No. 158, Docket 77-2059.United States Court of Appeals, Second Circuit.Argued September 15, 1977.
Decided November 29, 1977.
Page 999
Eileen F. Shapiro, Asst. Atty. Gen., New York City (Louis J. Lefkowitz, Atty. Gen., of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., Lillian Z.
Cohen, Asst. Atty. Gen., New York City, of counsel), for respondents.
Michael D. Young, New York City (Goldberger, Feldman
Breitbart, New York City, of counsel), for petitioners.
Appeal from the United States District Court for the Southern District of New York.
Before MANSFIELD and TIMBERS, Circuit Judges, and DOOLING, District Judge.[*]
MANSFIELD, Circuit Judge:
[1] The principal issue in this case is the constitutionality of a New York statute which makes the “presence in an automobile . . . of any firearm . . . presumptive evidence of its possession by all persons occupying such automobile at the time such weapon . . . is found, except under the following circumstances: (a) if such weapon . . . is found upon the person of one of the occupants therein. . . .”[1] Judge Richard Owen of the Southern District of New York granted appellees’ application as state prisoners for a writ of habeas corpus on the ground that this statutory presumption was unconstitutional as applied in their state trial for felonious possession of a loaded firearm, N.Y.Penal Law § 265.05(2) (McKinney’s 1967) (now found at § 265.02(4) (McKinney’s 1976-77 Supp.)). Because we conclude that the presumption is unconstitutional on its face, we affirm. [2] On March 28, 1973, an automobile driven by appellee Lemmons, in which appelleesPage 1000
Allen, Hardrick and one “Jane Doe”[2] were passengers, was stopped by State Police for speeding on the New York State Thruway. When the car was stopped Lemmons was in the driver’s seat, Jane Doe in the right front seat, and Allen and Hardrick in the back seat. After Lemmons had left the car and had been arrested for reasons not relevant here,[3] one of the police officers returned to the car, looked through the front window on the passenger’s (Doe’s) side, and saw part of a handgun protruding from a ladies’ handbag resting on the floor of the car next to the right front door. A search of the handbag revealed a loaded .45 automatic pistol and a loaded .38 revolver.[4]
Appellees and Doe were indicted by the State of New York, tried before a jury in the Ulster County court and convicted of felonious possession of these two weapons in violation of N.Y.Penal Law § 265.05(2). At trial the prosecution relied entirely on the statutory presumption to establish the defendants’ dominion or control over the guns,[5]
introducing no evidence other than appellees’ presence in the car in which the handbag containing the guns was also present to demonstrate possession.
Page 1001
assurance that the presumed fact is more likely than not to flow from the proven fact upon which it is made to defend.” (Defendants’ brief before App.Div., p. 23, and brief before Court of Appeals, p. 20.) Moreover, Judges Wachtler and Fuchsberg maintained in dissent that the presumption could not constitutionally be applied in this case.[6] 40 N.Y.2d at 513-16, 387 N.Y.S.2d 97, 354 N.E.2d 836.
[5] Appellees thereafter filed their petition for a writ of habeas corpus in the Southern District of New York, claiming that New York’s presumption was unconstitutional both on its face and as applied to their case and that the failure to charge the jury as to the possible applicability of the “upon the person” exception constituted a denial of due process.[7] Judge Owen issued the writ, holding that the statutory presumption was unconstitutional as applied.[8] [6] On appeal, the State argues (1) that the issue of the presumption’s constitutionality on its face is not properly before this court because of the appellees’ alleged failure to exhaust state remedies with regard to this claim, (2) that the presumption is in any event facially valid, and (3) that Judge Owen’s holding that the statute was unconstitutional as applied was an improper ruling on an issue of state law. Because of the grounds of our disposition, we need deal only with the first two contentions.[7] DISCUSSION
[8] An applicant for federal habeas relief must first exhaust available State remedies before filing his application. 28 U.S.C. § 2254(b)-(c) Fay v. Noia, 372 U.S. 391, 434-35, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). However, “petitioners are not required to file `repetitious applications’ in the state courts.” Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 409, 30 L.Ed.2d 418 (1971) (per curiam); Brown v. Allen, 344 U.S. 443, 448-49 n. 3, 73 S.Ct. 397, 97 L.Ed. 469 (1953). “Once the federal claim has been fairly presented to the state courts, the exhaustion requirement is satisfied.” Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). Nor is a habeas petitioner required to pursue available state remedies for collateral attack if he has presented his federal claims to the state courts on direct appeal. United States ex rel. Newsome v. Malcolm, 492 F.2d 1166, 1169 n. 4 (2d Cir. 1974), affd.
