                        RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit Rule 206
                                     File Name: 10a0047p.06

                UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                   _________________


                                              X
                                               -
 ARTEMIA STEWART,
                                               -
                               Petitioner-Appellee,
                                               -
                                               -
                                                   No. 08-2154
         v.
                                               ,
                                                >
                                               -
                    Respondent-Appellant. -
 HUGH WOLFENBARGER,
                                               -
                                              N
                Appeal from the United States District Court
               for the Eastern District of Michigan at Detroit.
              No. 05-10196—David M. Lawson, District Judge.
                                  Argued: October 14, 2009
                           Decided and Filed: February 19, 2010
                                                                                            *
    Before: GILMAN and GIBBONS, Circuit Judges; ANDERSON, District Judge.

                                    _________________

                                          COUNSEL
ARGUED: Debra M. Gagliardi, OFFICE OF THE MICHIGAN ATTORNEY
GENERAL, Lansing, Michigan, for Appellant. William J. Hubbard, THOMPSON
HINE LLP, Cleveland, Ohio, for Appellee. ON BRIEF: Debra M. Gagliardi, OFFICE
OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant.
William J. Hubbard, Frank R. DeSantis, THOMPSON HINE LLP, Cleveland, Ohio, for
Appellee.
                                    _________________

                                          OPINION
                                    _________________

        S. THOMAS ANDERSON, District Judge. Artemia Stewart was convicted of
second-degree murder, armed robbery, and felony firearm. Stewart was sentenced to


        *
        The Honorable S. Thomas Anderson, United States District Judge for the Western District of
Tennessee, sitting by designation.


                                                1
No. 08-2154         Stewart v. Wolfenbarger                                           Page 2


concurrent terms of 39 to 60 years imprisonment on the murder and robbery convictions
and two years on the firearm charge. After the Michigan appellate courts denied Stewart
all post-conviction relief, Stewart filed a petition for federal habeas corpus relief.
Holding that there was insufficient evidence to convict Stewart of second degree murder,
the district court granted his petition. For the reasons set forth below, we REVERSE
the judgment of the district court and REMAND the case with instructions to deny
Stewart’s petition for a writ of habeas corpus.

                                   I. BACKGROUND

A.      Factual background

        In the early hours of November 19, 1999, Robert Pippins was murdered at his
home on Mansfield Street in Detroit, Michigan. Pippins’s girlfriend, Crystal Robinson,
discovered Pippins on the lawn in the backyard at his house, alive but laboring to breath.
Pippins had suffered five gunshot wounds and later died at the hospital. Robinson
testified that Pippins sold drugs out of his house and kept a .22 caliber rifle there.

        Detroit Police Officer David Archambeau was responding to a call on St. Mary’s
Street when he heard gun shots coming from Mansfield Street on the night in question.
Archambeau observed four black males running toward him. One of the men was
wearing a long coat and appeared to be clutching a rifle or gun under the coat. When the
four men escaped in a Plymouth Sundance, Archambeau and his partner pursued. The
Sundance pulled into an alley where the four men jumped out of the car. The three
passengers fled in one direction while the driver ran south from the vehicle.

        The police’s inventory search of the Sundance uncovered a loaded .22 caliber
rifle with the stock cut off. Robinson, Pippins’s girlfriend, subsequently testified at trial
that she had observed a .22 rifle in Pippins’s home and identified the rifle recovered
from the Sundance as Pippins’s rifle. Police also discovered in the vehicle thirty-six (36)
ziplock bags of suspected crack cocaine, twenty-six (26) ziplock bags of suspected
marijuana, money, and a photograph that appeared to be of the driver of the vehicle with
his family. The car keys pictured in the ignition of the car in the photograph matched
No. 08-2154        Stewart v. Wolfenbarger                                       Page 3


the car keys that were in the ignition of the Sundance. Archambeau identified the man
in the photograph as Michael Hadley. Police arrested Hadley and two other men,
Deangelo Whitley and Deleon Tate, in connection with the murder of Robert Pippins.

        At Stewart’s trial, Investigator Gregory Edwards testified that Stewart was also
a suspect in the Pippins murder. However, police discovered that Stewart was no longer
in Detroit but had gone to Alabama some time after the murder. Stewart was eventually
brought back to Michigan after being arrested on another criminal matter.         Upon
Stewart’s return to Michigan, police questioned Stewart about the Pippins murder and
obtained a signed statement from him. Stewart told police that Tate, Whitley, and
Hadley were all involved in the Pippins murder. Stewart indicated that Tate (“D”), who
was Stewart’s cousin, and Whitley (“Chubby Skoal”) had told Stewart that they were
going to commit a robbery and asked to borrow Stewart’s .38 caliber pistol. According
to Stewart, he knew that “all they do is ride around and rob people.” Stewart gave
Whitley his weapon. Stewart also told police that “Little Mike” (i.e. Hadley) was with
Tate and Whitley when they committed the robbery. Stewart claimed that he did not
know anything about the murder until the next day when Tate and Whitley told him that
they had “hit a lick” [committed a robbery]. Whitley told Stewart that they had to throw
his .38 away after they had “busted this nigger because the hooks [police] were chasing
them.” Stewart identified a picture of Hadley and indicated that it was either Whitley
or Hadley who had “smoked” Pippins.

