Laston v. Stoddard

Filing 18

OPINION AND ORDER Denying Petition for Writ of Habeas Corpus; Denying Certificate of Appealability; Granting Leave to Appeal In Forma Pauperis Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAVID LASTON,

Petitioner,

Case No. 2:14-cv-11609
Hon. Victoria A. Roberts

v.
C. STODDARD,
Respondent.
___________________________________/

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS,
DENYING A CERTIFICATE OF APPEALABILITY, AND GRANTING PERMISSION
TO APPEAL IN FORMA PAUPERIS
This is a habeas case brought by a Michigan prisoner under 28 U.S.C. § 2254. Petitioner
David Laston was convicted after a jury trial in the Wayne Circuit Court of assault with intent to
commit murder, MICH. COMP. LAWS § 750.83, carjacking, MICH. COMP. LAWS § 750.529a, assault
with intent to commit armed robbery, MICH. COMP. LAWS § 750.89, felon in possession of a firearm,
MICH. COMP. LAWS § 750.224f, and possession of a firearm during a felony (felony-firearm). MICH.
COMP. LAWS § 750.227b. Petitioner was sentenced to serve two concurrent terms of 31-to-50 years
for the assault convictions, a consecutive term of 20-to-40 years for the carjacking conviction, and
a consecutive term of two years for the felony-firearm conviction. Petitioner’s conviction and
sentence for felon in possession of a firearm was reversed on appeal.
The petition raises four claims: (1) insufficient evidence was presented at trial to prove that
Petitioner intended to carjack and rob the victim, (2) insufficient evidence was presented at trial to
prove that Petitioner had a prior felony to support his felon in possession of a firearm conviction,
and counsel was ineffective for stipulating to Petitioner’s prior record, (3) trial counsel was

