concurring in part and dissenting in part.
To place my concurring views and my disagreement in context, a brief factual framework is required. Samuel Delk was convicted of second degree murder by a jury in Tennessee state court for the slaying of Harold Gipson. Both before and after the jury verdict, Delk moved the trial court for acquittal. The motions were denied. On appeal, the Tennessee appellate court affirmed the conviction and the Tennessee supreme court granted certiorari. In view of several trial errors, the divided supreme court reversed Delk’s conviction and remanded the case for a new trial. In doing so, the supreme court held that circumstantial evidence of Delk’s presence at *101the scene of the crime, opportunity to commit the murder and the critical time sequence constituted sufficient evidence to support the jury conviction. A single dissenting justice decried the insufficiency of the evidence. Thereafter, Delk sought the instant federal habeas corpus relief in the district court alleging that no rational trier of fact could have found proof of guilt beyond a reasonable doubt. The district court agreed and issued the writ. Today the majority holds, in effect, that the district court had jurisdiction to review Delk’s claim that his forthcoming retrial would violate the double jeopardy clause of the Fifth Amendment because his original conviction was based on insufficient evidence. The majority further holds that the district court erred in finding the circumstantial evidence of guilt insufficient as a matter of law. For the reasons stated infra, I concur in the majority’s holding on the double jeopardy issue and dissent from the reversal on the sufficiency claim.
I.
Delk filed his application for a writ of habeas corpus under 28 U.S.C. § 2241(c)(3). At the time, he was free on bail pending retrial of his second degree murder conviction in state trial court. Because Delk challenged, throughout the state proceedings, the sufficiency of the evidence to sustain the jury verdict, the district court concluded that it had jurisdiction to consider whether Delk’s retrial would subject him to a second jeopardy. As I read the majority’s opinion, this Court interprets the principles enunciated in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) and Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) to stand for the proposition that a state prisoner, who has exhausted his state remedies, may bring a federal habeas corpus proceeding prior to retrial to test the evidentiary sufficiency of his original state court conviction. While I agree with this conclusion, and the underlying reasoning, I write separately on this point to emphasize my belief that such a claim is clearly cognizable under the double jeopardy clause of the Fifth Amendment, as applied to the states through the due process clause of the Fourteenth Amendment.
It is evident that the double jeopardy clause serves at least three fundamental purposes. First, upon entry of a judgment of acquittal, the double jeopardy clause prohibits a retrial for the same offense. Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962); Burke v. United States, supra, 437 U.S. at 10-11, 98 S.Ct. at 2146 — 47; Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978). Second, the double jeopardy clause proscribes multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969); Whalen v. United States, 445 U.S. 684, 688, 100 S.Ct. 1432, 1436, 63 L.Ed.2d 715 (1980). Third, the double jeopardy clause bars a second prosecution on the same offense for which the defendant has already been convicted. Brown v. Ohio, 432 U.S. 161, 165-69, 97 S.Ct. 2221, 2225-27, 53 L.Ed.2d 187 (1977). Furthermore, because the federal constitutional guarantee against double jeopardy applies to the states through the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), state criminal defendants enjoy the full benefit of these three aspects of the double jeopardy clause as soon as the jury is empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 32-38, 98 S.Ct. 2156, 2159-62, 57 L.Ed.2d 24 (1978).
Recent applications of the aforementioned double jeopardy principles are instructive for our present purposes. In Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), a state prisoner moved the state trial court for a new trial alleging evidentiary insufficiency of his jury conviction for first degree murder. The state trial court agreed and granted his motion. After his second trial resulted in a guilty verdict, the defendant filed an application for a writ of habeas corpus in the state court. The application was denied. On cer-tiorari, the U.S. Supreme Court reversed holding that once the trial court found evi-dentiary insufficiency retrial was prohibited. Prior to Hudson, in Burks v. United *102States, supra, the Supreme Court precluded the possibility of a new trial once a reviewing court found the evidence to be legally insufficient. The Court concluded that “it should make no difference that the reviewing court, rather than the trial court, determined the evidence to be insufficient.” Id. 437 U.S. at 11, 98 S.Ct. at 2147. For double jeopardy purposes, the Burks court distinguished between reversals on the grounds of evidentiary insufficiency and reversals based upon trial errors. Finally, in Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), the Burks principles were applied to a federal habeas corpus review of a state prisoner’s claim that his retrial and reconviction for first degree murder, after the state supreme court reversed his original conviction on evidentiary insufficiency grounds, offended the double jeopardy clause. Persuaded by the defendant’s rationale but unsure of the basis of his new trial, the Supreme Court remanded the case for further consideration.
