United States District Court, W.D. New York
June 10, 2005.
SAM PARSONS, Petitioner,
JOHN BURGE, Superintendent of Auburn Correctional Facility, Respondent.
The opinion of the court was delivered by: VICTOR BIANCHINI, Magistrate Judge
DECISION AND ORDER
Petitioner, Sam Parsons ("Parsons"), represented by counsel,
filed this petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 challenging his conviction in New York State
Supreme Court (Monroe County) on April 21, 1998. The parties have
consented to disposition of this matter by the undersigned
pursuant to 28 U.S.C. § 636(b).
Parsons was indicted by a Monroe County Grand Jury on one count
of criminal sale of a controlled substance in the first degree;
one count of criminal possession of a controlled substance in the
first degree; one count of criminal possession of a controlled
substance in the third degree; and one count conspiracy in the
second degree. The issue presented by the instant habeas petition
is whether the trial court's charge regarding the element of
"knowing possession" created a mandatory presumption, thereby
unconstitutionally shifting the burden of persuasion from the
state to the defendant on that element of the crime of criminal
possession of a controlled substance. At Parsons's trial, one of
the key issues for resolution by the jury was whether petitioner "knowingly possessed" the seized cocaine.
Trial counsel defended on the theory that Parsons, a person of
limited intelligence, essentially was acting as the drug dealer's
"mule" and was not aware of the contents of the package later
discovered to contain cocaine.
I. Factual History
A. Transcripts of Wire-tapped Phone Calls
For about eight months, the Rochester Police Department
conducted telephone and visual surveillance on suspected drug
dealer Robert Gray ("Gray") and his associate Steven "Shorty"
Maldonado ("Shorty"). On December 5, 1996, the police obtained
information from a wiretapped conversation between Gray and
Shorty and that a drug transaction was scheduled to occur the
following day. On December 6, 1996, at 9:04 a.m., Gray called
Shorty and said that he was going to "send Sam in a couple of
minutes." Gray asked Shorty to "open up" one of his "girls"
(bricks of cocaine) and "make" him "two two dollars and fifty
cents and ah [sic] half a dollar" (divide up the cocaine into
smaller parcels). Gray said that he was "gonna send [his] boy"
over to Shorty's residence at 434 First Street. Gray told Shorty
that he would bring "the change" with him and asked Shorty to
page him "so [he] can tell [his] man to meet [him] right quick."
Gray called Shorty again at 10:34 a.m. Shorty informed Gray
that he was waiting for Gray at "4-3-4" (i.e., 434 First
Street). Gray indicated that he was "waiting on" Sam because Sam
had his car and had to give him a ride. Gray told Shorty that
they would be there "in a minute."
At 10:41 a.m., Gray called Shorty again. The following exchange
Robert Gray ("RG"): Sam, coming right now.
Shorty Maldonado ("SH"): Yeah, he just got here.
RG: Okay, I'm on my way so what I'm doing, fitting
[sic] to meet the dude [the buyer, Calvin Jessie]
at that number and send him, send down to ride back
with Sam soon as he come [sic]. SH: What you [sic] gonna do?
RG: Send the money right back with Sam.
SH: And, eh, what Sam, Sam came to get what?
SH: All of this.
RG: And then I'm ma [sic] send the, the what I owe
you I'm ma [sic] send that with him right now.
. . .
RG: So, how many you giving Sam right now?
SH: Uh, the cracked [i.e., the kilo of cocaine Gray
had asked him to open up] and two [intact kilos].
. . .
SH: You gonna come though?
RG: Yeah, I'm coming, I was waiting on this guy, I'm
waiting on him now, after waiting on Sam.
There was a phone call between Gray and Jessie (no time given
in the police log) on December 6 in which Gray told Jessie, "As
soon I [sic] page you just come right over there on . . . B
[i.e., Bernard] Street, you know how I used to do that with my
lawyer . . . Sambo." Gray called Jessie again (no time given) and
said, "I'm on Bernard." The transcripts of the foregoing calls
were part of the prosecution's discovery, and were included as
part of the papers in respondent's appendix of exhibits submitted
in connection with the habeas petition. Apparently, however,
there was another phone call at about 9:00 a.m. on December 6
between Gray and Parsons, the transcript of which was introduced
at trial. In that phone call, Gray directed Parsons to take his
car for an oil change that morning. The prosecution conceded that
Parsons's name was not mentioned in any of the overt "drug talk"
recorded in the phone conversations.
B. Testimony at Trial
1. Calvin Jessie: The Buyer Jessie testified that on December 5, he arranged with Gray to
purchase some cocaine on December 6. On the morning of December
6, Jessie went to Bernard Street, parked in front of a blue
house, and got into a car with Gray and Parsons. Parsons was on
the driver's side. Jessie told Gray that he "wanted the coke,"
and Gray told Sam to go into the back and pick it up. Parsons
went around the back of the house and returned with a brown bag.
Jessie looked inside and saw a half kilo of cocaine. Jessie said
that he wanted the whole kilo instead. Gray then sent Parsons
back to get the whole kilo. Parsons returned to the garage and
brought back another bag. Satisfied, Jessie handed Parsons
$15,000 in cash. Tr. at 256-63.
Jessie went over to Bernard Street right after Gray called him
at about 10:40 a.m. to come pick up the cocaine. Tr. at 277, 300.
It would have taken him about fifteen or twenty minutes to get
from his house on Elmdorf Avenue to Bernard Street, and he left
right after the phone call. Therefore, Jessie would have arrived
at Bernard Street at about 11 a.m.
According to Jessie, the cocaine was "in a bag bundled up in a
bag" Tr. at 298. It was wrapped up in tape and plastic, with the
tape covering all of the cocaine so that it was not visible.
