                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0344n.06
                             Filed: June 18, 2008

                                            No. 06-1982

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

STAFFORD LEE GILL,
      Petitioner-Appellant,
                                                       On Appeal from the
               v.                                      United States District Court for
                                                       the Eastern District of Michigan
JOHN CASON ,
      Respondent-Appellee.
______________________________

       Before: KENNEDY and MARTIN, Circuit Judges; HOOD, District Judge.*

       KENNEDY, J. Mr. Stafford Lee Gill appeals the judgment of the district court denying his

petition for a writ of habeas corpus under 28 U.S.C. § 2254. Mr. Gill was convicted in Michigan

state court of possession with intent to deliver more than 650 grams of cocaine, in violation of MICH .

COMP. LAWS § 333.7401(2)(a)(i) (1998), and conspiracy to possess with intent to deliver more than

650 grams of cocaine, in violation of MICH . COMP. LAWS § 769.12 (1998). Mr. Gill argues that he

is entitled to a writ of habeas corpus because there was no evidence from which any rational trier of

fact could find that he and his coconspirator conspired to possess with intent to deliver more than

650 grams of cocaine. Because Michigan law requires proof that Mr. Gill’s coconspirator was aware

of the minimum amount of cocaine charged in the indictment, and because there was no proof from

which any rational trier of fact could so find, we find that there was insufficient evidence to support



       *
       The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.

                                                  1
Mr. Gill’s conspiracy conviction. We therefore REVERSE the judgment of the district court and

GRANT a writ of habeas corpus.

                                         BACKGROUND

                                       I. Factual Background

        At 3:30   PM   on January 29, 1998, officers in the Oakland County Narcotics Enforcement

Team executed a search warrant at 321 West Hopkins Avenue in Pontiac, Michigan. The search

warrant permitted the officers to seize documents related to Mr. Stafford Lee Gill’s drug trafficking.

While Mr. Gill resided at 18 Jefferson Street in Pontiac, Michigan, officers had probable cause to

believe that Mr. Gill was conducting drug operations at 321 West Hopkins.

        When officers executed the search warranted, they immediately found Mr. Gill and a Mr.

Andre Wellons engaged in criminal activity in the kitchen. Mr. Gill was seated next to Mr. Wellons

at the kitchen table. On the kitchen table in front of both of them was 111.68 grams of crack cocaine

in the process of being packaged. Mr. Wellons was cutting and weighing the crack; in front of Mr.

Wellons were a razor blade, a plate containing a large, half moon piece of crack cocaine as well as

smaller pieces that had broken off the larger disk, and an electronic scale with one-and-a-half grams

of crack on it. Mr. Gill was putting the weighed pieces into plastic sandwich baggies; in front of Mr.

Gill were baggies containing crack cocaine as well as a box of sandwich baggies. On the table were

eighty-four baggies of crack valued at $100 each, as well as nineteen baggies of crack valued at $150

each.

        The crack in the kitchen had been recently made. Crack is made by mixing powder cocaine,

a base agent, and water, and then heating the mixture. The crack had been made using baking soda,

which was found in the cupboard above the microwave, mixing it with powder cocaine and water,


                                                  2
and then microwaving the mixture in glass Mason jars, one of which was found on the kitchen table

and one of which was found near the microwave. J.A. at 134-35, 138. The disk of crack was “still

actually soft and pliable, . . . it was like a warm, fresh-baked cookie.” J.A. at 137-38, 141. Given

the size and state of the disk of crack, it had likely been made roughly 10-29 minutes prior to the

officers’ entry. Alt. J.A. at 205-06. The only ingredient or tool necessary to make crack cocaine

absent from the kitchen was powder cocaine. Indeed, despite a careful search and despite the fact

that powder cocaine leaves a residue, there were no baggies or other receptacles located in the

kitchen that had powder cocaine residue. J.A. at 138-40.

