Cosby v. Jones

Decision Date16 August 1982
Docket NumberNo. 81-7562,81-7562
Citation682 F.2d 1373
CourtU.S. Court of Appeals — Eleventh Circuit
PartiesElijah "Tootie Pie" COSBY, Jr., Plaintiff-Appellant, v. Tom JONES, Warden of the Walker County Correctional Institute, Defendant-Appellee.

Word, Cook & Word, Gerald P. Word, Carrollton, Ga., for plaintiff-appellant.

Michael J. Bowers, Atty. Gen., John C. Walden, Sr., Asst. Atty. Gen., Janice G. Hildenbrand, Asst. Atty. Gen., Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before GODBOLD, Chief Judge, ANDERSON, Circuit Judge, and HOFFMAN *, District Judge.

GODBOLD, Chief Judge:

Cosby appeals from the denial of his petition for writ of habeas corpus. We reverse and remand with directions to grant relief.

I. Facts

Petitioner, Elijah "Tootie Pie" Cosby, is presently serving a 20-year sentence under a 1979 Georgia burglary conviction. He challenges this conviction on the ground that there was insufficient evidence to constitutionally support the conviction, under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

An apartment in Carrollton, Georgia was burglarized December 10, 1978. Cosby lived in the same apartment complex as the victim. A camera and zoom lens, and a stereo, were taken. Some time between December 11 and 13 (inclusive) Cosby pawned the camera and lens. 1 Cosby was arrested. He told a Carrollton police detective that he bought the camera and lens for $40 from a Bobby Williamson. There is conflicting evidence as to two details of this alleged transaction. First, the police detective testified that Cosby told him the purchase was made in Villa Rica, 2 whereas Cosby testified that he bought the camera from Williamson in Carrollton and that he told the detective only that Williamson lived in Villa Rica. Second, based on the pawnbroker's uncertain testimony as to when the camera might have been pawned, see note 1 supra, the asserted purchase could have been made on December 11, but Cosby testified he bought the camera December 12 and pawned it a day or two later. Also, the detective made a limited but unsuccessful search for Williamson in Villa Rica, and Cosby did not procure Williamson's appearance at the trial.

Otherwise Cosby's testimony was uncontradicted and in fact was corroborated. Cosby testified that Williamson and a companion, both black males, drove up to the King Street Pool Room in Carrollton where Cosby was standing outside. Williamson called Cosby over to the car and offered to sell him the camera for $40. Cosby had only a $50 bill and Williamson had no change, so Cosby got change from an acquaintance, Charlie Hammett, who lives next door to the pool room, and then Cosby bought the camera. Charlie Hammett testified that some time before Christmas while he was talking with Cosby outside of the pool room, a car with two black men drove up and the driver motioned for Cosby. Cosby went over and spoke with them briefly and returned to ask Hammett to change a $50 bill. Hammett gave him two $20 bills and a ten, and Cosby went back to the car and then walked away with what appeared to be a camera resembling the one stolen.

Cosby also presented at trial an alibi that he was at a party in Rome, Georgia 3 the day of the robbery and that he did not return to Carrollton until December 11 or 12. 4 Several witnesses corroborated this alibi, but their testimony was inconsistent as to the number and identity of persons at the party.

Cosby moved for a directed verdict on the ground that, in the light of his uncontradicted version of how he obtained the camera, the circumstantial evidence of recent possession of the camera after the burglary was not sufficient to carry the state's burden of proof. The court denied this motion. In its instruction to the jury the court charged that, if a burglary has been committed, Georgia law permits the inference that a person in recent, unexplained possession of the goods stolen is the one who committed the burglary. See Williamson v. State, 248 Ga. 47, 281 S.E.2d 512 (1981). The court told the jury that recent possession is one circumstance along with all the other evidence in the case from which the jury may infer guilt if it should see fit, but that the inference is not a conclusive one and that the jury may choose to believe the defendant's explanation for possession of the goods. 5

The jury convicted Cosby and he was sentenced to 20 years imprisonment.

