David Levack v. Mike Brown

• Court: Court of Appeals for the Sixth Circuit
• Decided: June 17, 2022
• Docket: 21-1336
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 22a0246n.06

No. 21-1336

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

) FILED DAVID ANTHONY LEVACK, Jun 17, 2022 ) Petitioner-Appellant, ) DEBORAH S. HUNT, Clerk ) v. ) ON APPEAL FROM THE ) UNITED STATES DISTRICT MIKE BROWN, Warden, ) COURT FOR THE WESTERN Respondent-Appellee. ) DISTRICT OF MICHIGAN ) )

Before: BATCHELDER, CLAY, and LARSEN, Circuit Judges.

LARSEN, J., delivered the opinion of the court in which BATCHELDER and CLAY, JJ., joined. CLAY, J. (pg. 10), delivered a separate concurring opinion.

LARSEN, Circuit Judge. David Levack appeals the district court’s denial of his habeas

petition under 28 U.S.C. § 2254. Levack was convicted in Michigan state court of first-degree

murder, first-degree home invasion, and witness intimidation. The district court issued a certificate

of appealability on one issue: whether sufficient evidence supported his convictions. But a

sufficiency of the evidence claim presents a “nearly insurmountable burden” on its own and doubly

so under AEDPA. Davis v. Lafler, 658 F.3d 525, 534 (6th Cir. 2011) (en banc) (citation omitted).

Because Levack’s arguments do not meet this stringent standard, we AFFIRM.

I.

A.

Levack was convicted in a Michigan court of murdering Joyce Johnson, who was set to

testify against him in a larceny case. People v. Levack, No. 311630, 2014 WL 2118088, at *1 No. 21-1336, Levack v. Brown

(Mich. Ct. App. May 20, 2014). Levack had provided home healthcare to Johnson’s husband until

his death in 2009. Id. Afterwards, Levack continued to do handyman work for Johnson around

her house. Id. In December 2010, Johnson reported that Levack had stolen some of her jewelry.

Id. Levack was charged with the theft, and his trial was scheduled for September 27, 2012. Id.

Johnson believed that Levack was the culprit and agreed to testify against Levack; but she failed

to appear on the day of trial. Id. The police conducted a welfare check at Johnson’s home and

discovered Johnson’s dead body in the bathtub; police later determined that Johnson had been

strangled the day before the trial. Id. A jury convicted Levack of first-degree murder, first-degree

home invasion, and witness intimidation.

Levack appealed, arguing, among other things, that the prosecution had presented

insufficient evidence to support any of the three convictions. The Michigan Court of Appeals

denied this claim on the merits. Levack, 2014 WL 2118088, at *1–5. The Michigan Supreme

Court denied Levack’s application for leave to appeal. People v. Levack, 858 N.W.2d 446 (Mich.

2015) (order).

B.

Levack then filed a habeas petition in federal court raising several claims. The magistrate

judge recommended denying each of them—except for his sufficiency of the evidence claim. As

to that claim, the magistrate judge determined that the Michigan Court of Appeals had

unreasonably applied federal law by failing to explain how the evidence proved the essential

elements of Levack’s three offenses. The magistrate judge found it problematic that the Michigan

Court of Appeals had failed to list the elements of Levack’s crimes. Both the State and Levack

filed objections to the report and recommendation.

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The district court sustained the State’s objection and overruled Levack’s. The court

determined that the Michigan Court of Appeals’ failure to mention each element of Levack’s

crimes did not amount to an unreasonable application of federal law. Because appellate review is

limited to the issues raised by the appellant, the court found that the Michigan Court of Appeals

properly concentrated on the lone issue Levack raised—whether the evidence established Levack’s

identity as the murderer. The district court further concluded that the Michigan Court of Appeals

had reasonably determined that the evidence established Levack’s guilt beyond a reasonable doubt.

Therefore, the district court rejected the report and recommendation as to Levack’s sufficiency of

the evidence claim, adopted the rest, and denied Levack’s habeas petition.

