                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                   File Name: 09a0431p.06

               UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


                                                 X
                                                  -
 TABATHA WHITE,
                                                  -
                             Petitioner-Appellee,
                                                  -
                                                  -
                                                      No. 08-5498
          v.
                                                  ,
                                                   >
                                                  -
                       Respondent-Appellant. -
 JEWEL STEELE, Warden,
                                                  -
                                                 N
                   Appeal from the United States District Court
                 for the Middle District of Tennessee at Nashville.
               No. 06-00428—William J. Haynes, Jr., District Judge.
                                Argued: October 16, 2009
                         Decided and Filed: December 21, 2009
                Before: MARTIN, ROGERS, and COOK, Circuit Judges.

                                   _________________

                                        COUNSEL
ARGUED: Francis R. Borger-Gilligan, OFFICE OF THE ATTORNEY GENERAL,
Nashville, Tennessee, for Appellant. Sumter L. Camp, FEDERAL PUBLIC DEFENDER’S
OFFICE, Nashville, Tennessee, for Appellee. ON BRIEF: Elizabeth T. Ryan, OFFICE OF
THE ATTORNEY GENERAL, Nashville, Tennessee, for Appellant. Sumter L. Camp,
FEDERAL PUBLIC DEFENDER’S OFFICE, Nashville, Tennessee, for Appellee.
     COOK, J., delivered the opinion of the court, in which ROGERS, J., joined.
MARTIN, J. (pp. 6-10), delivered a separate dissenting opinion.
                                   _________________

                                        OPINION
                                   _________________

        COOK, Circuit Judge. Jewel Steele, Warden, appeals the district court’s grant of a
writ of habeas corpus to inmate Tabatha White. We reverse because, in its sufficiency-of-the-
evidence review, the district court failed to accord the deference due to the judgment of the
Tennessee Court of Criminal Appeals.


                                             1
No. 08-5498         White v. Steele                                                    Page 2


                                      I. BACKGROUND

         The state court opinion from White and co-defendant Leon Robins’s direct appeal
adequately sets forth the facts underlying the conviction, Tennessee v. Robins, No. M 2001-
01862-CCA-R3-CD, 2003 WL 1386835, at *1–4; 2003 Tenn. Crim. App. LEXIS 238, at
*2–12 (Tenn. Crim. App. Mar. 20, 2003), and we draw from those facts in highlighting the
issue on review. The conflict began when White gave Eugene Simmons ten dollars to buy
cocaine. The Tennessee Court described her as “mad.” When Simmons failed to return with
either the drugs or the money, White looked for him and instructed others to do the same.
White, accompanied by Robins, confronted Simmons after a phone call alerted White to his
location. She approached Simmons and angrily demanded her money. Immediately
thereafter, Robins pulled a handgun and shot Simmons several times at close range, killing
him. The State of Tennessee indicted and tried White and Robins together. A jury convicted
White of first degree murder under Tennessee’s aiding and abetting statute, which assigns
criminal responsibility for the conduct of another if: “(2) [a]cting with intent to promote or
assist the commission of the offense, or to benefit in the proceeds or results of the offense,
the person solicits, directs, aids, or attempts to aid another person to commit the offense . .
. .” Tenn. Code Ann. § 39-11-402(2).

         White received a life sentence. After an unsuccessful direct appeal, she brought an
action under 28 U.S.C. § 2254 seeking to set aside her murder conviction, claiming that the
proof used to convict her failed to meet constitutional sufficiency standards under Jackson
v. Virginia, 443 U.S. 307 (1979). The district court agreed, granting her a writ of habeas
corpus. White v. Steele, No. 3:06-0428, 2008 U.S. Dist. LEXIS 29198 (M.D. Tenn. Apr. 8,
2008).

                                       II. ANALYSIS

         Jackson v. Virginia holds that a conviction with insufficient evidence violates the
defendant’s federal due process rights. 443 U.S. at 316. To determine whether sufficient
evidence supports a particular conviction, “the relevant question is 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.” Id. at 319. The
prosecution lacks an “affirmative duty to rule out every hypothesis except that of guilty
No. 08-5498         White v. Steele                                                        Page 3


beyond a reasonable doubt . . . .” Id. at 326. Thus, “a federal habeas corpus court faced with
a record of historical facts that supports conflicting inferences must presume—even if it does
not affirmatively appear in the record—that the trier of fact resolved any such conflicts in
favor of the prosecution, and must defer to that resolution.” Id.

        The Antiterrorism and Effective Death Penalty Act of 1996 established a further
layer of deference that federal courts must accord when reviewing state prisoners’ habeas
petitions:

                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.

