UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

IVAN DIAZ,
Petitioner-Appellant,

v.
                                                               No. 97-6586
MICHAEL MOORE, Director; CHARLES
CONDON,
Respondents-Appellees.

ANGEL GONZALEZ,
Petitioner-Appellant,

v.
                                                               No. 97-6604
MICHAEL MOORE, Director; CHARLES
CONDON,
Respondents-Appellees.

Appeals from the United States District Court
for the District of South Carolina, at Rock Hill.
William B. Traxler, Jr., District Judge.
(CA-96-1799-21BD, CA-96-1800-0-21BD)

Argued: December 5, 1997

Decided: March 16, 1998

Before MURNAGHAN, HAMILTON, and MICHAEL,
Circuit Judges.

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Denial of writ affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: W. Gaston Fairey, FAIREY, PARISE & MILLS, P.A.,
Columbia, South Carolina, for Appellant. Robert F. Daley, Jr., Assis-
tant Attorney General, OFFICE OF THE ATTORNEY GENERAL,
Columbia, South Carolina, for Appellees. ON BRIEF: Charles M.
Condon, Attorney General, Donald J. Zelenka, Assistant Deputy
Attorney General, OFFICE OF THE ATTORNEY GENERAL,
Columbia, South Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

MURNAGHAN, Circuit Judge:

I.

Ivan Diaz and Angel Gonzalez, Petitioners, were two of seven indi-
viduals who emerged from Room 102 of the Greenville, South Caro-
lina, Red Roof Inn on October 5, 1992, and entered a van parked
directly in front of the room. Room 102 was under surveillance by
members of the Greenville County Sheriff's Department because a
confidential informant had reported seeing a quantity of cocaine there.
As the police watched, the individuals went through what appeared
to be a carefully choreographed routine, with one individual serving
as a lookout while certain of the others loaded two gym bags into the
van.1

The van, with Diaz as the driver,2 departed the Red Roof Inn and
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1 Neither of the Petitioners was the lookout, and there was no evidence
that either of them participated in loading the van.
2 Diaz argues that there was conflicting testimony concerning whether
he was the driver of the van. Viewing the evidence presented in the light

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drove a circling route from store to store in one particular area. The
sheriffs regarded the van as acting suspiciously and believed that it
was engaged in "countersurveillance." When the van stopped at a gas-
oline filling station, the sheriffs surrounded it and upon search found
9.2 pounds of cocaine in the rear of the van. A thorough search of the
van revealed two beepers, $5,000 to $6,000 cash, wrapping paper and
cellophane, tape and two firearms. All seven individuals were
arrested.

The individuals were indicted, tried and convicted for 1) traffick-
ing in cocaine, S.C. Code Ann. § 44-53-370(e), 3 and 2) transportation
of cocaine, S.C. Code Ann. § 44-53-590.4 Diaz and Gonzalez were
sentenced to imprisonment for 30 years and fined $200,000 on the
trafficking charge plus one year of imprisonment and a $5,000 fine
on the transportation charge, the sentences for both charges to run
consecutively.
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most favorable to the State, there was clearly sufficient evidence to sup-
port a finding by the trier of fact that Diaz was the driver of the vehicle.
There was no evidence to support a finding that Gonzalez was anything
more than a passenger in the van, however.
3 The drug trafficking statute provides:

          Any person who knowingly sells, manufactures, cultivates,
          delivers, purchases, or brings into this State, or who provides
          financial assistance or otherwise aids, abets, attempts, or con-
          spires to sell, manufacture, cultivate, deliver, purchase, or bring
          into this State, or who is knowingly in actual or constructive pos-
          session or who knowingly attempts to become in actual or con-
          structive possession of . . . ten grams or more of cocaine or any
          mixtures containing cocaine [shall be punished in accordance
          with this section].

S.C. Code Ann. § 44-53-370(e).
4 Transportation of cocaine is the criminal counterpart to the South Car-
olina drug forfeiture statute and applies where a defendant "uses property
or a conveyance in a manner which would make the property or convey-
ance subject to forfeiture." S.C. Code Ann. § 44-53-590. A conveyance
such as a van is subject to forfeiture if used "unlawfully to conceal, con-
tain, or transport or facilitate the unlawful concealment, possession, con-
tainment, manufacture, or transportation of . . . more than ten grains of
cocaine." S.C. Code Ann. § 44-53-520(a)(6).

