                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                      File Name: 06a0094p.06

                    UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                         X
                                  Petitioner-Appellee, -
 JASON BROWN,
                                                          -
                                                          -
                                                          -
                                                              No. 05-1320
            v.
                                                          ,
                                                           >
 CARMEN PALMER,                                           -
                                Respondent-Appellant. -
                                                         N
                          Appeal from the United States District Court
                         for the Eastern District of Michigan at Detroit.
                        No. 04-72303—Arthur J. Tarnow, District Judge.
                                   Argued: February 2, 2006
                              Decided and Filed: March 14, 2006
                 Before: MERRITT, MARTIN, and GILMAN, Circuit Judges.
                                      _________________
                                           COUNSEL
ARGUED: Debra M. Gagliardi, OFFICE OF THE ATTORNEY GENERAL, CRIMINAL
APPELLATE DIVISION, Lansing, Michigan, for Appellant. Robert S. Lewis, THOMPSON HINE,
Cleveland, Ohio, for Appellee. ON BRIEF: Debra M. Gagliardi, OFFICE OF THE ATTORNEY
GENERAL, CRIMINAL APPELLATE DIVISION, Lansing, Michigan, for Appellant. Robert S.
Lewis, Jack Kurt Denkewalter, THOMPSON HINE, Cleveland, Ohio, for Appellee.
                                      _________________
                                          OPINION
                                      _________________
         RONALD LEE GILMAN, Circuit Judge. Jason Brown was convicted in a Michigan state
court of armed robbery and carjacking under an aiding and abetting theory. After exhausting his
state-court remedies, he sought a writ of habeas corpus in the federal district court. The district
court granted Brown an unconditional writ of habeas corpus on the basis that the evidence was
insufficient to prove beyond a reasonable doubt that Brown aided and abetted the crimes committed
by the unidentified gunman. For the reasons set forth below, we AFFIRM the judgment of the
district court.
                                      I. BACKGROUND
        On January 25, 1999, Jerome Campbell drove his 1984 Buick Regal to a BP gas station in
Detroit, Michigan at approximately 1:30 a.m. Campbell’s friends, William Clemons and Bernard
Turner, rode with him. The three men noticed that another man, later determined to be Brown, was

                                                1
No. 05-1320           Brown v. Palmer                                                          Page 2


parked nearby in a Chevrolet Monte Carlo. Shortly after arriving, Campbell and Clemons entered
the gas station’s store while Turner stayed outside to inspect a radiator leak coming from Campbell’s
Buick. After exiting the store, Campbell and Clemons noticed another man walk out of the store and
enter Brown’s Monte Carlo. Brown then pulled up to a gas pump. His unidentified passenger
promptly exited Brown’s car and began walking toward Campbell’s Buick.
        The unidentified man shouted something to Campbell and Clemons and then pointed a gun
at Turner, who was still attending to the radiator leak. As Turner ran away, the gunman fired shots
in his direction before jumping into Campbell’s Buick and driving off. According to Campbell,
Brown stared at the victims from his car while the gunman fired the shots and drove Campbell’s
Buick away from the gas station. Campbell testified that Brown then attempted to drive off himself,
but that his tires skidded in the snow.
       After the gunman left, Campbell ran over to Brown’s car and punched Brown in the face
through the open driver’s-side window. Brown protested, claiming that he had met the gunman just
minutes before the carjacking, when Brown offered to give him a ride. Campbell, with the help of
Clemons, proceeded to pull Brown out of his car, leave him in the parking lot, and drive Brown’s
Monte Carlo to the police station to file a report. Brown eventually received a ride home from a
passing motorist, and he never attempted to retrieve his Monte Carlo from the police station.
        After determining that Brown was the owner of the Monte Carlo driven to the police station
by Campbell and Clemons, the Detroit police arrested Brown. The gunman was never located.
Brown was charged as an aider and abettor to armed robbery, carjacking, and attempted murder.
Although the state trial court initially dismissed the case for lack of sufficient evidence to support
a conviction, the Michigan Court of Appeals reversed and reinstated the charges. At trial, the
prosecutor argued that Brown served as a lookout and as a potential getaway driver for the
unidentified gunman. The jury subsequently convicted Brown of armed robbery and carjacking, but
acquitted him of attempted murder. Brown was sentenced to a range of 130 months to 216 months
of imprisonment.
        In his appeal to the Michigan Court of Appeals, Brown claimed that: (1) there was
insufficient evidence to prove that he aided and abetted the unidentified gunman in the armed
robbery and carjacking, (2) the trial court committed reversible error by “engaging in advocacy
which departed from the required role of neutrality,” (3) there was plain error involving “improper
vouching” by the prosecutor, and (4) Brown’s sentence was improperly calculated. The Michigan
Court of Appeals affirmed Brown’s convictions but remanded the case for resentencing. Brown then
applied for leave to appeal to the Michigan Supreme Court, which denied his application. On
remand, the Michigan trial court sentenced Brown to a range of 60 to 120 months of incarceration.
        In a pro se petition, Brown subsequently sought a writ of habeas corpus pursuant to
28 U.S.C. § 2254, claiming that there was: (1) insufficient evidence to prove that he aided and
abetted the unidentified gunman, (2) reversible error based on the trial court’s “depart[ure] from
neutrality,” and (3)“improper vouching” by the prosecutor. The district court granted Brown an
unconditional writ of habeas corpus based upon Brown’s first claim, concluding that there was
insufficient evidence for any reasonable juror to find beyond a reasonable doubt that Brown had
committed the charged offenses. On appeal, the state argues that the district court impermissibly
substituted its judgment for that of the state court and failed to afford proper deference to the state
court’s findings of fact.
No. 05-1320           Brown v. Palmer                                                           Page 3