ineffective for allowing the prosecutor to pursue carjacking and assault with intent to rob charges
at trial when there was insufficient evidence to support those charges, and (4) there was insufficient
evidence offered at trial to prove Petitioner’s identity as the perpetrator of the crimes. The Court
finds that Petitioner’s claims are without merit. Therefore, the petition is denied. The Court also
denies Petitioner a certificate of appealability, but will grant permission to proceed on appeal in
forma pauperis.
I. Background
This Court recites verbatim the relevant facts as summarized by the trial court in its opinion
denying Petitioner’s motion for relief from judgment. This recitation of the facts is presumed correct
on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th
Cir. 2009):
This matter arises out of a shooting in a parking lot in Detroit. The victim was
in his car when he heard tapping on the window and looked up to see a person
wearing a bandana over his face and pointing a gun. (T. Vol I, 16). The armed robber
was pulling on the door handle and saying something to the victim. Id. The victim
began to exit his vehicle but the robber shot him twice at point-blank range through
the driver’s window. (T. Vol I, 18).
A witness testified that she was dozing in the front seat of a vehicle in the
parking lot when she heard gunshots very near her. (T. Vol I, 163). She looked up
to see the victim getting out of his car that was parked next to her and a person with
a bandana covering his face and carrying a gun run in front of her vehicle. (T. Vol
I, 164). The shooter put his hand on the hood of her vehicle as he ran. Id. The witness
informed the investigating officer and latent prints were lifted from the hood of the
vehicle. (T. Vol II, 53). The finger prints belonged to the defendant. (T. Vol III, 16).
Another witness testified that she and her husband watched a person with his
face covered by a bandana approach the victim’s car and she heard him say, “Open
the door, get out of the car,” as he was pulling on the car handle. (T. Vol I, 140). The
robber shot the victim through the window and ran away. Other witnesses in the
parking lot testified to hearing gunshots and seeing a person wearing a bandana
covering his face running through the parking lot carrying a gun. The victim was
shot in the arm and in the chest and was fortunate to have survived his injuries.
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Dkt. 10-8, p. 2
Following his conviction and sentence, Petitioner filed a claim of appeal in the Michigan
Court of Appeals. His appellate brief raised the following claims:
I. The evidence was not legally sufficient to prove beyond a reasonable doubt that
Laston intended to carjack and rob the victim, rendering those convictions
constitutionally defective and necessitating their reversal.
II. The felon in possession conviction and sentence are fatally defective and without
sufficient evidence because Laston did not have a requisite prior felony. Laston was
denied the effective assistance of counsel though his failure to challenge this at trial
and sentencing, putting his prior felonies before the jury.
The Michigan Court of Appeals issued an unpublished opinion that rejected Petitioner’s first
claim, but it granted relief with respect to his second claim and reversed his felon in possession of
a firearm conviction. People v. Laston, No. 296566, 2011 WL 2204545 (Mich. Ct. App. June 7,
2011). Petitioner subsequently filed a pro se application for leave to appeal in the Michigan Supreme
Court. The Michigan Supreme Court denied the application because it was not persuaded that the
questions presented should be reviewed by the Court. People v. Laston, 804 N.W.2d 735 (Mich.
2011) (Table).
Petitioner returned to the trial court and filed a motion for relief from judgment, raising the
the following claims:
I. Laston’s convictions of carjacking and assault with intent to rob while armed must
be vacated due to insufficient evidence.
II. Laston was denied the effective assistance of trial counsel by his attorney’s failure
to object to the trial court’s decision to allow the prosecution to pursue carjacking
and assault with intent to rob while armed convictions with insufficient evidence.
III. The trial court erred when it accepted guilty verdict based upon insufficient
identification evidence that failed to demonstrate that Laston was the actual
perpetrator of the alleged crime.
The trial court issued an opinion and order on February 28, 2014, denying the motion for
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relief from judgment. The Court rejected Petitioner’s new claims on the merits, but it found that
review of Petitioner’s first claim was barred by the decision of the Michigan Court of Appeals under
Michigan Court Rule 6.508(D)(2).
Petitioner then filed an application for leave to appeal in the Michigan Court of Appeals. The
Michigan Court of Appeals denied the application for leave to appeal “for failure to establish
entitlement to relief under Michigan Court Rule 6.508(D).” People v. Laston, No. 317956 (Mich.
Ct. App. Dec. 9, 2013). Petitioner attempted to file a delayed application for leave to appeal this
decision in the Michigan Supreme Court, but his application was rejected as untimely on March 14,
2014. See Dkt. 10-12, Affidavit of Michigan Supreme Court Clerk.
II. Standard of Review
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), imposes the following standard of review for habeas cases:
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.
A state court adjudication is “contrary to” Supreme Court precedent under § 2254(d)(1) “if
the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases”
or “if the state court confronts a set of facts that are materially indistinguishable from a decision [of
the Supreme Court] and nevertheless arrives at a [different result].” Lockyer v. Andrade, 538 U.S.
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63, 73 (2003) (internal quotation marks omitted). Under the “unreasonable application” clause of
§ 2254(d)(1), habeas relief is available if “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.” Harris v. Haeberlin, 526 F.3d 903, 909 (6th Cir. 2008) (internal quotation
marks omitted). “In order for a federal court to find a state court’s application of [Supreme Court]
precedent ‘unreasonable,’ the state court’s decision must have been more than incorrect or
erroneous,” but rather “must have been ‘objectively unreasonable.’” Wiggins v. Smith, 539 U.S. 510,
520-21 (2003) (citations omitted). Indeed, under the “unreasonable application” clause of §
2254(d)(1),
even clear error will not suffice. Rather, as a condition for obtaining habeas corpus
from a federal court, a state prisoner must show that the state court’s ruling on the
claim being presented in federal court was so lacking in justification that there was
an error well understood and comprehended in existing law beyond any possibility
for fairminded disagreement.
White v. Woodall,

U.S. , 134 S. Ct. 1697, 1702, 188 L. Ed. 2d 698 (2014) (citations, quotation

marks, and alterations omitted). “When reviewing state criminal convictions on collateral review,
federal judges are required to afford state courts due respect by overturning their decisions only
when there could be no reasonable dispute that they were wrong.” Woods v. Donald,

U.S. , 135

S. Ct. 1372, 1376, 191 L. Ed. 2d 464 (2015). “Federal habeas review thus exists as ‘a guard against
extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error
correction through appeal.’” Id. (quoting Harrington v. Richter, 562 U.S. 86, 102-03 (2011)).
“[W]hether the trial judge was right or wrong is not the pertinent question under AEDPA.” Renico
v. Lett, 559 U.S. 766, 778 n.3 (2010). The question is whether the state court’s application of federal
law was “objectively unreasonable.” White, 134 S. Ct. at 1702. In short, the standard for obtaining
federal habeas relief is “difficult to meet . . . because it was meant to be.” Burt v. Titlow,
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U.S.