Page 1002
sub nom. Lefkowitz v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975).
[9] In this case appellees have consistently argued, both at their state trial and on appeal, that the presumption was unconstitutional as applied to them.[9] However, appellants urge that appellees’ contention here that the presumption is unconstitutional on its face represents a “different” claim that was not presented in the state courts. The state remedies, the argument goes, were therefore not exhausted. However, as the Supreme Court pointed out in Picard v. Connor, in determining whether a claim raised in habeas proceedings is substantially the same as that previously presented to the courts of a state,[10] Applying this principle to the present case, we conclude that the “ultimate question for disposition” posed by appellees’ argument that the presumption is unconstitutional on its face is not substantially different from that presented by their claim in the state courts to the effect that the statute is unconstitutional as applied. The fundamental question in either case is whether there exists a sufficient empirical connection between the “proved fact,” here the presence in a car of a gun, and the “presumed fact,” here its possession by all occupants of the car. Compare Leary v. United States, 395 U.S. 6, 29-54, 89 S.Ct. 1532 (1969) (facial constitutionality of a presumption), with Turner v. United States, 396 U.S. 398, 418-19 n. 39, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970) (constitutionality as applied). While the factual inquiry may be somewhat more constrained in an “as applied” adjudication, see p. 1010 infra, New York certainly cannot complain that its courts have not had the “first opportunity” to rule on the legislative facts underlying its presumption.[10]“Obviously, there are instances in which `the ultimate question for disposition’ . . . will be the same despite variations in the legal theory or factual allegations urged in its support. A ready example is a challenge to a confession predicated upon psychological as well as physical coercion. . . . We simply hold that the substance of a federal habeas corpus claim must first be presented to the state courts.” (Emphasis added.) 404 U.S. at 275, 277-78, 92 S.Ct. at 513.
Page 1003
[11] Our conclusion that the issue of the presumption’s constitutionality has been “fairly presented to the state courts” is wholly consistent with the equitable nature of the exhaustion requirement. This prerequisite to the writ should not be construed as the functional equivalent of the formalities associated with common law pleading. “The exhaustion doctrine is a judicially crafted instrument which reflects a careful balance between important interests of federalism and the need to preserve the writ of habeas corpus as a `swift and imperative remedy in all cases of illegal restraint or confinement.'”Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 490, 93 S.Ct. 1123, 1127, 35 L.Ed.2d 443 (1973). “The exhaustion requirement is merely an accommodation of our federal system designed to give the State an initial `opportunity to pass upon and correct’ alleged violations of its prisoners’ federal rights.” Wilwording v. Swenson, supra, 404 U.S. at 250, 92 S.Ct. at 408. In this case, New York has had an “initial opportunity” to rule on the rationality of the connection between presence in a car with a gun and possession of it; to require more would not serve the interests of federalism but would undermine habeas corpus as a “swift and imperative remedy.” [12] Moreover, it is readily apparent that an application for state collateral review in the present case would be a wholly futile exercise. First of all, since the New York Court of Appeals has refused to declare the presumption unconstitutional as applied to a situation in which weapons, although in the same car as the occupants, were in the handbag of another person (Doe), it is inconceivable that that court would reverse its field to hold that the statutory presumption, which may be applied in circumstances less favorable to the occupants than those present here, is nevertheless facially unconstitutional. Secondly, i Stubbs v. Smith, 533 F.2d 64 (2d Cir. 1976), although we found it unnecessary to pass upon the merits of a habeas petitioner’s constitutional challenge to the very presumption before us, we declined to require the petitioner to exhaust state court remedies on that issue, even though he had not previously raised it, since the New York Court of Appeals had already rejected the substance of the petitioner’s legal position in previous cases, see People v. Russo, 303 N.Y. 673, 102 N.E.2d 834 (1951) People v. Leyva, 38 N.Y.2d 160, 341 N.E.2d 546, 379 N.Y.S.2d 30 (1975), and it had given no indication at the time of his federal petition that it would reconsider its previous holdings. 