The opinion of the court was delivered by: PLATT
THOMAS C. PLATT, U.S.D.J.
This case comes before us on a second petition for habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated below, we dismiss the petition and grant a certificate of probable cause.
Following a State jury trial, petitioner was convicted of felony murder on May 11, 1978. The underlying facts are more fully set out in Mancuso v. Harris, 677 F.2d 206 (2d Cir.), cert. denied, 459 U.S. 1019, 74 L. Ed. 2d 514, 103 S. Ct. 382 (1982), familiarity with which is assumed.
On July 21, 1981, this Court adopted the Report and Recommendation of United States Magistrate John Caden and granted petitioner a new trial. The basis for the Court's decision was that the jury charge regarding intent
impermissibly shifted the burden of proof to the petitioner in violation of Sandstrom v. Montana, 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979). The Second Circuit reversed, holding that the jury charge did not shift the burden of proof and that any possible error was harmless, 677 F.2d at 210-11, and the Supreme Court denied certiorari, 459 U.S. 1019, 103 S. Ct. 382, 74 L. Ed. 2d 514 (1982).
The present application seeks a reconsideration of the Second Circuit's decision, in light of the subsequent decision by the Supreme Court in Connecticut v. Johnson, 460 U.S. 73, 74 L. Ed. 2d 823, 103 S. Ct. 969 (1983). Petitioner also raises a second portion of the jury charge claiming that the same is a new ground for relief.
RECONSIDERATION OF ORIGINAL APPLICATION
Petitioner argues that Connecticut v. Johnson adopted a rule requiring automatic reversal for Sandstrom errors, with a few rare and limited exceptions. See 460 U.S. at 87 (plurality opinion of Blackmun, J.). As Chief Justice Burger pointed out in his dissent, however, only four Justices advocated an automatic reversal rule. Id. at 90. Justice Stevens, who would have dismissed the petition for certiorari, joined those four only because doing so allowed the judgment of the State court to stand. Id. at 88-90. Thus, there was no clear majority requiring automatic reversal.
The Supreme Court had long left undecided the issue of whether Sandstrom errors can ever be harmless. See Francis v. Franklin, 103 S. Ct. 1965, 1977 (1985). In the recent case of Rose v. Clark, 478 U.S. 570, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986), the Supreme Court seems to have resolved that question when it held 6-3 that harmless-error analysis under Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967), applied to a jury instruction that created a rebuttable mandatory presumption in violation of Sandstrom.
In light of Rose v. Clark, we do not believe that Connecticut v. Johnson provides a basis for reconsidering the Second Circuit's opinion in this case. See Matarese v. LeFevre, 801 F.2d 98, 108 (2d Cir. 1986), citing Rose v. Clark, 478 U.S. 570, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986).
Furthermore, the Second Circuit held that there was no Sandstrom error in this case. The Court reasoned that the jury instruction contained ameliorative language and did not shift the burden of proof. 677 F.2d at 210. When viewed as a whole, the jury charge "merely [instructed] the jury as to a permissible method for reaching a conclusion as to whether Mancuso had the intent required" to convict him of felony murder. Id. at 211. The Second Circuit also concluded that, given the context of the entire charge and the degree to which Mancuso's intent was at issue, the instruction was harmless. Id. Thus, even if Sandstrom errors required automatic reversal, such a rule would not apply to this case.
As much as we might have once believed that the jury instruction violated Sandstrom, only the Second Circuit (or the Supreme Court) may reverse its decision. Accordingly, we decline to reconsider the previously addressed portion of the jury charge.
ADDITIONAL GROUND FOR RELIEF
Petitioner now seeks to challenge the following additional portion of the jury charge given immediately after and in connection with the so-called ...