                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-29-1997

Jackson v. Byrd
Precedential or Non-Precedential:

Docket 95-2118




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               UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT


                         No. 95-2118


                     CHRISTINE JACKSON,

                                       Appellant

                             v.

            MARY LEFTRIDGE BYRD, SUPERINTENDENT;
           THE DISTRICT ATTORNEY FOR PHILADELPHIA
             COUNTY; THE ATTORNEY GENERAL OF THE
                    STATE OF PENNSYLVANIA


    On Appeal from the United States District Court
       for the Eastern District of Pennsylvania
                (D.C. Civ. No. 95-05152)


          Submitted under Third Circuit LAR 34.1(a)
                      December 10, 1996

BEFORE:    BECKER, MANSMANN, and GREENBERG, Circuit Judges

                  (Filed: January 29, l997)


                    OPINION OF THE COURT


                              Laurence R. Feinstein
                              1800 Callowhill Street
                              Philadelphia, PA 19130

                                       Attorney for Appellant

                              Donna G. Zucker
                              Chief, Federal Litigation
                              Ronald Eisenberg
                              Deputy District Attorney
                              Arnold H. Gordon
                              First Assistant District Attorney
                              Lynne Abraham
                              District Attorney
                              Office of District Attorney
                              1421 Arch Street
                              Philadelphia, PA 19102

                                       Attorneys for Appellees



                             1
GREENBERG, Circuit Judge.


           Christine Jackson appeals from an order entered on

December 15, 1995, denying her petition for a writ of habeas

corpus.   These habeas corpus proceedings arise in the aftermath

of Jackson's conviction on July 2, 1992, at a bench trial in the

Court of Common Pleas of Philadelphia County, Pennsylvania.     At

that trial, the court found Jackson guilty of possession of a

controlled substance and possession of a controlled substance

with the intent to deliver.   It subsequently sentenced her to a

term of four to eight years' imprisonment.

           The state trial judge made the following findings of

fact in a written opinion denying Jackson's post-trial motions:
1.On December 16, 1988, at approximately 10:00 p.m.,
          officers from the Philadelphia Police
          Department executed a search warrant for
          Jackson's apartment. The search warrant was
          executed based on information from an
          informant who claimed to have worked for two
          people, John and Len, who had drugs in the
          apartment.

2.Jackson was the lessee of the apartment, and admitted
          that she had a younger brother named John who
          also lived in the same apartment.

3.The apartment had a living space consisting of a
          combination living room, dining room, and
          kitchen, in addition to two bedrooms.

4.Jackson and her son, who shared one bedroom, were
          present during the search.

5.In the rear bedroom, the police found an ice chest
          belonging to Jackson which contained 41 clear
          bags each containing approximately 40 clear
          plastic vials filled with crack cocaine, and
          14 clear bags each containing approximately
          20 plastic packets of cocaine. There were
          approximately 297 bags and 1,683 vials. The
          total weight of the crack/cocaine was in
          excess of 250 grams.



                                2
6.The police also found a heat sealer, scale, loaded
          .38 calibre handgun, and loaded .9 mm handgun
          in the rear bedroom.

7.In a kitchen cabinet, the police found two scales and
          a heat sealer. In a closet next to Jackson's
          bedroom, the police found a duffel bag filled
          with thousands of empty vials and packets,
          and a loaded shotgun.

8.The rear bedroom, kitchen cabinets, and closet were
          not locked.

9.Jackson admitted to using the kitchen cabinets and
          the closet.

10.Police found proof of residency for the apartment in
          the form of a telephone bill, an electric
          bill, and a lease, all of which named
          Jackson.

11.An expert witness, if called, would have testified
          that the amount of illegal drugs and drug
          paraphernalia found in the apartment were
          indicative of possession with the intent to
          deliver, rather than mere possession.


Commonwealth v. Jackson, No. 8901-0957 (Pa. C.P. Jan. 22, 1993).

 Based on these findings of fact, the trial court concluded that

(1) Jackson had access to all areas of the apartment, including

the rear bedroom, (2) the amount of illegal drugs and drug

paraphernalia found in the apartment demonstrated that they were

possessed with intent to deliver, and (3) Jackson was a willing

participant in the drug dealing occurring in her apartment.

          Jackson appealed her conviction to the Pennsylvania

Superior Court which affirmed.   Commonwealth v. Jackson, 638 A.2d

268 (Pa. Super. Ct. 1993) (table).   She then obtained allocatur

from the Pennsylvania Supreme Court which affirmed her conviction

by an equally divided court.   Commonwealth v. Jackson, 659 A.2d.




                                 3
549 (Pa. 1995) (table).     She asked for relief on appeal on the

sole ground that the evidence was insufficient to support her

conviction.

             Jackson thereafter filed a petition for a writ of

habeas corpus in the district court pursuant to 28 U.S.C. § 2254.