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The Petitioners' convictions were affirmed, see State v. Bultron,
457 S.E.2d 616 (S.C. Ct. App. 1995), and the South Carolina
Supreme Court denied certiorari. On June 13, 1996, the Petitioners
filed for habeas corpus relief in the United States District Court for
the District of South Carolina, alleging insufficiency of the evidence.
The district court denied relief, and the Petitioners appealed.

II.

Before the passage of the Antiterrorism and Effective Death Pen-
alty Act of 1996 (AEDPA), Pub.L. 104-132, 110 Stat. 1214, 28
U.S.C. § 2254, we evaluated insufficiency of the evidence claims by
applying de novo the test elucidated by the Supreme Court in Jackson
v. Virginia, 443 U.S. 307, 319 (1979). As we explained in Evans-
Smith v. Taylor, 19 F.3d 899 (4th Cir. 1994):

           The standard of review for a claim of insufficient evi-
          dence is whether, viewing the evidence in the light most
          favorable to the prosecution, Goldsmith v. Witkowski, 981
          F.2d 697, 701 (4th Cir. 1992), and according the benefit of
          all reasonable inferences to the government, United States
          v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982), any ratio-
          nal trier of fact could have found the defendant guilty
          beyond a reasonable doubt. Jackson v. Virginia , 443 U.S.
          307, 319 (1979). The standard is obviously rigorous.

Evans-Smith, 19 F.3d at 905 (citations amended).

However, the AEDPA changed the standards by which a federal
habeas court reviews the judgment of a state court, see Noland v.
French, No. 97-10, 1998 WL 2804, at *3 (4th Cir. Jan. 7, 1998). Sec-
tion 2254(d) now provides:

          (d) An application for a writ of habeas corpus on behalf of
          a person in custody pursuant to the judgment of a State court
          shall not be granted with respect to any claim that was adju-
          dicated on the merits in State court proceedings unless the
          adjudication of the claim --

                    4
           (1) resulted in a decision that was contrary to, or
          involved an unreasonable application of, clearly established
          Federal law, as determined by the Supreme Court of the
          United States; or

           (2) resulted in a decision that was based on an unreason-
          able determination of the facts in light of the evidence pres-
          ented in the State court proceeding.

28 U.S.C.A. § 2254(d) (West Supp. 1997) (emphasis added). After
the AEDPA, therefore, it is unclear to what extent a federal habeas
court may review de novo the sufficiency of the evidence when exam-
ining a state court's application of the Jackson standard. Compare
Gomez v. Acevedo, 106 F.3d 192, 199 (7th Cir.) ("Federal review of
these claims therefore now turns on whether the state court provided
fair process and engaged in reasoned, good-faith decisionmaking
when applying Jackson's `no rational trier of fact' test."), vacated on
other grounds, Gomez v. DeTella, 118 S. Ct. 37 (1997), with Jones
v. Wood, 114 F.3d 1002, 1013 (9th Cir. 1997) (opining that "the dis-
trict court's duty to ascertain the sufficiency of the evidence by
engaging in a thorough review of the complete state record is unaf-
fected by the AEDPA" because such a review is necessary for a deter-
mination whether the state court's judgment was unreasonable).

Both parties unfortunately neglected to address the issue whether
the AEDPA still permits de novo review of the evidence when exam-
ining the reasonableness of the state court's application of Jackson.
However, because we conclude the determination of the South Caro-
lina Court of Appeals was reasonable, we do not reach that issue.
There was sufficient evidence to convict Ivan Diaz, whom the jury
could have concluded drove the van, under either a de novo or more
deferential standard, although Angel Gonzalez's claim presents a
more difficult issue under de novo review. 5 We hold that because the
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5 Petitioners acknowledge that"in some circumstances, `[t]here is an
inference that the driver of a vehicle has knowledge of the contraband
within it.'" Brief of Petitioners at 9 (quoting United States v. Laughman,
618 F.2d 1067, 1076 (4th Cir. 1980)) (alteration in original). There we
held that the defendant's "knowledge [of contraband within a vehicle]

                    5
petitioners filed their habeas petitions on June 13, 1996, after the
April 24, 1996, date of enactment, the AEDPA applies to their claims.6
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can be drawn from the fact that he drove and had control of the vehicle."
Laughman, 618 F.2d at 1076.