       Upon further search of the home, the officers located powder cocaine in the closet of the

southeast bedroom.1 The homeowner, Ms. Connie Wellons,2 shared the southeast bedroom with her

boyfriend, Mr. Albert Dowdle, J.A. at 157, and both were present in the bedroom when the search

warrant was executed, J.A. at 108. When the officer entered the bedroom, he noticed that the closet

door was open, and a “clear, plastic, Tupperware-like, shoe size type box” was visible on a shelf in

the closet. The clear box contained six, Ziploc-type baggies filled with a white, powdery substance

that upon analysis proved to be 631.10 grams of powder cocaine. A thumbprint from Mr. Gill was

found on the top of the box, and three fingerprints from Mr. Dowdle were found on the bottom of

the box.3 J.A. at 156. Also found in the closet, inside a different, opaque plastic box, was an item




       1
          The southeast bedroom was located down a hallway from the kitchen, J.A. at 107-08, in the
back of the house, J.A. at 123.
        2
          Ms. Connie Wellons is the mother of Mr. Andre Wellons, who was assisting Mr. Gill weigh
and package the crack cocaine in the kitchen. J.A. at 150. Despite being the son of the homeowner,
Mr. Wellons did not live at 321 West Hopkins. J.A. at 150.
        3
          A fingerprint from Mr. Dowdle was also found on one of the Mason jars in the kitchen.
J.A. at 157.
                                                 3
of correspondence bearing Mr. Gill’s name and, directly underneath the clear box of powder cocaine,

was a contractor’s work order for 321 West Hopkins in Mr. Dowdle’s name. J.A. at 122-23, 144.

       There was further evidence connecting Mr. Gill to 321 West Hopkins Avenue. When

searching that residence, the officers located a title to a 1987 Volvo registered in Mr. Gill’s name.

J.A. at 144. Additionally, during a search of Mr. Gill’s residence, 18 Jefferson Street, officers found

a Europe Automotive bill addressed to Mr. Gill at 321 West Hopkins Avenue. J.A. at 163-64. Also

found during the search of Mr. Gill’s house was a bank statement for Ms. Carla Wellons4 addressed

to 18 Jefferson Street, as well as other drug paraphernalia.

       Upon his arrest, Mr. Gill made an incriminating statement to the police. He stated that “he

was caught red-handed[,] . . . that [the police] caught him with his hand in the cookie jar.” J.A. at

171. When asked if the crack on the kitchen table was his, Mr. Gill admitted it was. When asked

what he was doing at Ms. Connie Wellons’s residence, Mr Gill “stated that he’d brought the cocaine

over to 321 West Hopkins, and at that area he was cutting it up, making it ready for sale. . . . He

[further] stated [that] all the cocaine was his.” J.A. at 171. While there is ambiguity as to whether

Mr. Gill meant that he brought crack cocaine or powder cocaine into the house, the evidence viewed

most favorably to the prosecution supports a finding that Mr. Gill meant powder cocaine. This

inference is derived from the fact that the crack cocaine found in the kitchen was recently made at

321 West Hopkins, and that powder cocaine is required to make crack cocaine.

       Based upon all the above evidence, the jury convicted Mr. Gill of both possession with intent

to deliver more than 650 grams of cocaine and conspiracy to possess with intent to deliver more than



       4
        Ms. Carla Wellons was Mr. Gill’s girlfriend as well as the daughter of Ms. Connie Wellons,
the owner of 321 West Hopkins, and the sister of Mr. Wellons, who was assisting Mr. Gill in
weighing and packaging crack cocaine. J.A. at 155.
                                                4
650 grams of cocaine. Mr. Gill was then sentenced to two, consecutive life terms in prison, which

each required a minimum of twenty served years.

                                      II. Procedural History

       On direct appeal to the Michigan Court of Appeals, Mr. Gill challenged, among other things,

the sufficiency of the evidence supporting his separate conviction for conspiracy to possess with

intent to deliver more than 650 grams of cocaine. His primary argument was that there was an

absence of evidence to support a finding that Mr. Wellons was aware of the powder cocaine in the

southeast bedroom, as well as an absence of evidence to support a finding that Mr. Wellons was

aware of the amount of powder cocaine in the southeast bedroom. Mr. Gill argued that such

evidence, evidence of Mr. Wellons’s knowledge, was required to support his, Mr. Gill’s, conviction

for conspiracy to possess with intent to deliver more than 650 grams of cocaine under MICH . COMP.