533 F.2d at 69.[11] To require exhaustion in these circumstances would serve no policy associated with federalism, but would frustrate appellees’ efforts to recover their liberty promptly. [13] For closely analogous reasons, we also conclude that appellees have not forfeited the right to argue the facial unconstitutionalityPage 1004
of the presumption before the federal courts. See generall Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). They have persistently pressed a substantially equivalent position before three different courts in New York, and it would be unreasonable for us to conclude that, although they need not pursue further state remedies because they have already confronted the state courts with the “ultimate question for disposition before us,” their efforts were not sufficient to avoid a forfeiture of federal relief. Wainwright,, which represents the Supreme Court’s latest word on procedural forfeitures in habeas cases, although severely limiting the applicability of the Fay v. Noia “deliberate bypass” standard, is consistent with our decision on this issue. In Wainwright
the petitioner sought habeas relief on the ground that a confession read into evidence at his state court trial had been obtained in violation of his Miranda rights. However, he had failed to object to its admission at the trial. The Supreme Court held that the failure to comply with Florida’s “contemporaneous objection” rule barred federal habeas corpus review of hi Miranda claim, absent any showing of “cause” for the procedural default and “prejudice” resulting from it. The Court explained that its new standard for procedural forfeitures was justified because Florida’s rule “deserves greater respect than Fay gives it, both for the fact that it is employed by a coordinate jurisdiction within the federal system and for the many interests which it serves in its own right” — chiefly the advantages that flow from informing a trial judge of the possibility of constitutional error at a time when action can be taken to correct it. 433 U.S. at 88, 97 S.Ct. at 2507.
“For a transfer of the burden, experience must teach that the evidence held to be inculpatory has at least a sinister significance . . . or if this at times be lacking, there must be in any event a manifest disparity in convenience of proof and opportunity for knowledge, as, for instance, where a general prohibition is applicable to every one who is unable to bring himself within the range of an exception.” 291 U.S. at 90-91, 54 S.Ct. at 285.
Page 1005
[17] However, in Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943), decided seven years after the enactment of the New York presumption here at issue, the Court, in nullifying a statutory presumption to the effect that possession of a firearm shall be presumptive evidence of its transportation or receipt in interstate commerce, shifted its position on the permissible justifications for presumptions:[18] Subsequent cases echo Tot and leave no doubt that a state may not erect a presumption simply because evidence of a fact necessary for a criminal conviction is more likely to be available to a defendant than to the prosecution. Leary v. United States, 395 U.S. 6, 32-34, 44-45, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969); Turner v. United States, 396 U.S. 398, 408 n. 8, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970); Barnes v. United States, 412 U.S. 837, 846 n. 11, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973).[13]“[T]he due process clauses of the Fifth and Fourteenth Amendments set limits upon the power of Congress or that of a state legislature to make the proof of one fact or group of facts evidence of the existence of the ultimate fact on which guilt is predicated. The question is whether, in this instance, the Act transgresses those limits.
