                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0148n.06

                                             No. 08-1946
                                                                                          FILED
                           UNITED STATES COURT OF APPEALS                              Mar 10, 2010
                                FOR THE SIXTH CIRCUIT                            LEONARD GREEN, Clerk


STACEY INGRAM,

               Petitioner-Appellant,
                                                       ON APPEAL FROM THE
v.                                                     UNITED STATES DISTRICT
                                                       COURT FOR THE EASTERN
CLARICE STOVALL,                                       DISTRICT OF MICHIGAN

            Respondent-Appellee.
___________________________________/

BEFORE:        SUHRHEINRICH, SUTTON, and COOK, Circuit Judges.


       SUHRHEINRICH, Circuit Judge. Petitioner Stacey Ingram (“Ingram”) appeals the district

court’s denial of her petition of writ of habeas corpus following her conviction for first-degree felony

murder under Michigan law. We AFFIRM.

                                           I. Background

       Ingram and her cousin Mario Ingram (“Mario”) were jointly tried in 1999 before separate

juries for the murder of Natalie Grillo (“Grillo”).1 Ingram’s conviction was based largely on her

written confession, which was introduced at trial.

       In her confession, Ingram described the sequence of events on the night of the murder. She

was at her cousin Mario’s house in Clinton Township, Michigan, and told Mario that she needed a

ride home. Mario called Grillo. Grillo arrived in a 1989 blue Plymouth Sundance. She had her


       1
        The medical examiner testified that Grillo died from ligature strangulation and that the cause
of death was homicide.
three-year old daughter with her. Ingram sat in the back seat with the little girl and Mario sat up

front. Grillo drove directly to Ingram’s house in Detroit, Michigan. When they got there, Ingram

asked Mario if Grillo could take her somewhere to get something to eat. They drove to a Coney

Island, which was closed. They then drove to a different location, where Ingram got out and

retrieved a bag of marijuana.

       When Ingram returned to the vehicle, Mario indicated that he wanted her to ride in front, and

he got into the back seat. As they headed back to Ingram’s home, Mario told Grillo to stop a couple

of houses from Ingram’s house. He then reached into the front seat with speaker headset wires and

tried to choke Natalie. When the wire broke, he reached into the front seat, put his arm around

Grillo’s neck, and began pulling her into the rear seat. Grillo fought at first, tried to open the front

door, and managed to pull the lock up. Ingram reached over and locked the door, and also put the

car into park “so that it wouldn’t drive off.” Grillo stopped struggling in less than five minutes.

Ingram felt Grillo’s neck and found no pulse. She told Mario that Grillo was dead. They dropped

Grillo’s daughter off on a stranger’s porch. Mario drove first to Belle Isle, and then to Erma

Henderson Park, where they dumped the body.

       Mario told Ingram to hand him Grillo’s wallet. She took $41 out of the wallet and gave

Mario the money. Mario gave her $1 in return. Ingram kept the wallet. Mario took Grillo’s purse

and found a credit card in it. The next day Ingram and Mario used the credit card at several local

drive-thru banks. Mario tried unsuccessfully, but Ingram was able to withdraw five $20s. Mario

took $60 and gave Ingram $40. They drove back to Ingram’s house. Ingram kept the car.

       When asked, “Was there anything said about hurting Natailie 2 while you were inside the car

with Mario?” Ingram answered, “Mario had told me that he was going to ask Natailie for some


       2
           This is the spelling employed throughout the transcripts.

                                                  -2-
money. This was when we first pulled up to my house. Mario said this [to] me so that Natailie

couldn’t hear–said this to me so Natailie couldn’t hear.” Ingram also wrote in “outside of the car”

on the confession paper.

        Ingram was convicted of first-degree felony murder on an aiding and abetting theory and

second-degree murder as a lesser-included offense of first-degree premeditated murder. The second-

degree murder conviction was subsequently vacated and Ingram was sentenced to life imprisonment

on the felony murder conviction. Mario was convicted of second-degree murder at the same trial,

but by a different jury.3

        The Michigan Court of Appeals affirmed Ingram’s conviction. It ruled in relevant part as

follows:

        In the present case, the medical examiner’s testimony was sufficient to prove that the
        victim’s death was the result of a criminal agency (ligature strangulation). Thus, the
        corpus delicti for felony-murder was established. In her statement to the police,
        Stacey Ingram stated that she knew that Mario Ingram was going to ask the victim
        for money, and changed seats with him before the fatal assault. When Mario Ingram
        began strangling the victim, Stacey Ingram assisted him by putting the car in park and
        relocking the car door after the victim managed to unlock it. After the victim was
        dead, Stacey Ingram took money out of her wallet and shared it with Mario Ingram,
        helped Mario Ingram place tape on the victim’s mouth and nostrils, helped Mario
        dispose of the victim’s body and abandon the victim’s child, kept the victim’s car and
        wallet, and obtained cash for herself and Mario Ingram using the victim’s ATM card.
        Viewed in a light most favorable to the prosecution, the evidence was sufficient to
        enable a rationale [sic] trier of fact to find beyond a reasonable doubt that Stacey
        Ingram assisted Mario Ingram with knowledge that Mario intended to kill the victim
        during the course of a larceny.