LAWS § 769.12 (1998).

       The Michigan Court of Appeals rejected Mr. Gill’s challenge. Its pertinent reasoning was

as follows:

               [T]he jury could reasonably conclude that the crack cocaine in the

               kitchen which [Mr. Gill] and [Mr.] Wellons were packaging for sale

               was made from the powder cocaine in the bedroom which [Mr. Gill]

               brought into the house. In addition, the evidence showed that the

               house was owned by Connie Wellons, Andre Wellons’ mother, and

               also that items of correspondence bearing Andre’s name were found

               in the house. Accordingly, the prosecution presented sufficient




                                                5
                 evidence that [Mr. Gill] and [Mr.] Wellons conspired to possess and

                 deliver the cocaine found in the bedroom.

People v. Gill, No. 220261, 2001 WL 824447, at *2 (Mich. Ct. App. July 20, 2001) (per curiam)

(unpublished).

         Further review in the Michigan courts proved unavailing to Mr. Gill. After the Court of

Appeals ruled against him, the Michigan Supreme Court denied Mr. Gill leave to appeal that

conclusion. On state post-conviction review, the state trial court denied Mr. Gill’s motion for relief.

Leave to appeal the trial court’s conclusion was denied by both the Michigan Court of Appeals and

the Michigan Supreme Court.

         Mr. Gill then renewed his challenge regarding his conspiracy conviction by filing a petition

for a writ of habeas corpus before the United States District Court for the Eastern District of

Michigan. The district court, through its adoption of the recommendation and report of the

magistrate judge, found that sufficient evidence supported Mr. Gill’s conspiracy conviction.

Specifically, the court held that the following evidence was sufficient: “(1) the testimony about how

crack cocaine is made from powder cocaine; (2) the absence of any powder cocaine in the kitchen

with the finished crack cocaine; and (3) [Mr.] Wellons’s additional ties to the house where the

cocaine was found.” J.A. at 53. After denying his petition, the district court did grant Mr. Wellons

a certificate of appealability regarding this issue, allowing Mr. Wellons to seek further review in our

court.

                                             ANALYSIS

         Mr. Gill argues on appeal that the district court erred in denying his petition for a writ of

habeas corpus. Mr. Gill argues that he is entitled to a writ of habeas corpus because insufficient


                                                  6
evidence supports his conspiracy conviction, namely because there was no evidence that Mr.

Wellons was aware of the existence of the large amount of powder cocaine in the southeast bedroom

closet. We conduct de novo review of the district court’s denial of Mr. Eady’s petition, which was

based on a determination that the state court did not unreasonably apply settled Supreme Court

precedent when it concluded that sufficient evidence supported Mr. Gill’s conviction. See Joseph

v. Coyle, 469 F.3d 441, 453-54 (6th Cir. 2006).

          Pursuant to 28 U.S.C. § 2254, our review is constrained by the previous state court

determination. We can disagree with a state court’s legal determination only when it was “a decision

that was contrary to . . . clearly established Federal law, as determined by the Supreme Court of the

United States.” 28 U.S.C. § 2254(d)(1) (2006). “A state-court decision will certainly be contrary

to [the Supreme Court’s] clearly established precedent if the state court applies a rule that contradicts

the governing law set forth in [the Supreme Court’s] cases.” Williams v. Taylor, 529 U.S. 362, 405

(2000).

          When the state court correctly identifies the legal rule to apply, we can disagree with a state

court’s application of that rule when it was “a decision that . . . 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 that correctly identifies the governing legal rule but

applies it unreasonably to the facts of a particular prisoner’s case certainly would qualify as a

decision ‘involv[ing] an unreasonable application of . . . clearly established Federal law.’ ” Williams,

529 U.S. at 407-08 (alterations in original). We are mindful “that an unreasonable application of

federal law is different from an incorrect application of federal law.” Id. at 410 (emphases in

original). We are also mindful that an application of Supreme Court precedent can be found


                                                    7
unreasonable even though the applicable precedent provides only a general rule; “[t]he [habeas]

statute recognizes . . . that even a general standard may be applied in an unreasonable manner.”