“The Government seems to argue that there are two alternative tests of the validity of a presumption created by statute. The first is that there be a rational connection between the facts proved and the fact presumed; the second that of comparative convenience of producing evidence of the ultimate fact. We are of opinion that these are not independent tests but that the first is controlling and the second but a corollary. Under our decisions, a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from proof of the other is arbitrary because of lack of connection between the two in common experience.
. . .
“Nor can the fact that the defendant has the better means of information, standing alone, justify the creation of such a presumption. In every criminal case the defendant has at least an equal familiarity with the facts and in most a greater familiarity with them than the prosecution. It might, therefore, be argued that to place upon all defendants in criminal cases the burden of going forward with the evidence would be proper. But the argument proves too much. If it were sound, the legislature might validly command that the finding of an indictment, or mere proof of the identity of the accused, should create a presumption of the existence of all the facts essential to guilt. This is not permissible. . . .
“Doubtless the defendants in these cases knew better than anyone else whether they acquired the firearms or ammunition in interstate commerce. It would, therefore, be a convenience to the Government to rely upon the presumption and cast on the defendants the burden of coming forward with evidence to rebut it. But, as we have shown, it is not permissible thus to shift the burden by arbitrarily making one fact, which has no relevance to guilt of the offense, the occasion of casting on the defendant the obligation of exculpation. The argument from convenience is admissible only where the inference is a permissible one, where the defendant has more convenient access to the proof, and where requiring him to go forward with proof will not subject him to unfairness or hardship.” 319 U.S. 467-68, 469-70, 63 S.Ct. 1245.
Page 1006
[19] Beginning with Tot, therefore, the Supreme Court has emphasized that the constitutionality of a statutory presumption turns on the substantiality of the relation between the fact activating the presumption (the proved fact) and the presumed fact. In United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965), and United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965), the Court applied without much elaboration the Tot test, which required simply that there be “no rational connection between the fact proved and the ultimate fact presumed,” to two federal statutes that “deemed” presence near a still to be sufficient evidence of crimes involving illegal distilling operations. In Gainey the Court found the requisite “rational connection” between presence near a still and the broad substantive offense of “carrying on the business of a distiller.” In Romano, by contrast, the Court noted that the crime of possession was a much narrower offense than that at issue in Gainey, and concluded that the relation between presence near and possession of a still was “too tenuous to permit a reasonable inference of guilt — `the inference of the one from proof of the other is arbitrary’ . . . Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241.” 382 U.S. at 141, 86 S.Ct. at 282. [20] In Leary v. United States, supra, the Court undertook to clarify the meaning of the Tot rational connection standard. After reviewing its cases, the Court summarized their teachings as follows:[21] Applying this standard, the Court declared invalid a statutory presumption, 21 U.S.C. § 176a, authorizing the jury to infer from a person’s possession of marijuana that the defendant had knowledge of its unlawful importation into the United States.[14] [22] Leary’s reasoning elucidates the judicial inquiry that must be undertaken when a presumption is challenged as unconstitutional. The Court noted that “the congressional determination favoring the particular presumption must, of course, weigh heavily,” 395 U.S. at 36, 89 S.Ct. at 1548, but it engaged in a lengthy independent discussion of the documentary evidence bearing on the sources of marijuana consumed in this country — and their relative importance — and the likelihood that a possessor of that drug would be aware of its origins, id. at 37-54, 89 S.Ct. 1532. The clear implication was that appellate courts may not simply accept on faith a legislative assertion that proved and presumed facts are related; rather, it must satisfy itself, with facts developed through judicial notice if necessary, see United States v. Gonzalez, 442 F.2d 698, 707“The upshot of Tot, Gainey, and Romano is, we think, that a criminal statutory presumption must be regarded as `irrational’ or `arbitrary,’ and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.” 395 U.S. at 36, 89 S.Ct. at 1548.
