dissenting:
I respectfully dissent. Petitioner Fuller was convicted by a jury in the Recorder’s Court of Detroit, Michigan, as an aider and abettor of the arson murder of one of two young girls who died in the fire. His defense was an alibi and in his motion for judgment of acquittal filed after the verdict, he challenged the sufficiency of the evidence. The presiding judge of the Recorder’s Court denied his motion. In his opinion and order denying Fuller’s motion for a new trial, the Judge of the Recorder’s Court stated, inter alia :
*425It was not contended that the defendant was the one who threw the fire bomb which burned the house, but the evidence established that he was the look-out while Zerious Meadows (subsequently tried in a separate case on this same charge) threw the fire bomb and set a fire by pouring gasoline on the dwelling in question. Defense counsel in his Motion for a New Trial makes much of the fact that Cornell Fuller was only seen to run to the alley of the premises here involved and look up and down the alley, but the evidence also indicated that he was the look-out and, therefore, an accessory to the crime, equally chargeable as a principal under Section 767.26, Compiled Laws, 1948.
Upon appeal to the Michigan Court of Appeals, the court held, in a unanimous opinion in People v. Fuller, 44 Mich.App. 297, 205 N.W.2d 287 (1973):
1. Homicide — Murder—Evidence—Inferences.
A jury could reasonably infer that the defendant was a party to the offense of aiding and abetting in the commission of murder where he was shown to have come to the scene in the company of the principal, stood at a gate near the alley behind the house while the principal lit and threw a Molotov cocktail, looked up and down the alley more than once, and ran from the scene with the principal.
Presiding Judge Quinn, who wrote the opinion for the court stated:
The first issue is a weight of the evidence question. Our inquiry is, was evidence produced which, if believed, could certainly lead to a reasonable inference that defendant was a party to the offense? People v. Ford, 19 Mich.App. 519 [173 N.W.2d 3] (1969). There was evidence that defendant came to the scene with Meadows and others; that defendant stood at a gate near the alley behind the house while Meadows lit and threw the Molotov cocktail; that during this time, defendant looked up and down the alley more than once; and that defendant ran from the scene with Meadows. From these facts a jury could reasonably infer that defendant was a party to the offense.
The Supreme Court of Michigan in People v. Fuller, 395 Michigan 451, 236 N.W.2d 58 (1975), affirmed the conviction in a split decision holding:
Cornell Fuller was convicted by a jury in Recorder’s Court of Detroit, Thomas L. Poindexter, J., of first-degree murder. The prosecution contended that he aided and abetted, by acting as a lookout, in an arson which resulted in the death of two girls. The Court of Appeals, Quinn, P. J., and V. J. Brennan and O’Hara, JJ., affirmed (Docket No. 11308). Defendant appeals. Held:
1. A jury may believe or disbelieve, in whole or in part, any of the evidence presented.
2. Evidence was presented which, if believed by the jury, showed that the defendant acted as a lookout for the arsonist.
3. The jury determined that the prosecution had negated every reasonable theory consistent with the defendant’s innocence of the crime charged.
Conviction affirmed.
It is noteworthy that in affirming the conviction, the Supreme Court of Michigan held that the jury determined that the prosecution had negated every reasonable theory consistent with the defendant’s innocence of the crime charged. The Supreme Court of the United States held that this was more than the constitutional requirement in Jackson v. Virginia, 443 U.S. 307, 326, 99 S.Ct. 2781, 2793, 61 L.Ed.2d 560 (1979), citing Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127,138, 99 L.Ed. 150 (1954). In other words, the Michigan Supreme Court in affirming the conviction applied a standard of review more strict than the constitution requires and petitioner received the benefit of this erroneous standard. The decision of the Michigan Supreme Court is entitled to great weight since it applied a standard of review more strict than required by the constitution, Jackson v. Virginia, supra, 443 U.S. p. 326, 99 S.Ct. p. 2793.
*426At his trial, petitioner’s counsel did not object to any of the instructions of the trial court to the jury. His sole defense was alibi. In his opening statement to the jury, counsel for Fuller stated:
As indicated by the Court, he (Fuller) is not named as the party who threw the incendiary device against this building; he was merely named as a party who was standing by, but you must be convinced as to his identity; that he was, in fact, the party that was an accessory to this crime and standing by.
Now, on behalf of the defendant, we will produce witnesses that will establish his whereabouts at the time of this incident. They will testify that he was at a place other than the home of the Taylor’s on May 18, 1970—
THE COURT: I think it is the Turner home, Mr. Reilly.
MR. REILLY: Sorry, your Honor, the home of the Turner’s — this incident occurred early in the morning. The witnesses will testify that the defendant was in bed — home in bed asleep.
Now, the Prosecutor has a different approach to this; it is a question of who you believe — who is telling the truth which is very often a different task to decide but I think the defense will clearly indicate that the defendant was, in fact, in bed the Morning that this incident occurred. Aiding and abetting — aided and abetted — the legal concept, as the Court indicated, that would mean somebody that is a party to an incident — I think you are all familiar with that. You must be firmly convinced that the defendant was the party who aided and abetted in this incident. There is no question here as to the fact that the incident occurred and the deaths were a result of this incident and the Prosecution will show that the burning, in fact, did take place and the deaths were a result of the burning — the burning emanated from an incendiary device, commonly known as a Molotov cocktail. Testimony will be given with regard to a chemical analysis as to what happened. That is not the issue; the issue is the tragic incident, a very sordid situation where the deaths were pitiful. There is no question about that. The question is whether or not the defendant, in fact, was the party standing at the scene. That is the only question that you have to find — the fact you have to determine. It is indeed conceivable that the witnesses that will testify that they saw the defendant at the scene could have been mistaken. I want you to consider that also.
