Parsons v. Burge

Decision Date10 June 2005
Docket NumberNo. 02-CV-6191.,02-CV-6191.
PartiesSam PARSONS, Petitioner, v. John BURGE, Superintendent of Auburn Correctional Facility, Respondent.
CourtU.S. District Court — Western District of New York

Howard Broder, Rochester, NY, for petitioner.

Sam Parsons, Jr, Auburn Correctional Facility, Auburn, NYH, for pe.

Loretta S. Courtney, Monroe County District Attorney's Office, Rochester, NY, for respondent.


BIANCHINI, United States Magistrate Judge.


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 occurred:

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?

RG: What?

SH: All of this.

RG: Yeah.

SH: Allright.

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.

SH: Allright.

RG: Allright.

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 minimum sentence.

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 prison sentence.

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 391-98.

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...

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