dissenting.
The panel correctly states that “the determination of factual issues by the state court, with a few specific exceptions, is ‘presumed to be correct.’ ” Opinion at 339 (quoting 28 U.S.C. § 2254(d)). One of those specific exceptions, however, is when a federal court concludes that the record does not fairly support a factual determination made by the state court. 28 U.S.C. § 2254(d)(8) (1988). Such is the case here: Judge Ware expressly found, pursuant to section 2254(d)(8), that the state court record did not support a factual determination that Payne intended to aid in the killing that occurred. Payne v. Borg, No. C 89-20395, at 8-12 (N.D.Cal. April 3, 1991) (order granting habeas corpus). Thus, undue deference to the state determination is inappropriate and inadequate to enforce the mandate of Jackson v. Virginia.
I agree with the majority that the evidence is sufficient to support a finding, beyond a reasonable doubt, that Payne restrained Mr. Hynan. I cannot agree, however, that the evidence establishes beyond a reasonable doubt that Payne restrained Mr. Hynan knowing Williams was going to kill Mrs. Hynan and intending to help him accomplish that purpose. See Opinion at 338-39. Although we must view the evidence in the light most favorable to the prosecution, and hence draw inferences accordingly, this Court must also determine whether any rational factfinder could find the fact at issue beyond a reasonable doubt. Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2788-89.
Any finding on the factual issue of Payne’s intent must rest solely on inferences. In part, this requires analysis of whether any supporting inferences could rationally be drawn, which the majority has done. The further analysis required, however, is whether the inferences that could be drawn to support such a conclusion establish it beyond a reasonable doubt. The majority identifies numerous inferences a rational factfinder could draw to support a finding that Payne intended to kill Mrs. Hynan, but points out that numerous “inferences to the contrary would also be rational.” The inferences the majority draws — not to mention the conclusion they purportedly support — are so weak as to amount to speculation and conjecture, not evidence.
The majority’s conclusion boils down to this: evidence from which one can infer that two people planned a burglary, plus evidence that they knew people were likely to be at home during the burglary, is proof beyond a reasonable doubt that both burglary participants intended to kill anyone who was killed during the crime. This is precisely the result the California Supreme Court rejected in People v. Anderson when it held that intent to kill, and not merely intent to aid in the underlying felony, must be proven to convict a felony murderer’s accomplice of first degree murder. See Opinion at 339.
My disagreement with the majority does not center on its reliance on circumstantial evidence, as opposed to direct evidence. Rather, it results from its interpretation of that evidence given the paucity of the evidence of intent and the presence of evidence to the contrary. To reach its conclusion the majority draws one inference from the evidence and the next inference not from the evidence but from the preceding scantily supported inference and so on, *344each weaker than the first. This creates a chain of inferences in which the final inference of intent is so attenuated from the evidence that no rational juror could fairly hold it without a reasonable doubt in the presence of equally strong inferences to the contrary.
I conclude that if the inferences refuting intent are not equally as strong as those supporting it, they are not so disproportionate in strength that a rational trier of fact could conclude beyond a reasonable doubt that Payne intended for Williams to murder Mrs. Hynan during the burglary. Accordingly, I find the evidence insufficient to support the finding of special circumstance, and I would affirm the district court’s conclusion in this respect. I therefore dissent from part I.B. of the majority’s opinion.