                                          II. ANALYSIS
A.     Standard of review
        We review a district court’s legal conclusions de novo, but will set aside its factual findings
only if clearly erroneous. Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir. 1999). The standard of
review for state-court determinations, however, 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.
Id.
        A state-court decision is considered contrary to 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 (2000). The 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.” Id. When
assessing unreasonableness, “a federal habeas court may not issue the writ simply because it
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. Furthermore, factual findings made by the state court are presumed
correct in the absence of clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1).
B.     The district court’s grant of habeas corpus was not erroneous
        The state argues on appeal that the district court impermissibly substituted its judgment for
that of the state court when it granted Brown’s writ of habeas corpus on insufficiency-of-the-
evidence grounds. A district court may grant a writ of habeas corpus based on insufficiency of the
evidence only where it finds that, after 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. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The Jackson standard must be
applied “with explicit reference to the substantive elements of the criminal offense as defined by
state law.” Jackson, 443 U.S. at 324 n.16.
        To support a conviction for aiding and abetting a crime under Michigan law, the state 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. People v. Carines, 597 N.W.2d
130, 135 (Mich. 1999) (holding that the evidence was sufficient to prove that the defendant aided
and abetted an armed robbery beyond a reasonable doubt). The phrase “aiding and abetting”
includes all words or actions by the defendant that might support, encourage, or incite the
No. 05-1320            Brown v. Palmer                                                            Page 4


commission of the crime. People v. Palmer, 220 N.W.2d 393, 397 (Mich. 1974) (holding that the
evidence was sufficient to prove that the defendant aided and abetted an involuntary manslaughter).
Although intent is a required element for the aiding-and-abetting offense, intent may be inferred
from circumstantial evidence. People v. Wilson, 493 N.W.2d 471, 476 (Mich. 1992) (holding that
the evidence was sufficient to prove that the defendant aided and abetted a felonious sexual assault).
But mere presence, or even knowledge, that a crime is about to be committed is insufficient to prove
guilt under an aiding-and-abetting theory. Id.
        On appeal, the state relies on the following facts to argue that “the jury reasonably concluded
from the circumstantial evidence presented . . . that Petitioner intended to give aid or encouragement
to the principal in committing the armed robbery and carjacking”: (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. These facts
were also relied on by the Michigan Court of Appeals, which held that intent could be inferred from
the above circumstantial evidence.
       Taking this evidence in the light most favorable to the state, as we must do pursuant to
AEDPA, 28 U.S.C. § 2254(e)(1), the evidence clearly demonstrates that Brown was present at the
scene and had some acquaintance with the perpetrator. Beyond that, however, the evidence pointing
to Brown’s guilt becomes quite speculative.
         In claiming that the district court impermissibly substituted its judgment for that of the state
court, the state primarily relies on the standard of review set forth in AEDPA. It does so without
attempting to distinguish a line of cases decided by this court pre-AEDPA in which defendants were
granted habeas corpus relief on sufficiency-of-the-evidence grounds. One such case is Fuller v.
Anderson, 662 F.2d 420, 424 (6th Cir. 1981). In Fuller, this court distinguished between
“reasonable speculation” and sufficient evidence. The petitioner in Fuller was suspected of acting
as a “lookout” for another man who committed arson by throwing a Molotov cocktail at the victims’
home. Id. Although the prosecutor presented evidence that Fuller “stood guard,” “turned his head
from side to side more than twice,” and ran away with the perpetrator after the arson, the Fuller
court held that this evidence created reasonable speculation but was not sufficient for a rational jury
to find beyond a reasonable doubt that he aided and abetted the arson. Id. Because there was no
evidence that Fuller intended to burn the victims’ home, knew that the perpetrator intended to burn
it, or assisted the perpetrator in creating the Molotov cocktail, the Fuller court granted the writ of
habeas corpus. Id.
        This court also granted a writ of habeas corpus based on insufficiency of the evidence in
Hopson v. Folsz, No. 86-1155, 1987 WL 37432 (6th Cir. May 20, 1987) (unpublished). In Hopson,
the petitioner had been convicted of aiding and abetting first degree murder based on evidence that
he and the victim had argued shortly before the victim was killed, that he was present when the
victim was killed, and that he may have known that the perpetrator intended to harm the victim. Id.
at *2. Despite this evidence, the Hopson court held that the petitioner’s “animus towards the
victim[] cannot be construed as providing encouragement to the principal,” and that the evidence
was “insufficient to establish beyond a reasonable doubt that he took conscious action to aid in the
shooting.” Id.; see also Weaver v. Foltz, 888 F.2d 1097, 1099 (6th Cir. 1989) (reversing the district
court’s dismissal of a habeas corpus petition where the facts “appear[ed] to be identical” to those
in Hopson).
       The above cases are admittedly pre-AEDPA, but their holdings that distinguish reasonable
speculation from sufficient evidence are still persuasive in establishing that the state court’s
application of federal constitutional law as set forth in Jackson, 443 U.S. at 319, was objectively
No. 05-1320           Brown v. Palmer                                                         Page 5