n. 4 (2d Cir. 1971) (en banc), cert. denied sub nom. Ovalle v. United States, 404 U.S. 845, 92 S.Ct. 146, 30 L.Ed.2d 81 (1971), of a presumption’s empirical validity. [23] Finally, in Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970), the Court applied the analysis unveiled in Leary to a variety of similar statutory presumptions involving heroin and cocaine. The first principle o Leary was reiterated: A presumption must be declared unconstitutional “unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from
Page 1007
the proved fact,” 396 U.S. at 405, 90 S.Ct. at 646.[15]
[24] Under the New York statutory presumption at issue in the present case the presence of a gun in a car (the proved fact) constitutes “presumptive evidence” of its possession by all persons occupying the car (the presumed fact). N.Y.Penal Law § 10.00(8) defines the term “Possess” as meaning “to have physical possession or otherwise to exercise dominion or control over tangible property,”[16] and this definition has been restated in cases involving firearms as requiring that the gun be “within the immediate control and reach of the accused, and where it is available for unlawful use if he so desires.” E. g., People v. Lemmons, 40 N.Y.2d 505, 509-10, 387 N.Y.S.2d 97, 100, 354 N.E.2d 836 (1976); People v. Lo Turco, 256 App.Div. 1098, 11 N.Y.S.2d 644, affd., 280 N.Y. 844, 21 N.E.2d 888 (1939). [25] Applying the standards established by the Supreme Court, this statutory presumption must be declared unconstitutional on its face unless it can be said with substantial assurance that an inference of possession (as thus defined) of a gun by a car’s occupants is more likely than not to flow from the gun’s presence in the vehicle. We fail to find any rational basis for such an inference, either in logic or experience. There is nothing about the simultaneous presence of occupants and a gun in an automobile that makes it more likely than not that the former control the latter or that they even know of its presence. The presumption obviously sweeps within its compass (1) many occupants who may not know they are riding with a gun (which may be out of their sight), and (2) many who may be aware of the presence of the gun but not permitted access to it. Nothing about a gun, which may be only a few inches in length (e. g., a Baretta or Derringer) and concealed under a seat, in a glove compartment or beyond the reach of all but one of the car’s occupants, assures that its presence is known to occupants who may be hitchhikers or other casual passengers, much less that they have any dominion or control over it.[17] Although New York has created exceptions to the presumption for three situations in which it would be especially anomalous to infer possession — where the gun is found upon the person of one of the occupants, where the weapon is found in an automobile being operated for hire by a licensed driver, and where one of the occupants has a license to carry the weapon — the presumption remains irrational in that class of cases in which it does apply. [26] Indeed, this case is strikingly similar to United States v. Romano, supra, in which the Court struck down a federal presumption deeming presence near a still sufficient evidence to sustain a conviction for possession, custody or control of that still. See 26 U.S.C. § 5601(a)(1), (b) (1970) (since amended). Just as the Romano Court noted that presence near a still is not a wholly innocent circumstance, we would agree that the presence of a gun in a car may cast some suspicion on all of its occupants. Even so, Romano said[27] By the same token, in this case presence would be relevant and admissible evidence in a trial on a firearm possession charge. But absent some additional showing, its connection with possession is too tenuous to permit a reasonable inference of guilt. [28] Although we are cognizant of the sensitive nature of our function in this case, that of reviewing the constitutional validity of a state statute, and of the deference ordinarily due to legislative judgments regarding the connection between proven and presumed facts, see p. 1006, supra, we find the State’s efforts to justify this statute to be without merit. Although the State asserts that this presumption meets the Leary test, the only background for this statute to which we have been referred indicates that it was passed to facilitate prosecution of the alleged crime by forcing occupants of a car to come forward with evidence regarding possession and not because of any empirical association between the presumed fact and the proved fact. For example, the New York Court of Appeals’ opinion in this case remarked,“Presence tells us only that the defendant was there and very likely played a part in the illicit scheme. . . Presence is relevant and admissible evidence in a trial on a possession charge; but absent some showing of the defendant’s function at the still, its connection with possession is too tenuous to permit a reasonable inference of guilt — `the inference of the one from proof of the other is arbitrary.
