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June 26, 1978

Frank A. LOPEZ, as next of friend, attorney for and in behalf of Carmen GARCIA, Petitioner,
Phyllis CURRY, Correctional Superintendent, Bedford Hills Correctional Facility, Bedford Hills, New York, or anyone having custody and/or control of Carmen Garcia, Respondent

The opinion of the court was delivered by: STEWART


 STEWART, District Judge:

 This petition for a writ of habeas corpus is brought by Frank A. Lopez as attorney and next friend of Carmen Garcia, a state prisoner presently serving a term of fifteen years to life and a concurrent term of three years after being convicted of criminal possession of a dangerous drug in the first and fourth degrees (simple possession and possession with intent to sell) *fn1" after a joint jury trial with two other defendants in New York Supreme Court, Kings County. At trial the prosecution relied extensively on N.Y. Penal Law § 220.25(1) *fn2" which provides:

The presence of a controlled substance in an automobile, other than a public omnibus, is presumptive evidence of knowing possession thereof by each and every person in the automobile at the time such controlled substance was found . . . . *fn3"

 Petitioner maintains that § 220.25(1) is unconstitutional, because the logical connection drawn by the statute between presence in the vehicle and knowing possession of drugs found in the vehicle is too arbitrary to survive constitutional scrutiny under tests set forth in Leary v. United States, 395 U.S. 6, 36, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969) and Allen v. County Court, Ulster County, 568 F.2d 998, 1006 (2d Cir. 1977). Petitioner further argues that the trial judge's jury instructions on the statutory presumption violated due process by impermissibly shifting the burden of proof to the defendants.


 Petitioner has fully exhausted her state remedies as required by 28 U.S.C. § 2254. The federal constitutional claims she now presses were raised at trial and again on appeal; the New York Court of Appeals in its opinion in People v. Leyva, 38 N.Y.2d 160, 379 N.Y.S.2d 30, 341 N.E.2d 546 (1975), upheld the constitutionality of the statute, 379 N.Y.S.2d at 35, 341 N.E.2d at 550, and approved (although not without reservations) the trial judge's charge to the jury, 379 N.Y.S.2d at 39, 341 N.E.2d at 553.

 Respondent urges, however, that where the State's highest court has upheld an assertedly unconstitutional statute, petitioner's failure to appeal to the United States Supreme Court, pursuant to 28 U.S.C. § 1257(2), constitutes a waiver of that constitutional claim, *fn4" precluding collateral review by a federal district court on a petition for habeas corpus. *fn5" The effect of the retroactive application of a waiver doctrine such as respondent proposes would be to deny this petitioner a federal determination of her constitutional claims which it was Congress' purpose in enacting the habeas corpus statute to guarantee. *fn6" We do not agree that such a "forfeiture of federal relief" is required under the circumstances, see Allen v. County Court, Ulster County, supra, 568 F.2d at 1004, and hold therefore that the petition is properly before us.


 The government's case against Carmen Garcia, as revealed by the evidence at trial, was simple. Garcia and her two co-defendants were arrested in September, 1971, when the car in which they were riding was intercepted by four New York City detectives and an Assistant District Attorney near the Williamsburgh Bridge in Brooklyn. *fn7" The driver was Jose Low; Widelto Leyva and petitioner Carmen Garcia (whom the officers recognized) were front seat passengers. Beneath the front seat, in plain view as the officers approached the vehicle, was a brown manila envelope, which proved to contain approximately one kilogram of a substance containing cocaine.

 The People's case consisted of the testimony of the four detectives and the Assistant District Attorney to the effect that, when the car was intercepted, Garcia was in the car and narcotics were found in the car (a chemist also testified that the substance found in the car was cocaine).

 Neither petitioner nor her co-defendant Leyva testified or offered any evidence at the trial. Defendant Low took the stand, however, portraying himself as an innocent dupe obliging an acquaintance by driving two strangers to Brooklyn in a borrowed car.

 To fill the crucial gap in its prima facie case -- knowing possession by petitioner of the contents of the manila envelope -- the prosecution relied on N.Y. Penal Law § 220.25(1).


 In Allen, supra, the Court of Appeals held unconstitutional a New York statute, N.Y. Penal Law § 265.15(3), which is substantially similar to the statute here in issue. It provides:

3. The presence in an automobile . . . . of any firearm . . . . is presumptive evidence of its possession by all persons occupying such automobile at the time such weapon . . . . is found, . . . .

 We think the Court of Appeals' decision in Allen, supra, leads us to the conclusion that the drug statute before us in this case is also unconstitutional. *fn8" There must be, the Court emphasized in Allen, a substantial relation, a rational connection, between the fact giving rise to the presumption and the presumed fact. A legislative assertion that such a relationship exists is not sufficient; rather, a court must be satisfied from established facts "of a presumption's empirical validity" (568 F.2d at 1006). The Court of Appeals found, however, no basis "in logic or experience" for the presumption (568 F.2d at 1007).

 Relying upon a series of Supreme Court cases, Tot v. United States, 319 U.S. 463, 63 S. Ct. 1241, 87 L. Ed. 1519 (1943); United States v. Gainey, 380 U.S. 63, 85 S. Ct. 754, 13 L. Ed. 2d 658 (1965); United States v. Romano, 382 U.S. 136, 86 S. Ct. 279, 15 L. Ed. 2d 210 (1965); Leary v. United States, 395 U.S. 6, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969); Turner v. United States, 396 U.S. 398, 90 S. Ct. 642, 24 L. Ed. 2d 610 (1970); and Barnes ...

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