The opinion of the court was delivered by: BRAMWELL
Petitioner Carlos Garcia, by petition dated November 18, 1981, seeks release from New York State custody pursuant to 28 U.S.C. § 2254 (1976).
FACTUAL AND PROCEDURAL BACKGROUND
Mr. Garcia was convicted of manslaughter in the first degree and felony murder after a jury trial before the Honorable Joseph R. Corso in Supreme Court, Kings County. On June 20, 1975, a judgment of conviction was entered sentencing petitioner to a term of imprisonment of ten to twenty years on the manslaughter count and a term of twenty-five years to life on the felony murder count. The terms were imposed to run concurrently.
The judgment of conviction was unanimously affirmed without opinion by the Appellate Division, Second Department. People v. Garcia, 58 A.D.2d 1043 (2d Dept. 1977). Leave to appeal to the New York Court of Appeals was thereafter denied by the Honorable Sol Wachtler on September 9, 1977. People v. Garcia, 42 N.Y.2d 1002 (1977).
Mr. Garcia premises the instant petition on an alleged defect in the trial court's charge on the intent required to convict on manslaughter. He claims that the "natural and probable consequences" intent charge given here was of the type recently condemned by the Supreme Court in Sandstrom v. Montana, 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979), and therefore his conviction cannot stand.
In Sandstrom v. Montana, the Supreme Court reversed the defendant's conviction for homicide on the ground that on the issue of intent the trial court had charged that "the law presumes that a person intends the ordinary consequences of his voluntary acts." 442 U.S. at 512. The Court found that because such a charge either impermissibly shifted the People's burden of proving every essential element of the crime to the defendant, or created ae conclusive presumption of intent, it was unconstitutional. Id. at 519; see Patterson v. New York, 432 U.S. 197, 53 L. Ed. 2d 281, 97 S. Ct. 2319 (1977); Mullaney v. Wilbur, 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881 (1975); In re Winship, 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970) (unconstitutional shifting of burden of proof to defendants). See also United States v. United States Gypsum Company, 438 U.S. 422, 57 L. Ed. 2d 854, 98 S. Ct. 2864 (1978); Morissette v. United States, 342 U.S. 246, 96 L. Ed. 288, 72 S. Ct. 240 (1952) (unconstitutional conclusive presumptions).
In the case at hand, the pertinent portion of the charge on manslaughter reads as follows:
There is a presumption of law upon which you may rely, that a person intends the natural and probable consequences of his act and unless an act is done under circumstances or conditions that might preclude the existence of such an intent, you, the jury, have the right to find intent from the results produced.
The respondents argue three points in opposition. They argue that petitioner is procedurally barred from raising the claim in this habeas proceeding because he failed to register a timely objection to the charge in conformity with N.Y. Crim. Proc. Law § 470.05(2). See Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977). In addition, they argue that petitioner failed to present the claim to the state courts in his direct appeal and therefore cannot be said to have exhausted state remedies available to him. See 28 U.S.C. § 2254(b)(c). Finally, on the merits, they argue that the charge on intent given here is distinguishable from the one condemned by the Supreme Court in Sandstrom.
Petitioner concedes that his attorney at trial failed to register a timely objection to the charge and this would constitute a procedural default barring habeas review within the meaning of Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977). Apparently conversant with the Wainwright case, petitioner goes on to characterize his attorney's incompetence as being adequate "cause" for the default, thereby excusing him from the bar of Wainwright. Wainwright v. Sykes at 84.
The Supreme Court, in Sykes, held that a federal court presented with a habeas petitioner's federal constitutional claim is barred from reaching the merits of such claims when a petitioner has failed, as a matter of state law, to comply with an available procedural mechanism by which he could have challenged an alleged constitutional violation. Wainwright v. Sykes, 433 U.S. at 74. Thereafter, the court went on to propound the so-called "cause and prejudice" test whereby such a procedural default could be eliminated as a bar to federal habeas review providing "cause" for the noncompliance plus a ...