Levack appeals.

II.

As a preliminary matter, we clarify the issues on appeal. Levack raises three

claims: (1) sufficiency of the evidence, (2) jury misconduct, and (3) ineffective assistance of

counsel.1 But Levack failed to raise any objections to the magistrate judge’s recommendation that

his jury misconduct and ineffective assistance of counsel claims be denied. So those two claims

are forfeited on appeal. Berkshire v. Dahl, 928 F.3d 520, 530 (6th Cir. 2019). There’s a second

reason we can’t review Levack’s jury misconduct and ineffective assistance of counsel

claims: They are not certified for appeal; the district court certified only the sufficiency claim.

See Van Tran v. Colson, 764 F.3d 594, 623 (6th Cir. 2014); 28 U.S.C. § 2253(c). Therefore, the

1 Levack mentions a fourth issue in his Statement of the Issues: “Whether the state court’s failure to remand the case based on new evidence in the form of a witness recantation is a miscarriage of justice and further violation of Mr. Levack’s constitutional rights.” This issue is not before us for the reasons given above and also for a third reason: the argument is not addressed or developed later in Levack’s brief. Vander Boegh v. EnergySolutions, Inc., 772 F.3d 1056, 1063 (6th Cir. 2014) (undeveloped arguments are deemed abandoned). -3- No. 21-1336, Levack v. Brown

only issue before us is whether the Michigan Court of Appeals unreasonably applied federal law

in denying Levack’s sufficiency of the evidence claim.

The Antiterrorism and Effective Death Penalty Act (AEDPA) sharply limits federal court

review of a state habeas petitioner’s claims of error. When a state court has adjudicated a claim

on the merits, we may reverse the state court’s decision only if it (1) “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) “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). Under

Jackson v. Virginia, 443 U.S. 307, 319 (1979), evidence is constitutionally insufficient only when,

“viewing the evidence in the light most favorable to the prosecution, [no] rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” This standard, alone,

presents “a nearly insurmountable hurdle,” and AEDPA requires an additional level of deference

to a state court’s adjudication of a sufficiency challenge. Davis, 658 F.3d at 534 (citation omitted).

The Michigan Court of Appeals adjudicated Levack’s sufficiency of the evidence claim on the

merits. So we cannot grant relief unless the Michigan court’s denial of his sufficiency claim was

not merely wrong but objectively unreasonable—i.e., “so lacking in justification that there was an

error well understood and comprehended in existing law beyond any possibility for fairminded

disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).

Levack claims, as did the magistrate judge, that the Michigan Court of Appeals

unreasonably applied Jackson by failing to explicitly mention the elements of his crimes. But

“federal courts have no authority to impose mandatory opinion-writing standards on state courts.”

Johnson v. Williams, 568 U.S. 289, 300 (2013). And, in any event, the district court rightly noted

that Levack’s sufficiency claim in the Michigan Court of Appeals disputed only his identity as the

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murderer—not any other particular element of his crimes. We cannot fault the Michigan Court of

Appeals for focusing its analysis on the lone offense element contested by Levack. See United

States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020) (“[A]s a general rule, our system is

designed around the premise that [parties represented by competent counsel] know what is best for

them, and are responsible for advancing the facts and argument entitling them to relief.” (quotation

marks omitted)); Radvansky v. City of Olmsted Falls, 395 F.3d 291, 311 (6th Cir. 2005) (a party

forfeits an argument by failing to raise it on appeal).

In this court, Levack again argues that the circumstantial evidence presented at trial was

insufficient to establish that he was the culprit. We disagree. Start with motive. See People v.

Unger, 749 N.W.2d 272, 286 (Mich. 2008) (“Although motive is not an essential element of the

crime, evidence of motive in a prosecution for murder is always relevant.”). Johnson was set to

testify against Levack in his larceny case; Levack was “really upset” about the case and the

prospect of a lengthy prison sentence if convicted. One witness testified that Levack was “livid”

that Johnson “was going to testify against [him]”; another testified that Levack had vowed to “take

care of the problem.” Accordingly, a rational juror could find Levack had a motive to murder

Johnson to stop her from testifying in his larceny case.

