                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 18a0441n.06

                                          No. 16-2215

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT                                  FILED
                                                                               Aug 24, 2018
MARY DANIELAK,                              )                              DEBORAH S. HUNT, Clerk
                                            )
       Petitioner-Appellant,                )
                                            )       ON APPEAL FROM THE
v.                                          )       UNITED STATES DISTRICT
                                            )       COURT FOR THE EASTERN
SHAWN BREWER,                               )       DISTRICT OF MICHIGAN
                                            )
       Respondent-Appellee.                 )       OPINION
                                            )

BEFORE: NORRIS, ROGERS, and BUSH, Circuit Judges.


       ALAN E. NORRIS, Circuit Judge. Mary Danielak appeals the district court’s judgment

denying her petition for a writ of habeas corpus under 28 U.S.C. § 2254.

       Petitioner helped a friend purchase heroin. The friend died after using it. Petitioner then

participated in an attempted cover-up of the death. A jury subsequently convicted her of aiding

and abetting the following crimes: (1) delivery of a controlled substance, causing death, Mich.

Comp. Laws § 750.317a; (2) common law obstruction of justice, Mich. Comp. Laws § 750.505;

(3) tampering with evidence, Mich. Comp. Laws § 750.483a(5)(a); and (4) removing a body

without the permission of a medical examiner, Mich. Comp. Laws § 52.204. Petitioner

unsuccessfully appealed the verdict. People v. Danielak, No. 305491, 2012 WL 6913789 (Mich.

Ct. App. Nov. 20, 2012); People v. Danielak, 830 N.W.2d 139 (Mich. 2013) (denying application

for leave to appeal).
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       Thereafter she filed a pro se § 2254 petition, which raised the following claims: (1) the

evidence was insufficient to support her convictions for aiding and abetting the obstruction of

justice, tampering with evidence, and removing a dead body; (2) the state legislature violated her

right to due process by creating the offense of delivery of a controlled substance, causing death, as

a strict-liability crime carrying the same penalty as second-degree murder, which requires proof of

malice; (3) the evidence was insufficient to support her conviction for aiding and abetting the

delivery of a controlled substance, causing death; and (4) the trial court erred by denying her

request to elicit testimony about statements made by the victim’s husband. The district court denied

the petition on the merits, Danielak v. Warren, No. 14-11131, 2016 WL 3971209 (E.D. Mich. July

25, 2016), but granted a certificate of appealability (“COA”) on the first claim. Id. at *11. Petitioner

then sought an expanded COA in this court. We granted a COA with respect to the third claim.

                                                   I.

Standard of Review

       Pursuant to § 2254(d), habeas corpus relief may be granted on claims that were adjudicated

in state court only if the state-court adjudication (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.” 28 U.S.C. § 2254(d).

       When reviewing a claim for insufficient evidence, a federal habeas court must apply a

“twice-deferential standard.” Parker v. Matthews, 567 U.S. 37, 43 (2012); see also Brinkley v.

Houk, 831 F.3d 356, 362 (6th Cir. 2016). First, the court must determine “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). Second, a federal habeas court may overturn a state court’s rejection of


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an insufficient-evidence claim only if the state court’s decision was objectively unreasonable under

§ 2254(d). See Coleman v. Johnson, 566 U.S. 650, 651 (2012). Particularly important in claims of

insufficient evidence, we must accord a presumption of correctness to factual determinations of a

state court. 28 U.S.C. § 2254(e)(1). The burden falls to petitioner to rebut this presumption of

correctness by clear and convincing evidence. Id.

       We review the district court’s denial of a petition for a writ of habeas corpus de novo.

Leonard v. Warden, Ohio State Penitentiary, 846 F.3d 832, 840 (6th Cir. 2017).