Id. at 308. Jessie testified that he routinely engaged in drug
transactions with Gray and that he picked up cocaine from Parsons
on "numerous" occasions. Id. at 322. Jessie received five years
to life in return for his testimony, saving twenty years off his
2. Juan Zuluaga: The Supplier
Zuluaga, Gray's supplier of cocaine from Queens, testified that
he transported a shipment to Rochester on December 5 and brought
it to Shorty Maldonado's residence at 434 First Street at about 5
or 6 p.m. Zuluaga saw Gray, accompanied by Parsons, at First
Street on December 6 at about 9 or 10 a.m. (Note: This was
somewhat inconsistent with the wiretapped telephone conversations which placed Parsons at 434 First Street at 10:41
a.m., unaccompanied by Gray.) According to Zuluaga, Gray took two
kilos of cocaine that day, but he did not pay for the cocaine at
the time. Gray and Parsons returned between 3 p.m. and 5 p.m.,
and Parsons had $39,000 in cash with him. Zuluaga testified that
Parsons always was with Gray during the cocaine transactions. Tr.
at 367-72. Like Jessie, Zuluaga benefitted from his cooperation
with the prosecution and shaved thirteen years off his minimum
3. Ussia and Celorio: The Undercover Officers
Starting at 9:23 a.m., Ussia surveilled Shorty Maldonado's
residence at 434 First Street on December 6. He saw Zuluaga's car
(a blue Chevy Monte Carlo) and a light blue van. At about 10:43
a.m., a maroon Buick (Gray's car) pulled up into the driveway of
434 First Street. Parsons got out of the maroon Buick, looked up
and down the street a couple of times, and walked back up the
driveway toward the side door. At 10:55 a.m., Parsons got back
into the maroon Buick. Ussia did not see if Parsons had anything
in his hands. There was no one else in the car at that time. Tr.
At about 11 a.m. on December 6, Celorio observed the maroon
Buick at the intersection of Hollister Street and Clifford
Avenue. He saw a male black operating the vehicle, but he did not
see anyone else in the car. Celorio followed it to 309 Bernard
Street where the car pulled partway into the driveway. The same
male driver was inside the vehicle and Gray was standing at the
rear of the vehicle. Celorio did not know where Gray came from.
Tr. at 433. Celorio was driving by 309 Bernard Street when he saw
Gray outside the maroon Buick. Celorio did not observe the maroon
Buick any further and left the area apparently, an
"investigative decision" was made to terminate surveillance at
that point so that the undercover officers would not "get made." Tr. at 444. (Presumably, this was the drug sale between
Gray and Jessie, as scheduled in the two phone calls between Gray
and Jessie. The police did not actually observe the drug deal
itself, because they terminated surveillance too early.)
At 11:14 a.m., Ussia observed the maroon Buick southbound on
Portland Avenue. Ussia spun around, began trailing it, and
followed it to 434 First Street, where it pulled into the
driveway. This time, Gray was driving and Parsons was in the
passenger seat. The blue Monte Carlo and light blue van still
were parked outside 434 First Street. At 11:21 a.m., the Buick
backed out of the driveway. Ussia followed it to 15 Strathallan
Park, one of the properties owned by Gray. At that point Gray
exited the vehicle and entered the residence at 15 Strathallan
Park. After a few minutes, Gray returned to the vehicle, made a
U-turn and left. Ussia ceased surveillance at that time.
4. Douglas Parsons
Petitioner's 37-year-old brother, Douglas, testified for the
defense that he lived at 309 Bernard Street in the upstairs
apartment with his wife and son. Douglas testified that his
brother did not reside at 309 Bernard Street, but rather lived at
353 Bernard Street with his girlfriend and daughter. Douglas said
that his brother used to come visit his parents at 309 Bernard
Street a couple of times a week. Douglas stated that although his
brother finished high school, he was of marginal intelligence and
only received a "special ed" diploma. Douglas testified that
Parsons was "kind of like a slow learner" and had "problems . . .
reading." Tr. at 573. The defense theory was that, in light of
his low intelligence, Parsons could not form the intent required
to commit the crimes with which he was charged. Parsons's brother
also testified that Gray used Parsons as a "stooge" to handle the
drugs and money in order to insulate Gray from culpability and
that Parsons would not have known what was in the packages because
they were wrapped up and taped.
C. The Verdict
The jury returned a verdict convicting Parsons of criminal
possession of a controlled substance in the first degree (New
York Penal Law §§ 20.00, 220.21) and conspiracy in the second
degree (New York Penal Law §§ 20.00, 105.15). Parsons was
acquitted of the other charges in the indictment. He was
sentenced to concurrent indeterminate sentences, the longest of
which was fifteen years to life.
II. Procedural History
Parsons appealed his conviction to the Appellate Division,
Fourth Department, of New York State Supreme Court, raising a
number of issues, only one of which is of concern here. The
Fourth Department unanimously affirmed his conviction in a
written decision entered September 29, 2000. People v. Parsons,
275 A.D.2d 933 (4th Dept. 2000). The New York Court of
Appeals denied leave to appeal. People v. Parsons,
95 N.Y.2d 937 (2000). Parsons sought a writ of certiorari from the
United States Supreme Court, which was denied on April 23, 2001. People
v. Parsons, 532 U.S. 998 (2001).
This habeas petition followed in which Parsons claims only that
the trial judge improperly charged the jury regarding the
defendant's presumption of knowledge in regard to the possession
of a narcotic drug, in violation of Sandstrom v. Montana,
442 U.S. 510 (1979). See Petitioner's Memorandum of Law (Docket #)
at 1. DISCUSSION
A petitioner must exhaust all available state remedies either
on direct appeal or through a collateral attack of his conviction
before he may seek a writ of habeas corpus in federal court.