Levack also engaged in suspicious behavior before the murder. The day before Johnson

was killed, a neighbor found Levack on the neighbor’s property, dressed in camouflage and

looking around with binoculars. The neighbor testified that Levack was “[v]ery, very nervous.”

Levack claimed to be birdwatching because he had bet his friend, Jack Madsen, that he could find

and photograph a pileated woodpecker. Yet Madsen testified that he never had a bet with Levack.

And various friends expressed skepticism that Levack was any kind of ornithologist. Other

evidence supported the fact that Levack was in the immediate vicinity of Johnson’s home. For

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instance, the police found a Powerade bottle with Levack’s DNA about 75 feet from the sliding

glass door of Johnson’s home. The bottle appeared to have been placed there recently because the

police found it sitting on top of leaves and it had not been discolored by sun or moisture.

Then there’s the matter of Levack’s purported alibi. Levack told police that, on the night

Johnson was murdered, he was with some friends—first, he “was with Lex and his brother Kim,

and then [he] was with a buddy named Randy.” Lex did testify that Levack had come over to his

house in Iron Mountain that evening, arriving around 6:00 or 7:00 p.m. and leaving around 9:00

p.m., or “[w]hatever time it gets dark in September.” But other evidence at trial cast doubt on

Levack’s story. First, Randy contradicted this story; he didn’t think he had seen Levack the day

before his larceny trial. Second, Levack’s cell phone records show that he was in Crystal Falls

during the time that he was supposedly with Lex in Iron Mountain. And witness testimony

corroborated that fact. Wesley Jones, for example, testified that Levack missed his 7:00 p.m. pool

league that night and that, when Jones called Levack wondering where he was, Levack said he was

in Crystal Falls. And Levack phoned Johnson’s home around 9:00 p.m., while he was in Crystal

Falls; that call lasted nearly 3 minutes, but Levack later told police that he hadn’t spoken to Johnson

in more than a year. A rational juror, therefore, could find that Levack was in Crystal Falls at the

time of the murder; a rational juror could also conclude that Levack had lied to police about his

whereabouts, suggesting consciousness of guilt. See People v. Wolford, 473 N.W.2d 767, 769

(Mich. Ct. App. 1991).

Levack’s actions after the murder also provide evidence of his guilt. Sometime after

Johnson’s murder, Levack hung out with his friend, Brian Krause. Krause testified that Levack

made a few incriminating remarks, including “I can’t believe I went back to that house again and

at least there aren’t any marks [on the neck].”

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Then, on October 1, police visited the home where Levack was staying. Levack eventually

agreed to answer some questions, but soon asked to stop. He did agree, however, to meet with the

officers for an interview on October 3. But on the morning of the planned interview, police

received a tip that Levack was loading his belongings in a taxi and attempting to flee. When the

police found Levack at a Motel 6, he brandished a knife at them, later holding it to his own throat

and threatening suicide. Eventually, the officers subdued and arrested him, finding $1,000 in his

wallet. Based on this evidence, a rational juror could find that Levack had attempted to flee, which

supports an inference of consciousness of guilt. See Unger, 749 N.W.2d at 287. And a rational

juror could find that Levack had suicidal ideation, which, in some circumstances, also “may be

used as circumstantial evidence of consciousness of guilt.” People v. Woodley, No. 291040, 2010

WL 2629718, at *2 (Mich. Ct. App. July 1, 2010) (citing United States v. Cody, 498 F.3d 582,

591–92 (6th Cir. 2007)).

Finally, Eddie Prater, Levack’s jail cellmate testified that Levack had suggested he had

killed Johnson. Levack told Prater that his “friend” killed Johnson. Prater said that Levack used

air quotes around “friend,” suggesting that the culprit was actually Levack.

