Appeal from the issuance by the District Court for the Southern District of New York, Richard Owen, Judge, of a writ of habeas corpus setting aside petitioners' convictions by the State of New York of felonious possession of a firearm in violation of the N.Y. Penal Law § 265.05(2) (McKinney's 1967) (now § 265.02(4), McKinney's 1976-77 Supp.) on the ground that N.Y. Penal Law § 265.15(3) (McKinney's 1976-77 Supp.), which makes the presence of a firearm in an automobile presumptive evidence of its possession by all persons occupying the car at the time when the weapon is found, is unconstitutional as applied in this case.
Mansfield and Timbers, Circuit Judges, and Dooling, District Judge.*fn* Timbers, Circuit Judge, concurring.
MANSFIELD, Circuit Judge.
The principal issue in this case is the constitutionality of a New York statute which makes the "presence in an automobile . . . of any firearm . . . presumptive evidence of its possession by all persons occupying such automobile at the time such weapon . . . is found, except under the following circumstances: (a) if such weapon . . . is found upon the person of one of the occupants therein. . . ."*fn1 Judge Richard Owen of the Southern District of New York granted appellees' application as state prisoners for a writ of habeas corpus on the ground that this statutory presumption was unconstitutional as applied in their state trial for felonious possession of a loaded firearm, N.Y. Penal Law § 265.05(2) (McKinney's 1967) (now found at § 265.02(4) (McKinney's 1976-77 Supp.)). Because we conclude that the presumption is unconstitutional on its face, we affirm.
On March 28, 1973, an automobile driven by appellee Lemmons, in which appellees Allen, Hardrick and one "Jane Doe"*fn2 were passengers, was stopped by State Police for speeding on the New York State Thruway. When the car was stopped Lemmons was in the driver's seat, Jane Doe in the right front seat, and Allen and Hardrick in the back seat. After Lemmons had left the car and had been arrested for reasons not relevant here,*fn3 one of the police officers returned to the car, looked through the front window on the passenger's (Doe's) side, and saw part of a handgun protruding from a ladies' handbag resting on the floor of the car next to the right front door. A search of the handbag revealed a loaded.45 automatic pistol and a loaded.38 revolver.*fn4 Appellees and Doe were indicted by the State of New York, tried before a jury in the Ulster County court and convicted of felonious possession of these two weapons in violation of N.Y. Penal Law § 265.05(2). At trial the prosecution relied entirely on the statutory presumption to establish the defendants' dominion or control over the guns,*fn5 introducing no evidence other than appellees' presence in the car in which the handbag containing the guns was also present to demonstrate possession.
At the close of the state's case appellees moved to dismiss the indictment, arguing that the presumption did not apply to them, since the guns had been "found upon the person" of Jane Doe within the meaning of that exception to the presumption. See N.Y. Penal Law § 265.15(3), quoted in fn. 1. This motion was denied. Thereafter, in its instructions the court informed the jurors of the statutory presumption and that they could "infer and draw a conclusion that such prohibited weapon was possessed by each of the defendants who occupied the automobile at the time when such instruments were found," but omitted any reference to the statute's "upon the person" exception. No objection to the omission was voiced. After a guilty verdict had been returned, appellees moved to set it aside and to dismiss the indictment, renewing their claim that the presumption was inapplicable to them as a matter of law and arguing in addition that, if the presumption were found applicable, it was unconstitutional as applied. This motion was also denied.