Michigan’s Aiding and Abetting Statute

       Because all of petitioner’s convictions are for aiding and abetting, a review of Michigan’s

version of the statute is necessary:

       Sec. 39. Every person concerned in the commission of an offense, whether he
       directly commits the act constituting the offense or procures, counsels, aids, or abets
       in its commission may hereafter be prosecuted, indicted, tried and on conviction
       shall be punished as if he had directly committed such offense.
Mich. Comp. Laws § 767.39. The Michigan Supreme Court has summarized the statute’s operation

and elements in these terms:

              Unlike conspiracy and felony murder, which also allow the state to punish
       a person for the acts of another, aiding and abetting is not a separate substantive
       offense. Rather, “being an aider and abettor is simply a theory of prosecution” that
       permits the imposition of vicarious liability for accomplices.
              This Court recently described the three elements necessary for a conviction
       under an aiding and abetting theory:
                       (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




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               commission of the crime or had knowledge that the principal intended its
               commission at the time that [the defendant] gave aid and encouragement.
People v. Robinson, 715 N.W.2d 44, 47-48 (Mich. 2006) (citations omitted).

1. Was Petitioner’s Right to Due Process Violated Because Constitutionally Insufficient Evidence
was Introduced in Support of her Conviction for Aiding and Abetting the Delivery of a Controlled
Substance Causing Death?

       A. The Statute at Issue

       The Michigan statute at issue reads as follows:

       Sec. 317a. A person who delivers a schedule 1 or 2 controlled substance, other than
       marihuana, to another person in violation of section 7401 of the public health code,
       1978 PA 368, MCL 333.7401, that is consumed by that person or any other person
       and that causes the death of that person or other person is guilty of a felony
       punishable by imprisonment for life or any term of years.
Mich. Comp. Laws § 750.317a.

       B. Factual Findings Affecting the Claim

       In its opinion, the Michigan Court of Appeals summarized the core facts giving rise to the

prosecution in these terms:

       Danielak[’s] conviction[] stem[s] from the death of Cherie Irving (“the victim”). In
       the early morning hours of October 3, 2010, the victim drove to Danielak’s
       apartment in Jackson, Michigan. Danielak and the victim then went to the Abbey
       Villa Apartments to meet a drug dealer named “Chill.” Sergeant Brian Russell
       testified that Danielak told him that she had purchased cocaine and heroin from
       Chill in the past, and that she was going to introduce the victim to Chill so the
       victim could purchase heroin in the future if needed. Danielak purchased three
       bindles of heroin from Chill and the victim purchased four bindles. Danielak and
       the victim went back to Danielak’s apartment and used a syringe to inject
       themselves with heroin.
       Danielak woke up late in the afternoon of October 3, 2010, and found the victim
       dead on the bathroom floor. On discovering the victim’s body, Danielak called her
       boyfriend, Randy Reeser. According to Danielak, Reeser told her to go to his
       mother’s house (Rand’s house), get ready for work, and that he would take care of
       it. Danielak did as Reeser instructed and went to work at approximately 9:00 p.m.
       Later that evening, Reeser went to Rand’s house and informed her that there was a
       dead body in Danielak’s apartment. Reeser and Rand drove to Danielak’s apartment
       and placed the victim’s body in the back seat of Rand’s car. Later, Reeser and Rand

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        moved the body to the trunk and drove to the Sandstone Creek Bridge. Rand parked
        on the side of the road and Reeser removed the victim’s body from the trunk. Reeser
        placed the victim’s body on the side of the road, but it later slipped down an
        embankment and fell into the creek.
Danielak, 2012 WL 6913789, at *1 (footnotes omitted).

        The court also made the following findings with respect to the cause of Ms. Irving’s death:

        Here, it is undisputed that the crime charged was committed by a subject identified
        as Chill, Danielak’s drug dealer. Additionally, . . . Danielak performed acts that
        assisted in the commission of the crime. The testimony at trial established that
        Danielak took the victim to the Abbey Villa Apartments so that they could purchase
        heroin. Danielak admitted to a police officer that she introduced the victim to Chill
        so that the victim could purchase heroin from him at a later date if necessary. By
        introducing the victim to Chill, Danielak assisted both the victim and Chill in the
        transaction. Had it not been for Danielak’s introduction, the victim would have been
        unable to purchase heroin from Chill. Moreover, Danielak intended or had
        knowledge that Chill would deliver heroin to the victim. Therefore, sufficient
        evidence was presented to convict Danielak of delivery of a controlled substance
        causing death under an aiding and abetting theory.
        Danielak also argues that the prosecution failed to prove that the victim’s death was
        caused by a heroin overdose. At trial, the medical examiner testified that the victim
        had lethal amounts of both cocaine and heroin in her system; therefore, he could
        not say which drug killed her. Because the medical examiner could not say with
        absolute certainty which drug killed the victim, Danielak argues that the
        prosecution failed to establish causation. This argument is unpersuasive.
        Viewed in the light most favorable to the prosecution, a rational jury could find
        beyond a reasonable doubt that the victim’s cause of death was a heroin overdose.
        The medical examiner stated that the victim suffered a pulmonary edema. Though
        he was unable to say which drug killed the victim, the autopsy results indicate that
        her death was more consistent with a heroin overdose. The medical examiner
        testified that heroin is an opiate and its primary function is to depress the central
        nervous system. The examiner further stated that heroin can depress the central
        nervous system’s drive to breathe, which is consistent with pulmonary edema.
        Cocaine, on the other hand, is a stimulant and disrupts the signals from the brain to
        the heart. The medical examiner stated that cocaine can cause the heart to stop
        beating, but he saw no evidence that the victim died from a heart attack. Based on
        this evidence, a rational jury could find beyond a reasonable doubt that the victim
        died from a heroin overdose.
Id. at *7.