        According to Stewart, Whitley also told him that someone had stolen Whitley’s
car while Whitley was inside a gas station. Whitley asked Stewart to lie and say that
he was with Whitley and the others on the night of the Pippins murder. Stewart told the
police that he did not want to get involved and went to Alabama after police arrested
Tate.

        Dr. Leigh Hlavaty performed the autopsy on Pippins. At trial she testified that
Pippins suffered five gunshot wounds. Dr. Hlavaty recovered four projectiles from the
body, of which three were from a large caliber weapon and one was from a small caliber
No. 08-2154         Stewart v. Wolfenbarger                                        Page 4


weapon. Dr. Hlavaty testified that the wounds were the cause of death and that the
manner of death was homicide.

        Officer David Pauch testified about his examination of the semi-automatic rifle
and .22 long rifle bullets. He testified at trial that a cartridge case retrieved from the
scene was fired from the .22 police recovered from the Sundance. Pauch also examined
three bullets, which he confirmed were fired from the same weapon, either a 9 mm or .38
caliber. The weapon from which those bullets were fired was not available for his
examination. Officer Pauch further testified that a .22 bullet was a relatively small
caliber bullet; whereas, a 9mm or .38 bullet was considered a large caliber.

B.      Procedural history

        Stewart was indicted on four counts, including one count of felony murder, one
count of armed robbery, and one count of felony firearm. After a three-day trial in
December 2001, a jury convicted Stewart of second degree murder, armed robbery, and
felony firearm under an aiding and abetting theory. Stewart filed a motion for a new
trial, which the trial court denied.

        Stewart timely appealed to the state court of appeals, raising several issues that
included sufficiency of the evidence and erroneous jury instructions. The Michigan
Court of Appeals found that the evidence was sufficient to convict Stewart of second
degree murder as an aider and abetter. The Michigan Supreme Court denied Stewart’s
application for leave to appeal.

        After exhausting his state remedies, Stewart sought a writ of habeas corpus in the
United States District Court for the Eastern District of Michigan, raising many of the
same arguments previously heard in his state court appeal. The district court found no
merit to any of Stewart’s assignments of error except his insufficiency-of-the-evidence
claim as to his second degree murder conviction. As a result, the district court granted
Stewart’s petition as to that claim. The district court subsequently denied the state’s
motion for reconsideration. This timely appeal followed.
No. 08-2154        Stewart v. Wolfenbarger                                          Page 5


                                    II. ANALYSIS

A.     Standard of review

       This court reviews de novo a district court’s decision to grant or deny a petition
for a writ of habeas corpus. Joseph v. Coyle, 469 F.3d 441, 449 (6th Cir. 2006). Both
this Court and the district court are bound to apply the provisions of the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA) because Stewart filed his petition
after AEDPA’s effective date. See Woodford v. Garceau, 538 U.S. 202, 210 (2003).
Under AEDPA, a federal court may grant a writ of habeas corpus with respect to a
“claim that was adjudicated on the merits in State court proceedings” if the state court’s
decision “was contrary to, or involved an unreasonable application of, clearly established
federal law, as determined by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1). “A state court decision is contrary to clearly established federal law if the
state court applies a rule that contradicts the governing law set forth in the Supreme
Court’s cases or if the state court confronts a set of facts that are materially
indistinguishable from a decision of the Supreme Court and nevertheless arrives at a
result different from that precedent.” Joseph, 469 F.3d at 449-50 (brackets, citations,
and internal quotation marks omitted). On the other hand, 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,” Williams v. Taylor, 529 U.S. 362, 407-08 (2000), or if it “either unreasonably
extends or unreasonably refuses to extend a legal principle from Supreme Court
precedent to a new context.” Joseph, 469 F.3d at 450 (citation and internal quotation
marks omitted).

       A conviction is supported by sufficient evidence if, when “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.” Tucker v. Palmer, 541
F.3d 652, 656 (6th. Cir. 2008) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)
(emphasis in original)). In a habeas proceeding, however, we simply cannot conduct a
de novo review of the state court’s application of that rule, but must review its
No. 08-2154         Stewart v. Wolfenbarger                                            Page 6


sufficiency-of-the-evidence decision under the highly deferential standard of AEDPA.
Id. Stewart can be granted habeas relief only if the Michigan Court of Appeals
unreasonably applied the Jackson standard. Id. Our task is to “determine whether it was
objectively unreasonable for [the state court] to conclude that a rational trier of fact, after
viewing the evidence in the light most favorable to the state, could have found that
[Stewart] committed the essential element of [second degree murder] beyond a
reasonable doubt.” See Nash v. Eberlin, 258 F. App’x 761, 765 (6th Cir. 2007).

        When reviewing whether the state court’s determination was “objectively
unreasonable,” this court necessarily engages in a two-step analysis. First, we must ask
whether the evidence itself was sufficient to convict under Jackson. The inquiry ends
if the panel determines that there was sufficient evidence to convict Stewart. If we find
that the evidence is insufficient to convict, we must then apply AEDPA deference and
ask whether the state court was “objectively unreasonable” in concluding that a rational
trier of fact could find Stewart guilty beyond a reasonable doubt. The law therefore
“commands deference at two levels.” Tucker, 541 F.3d at 656.