28 U.S.C. § 2254(b); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir.
1994), cert. denied, 514 U.S. 1054 (1995). The exhaustion of
state remedies requirement means that the petitioner must have
presented his constitutional claim to the highest state court
from which a decision can be obtained. See Morgan v. Bennett,
204 F.3d 360, 369 (2d Cir. 2000) (citing Grey v. Hoke,
933 F.2d 117, 119 (2d Cir. 1991)). A claim is properly exhausted when the
state court is fairly apprised of the claim's federal nature and
of the factual and legal premises underlying the claim. Grey,
933 F.2d at 119-20.
Respondent argues that Parsons has failed to exhaust his claim
that the trial court erroneously instructed the jury regarding
the presumption of knowledge. Respondent concedes that Parsons
raised this argument in his brief to the Appellate Division on
direct appeal but argues that Parsons presented the claim solely
as a State law violation. See Respondent's Memorandum of Law
(Docket # 7) at 1. Parsons contends that although he did not cite
specific provisions of the United States Constitution, he
presented the substance of his Federal claim to the state courts.
See Petitioner's Memorandum of Law (Docket #8) at 7-8.
Here, Parsons's appellate counsel argued to the intermediate
appellate court that "the trial court erred in its granting the
prosecution's request for a jury charge on presumption of
knowledge." Petitioner's Appellate Brief, Respondent's Appendix
of Exhibit ("App.") at 25. The body of the argument contained no
references to any federal law or sections of the federal constitution. Parsons argued that "[t]he Trial Court, over
objection, and after completion of the proof, acceded to a
request by the prosecution to eliminate the requirement of
`knowing possession' from consideration of the jury." See App.
at 25. Parsons complained about the following aspect of the
According to the law, an individual who is in
possession of a narcotic drug on or about his person
is presumed to know that he possesses a narcotic
drug. This inference is based upon the nature of the
commodity and the manner in which its traffic is
Tr. at 683-84. Counsel noted, "The permitted statutory
presumptions are listed in Section 220.25*fn1
of the Penal
Law, and such a presumption as was charged to the jury in no wise
[sic] is contained therein. To apply such a principle is to
deprive the Defendant of his right to a jury determination of the
issues presented." Appellate counsel stated in closing, "By
elevating such inference to a presumption, [the trial court] has
usurped the function of the Trial Jury, depriving the Defendant
of his Constitutional right to a fair trial." Id. at 26.
When appellate counsel wrote to the Fourth Department on
September 14, 2000, in order to clarify certain issues raised at
oral argument, counsel discussed the presumption issue, but did
not present any additional argument. See App. at 177. In his
October 16, 2000 letter seeking leave to appeal to the New York
Court of Appeals, appellate counsel did not cite any Federal
constitutional provisions or federal law, but stated that "[t]his
impermissible blending of the two concepts [of presumption and
inference] deprived the Defendant of his Constitutional right to
a fair trial[.]" See App. at 184.
Mere invocation of constitutional "magic words" such as "fair
trial" and "due process" before the state courts does not always
alert them to the federal nature of the claim. See Petrucelli v.
Coombe, 735 F.2d 684, 688 (2d Cir. 1984) (State court not
apprised of double jeopardy claim where petitioner contended that
introduction of certain evidence deprived him of fair trial [sic]
and due process of law" (citations omitted)). Similarly, the
Second Circuit has observed that "one reference [to
`constitutional rights'] is insufficient to alert the state
courts to a confrontation clause issue." Grady v. LeFevre,
846 F.2d 862, 864 (2d Cir. 1988).*fn2
On the other hand, the Second Circuit has held that reference
to the federal constitutional provision allegedly contravened
does satisfy the Daye "fair presentment" standard. In Gonzalez
v. Sullivan, 934 F.2d 419 (2d Cir. 1991), the Second Circuit
concluded, albeit reluctantly, that the petitioner "arguably
complied with the exhaustion requirements set forth in Daye" by
merely citing to "U.S. Const. amend XIV; N.Y. Const., art. I, §
6" as legal authority for his prosecutorial misconduct claim.
934 F.2d at 423; see also, e.g., Harris v. Scully, 779 F.2d 875,
878 (2d Cir. 1985) (petitioner exhausted state court remedies
where factual issues in state and federal court were the same,
and petitioner cited the Fifth and Fourteenth Amendments, and
alleged in at least two places that the trial court had committed constitutional
error by refusing his requested instruction).
Although Parsons's state appellate brief did not explicitly
argue that the challenged instruction ran afoul of due process,
the Second Circuit has held that "a habeas petitioner's federal
constitutional claims may be considered exhausted when the claims
were `fairly' though not explicitly presented to the state
courts." See Daye v. Attorney General of New York,
696 F.2d 186, 191 (2d Cir. 1982) (en banc); see also Picard v. Connor,
404 U.S. 270, 275 (1971). According to Daye, there are four
primary sets of circumstances in which a habeas petitioner may be
said to have adequately alerted the state courts to the
constitutional nature of his claims: (a) reliance on pertinent
federal cases employing constitutional analysis, (b) reliance on
state cases employing constitutional analysis in like fact
situations, (c) assertion of the claim in terms so particular as
to call to mind a specific right protected by the Constitution,
and (d) allegation of a pattern of facts that is well within the
mainstream of constitutional litigation. 696 F.2d at 694.
Parsons argues that he falls within the third Daye category
based upon his assertion in the leave application to the Court of
Appeals that the court's charge concerning knowing possession
"mixes language pertaining to permissible inference due to the
nature of drug trafficing [sic] with rebuttable presumption
which is not permitted due to the shifting of the burden of proof
to the Defendant." Petitioner's Memorandum of Law at 8 (citing
App. at 183). Parsons also contends that the challenged portion
of the court's charge on possession, in itself, "without
question, after several decades of constitutional presumption
litigation, set forth facts `well within the mainstream of
constitutional litigation." Petitioner's Memorandum of Law at 8
(citing Sandstrom, 442 U.S. 510, supra; Ulster County v.