Page 1008
. . .’ Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 124.” 382 U.S. at 141, 86 S.Ct. at 282.
[29] But the notion that a presumption may be created simply because defendants may have superior access to relevant evidence was abandoned in Tot and has never been revived. The New York Court’s opinion does not assert that possession of a gun and occupancy of a car containing it are closely linked; on the contrary, the opinion notes that “traditional analysis precluded a finding that any of several occupants of the automobile was sufficiently close to the weapon as to be in actual possession of it.” Id. (emphasis added). In short, nothing in the Lemmons“To resolve the issue, we first look to the history underlying the statute. . . Under traditional rules, developed in a motorless age, criminal possession of a weapon was not established unless the weapon was `within the immediate control and reach of the accused, and where it is available for unlawful use if he so desires’. (People v. Persce, 204 N.Y. 397, 402, 97 N.E. 877, 878.) Difficulties arose when a weapon was found secreted under the seat, in the glove compartment or in the trunk of an occupied automobile. Traditional analysis precluded a finding that any of several occupants of the automobile was sufficiently close to the weapon as to be in actual possession of it. For example, in one 1930 case, the police intercepted an automobile and found a revolver under the driver’s seat. The court, in applying the relevant standards, was compelled to release all defendants for failure to sufficiently establish possession. (People ex rel. De Feo v. Warden, 136 Misc. 836, 241 N.Y.S. 63.) The court remarked, however, that the case and other similar situations `establishes the urgent need for legislation making the presence of a forbidden firearm in an automobile or other vehicle presumptive evidence of its possession by all the occupants thereof. Such an amendment would require the occupants of an automobile to explain the presence of the firearm and enable the court to fix the criminal responsibility for its possession.’ (136 Misc. 836, 241 N.Y.S. 63.) In 1936, the Legislature took heed of this suggestion and enacted section 1898-a of the former Penal Law providing that all persons in an automobile at the time a weapon is found in the vehicle are presumed to be in illegal possession of the weapon. (L. 1936, ch. 390.)” 40 N.Y.2d at 509-11, 387 N.Y.S.2d at 100, 354 N.E.2d at 839.
decision or others upholding the presumption demonstrates that the state courts or legislature have ever attempted to justify this firearm presumption as Leary requires. See also People v. Russo, 278 App.Div. 98, 103 N.Y.S.2d 603, affd., 303 N.Y. 673, 102 N.E.2d 834 (1951).[18]
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[30] Appellant’s reliance on People v. Terra, 303 N.Y. 332, 102 N.E.2d 576 (1951), app. dismissed, 342 U.S. 938, 72 S.Ct. 561, 96 L.Ed. 698 (1952), in which the Supreme Court dismissed for lack of a substantial federal question a case in which a somewhat similar presumption — making the presence in a room of a machine gun presumptive evidence of its possession by all occupants of the room — had been upheld by the New York Court of Appeals, is misplaced. Apart from the fact that the Supreme Court’s disposition in Terra predated Gainey, Romano, Leary, an Turner, the case is clearly distinguishable.[19] In Terra,the New York court defined “persons who occupy a room” very narrowly, as encompassing only individuals “who either reside in it or use it in the conduct and operation of a business or other venture.” 303 N.Y. at 335, 102 N.E.2d 576, 578. With the class of person to whom the presumption could apply so circumscribed, th Terra court could rationally conclude that such people would be more likely than not to know what was in a room and enjoy sole or joint possession of its contents. By contrast, in this case, the term “persons occupying” a car extends indiscriminately to casual passengers and others with no long-term association with it. Thus, the similarity between the presumption involved in Terra