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       At trial, Dr. Patrick Cho, the medical examiner, offered the following testimony:

       Q: And based on this amount, in your expert . . . opinion then the amount of cocaine
       in Sherry Irving’s body would have been a . . . lethal amount?
       A: Yes.
       Q: So in your opinion if Sherry Irving had not ingested heroin . . . at the time, she
       would have died from the cocaine in her body?
       A: Yes.
               ....
       Q: And the amount of heroin that also you found in there . . . if she had not taken
       any cocaine would the natural necessary result of ingesting the heroin . . . have
       caused her death?
       A: Yes.
       Q: So basically Doctor are you telling the jury that – as an expert that either one of
       these amounts of controlled substances were enough that would have killed her that
       night?
       A: Yes.
(Page ID 653-54.) He also affirmed the following statement during cross-examination: “And

there’s nothing that you can say to determinately [sic] say the heroin was the cause of death.” (Page

ID 676.) However, as the court of appeals noted, the doctor also explained that heroin is an opiate

and “its primary function is to depress the central nervous system. It’s a depressant.” (Page ID

663-64.) In this case, the victim died of pulmonary edema, which is consistent with a heroin

overdose, whereas cocaine acts as a stimulant which often results in a cardiac episode, which did

not occur here. (Page ID 664-66.)

       C. Legal Principles

       On appeal to this court, petitioner does not contend that the prosecution failed to satisfy the

first element of Mich. Comp. Laws § 750.317a: delivery of a schedule 1 or 2 controlled substance

to another person, that is consumed by that person. Rather, she focuses on the second element: that



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the controlled substance caused that person’s death. The Michigan Supreme Court has discussed

criminal causation in these terms:

              In criminal jurisprudence, the causation element of an offense is generally
       comprised of two components: factual cause and proximate cause. The concept of
       factual causation is relatively straightforward. In determining whether a
       defendant’s conduct is a factual cause of the result, one must ask, “but for” the
       defendant’s conduct, would the result have occurred? If the result would not have
       occurred absent the defendant’s conduct, then factual causation exists.
              The existence of factual causation alone, however, will not support the
       imposition of criminal liability. Proximate causation must also be established. . . .
       [P]roximate causation is a legal colloquialism. It is a legal construct designed to
       prevent criminal liability from attaching when the result of the defendant’s conduct
       is viewed as too remote or unnatural. Thus, a proximate cause is simply a factual
       cause of which the law will take cognizance.
People v. Schaefer, 703 N.W.2d 774, 785 (Mich. 2005) (footnotes and citations omitted). Under

this standard, the state must prove beyond a reasonable doubt that “but for” her ingestion of heroin,

Ms. Irving would not have died. In petitioner’s view, the evidence introduced at trial did not

sufficiently support this conclusion—at least not beyond a reasonable doubt.