Allen, 442 U.S. 140 (1979)). The Court agrees with Parsons that his State appellate brief
should have called to mind fundamental due process principles. In
his argument that the judge's charge overstepped the bounds
delineated by state statute, he noted that "knowing possession"
was a necessary element of the crime with which he was charged,
and claimed that the instruction had removed "knowing possession"
from the jury's consideration. Parsons also argued that, by
elevating the inference of knowing possession to a presumption,
the trial court usurped the function of the trial jury. These
allegations fall squarely within the fundamental due process rule
that the prosecution prove every element of the offense. See,
e.g., Francis v. Franklin, 471 U.S. 307, 313 (1985). The
Supreme Court reiterated in Francis that the "Due Process
Clause of the Fourteenth Amendment `protects the accused against
conviction except upon proof beyond a reasonable doubt of every
fact necessary to constitute the crime with which he is
charged.'" Id. (quoting In re Winship, 397 U.S. 358, 364
(1970)). Thus, the Court finds that "no reasonable jurist could
doubt that the defendant's claim implicated [a] constitutional
right." See Daye, 696 F.2d at 193; accord Holland v. Scully,
797 F.2d 57, 65 (2d Cir.) (petitioner's argument to State court
noted that intent was a necessary element of liability as an
accessory, and claimed that the supplemental instructions had
removed intent from the jury's consideration; this should have
called to mind the fundamental due process no person may be
deprived of liberty without proof, beyond a reasonable doubt, of
every fact necessary to constitute the crime of which he is
accused), cert. denied, 479 U.S. 870 (1986). Having found that
Parsons's jury instruction claim is ripe for habeas review, the
Court now turns to its analysis of the claim. II. Legal Standard
To prevail under 28 U.S.C. § 2254, as amended in 1996,*fn3
a petitioner seeking federal review of his conviction must
demonstrate that the state court's adjudication of his federal
constitutional claim resulted in a decision that was contrary to
or involved an unreasonable application of clearly established
Supreme Court precedent, or resulted in a decision that was based
on an unreasonable factual determination in light of the evidence
presented in state court. See 28 U.S.C. § 2254(d)(1), (2);
Williams v. Taylor, 529 U.S. 362, 375-76 (2000).
In order to invoke AEDPA's deferential review standard, there
first must have been an "adjudication on the merits" by the state
court. In disposing of Parsons's jury instruction on direct
appeal, the Appellate Division held that "contrary to defendant's
contention, the court properly instructed the jury that a person
who is in actual possession of a narcotic drug is presumed to
know that he possessed the drug." People v. Parsons,
275 A.D.2d at 935 (citations omitted). The Appellate Division thereby
adjudicated the claim on the merits. See, e.g., Norde v.
Keane, 294 F.3d 401, 410 (2d Cir. 2002) (holding that state
court adjudicates a petitioner's federal claim on the merits when
it disposes of the claim on the merits and reduces its
disposition to judgment).
Under AEDPA, a federal court may not grant habeas relief simply
because, in its "independent judgment," the state court applied
clearly established federal law "erroneously or incorrectly."
Howard v. Walker, 406 F.3d 114 (2d Cir. 2005) (quoting Fuller
v. Gorczyk, 273 F.3d 212, 219 (2d Cir. 2001) (quoting
Williams, 529 U.S. at 411)) (some quotation marks omitted). Rather, the habeas court must ask whether the state
court's ruling was "contrary to" or represented an "unreasonable
application of" clearly established Supreme Court precedent.
"Under the `contrary to' clause, a federal habeas court may grant
the writ if the state court arrives at a conclusion opposite to
that reached by [the Supreme] Court on a question of law or if
the state court decides a case differently than [the Supreme]
Court has on a set of materially indistinguishable facts."
Williams, 529 U.S. at 412-13; accord, e.g., Howard,
406 F.3d at 122. A State court decision meets the "unreasonable
application" prong of AEDPA if the state court "identifies the
correct governing legal principle from [the Supreme] Court's
decisions but unreasonably applies that principle to the facts of
the prisoner's case." Id. "Stated simply, a federal habeas
court making the `unreasonable application' inquiry should ask
whether the state court's application of clearly established
federal law was objectively unreasonable." Williams,
529 U.S. at 409.
The Second Circuit has explained that "[i]n determining whether
an application was objectively unreasonable, a habeas court does
not require that `reasonable jurists would all agree' that the
state court erred; on the other hand, `the most important point
is that an unreasonable application of federal law is different
from an incorrect application.'" Howard, 406 F.3d at 122
(quoting Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000)
(quoting Williams, 529 U.S. at 411)) (some quotation marks
omitted); see also Francis S. v. Stone, 221 F.3d 100, 111 (2d
Cir. 2000) ("Some increment of incorrectness beyond error is
required."). The Second Circuit has cautioned, however, "that the
increment need not be great; otherwise, habeas relief would be
limited to state court decisions `so far off the mark as to
suggest judicial incompetence.'" Francis S., 221 F.3d at 111
(quoting Matteo v. Superintendent, SCI Albion, 171 F.3d 877,
889 (3d Cir.), cert. denied, 528 U.S. 824 (1999)). With this analytical framework in
place, the Court turns to the merits of Parsons's claim.
III. Merits of the Petition
A. Applicable Law
In order to demonstrate "that an erroneous [jury] instruction
was so prejudicial that it will support a collateral attack on
the constitutional validity of a state court judgment," a
petitioner must show that "`the ailing instruction by itself so
infected the entire trial that the resulting conviction violates
due process. . . .'" Henderson v. Kibbe, 431 U.S. 145, 154
(1977) (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973));
see also United States v. Frady, 456 U.S. 152, 169 (1982);
accord United States v. Doyle, 130 F.3d 523, 535 (2d Cir.