On November 15, 1995, a magistrate judge issued a report

recommending that the district court deny the petition and find

that there was no probable cause to appeal.     On December 15,

1995, the district court adopted this report and recommendation

and denied the petition.

             Jackson appealed, and we granted her request for a

certificate of probable cause.     The sole issue on this appeal is

whether sufficient evidence supported Jackson's conviction on

charges of possession of a controlled substance and possession of

a controlled substance with the intent to deliver.     Inasmuch as

the district court relied on the state court record, we exercise

plenary review of the district court's order on this appeal.

Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 (3d Cir.), cert.

denied, 502 U.S. 902, 112 S.Ct. 280 (1991).    We do not consider

the effect of the Antiterrorism and Effective Death Penalty Act

of 1996, Pub. L. 104-132, 110 Stat. 1214, which Congress enacted

while this appeal was pending, because even under prior law,

which may have been less deferential to the state court

proceedings than now would be the case, (see Berryman v. Morton,

      F.3d        , 1996 WL 659354 at *16 (3d Cir. Nov. 14, 1996)),

Jackson is not entitled to habeas relief.




                                  4
           Under 28 U.S.C. § 2254(d), prior to its redesignation

as 28 U.S.C. § 2254(e) and its amendment by section 104 of the

Antiterrorism and Effective Death Penalty Act of 1996, a federal

court presumes that state court findings of fact are correct if

the following requirements are met:    there was (1) a hearing on

the merits of a factual issue, (2) with findings made by a state

court of competent jurisdiction, (3) in a proceeding to which the

petitioner and the state were parties, (4) and the findings are

evidenced by a written finding or opinion, or other reliable and

adequate written indicia.    See also Reese v. Fulcomer, 946 F.2d

247, 254-55 (3d Cir. 1991), cert. denied, 503 U.S. 988, 112

S.Ct. 1679 (1992).   This presumption of correctness applies

unless the state court's factual determinations are not fairly

supported by the record.    28 U.S.C. § 2254(d)(8).   Thus, section

2254(d) "'reflect[ed] a clear congressional policy favoring

deference to state findings of fact absent good cause for

rejecting such findings.'"    Reese, 946 F.2d at 256 (quoting

Nelson v. Fulcomer, 911 F.2d 928, 932 (3d Cir. 1990)).

           Federal courts, however, do not accord deference under

section 2254(d) to state court legal rulings.   See McAleese v.

Mazurkiewicz, 1 F.3d 159, 166 (3d Cir.), cert. denied, 510 U.S.

1028, 114 S.Ct. 645 (1993).    Similarly, federal courts are not

bound by any ultimate legal conclusion reached by a state court

in deciding a mixed question of law and fact.   Deputy v. Taylor,

19 F.3d 1485, 1494 (3d Cir.), cert. denied, 114 S.Ct. 2730

(1994).   Of course, the "specific historical facts found by a

state court in the course of deciding [a mixed question] are



                                 5
subject to deference by § 2254(d) unless they are not supported

by the record."   Id. at 1494-95.

          As we have indicated, the sole issue in this case is

whether there was sufficient evidence to support Jackson's

conviction of possession of a controlled substance and possession

of a controlled substance with the intent to deliver.     Fourteenth

Amendment due process guarantees protect an individual from

"suffer[ing] the onus of a criminal conviction except upon

sufficient proof--defined as evidence necessary to convince a

trier of fact beyond a reasonable doubt of the existence of every

element of the offense."   Jackson v. Virginia, 443 U.S. 307, 316,

99 S.Ct. 2781, 2787 (1979).   In a federal habeas corpus

proceeding where sufficiency of the evidence is at issue, Jackson

v. Virginia sets forth the applicable standard:
[T]he critical inquiry on review of the sufficiency of
          the evidence to support a criminal conviction
          . . . . does not require a court to 'ask
          itself whether it believes that the evidence
          at the trial established guilt beyond a
          reasonable doubt.' . . . Instead, the
          relevant question is whether, after viewing
          the evidence in the light most favorable to
          the prosecution, any rational trier of fact
          could have found the essential elements of
          the crime beyond a reasonable doubt.


Id. at 318-19, 99 S.Ct. at 2788-89 (citations omitted) (emphasis

in the original).

          The parties agree that the prosecution could not prove

that Jackson had actual possession of the cocaine because the

drugs were found in her apartment, and not on her person.      Thus,

the prosecution sought to prove that Jackson had constructive

possession of the cocaine.    As defined by the Pennsylvania



                                 6
Supreme Court, constructive possession of contraband is conscious

dominion over the illegal substance, the power to control it, and

the intent to exercise the control.   Commonwealth v. Mudrick, 507

A.2d 1212, 1213 (Pa. 1986); Commonwealth v. Carroll, 507 A.2d

819, 820-21 (Pa. 1986); Commonwealth v. Macolino, 469 A.2d 132,

134 (Pa. 1983).   Since determining whether a defendant had

constructive possession of contraband is not amenable to "bright

line" tests, Carroll, 507 A.2d at 821, the finder of fact may

infer an intent to maintain a conscious dominion from the

totality of the circumstances.   Macolino, 469 A.2d at 134.