        3
         Ingram and Mario were originally charged with alternative theories of first-degree
premeditated murder and felony murder. Prior to trial, Mario’s attorney moved to quash the felony
murder charge against Mario. The trial court granted the motion as to the felony murder charge,
finding that there was not sufficient evidence from Mario’s statement to indicate a larcenous intent
and to bind over on felony murder. The trial court denied Mario’s motion to quash the first-degree
premeditated murder charge. The trial court denied Ingram’s motions to quash, finding probable
cause to bind her on both the felony murder and first-degree premeditated murder charges.

                                                 -3-
People v. Ingram, No. 223970, 2002 WL 31956964, at *1 (Mich. Ct. App. Dec. 20, 2002) (per

curiam). The Michigan Supreme Court denied Ingram’s application for leave to appeal. People v.

Ingram, 666 N.W.2d 671 (Mich. 2003) (table). State post-conviction relief was also denied. Ingram

then filed this petition for writ of habeas corpus. The district court denied Ingram’s request and

declined to issue a certificate of appealability.

        The district court held that “there was sufficient direct and circumstantial evidence for a

rational trier of fact to conclude that [Ingram] aided and abetted in the commission of a felony

murder” based on the fact that she “told the police that she knew that her co-defendant Mario Ingram

was going to ask the victim for money and she further acknowledged changing seats with her

co-defendant prior to the assault.” Ingram v. Stovall, No. 2:06-CV-14955, 2008 WL 2605078, at

*5 (E.D. Mich. June 30, 2008). Further, when Mario began strangling the victim, Ingram placed the

car in park and relocked the door after Grillo unlocked it during the struggle. Id. The district court

further concluded that there was sufficient evidence to establish that Ingram was aware of Mario’s

larcenous intent prior to the homicide, based on the fact that “Petitioner told the police that she was

aware that Mario Ingram was going to ask the victim for money prior to the assault. Petitioner took

money from the victim immediately after the assault and ultimately retained both the victim's car and

wallet.” Id.

                                             II. Analysis

        The district court's decision to deny habeas corpus relief is reviewed de novo. Tucker v.

Palmer, 541 F.3d 652, 655 (6th Cir. 2008), cert. denied, 130 S. Ct. 109 (2009). Under the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a writ of habeas corpus shall

not be granted unless a petitioner shows that the state’s adjudication of the claim is “contrary to, or


                                                    -4-
involved an unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States”; or “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). “‘A state-court decision is an unreasonable application of clearly established

federal law if it correctly identifies the governing legal rule but applies it unreasonably to the facts

of a particular prisoner’s case.’” Tucker, 541 F.3d at 656 (quoting Parker v. Renico, 506 F.3d 444,

448 (6th Cir. 2007) (quoting Williams v. Taylor, 529 U.S. 362, 407-08 (2000) (internal quotation

marks omitted))). “When assessing unreasonableness, a federal habeas court may not issue the writ

simply because that court 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. (quoting Parker, 506 F.3d at 448 (quoting Williams, 529 U.S. at 411) (internal

quotation marks omitted)).

       Ingram contends that there was insufficient evidence to convict her of felony murder because

there was no evidence that she formed the intent to commit or aid and abet larceny prior to or during

the murder. She further claims that no inferences could be drawn from acts prior to or during the

murder regarding her intent to commit larceny. She therefore argues that the state court adjudication

was an unreasonable application of Jackson v. Virginia, 443 U.S. 307 (1979), and an unreasonable

determination of the facts. She asks that her felony murder conviction be vacated and her second-

degree murder conviction be reinstated.

       The Due Process Clause “protects the accused against conviction except upon proof beyond

a reasonable doubt of every fact necessary to constitute the crime with which [she] is charged.” In




                                                  -5-
re Winship, 397 U.S. 358, 364 (1970). Jackson established the test for determining whether the

evidence is sufficient to support a conviction under the Winship standard.

               Jackson held:

                After Winship the critical inquiry on review of the sufficiency of the evidence
       to support a criminal conviction must be not simply to determine whether the jury
       was properly instructed, but to determine whether the record evidence could
       reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry
       does not require a court to “ask itself whether it believes that the evidence at the trial
       established guilt beyond a reasonable doubt.” Instead, 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. This familiar standard gives full play to the responsibility of the
       trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to
       draw reasonable inferences from basic facts to ultimate facts. Once a defendant has
       been found guilty of the crime charged, the factfinder’s role as weigher of the
       evidence is preserved through a legal conclusion that upon judicial review all of the
       evidence is to be considered in the light most favorable to the prosecution. The
       criterion thus impinges upon “jury” discretion only to the extent necessary to
       guarantee the fundamental protection of due process of law.