The analysis of this claim is informed by the Supreme Court's
teachings in Francis and Sandstrom, two seminal cases on the
distinction between mandatory and permissive presumptions and
their respective effects on the burden of proof. The question
before the Supreme Court in Francis was almost identical to
that presented in Sandstrom: "Whether the challenged jury
instruction had the effect of relieving the State of the burden
of proof enunciated in [In re] Winship[, 397 U.S. 358, 364
(1970)] on the critical question of . . . state of mind" by
creating a mandatory presumption of intent upon proof by the
prosecution of other elements of the offense." Francis,
471 U.S. at 313.
B. The Presumption
In the present case, the claimed presumption relates not to
intent (as was the case in Sandstrom and Francis) but to the
element of "knowing possession." At Parsons's trial, the judge
charged the jury on knowing possession as follows: According to the law, an individual who is in
possession of a narcotic drug is presumed to know
that he possesses a narcotic drug. This inference is
based upon the nature of the commodity and the manner
in which its traffic is conducted. This means that
after consideration of all the evidence in this case,
you may presume or infer from the Defendant's
physical possession of the narcotic drug that he
knowingly possessed the narcotic drug. The fact that
you may draw this inference does not shift to the
Defendant any burden of proof whatsoever. The burden
of proof remains upon the prosecution throughout the
case. Before you may return a verdict of guilty, each
of you, after careful consideration of all the
evidence in this case must be satisfied that the
prosecution has proved beyond a reasonable doubt each
and every element of the crime.
Tr. at 683-84.
The first sentence quoted above, which states that "an
individual who is in possession of a narcotic drug is presumed to
know that he possesses a narcotic drug," forms the crux of
Parsons's constitutional claim. Parsons contends that this
"strong presumption language" unconstitutionally shifted the
burden of persuasion from the prosecution to the defense. Parsons
argues that the court's subsequent "qualifying language"
nevertheless "failed to save the constitutionality of the
instructions." Petitioner's Memorandum of Law ("Pet'r Mem.") at
12 (Docket #8).
The Supreme Court has explained that "[t]he most common
evidentiary device is the entirely permissive inference or
presumption, which allows but does not require the trier of
fact to infer the elemental fact from proof by the prosecutor of
the basic one and places no burden of any kind on the defendant."
County Court of Ulster County, New York v. Allen, 442 U.S. 140,
157 (1979) ("Ulster County") (citations omitted). Because a
"permissive presumption leaves the trier of fact free to credit
or reject the inference and does not shift the burden of proof,"
the jury's application of the "beyond a reasonable doubt"
standard is affected only if, under the facts of the case, "there
is no rational way" the trier of fact could make the connection
permitted by the inference." Id.
A mandatory presumption, on the other hand, "is a far more
troublesome evidentiary device" because it "may affect not only
the strength of the `no reasonable doubt' burden but also the
placement of that burden[.]" Id. This is because a mandatory
presumption tells the jury that it "must find the elemental
fact upon proof of the basic fact, at least unless the defendant
has come forward with some evidence to rebut the presumed
connection between the two facts." Id. (emphasis in original)
(citations omitted). See also Francis, 471 U.S. at 314. "A
mandatory presumption instructs the jury that it must infer the
presumed fact if the State proves certain predicate facts. A
permissive inference suggests to the jury a possible conclusion
to be drawn if the State proves predicate facts, but does not
require the jury to draw that conclusion." Id. (footnote
The Supreme Court in Francis explained that threshold inquiry
in ascertaining the constitutionality of a jury instruction which
allegedly had the effect of relieving the prosecution of the
burden of proof on an element of the offense is to determine
nature of the presumption it describes and then determine whether
the challenged portion of the instruction creates a mandatory
presumption or merely a permissive inference. Francis,
471 U.S. at 313-14. The Supreme Court has instructed that "[m]andatory
presumptions must be measured against the standards of Winship
as elucidated in Sandstrom." A mandatory presumption runs afoul
of the due process clause if it relieves "the prosecution of the
burden of persuasion on an element of an offense. Id. at 314 (quoting Patterson v. New York,
432 U.S. 197, 215 (1977) ("[A] State must prove every ingredient of an
offense beyond a reasonable doubt and . . . may not shift the
burden of proof to the defendant by presuming that ingredient
upon proof of the other elements of the offense."); Sandstrom,
442 U.S. at 520-524; Mullaney v. Wilbur, 421 U.S. 684, 698-701
(1975)). In contrast, a permissive inference does not relieve the
prosecution of its burden of persuasion because it "still
requires the State to convince the jury that the suggested
conclusion should be inferred based on the predicate facts
proved." Francis, 471 U.S. at 314. Such an inference does not
necessarily implicate the concerns elucidated in Sandstrom and
would violate the Due Process Clause "only if the suggested
conclusion is not one that reason and common sense justify in
light of the proven facts before the jury." Id. (citing Ulster
County Court, 442 U.S. at 157-63).
Here, as in Francis and Sandstrom, the first sentence of
the charge is "cast in the language of command." Compare Tr. at
683 ("According to the law, an individual who is in possession of
a narcotic drug is presumed to know that he possesses a
narcotic drug.") (emphasis added) with Francis, 471 U.S. at 316
(the jury was instructed that "`acts of a person of sound mind
and discretion are presumed to be the product of the person's
will,'" and that a person "`is presumed to intend the natural
and probable consequences of his acts'") (emphasis added);
Sandstrom, 442 U.S. at 515 ("The law presumes that a person
intends the ordinary consequences of his voluntary acts.")