Fuller’s only witness as to the alibi was his mother who testified that petitioner was home sleeping on his bed at the time the arson was committed. The only trouble with the mother’s testimony was that it conflicted with the testimony of three other witnesses. Fuller did not testify although he was present in court at the trial. It was solely for the jury to decide who was telling the truth.
The decision of the Supreme Court of Michigan is final that Fuller’s conviction was in conformity with the law of the State of Michigan and it is binding on federal courts with respect not only to the factual findings but also as to the law of the State. 28 U.S.C. § 2254(d); Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981).
There was abundant proof offered by the state to support the finding of the jury that Fuller not only accompanied the arsonist to the dwelling set on fire, but also acted as a lookout. After the dwelling had been set on fire, the arsonist and Fuller ran away together. If Fuller was innocent of any wrongdoing, why did he run away?
Every element of the crime of aiding and abetting the arsonist was proven beyond a reasonable doubt as was held by the Supreme Court of Michigan and is in conformity with the decision of the Supreme Court of the United States in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). In a habeas corpus proceeding, the federal courts do not have jurisdiction for direct appellate review. In almost every criminal trial in the state, as well as federal courts, the evidence is conflicting and must *427be resolved. In a collateral proceeding as was held by the Supreme Court in Jackson v. Virginia, supra, the evidence must be viewed in the light most favorable to the prosecution and the habeas petition denied if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. 448 U.S. at 319, 99 S.Ct. at 2789. This standard applies retroactively. Pilon v. Bordenkircher, 444 U.S. 1, 100 S.Ct. 7, 62 L.Ed.2d 1 (1979). The standard was incorrectly applied by the district court when it granted the writ.
With the abundance of evidence in the present case, together with the inferences properly deducible therefrom, I submit that the jury did not act irrationally in finding the defendant Fuller guilty as an aider and abettor, nor did the trial judge in denying the motion for judgment of acquittal and in sentencing the defendant, nor did the three judges of the Michigan Court of Appeals in affirming the judgment of conviction. Nor did the majority of the judges of the Supreme Court of Michigan in affirming the judgment of the Michigan Court of Appeals.
I submit again that the federal courts in habeas proceedings are bound by the factual findings of the state courts. We are deluged with habeas corpus proceedings, most of which involve the issue as to the sufficiency of the evidence. The rule formerly was the no evidence standard which authorized collateral intervention only where there was no evidence at all to support an important element of the crime. The no evidence standard was modified to the “rational trier of fact” standard, Jackson v. Virginia, supra, but this new standard has not stemmed the tide which appears to be increasing and has added to the confusion.1
*428I would reverse the district court’s grant of the writ of habeas corpus and remand for dismissal of the petition.
. Footnote 7 in Jackson v. Virginia states:
And the Court of Appeals for the Sixth Circuit recently recognized the possible impact of Winship on federal habeas corpus in a case in which it held that “a rational trier of fact could have found the defendant ... guilty beyond a reasonable doubt.” Spruytte v. Koehler, affirmance order, 590 F.2d 335 [CA6], An even more recent case in that court provoked a lively debate among three of its members regarding the effect of Win-ship upon federal habeas corpus. The writ was granted in that case, even though the trial record concededly contained “some evidence” of the applicant’s guilt. See Speigner v. Jago, 603 F.2d 1208 (CA6).
In Speigner, the victim was kidnapped, robbed and brutally beaten and shot with a pistol and shotgun by the two criminals, Roger Scott and Henry Speigner, alias Frank Mathews. He was shot in the chest with a pistol and in the back of the head and neck with a shotgun. The two criminals then stole the victim’s automobile and dumped his body in a street in Cleveland and then proceeded directly to Youngstown, Ohio, where they were arrested later in the same day by state police. Scott told the police that he rented the automobile from the victim for $15.00. The back seat of the automobile was covered with the victim’s type blood and the automobile was damaged. Speigner when arrested was seated in the passenger’s seat. The shotgun was under his seat. Speigner was convicted of murder by a jury in the state court, which was affirmed by the state appellate court and leave to appeal was denied by the Supreme Court of Ohio on the ground that there was no debatable constitutional question. The district court granted a writ of habeas corpus which the court affirmed with a dissent, as above indicated, and Speig-ner was set free.
Speigner’s cohort Scott was likewise convicted in the state court which conviction was affirmed by the state appellate court and appeal denied by the Supreme Court of Ohio. The district court granted Scott’s application for a writ of habeas corpus and upon appeal to this court the judgment of the district court granting the writ of habeas corpus was reversed, the cause remanded for further proceedings consistent with the opinion, this court distinguishing Speigner on the basis of additional evidence linking Scott with the crime not shown in Speigner. Perini v. Scott, (6th Cir. 1981, No. 80-3219). Thus one murderer was set free by decision of this court while his confederate was not granted relief.
Another case involving a criminal who was set free by habeas relief in a split decision of this court. He had stabbed his former girlfriend some 45 times with a pen knife permanently maiming her and had been convicted in the state court of attempted murder. His conviction had been affirmed by the Michigan Court of Appeals and leave to appeal denied by the Michigan Supreme Court. The district court denied habeas relief and we reversed for an alleged trivial error in an unobjected to charge of the court to the jury. Burton v. Bergman, 649 F.2d 428 (6th Cir.). Burton did not even testify and the victim’s testimony was unrefuted. The case should also have been *428affirmed on the ground that the alleged error in the court’s instruction, if any, was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).