6th Circuit reverses itself on habeas case

In an en banc rehearing of the 2010 Davis v. Lafler case, the 6th U.S. Circuit Court of Appeals affirmed the district court’s denial of a defendant’s writ of habeas corpus, reversing itself in the process.

In the case, the defendant was charged with aiding and abetting a carjacking. The prosecution said he acted as a lookout for a friend who pulled off the crime and rode off with the friend after the carjacking.

In the 2010 decision, the court said there wasn’t enough evidence to show he did anything to assist the crime. (For more on the 2010 decision, read our analysis in “6th Circuit overtuns aiding and abetting conviction.” The original majority opinion relied upon another 6th Circuit decision in Brown v. Palmer, in which another defendant was charged with aiding and abetting a carjacking. In Brown, the court also found the evidence was insufficient to show Brown had actually done anything to assist the carjacking.

In the en banc decision, Judge Ronald Gilman wrote for the majority that the two cases aren’t similar enough. In Brown, Gilman noted, the defendant didn’t arrive at the scene with the carjacker. He also noted Davis’s strange conduct in that he entered the restaurant just before the crime, ordered only water and no food, and left immediately after in the stolen car.

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

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.

The majority also found no ineffective assistance of counsel under the Strickland v. Washington standard for not calling the carjacker to testify. Gilman wrote that it was a strategic decision in that he didn’t want his client connected to the carjacker in the jury’s minds. Judge Boyce Martin dissented from this part of the decision only, arguing that he’d remand for an evidentiary hearing on the ineffective assistance claim. Judge Karen Nelson Moore dissented, agreeing with the original panel on the sufficiency of the evidence.

If you’re keeping score, the votes were as follows:

Gilman wrote the majority opinion, joined by Chief Judge Batchelder, and Judges Boggs, Gibbons, Rogers, Sutton, Cook, McKeague, Griffin and Kethledge. Martin wrote a partial concurrence/partial dissent on the ineffective assistance of counsel, joined by Judge Stranch. Moore dissented, joined by Judges Cole and Clay


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