Franklin to  exit the vehicle.
Washington pointed a .9-mm weapon at Franklin and again ordered him out of the vehicle. Franklin, Brittany and Depriest exited the vehicle. Washington drove the vehicle to the 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.
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.
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.
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 ...