Jackson, 443 U.S. at 318-19 (footnotes and internal citations omitted).

       The issue in this case, then, as framed by the AEDPA, is whether the district court erred in

concluding that the state court reasonably applied Jackson. See Tucker, 541 F.3d at 656. Deference

is due at two levels in this case: “First, deference should be given to the trier-of-fact’s verdict, as

contemplated by Jackson; second, deference should be given to the Michigan Court of Appeals’

consideration of the trier-of-fact’s verdict, as dictated by AEDPA.” Id. This is done “with explicit

reference to the substantive elements of the criminal offense as defined by state law. ” Jackson, 443

U.S. at 324 n.16.

       Ingram was convicted of first-degree felony murder under an aiding and abetting theory. The

felony murder doctrine requires that a defendant intended to commit the underlying felony at the



                                                  -6-
time the homicide was committed.4 People v. Brannon, 486 N.W.2d 83, 85-86 (Mich. Ct. App.

1992). The doctrine does not apply if the intent to commit the underlying felony is not formed until

after the homicide occurs. Id. at 86. In addition, the defendant must have, and the state must prove,

the intent to commit both the underlying felony and the murder. People v. Aaron, 299 N.W.2d 304,

326 (Mich. 1980).

       Here the enumerated felony was attempted larceny. Larceny is defined as “the taking and

carrying away of the property of another, done with felonious intent and without the owner’s

consent.” People v. Malach, 507 N.W.2d 834, 836 (Mich. Ct. App. 1993); see also Mich. Comp.

Laws § 750.356.


       4
           The elements of felony murder under Michigan law are:

       (1) the killing of a human being, (2) with the intent to kill, to do great bodily harm,
       or to create a very high risk of death or great bodily harm with knowledge that death
       or great bodily harm was the probable result [i.e., malice], (3) while committing,
       attempting to commit, or assisting in the commission of any of the felonies
       specifically enumerated in [the felony murder statute, Mich. Comp. Laws § 750.316].

People v. Carines, 597 N.W.2d 130, 136 (Mich. 1999) (quoting People v. Turner, 540 N.W.2d 728,
566 (Mich. Ct. App. 1995), overruled in part on other grounds by People v. Mass, 628 N.W.2d 540
(Mich. 2001)). This includes “perpetration of, or attempt to perpetrate . . . larceny of any kind.”
Mich. Comp. Laws § 750.316(1)(b).

       Aiding and abetting under Michigan law requires proof 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 its commission at the time he gave aid and encouragement.

Carines, 597 N.W.2d at 135. “An aider and abettor’s state of mind may be inferred from all the facts
and circumstances. Factors that may be considered include a close association between the defendant
and the principal, the defendant’s participation in the planning or execution of the crime, and evidence
of flight after the crime.” Id. (citing Turner, 540 N.W.2d at 734).


                                                 -7-
       Ingram claims that the only alleged evidence submitted to the jury as to her knowledge of

Mario’s intent to commit larceny was Mario’s statement to Ingram that he intended to ask Grillo for

money. Ingram argues that, absent any language indicating a theft or a taking without the owner’s

permission, the statement is insufficient by itself. In addition, Ingram claims that she had no reason

to suspect or anticipate that Mario would kill the victim. Rather, the evidence showed only that

Mario acted spontaneously and without warning, that she was merely present, and that larceny was

merely an afterthought.

       Even if, as Ingram suggests, it was not unusual for Mario to ask a friend for money, and even

if it was not unusual for Mario to reveal his intent privately to Ingram, it is unusual for a friend to

choke a friend from behind using speaker headset wires. As the Warden puts it, “[w]hen Mario

began choking and strangling Natalie, Ingram knew that Mario hadn’t yet obtained money from the

victim, as he told Ingram he was going to do.” From this “a jury could reasonably infer that

Ingram–having been told by her cousin of his intent to obtain money from the victim–having

changed seats with him at his request, then witnessing him begin to choke and strangle the

victim–was well aware of his larcenous intent, which was formed prior to the murder.” In other

words, there could be little doubt that by the time Mario began choking the victim, Ingram was aware

not only of Mario’s larcenous intent but of his murderous intent as well. And by her actions of

changing seats,5 putting the car in park, and relocking the car door, “[a] rational trier of fact could



       5
           Ingram complains that neither the Michigan Court of Appeals nor the district court
acknowledged that the changing of seats did not occur immediately before the homicide. Had the
exchange occurred much earlier than the murder, an inference could have been drawn that it was not
related to the murder. However, Ingram’s statement also does not indicate exactly when the
exchange occurred. Thus, rather than dispelling the notion that the act was unrelated to the murder,
it is still fair game.