unreasonable. In the present case, the district court relied on Fuller and Hopson in granting Brown’s
petition. 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, the district
court highlighted the absence of facts demonstrating that Brown in fact provided assistance or
encouragement to the perpetrator. The state offered no evidence that Brown had ever met the
gunman prior to arriving at the gas station, that Brown possessed a weapon or handed one to the
gunman, or that Brown knew that the gunman was going to commit a robbery and carjacking.
         As demonstrated by Fuller and Hopson, being present at the scene of the crime and having
a brief relationship with the carjacker are insufficient facts to establish beyond a reasonable doubt
that Brown aided and abetted the latter individual. The Fuller court also held that the evidence was
insufficient to support Fuller’s conviction even though he ran from the scene of the crime with the
perpetrator—behavior arguably more suspicious than Brown’s actions in the present case. Fuller,
662 F.2d at 424. This behavior is distinguishable from the inference of guilt that arises when one
flees from a law enforcement officer. See United States v. Dillon, 870 F.2d 1125, 1126 (6th Cir.
1989) (holding that evidence of flight from law enforcement is admissible to prove guilt). We also
note that Brown’s attempt to leave the scene is fully consistent with his desire to avoid a
confrontation with Campbell and his friends, who in fact assaulted Brown and commandeered his
car to drive to a nearby police station. Furthermore, the record does not establish that Brown knew
where his Monte Carlo had been taken, so the fact that he did not come to retrieve it is equivocal at
best.
        We further note that the state offered no evidence to counter Brown’s testimony that he did
not know the perpetrator before offering him a ride on the night in question and that he had no prior
relationship with the victims. Moreover, this court in Hopson upheld a grant of habeas corpus on
insufficiency-of-the-evidence grounds where the evidence showed even greater contact by the
defendant with both the shooter and the victim than was established here. Hopson, 1987 WL 37432,
at *2. Although the state relies on evidence demonstrating that Brown “stared at the victims,” never
pumped gas at the gas station, attempted to flee following the gunshots, and failed to contact the
police to retrieve his car, none of this evidence suggests that Brown assisted or encouraged the
gunman in the commission of the armed robbery and carjacking or that Brown intended for the
gunman to commit the offenses—both necessary elements for aiding and abetting under Michigan
law.
        Contrary to the state’s assertion, the district court did not impermissibly substitute its own
judgment for the that of the state court or fail to afford the proper level of deference. The district
court acknowledged the deference required by AEDPA and then determined that the state court’s
application of Jackson v. Virginia, 443 U.S. at 319, was objectively unreasonable. This case in fact
presents less evidence tying Brown to the offenses than was present in either Fuller or Hopson. As
a result, we find no error in the district court’s grant of habeas corpus.
                                       III. CONCLUSION
       For all the reasons set forth above, we AFFIRM the judgment of the district court.