B.      The Elements of the Crime

        Stewart was convicted of second-degree murder under an aiding and abetting
theory. The Supreme Court has stated that 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; York v. Tate, 858 F.2d 322 (6th Cir. 1988).

        Under Michigan law, “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 defined aiding and abetting as “all forms
of assistance rendered to the perpetrator of a crime” and stated that the phrase
“comprehends all words or deeds which may support, encourage or incite the
commission of a crime.” People v. Palmer, 220 N.W.2d 393, 396-97 (Mich. 1974). To
No. 08-2154         Stewart v. Wolfenbarger                                          Page 7


be found guilty as an aider and abettor, “the amount of advice, aid or encouragement is
not material if it had the effect of inducing the commission of the crime.” Id.

         In order to sustain a conviction under an aiding and abetting theory, the
prosecution had to show 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 that [the
defendant] gave aid and encouragement.” People v. Robinson, 715 N.W.2d 44, 47-48
(Mich. 2006). Thus, “under Michigan law, a defendant who intends to aid, abet, counsel,
or procure the commission of a crime, is liable for that crime as well as the natural and
probable consequences of that crime.” Id.

         In this case Stewart can be guilty of second-degree murder only if he held the
requisite intent to aid and abet that crime, if he had knowledge that the principal held the
requisite intent for that crime at the time Stewart gave aid and encouragement, or if
second-degree murder is a natural and probable consequence of the crime Stewart did
aid and abet. The elements of second-degree murder under Michigan law are: (1) a
death, (2) caused by an act of the defendant, (3) with malice, and (4) without justification
or excuse. People v. Goecke, 579 N.W.2d 868, 878 (Mich. 1998). Malice is defined as
the intent to kill, the intent to cause great bodily harm, or the intent to do an act in
wanton and wilful disregard of the likelihood that the natural tendency of such behavior
is to cause death or great bodily harm. People v. Aaron, 299 N.W.2d 304, 326 (Mich.
1980).

C.       Summary of the Evidence

         The evidence in this case was largely circumstantial and consisted primarily of
(1) Stewart’s statement to the police; (2) the testimony of Crystal Robinson and the
eyewitness testimony of Officer Archambeau; and (3) the police investigation tying
Stewart’s cohorts to the Pippins murder.
No. 08-2154         Stewart v. Wolfenbarger                                           Page 8


        First, Stewart provided a signed statement to police detailing his knowledge of
the Pippins murder. Specifically, Stewart told the police that Tate, Whitley, and Hadley
were involved in the murder of Robert Pippins. Stewart admitted that he had provided
a .38 handgun to Whitley, who together with Tate and Hadley were men whom Stewart
knew to have robbed people in the past. In fact, Tate and Whitley told Stewart that they
needed his gun for the very purpose of “hitting a lick” on the night of the Pippins
murder. Stewart explained to police that “hitting a lick” meant committing robbery.
Stewart thus gave his weapon to Whitley with the knowledge that they would use it to
commit a robbery.

        Although Stewart denied that he had knowledge of any plan to murder Pippins,
Stewart did tell the police that Whitley did not return his handgun but had disposed of
the weapon. Whitley explained to Stewart that they had “busted” someone with
Stewart’s gun, an expression which meant they had shot someone. The men went on to
tell Stewart that they had fled from the police. Whitley asked Stewart to lie about being
with them on the night before in an effort to establish an alibi. At that point, Stewart left
the state and traveled to Alabama. Stewart stated that he subsequently learned that the
three men had killed Pippins. Stewart told investigators that either Whitley or Hadley
had killed Pippins and identified a picture of Hadley.

        Based on this evidence and drawing all inferences in favor of the prosecution, a
rational trier of fact could have concluded beyond a reasonable doubt that Stewart had
provided a weapon which was used to rob and murder Robert Pippins.

        Second, the jury received the testimony of Detroit Police Officer Archambeau.
Officer Archambeau testified that he was at a location near Mansfield Street when the
Pippins murder took place. Archambeau heard gunshots and then observed four black
males running away from Mansfield Street. The four men escaped in a Plymouth
Sundance and were pursued by Archambeau and his partner. When the Sundance pulled
into an alley, Archambeau observed the four men jump out of the car and scatter in
different directions. The subsequent inventory search of the vehicle uncovered a loaded
.22 rifle with the stock cut off, which Pippins’ girlfriend identified at trial as a weapon
No. 08-2154         Stewart v. Wolfenbarger                                          Page 9


belonging to Pippins. Robinson also testified that Pippins was a drug-dealer. In addition
to the rifle, the vehicle contained thirty-six (36) ziplock bags of suspected crack cocaine,
twenty-six (26) ziplock bags of suspected marijuana, money, and a photograph that
appeared to be of the driver of the vehicle with his family. Police used the photograph
to match the Sundance and the keys left in the ignition to the car and the car keys
pictured in the photograph. Archambeau testified that the driver of the Sundance was
the man in the photograph. That man was identified as Michael Hadley.