In my view, these basic principles of double jeopardy, as elucidated by Hudson, Burks and Greene, suggest two significant conclusions. First, the various purposes of the double jeopardy clause are well served by pre-trial federal habeas corpus review of the evidentiary sufficiency of a prior state court conviction when a second trial has been ordered. The prevention of a second prosecution for the same offense in the face of palpably insufficient evidence to sustain the first conviction preserves the defendant’s fundamental constitutional right against a second jeopardy. In this circumstance, a federal habeas corpus court should be able to review the evidence, to find it insufficient to support the state court conviction, and to order the defendant released. Second, and the basis of my special concurrence, I believe that pretrial federal habeas corpus under the circumstances of this case flows from the principles espoused by Hudson, Burks, Greene and other double jeopardy cases. These cases involved the Supreme Court’s consideration of the double jeopardy implications of retrials conducted in spite of a reviewing court’s finding of insufficient evidence to sustain the conviction. .Moreover, Hudson and Greene reviewed state and federal habeas corpus proceedings instituted after retrial. Therefore, I believe that the Supreme Court’s holdings in these cases subsume the present case.
Consequently, I concur with the majority that in the interest of guaranteeing a single jeopardy for state prisoners once the highest state reviewing court has determined the issue of sufficiency of the evidence to support the jury verdict but orders a new trial on other grounds, the prisoner may seek pretrial federal habeas corpus review on the evidentiary sufficiency of his conviction.
II.
On the second issue, I reluctantly part company with the majority. Delk contends that his conviction for second degree murder contravened the due process clause of the Fourteenth Amendment because it was based upon insufficient circumstantial evidence. Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560 (1979). With one justice dissenting, the Tennessee supreme court disagreed. Delk v. State, 590 S.W.2d 435 (Tenn.1979). On federal habeas corpus review, the district court held that the evidence was insufficient as a matter of law. Delk v. Atkinson, 498 F.Supp. 1282 (M.D.Tenn.1980). The opinion of the majority reverses the district court, holding that a rational jury could have found Delk guilty beyond a reasonable doubt. In so holding, the majority places this Court’s imprimatur on the state courts’ conclusion that mere presence at the scene of the crime and opportunity to commit the crime suffice to prove guilt beyond a reasonable doubt. I respectfully dissent.
PRESENCE AND OPPORTUNITY
The operative facts as found by the Tennessee supreme court and the district court are not in dispute. On November 12, 1975, as Buford Hornbeck left Harold Gipson’s grocery store, his watch showed 5:50 p. m. Sidney Pigg was in the store with Horn-beck. Pigg testified that he left the store five minutes after Hornbeck or at approxi*103mately 5:55 p. m. When Pigg departed, Gipson was left alone in the store. Pigg encountered defendant Delk who was on his way to the store. After this encounter, Delk entered Gipson’s Market and bought a pack of cigarettes. According to Delk, Gip-son was engaged in a telephone conversation the entire time that Delk was in the store. Delk left the store and proceeded south on Columbia Avenue near the house of Mr. Small, Louise Chavers’ boarder. Shortly after 6:00 p. m., Louise Chavers called Mr. Small to supper. Delk heard Ms. Chavers and saw her near Mr. Small’s house. At approximately 6:03 p. m. Floyd Stone and Goon Gilbert entered Gipson’s Market. They discovered Mr. Gipson’s body on the floor and the telephone off the receiver. Stone reported Gipson’s murder to the Centerville Police Department at 6:09 p. m. Soon thereafter, the customers of Gip-son’s tavern were informed of the murder. Defendant Delk was in the tavern. The following day, Delk gave a statement to Sheriff Atkinson in which he acknowledged his encounter with Sidney Pigg, his purchase at Gipson’s Market, and his proximity to Louise Chavers.
On the basis of these facts, the Tennessee supreme court found that Delk had two to eight minutes in which to shoot Harold Gipson; that Delk had entered and left Gipson’s Market unobserved; that though the State prevailed by a “small” margin, its proof was sufficient to take the question of Delk’s guilt or innocence to the jury; and that the State’s proof of Delk’s presence in Gipson’s Market, opportunity to murder Gipson and the short time sequence supported the jury verdict of guilt beyond a reasonable doubt.