28 U.S.C. § 2254(d). Thus, after AEDPA, federal courts reviewing state habeas claims
accord a double layer of deference:

        First, as in all sufficiency-of-the-evidence challenges, we 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. See Jackson v. Virginia,
        443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In doing so, we
        do not reweigh the evidence, re-evaluate the credibility of witnesses, or
        substitute our judgment for that of the jury. See United States v. Hilliard, 11
        F.3d 618, 620 (6th Cir.1993). Thus, even though we might have not voted
        to convict a defendant had we participated in jury deliberations, we must
        uphold the jury verdict if any rational trier of fact could have found the
        defendant guilty after resolving all disputes in favor of the prosecution.
        Second, even were we to conclude that a rational trier of fact could not have
        found a petitioner guilty beyond a reasonable doubt, on habeas review, we
        must still defer to the state appellate court's sufficiency determination as
        long as it is not unreasonable. See 28 U.S.C. § 2254(d)(2).

Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009).

        The district court considered White’s case before Brown articulated this two-layer
deferential standard. We must therefore answer the question posed by Brown as the second
No. 08-5498            White v. Steele                                                             Page 4


layer of deference—whether the Tennessee Court of Criminal Appeals unreasonably applied
federal law in its conclusion that a rational trier of fact could find White guilty beyond a
reasonable doubt from the evidence introduced at trial. Id.; Smith v. Romanowski, No. 07-
1578, 2009 WL 1884451, at *4 (6th Cir. Jul. 1, 2009). “The question ‘is not whether a
federal court believes the state court’s determination . . . was incorrect but whether that
determination was unreasonable—a substantially higher threshold.’”                           Knowles v.
Mirzayance, 129 S.Ct. 1411, 1420 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 473
(2007)).

         After detailing the evidence against White, the state court held that “[a] jury could
reasonably infer from this evidence that she shared the criminal intent to kill the victim.”
Robins, 2003 WL 1386835, at *6. The conflict between White and Simmons, not Simmons
and Robins, led to the shooting. Given that the jury heard evidence of White’s motive,
efforts to locate Simmons, outburst at Simmons at the scene, and arrival with Robins, we
cannot say that the Tennessee Court of Criminal Appeals unreasonably determined that a
rational trier of fact could infer White’s intent. Her successful efforts to locate Simmons
                                                                                1
satisfies the statutory requirement of aiding Robbins in the murder.

         State v. Ball, 973 S.W.2d 288 (Tenn. Crim. App. 1998), does not require a
different conclusion. Ball explained the circumstances that support attaching criminal
responsibility:

         Presence and companionship with the perpetrator of a felony before and
         after the commission of the offense are circumstances from which one’s
         participation in the crime may be inferred. No particular act need be
         shown. It is not necessary for one to take a physical part in the crime.
         Mere encouragement of the principal is sufficient.

Id. at 294 (internal citation omitted). The Tennessee Court of Criminal Appeals
explicitly considered White’s case in light of Ball and found the evidence sufficient to


         1
          The dissent claims that this conclusion cannot fit with our past opinions in sufficiency cases.
Yet White’s efforts to locate Simmons prior to the killing distinguishes this case from Hopson v. Foltz, 818
F.2d 866, at *2 (Table), 1987 U.S. App. Lexis 6596, at *5 (6th Cir. May 20, 1987), where the defendant
took no actions prior to the killing. Furthermore, unlike in Brown v. Palmer, 441 F.3d 347, 353 (6th Cir.
2006), where the only evidence indicated that the defendant had no prior relationship with the victim or
the shooter, White’s overt act in support of the later killing provided aid to the shooter and offered an
additional piece of evidence from which the jury could infer intent.
No. 08-5498         White v. Steele                                                   Page 5


support the conviction. The fact that the state offered no direct evidence that White
accompanied the perpetrator after the murder does not mean that the evidence failed to
meet the requirements of Ball. Ball merely states that prosecutors can use presence and
companionship to prove liability—Ball does not require presence and companionship.
The state court interpreted Tennessee law to hold the facts of this case sufficient for a
jury to infer White’s intent and participation. Courts must draw a difficult line between
inference and speculation, and when a state court draws a reasonable one, we defer to
its judgment.

        When reviewing habeas claims by state prisoners, federal courts may not
reinterpret state law. “Generally speaking, federal habeas corpus is not the proper
vehicle for state prisoners to seek review of issues of state law. State courts, after all are
the final arbiters of the state law’s meaning and application and [the Sixth Circuit] is not
the appropriate forum to adjudicate such issues.” Thompson v. Bock, 215 F. App’x 431,
436 (6th Cir. 2007) (internal quotations and citations omitted). Permitting Tennessee to
define the contours of its own law, and applying the double-layered deference
appropriate in this case, we cannot find that the state court unreasonably applied Jackson
v. Virginia.

