West v. Wright

Decision Date21 June 1991
Docket NumberNo. 89-6686,89-6686
Citation931 F.2d 262
PartiesFrank Robert WEST, Jr., Petitioner-Appellant, v. Ellis B. WRIGHT, Jr., Warden; Mary Sue Terry, Attorney General of Virginia, Respondents-Appellees.
CourtU.S. Court of Appeals — Fourth Circuit

Cynthia Mazur, Supervising Atty., argued (Steven H. Goldblatt, Director, Joseph Lombard, Patricia Mariani, Heidi Mason, Student Counsel, on brief), Appellate Litigation Clinical Program, Georgetown University Law Center, Washington, D.C., for petitioner-appellant.

Marla Lynn Graff, Asst. Atty. Gen., argued (Mary Sue Terry, Atty. Gen. of Va., on brief), Richmond, Va., for respondents-appellees.

PHILLIPS, Circuit Judge:

Frank Robert West, Jr., appeals the dismissal of his petition for a writ of habeas corpus in which he challenged the sufficiency of the evidence to convict him of grand larceny in a prosecution by the Commonwealth of Virginia. We reverse and remand for the issuance of the writ.


On December 13, 1978, Angelo Cardova left his vacation home in Westmoreland County, Virginia. Thirteen days later, on December 26, 1978, he returned to find that his house had been burglarized and that various items, totalling about $3,000 in value, were missing. On January 10, 1979, law enforcement officers investigating another theft were allowed by West's wife to enter and search West's residence while West was incarcerated on other charges. In the course of this warrantless search, they seized some of the items stolen two to four weeks earlier from Cardova's residence. Presumably for use as evidence they took away these items along with others. The items determined to be Cardova's included two television sets, a mirror framed with shells, a wood carving, groceries, a synthetic fur coat with the name Esther embroidered in the lining, a silk jacket decorated with the legend "Korea 1970," a mounted lobster and several other specifically identified pieces of property. The value of the Cardova items found in West's residence was about $1,100.

West was charged in a state prosecution with grand larceny, the felonious taking, stealing, and carrying away of over $100 in property. Va.Code Ann. Sec. 18.2-95 (Repl.Vol.1975). 1

At trial, the prosecution presented the testimony of six witnesses. Cardova testified as to the timing of the theft and the nature and value of the property taken from his home. West's sister, who owned his residence, and his neighbor both testified that West was the sole inhabitant of the residence in which the property was found. The prosecution also presented the testimony of three law enforcement officials establishing the chain of custody for the Cardova property after it was seized by the police.

Testifying on his own behalf, West of course denied the theft and explained his possession as the result of purchases from flea markets at which he regularly bought and resold merchandise. He recalled having purchased some of the items at issue at a flea market from one Ronnie Elkins. He specifically recalled one transaction in the amount of five dollars and another for five hundred dollars. West was unsure about the flea market at which he had purchased the items from Elkins. He explained that he did not produce Elkins as a witness because he did not know until the day of the trial which items he had been charged with stealing. His testimony was somewhat confused and he was unable to account for how he acquired some of the merchandise.

The Commonwealth presented no rebuttal evidence. In closing argument, the defense argued that the Commonwealth had failed to present any direct evidence that West had stolen any items from the Cardova house. The Commonwealth, in closing, relied exclusively on Virginia's common law permissive inference that one in unexplained possession of recently stolen goods is himself the thief. It argued that West offered no reasonable explanation for his possession of the goods. The judge stated in his instruction:

If you believe from the evidence beyond a reasonable doubt that property of a value of $100.00 or more was stolen from Angelo F. Cardova, and that it was recently thereafter found in the exclusive and personal possession of the defendant, and that such possession has been unexplained or falsely denied by the defendant, then such possession is sufficient to raise an inference that the defendant was the thief; and if such inference, taking into consideration the whole evidence, leads you to believe beyond a reasonable doubt that the defendant committed the theft, then you shall find the defendant guilty.

The jury found West guilty and sentenced him to ten years imprisonment.