Federal habeas corpus review of the sufficiency of the evidence to sustain a state criminal conviction necessarily commences with the recognition of “proof beyond a reasonable doubt as an essential of Fourteenth Amendment due process . . . . ” Jackson v. Virginia, supra 443 U.S. at 318, 99 S.Ct. at 2789. This reasonable doubt standard arises from the fundamental constitutional doctrine of In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). “Winship presupposes as an essential of the due process guaranteed by the Fourteenth Amendment that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof .. .. ” Jackson v. Virginia, supra 443 U.S. at 316, 99 S.Ct. at 2788. Therefore, the critical inquiry on review of evidentiary sufficiency 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.” Id. at 319, 99 S.Ct. at 2789.
Recently, in two related cases, this Court tested the sufficiency of circumstantial evidence against the reasonable doubt standard. Speigner v. Jago, 603 F.2d 1208 (6th Cir. 1979), cert. denied, 444 U.S. 1076, 100 S.Ct. 1023, 62 L.Ed.2d 758 (1980); Scott v. Perini, 662 F.2d 428 (6th Cir. 1981). In Speigner, Henry Speigner was tried in Ohio state court for the murder of William Bell. The prosecution presented testimony of a state highway patrolman who stopped Bell’s automobile for a safety violation. The vehicle was driven by Roger Scott. Speigner was Scott’s passenger. In response to questioning by the patrolman, Scott stated that he had rented the vehicle from Bell. Scott and Speigner were amused that they had been “stuck” with an unsafe vehicle. To refute the rental story, the prosecution adduced evidence that Bell used his car in his business and never lent it to anyone. The prosecution also introduced evidence that certain documents discovered in a briefcase in the car’s trunk were to be filed by Bell on the following morning. Scott was arrested for the safety violation and Speigner was released in order to obtain bail for Scott. Instead, Speigner disappeared and was later apprehended in New York. Thereafter, the prosecution presented certain physical evidence which had been inventoried by the police when the car was impounded. That evidence included shattered window glass from Bell’s car, blood stains of the victim’s type on the rear seat, a bloody fingerprint of an undetermined origin on the door and a sawed-off shotgun *104under Speigner’s seat. Finally, the prosecution proved that Bell’s body was discovered lying in a Cleveland, Ohio street approximately two hours after Scott and Speigner were stopped on the highway. Bell had bullet wounds in the chest and shotgun wounds in the back of the head. On the basis of this proof, the state court jury convicted Speigner of second degree murder which in Ohio was defined, as “purposely and maliciously killpng] another.” Speigner v. Jago, supra at 1209 n.1.
After exhausting his state remedies, Speigner filed a petition for federal habeas corpus relief alleging that insufficient evidence supported the jury conviction. The district court agreed and granted the requested relief. On appeal, this Court held that though the record contained “some” circumstantial evidence, it lacked constitutionally sufficient evidence for the trier of the fact to find that Speigner actually killed or participated in the killing of Bell. This conclusion was based upon the dearth of evidence concerning the length of time Speigner had spent in Bell’s car when it was stopped, the prosecution’s failure to connect Speigner to the shotgun found underneath his seat in Bell’s car, the prosecution’s failure to link the weapons used to murder Bell with the shotgun discovered in his car, and the prosecution’s failure to establish that Speigner had used a gun of any kind. Id. at 1213.
Speigner and Scott were tried separately. Scott was convicted of first degree murder. The Ohio appellate court reduced Scott’s conviction to second degree murder. Finding evidentiary insufficiency, the district court granted Scott’s petition for federal habeas corpus relief. Though the prosecution presented basically the same proof as it had at Speigner’s trial, this Court reversed the grant of habeas. corpus relief holding that “the incremental quantum of evidence in Scott’s case compel[led] a different result.” Scott v. Perini, supra at 433. This “incremental quantum of evidence” included statements Scott made to a police officer while being transported from the Mahoning County jail in Youngstown to Cleveland. Those statements arguably placed Scott, Speigner and Bell together in Bell’s car around the time the murder occurred. From these statements, this Court concluded that a reasonable jury could have found “that Scott and Speigner formed a decision to kill Bell and either or both of them carried out the plan by shooting Bell with his own pistol, later discarded, and by shooting him in the back of the head with the sawed-off shotgun which was later found in the car in which they were stopped.” Id. at 434.
