ORDER
BOWEN, District Judge.
Bobby Gene Gaddis has petitioned the Court to issue a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner collaterally attacks a judgment of the Superior Court of Jefferson County, Georgia, in which he was convicted of the offenses of burglary, armed robbery and murder. He was sentenced to terms of imprisonment for the burglary and robbery convictions and was sentenced to death on the murder charge.
Zant v. Gaddis, 247 Ga. 717, 279 S.E.2d 219 (1981).
All of the offenses petitioner was convicted of were "related to Mr. and Mrs. Reid Oliver Fleming, Sr., and occurred on December 22, 1973." Birt v. State, 236 Ga. 815, 816, 225 S.E.2d 248 (1976). The Supreme Court of Georgia explained the evidence from which the jury found petitioner and co-defendant Billy Sunday Birt guilty of the offenses set forth above:
Carswell Tapley was employed by George Leisher on Leisher's farm in Washington County, Georgia. Leisher lived in Marietta and operated a used car lot. He made occasional visits to his farm. In late 1973, Leisher informed Tapley that if Tapley knew anyone who had money, Leisher knew some men who would "look into it" and pay 20% for help in "setting up a job." Tapley informed Leisher that a Mr. Fleming kept from $50,000 to $60,000 in his home....
When Leisher returned to the farm he told Tapley that he had gotten "in touch with the boys" who would contact Tapley shortly. Later, a person who identified himself as Jim Gordon called Tapley and stated he was calling from Leisher's car lot. The caller said he would be by for Tapley at nine o'clock that evening "to go get the hogs." Upon his arrival Tapley showed him the Flemings' residence in Wrens....
According to Davis, on Friday, December 21, 1973, Birt called Davis and asked him to come to a motel in Atlanta. Davis found Birt, Bobby Gaddis and Charles Reed at the motel. Girt sic explained to Davis that the three of them were planning a trip to Wrens to "take care of the business." Birt borrowed a car from Davis for the trip and also borrowed Davis' pistol....
Before Mr. Fleming closed his used car business on December 22, 1973, Bobby Gene Gaddis went to the car lot and made inquiries about a pickup truck. A customer who was in Mr. Fleming's office at the time made an in-court identification of Gaddis in a lineup....
On December 23, 1973, Birt and Gaddis described the events of that evening to Davis. According to Davis they said that after dark ... Birt, Gaddis and Reed approached the Fleming residence. When Mr. Fleming responded to their knocks at his door they told him they wished to purchase the pickup truck Gaddis had looked at earlier. When Mr. Fleming told them to return in the day-light hours, they forced their way into the house and proceeded to tie their victims. While Gaddis stood guard, Birt and Reed drove the Cadillac and the Flemings' car down a side road away from the Fleming home and returned in the Flemings' automobile. They then proceeded to torture Mr. and Mrs. Fleming. With mirth they reported to Davis that Mrs. Fleming was hard of hearing but that her hearing improved considerably when a coat hanger was tightened about her throat. Gaddis and Birt also told Davis that they had obtained $4,000 from the Flemings. The money had been buried in fruit jars in the Flemings' smokehouse....
Dr. Larry Howard of the State Crime Laboratory performed the autopsies of Mr. and Mrs. Fleming. Dr. Howard determined that Mr. Fleming's death was due to strangulation performed quite abusively. Dr. Howard found severe abrasions and contusions around the throat of the deceased. He also observed two lines on Mr. Fleming's throat which were caused by repeated applications of a ligature. There were multiple hemorrhages about the throat, face and scalp. In addition, Dr. Howard noted abrasions on the deceased's right ear and cheek, as well as multiple contusions about Mr. Fleming's eyes. Dr. Howard observed that other head injuries were possibly caused by multiple impacts of Mr. Fleming's head against the floor. Dr. Howard also noted that Mr. Fleming's left thumb nail was split down the middle. The injuries to the structure of Mr. Fleming's throat, and the signs of oxygen deprivation, indicated that there were several episodes of asphyxia due to oxygen deprivation prior to Mr. Fleming's death. The injuries around Mr. Fleming's neck indicated that his bonds were tightened, and loosened, only to be tightened again.
Mrs. Fleming's death also resulted from strangulation. Dr. Howard noted that her eyes were bulging and hemorrhaged and that her tongue was pushed forward. He noted a bruise on her neck that had been caused by the friction created by the rubbing of the coat hanger around her neck. Blood and fluid were found in Mrs. Fleming's nose and mouth.
Dr. Howard concluded that the deaths of the two victims were not instantaneous, but resulted from prolonged episodes of abuse. He expressed the opinion that the time of death was about 10 to 11 p.m. on December 22.
Birt v. State, 236 Ga. at 816-20, 225 S.E.2d 248.
Petitioner's first ground for habeas relief under section 2254 is that, during the guilt-innocence phase of the trial, the jury charge regarding "intent" violated the fourteenth amendment guarantee of due process. See Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Petitioner claims that the "intent" charge could have been interpreted by a reasonable juror as a mandatory presumption that shifted the burden of persuasion to the petitioner or the intent element on each of the criminal charges he faced. The charge at issue was as follows:
I give you certain presumptions of law that are applicable to these cases. A presumption is a conclusion which the law draws from given facts. Each of these presumptions are rebuttable, that is, they are subject to being overcome by evidence to the contrary. They are: Every person is presumed to be of sound mind and discretion. The acts of a person of sound mind and discretion are presumed to be the product of that person's will. A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts.
A person will not be presumed to act with criminal intention, but the trier of the facts, that is, you the Jury, may find such intention upon consideration of the words, conduct, demeanor, motive and all other circumstances connected with the act for which the accused person is prosecuted.
A specific intent to commit the crime charged in each of these indictments, and each count thereof, is an essential element that the State must prove beyond a reasonable doubt and to the exclusion of every reasonable hypothesis. Intent is always a question for the Jury and is ordinarily ascertained by acts and conduct. The intent may be shown in many ways, provided the Jury finds that it existed from the evidence produced before them. It my (sic) be inferred from the proven circumstances or by the act or acts and conduct or it may be presumed when it is the natural and necessary consequences of the act.
Trial Transcript at 667-68.
It is well-settled 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." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). Thus, any evidentiary presumption which effectively shifts the burden of persuasion on any element of the crime charged from the state to the defendant is unconstitutional. See Sandstrom v. Montana, 442 U.S. at 520-24, 99 S.Ct. at 2457-59; Lakes v. Ford, 779 F.2d 1578, 1580 (11th Cir.1986). In the case at bar, the jury charge on intent unconstitutionally relieved the state of its burden of persuasion on the intent element of each of the crimes with which petitioner was charged. The jury cannot presume that the petitioner intended "the natural and necessary consequences of" his actions. It is for the state to prove that petitioner intended to reach the results he did with his allegedly criminal conduct.
While the Court has concluded that the jury charge on "intent" is unconstitutional, the analysis for habeas purposes is not completed. The Supreme Court "has not resolved whether an erroneous charge that shifts a burden of persuasion to the defendant on an essential element of an offense can ever be harmless." Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 1977, 85 L.Ed.2d 344 (1985). Recently, the Court of Appeals for the Eleventh Circuit decided that:
a Sandstrom error, like most other errors of constitutional magnitude, can be held harmless beyond a reasonable doubt. Davis v. Kemp, 752 F.2d 1515, 1520-21 (11th Cir.1985) (en banc); see also McCleskey v. Kemp, 753 F.2d 877, 902-03 (11th Cir.1985). (en banc). Davis identified two situations where harmless error
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