, 134 S. Ct. 10, 16, 187 L. Ed. 2d 348 (2013)(internal quotation marks omitted).
III. Analysis
A. Sufficiency of the Evidence
1. Intent to Commit Carjacking and Robbery
Petitioner’s first habeas claim asserts that insufficient evidence was presented at trial to
prove beyond a reasonable doubt that he intended to commit carjacking or that he intended to rob
the victim. Petitioner asserts that while evidence was presented that the perpetrator shot the victim,
there was absolutely no evidence presented at trial that the perpetrator’s intention was to take
anything from the victim. The Michigan Court of Appeals rejected this claim on the merits during
Petitioner’s direct appeal. Respondent asserts that the state court adjudication did not unreasonably
apply the established Supreme Court standard governing sufficiency of the evidence claims, barring
relief under § 2254(d).
“[T]he 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.” In re
Winship, 397 U.S. 358, 364 (1970). On direct appeal, review of a sufficiency of the evidence
challenge must focus on 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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). In the
habeas context, “[t]he Jackson standard must be applied ‘with explicit reference to the substantive
elements of the criminal offense as defined by state law.’” Brown v. Palmer, 441 F.3d 347, 351 (6th
Cir. 2006) (quoting Jackson, 443 U.S. at 324 n.16)).
“Two layers of deference apply to habeas claims challenging evidentiary sufficiency.”
McGuire v. Ohio, 619 F.3d 623, 631 (6th Cir. 2010) (citing Brown v. Konteh, 567 F.3d 191, 204-05
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(6th Cir. 2009)). First, the Court “must determine whether, viewing the trial testimony and exhibits
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.” Brown, 567 F.3d at 205, (citing Jackson, 443
U.S. at 319). Second, if the Court were “to conclude that a rational trier of fact could not have found
a petitioner guilty beyond a reasonable doubt, on habeas review, [the Court] must still defer to the
state appellate court’s sufficiency determination as long as it is not unreasonable.” Id. Indeed, the
Jackson standard is “exceedingly general” and therefore Michigan courts are afforded “considerable
leeway” in its application. Davis v. Lafler, 658 F.3d 525, 535 (6th Cir. 2011).
Under Michigan law the offense of carjacking requires, among other elements, that the
defendant, using force, threats, or fear, intended to take a vehicle from a person in lawful possession
and in that person’s presence. People v. Davenport, 230 Mich. App. 577, 580-581 (Mich. Ct. App.
1998). And an essential element of assault with intent to rob while armed include includes an intent
to rob or steal. People v. Akins, 259 Mich. App 545, 554 (Mich. Ct. App. 2003). An actor’s intent,
is something not often directly stated by a person while he commits a crime. Therefore, under
Michigan law, “[a] factfinder can infer a defendant’s intent from his words or from the act, means,
or the manner employed to commit the offense. In other words, a defendant’s intent can be proved
by circumstantial evidence.” People v. Hawkins, 245 Mich. App. 439, 458 (2001). This principal
is consistent with federal law, which allows the trier of fact to “draw reasonable inferences from
basic facts to ultimate facts.” Jackson, 443 U.S. at 319.
Here, viewed most favorably to the prosecution, the evidence presented at trial indicated that
while the victim was sitting in his car, Petitioner tapped on the driver’s side window, pulled on the
door handle, and told him to get out of the car. The door was locked but not fully closed, so
Petitioner was unable to open it. The victim, intending to comply with Petitioner’s demands said
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“hold on” and started to put his car in park. But before the victim was able to comply, Petitioner shot
him twice through the window and then fled. Clearly, this evidence was sufficient for any reasonable
juror to conclude beyond a reasonable doubt that Petitioner intended to take the victim’s car and rob
him, but he panicked and shot him instead when the victim was unable to immediately comply with
his demands. More to the point, the decision by the Michigan Court of Appeals that sufficient
evidence was presented was not objectively unreasonable. Accordingly, Petitioner’s claim is without
merit.
2. Identity of Petitioner as Perpetrator
Petitioner’s fourth habeas claim challenges the sufficiency of the evidence presented at trial
to prove that he was the perpetrator of the crimes. He notes that the various eyewitnesses gave
various descriptions of the perpetrator and could not agree on the color of the bandana he wore. He
also notes that fingerprints were found on the victim’s car that did not match his. This claim was
presented to the trial court in Petitioner’s motion for relief from judgment, and the court found that
the claim was without merit. Despite the fact that Petitioner was unable to appeal this decision to
the Michigan Supreme Court, rendering the claim unexhausted or defaulted, Respondent asserts that