Appellees' convictions were affirmed by the Appellate Division, Third Department, People v. Lemmons, 49 A.D.2d 639, 370 N.Y.S.2d 243 (1975), two of the five judges dissenting in part, and by the New York Court of Appeals, People v. Lemmons, 40 N.Y.2d 505, 354 N.E.2d 836, 387 N.Y.S.2d 97 (1976), with two judges dissenting in part. The latter court held that the evidence bearing on applicability of the presumption had warranted submission of the question to the jury but declined to go further, noting that the defendants had failed to object to the omission of the "upon the person" exception from the jury charge. Although the majority opinion did not explicitly deal with the issue, it implicitly upheld the statute's constitutionality, discussing its legislative history and the reasoning behind its enactment. The defendants had contended before the Appellate Division and the Court of Appeals that the statute was unconstitutional as applied, citing Leary v. United States, 395 U.S. 6, 23 L. Ed. 2d 57, 89 S. Ct. 1532 (1969), in support of their argument that "a presumption must be regarded as 'irrational' or 'arbitrary,' and hence unconstitutional, unless it can be said with substantial assurance that the presumed fact is more likely than not to flow from the proven fact upon which it is made to defend." (Defendants' brief before App. Div., p. 23, and brief before Court of Appeals, p. 20.) Moreover, Judges Wachtler and Fuchsberg maintained in dissent that the presumption could not constitutionally be applied in this case.*fn6 40 N.Y.2d at 513-16.
Appellees thereafter filed their petition for a writ of habeas corpus in the Southern District of New York, claiming that New York's presumption was unconstitutional both on its face and as applied to their case and that the failure to charge the jury as to the possible applicability of the "upon the person" exception constituted a denial of due process.*fn7 Judge Owen issued the writ, holding that the statutory presumption was unconstitutional as applied.*fn8
On appeal, the State argues (1) that the issue of the presumption's constitutionality on its face is not properly before this court because of the appellees' alleged failure to exhaust state remedies with regard to this claim, (2) that the presumption is in any event facially valid, and (3) that Judge Owen's holding that the statute was unconstitutional as applied was an improper ruling on an issue of state law. Because of the grounds of our disposition, we need deal only with the first two contentions.
An applicant for federal habeas relief must first exhaust available State remedies before filing his application. 28 U.S.C. § 2254(b)-(c); Fay v. Noia, 372 U.S. 391, 434-35, 9 L. Ed. 2d 837, 83 S. Ct. 822 (1963). However, "petitioners are not required to file 'repetitious applications' in the state courts." Wilwording v. Swenson, 404 U.S. 249, 250, 30 L. Ed. 2d 418, 92 S. Ct. 407 (1971) (per curiam); Brown v. Allen, 344 U.S. 443, 448-49 n.3, 97 L. Ed. 469, 73 S. Ct. 397 (1953). "Once the federal claim has been fairly presented to the state courts, the exhaustion requirement is satisfied." Picard v. Connor, 404 U.S. 270, 275, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971). Nor is a habeas petitioner required to pursue available state remedies for collateral attack if he has presented his federal claims to the state courts on direct appeal. United States ex rel. Newsome v. Malcolm, 492 F.2d 1166, 1169 & n.4 (2d Cir. 1974), affd. sub nom. Lefkowitz v. Newsome, 420 U.S. 283, 43 L. Ed. 2d 196, 95 S. Ct. 886 (1975).
In this case appellees have consistently argued, both at their state trial and on appeal, that the presumption was unconstitutional as applied to them.*fn9 However, appellants urge that appellees' contention here that the presumption is unconstitutional on its face represents a "different" claim that was not presented in the state courts. The state remedies, the argument goes, were therefore not exhausted. However, as the Supreme Court pointed out in Picard v. Connor, in determining whether a claim raised in habeas proceedings is substantially the same as that previously presented to the courts of a state,
" Obviously, there are instances in which 'the ultimate question for disposition' . . . will be the same despite variations in the legal theory or factual allegations urged in its support. A ready example is a challenge to a confession predicated upon psychological as well as physical coercion. . . . We simply hold that the substance of a federal habeas corpus claim must first be presented to the state courts." (Emphasis added.) 404 U.S. at 275, 277-78.