The Supreme Court has explained that "[a]nalysis must focus
initially on the specific language challenged, but the inquiry
does not end there." Francis, 471 U.S. at 315. Even "[i]f a
specific portion of the jury charge, considered in isolation,
could reasonably have been understood as creating a presumption
that relieves the State of its burden of persuasion on an element of an offense, the potentially offending words must be
considered in the context of the charge as a whole," because
other instructions "might explain the particular infirm language
to the extent that a reasonable juror could not have considered
the charge to have created an unconstitutional presumption."
Id. (citing Cupp v. Naughten, 414 U.S. 141, 147 (1973)); see
also Sandstrom, 442 U.S. at 514 (This analysis "requires careful
attention to the words actually spoken to the jury . . ., for
whether a defendant has been accorded his constitutional rights
depends upon the way in which a reasonable juror could have
interpreted the instruction." In sum, an instruction is
constitutionally infirm if "a reasonable juror could have
understood the challenged portions of the jury instruction . . .
as creating a mandatory presumption that shifted to the defendant
the burden of persuasion on the crucial element" of knowing
possession, and if the "charge read as a whole does not explain
or cure the error." Francis, 471 U.S. at 325.
In Sandstrom and Francis, the jurors "`were not told that
they had a choice, or that they might infer that conclusion; they
were told only that the law presumed it. It is clear that a
reasonable juror could easily have viewed such an instruction as
mandatory.'" Francis, 471 U.S. at 316 (quoting Sandstrom,
442 U.S. at 515) (emphasis in original). In Parsons's case, the judge
used the word "may," suggesting that the jury had the option of
choosing. According to Parsons, "[c]rucial to the infirmity is
the phrase `you may presume or infer' in the midst of the third
sentence." Id. Parsons contends that "[t]he danger existed that
the jury interpreted `presume' and `infer' to be two different
concepts and believed the Judge was giving it the choice between
the strong presumption or a simple[,] relatively innocuous
inference." Id. Thus, Parsons essentially argues that the
choice itself was unconstitutional. Relying upon Sandstrom,
Parsons argues that "a jury charge which contains two sets of
instructions side by side one correct and one containing an impermissible presumption requires reversal if it
cannot be deduced which instruction the jury followed." Id. at
12-13; see Sandstrom, 442 U.S. at 517 ("[G]iven the lack of
qualifying instructions as to the legal effect of the
presumption, we cannot discount the possibility that the jury may
have interpreted the instruction" in an unconstitutional
manner."); accord, e.g., Francis, 471 U.S. at 322-23.
Turning to the second sentence of the charge at issue here, the
trial judge refers to the presumption described in the first
sentence as an "inference." See Tr. at 683 ("This inference
is based upon the nature of the commodity. . . ."). The court
then attempts to give a explanation of what the two preceding
 This means that after consideration of all the
evidence in this case, you may presume or infer
from the Defendant's physical possession of the drug
that he knowingly possessed that narcotic drug. 
The fact that you may draw this inference does not
shift to the Defendant any burden of proof
whatsoever.  The burden of proof remains upon the
prosecution throughout the case.
See Tr. at 683 (emphasis added).*fn5
I will address each
sentence in the above-quoted attempted explanation in turn.
1. First sentence: "This means that after consideration of
all the evidence in this case, you may presume or infer from
the Defendant's physical possession of the drug that he knowingly
possessed that narcotic drug."
In Francis, the state urged that the following sentence,
which immediately followed the objectionable portion of the
charge, was an adequate explanation: "[a] person will not be
presumed to act with criminal intention. . . ." Id. (citations
omitted; alteration in original). The Supreme Court found that
the statement "did no more than contradict the instruction in the
immediately preceding sentence[,]" allowing a "reasonable jury"
to have "easily resolved the contradiction in the instruction by
choosing to abide by the mandatory presumption." 471 U.S. at 322.
The Supreme Court explained,
Language that merely contradicts and does not explain
a constitutionally infirm instruction will not
suffice to absolve the infirmity. A reviewing court
has no way of knowing which of the two irreconcilable
instructions the jurors applied in reaching their
471 U.S. at 322. The Francis court then stated that
[h]ad the instruction `[a] person . . . is presumed
to intend the natural and probable consequences of
his acts,' been followed by the instruction `this
means that a person will not be presumed to act with
criminal intention but the jury may find criminal
intention upon consideration of all circumstances
connected with the act for which the accused is
prosecuted,' a somewhat stronger argument might be
made that a reasonable juror could not have
understood the challenged language as shifting the
burden of persuasion to the defendant, cf.
Sandstrom, 442 U.S., at 517 ("[G]iven the lack of
qualifying instructions as to the legal effect of the
presumption, we cannot discount the possibility that
the jury may have interpreted the instruction" in an
unconstitutional manner). . . . Whether or not such
explanatory language might have been sufficient,
however, no such language is present in this jury
Francis, 471 U.S. at322-23 (emphasis in original). In Parsons's
case, the trial judge did use the words "this means that." The
issue remains, however, whether the language that followed the
"this means that" was sufficient to explain to the jury what the
first part of the charge meant. Regrettably, the Francis decision does not provide much
assistance in determining the sufficiency of any attempted
explanation since the Supreme Court did not resolve that issue
In Parsons's case, the judge's choice of words in the
"explanation" following "this means that" leads the Court to
question whether a reasonable juror would have understood that he
or she was not required to presume knowledge based upon
possession. The trial judge's "explanation" was a variation of
the New York pattern charge, the phrasing of which treats "infer"
and "presume" as synonyms. The Court notes that the suggested
explanatory phrase in Francis did not use "presume" and "infer"
as synonyms. In this Court's opinion, the use of the terms
"infer" and "presume" interchangeably is misguided because, in
either common or legal parlance, an "inference" and a
"presumption" have significantly different meanings.