relief should be denied on the merits. The Court is permitted to deny an unexhausted claim on the
merits. See 28 U.S.C. § 2254(b)(2).
The Court has reviewed the trial record. Several witnesses testified that a man wearing a
bandana on his face approached the victim’s vehicle, tried to open the door, and then shot the victim.
Estella Carrillo testified that shortly before the incident she puller her aunt’s Chevy Blazer into the
parking lot where the shooting occurred. She did not see the incident. Rather, while she waited in
the vehicle for her cousin and friend to come out of the store, she heard two gunshots. She then
looked up and saw one man emerge from his car and another man wearing a bandana over his face
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running past her vehicle. The man in the bandana placed his hand on the hood of the Blazer as he
ran past. See Trial Tr. I, pp. 161-168. Marcia McCleary testified that she was a latent print examiner
for the Detroit Police Department. Two latent prints were lifted from the right side hood of a Chevy
Blazer parked at the scene of the crime. McClearly first used AFIS, Michigan’s automated
fingerprint identification system, but that system did not return any matches. The print contained
nine characteristics for identification–so McCleary conducted a manual comparison of the latent
print to the prints of at least six suspects provided to her by a detective. She concluded that the latent
print matched Petitioner’s known print but not the other suspects. Petitioner was then taken into
custody, and McCleary fingerprinted him. The new print also matched the latent print taken from
the hood of the Blazer with twelve points of comparison. McCleary opined that Petitioner was the
person who had left the print on the Blazer that was at the scene. See Trial Tr. III, pp. 5-18.
Viewed most favorably to the prosecution, the Court has no trouble concluding that a rational
fact-finder could find that Petitioner was the person who committed the crime based solely on the
fact that he was the one who left the fingerprints on the Blazer. Combining the testimony of the
other eyewitnesses with Carrillo’s testimony, the same man who shot the victim is the one who ran
past her vehicle and touched the hood. Fingerprint evidence alone can be sufficient to sustain a
conviction against constitutional attack. Lige v. Metrish, No. 07-14871, 2009 WL 3818189, at *6
(E.D. Mich. Nov. 13, 2009) (citing Taylor v. Stainer, 31 F.3d 907, 909–10 (9th Cir.1994) and
Duncan v. Stynchcombe, 704 F.2d 1213, 1215 (11th Cir.1983); see also Taylor v. Stainer, 31 F.3d
907, 910 (9th Cir. 1994) (fingerprint left on victim’s windowsill by itself was sufficient to sustain
felony-murder conviction). This claim was reasonably rejected by the trial court and does not
provide a basis for granting habeas relief.
B. Ineffective Assistance of Counsel
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1. Stipulation to Petitioner’s Prior Record
Petitioner’s second issue claims that insufficient evidence was presented at trial to show that
he had a prior felony to support his felon in possession of a firearm conviction. He also claims that
his trial counsel was ineffective for stipulating to the prior felony. The first part of the claim was
resolved in Petitioner’s favor by the Michigan Court of Appeals, and Petitioner’s conviction for
felon in possession of a firearm was reversed. The state appellate court rejected the second portion
of the claim on the merits, finding that the stipulation did not cause sufficient prejudice to affect the
outcome of the trial with respect to the other charges. Respondent contends that this decision was
reasonable.
To show he was denied the effective assistance of counsel under federal constitutional
standards, a petitioner must satisfy a two prong test. First, a petitioner must demonstrate that,
considering all of the circumstances, counsel’s performance was so deficient that the attorney was
not functioning as “counsel” guaranteed by the Sixth Amendment. Strickland v. Washington, 466
U.S. 668, 687 (1984). In so doing, a petitioner must overcome a strong presumption that counsel’s
behavior lies within the wide range of reasonable professional assistance. Id. In other words, a
petitioner must overcome the presumption that, under the circumstances, the challenged action
might be sound trial strategy. Strickland, 466 U.S. at 689.
Second, a petitioner must show that such performance prejudiced his defense. Id. To
demonstrate prejudice, a petitioner must show that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland,
466 U.S. at 694. The Supreme Court’s holding in Strickland thus places the burden on a petitioner
raising a claim of ineffective assistance of counsel, and not the state, to show a reasonable
probability that the result of the proceeding would have been different, but for counsel’s allegedly
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deficient performance. See Wong v. Belmontes, 558 U.S. 15, 27 (2009).
Furthermore, on habeas review, “the question is not whether a federal court believes the state