During the course of the trial, West raised the issue of evidentiary sufficiency several times. At the close of the Commonwealth's case, West moved the court to strike the evidence that had been presented because Virginia had not proven West was the one who "collected these items and carried them off," and had offered no evidence to prove that West was the "active agent" who committed the larceny. He renewed his motion to strike the evidence at the close of West's case. After the jury rendered its verdict, he again renewed the motion to strike and also moved for the court to "set aside the verdict as being contrary to the law and the evidence." On direct appeal, as well as in a later state habeas corpus proceeding, West again alleged that the evidence was not sufficient to convict him of larceny and that the Commonwealth did not prove his guilt beyond a reasonable doubt. He was denied relief both on direct appeal and in his state habeas proceeding.

West then brought this habeas corpus proceeding under 28 U.S.C. Sec. 2254 in the United States District Court, challenging on constitutional grounds the sufficiency of the evidence to convict him. The district court dismissed the petition by summary judgment, concluding that the evidence was sufficient to convict under the appropriate constitutional standard.

This appeal followed.


We first address two threshold objections by the Commonwealth to the consideration of this federal habeas petition. The first is that West's claim challenging the sufficiency of the evidence has not been exhausted in the state courts. The second is that its favorable consideration by a federal habeas court would involve the adoption of a "new rule" and that its consideration is therefore forbidden by Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).

In order to address these objections, it is necessary to identify the exact nature of West's constitutional claim. Though the claim indisputably is one that ultimately challenges the constitutional sufficiency of the evidence to convict, the parties disagree on the significance of the use of the permissive inference in defining the exact nature of that challenge.

The Commonwealth characterizes the challenge as being one to the facial constitutionality of the inference. West characterizes it as simply a classic due process challenge to the sufficiency of the evidence (here that used to invoke the inference) to convict him of larceny. We agree with West.

While the circumstances under which a "facial" challenge to the constitutionality of such a permissive inference can be made may not be entirely clear, 2 two of its identifying features are. West's claim has neither.

The first is that a "facial" challenge is directed at the jury instructions that allow the jury to draw the inference, not at the sufficiency of the specific evidence to convict. See Barnes v. United States, 412 U.S. 837, 841-43, 93 S.Ct. 2357, 2360-62, 37 L.Ed.2d 380 (1973) (reviewing cases illustrating this mode of "facial" challenge). The second is that the standard for assessing such a challenge is the "more-likely-than-not" standard of rationality developed in the line of cases, Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970); Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969); United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965); and Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943), see Barnes, 412 U.S. at 842, 93 S.Ct. at 2361, rather than the more stringent "beyond-a-reasonable-doubt" standard for assessing the sufficiency of particular evidence to convict laid down in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

From this it is apparent that West's claim is not one to the facial constitutionality of the inference. Inferentially, he concedes that. He raises no challenge to the jury instructions as such. Throughout, his challenge has been to the sufficiency of the evidence to take the case to the jury under any jury instructions. Where, as here, the only evidence of guilt consists of the "basic facts" of the inference, such a challenge is perforce a straightforward challenge to the sufficiency of that evidence alone to convict under the Jackson v. Virginia test. See County Court of Ulster County v. Allen, 442 U.S. 140, 166-67, 99 S.Ct. 2213, 2229-30, 60 L.Ed.2d 777 (1979) (where only evidence of guilt is that giving rise to permissive inference, basic facts of inference must meet beyond-reasonable-doubt standard rather than less stringent more-likely-than-not standard); Cosby v. Jones, 682 F.2d 1373, 1377 n. 9 (11th Cir.1982) ("a Jackson v. Virginia test is still necessary even though a permissive inference instruction is valid").

With the nature of the challenge thus identified, we turn to the Commonwealth's threshold objections to its consideration in this habeas proceeding.


Once properly characterized, it is apparent that West's constitutional claim has been adequately exhausted in the state courts. The Commonwealth's contention that it has not been rests on the erroneous premise that it involved a constitutional challenge to the facial validity of the permissive inference. As indicated, it is not...

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