and the one before us is more verbal than real. [31] Finally, contrary to the State’s assertion, it makes no difference that the presumption before us is rebuttable. Tot, Gainey, Romano, Leary, and Turner all involved rebuttable presumptions. The evil of the presumptions that the Supreme Court has struck down has not been that they could not be dispelled, but rather that they forced defendants to meet inferences that could not rationally be drawn from the facts proved. [32] For these reasons we hold that, because it cannot be said with substantial assurance that the presumed fact (possession of a gun by occupants of an automobile) is more likely than not to flow from the proven fact (presence of the gun in the car) the New York presumption making the latter “presumptive evidence” of the former is unconstitutional on its face. [33] For several reasons we consider it inadvisable to limit our decision, as did the district court, to a holding that the statutory presumption at issue is unconstitutional as applied to the facts of this case. At first blush such an approach has some appeal because it would appear to enable us to avoid possible exacerbation of federal-state relations arising out of our nullification of a state statute by focusing attention narrowly on a set of specific facts, Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844, 844-45 (1970), and requiring that we determine only whether the particular conduct before us is immune and not whether the statute could lawfully be applied to other hypothetical circumstances. [34] Where the empirical connection between the proved and presumed facts turns on the presence or absence of one or two clearly identifiable circumstances which were left unmentioned by the legislature, e. g., the type and amount of a drug possessed by a defendant, see Turner v. United States, 396 U.S. 398, 415-18, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970), we have not hesitated to limit ourselves to an “as applied” holding, upholding the validity of such a statute where
Page 1010
the condition is met, see, e.g., United States v. Gonzalez, 442 F.2d 698 (2d Cir.) (en banc) cert. denied, sub nom. Ovalle v. United States, 404 U.S. 845, 92 S.Ct. 146, 30 L.Ed.2d 81 (1971) (over 1 kilogram of cocaine). But when the empirical relationship between proved and presumed facts turns, as in the present case, on a variety of circumstances and on the largely unpredictable combinations in which they occur, the “as applied” approach resembles more a holding as to the sufficiency of the evidence than the “more likely than not” determination required by Leary.[20] Such a particularized analysis of the applicability of a presumption would involve us in the nature and quality of the evidence required to uphold a conviction under state law — an issue which we normally eschew on consideration of habeas petitions. E.g., Terry v. Henderson, 462 F.2d 1125, 1131 (2d Cir. 1972); United States ex rel. Griffin v. Martin, 409 F.2d 1300, 1302 (2d Cir. 1969); United States ex rel. Mintzer v. Dros, 403 F.2d 42 (2d Cir. 1967), cert. denied, 390 U.S. 1044, 88 S.Ct. 1643, 20 L.Ed.2d 305 (1968).[21]
[35] With these considerations in mind we believe that it would be inappropriate for us in effect to determine whether a more narrowly drawn New York presumption, limited to a more restricted class of cases than that delineated by the state legislature, might be upheld and, if so, whether the present case would fall inside or outside of the more confined area. Absent direct evidence, an inference of joint possession on the part of occupants depends on many variables, including the number of occupants of the car, the nature of the relationships between them, their ownership or past use of the automobile, their familiarity with it, the size of the vehicle and the size, location and visibility of the gun. The weight to be given to evidence of one or more of many relevant factors, moreover, would turn on the credibility extended to the proof. While we might agree with the district court in this case that the statutory presumption is unconstitutional as applied to the three petitioners, in view of the evidence that the guns (one concealed and one partially exposed) were in Doe’s handbag resting on the floor between her and the right front door, we would not want to hypothesize as to which was the pivotal circumstance — the location and ownership of the bag, the position of the bag, the partial exposure of one of the guns or the number of the occupants. The fruitlessness of this approach, which bears all the earmarks of a review of evidence for sufficiency, is readily apparent. In effect the validity of the presumption would be upheld only in instances where the evidence would, independent of the statute, support an inference of possession. For this reason there would be no point in an attempt to save the statutory presumption in part by adding conditions which neither the New York legislature nor the New York Court of Appeals have chosen to supply.Page 1011