court’s determination under the Strickland standard was incorrect but whether that determination
was unreasonable - a substantially higher threshold.” Knowles v. Mirzayance, 556 U.S. 111, 123
(2009) (internal quotations omitted). “The pivotal question is whether the state court’s application
of the Strickland standard was unreasonable. This is different from asking whether defense counsel’s
performance fell below Strickland’s standard.” Richter, 562 U.S. at 101. Indeed, “because the
Strickland standard is a general standard, a state court has even more latitude to reasonably
determine that a defendant has not satisfied that standard.” Knowles, 556 U.S. at 123.
Consequently, the § 2254(d)(1) standard applies a “doubly deferential judicial review” to a
Strickland claim brought by a habeas petitioner. Id. This means that on habeas review of a state
court conviction, “[A] state court must be granted a deference and latitude that are not in operation
when the case involves review under the Strickland standard itself.” Richter, 562 U.S. at 101.
“Surmounting Strickland’s high bar is never an easy task.” Id. at 105 (quoting Padilla v. Kentucky,
559 U.S. 356, 371 (2010)). Because of this doubly deferential standard, “the question is not whether
counsel’s actions were reasonable. The question is whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.” Richter, 562 U.S. at 105. A reviewing court
must not merely give defense counsel the benefit of the doubt, but must also affirmatively entertain
the range of possible reasons that counsel may have had for proceeding as he or she did. Cullen v.
Pinholster, 563 U.S. 170 (2011). Reliance on hindsight to cast doubt on a plea that took place over
four years ago is precisely what Strickland and AEDPA seek to prevent. See Richter, 562 U.S. at
107.
Here, as correctly noted by the state appellate court, other than an unembellished stipulation
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placed on the record for the felon in possession charge, the matter was not discussed or argued by
counsel in front of the jury. Furthermore, “juries are presumed to follow their instructions,”
Richardson v. Marsh, 481 U.S. 200, 211 (1987). And here, the trial court instructed the jury that it
was not permitted to use the stipulation for any purpose other than the fact he had a prior felon for
purposes of that offense. The instruction prohibited the jury from using his prior conviction to
determine that he was a bad man or as evidence that he committed the other offenses. Given the
brief manner in which the prior felony was admitted and the limiting instruction, it was reasonable
for the state court to find there was no reasonable probability that the result of Petitioner’s trial
would have been different had his counsel not stipulated to admission of the evidence. Therefore,
Petitioner has failed to demonstrate entitlement to relief based on this claim.
2. Allowing Trial to Proceed on Carjacking and Assault Charges
Petitioner’s third claim asserts that his counsel was ineffective for allowing the case to
proceed to trial when there was insufficient evidence of his intent to commit the robbery or the
carjacking. This claim is frivolous. As discussed above the evidence presented at trial was sufficient
to sustain his convictions. Counsel was not ineffective for failing to raise a meritless argument.
Bradley v. Birkett, 192 Fed. Appx. 468, 475 (6th Cir. 2006); Thirkield v. Pitcher, 199 F. Supp. 2d
637, 654 (E.D. Mich. 2002).
IV. Certificate of Appealability
In order to appeal the Court’s decision, Petitioner must obtain a certificate of appealability.
To obtain a certificate of appealability, a prisoner must make a substantial showing of the denial of
a constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this denial, the applicant is required
to show that reasonable jurists could debate whether the petition should have been resolved in a
different manner, or that the issues presented were adequate to deserve encouragement to proceed
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further. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). A federal district court may grant or deny
a certificate of appealability when the court issues a ruling on the habeas petition. Castro v. United
States, 310 F.3d 900, 901 (6th Cir. 2002). Here, jurists of reason would not debate the Court’s
conclusion that Petitioner has not met the standard for a certificate of appealability because his
claims are completely without merit. The Court will therefore deny a certificate of appealability with
respect to all of Petitioner’s claims.
The Court will, however, grant permission to appeal in forma pauperis because any appeal
of this decision could be taken in good faith. 28 U.S.C. § 1915(a)(3).
V. Conclusion
Accordingly, the Court 1) DENIES WITH PREJUDICE the petition for a writ of habeas
corpus, 2) DENIES a certificate of appealability, and 3) GRANTS permission to appeal in forma
pauperis.
SO ORDERED.
S/Victoria A. Roberts____________
Hon. Victoria A. Roberts
United States District Judge
Dated: 12/22/2015

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