        Based on this evidence and drawing all inferences in favor of the prosecution, a
rational trier of fact could have concluded beyond a reasonable doubt that the men
Archambeau observed running from Mansfield, entering the Sundance, and then later
abandoning the vehicle were the men responsible for the robbery and murder of Robert
Pippins. Furthermore, a rational trier of fact could have concluded beyond a reasonable
doubt that four men were responsible for the crime, and not just the three named by
Stewart, and that one of them was Michael Hadley, one of the same men Stewart
implicated in the Pippins murder. However, the trier of fact could not have concluded
beyond a reasonable doubt that Stewart was the fourth man at the scene.

        Finally, the police investigation provided additional corroborating details about
the Pippins murder and the weapons used in the crime. The autopsy showed that Pippins
was shot five times and that the gunshots were the cause of death consistent with a
homicide. Dr. Hlavaty testified that she recovered four bullets from the body, of which
three were a large caliber and one was a small caliber. Officer Pauch added that a .22
bullet was a small caliber and that a 9mm or .38 bullet was considered a large caliber.
Based on his examination and testing of the .22 rifle recovered from the Sundance,
Pauch concluded that a cartridge case retrieved from the scene was fired from the same
.22. Pauch also testified that three other bullets recovered from the scene were fired
from the same weapon, either a 9 mm or .38. Because that weapon was not available,
Pauch could not conclusively say whether it was a 9mm or a .38.

        On the basis of this evidence and drawing all inferences favorable to the
prosecution, a rational trier of fact could have concluded beyond a reasonable doubt that
No. 08-2154        Stewart v. Wolfenbarger                                       Page 10


Pippins was murdered and that the murderer fired at least one shot from Pippins’ own
.22. A rational trier of fact could have also concluded beyond a reasonable doubt that
three of the other wounds came from a large caliber gun, either a 9mm or .38. There was
no conclusive evidence that the large rounds came specifically from Stewart’s .38
because the weapon was not found.            However, Stewart’s statement to police
corroborated that Stewart’s .38 was used to murder Pippins.

D.     Sufficiency of the Evidence to Convict Stewart as an Aider and Abetter

       As an initial matter, we acknowledge that Stewart’s is an unusual case in two
respects. First, Stewart was convicted of second-degree murder for aiding and abetting
the murder by providing one of the weapons the principals used to carry out the crime.
There was no evidence that Stewart was present when the principals robbed and
murdered Robert Pippins. Indeed there was no evidence that Stewart knew that the
principals intended to rob Pippins specifically or that a murder would be committed with
Stewart’s weapon. Additionally, we note the fact that the jury actually acquitted Stewart
of first-degree felony murder and convicted him of second-degree murder. However,
under Michigan law, both crimes required proof of largely the same elements including
the same mens rea, malice, the difference being that the prosecution had to prove an
underlying felony in order to convict of felony murder. It would appear then that the
jury found the elements of second-degree murder as well as an underlying felony and
still acquitted Stewart of first-degree felony murder.

       Although the facts of this case make it closer than other sufficiency-of-the-
evidences cases, we hold that there was sufficient evidence from which a rational trier
of fact could conclude that Stewart was guilty of second-degree murder under an aiding
and abetting theory. In assessing the proof, a court may sustain a conviction based upon
nothing more than circumstantial evidence. See United States v. Kelley, 461 F.3d 817,
825 (6th Cir. 2006) (“Circumstantial evidence alone is sufficient to sustain a conviction
and such evidence need not remove every reasonable hypothesis except that of guilt.”)
Although the evidence in this case was largely circumstantial, there was sufficient
evidence that Stewart aided and abetted the armed robbery and murder of Robert
No. 08-2154          Stewart v. Wolfenbarger                                      Page 11


Pippins. Stewart admitted that he provided a .38 handgun to Whitley with the
knowledge that Whitley and Tate were going to use it to commit a robbery. A rational
trier of fact could have found beyond a reasonable doubt that Pippins provided the .38;
that Tate, Whitley, and Hadley used the .38 to rob Robert Pippins and then murder him;
that these three men and one other were observed fleeing from the scene and were
pursued by Detroit Police; that they abandoned their vehicle with the .22 rifle and the
drugs stolen from Pippins; and that they later admitted to Stewart that they had used his
gun to commit murder and disposed of the weapon during the police chase.

       1.      The Principals Committed the Pippins Murder

       Based on this evidence, we conclude that there was sufficient evidence to convict
Stewart of second-degree murder as an aider and abetter. It is undisputed that there was
sufficient evidence to establish the first two elements necessary to sustain a conviction
under an aiding and abetting theory. First, there was sufficient evidence that the crime
charged, the murder of Robert Pippins, was committed by Whitley, Tate, and Hadley.
The evidence showed that Pippins was shot five times in a manner consistent with a
homicide. Testimony was offered that Pippins was a drug-dealer and kept quantities of
illegal narcotics in his home. Narcotics stored in individual ziplock bags along with
money and Pippins’ own firearm were recovered from a vehicle that sped from the
vicinity of the crime scene. Officer Archambeau identified Hadley as the driver of that
vehicle, and Stewart himself implicated Hadley and the two other principals in the
murder of Robert Pippins in his sworn statement to the police. There was unrefuted
testimony that Pippins was shot at least one time by the same firearm recovered from the
vehicle driven by Hadley. There was, therefore, sufficient evidence from which a trier
of fact could find that the principals Whitley, Tate, and Hadley were guilty of the murder
of Robert Pippins.
No. 08-2154          Stewart v. Wolfenbarger                                     Page 12