       Prior to Schaefer, the Michigan Supreme Court considered whether culpable conduct can

be found when it represents “a” proximate cause of death, or whether it must be “the” proximate

cause. People v. Tims, 534 N.W. 2d 675, 680-81 (Mich. 1995). The Court concluded that the proper

test is a cause, id. at 680, based upon the following reasoning:

               The phrase “the proximate cause” is a legal colloquialism reflecting the
       reality that, particularly in homicide cases, there is almost invariably only one
       culpable act that could be considered a direct cause—a knife being stabbed, a gun
       being fired, or a car driven recklessly. The phrase does not imply that a defendant
       is responsible for harm only when his act is the sole antecedent.
               The suggestion that the presence of an additional “cause” of death could be
       a complete defense to negligent homicide is inconsistent with accepted notions of
       responsibility. Acceptance of such a proposition would require, for example, that if
       an infant died because it was locked in a hot car on a sunny day, and the child was
       left there by two parents rather than one, neither could be found criminally
       responsible. Similarly, if a guest died in a hotel fire that began because another
       guest was setting off firecrackers in a room, the latter guest’s extremely culpable

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       conduct would be excused or mitigated if it turned out that, unknown to him at the
       time, another person doing the same thing also set a fire accidentally at the other
       end of the hotel. Such examples illustrate the basis for the sound proposition
       embodied in the doctrine of “a” substantial cause, that joint equal causes do not
       excuse culpable behavior.
Id. at 680-81.

       It is axiomatic that a criminal conviction requires proof beyond a reasonable doubt of each

element of the crime. In re Winship, 397 U.S. 358, 361 (1970). According to petitioner, a

preponderance of the evidence standard inappropriately replaced that of reasonable doubt in her

trial. Because Jackson, 443 U.S. at 319, requires us to view the evidence in a light most favorable

to the prosecution, she concedes the following facts: Ms. Irving’s death was caused by drug abuse;

she likely died of pulmonary edema; she had potentially lethal doses of both heroin and cocaine in

her system; pulmonary edema is consistent with a heroin overdose; cocaine overdoses can cause

heart failure; and, the medical examiner found no evidence of a heart attack. Despite these

concessions, she argues that no rational juror could find that heroin was the “but for” cause of Ms.

Irving’s death.

       She analogizes her situation to that faced by the death-row petitioner in Joseph v. Coyle,

469 F.3d 441 (6th Cir. 2006). Like petitioner, Joseph raised a due process challenge to the

sufficiency of the evidence. Id. at 454. In his case, the capital specification with which he was

charged required him to be the “principal offender in the commission of the aggravated murder.”

Id. (quoting Ohio Rev. Code § 2929.04(A)(7)). “The Ohio Supreme Court has consistently

interpreted this element to require the defendant to be ‘the actual killer.’” Joseph, 469 F.3d at 454

(citing Ohio cases). Because petitioner Joseph was not the only person present at the time of the

murder and the prosecution could not establish that Joseph had inflicted either of the potentially




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fatal stab wounds, this court determined that the evidence was insufficient to support the capital

specification:

       [N]one of this evidence shows that Joseph personally inflicted either stab wound
       [to the victim]. This fact does not present an obstacle to conviction in a case where
       the defendant was the only person either present when the victim was murdered or
       otherwise involved in the crime, the logic being that he is the only person who could
       have actually committed the murder. But when the defendant and a coconspirator
       are present at the time and place of the murder, there must be evidence showing
       that the defendant struck the fatal blow(s).
Id. at 455 (citations omitted). Petitioner argues that, as in Joseph, there were two potential killers

at the scene: cocaine and heroin and that a jury simply cannot find factual causation beyond a

reasonable doubt when doubt exists as to which of two possible causes was the true cause of death.

       In the instant case, one of four things must have happened. The heroin consumed by Irving

may have been the sole cause of her death. If there was sufficient evidence for a rational jury to

find that this was the case, Danielak’s appeal must lose. It is also possible that the heroin Irving

consumed, in combination with the cocaine she consumed, caused her death, rendering both the

heroin and the cocaine but-for causes of her death. If there was sufficient evidence for a rational

jury to find that this was the case, Danielak’s appeal must lose under the analysis provided in Tims.

The third possibility is that heroin and cocaine each independently caused Irving’s death, as would

be the case if the cocaine caused a fatal heart attack and the heroin caused a fatal pulmonary edema.

In a situation such as this, Federal law is unsettled as to whether the provider of only one of the

drugs can be held criminally liable for the death. Burrage v. United States, 134 S.Ct. 881, 890

(2014), and Michigan courts do not appear to have addressed this issue. Finally, it may be that the

cocaine consumed by Irving was the sole cause of her death, in which case Danielak argues that

the state court unreasonably found that a rational jury could conclude this did not happen because




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the evidence admitted at trial was consistent with Irving’s death being caused by the lethal dose of

cocaine she had ingested—if Danielak is correct, she must win her appeal.

