GEE, Circuit Judge:
Appellant L.H. Hillie was convicted by a Louisiana court of attempted armed robbery 1 and sentenced to five years imprisonment. After exhausting state remedies, he filed a petition in United States District Court pursuant to 28 U.S.C. § 2254, alleging that the evidence produced at trial was insufficient to prove that he was armed with a dangerous weapon, an essential element of the crime. He now appeals from the district court’s denial of that petition. After examining the record and the Louisiana case law concerning the definition of “dangerous weapon,” we affirm.
In July of 1979, three plainclothes policemen observed Hillie walking across the parking lot toward the door of the First National Bank of Commerce in New Orleans. One of them saw Hillie pull an object from his waistband and cover it with a towel. The officer believed that the object was a revolver. The policemen stopped Hillie before he entered the bank and seized the “revolver” — an umbrella handle.
Tucked into Hillie’s waistband was a brown paper bag containing a note that read, “This is a stick-up. Place twenties, fifties and hundreds on the counter.” On the strength of the physical evidence, one of the officer’s testimony, and the testimony of two bank tellers who established only that valuables were at the bank, Hillie was convicted.2 There can be no question that the evidence was adequate to prove that Hillie was guilty of attempted robbery. The only issue is whether there was sufficient evidence to permit a rational trier of fact to find that beyond a reasonable doubt he was guilty of attempted armed robbery. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
Hillie’s conviction was affirmed without opinion by the Louisiana Supreme Court in State v. Hillie, 385 So.2d 15 (La.1980).
In Louisiana, armed robbery is defined as “the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.” La.Rev.Stat.Ann. 14:64 (West 1974). Under Louisiana law, a “ ‘[djangerous weapon’ includes any gas, liquid or other substance or instrumentality, which in the manner used, is calculated or likely to produce death or great bodily harm.” La. Rev.Stat.Ann. 14:2(3) (West 1974). In Hillie’s case, the instrumentality was an umbrella handle covered with a towel so as to look like a gun. In Louisiana,
whether an instrumentality resembling a firearm is a “dangerous weapon” is a factual issue to be decided within the immediate context of an armed robbery case. The jury must first of all find that some gas, liquid or other substance or “inanimate” instrumentality was used. Then the jury must determine whether in the manner actually used it was “calculated or likely to produce death or great bodily harm.”
State v. Bonier, 367 So.2d 824, 826 (La.1979) (emphasis in original).
In deciding this issue, the trier of fact— in this case the state court judge — may consider whether
there was an actual likely danger of serious bodily harm to anyone present in the [184] highly charged atmosphere of the scene of a robbery, taking into consideration the great possibility of violence in the interaction between the offender and the victim thereby put in fear for his life.
Id. at 826-27.
Likewise, under Louisiana law, this is a fact-bound inquiry. This is illustrated by State v. Byrd, 385 So.2d 248 (La.1980). Byrd, like Hillie, was convicted of attempted armed robbery. He had actually pulled out a toy pistol, held it up in the air, and demanded all of the money from the cash register of a fried chicken stand. “[T]he pertinent inquiry here,” said the Louisiana Supreme Court, “is whether defendant’s use of the toy pistol created a life endangering situation, as in State v. Levi, [259 La. 591] 250 So.2d 751 (La.1971).”3 385 So.2d at 250. The court set aside Byrd’s conviction on the grounds that there was insufficient evidence to prove that such a situation had in fact been created. In the course of doing so, it noted that at no time did Byrd threaten to harm, point the toy at the attendant, or refer to it as a weapon. It also noted that the reaction of the attendant, who slammed the service window in Byrd's face after snatching back Byrd’s ordered chicken and sent him on his way, did not indicate apprehension of any great bodily harm. Thus, despite its superficial resemblance to a real gun, the toy was not deemed to have been used as a dangerous weapon. Bearing these observations in mind, we return to today’s case.
We deal with the offense of attempted armed robbery, which permits us to view the “specific intent” of the defendant to commit a crime. La.Rev.Stat.Ann. 14:27. The law of attempt in Louisiana reads specifically:
Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended.