For instance, according to Black's Law Dictionary ("Black's"),
an "inference" is defined as follows:
In the law of evidence, a truth or proposition drawn
from another which is supposed or admitted to be
true. A process of reasoning by which a fact or
proposition sought to be established is deduced as a
logical consequence from other facts, or a state of
facts, already proved or admitted. Inferences are
deductions or conclusions which with reason or common
sense lead the jury to draw from facts which have
been established by the evidence in the case. An
inference is a deduction of fact that may logically
and reasonably be drawn from another fact or group of
facts found or otherwise established in the action.
BLACK'S LAW DICTIONARY 700 (6th ed. 1968) (citations omitted)
Black's then defines "presume" as follows:
To assume beforehand. In a more technical sense, to
believe or accept upon probable evidence. See
Id. (emphasis supplied). "Presumption," in turn, is defined in
relevant part as follows: A presumption is a rule of law, statutory or
judicial, by which a finding of a basic fact gives
rise to existence of presumed fact, until presumption
. . .
A presumption is a rebuttable assumption of fact
resulting from a rule of law which requires such fact
to be assumed from another fact or group of facts
found or otherwise established in the action.
Id. (internal citations omitted) (emphasis supplied). As the
definitions given in Black's Law Dictionary clearly illustrate,
the terms "presume" and "infer" are not equivalent, and their
treatment as such presents a possibility of jury confusion. See
People v. Thomas, 50 N.Y.2d 467, 473 n.* [sic] (1980) ("In
law, the term `presumption', though sometimes carelessly employed
as a synonym for `inference', is a most consequential evidentiary
concept. In the absence of sufficient rebuttal evidence, a true
presumption requires the trier of fact to find that the `presumed
fact' exists."). The Supreme Court, however, has used the terms
interchangeably on occasion. See Ulster County, 442 U.S. at 157
("The most common evidentiary device is the entirely permissive
inference or presumption which allows but does not require
the trier of fact to infer the elemental fact from proof by the
prosecutor of the basic one and which places no burden of any
kind on the defendant."). In this Court's view, it is important
that the "nontechnical" meaning of "presume," ostensibly the one
which the average "reasonable juror" would employ in his or her
deliberations, is to "assume beforehand." Had the trial court
simply said, "this means that you may infer," the issue would be
more straightforward. But in light of the different meanings of
the two words, Parsons's argument focusing on the inclusion of
the word "presume" as a synonym for "infer" has some force.
2. Second sentence: "The fact that you may draw this inference
does not shift to the Defendant any burden of proof whatsoever."
It was proper for the court to state that the fact that the
jury could draw the inference did not shift the burden of proof
to the defendant. It would have been more helpful if the court
specifically had explained that there was no shifting of the
burden on the element of knowing possession.
3. Third sentence: "The burden of proof remains upon the
prosecution throughout the case."
In Francis, for example, the state relied on earlier portions
of the charge instructing the jurors that the defendant was
presumed innocent and that the prosecution was required to prove
every element of the offense beyond a reasonable doubt.
Francis, 471 U.S. at 319. However, as the Supreme Court
explained in Sandstrom and reiterated in Francis, "general
instructions on the State's burden of persuasion and the
defendant's presumption of innocence are not `rhetorically
inconsistent with a conclusive or burden-shifting presumption,'
because `[t]he jury could have interpreted the two sets of
instructions as indicating that the presumption was a means by
which proof beyond a reasonable doubt as to [the contested
element] could be satisfied.'" Francis, 471 U.S. at 319
(quoting Sandstrom, 442 U.S. at 518-19 n. 7). Thus, this
general instruction concerning the presumption of innocence and
the prosecution's burden of proof must be discounted. It has no
bearing on the Court's analysis of the meaning conveyed by the
charge as a whole.
In this Court's view, the interchangeable use of "presume" and
"infer" was significantly confusing, especially because it followed such strong presumption
language. The stated presumption followed by the "this means
that" ultimately presented two contradictory instructions to the
jury. The jury was told that the law presumes that possession is
knowing when the defendant has the drug on his person. The jury
was then told that this is an "inference" based upon the nature
of illegal drugs. Next, the jury was told that it could "presume"
or "infer" knowing possession based upon the evidence before it.
Lastly, the jury was told that the fact that it "may draw this
inference" did not shift the burden of proof to the defendant. To
"infer" and to "presume" are not the same thing, but the jury
essentially was informed that they are equivalent. We have no way
of knowing what meanings or connotations the jurors assigned to
"presume" or "infer." See Francis, 471 U.S. at 324 n. 8 ("If
such a reasonable possibility of an unconstitutional
understanding exists, `we have no way of knowing that [the
defendant] was not convicted on the basis of the unconstitutional
instruction. Sandstrom, 442 U.S. at 526. For this reason, it
has been settled law since Stromberg v. California,
283 U.S. 359 (1931), that where there exists a reasonable possibility that
the jury relied on an unconstitutional understanding of the law
in reaching a guilty verdict, that verdict must be set aside.").
Furthermore, the jury in Parsons's trial was not explicitly told
that it could reject the presumption. That is, the trial court
eliminated from its charge the language suggested in the New York
Pattern Criminal Jury Instructions that "the law permits, but
does not require" the jury to employ the presumption. Nor was the
jury informed that the defendant did not need to rebut the
presumption by offering evidence to the contrary. Therefore,
considering the charge as a whole, this Court finds that a
reasonable juror could have concluded that it was being
instructed to presume knowledge based upon possession and that
the defense was required to rebut the state's evidence as to
petitioner's possession of the drug. The Appellate Division's holding cannot be squared with the
constitutional principles articulated in Sandstrom and
Winship. The Court finds that the Appellate Division's failure
to recognize the constitutional infirmity in the instruction was
contrary to the teachings of Sandstrom, and that Parsons has
satisfied the requirements of 28 U.S.C. § 2254(d)(1). In the
alternative, the Court also determines that the Appellate
Division's conclusion was objectively unreasonable and therefore
represents an unreasonable application of clearly established
Supreme Court precedent under 28 U.S.C. § 2254(d)(2).