Panetti v. Quarterman, 127 S. Ct. 2842, 2858 (2007). Because the state court’s decision was

unreasonable, we grant Mr. Gill’s petition for a writ of habeas corpus.

       Jackson v. Virginia established the test for challenges based on insufficient evidence, which

is Mr. Gill’s challenge to his conviction. It held that a reviewing court’s task is

               to determine whether the record evidence could reasonably support
               a finding of guilt beyond a reasonable doubt. . . . [T]he 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 testimony, to weigh the evidence,
               and to draw reasonable inferences from basic facts to ultimate facts.

443 U.S. 307, 318-19 (1979) (emphasis in original) (citation omitted).5

       We determine whether there was sufficient evidence “in light of applicable [Michigan] law

defining the element[s] of [the crime].” Id. at 324. Under Michigan state law,

               [t]o be convicted of conspiracy to possess with intent to deliver a

               controlled substance, the [state] must prove that (1) the defendant

               possessed the specific intent to deliver the statutory minimum as

               charged, (2) his coconspirators possessed the specific intent to deliver

               the statutory minimum as charged, and (3) the defendant and his




       5
          “The law therefore commands deference at two levels in this case—first, to the jury’s
verdict as contemplated by Jackson, and, second, to the state court’s consideration of the jury’s
verdict as dictated by AEDPA.” Parker v. Renico, 506 F.3d 444, 448 (6th Cir. 2007). Despite two
levels of deference, we have before found state courts’ application of the Jackson standard
unreasonable. See, e.g., id. at 452; Brown v. Palmer, 441 F.3d 347, 353 (6th Cir. 2006).
                                                 8
                coconspirators possessed the specific intent to combine to deliver the

                statutory minimum as charged to a third person.

People v. Justice, 562 N.W.2d 652, 659 (Mich. 1997); accord People v. Mass, 628 N.W.2d 540, 549

(Mich. 2001).6 To put the point more plain, the proof in this case must establish “not just that [Mr.

Wellons] conspired to possess with an intent to deliver some amount of cocaine, but rather, [that Mr.

Wellons] had conspired to possess with an intent to deliver the statutory minimum of 650 grams,”

as charged in this case. See Mass, 628 N.W.2d at 549 (emphasis in original).7 Indeed, if the

government only proves that the conspiracy involved some unspecified amount of cocaine, then the

conspirators can only “be guilty of conspiracy to deliver less than fifty grams of cocaine.” Id. at 550.

        After correctly identifying the governing legal standard, the Michigan Court of Appeals held

that sufficient evidence established Mr. Wellons’s knowledge of the existence and amount of the

powder cocaine in the southeast bedroom closet. The proof it found to support Mr. Wellons’s

knowledge was: the fact that (1) Mr. Wellons was helping Mr. Gill package the crack cocaine in the

kitchen; (2) Mr. Gill admitted to bringing powder cocaine into the house; (3) Mr. Wellons’s mother,

Ms. Connie Wellons, owned the house; and (4) “correspondence bearing Andre [Wellons]’s name

w[as] found in the house.” Gill, 2001 WL 824447, at *2.