Applying this principle to the present case, we conclude that the "ultimate question for disposition" posed by appellees' argument that the presumption is unconstitutional on its face is not substantially different from that presented by their claim in the state courts to the effect that the statute is unconstitutional as applied. The fundamental question in either case is whether there exists a sufficient empirical connection between the "proved fact," here the presence in a car of a gun, and the "presumed fact," here its possession by all occupants of the car. Compare Leary v. United States, 395 U.S. 6, 29-54, 23 L. Ed. 2d 57, 89 S. Ct. 1532 (1969) (facial constitutionality of a presumption), with Turner v. United States, 396 U.S. 398, 418-19 & n.39, 24 L. Ed. 2d 610, 90 S. Ct. 642 (1970) (constitutionality as applied). While the factual inquiry may be somewhat more constrained in an "as applied" adjudication, see [Slip Op.] p. 562-64 infra, New York certainly cannot complain that its courts have not had the "first opportunity" to rule on the legislative facts underlying its presumption.*fn10
Our conclusion that the issue of the presumption's constitutionality has been "fairly presented to the state courts" is wholly consistent with the equitable nature of the exhaustion requirement. This prerequisite to the writ should not be construed as the functional equivalent of the formalities associated with common law pleading. "The exhaustion doctorine is a judicially crafted instrument which reflects a careful balance between important interests of federalism and the need to preserve the writ of habeas corpus as a 'swift and imperative remedy in all cases of illegal restraint or confinement.'" Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 490, 35 L. Ed. 2d 443, 93 S. Ct. 1123 (1973). "The exhaustion requirement is merely an accommodation of our federal system designed to give the State an initial 'opportunity to pass upon and correct' alleged violations of its prisoners' federal rights." Wilwording v. Swenson, supra, 404 U.S. at 250. In this case, New York has had an "initial opportunity" to rule on the rationality of the connection between presence in a car with a gun and possession of it; to require more would not serve the interests of federalism but would undermine habeas corpus as a "swift and imperative remedy."
Moreover, it is readily apparent that an application for state collateral review in the present case would be a wholly futile exercise. First of all, since the New York Court of Appeals has refused to declare the presumption unconstitutional as applied to a situation in which weapons, although in the same car as the occupants, were in the handbag of another person (Doe), it is inconceivable that that court would reverse its field to hold that the statutory presumption, which may be applied in circumstances less favorable to the occupants than those present here, is nevertheless facially unconstitutional. Secondly, in Stubbs v. Smith, 533 F.2d 64 (2d Cir. 1976), although we found it unnecessary to pass upon the merits of a habeas petitioner's constitutional challenge to the very presumption before us, we declined to require the petitioner to exhaust state court remedies on that issue, even though he had not previously raised it, since the New York Court of Appeals had already rejected the substance of the petitioner's legal position in previous cases, see People v. Russo, 303 N.Y. 673, 102 N.E.2d 834 (1951); People v. Leyva, 38 N.Y.2d 160, 341 N.E.2d 546, 379 N.Y.S.2d 30 (1975), and it had given no indication at the time of his federal petition that it would reconsider its previous holdings. 533 F.2d at 69.*fn11 To require exhaustion in these circumstances would serve no policy associated with federalism, but would frustrate appellees' efforts to recover their liberty promptly.
For closely analogous reasons, we also conclude that appellees have not forfeited the right to argue the facial unconstitutionality of the presumption before the federal courts. See generally Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977). They have persistently pressed a substantially equivalent position before three different courts in New York, and it would be unreasonable for us to conclude that, although they need not pursue further state remedies because they have already confronted the state courts with the "ultimate question for disposition before us," their efforts were not sufficient to avoid a forfeiture of federal relief. Wainwright, which represents the Supreme Court's latest word on procedural forfeitures in habeas cases, although severely limiting the applicability of the Fay v. Noia "deliberate bypass" standard, is consistent with our decision on this issue. In Wainwright the petitioner sought habeas relief on the ground that a confession read into evidence at his state court trial had been obtained in violation of his Miranda rights. However, he had failed to object to its admission at the trial. The Supreme Court held that the failure to comply with Florida's "contemporaneous objection" rule barred federal habeas corpus review of his Miranda claim, absent any showing of "cause" for the procedural default and "prejudice" resulting from it. The Court explained that its new standard for procedural forfeitures was justified because Florida's rule ...