           In Macolino, the Pennsylvania Supreme Court found that

the defendant husband had equal access to, and thus constructive

possession of, contraband found in the bedroom he shared with his

wife.   Id. at 135-36.   The court found constructive possession in

Carroll when the police found contraband in the hotel room that

the defendant husband shared with his wife.   Carroll, 507 A.2d at

821.    Finally in Mudrick, in finding that the defendant

constructively possessed contraband found in the bedroom he

shared with his fiancee, the court stated, "[w]e hold today that

even absent a marital relationship constructive possession may be

found in either or both actors if contraband is found in an area

of joint control and equal access."   Mudrick, 507 A.2d at 1214.

In contrast to these three cases, it is more difficult to prove a

constructive possession case if the prosecution does not

demonstrate that the defendant resides in the home where the

police recover the contraband.   See Commonwealth v. Valette, 613




                                 7
A.2d 548 (Pa. 1992); Commonwealth v. Rodriguez, 618 A.2d 1007

(Pa. Super. Ct. 1993).

            While naturally the facts with respect to whether a

defendant has constructive possession of contraband vary in each

case, in Commonwealth v. Aviles, 615 A.2d 398 (Pa. Super. Ct.

1992) (in banc), cert. denied, 115 S.Ct. 78 (1994), the

Pennsylvania Superior Court found that the defendant had

constructive possession of the drugs in a case similar to this

one.   Consequently, Aviles is a significant precedent on this

appeal.    There the defendant, Aviles, leased a rowhouse in which

she subleased the middle and rear bedrooms to her sister and

brother-in-law.   Aviles slept with her three children in the

front bedroom.    During a search, the police found drugs and drug

paraphernalia in the middle and rear bedrooms.    The Superior

Court found that Aviles had access to all the bedrooms, stating

that she was, after all, the lessee.    Id. at 403.   The court also

cited additional facts to support the conviction:     an informant

had witnessed Aviles's sister and brother-in-law engaging in drug

activities at the residence; Aviles was present at the time of

the search; and the bedrooms containing the drugs were next to

defendant's bedroom.   Id.

            Under the recent interpretations of Pennsylvania law by

state courts, the findings of fact made in Jackson's case

sufficiently support her conviction of constructive possession of

drugs.    Jackson admitted that she was the sole lessee of the

apartment, and the police found proof of her residency in the

form of a telephone bill, an electric bill, and a lease, all in



                                 8
Jackson's name.   Furthermore, in the face of conflicting

testimony between a police officer and Jackson, the state trial

court found credible the officer's testimony that the rear

bedroom, the room in which the police found the drugs, which

Jackson's brother used, was not locked.    Also, it is not disputed

that at the time the police executed the warrant only Jackson and

her infant son were in the apartment so that her brother could

not have excluded her at the time if she sought to enter the rear

bedroom.

           Accordingly, the trial judge reasonably found that

Jackson had access to and control of all areas of the apartment,

including the rear bedroom.   In addition, the trial judge

considered the following facts with respect to Jackson's intent

to control the contraband:    (1) the ice chest containing the

drugs belonged to Jackson; and (2) the police found drug

paraphernalia, e.g., weight scales, a heat sealer, thousands of

empty vials and packets, and a loaded shotgun, in the kitchen

cabinet and the closet that Jackson shared with her brother.

Based on the totality of the circumstances, the trial judge found

Jackson guilty of constructive possession and constructive

possession with intent to distribute.     Commonwealth v. Jackson,

No. 8901-0957, slip op. at 2-6.

           We point out that the finding by the state trial judge

that Jackson owned the ice chest is unassailable.     Even though on

the appeal she argues that she had discarded the ice chest before

the police executed the warrant, Jackson testified at the trial

that she owned the ice chest when she first moved into the



                                  9
apartment.   While she testified that after she acquired a

refrigerator she had no further need for the ice chest, she also

testified that "I didn't give the ice chest to anyone.     I just

put the ice chest aside because I was no longer using it."

Clearly, she never gave the ice chest to her brother for she did

not even know that he was using it.

          We recognize that Jackson testified that her younger

brother, John, used the rear bedroom, while she and her son

shared the front bedroom.   Furthermore, we realize that the

police did not find any drugs, drug paraphernalia, or weapons in

Jackson's bedroom or on her person.   Thus, Jackson understandably

contrasts her relationship with her brother to the familial

relationships of the defendants with other co-tenants in

Macolino, Carroll, and Mudrick, asserting that the state failed

to present evidence that her brother's bedroom was anything other

than a private place subject to his exclusive control.     In

Aviles, however, the Superior Court found that the defendant was

in constructive possession of the drugs in a situation in which

the defendant owned or leased and lived in the residence where

the drugs were found.