                                                 -8-
easily infer from this action that [Ingram] actively assisted Mario Ingram not only with the

underlying larceny, but also with the fatal assault as well.” Ingram v. Stovall, 2008 WL 2605078,

at *5. Thus, the district court did not err in concluding that the state courts reasonably applied

Jackson to the facts of Ingram’s case.6

       Ingram claims the Michigan Court of Appeals failed to address the issue of formation of

intent to commit the larceny at the time of the homicide. To the contrary, the Michigan Court of

Appeals held that a rational trier of fact could have concluded beyond a reasonable doubt that Ingram

assisted Mario “with knowledge that Mario intended to kill the victim during the course of a

larceny.” People v. Ingram, 2002 WL 31956964, at *1. It relied specifically on the fact that “Stacey

Ingram stated that she knew that Mario Ingram was going to ask the victim for money, and changed

seats with him before the fatal assault.” Id.

       Ingram also argues that the district court’s finding that the larceny occurred “immediately”

after the murder is not supported by the record and that the court thus erred in finding that she had

larcenous intent during the murder. See Ingram v. Stovall, 2008 WL 2605078, at *5. Furthermore,

Ingram claims that she took the wallet only upon Mario’s instruction, gave him the $41, and received

only $1 in turn.

       Ingram’s confession does not state that the wallet was taken “immediately” upon Grillo’s

death. It is also uncontroverted that Mario directed her to retrieve the wallet. But neither of these


       6
        The cases Ingram cites are not binding and unpersuasive in any event. First, both Fuller v.
Anderson, 662 F.2d 420, 424 (6th Cir. 1981), and Hopson v. Foltz, 818 F.2d 866 (6th Cir. 1987) (per
curiam) (table disposition) are pre-AEDPA cases, and at most reaffirm that “mere presence” at the
scene does not establish guilt. The other cases cited for the proposition that the evidence was at most
“speculative” turn on different facts. See, e.g., Newman v. Metrish, 543 F.3d 793, 796-97 (6th Cir.
2008) (and cases discussed therein). And in this case, most of the state’s case was based on Ingram’s
own damaging admissions to the police.

                                                 -9-
facts alters the conclusion that the state court acted reasonably in applying the Jackson standard in

concluding that the larcenous intent was formed prior to or during the murder. First, the state court

did not refer to the fact that the wallet was taken “immediately” after the murder. The timing of the

wallet’s retrieval is easily explained by the fact that immediately after the murder, Mario and Ingram

were trying to figure out what to do with Grillo’s daughter and then disposing of Grillo’s body. The

fact that Mario instructed Ingram to get the wallet simply does not establish that she lacked an intent

to aid and abet in the larceny at the time of the murder. Moreover, Ingram’s confession reveals she

understood Mario’s nefarious intent at the outset. Her comment about Mario’s intent to ask for

money was in response to the specific question of whether “anything [was] said about hurting

Natalie.” Thus, the “record evidence . . . reasonably support[s] a finding guilt beyond a reasonable

doubt” on the element of larcenous intent prior to or during the murder. See Jackson, 443 U.S. at

318.

       In sum, we cannot say, on habeas review, that the state appellate court’s determination that

a rational trier of fact could have found the element of intent to commit larceny was unreasonable.7

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


       7
         The fact Mario was not convicted of felony murder does not alter this conclusion. Under
Michigan law, “[c]onviction of the principal is [not] necessary to charge the accessory.” People v.
Laine, 187 N.W.2d 505, 506 (Mich. Ct. App. 1971) (per curiam) (citations omitted); People v. Smith,
260 N.W. 911, 914 (Mich. 1935) (holding that effect of Michigan statutory provision abolishing
distinction between accessory and principal (currently Mich. Comp. Laws § 767.39) “is to permit
the prosecution of one who aid and abets, without regard to the conviction or acquittal of one who,
under the common law, would have been called the prinicipal”). See also Standefer v. United States,
447 U.S. 10, 20 (1980) (interpreting 18 U.S.C. § 2); id. at 16 n.9 (noting that Michigan statute is
similar to federal statute). The reality that Ingram serves a life sentence for her aiding-and-abetting
role while Mario–the person who carried out the killing–will obtain release after forty to sixty years
in prison does not change things. See People v. Ingram, 2002 WL 31956964, at *1 (Mich. Ct. App.
Dec. 20, 2002). Any disparity in sentencing at this point is a matter for the governor to consider in
exercising her clemency powers.

                                                 -10-
                               III. Conclusion

For the foregoing reasons the judgment of the district court is AFFIRMED.




                                     -11-