       2.        Stewart Assisted the Commission of the Pippins Murder

           The second element to convict Stewart as an aider and abetter is also not in
dispute. Stewart performed acts or gave encouragement that assisted the commission of
the crime, namely, the murder of Robert Pippins. There was sufficient evidence that the
Pippins murder was carried out by the men to whom Stewart had given a .38 handgun.
It is also undisputed that Stewart provided the weapon with the knowledge that the men
intended to use it in the commission of a robbery. Stewart himself informed the police
that the same men later told him that they discarded the weapon after committing a
murder, thereby admitting that it was his .38 which was used to murder Pippins. The
men also asked Stewart to lie in order to help them establish an alibi, which Stewart
refused to do. The autopsy confirmed that Pippins was shot at least three times by a
large caliber weapon such as a .38. Police found three bullet casings consistent with a
.38 at the scene of the crime as well. Therefore, there was sufficient evidence from
which a rational trier of fact could find beyond a reasonable doubt that Stewart provided
a weapon to the murderer and so performed acts that assisted the murder of Robert
Pippins.

       3.        Stewart’s Malice

       The primary issue in this appeal is whether Stewart held the requisite intent to
be convicted of second-degree murder or had knowledge that the principals held such
intent at the time that Stewart gave them aid and encouragement. Because malice is the
requisite mens rea for second-degree murder under Michigan law, Goecke, 579 N.W.2d
at 878, the prosecution had to prove beyond a reasonable doubt that Stewart acted with
malice or knew that the principals acted with malice at the time Stewart provided them
with his firearm.

       In the alternative, Stewart may also be found guilty as an aider and abetter under
Michigan law if second-degree murder was a natural and probable consequence of the
crime Stewart did aid and abet. The Robinson court construed the language of
Michigan’s aiding and abetting statute to provide that an aider and abetter may be
convicted of two types of offenses: the offense the aider intended to commit and any
No. 08-2154         Stewart v. Wolfenbarger                                       Page 13


offense which was the natural and probable consequence of the intended offense.
Robinson, 715 N.W.2d at 49 (“we hold that when the Legislature abolished the
distinction between principals and accessories, it intended for all offenders to be
convicted of the intended offense, in this case aggravated assault, as well as the natural
and probable consequences of that offense, in this case death.”). Stewart does not
dispute that he was guilty of aiding and abetting the crime of armed robbery. Therefore,
even if there was insufficient evidence to show that Stewart acted with the requisite
malice or that Stewart knew that the principals possessed the requisite malice for second-
degree murder, a rational trier of fact could still convict Stewart of second-degree
murder if that crime is a natural and probable consequence of armed robbery. Because
we hold that there was sufficient evidence to infer Stewart’s malice under the
circumstances, we need not reach this alternative theory of Stewart’s guilt.

          Under Michigan law, “malice” is defined as “the intent to kill, the intent to
inflict great bodily harm, or the intent to do an act in wanton and wilful disregard of the
likelihood that the natural tendency of such behavior is to cause death or great bodily
harm.” Goecke, 579 N.W.2d at 878-79. An aider and abettor’s state of mind may be
inferred from all the facts and circumstances of the crime. People v. Turner, 540
N.W.2d 728, 734 (Mich. Ct. App. 1995), overruled in part on other grounds. 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. Also “malice is a permissible inference from the
use of a deadly weapon.” People v. Martin, 221 N.W.2d 336, 340-41 (Mich. 1974);
overruled in part on other grounds, People v. Woods, 331 N.W. 2d 707 (Mich. 1982);
Brown v. Jackson, 2009 WL 3125603, at *11-12 (E.D. Mich. Sept. 25, 2009); McGuire
v. Ludwick, 2009 WL 2476452, at *3 (E.D. Mich. Aug. 11, 2009); Daniels v. McKee,
2009 WL 2351767, at *4 (W.D. Mich. July 29, 2009). See also People v. Feldmann,
449 N.W.2d 692, 697 (Mich. Ct. App. 1989); Turner, 540 N.W.2d at 733; People v.
Carines, 597 N.W.2d 130, 136 (Mich. 1999); People v. Mass, 628 N.W.2d 540, 548
(2001).
No. 08-2154         Stewart v. Wolfenbarger                                        Page 14


        In light of these principles of Michigan law, we hold that there was sufficient
evidence presented in this case from which a rational trier of fact could infer the
requisite malice to find Stewart guilty of second-degree murder. Initially, we emphasize
that Michigan’s definition of malice does not require that a defendant act with the intent
to commit murder. Rather the standard is much broader and includes the intent to
commit serious bodily injury or the intent to do an act in wanton and wilful disregard of
the likelihood that the natural tendency of such behavior is to cause death or great bodily
harm. More specifically, “[t]he offense of second-degree murder ‘does not require an
actual intent to harm or kill, but only the intent to do an act that is in obvious disregard
of life-endangering consequences.’” People v. Aldrich, 631 N.W.2d 67, 80 (Mich. Ct.
App. 2001). Thus, it was not necessary to show that Stewart intended for Pippins or
anyone else to be killed or that Stewart knew that Whitley intended to kill the victim of
the robbery.