Id. The essential question in this case is whether the defendant’s “intended use” of the instrumentality in question, considering the entirety of circumstances, is sufficient to substantiate the finding of a dangerous weapon in a case involving an instrumentality that is not inherently dangerous.
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GEE, Circuit Judge:
Appellant L.H. Hillie was convicted by a Louisiana court of attempted armed robbery 1 and sentenced to five years imprisonment. After exhausting state remedies, he filed a petition in United States District Court pursuant to 28 U.S.C. § 2254, alleging that the evidence produced at trial was insufficient to prove that he was armed with a dangerous weapon, an essential element of the crime. He now appeals from the district court’s denial of that petition. After examining the record and the Louisiana case law concerning the definition of “dangerous weapon,” we affirm.
In July of 1979, three plainclothes policemen observed Hillie walking across the parking lot toward the door of the First National Bank of Commerce in New Orleans. One of them saw Hillie pull an object from his waistband and cover it with a towel. The officer believed that the object was a revolver. The policemen stopped Hillie before he entered the bank and seized the “revolver” — an umbrella handle.
Tucked into Hillie’s waistband was a brown paper bag containing a note that read, “This is a stick-up. Place twenties, fifties and hundreds on the counter.” On the strength of the physical evidence, one of the officer’s testimony, and the testimony of two bank tellers who established only that valuables were at the bank, Hillie was convicted.2 There can be no question that the evidence was adequate to prove that Hillie was guilty of attempted robbery. The only issue is whether there was sufficient evidence to permit a rational trier of fact to find that beyond a reasonable doubt he was guilty of attempted armed robbery. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
Hillie’s conviction was affirmed without opinion by the Louisiana Supreme Court in State v. Hillie, 385 So.2d 15 (La.1980).
In Louisiana, armed robbery is defined as “the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.” La.Rev.Stat.Ann. 14:64 (West 1974). Under Louisiana law, a “ ‘[djangerous weapon’ includes any gas, liquid or other substance or instrumentality, which in the manner used, is calculated or likely to produce death or great bodily harm.” La. Rev.Stat.Ann. 14:2(3) (West 1974). In Hillie’s case, the instrumentality was an umbrella handle covered with a towel so as to look like a gun. In Louisiana,
whether an instrumentality resembling a firearm is a “dangerous weapon” is a factual issue to be decided within the immediate context of an armed robbery case. The jury must first of all find that some gas, liquid or other substance or “inanimate” instrumentality was used. Then the jury must determine whether in the manner actually used it was “calculated or likely to produce death or great bodily harm.”
State v. Bonier, 367 So.2d 824, 826 (La.1979) (emphasis in original).
In deciding this issue, the trier of fact— in this case the state court judge — may consider whether
there was an actual likely danger of serious bodily harm to anyone present in the [184] highly charged atmosphere of the scene of a robbery, taking into consideration the great possibility of violence in the interaction between the offender and the victim thereby put in fear for his life.
Id. at 826-27.
Likewise, under Louisiana law, this is a fact-bound inquiry. This is illustrated by State v. Byrd, 385 So.2d 248 (La.1980). Byrd, like Hillie, was convicted of attempted armed robbery. He had actually pulled out a toy pistol, held it up in the air, and demanded all of the money from the cash register of a fried chicken stand. “[T]he pertinent inquiry here,” said the Louisiana Supreme Court, “is whether defendant’s use of the toy pistol created a life endangering situation, as in State v. Levi, [259 La. 591] 250 So.2d 751 (La.1971).”3 385 So.2d at 250. The court set aside Byrd’s conviction on the grounds that there was insufficient evidence to prove that such a situation had in fact been created. In the course of doing so, it noted that at no time did Byrd threaten to harm, point the toy at the attendant, or refer to it as a weapon. It also noted that the reaction of the attendant, who slammed the service window in Byrd's face after snatching back Byrd’s ordered chicken and sent him on his way, did not indicate apprehension of any great bodily harm. Thus, despite its superficial resemblance to a real gun, the toy was not deemed to have been used as a dangerous weapon. Bearing these observations in mind, we return to today’s case.