However, "there is no such inference on the part of a passenger." Id.
Compare United States v. Aguiar, 610 F.2d 1296, 1304 (5th Cir. 1980)
(holding that "[i]t is tempting, although all too often wrong, to suppose
that mere presence is tantamount to participation, but actual presence at
the scene of the crime is not sufficient" evidence alone for a reasonable
jury to infer that a defendant was a party to an illegal conspiracy rather
than an innocent bystander), with Laughman, 618 F.2d at 1075-78 (hold-
ing that the evidence was sufficient to support a conviction for posses-
sion of marijuana with intent to distribute where the defendant was
"presen[t] at the boat ramp during the time in which the marijuana was
transported to shore" and he was later found"in close proximity" to two
boats containing marijuana residue). Nevertheless, mere aiding, abetting
and facilitating drug trafficking and transportation is sufficient under
South Carolina law to be guilty of the crimes for which Gonzalez was
convicted. See S.C. Code Ann. §§ 44-53-370(e)(2), -55-520, and -55-
590.

6 This court has recognized that the application of the AEDPA's stan-
dards may be waived where neither party has raised the issue and where
the statute's applicability is in question. See Arnold v. Evatt, 113 F.3d
1352, 1356, 1362 n.57 (4th Cir. 1997) (holding that the issue of the
applicability of the AEDPA was waived where the habeas petition was
filed in excess of two years prior to its enactment, and where the
Supreme Court was currently examining the issue of the retroactivity of
the AEDPA), cert. denied, Arnold v. Moore, 66 U.S.L.W. 3456 (U.S.
Jan. 12, 1998) (No. 97-6646); see also Emerson v. Gramley, 91 F.3d 898,
900 (7th Cir. 1996) (similarly holding waived the issue of the applicabil-
ity of the AEDPA to a habeas petition filed more than two years prior
to its enactment), cert. denied, 117 S. Ct. 1260 (1997). Congress clearly
intended the standard of review of the AEDPA to apply to habeas peti-
tions filed after its enactment, however, and we will not hold that the
appropriate standard of review is waived just because the parties did not
realize what that standard was. Furthermore, we note that the State did
urge deference to its courts:

          When considering Appellants' claim of insufficient evidence
          on habeas review, this Court must first recognize that two state

                    6
See Lindh v. Murphy, 117 S. Ct. 2059, 2063 (1997) (holding that the
AEDPA was "meant to apply to the general run of habeas cases only
when those cases had been filed after the date of the Act").

III.

The Court of Appeals of South Carolina fully considered the Peti-
tioners' claims that the evidence was insufficient to support their con-
victions on the bases either of aiding and abetting the crimes or of
constructive possession of the drugs, applying a reasonable analogue
of the Jackson analysis.7See State v. Bultron, 457 S.E.2d 616, 622-23
(S.C. Ct. App. 1995). The state appellate court sustained the convic-
tions because there existed "substantial evidence which reasonably
tends to prove the guilt of the accused, or from which his guilt may
be fairly and logically deduced." Bultron, 457 S.E.2d at 622. Further-
more, the court found that "a jury could reasonably conclude not only
that the [Petitioners] were knowingly involved in the commission of
a criminal act, but that there had been some planning and agreement
among them pertaining to the act." Id. at 623. After examining the
record, we cannot conclude that the Court of Appeals of South Caroli-
na's determination was unreasonable or contrary to Jackson. The writ,
therefore, is denied as to both Diaz and Gonzalez pursuant to 28
U.S.C. § 2254(d)(1).

DENIAL OF WRIT AFFIRMED
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        courts, the trial court and the court of appeals, have reviewed
        Appellants' convictions for sufficiency of the evidence. Accord-
        ingly, the Court's role is to determine whether the state court
        adjudication has resulted in a satisfactory conclusion.

Brief of Respondent at 8-9.
7 Although the Jackson Court did not say so explicitly, its formulation
has been understood to apply to state court review of the sufficiency of
the evidence as well as federal habeas court review.




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