        Stewart contends that the prosecution had to prove that murder was “the natural
and probable consequence” of committing an armed robbery. According to Stewart, the
state had to show that the men to whom Stewart gave the weapon had murdered or
harmed their robbery victims during prior robberies in order to prove that murder was
“the natural and probable consequence” of the armed robbery in this case. Because
murder was not “the likely, probable, or intended outcome of this robbery,” Stewart
contends that he could not have acted with malice by lending his weapon to Whitley.
Stewart cites national crime statistics for the proposition that very few armed robberies
end in murder, and so it could not be said that murder is “the natural and probable” result
of that type of crime. We reject Stewart’s argument in light of the broad definition of
malice adopted under Michigan law. Malice includes more than the intent to commit
murder. For the same reasons, the statistics on the number of murders resulting from
armed robberies cited by Stewart are largely irrelevant. One can possess malice as
defined by Michigan law simply by acting with disregard for the “life-endangering
consequences” of one’s actions. Aldrich, 631 N.W.2d at 80.
No. 08-2154        Stewart v. Wolfenbarger                                       Page 15


       Having established the applicable definition of malice, several of the relevant
factors from which malice can be inferred are present in this case. First, by Stewart’s
own admission, he had a close association with at least one of the principals by virtue
of the fact that Tate was his cousin. Stewart further told the police that he was
acquainted with Whitley and Hadley and even knew that these men “rode around and
robbed people.” Clearly Stewart knew Whitley well enough to entrust his .38 to him.
It could not be said then that the principals were strangers to Stewart. Second, although
it is true that Stewart did not participate in the planning or execution of the crime,
Stewart clearly knew that the men had carried out robberies in the past and intended to
use his weapon in the commission of an armed robbery that very day. Despite his
awareness of their past activities and present intentions, Stewart freely gave them aid.
Indeed, Stewart armed them for the robbery. Third, Stewart’s flight after the crime is
not in dispute. Stewart was a suspect in the Pippins murder investigation, but before
police could question him, Stewart fled to Alabama.

       Perhaps most importantly, Stewart’s act in providing a weapon to be used in an
armed robbery was done with an “obvious disregard of the life-endangering
consequences.” It is undisputed that Stewart knew the weapon was going to be used to
commit an armed robbery, a circumstance that would evidence “an act in wanton and
wilful disregard of the likelihood that the natural tendency of such behavior is to cause
death or great bodily harm.” See Goecke, 579 N.W.2d at 878-79. Taken together these
factors support an inference that Stewart acted with malice when he provided his .38 to
the principals.

       What is more, it was enough to infer Stewart’s malice if the evidence showed that
Stewart gave aid to the principals with the knowledge that they intended to do an act
with “obvious disregard to its life-endangering consequences.” The Michigan Supreme
Court has held that in order to be convicted as an aider and abettor, the prosecution may
prove either that “the defendant intended the commission of the crime or had knowledge
that the principal intended its commission at the time that [the defendant] gave aid and
encouragement.” Robinson, 715 N.W.2d at 47-48. Consistent with this general principle
No. 08-2154         Stewart v. Wolfenbarger                                        Page 16


of aiding and abetting, Michigan law provides that “malice can be inferred from the aider
and abettor’s knowledge that his cohort possesses a weapon.” Hill v. Hofbauer, 337
F.3d 706, 720 (6th Cir. 2003). This court and other federal courts applying Michigan
law in habeas cases have recognized this inference concerning the aider and abetter’s
knowledge that the principal is armed. See, e.g., Hill, 337 F.3d at 720 (defendant aided
and abetted second-degree murder by acting as lookout; case remanded on issue of
aider’s knowledge that principal was armed where trial court erred in admitting
statement of co-defendant); Brown, 2009 WL 3125603, at *11-12 (defendant aided and
abetted second-degree murder by planning robbery, coordinating movements with
accomplice) (“the jury could infer from this careful planning that [the accomplice’s] use
of a gun was not an unforeseen circumstance”); McGuire, 2009 WL 2476452, at *3
(defendant aided and abetted felony murder, which also requires malice, by driving
brother to a neighborhood and waiting in the car with knowledge that his brother had a
weapon); Daniels, 2009 WL 2351767, at *4 (defendant aided and abetted felony murder
by participating in robbery of drug house during which the principal threatened victims
with firearm and then held victims at gunpoint). See also People v. Turner, 540 N.W.2d
728, 733 (Mich. Ct. App. 1995), overruled in part on other grounds (“Turner’s
knowledge that [his accomplice] was armed during the commission of the armed robbery
is enough for a rational trier of fact to find that Turner, as an aider and abetter,
participated in the crime. . . . [B]ecause Turner knew of [his accomplice’s] intent to
cause great bodily harm, a rational trier of fact could find that Turner was acting with
‘wanton and willful disregard’ sufficient to support a finding of malice.”); People v.
Carines, 597 N.W.2d 130, 137 (Mich. 1999) (“Defendant participated in a robbery
involving the use of a knife, acting in wanton and willful disregard of the possibility that
death or great bodily harm would result.”).