We deal with the offense of attempted armed robbery, which permits us to view the “specific intent” of the defendant to commit a crime. La.Rev.Stat.Ann. 14:27. The law of attempt in Louisiana reads specifically:
Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended.
Id. The essential question in this case is whether the defendant’s “intended use” of the instrumentality in question, considering the entirety of circumstances, is sufficient to substantiate the finding of a dangerous weapon in a case involving an instrumentality that is not inherently dangerous.
It is clear that Hillie did more than merely “prepare” an armed robbery, which would be insufficient to support an “attempt” conviction. He was apprehended as he approached the bank with an instrumentality intentionally disguised to look like a gun. In such circumstances, we would be reluctant to reverse a state court finding, based on its own reading of its own law, that this situation constituted an attempt to use an instrumentality as a dangerous weapon. To be sure, it may be objected that if the test is really one of “actual use” then no mortal can say how Hillie would have used his counterfeit weapon until he had done so. In the attempt situation this proves too much, however, since by the same reasoning one apprehended while making for the bank with a demand note and a hand grenade could not be convicted. We think the more reasonable view of the actual use test, as applied in attempt situations, is to inquire whether the evidence permits a reasonable inference that the manner of use of either a real or a simulated weapon is to be such as to create a life-endangering situation through the reaction of the proposed victim or otherwise. Here, the reasonable inference is that Hillie meant to draw what appeared to be a pistol on a bank teller — a “stick-up” as his note proclaimed — and demand money, and the highly-charged atmosphere of an armed bank robbery was to be created. We cannot say that the Louisiana courts erred in so concluding.
That they did so cannot be doubted, although the trial court simply found Hillie guilty and the state appellate court affirmed without opinion. The very contention that Hillie makes to us was made to [185] them and necessarily, in view of their rulings, by each rejected. In such circumstances, our stated reluctance to second-guess the Louisiana judiciary on what is at best a mixed question of fact and Louisiana law is great.
That reluctance is increased by the context in which the issue is presented. Section 2254(d) provides specific limitations on our powers in such cases as this, limitations that read in relevant part:
In any proceeding instituted in a Federal Court by an application for a writ of habeas corpus by a person in custody pursuant to a State Court, a determination after a hearing on the merits of a factual issue, made by a State Court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof or parties, evidenced by a written finding, written opinion, or other reliable and adequate indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit—
(8) or unless that part of the record of the State Court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal Court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record .... (emphasis added).
The Supreme Court, in Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), has interpreted this portion of the statute and has made it clear that it is to be applied strictly. Therefore, for us to overturn the conviction below by disturbing the factual determination that a deadly weapon was used, we would be required to make the explicit finding that such a factual determination was not “fairly supported by the record.” On our reading of the Second Circuit case approved by the Supreme Court in Sumner, the “fairly supported by the evidence” standard requires us to review only the evidence presented in support of the factual finding rendered by the state court. See Burke v. Elliott, 606 F.2d 375 (3rd Cir.1979).
We must therefore review the record to determine if evidence in support of the finding that the broken umbrella handle draped under a towel and thereby disguised as a gun represented a dangerous weapon is “fairly supported.” If, as we have concluded, we are permitted to review the evidence of the likely situation within the bank had the defendant been permitted to enter as he intended, there is substantial evidence on the record that a life-endangering situation would have been created. Louisiana courts have found not inherently dangerous instrumentalities resembling a loaded firearm to be dangerous weapons if used while committing a robbery. See State v. McMorris, 343 So.2d 1011, (La.1977); State v. Leak, 306 So.2d 737 (La.1975); State v. Levi, 259 La. 591, 250 So.2d 751 (1971). According the pronouncements of the Louisiana courts appropriate deference, we conclude that the judgment below must be
AFFIRMED.