[36] Accordingly we hold that New York’s presumption lacks the requisite empirical connection between proved and presumed facts in the class of cases to which the legislature made it applicable. As a result, appellees were denied a fair trial when the jury was charged that they could rely on the presumption in finding possession. [37] The issuance of the writs of habeas corpus by the district court is affirmed.“3. The presence in an automobile, other than a stolen one or a public omnibus, of any firearm, defaced firearm, silencer, explosive or incendiary bomb, bombshell, gravity knife, switchblade knife, dagger, dirk, stiletto, billy, blackjack, metal knuckles, chuka stick, sandbag, sandclub or slungshot is presumptive evidence of its possession by all persons occupying such automobile at the time such weapon, instrument or appliance is found, except under the following circumstances: (a) if such weapon, instrument or appliance is found upon the person of one of the occupants therein; (b) if such weapon, instrument or appliance is found in an automobile which is being operated for hire by a duly licensed driver in the due, lawful and proper pursuit of his trade, then such presumption shall not apply to the driver; or (c) if the weapon so found is a pistol or revolver and one of the occupants, not present under duress, has in his possession a valid license to have and carry concealed the same.”
The only difference between this provision and the one that was applicable during the appellees’ trial is the addition of chuka sticks to the list of weapons to which the presumption applies.
with the opportunity to rule on the issues.”); see United States v. Fay, 333 F.2d 815 (2d Cir. 1964).
“Second, if the presumption is applicable here, then it is unconstitutional as applied.
“In Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), the Supreme Court held that a presumption must be regarded as `irrational’ or `arbitrary,’ and hence unconstitutional, unless it can be said with substantial assurance that the presumed fact is more likely than not to flow from the proven fact upon which it is made to depend. Id. at 36, 89 S.Ct. 1532. . . .
“Assuming that the presumption is constitutional on its face, (People v. De Leon, 32 N.Y.2d 944, 347 N.Y.S.2d 203, 300 N.E.2d 734 (1973), it is clearly unconstitutional as applied. There can be no `substantial assurance’ that a defendant in a car is more likely than not to know what is on the person of other occupants of the car. . . .
“In conclusion, it is apparent that the statutory presumption set out in § 265.15 cannot apply to those who were merely occupants of this car. This is so both statutorily and constitutionally. . . . .”
We note that even though these papers do not explicitly argue the facial constitutionality of the presumption, the state was uncertain during oral argument as to whether the issue had been raised. However, because habeas corpus petitioners bear the burden of demonstrating that they have exhausted state remedies, e. g., Baldwin v. Lewis, 442 F.2d 29, 35 (7th Cir. 1971); Bond v. Oklahoma, 546 F.2d 1369, 1377 (10th Cir. 1976), we will assume that the issue was not pressed apart from the appellees’ contentions regarding the presumption’s constitutionality as applied.
Such a motion to vacate sentence must also be denied if the trial court finds that “the ground or issue raised upon the motion was previously determined on the merits upon an appeal from the judgment. . . .” N.Y. Crim.Proc.L. § 440.10(2)(a). If we were to require further recourse to state proceedings, and the state trial court were to find (as would not be unlikely) that the New York Court of Appeals had implicitly disposed of the issue of facial validity when it found the presumption constitutional as applied, the irony would be apparent. State prisoners who by hypothesis, had been told by us that they had failed to present a claim to the state courts would be informed by the state that their claim had already been determined on the merits.
even though a key to the trunk was never recovered from any of them. The jury acquitted all of the defendants on these counts.
dissented from the New York court’s decision in this case.
in deciding the validity of New York’s statute on its face. These cases establish that this mode of adjudication is not limited to situations in which First Amendment values are implicated.
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may be remedied when and if it occurs, in which event I would be willing to do so on the basis of Judge Mansfield’s thoughtful analysis of the constitutionality issue as set forth above in the majority opinion.