        In this case, the fact that Stewart aided the principals with the knowledge that
they would be armed during the robbery offers another independent basis to infer
Stewart’s malice at the time he provided the firearm. The proof showed that Whitley
and Tate came to Stewart and asked to use his firearm for the express purpose of
committing an armed robbery. Whitley’s stated intention to use Stewart’s weapon to
No. 08-2154        Stewart v. Wolfenbarger                                        Page 17


commit an armed robbery evidenced “an obvious disregard of life-endangering
consequences.” In other words, Whitley, the principal to whom Stewart gave the
weapon, possessed the requisite malice for second-degree murder at the time that Stewart
gave him the weapon. For his part, Stewart knew that Whitley and the other principals
intended to commit armed robbery and to use his firearm to accomplish the crime. Thus,
Stewart was aware or should have been aware that Whitley was proceeding with “an
obvious disregard of life-endangering consequences” of his actions. Therefore, there
was sufficient evidence from which a rational juror could draw an inference that Stewart
acted with malice by aiding and abetting Whitley.

       The lower court in this case concluded that the malice inference did not apply
because Stewart himself did not use the gun and there was no evidence that Stewart was
even present at the scene of the robbery. Likewise, Stewart argues on appeal that the
malice inference concerning knowledge of a cohort possessing a weapon cannot apply
in his case, primarily because Stewart was not present at the scene of the crime. We find
this distinction unconvincing. First, the Michigan case law is clear that the aider and
abetter need not possess the weapon himself. Second, the Michigan Supreme Court has
cited with approval an earlier version of Michigan’s aiding and abetting statute which
read, “all persons concerned in the commission of a felony, whether they directly
commit the act constituting the offence, or aid and abet in its commission, though not
present, may hereafter be indicted, tried and punished, as principals, as in the case of a
misdemeanor” (emphasis added)). Robinson, 715 N.W.2d at 49 (citing Michigan’s
aiding and abetting statute, 1855 Public Acts 77, § 19). There is no indication that
presence is required in order to be convicted as an aider and abettor.

       Moreover, courts applying Michigan law have held that an inference of malice
was appropriate under a variety of circumstances even when the aider and abetter is not
in the principal’s presence at the time the principal committed the murder. See, e.g.,
Hill, 337 F.3d at 720 (aider and abettor convicted of second degree murder for acting as
lookout outside victim’s home; remanded for error in admitting statement of co-
defendant); McGuire, 2009 WL 2476452, at *3 (aider and abettor of felony murder
No. 08-2154         Stewart v. Wolfenbarger                                         Page 18


convicted for simply driving brother to a neighborhood and waiting in the car at a stop
sign); Daniels, 2009 WL 2351767, at *4 (aider and abettor of felony murder present in
house but not in room when accomplice shot and killed robbery victim). These results
are consistent with the broad applications of the inference approved by the Michigan
courts. Turner, 540 N.W.2d at 733 (“Turner’s knowledge that [his accomplice] was
armed during the commission of the armed robbery is enough for a rational trier of fact
to find that Turner, as an aider and abetter, participated in the crime with knowledge of
[his accomplice’s] intent to cause great bodily harm.”); Carines, 597 N.W.2d at 137
(“Defendant participated in a robbery involving the use of a knife, acting in wanton and
willful disregard of the possibility that death or great bodily harm would result.”).

        We recognize that the Michigan cases applying the malice inference all involve
some degree of presence at the scene of the crime on the part of the aider and abetter.
In this case, there was no evidence that Stewart was present at the scene of the crime or
had any prior knowledge about whom the principals intended to rob. These facts should
weigh against an inference of malice. However, they do not preclude the inference.
Taken together with all of the evidence discussed above, we find that multiple factors
give rise to an inference of Stewart’s malice in this case. Stewart’s association with the
principals, Stewart’s role in providing the weapon for the armed robbery, and Stewart’s
flight to Alabama immediately after the Pippins murder all support the inference of
malice. Stewart’s act of providing the weapon for an armed robbery evidences his own
“obvious disregard of life-endangering consequences” of his actions, which is to say
Stewart’s malice. Furthermore, malice could be inferred in this case because of
Stewart’s knowledge that the principals would be armed during the robbery. Stewart
gave aid with the knowledge of Whitely’s “obvious disregard of life-endangering
consequences.” The fact that Stewart was not present and had no detailed knowledge
of the robbery plot weakens the inference to be drawn from the fact that the principals
were armed during the robbery. However, in light of the multiple bases for drawing the
inference of malice, we hold that there was sufficient evidence presented from which a
rational juror could infer Stewart’s malice. Therefore, Stewart is not entitled to the relief
sought in his habeas petition.
No. 08-2154         Stewart v. Wolfenbarger                                        Page 19


  E.    Fundamental Fairness Concerns

        In Hill v. Hofbauer, this court noted that courts applying Michigan’s malice
inference to aiders and abettors have also opined that “[i]t is fundamentally unfair and
in violation of basic principles of individual criminal culpability to hold one felon liable
for an unforeseen death that did not result from actions agreed upon by the participants.”
Hill, 337 F.3d at 720 (citing Turner, 540 N.W.2d at 733). In fact, the district court in
this case cited this language in its decision without further comment or analysis. We
recognize that on its face this oft-cited proposition appears to undermine the rationale
for our holding in this case. More specifically, we affirm Stewart’s murder conviction
despite the fact that the murder of Robert Pippins was “an unforeseen death” that
arguably “did not result from actions agreed upon by the participants.” Therefore, we
take this opportunity to clarify the application of the principle generally as well as its
application to the facts of this case.