C. Harmless Error Analysis
Having found that the state court engaged in an unreasonable
application of established Supreme Court which resulted in
constitutional error inuring to Parsons, the Court now must
analyze whether such error was harmless. Howard,
406 F.3d at 122 ("If th[e] court finds that the state court engaged in an
unreasonable application of established law, resulting in
constitutional error, it must next consider whether such error
was harmless.") (citing Brecht v. Abrahamson, 507 U.S. 619,
629-30 (1993)). Sandstrom errors have been held to be "trial
errors" to which the harmless error rule applies. Rose v.
Clark, 478 U.S. 570 (1986) (holding harmless error analysis
appropriate for jury instruction that erroneously charged jury on
the element of malice); California v. Roy, 519 U.S. 2 (1996)
(holding that a jury instruction that omitted a statement
informing the jury that it must find that defendant had the
requisite criminal intent should be reviewed for harmless error).
When faced with a constitutional violation on direct appeal, a
court must reverse the judgment of the court below unless the
constitutional error is "harmless beyond a reasonable doubt."
Chapman v. California, 386 U.S. 18, 24 (1967). In Brecht,
507 U.S. at 637, however, the Supreme Court set forth a "less onerous" standard for evaluating,
on collateral review, the impact of a constitutional error.
Pursuant to Brecht, a federal court may grant habeas relief on
the basis of a constitutional error only if it determines that
the error had a "`substantial and injurious effect or influence
in determining the jury's verdict.'" Id. at 623 (quoting
Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Under
the Brecht standard, a petitioner should prevail when the trial
record is "so evenly balanced that a conscientious judge is in
grave doubt as to the harmlessness of the error." O'Neal v.
McAnnich, 513 U.S. 432, 436 (1995) (emphasis supplied). In other
words, if the reviewing court's mind is "in virtual equipoise as
to the harmlessness" of the error, it must conclude that the
error was harmful. Id. at 435.
The Second Circuit has reserved the question of which standard
of review should apply, in the wake of AEDPA, to the question of
whether a non-structural trial error challenged on habeas review
is harmless where, as here, the state court itself did not reach
the issue of harmlessness. Howard, 406 F.3d at 122 (citing
Benn v. Greiner, 402 F.3d 100, 105 (2d Cir. 2005); Gutierrez
v. McGinnis, 389 F.3d 300, 306-07 & n. 7 (2d Cir. 2004); Ryan
v. Miller, 303 F.3d 231, 245-46 (2d Cir. 2002)). As the circuit
court noted in Gutierrez, the Supreme Court, in dicta, has
applied the Brecht standard to such a case. Benn,
402 F.3d at 105 (citing Penry v. Johnson, 532 U.S. 782, 795-96 (2001)).
According to the Second Circuit, another possibility is that,
even in the absence of a state court adjudication on
harmlessness, the reviewing court should inquire whether the
state court's affirmance of the conviction is contrary to, or an
unreasonable application of, the Chapman standard.
402 F.3d at 105. In Benn, the Second Circuit declined to resolve the issue
because it found that the result was the same under either
standard. Id. Thus, it remains an open question as to what harmlessness
standard applies on habeas review where, as here, the state court
has not engaged in a harmless error analysis. After reviewing the
transcript of the proceedings below, the Court is of the opinion
that, under either standard, the trial judge's erroneous jury
instruction did not have a "substantial and injurious effect or
influence on the verdict."
In the present case, Jessie, the buyer, stated that although he
never purchased cocaine from Parsons by himself, Parsons always
was present during Jessie's numerous drug transactions with Gray.
Zuluaga also testified that Parsons had been involved in his drug
dealings with Gray in the past. In Parsons's favor was the
testimony was that the package of cocaine he was accused of
possessing was entirely wrapped in plastic and tape and that the
cocaine within was not visible. Furthermore, none of the
wire-tapped phone conversations implicated Parsons in any
explicit "drug talk." However, Jessie testified that on day in
question, he got into Gray's car and told Gray that he "wanted
the coke." Parsons, who was sitting in the front seat of the car,
could not have helped but to hear that statement. The jury
reasonably could have inferred that, when Parsons got out of the
car and went into the garage, he knew he was retrieving a package
of "coke" so that Gray could complete his drug sale to Jessie.
Although Parsons apparently was of limited intelligence, the
testimony was not that he was so mentally deficient that he would
not have understood that he was taking part in a drug sale.
Rather, the proof was that Parsons lived independently with his
girlfriend and daughter, possessed a driver's license, and had
graduated from high school.
Thus, in light of the evidence that Parsons was aware that he
was participating in the sale of cocaine, the Court must
determine that it was unlikely that the incorrect charge had "substantial and injurious effect," Brecht, 507 U.S. at 623, on
the jury's determination of guilt. In other words, the record is
not so evenly balanced that the Court finds itself in "grave
doubt," O'Neal, 513 U.S. at 436, as to the harmlessness of the
error. Accordingly, the Court must conclude that Parsons's
conviction was not obtained in violation of his constitutional
due process rights.
For the reasons set forth above, Sam Parsons's petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and
the petition is dismissed. Because Parsons has failed to make a
substantial showing of a denial of a constitutional right, I
decline to issue a certificate of appealability. See
28 U.S.C. § 2253. .
IT IS SO ORDERED