                                   III. CONCLUSION

        Because White’s state court proceedings did not unreasonably apply or rule
contrary to Supreme Court law, we reverse the decision of the district court.
No. 08-5498            White v. Steele                                                            Page 6


                                        _________________

                                               DISSENT
                                        _________________

         BOYCE F. MARTIN, JR., Circuit Judge, dissenting. Tabatha White was
convicted of aiding and abetting1 Leon Robins in the first-degree premeditated murder
of Eugene Simmons, and was sentenced to life in prison. However, the state offered no
evidence that White knew Robins was even armed, much less that she intended to aid
in or benefit from Simmons’s murder or even knew that Robins intended to kill
Simmons. Instead, the state proved nothing more than that White was mad at Simmons
and arrived at and fled the scene with Robins. Using these facts to infer that White knew
of and was complicit in Robins’s plan to kill Simmons amounts to nothing more than
speculation and is thus not constitutionally sufficient evidence to support the conviction.
I believe that the district court properly granted White a writ of habeas corpus under
these facts, so I respectfully dissent.

                                                    I.

         I generally agree with the majority’s statement of the law regarding sufficiency
of the evidence claims on habeas review of state convictions. To grant relief, we must
find that no rational trier of fact could have found the elements of the crime to have been
established beyond a reasonable doubt, resolving all reasonable conflicting inferences
in favor of the jury’s guilty verdict and giving deference to the state court’s sufficiency
analysis as long as it was reasonable. Jackson v. Virginia, 443 U.S. 307, 329, 326
(1979); Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). However, I disagree with
the majority’s application of this general legal rule to the facts of this case.




         1
           Technically, White was convicted of violating section 39-11-402(2) of the Tennessee Code,
which is titled “criminal responsibility for conduct of another.” This statute is the functional equivalent
of an aiding and abetting statute. Because “aiding and abetting” is more familiar to readers and
significantly less awkward than “criminal responsibility for conduct of another,” I refer to White’s
conviction as aiding and abetting.
No. 08-5498         White v. Steele                                                     Page 7


        Tennessee’s aiding and abetting statute provides that:

        A person is criminally responsible for an offense committed by the
        conduct of another, if:
        ...
                (2) Acting with intent to promote or assist the commission of the
                offense, or to benefit in the proceeds or results of the offense, the
                person solicits, directs, aids, or attempts to aid another person to
                commit the offense;

Tenn. Code Ann. § 39-11-402(2). In this case, the reference “offense” is first-degree
premeditated murder, so White must have intended to promote or assist Robins in
murdering Simmons or must have intended to benefit from the proceeds or results of
Robins’s premeditated murder of Simmons. This, of course, requires that White knew
that Robins was going to try to murder Simmons before Robins fired the gun. The
statute also requires an overt act by White in the form of soliciting, directing, aiding, or
attempting to aid Robins in his murder of Simmons.

        The facts show that: (1) White had given Simmons ten dollars to buy cocaine;
(2) that she was mad because Simmons still had her money and had not procured the
cocaine; (3) that White had been looking for Simmons; (4) that, upon learning of
Simmons’s whereabouts, White, accompanied by Robins, approached Simmons and
demanded to know “where her mother fucking money was”; and (5) that Robins shot
Simmons immediately after these words left White’s mouth. There is no evidence that
White had previously expressed a desire or intent to harm or kill Simmons and no direct
evidence that White was even aware that Robins was armed.

        In denying habeas relief on these facts, I believe that the majority loses sight of
the statute’s repeated reference to the predicate offense: Robins’s premeditated murder
of Simmons. These facts simply do not support the conclusion that White knew that
Robins intended to kill Simmons or that White intended to benefit from Simmons’s
death. One could infer from these facts that White and Robins shared a common intent
to confront or threaten Simmons, but the statute requires that both White and Robins
have shared an intent to kill Simmons. Perhaps it would be reasonable to speculate from
No. 08-5498         White v. Steele                                                   Page 8


these facts that, as they approached Simmons, White and Robins were on the same page
as far as his demise, but I do not find it reasonable to infer an element of the offense of
aiding and abetting on the basis of mere speculation. Indeed, our cases repeatedly
distinguish between speculation, which may be perfectly reasonable but nevertheless
constitutionally insufficient to support a conviction, and constitutionally permissible
inferences. See, e.g., Newman v. Metrish, 543 F.3d 793, 796 (6th Cir. 2008) (stating, in
a habeas case reviewing a state court conviction, that “[a]lthough circumstantial
evidence alone can support a conviction, there are times that it amounts to only a
reasonable speculation and not to sufficient evidence.”); Parker v. Renico, 506 F.3d 444,
452 (6th Cir. 2007) (“While stringent, AEDPA’s standard is not insurmountable. . . .
[W]e continue to distinguish reasonable speculation from sufficient evidence . . . in
establishing that the state court’s application of federal constitutional law as set forth in
Jackson . . . was objectively unreasonable.”).

