UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
March 18, 1983
MICHAEL SIMMONS, PETITIONER-APPELLEE,
STEPHEN DALSHEIM, RESPONDENT-APPELLANT.
Appeal from a judgment of the United States District Court for the Southern District of New York, Robert J. Ward, Judge, granting a petition seeking a writ of habeas corpus on the ground that the trial court's instructions unconstitutionally shifted the burden of proof in respect to the alibi defense. Affirmed.
OAKES, PRATT, and WEIS,*fn* Circuit Judges.
This is an appeal from a judgment entered in the United States District Court for the Southern District of New York, Robert J. Ward, Judge, granting a petition for a wirt of habeas corpus. The petitioner in this case, Michael Simmons, was convicted in 1976 of sodomy, robbery, and criminal possession of a weapon after a jury trial in the Supreme Court of New York, Bronx County. At trial, on direct appeal, and in his habeas petition, Simmons argued that the trial court's instructions to the jury regarding his alibi defense shifted the burden of proof and therefore violated his right to a fair trial. Judge Ward, in a thorough and careful opinion, granted the writ after concluding that the charge was erroneous and that the error could not be considered harmless. We affirm on the strength of Judge Ward's opinion. See Simmons v. Dalsheim, 543 F. Supp. 729 (S.D.N.Y. 1982).