Viewing this circumstantial evidence in the light most favorable to the prosecution, a

rational trier of fact could have found, beyond a reasonable doubt, that Levack murdered Johnson.

Accordingly, the Michigan Court of Appeal’s decision was certainly not objectively unreasonable

under AEDPA.

Levack’s arguments to the contrary are unavailing. He relies on two points in his

favor: (1) a lack of direct evidence placing him inside the home and (2) a recent affidavit from

Krause recanting his testimony. As to the first point, Levack notes that no DNA evidence directly

placed him within Johnson’s home. For instance, the forensic examiner testified that Levack’s

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DNA was not present on the lock of Johnson’s sliding door, nor could the examiner conclusively

determine whether Levack’s DNA was on a hanging phone receiver in Johnson’s home. And the

examiner found no foreign DNA under the victim’s fingernails, nor did he find any of Johnson’s

DNA on various items obtained from Levack’s car and home. So, Levack claims, this case is just

like Tanner v. Yukins, 867 F.3d 661 (6th Cir. 2017). In Tanner, we determined that the Michigan

Supreme Court had unreasonably applied Jackson because there were serious gaps in the

inculpatory evidence connecting the petitioner to a murder. Id. at 673–74. We noted, for example,

that no evidence suggested that the petitioner had entered the bar where the victim was murdered.

Id. at 673. But it wasn’t this fact alone that made the state’s case insufficient; it was the lack of

almost any evidence connecting the petitioner to the murder, in addition to the existence of some

exculpatory evidence that mattered. As we noted, the state’s evidence “establishe[d], at best,

‘reasonable speculation’ that [the petitioner] was in the [bar]’s parking lot around the time of the

murder and that she was last in possession of the murder weapon approximately a month before

the murder.” Id. But that isn’t the case here. As already discussed, there is sufficient evidence

for a rational juror to find that Levack murdered Johnson. And the fact that some points supported

Levack’s innocence at trial isn’t enough to establish a constitutional violation. Instead, Levack’s

argument boils down to a request for us to place greater weight on the lack of DNA evidence inside

the home than the jury apparently did. But we “do not reweigh the evidence” when analyzing a

sufficiency claim. Johnson v. Mitchell, 585 F.3d 923, 931 (6th Cir. 2009).

As to the affidavit, Krause recanted his testimony and avers that Levack never made the

statements, “I can’t believe I went back to that house again” or “There’s no marks on the neck.”

But federal court review “under § 2254(d)(1) is limited to the record that was before the state court

that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). Krause’s

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affidavit was not before the Michigan Court of Appeals because Levack presented this evidence

for the first time in his objection to the report and recommendation. So we cannot consider this

evidence in determining whether the Michigan Court of Appeals’ decision was reasonable. See

Braggs v. Bauman, No. 19-2419, 2020 WL 7230638, at *4 (6th Cir. Sept. 16, 2020) (order);

Williams v. Trammell, 782 F.3d 1184, 1211 (10th Cir. 2015).

For these reasons, the Michigan Court of Appeals did not unreasonably apply Jackson.

* * *

We AFFIRM.

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CLAY, Circuit Judge, concurring. I agree with the majority that Levack’s convictions were

supported by sufficient evidence. But the denial of habeas relief does not necessarily mean the

Michigan Court of Appeals’s adjudication of Levack’s appeal was procedurally faultless. The

Supreme Court has unambiguously held that sufficiency of the evidence challenges should be

resolved “with explicit reference to the substantive elements of the criminal offense as defined by

state law.” Jackson v. Virginia, 443 U.S. 307, 324 n.16 (1979) (emphasis added). Below, the

Michigan Court of Appeals failed to mention even a single element of any of his crimes of

conviction, including the sole element Levack challenged: identity. Levack’s arguments

challenging this procedural mistake are well-taken; however, under the doubly deferential standard

we must follow under the Antiterrorism and Effective Death Penalty Act, Levack’s habeas petition

is properly denied.

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