        Additionally, in seeking to find more cover for its decision to reverse the district
court, the majority erroneously states that the “district court considered White’s case
before Brown [v. Konteh, 567 F.3d 191 (6th Cir. 2009)] dictated this two-layer
deferential standard.” Supra at __. While it is factually correct that the district court
granted habeas relief before Brown was issued, it is incorrect to imply that this somehow
makes any difference. Brown did not make any new law—that we must defer to both
the verdict and to the state appellate court’s application of federal law in section 2254
sufficiency of the evidence claims is not a new concept. See Brown, 567 F.3d at 205
(citing cases from 1979 and 1993 and the plain text of section 2254(d)(2) for the
proposition that we must apply two layers of deference); Newman, 543 F.3d at 801
(Sutton, J., dissenting) (discussing a “double dose of deference” in sufficiency of the
evidence cases). But in any event, a case that relies on speculation and assumption to
establish the critical element of the offense is a bad case no matter how many layers of
deference one piles on the analysis.
No. 08-5498          White v. Steele                                                        Page 9


                                                II.

        In addition to the facts of this case requiring affirming the district court, I also
believe that our precedents require that we grant habeas relief. In Brown v. Palmer, 441
F.3d 347 (6th Cir. 2006), a section 2254 sufficiency of the evidence case, we found there
to be insufficient evidence of aiding and abetting carjacking. There, (1) the assailant
arrived at the scene in Brown’s car that Brown was driving; (2) Brown stared at the
victims before and while the assailant was firing a gun, taking the victims’ car and
driving it away; and (3) Brown tried to flee the scene himself. Id. at 349. In short, we
found that allowing the inference that Brown intentionally assisted in the carjacking
from the facts that Brown was present at the scene and had some acquaintance with the
assailant “quite speculative.” Id. at 351. We therefore affirmed the district court’s grant
of habeas relief.

        In an unpublished decision, Hopson v. Foltz, 818 F.2d 866 (Table), 1987 U.S.
App. Lexis 6596 (6th Cir. May 20, 1987),2 we found insufficient evidence of aiding and
abetting murder where the evidence showed: (1) that the petitioner and victim had
argued shortly before the shooting; (2) that the petitioner was present at the shooting;
and (3) that the petitioner may have known that the assailant intended to harm the victim.
Id. at *2. In light of this evidence, which is strikingly similar to the facts of this case,
we stated that “animus towards the victim cannot be construed as providing
encouragement to the principal.” Id. at *5.

        I do not see how one can square our decisions to grant habeas relief in Palmer
and Hopson with the decision to deny habeas relief in this case. If neither Palmer nor
Hopson contained sufficient evidence to support an aiding and abetting conviction, then
we should not treat this case any differently. Similar to Palmer and Hopson, the
evidence in this case shows that White was present at the scene, was acquainted with and
arrived with the actual assailant, and was angry with the victim. However, there is


        2
          Alhough Hopson is a pre-AEDPA case, the Palmer opinion cites Hopson in support of its
decision. Thus, Hopson’s analysis and precedential value is unaffected by the intervening passage of
AEDPA.
No. 08-5498            White v. Steele                                                             Page 10


neither direct evidence nor circumstantial evidence strong enough to support a
reasonable inference that White knew or intended that Robins shoot Simmons or that
White knowingly took any action in support or encouragement of Robins shooting
Simmons.3 Because this case is not materially distinguishable from our prior cases, I
believe that we really have no other option than to affirm.

         I respectfully dissent.




         3
           The majority attempts to distinguish this case from Palmer and Hopson in a footnote, so I
respond in kind. I find the attempt unpersuasive. Of course there will be factual distinctions from case
to case, but not all differences are material. I read Palmer and Hopson to be materially indistinguishable
from this case in that all three seek to allow an inference of intent to aid and abet from what is best
described as mere coincidence. Unfortunately, the only real difference in the three cases is that we rejected
such weak evidence in Palmer and Hopson but accept it today.