My dissent in Scott v. Perini, supra, grew out of my continuing belief that mere presence at the scene of the crime and opportunity to perpetrate the crime, without more, cannot satisfy the reasonable doubt standard of Jackson v. Virginia, supra, and In re Winship, supra. I remain profoundly troubled by the serious inconsistencies between Speigner and Scott. Virtually the same evidence that the Speigner majority mustered to find evidentiary insufficiency for Speigner’s conviction was utilized to find sufficient evidence to sustain Scott’s conviction. In my view, the majority’s attempt to distinguish Speigner and Scott on the basis of three inconsistent statements made by Scott failed to thrust Scott’s conviction over the sufficiency hurdle established by the reasonable doubt standard.
The majority’s holding here, I fear, moves this Court even further in the direction of sanctioning constitutional short cuts to convictions in state courts.
Due process mandates that no one will be convicted of a crime unless the prosecution produces sufficient evidence to prove every element of the crime beyond a reasonable doubt. It is abundantly clear, therefore, that constitutionally sufficient evidence necessary to prove guilt beyond a reasonable doubt does not vary merely because the prosecutor’s proof is direct or circumstantial. Consequently, under the teachings of Jackson, Speigner and Scott, this Court must review the circumstantial evidence underlying Delk’s conviction to determine whether a rational factfinder, viewing that evidence in a light most favorable to the *105prosecution, could have found the essential elements of second degree murder under Tennessee law beyond a reasonable doubt.
According to the Tennessee state courts, the elements of second degree murder are the willful and malicious killing of another by a person under the influence of a sudden impulse of passion who acted without adequate provocation, see Bailey v. State, 479 S.W.2d 829 (Tenn.Crim.App.1972), and without “any previously formed design to kill.” Gordon v. State, 478 S.W.2d 911, 916 (Tenn. Crim.App.1971). Expressed or implied malice is an essential element of the crime of second degree murder. Farr v. State, 591 S.W.2d 449 (Tenn.Crim.App.1979). Malice may be implied from all the circumstances surrounding the murder. State v. Gilbert, 612 S.W.2d 188 (Tenn.Crim.App.1980).
In this case, the lower courts held, and I agree, that the prosecution proved Delk’s presence at the Gipson’s Market between 5:55 p. m. and 6:03 p. m. on the evening of November 12, 1975. Delk’s own statement to Sheriff Atkinson on the following day, in which Delk admitted purchasing a pack of cigarettes from Gipson prior to those fatal moments and overhearing Louise Chavers call her boarder as he (Delk) left the store, demonstrates that Delk had an opportunity to commit the murder. However, in the absence of proof of the essential elements of the crime of second degree murder, proof of presence and opportunity do not satisfy the reasonable doubt standard of Jackson. As described above, these elements included the existence of a “willful and malicious” mens re a coupled with the nonexistence of “adequate provocation” or “design to kill.” Rather than addressing these deficiencies in the proof of second degree murder, the Tennessee supreme court rested its decision on Delk’s presence and opportunity. In view of the U.S. Supreme Court’s construction of the due process clause in Jackson v. Virginia, supra, I believe that this Court is duty bound as a reviewing court in federal habe-as corpus proceedings to overturn Delk’s conviction since it was unsupported by proof of an essential element of the crime.
LACK OF MOTIVE
At Delk’s trial, the prosecution attempted to prove the requisite mens rea of first degree and second degree murder by adducing evidence that Delk had a motive or a reason for killing Gipson. Under the prosecution’s theory, animosity existed between Delk and Gipson because Gipson made Delk pay for the damage he and his brother Dan had done to the door of Gipson’s tavern during an altercation. According to the prosecution, this animosity was manifested by Delk’s practice of having other people make purchases for him at Gipson’s Market. The prosecution also showed that Delk owed Gipson an undetermined amount of money for beer. Additionally, the prosecution introduced testimony to the effect that Delk and Wayne Dansby had thought about robbing Gipson.
The Tennessee state courts were unconvinced by the prosecution’s proof of “motive.” As the district court observed, the Tennessee court of criminal appeals discounted Delk’s “previous difficulty” with Gipson as not appearing serious and the Tennessee supreme court accorded the proof little weight. 498 F.Supp. at 1292. In fact, as dissenting Justice Henry noted, “[t]he record shows that Sam Delk had paid for the door repairs.” 590 S.W.2d at 445. Moreover, the alleged manifestation of Delk’s animosity toward Gipson by having others make purchases for him was discredited since Delk entered Gipson’s Market on three separate occasions during that fateful day. 590 S.W.2d at 446. Finally, uncontra-dicted proof established Delk’s conversation with Wayne Dansby concerning the possible robbery of Gipson’s Market was in jest. 498 F.Supp. at 1292. Indeed, robbery was not the motive for the slaying of Harold Gipson because the assailant left more than $1,100.00 on Gipson’s person and in the cash register.