        6
           We note that Michigan law is in stark contrast to federal conspiracy drug law. Under
federal law, the quantity of narcotics is not an element of the offense. United States v. Jinadu, 98
F.3d 239, 247 (6th Cir. 1996). Instead, the quantity of narcotics is only a sentencing factor, and the
conspirator can be held responsible for the forseeable amount of narcotics involved in the conspiracy.
Id. at 248-49.
         7
           We admit that it may seem a little odd that, despite the fact that Mr. Gill is the petitioner
in this case, we are focusing on the proof regarding Mr. Wellons’s knowledge. This proof, however,
is required by Michigan law to establish Mr. Gill’s guilt of conspiracy with intent to deliver 650
grams of cocaine. See Mass, 628 N.W.2d at 549. Indeed, the Supreme Court has stated that “[u]nder
our system of criminal justice even a thief is entitled to complain that he has been unconstitutionally
convicted and imprisoned as a burglar.” Jackson, 443 U.S. at 323-24 (citation omitted).
                                                    9
       We find that the state court’s conclusion was reached through an unreasonable application

of Jackson v. Virginia. See 28 U.S.C. § 2254(d)(1). When looking at the last two cited facts, the

only possible reasonable inference is that Mr. Wellons occasionally spent time at his mother’s house.

It would be reasonable to infer that, as the son of the homeowner, Mr. Wellons likely visited the

home. This inference is confirmed by the fact that there were “a few items of correspondence” with

Mr. Wellons’s name on them found at the house. J.A. at 142.8 Further inference, for instance

regarding how often Mr. Wellons was at the house or the places in the house Mr. Wellons had spent

time, cannot be drawn. There was no testimony to establish the relative importance of the

correspondence found at the house, no testimony regarding the address to which the correspondence

was sent, and no testimony regarding where in the house the correspondence was found.

       Mr. Wellons’s occasional visitation at 321 West Hopkins, combined with (1) the assistance

he provided Mr. Gill in packaging the crack in the kitchen, (2) the fact that Mr. Gill had brought the

powder cocaine into the house; and (3) the fact that the crack in the kitchen had been recently made,

still fails to establish any reasonable inference that Mr. Wellons was aware of the existence and

amount of powder cocaine in a box in the southeast bedroom. There was no evidence that the

powder cocaine was ever in the kitchen, which is the only place in the home where the evidence

established Mr. Wellons had been.9 Even if one could infer that the powder cocaine had at some

point been in the kitchen, there was no evidence regarding when Mr. Wellons arrived at the house,




       8
          We acknowledge that other inferences may be drawn, for instance that the correspondence
was junk mail and provided no indication regarding how often Mr. Wellons visited the home, but
we are to draw all inferences in favor of the prosecution. Jackson, 443 U.S. at 318-19.
        9
          There was no evidence to even establish that Mr. Wellons had even walked by the door to
the southeast bedroom, in whose closet the powder cocaine was located, let alone that Mr. Wellons
had been inside of the bedroom.
                                                 10
i.e., whether he would have been there when the powder cocaine was present in the kitchen.10 There

was no evidence of any sort of long-term relationship or course of dealing between Mr. Wellons and

Mr. Gill.11 There was no evidence to show that Mr. Gill had extensive trust in Mr. Wellons. There

was no evidence that Mr. Wellons had ever been to Mr. Gill’s house at 18 Jefferson Street.12 The

absence of a course of dealing or extensive trust is particularly important given the fact that there was

almost six times as much powder cocaine found in the southeast bedroom closet as there was crack

found in the kitchen. Additionally, there was no evidence that more crack was going to be made,

and therefore that Mr. Wellons had to be aware that there was over 600 additional grams of powder

cocaine. Lastly, there was no evidence regarding how or when Mr. Wellons had arrived at 321 West