       Because we presume that the Michigan Court of Appeals was aware of Tims’ teaching that,

when there are two independent culpable causes, it is sufficient to prove that the actions of

petitioner—aiding and abetting in the delivery of heroin that caused the death of Ms. Irving—were

a joint mutual cause. See Tims, 534 N.W.2d at 681-82. That Irving died of a pulmonary edema,

which is more consistent with a death caused by heroin, and not of a heart attack, which is more

consistent with a death caused by cocaine, is enough for us to answer that question in the

affirmative. Moreover, there would be sufficient but-for causation if a rational jury could have

found either that it was the heroin that killed Irving or that it was a combination of the heroin and

the cocaine. In our view, the Court of Appeals’ holding looks less like a misapplication of the

beyond-a-reasonable-doubt standard than a reasonable application of Michigan’s law of causation,

to wit, there was sufficient evidence for a rational trier of fact to have found a substantial cause

because “joint mutual causes do not excuse culpable behavior.” In light of the double deference

barrier discussed in Matthews, 567 U.S. at 43, petitioner has failed to meet either of the factors

required to merit habeas relief under 28 U.S.C. § 2254(d).

2. Was Constitutionally Sufficient Evidence Introduced in Support of Petitioner’s Conviction For
Aiding and Abetting the Obstruction of Justice, Tampering with Evidence, and Removal of a Body?

       A. Obstruction of Justice

       In Michigan, obstruction of justice is a common law felony offense punishable by up to

five years of incarceration and/or a fine of up to $10,000. Mich. Comp. Laws § 750.505.

       The Michigan Court of Appeals relied upon the following findings in sustaining

petitioner’s conviction for aiding and abetting in the obstruction of justice:



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       Although evidence that Danielak aided and abetted the removal and concealment
       of the victim’s body was circumstantial, it was sufficient to convict her. On
       discovering that the victim was dead, Danielak did not call the authorities to report
       what happened. Rather, she called Reeser. Her decision to contact Reeser, as
       opposed to the authorities, supports that she intended to cover up the victim’s death
       and was seeking help in doing so. Additionally, after speaking with Reeser, she did
       exactly as instructed—went to Rand’s apartment and got ready for work. Thus, a
       rational jury could find beyond a reasonable doubt that Danielak gave
       encouragement to Reeser that assisted in the commission of the crime.
       There was also sufficient evidence that Danielak intended the commission of the
       crime or had knowledge that Reeser intended the commission of the crime. A
       defendant’s “[i]ntent is a question of fact to be inferred from the circumstances by
       the trier of fact.” “An aider and abetter’s knowledge of the principal’s intent can be
       inferred from the facts and circumstances surrounding an event.” “Because of the
       difficulty of proving an actor’s state of mind, minimal circumstantial evidence is
       sufficient.”
       Again, Danielak did not contact authorities to report the victim’s death; rather, she
       contacted Reeser. A rational jury could thus conclude that she contacted Reeser
       because she intended to conceal the victim’s body. Additionally, Danielak told
       Sergeant Russell that Reeser told her that he would “take care of it.” Though
       Danielak argues that the phrase “take care of it” could mean any number of things,
       a reasonable jury could conclude that, under the circumstances, “take care of it”
       meant that Reeser would get rid of the victim’s body. The evidence also shows that
       Danielak sent text messages to the victim after she died in an effort to conceal her
       knowledge of the victim’s death. The victim died sometime in the early morning
       hours of October 3, 2010. A co-worker stated that Danielak came to work at
       approximately 9:00 p.m. that night and told her that she had sent text messages to
       the victim advising the victim that she had her car keys. These messages were a
       clear attempt to hide Danielak’s knowledge of the victim’s death and to help explain
       why the victim’s vehicle was at Danielak’s apartment. Moreover, it appears that the
       text messages were sent before Reeser and Rand removed the victim’s body. That
       Danielak sent text messages to the victim before the victim’s body was removed
       indicates that Danielak knew that Reeser intended to conceal the victim’s body.
       Therefore, a rational jury could find beyond a reasonable doubt that Danielak either
       intended the commission of the crime or knew that Reeser intended the commission
       of the crime.
Danielak, 2012 WL 6913789, at *2 (footnotes and citations omitted).