II. Exhaustion

Cosby appealed his conviction to the Georgia Court of Appeals, alleging that the evidence was insufficient to support the verdict. The court rejected this challenge, Cosby v. State, 151 Ga.App. 676, 261 S.E.2d 424, 425 (1979), and the state concedes that Cosby's sufficiency argument has been exhausted. 6

The state contends, however, that Cosby has raised a second claim, not exhausted, concerning the constitutionality of the inference of burglary that Georgia allows from recent possession of stolen goods, and therefore this case must be dismissed under Rose v. Lundy, --- U.S. ----, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), which holds that habeas petitions stating mixed exhausted and unexhausted claims cannot be considered by the district court but must be dismissed to allow the petitioner to either exhaust all claims or to bring only exhausted claims.

A. Background

To address the Rose v. Lundy contention we must make some prefatory explanation of the law of the constitutionality of presumptions and inferences. In Ulster County Court v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), the Supreme Court explained that there are two broad classes of inferences or presumptions, permissive and mandatory. Permissive inferences, as the one here appears to be, see note 5 supra; Williamson v. State, supra, 281 S.E.2d at 514, 521, 7 serve the purpose of directing the jury's attention to inferences that it might draw and thus tend to encourage particular conclusions. Ulster, supra, 442 U.S. at 170, 99 S.Ct. at 2231, 60 L.Ed.2d at 800 (Powell, J., dissenting); Allen, Structuring Jury Decisionmaking in Criminal Cases: A Unified Constitutional Approach to Evidentiary Devices, 94 Harv.L.Rev. 321, 330-31 (1980). Therefore, the Supreme Court requires that in order for a permissive inference instruction to be valid there must be a rational connection between the circumstance giving rise to the suggested inference and the conclusion drawn. The specific test is whether the ultimate fact is "more likely than not to flow from" the basic fact. Ulster, 442 U.S. at 165, 99 S.Ct. at 2228. This test is less stringent than the Jackson v. Virginia test for sufficiency of the evidence, that a rational trier of fact could find the ultimate fact beyond a reasonable doubt. Ulster, supra, at 165, 99 S.Ct. at 2228. The rationality of the inference under an Ulster analysis is judged not in the abstract but in the light of the circumstances giving rise to the inference in a particular case. Id. at 162-63, 99 S.Ct. at 2227-28.

The Ulster analysis of the validity of a permissible inference instruction is independent from a Jackson v. Virginia analysis of the sufficiency of the evidence, for the former tests whether it is rational to infer an element of the crime from a specific fact and related circumstances, while the latter tests whether such an inference is supported by the record as a whole. Thus a permissive inference might be invalid even though there is sufficient evidence otherwise to uphold the verdict. 8 The independence of the Ulster analysis and a Jackson v. Virginia analysis is clear from the Court's opinion in Ulster. The Court explained that a permissive inference need not meet the more stringent Jackson v. Virginia standard for the very reason that such an inference is only "one ... part" of the prosecution's case, and that "the prosecution may rely on all of the evidence in the record to meet the reasonable-doubt standard." Id. at 166-67, 99 S.Ct. at 2229-30 (original emphasis). Moreover, in its last paragraph the Court was careful to observe that, in addition to the permissive inference being valid, the record as a whole had been found sufficient to establish guilt beyond a reasonable doubt. Id. at 167, 99 S.Ct. at 2230. 9 Therefore, determining that a permissive inference instruction is valid does not settle whether the verdict is supported by sufficient evidence.

B. Discussion

The preceding discussion of Ulster illustrates that, although the validity of a permissive inference instruction and the sufficiency of the evidence in theory are distinct issues, in practice, where the primary evidence of guilt is the same as the evidence that gives rise to a permissive inference instruction, it is difficult to separate an Ulster analysis from a Jackson v. Virginia analysis. See, e.g., Williams v. State, supra, 281 S.E.2d at 512-20 (raising a Jackson v. Virginia issue but analyzing it under Ulster ). In the present case we recognized that the inference of burglary from recent possession of the stolen goods is central to our consideration, and we requested supplemental briefing from the parties on the validity of this inference. We did not frame our request in pure sufficiency terms but asked to be briefed on whether the inference "relieves the state of its burden of proving beyond a reasonable doubt every element of the offense." This burden-shifting tenor of the request prompted the parties to focus on Ulster and its progeny (e.g., Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979)), and it was then that the state contended that two claims were present in this case and therefore Rose v. Lundy, supra, required dismissal. We hold that Rose does not apply because Cosby raised only a sufficiency issue in the district court, and therefore any subsequent raising of an Ulster issue in the court of appeals, whether by the petitioner or by the court, does not present grounds for dismissal.


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