        10
            Indeed, because the powder cocaine was in individual baggies within the plastic box, the
entire box would not have to be taken to the kitchen so as make the crack. This is important because
the government had to prove that Mr. Wellons was aware that there was at least roughly 540 grams
of powder cocaine; the government had proved that Mr. Wellons was looking at 111.68 grams of
crack on the table, but the separate conspiracy charge was for at least 650 grams of cocaine. While
the box certainly could have been taken into the kitchen while Mr. Wellons was present, there is
simply no evidence to indicate whether it was. Jackson requires that inferences be reasonable; we
could hypothesize that one way to make the crack could have included taking the box of powder
cocaine to the kitchen while Mr. Wellons was present and in his sight, but there is simply no
evidence to indicate that such a hypothesis is reasonable. Indeed, in Jackson the Supreme Court
made clear that sufficient evidence is a closer review than the absence of any evidence. 443 U.S. at
315-16. “[I]t could not seriously be argued that [] a ‘modicum’ of evidence could by itself rationally
support a conviction beyond a reasonable doubt.” Id. at 320.
         11
            At oral argument, the state argued that such a relationship could be reasonably inferred
from the evidence because the evidence established that drug dealing was a “family affair.” The
record, however, fails to bear this out. Instead, such an argument is tantamount to guilt by
association; the crime at issue requires knowledge and the fact that the record supports a reasonable
inference that one family member had such knowledge does not, in this case, support a reasonable
inference that a different family member had such knowledge. Indeed, the Michigan Supreme Court
has held that “[g]uilt by association in and of itself is not sufficient to sustain a conviction.” People
v. Brynski, 81 N.W.2d 374, 377 (Mich. 1957); accord People v. Sobczak, 73 N.W.2d 921, 923
(Mich. 1955).
         12
            Although the police had searched Mr. Gill’s house, there was no evidence introduced at
the trial to show that Mr. Wellons had any connection whatsoever to the house (i.e., that Mr. Wellons
had been there, had stored property there, etc.).
                                                    11
Hopkins Avenue.13 Thus, while there was evidence that would permit the inference that Mr. Wellons

was a member of a conspiracy to distribute the crack cocaine in the kitchen, there was no evidence

that Mr. Wellons conspired to distribute the grater quantity of powder cocaine in the southeast

bedroom closet.

       Further undermining any inference that Mr. Wellons was aware of the cocaine in the closet

was the evidence that provided affirmative inferences that Mr. Wellons was not Mr. Gill’s

coconspirator in regards to the powder cocaine. There was evidence that Mr. Dowdle, Ms. Connie

Wellons’s boyfriend, had previously handled both the clear, plastic box containing the powder

cocaine as well as the glass jar used to microwave the powder cocaine to make the crack. Indeed,

the box of powder cocaine was found in the closet of the bedroom Mr. Dowdle cohabitated.

Furthermore, the powder cocaine was visible to the room’s occupants through the open closet door,

and Mr. Dowdle was found in the bedroom when the police executed the search warrant.

Additionally, directly underneath the box of powder cocaine was a contractor’s work order in Mr.

Dowdle’s name for the house at 321 West Hopkins Avenue. Lastly, Mr. Dowdle was living in the

house and was dating the homeowner. Because there was significant evidence regarding Mr.

Dowdle’s knowledge of and interaction with the powder cocaine, the supposition that Mr. Wellons

had to be involved is made more unreasonable.

       Viewing the totality of the evidence above, it is clear Mr. Gill’s conspiracy conviction is not

supported by sufficient evidence. Indeed, there is barely a “modicum” of evidence, if that, proving

that Mr. Wellons was aware of the existence or amount of the powder cocaine in the southeast

       13
         If Mr. Gill had driven Mr. Wellons to the house, for instance, perhaps then it would be
reasonable to infer that Mr. Gill had brought the box of powder cocaine with him and that Mr.
Wellons had witnessed Mr. Gill load and unload the box. It could also provide some evidence from
which to reasonably infer that Mr. Gill had a more established relationship with Mr. Wellons.
                                               12
bedroom closet. While Mr. Gill was properly convicted of possession with intent to deliver the crack

cocaine in the kitchen and the powder cocaine in the southeast bedroom closet, Mr. Gill could not

be convicted of conspiring to possess with intent to deliver the powder cocaine without proof of Mr.

Wellons’s knowledge regarding that powder cocaine. We find unreasonable the Michigan Court of

Appeals conclusion that there was evidence establishing Mr. Wellons’s knowledge of the powder

cocaine. We therefore grant Mr. Gill a writ of habeas corpus for his conspiracy conviction.

                                         CONCLUSION

       For the foregoing reasons, the judgment of the district court is REVERSED and Mr. Gill’s

petition for a writ of habeas corpus is GRANTED.




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