       Petitioner refers us to Fuller v. Anderson, 662 F.2d 420 (6th Cir. 1981), for the proposition

that “mere presence” or “passive acquiescence” is insufficient to make one an aider or abettor. Id.

at 424 (citations omitted). In Fuller, a habeas petition brought prior to the enactment of the


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Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), petitioner was present, along

with several other boys, when Zerious Meadows threw a Molotov cocktail at a nearby home, which

resulted in the deaths of two children due to fire. Petitioner was convicted for aiding and abetting

felony murder. The district court granted his subsequent habeas petition, which contended that the

evidence presented was constitutionally insufficient to support his conviction. This court agreed,

holding that “mere presence” is insufficient to support a verdict of guilt beyond a reasonable doubt.

Id.

       In a similar vein, we affirmed the grant of a habeas petition to an individual convicted of

aiding and abetting an armed robbery and carjacking. Brown v. Palmer, 441 F.3d 347, 353 (6th

Cir. 2006). In Brown, the following facts were cited by the state in support of the jury’s verdict of

conviction for aiding and abetting but were found wanting by this court:

       (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.
Id. at 351. While acknowledging that the cases relied upon by the district court—which included

Fuller—were decided pre-AEDPA, we nonetheless determined that “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 was objectively

unreasonable.” Id. at 352 (citation omitted).




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         Not surprisingly, in our case petitioner contends that the evidence against her gave rise, at

best, to speculation and was far thinner than that produced (and found wanting) in the cases just

discussed. All that the jury learned was that her boyfriend, Reeser, would “take care of it” when

she contacted him. In her view, this hardly qualifies as encouraging the obstruction of justice,

which constitutes the second element of the aiding and abetting statute. Robinson, 715 N.W.2d at

47-48.

         The Michigan Court of Appeals also cited the text messages that petitioner sent to Ms.

Irving despite the fact that she knew she was dead. Petitioner splits a very fine hair on this point,

arguing that the evidence didn’t establish whether she sent those messages before or after her

boyfriend and his mother moved Ms. Irving’s body. If they were sent after the body had been

moved (and justice obstructed), then she would only qualify as an accessory after the fact. An

accessory after the fact is not an aider and abettor under Mich. Comp. Laws § 767.39. People v.

Lucas, 262 N.W.2d 662, 663 (Mich. 1978).

         While the sufficiency of the evidence with respect to her first claim presented a very close

question, this one does not. As mentioned earlier, AEDPA instructs us to accord the facts as recited

by the Michigan Court of Appeals a presumption of correctness, 28 U.S.C. § 2254(e), and those

facts lead us to the conclusion that a rational juror could have found beyond a reasonable doubt

that petitioner aided and abetted in the obstruction of justice. We would reach the same conclusion

even if we were inclined to discount the evidentiary weight of petitioner’s post-mortem text

messages.




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       B. Tampering with Evidence

       In Michigan, a person shall not “[k]knowingly and intentionally, remove, alter, conceal,

destroy, or otherwise tamper with evidence to be offered in a present or future official proceeding.”

Mich. Comp. Laws § 750.483a(5)(a).

       The Michigan Court of Appeals rejected petitioner’s challenge to her conviction for

aiding and abetting the tampering with evidence as follows:

               The basis for Danielak’s conviction for tampering with evidence is the same
       as that for her conviction of obstruction of justice—the removal and concealment
       of the victim’s body. For the reasons discussed above, there was sufficient evidence
       to convict Danielak under an aiding and abetting theory.
Danielak, 2012 WL 6913789, at *5.

       Petitioner advances essentially the same argument that she did with respect to obstruction

of justice. For the same reasons, her argument is unavailing.

       C. Removal of a Body without Permission

       Michigan law prohibits the removal of a body from the place where death occurred without

first notifying the county medical examiner or his deputy. Mich. Comp. Laws § 52.204.

       The Michigan Court of Appeals rejected this claim for essentially the same reasons that it

denied relief on the obstruction of justice and tampering with evidence challenges. We affirm for

the same reasoning.

                                                III.

       The judgment of the district court is affirmed.




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