        In order to provide greater context, we observe that the “fundamentally unfair”
statement comes from an opinion of the Michigan Supreme Court, People v. Aaron, 299
N.W.2d 304, 327 (Mich. 1980). The significance of the Aaron decision lay in the fact
that the Michigan high court held for the first time that a defendant could not be
convicted of felony murder based solely on the intent to commit the underlying felony.
Id. at 326. Rather, the prosecution had to prove malice in addition to the mental state
required for the felony in order to convict the defendant of felony murder. Id. Aaron
was notable then because it marked Michigan’s abrogation of the common law felony-
murder doctrine. Id. at 327. See also Paul Moreno, People v. Aaron: Exorcising the
Ghost of Felony Murder, 88:3 Mich. Bar J., Mar. 2009.

        In an effort to explain the reach of its holding, the Aaron court considered the
effect of the abrogation of the felony-murder rule on the vicarious liability of co-felons
where the underlying felony results in murder. Aaron, 299 N.W.2d at 327. In what is
arguably dicta, the Michigan Supreme Court stated:

        In the past, the felony-murder rule has been employed where unforeseen
        or accidental deaths occur and where the state seeks to prove vicarious
No. 08-2154        Stewart v. Wolfenbarger                                          Page 20


       liability of co-felons. In situations involving the vicarious liability of co-
       felons, the individual liability of each felon must be shown. It is
       fundamentally unfair and in violation of basic principles of individual
       criminal culpability to hold one felon liable for the unforeseen and
       unagreed-to results of another felon. In cases where the felons are acting
       intentionally or recklessly in pursuit of a common plan, the felony-
       murder rule is unnecessary because liability may be established on
       agency principles.

       Id. The Aaron court’s reasoning logically flowed from the abrogation of the
common law felony-murder rule in Michigan. Just as the Aaron court held that the trier
of fact could not infer intent to commit murder simply from the intent to commit the
underlying felony, so too the trier of fact could not impute one co-felon’s malicious
intent to the other co-felon vicariously. Thus, “[i]n situations involving the vicarious
liability of co-felons, the individual liability of each felon must be shown.” Id.

       Courts applying Michigan law have subsequently cited Aaron many times for
these propositions. Upon examination of many of those decisions, we find that the
Aaron court’s “fundamentally unfair” concern has consistently been construed to mean
that “[w]hen the state seeks to convict an aider and abettor of a substantive offense, the
prosecution must establish that the aider and abettor himself possess[ed] the required
intent or participate[d] while knowing that the principal possessed the required intent.”
See West v. Jones, 2006 WL 508652, at *6 (E.D. Mich. Feb. 28, 2006) (quoting Turner,
540 N.W.2d at 548) (internal quotation marks omitted); see also Brown, 2009 WL
3125603, at *11; Woods v. Booker, 2008 WL 4808724, at *10 (E.D. Mich. Oct. 23,
2008); Stribling v. Smith, 2000 WL 796181, at *18 (E.D. Mich. May 31, 2000); Carines,
597 N.W.2d at 136-37; People v. Dumas, 563 N.W.2d 31, 42 (Mich. 1997) (J. Boyle
dissenting). In fact, in a later opinion citing the “fundamentally unfair” language from
Aaron, the Michigan Supreme Court stated, “This [fairness] concern is not implicated
by an aiding and abetting standard which requires a finding that the co-felon acted with
malice.” People v. Kelly, 378 N.W.2d 365, 373 (Mich. 1985).

       Based on this background, we hold that fairness concerns are not implicated in
Stewart’s case. Our decision is consistent with the approach followed by the Michigan
No. 08-2154          Stewart v. Wolfenbarger                                         Page 21


courts, which require proof of the aider and abetter’s malice, or knowledge that the
principal possessed the required intent, over and above the intent required to prove the
underlying felony. As set forth above, there was sufficient evidence from which a
rational trier of fact could conclude that Stewart acted with malice when he gave his gun
to Whitley for the purpose of committing an armed robbery. Therefore, fundamental
fairness and “basic principles of individual criminal culpability” are satisfied in this case.

F.        AEDPA Standards

          Even if we had concluded, after reviewing the record and drawing all conclusions
in favor of the prosecution, that Stewart’s convictions were not supported by sufficient
evidence, the question would have remained whether it was unreasonable for the
Michigan Court of Appeals to conclude that the evidence was sufficient. “A federal
habeas court may not [grant habeas relief] simply because that court concludes in its
independent judgment that the state-court decision applied a Supreme Court case
incorrectly.” Price v. Vincent, 538 U.S. 634, 641, 123 S.Ct. 1848 (2003). On the
contrary, “it is the habeas applicant’s burden to show that the state court applied [that
case] to the facts of his case in an objectively unreasonable manner.” Woodford v.
Visciotti, 537 U.S. 19, 24-25, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002). Stewart has failed
to carry this burden. We find no basis to call the state court’s decision an unreasonable
application of Jackson. Under the circumstances, we cannot affirm the grant of
Stewart’s habeas petition because Stewart has failed to show that the decision of the
Michigan Court of Appeals was objectively unreasonable.

          For the reasons set forth above, we REVERSE the judgment of the district court
and REMAND the case with instructions to deny Stewart’s petition for a writ of habeas
corpus.