Despite the prosecution’s failure to prove Delk’s motive for allegedly killing Gipson, the majority herein concludes that “it is not irrational to believe they [the problems between Delk and Gipson] had reached the point where the tragic death of one of the *106parties could have resulted from them.” This conclusion flies in the face of the Tennessee state court’s factual determination that the “previous difficulty” between Delk and Gipson “did not appear serious.” 590 S.W.2d at 446. This factual determination should be presumed correct for the purposes of federal habeas corpus relief. Sumner v. Mata, 449 U.S. 593, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981).
Absent sufficient proof of motive, the prosecution did not establish the requisite purposefulness for first or second degree murder under Tennessee law. In view of this failure to prove the essential elements of the crime of second degree murder, Delk’s conviction was based upon insufficient evidence in violation of the due process clause as construed by Jackson v. Virginia, supra. Furthermore, without proof of motive, the majority’s holding that the conviction was supported by sufficient evidence contravenes the principles this Court espoused in Speigner and Scott. As previously stated, Speigner’s conviction was reversed because the prosecution therein failed to prove that he “actually killed or participated in the killing of the victim, an essential element of second degree murder under [Ohio law].” 603 F.2d at 1213. Scott’s conviction was upheld by this Court on the majority’s theory that “Scott and Speigner formed a decision to kill Bell and either or both of them carried out the plan by shooting Bell . . . . ” Scott v. Perini, supra at 434. No comparable situation exists in the present case. Instead, the Tennessee supreme court and the majority here rest their affirmance of Delk’s conviction on evidence of mere presence at the scene of the crime and opportunity to commit the crime coupled with the narrow time sequence in which the murder was committed.
THE DISCARDED PAPERS
The prosecution also introduced certain business and personal papers of Harold Gip-son which were removed from Gipson’s Market at the time of his murder and later discovered near Rose Claiborne’s mailbox on the morning after the murder. Under the prosecution’s theory, Dan Delk discarded those papers on the evening of the murder as Dan feigned to lose control of his car at or near Claiborne’s residence. The inference, of course, being that Sam Delk murdered Gipson in order to retrieve important documents that he subsequently disposed of and that his brother discarded the remaining worthless papers.
I cannot accept this theory as logical and I consider it wholly unsupported by the facts as found by the state courts. First, Dan drove on the opposite side of the road from Claiborne’s property so that even if he had an opportunity to jettison Gipson’s papers, those papers would not have settled near Claiborne’s mailbox. Second, both of Dan’s female passengers testified that though he was pressing up against the loosely-taped vent window with his shoulder he did not throw away any papers. In fact, Dan was driving with one hand and drinking beer with the other hand at the time. Additionally, it was a cold night and all the car windows were sealed. Third, Sam Delk could just as easily have burned Gipson’s papers rather than having Dan dispose of them in the presence of two witnesses. Fourth, the Tennessee supreme court placed very little evidentiary weight on this evidence.
Therefore, as the district court properly held, “it is simply irrational to infer from [the testimony of Dan’s female passengers] that Dan Delk threw these papers out of his window during his trip to Dickson.” 498 F.Supp. at 1293. The presence of the papers on Claiborne’s property and the coincidence of Dan’s drive past that property failed to prove Sam Delk’s control over the papers or link him in any way to the Gipson murder.
CONCLUSION
Delk’s conviction rests upon wholly circumstantial evidence of his presence at the scene of the crime and his opportunity to have committed the crime. No murder weapon was recovered, no eyewitness testified to Delk’s involvement in the murder, no witness heard any shots fired, no motive was established linking Delk to the murder, and no reasonable inferences of Delk’s guilt *107could have been made from the recovery of Gipson’s papers. All the prosecution proved is that whoever committed this heinous crime had very little time in which to do it and yet escape unnoticed.
If due process of law is to retain any meaning in our society of laws and if the public is to continue to have any degree of confidence that an individual will not be imprisoned except upon constitutionally sufficient proof of guilt beyond a reasonable doubt as to every element of the crime charged, then the State’s circumstantial proof of presence and opportunity standing alone must be found to constitute insufficient evidence to support a jury conviction.
I would affirm the judgment of the district court granting habeas corpus relief.