          Although Jackson v. Virgina sets forth a federal test

for sufficiency of the evidence which is applicable in habeas

corpus proceedings, federal courts in habeas corpus proceedings

nevertheless look to the evidence the state considers adequate to

meet the elements of a crime governed by state law.   See Brumley

v. Detella, 83 F.3d 856, 862-65 (7th Cir. 1996); Chalmers v.

Mitchell, 73 F.3d 1262, 1272-73 (2d Cir.) (deferring to state's



                                10
view of what constituted sufficient evidence to convict on state

crimes), cert. denied, 117 S.Ct. 106 (1996).   Pennsylvania

considers being a lessee or owner of the residence an important

factor in establishing dominion and control over the contraband.

 While it is true that the police found the drugs in Jackson's

brother's bedroom, the significance of this circumstance is

diluted by the facts that the bedroom was unlocked, Jackson and

only her young son were present when the police executed the

warrant, the ice chest containing the drugs belonged to Jackson,

and the drug paraphernalia and a shotgun were located in the

closet next to Jackson's bedroom and in the kitchen cabinets.

Overall, we are constrained to conclude there was sufficient

evidence for any rational trier of fact to find the essential

elements of the crime beyond a reasonable doubt.

           In reaching our result, we have not overlooked United

States v. Jenkins, 90 F.3d 814 (3d Cir. 1996), and United States

v. Brown, 3 F.3d 673 (3d Cir.), cert. denied, 510 U.S. 1017, 114

S.Ct. 615 (1993).   Jenkins and Brown were direct appeals in drug

constructive possession cases in which we found that the evidence

was not sufficient to sustain convictions.   These cases, however,

are distinguishable from this one on the facts.    In Jenkins, the

defendant was in a very different situation than Jackson, as he

was charged with constructive possession of drugs in an apartment

of which he was not the lessee, a point we emphasized in our

opinion.   90 F.3d at 816, 820.   Similarly, in Brown the appellant

was charged with constructive possession of drugs in a house to

which she had access or in which she resided, but which she



                                  11
neither owned nor leased.   Furthermore, none of the Brown

appellant's possessions were found in rooms where drugs were

seized.

          Jackson's situation was different because she was the

lessee of the apartment and had access to all parts of it,

circumstances which logically tend to support a conclusion that

she had constructive possession of the apartment's contents.     In

addition, unlike in Jenkins and Brown, the police found the drugs

in this case in a container, i.e., the ice chest, that Jackson

owned.

          Jenkins and Brown also differ from this case in another

important respect.   In Jenkins when the police entered the

apartment there were adults other than the appellant inside, and

in Brown when the police entered the house the appellant was not

even there.   Rather, there was another adult in the house and the

appellant came upon the scene later.   Jackson's situation was

different because, as we already have pointed out, except for her

young son, she was alone in the apartment when the police

executed the warrant.   Of course, she had ready access to the

drugs as they were in the unlocked rear bedroom.

          These facts, as well as the other facts we have set

forth, made it reasonable for the trial court as the trier of

fact to conclude that Jackson had conscious dominion and control

over the contraband found in the apartment, and thus we would

affirm in this case even if we were deciding this case on appeal

from a district court conviction.    It therefore follows that we

would be overreaching if we reversed the denial of Jackson's



                                12
petition for a writ of habeas corpus.   In these circumstances, we

have no need to consider whether there is a range of constructive

possession cases in which on the same facts we would reverse

convictions under federal law but would deny habeas corpus

petitions challenging confinement following state convictions.

See Brumley, 83 F.3d 856; Chalmers, 73 F.3d 1262.    In principle,

arguably there could be such a group of cases, as the distinction

simply would reflect differences in the definition of what

conduct constituted constructive possession under state and

federal law.   Cf. Zettlemoyer, 923 F.2d at 291 (In a habeas

corpus proceeding following a state conviction "we do not

exercise the supervisory power that we might possess on an appeal

from a conviction in the district court.").

          In view of the aforesaid, we will affirm the order of

December 15, 1995.



CHRISTINE JACKSON v. MARY LEFTRIDGE BYRD, SUPERINTENDENT;

THE DISTRICT ATTORNEY FOR PHILADELPHIA COUNTY; THE ATTORNEY

GENERAL OF THE STATE OF PENNSYLVANIA, No. 95-2118



BECKER, Circuit Judge, dissenting.

          The term "constructive possession" has a precise legal

meaning, which does not differ between federal and state (here

Pennsylvania) law.   To constructively possess a controlled

substance one must have conscious dominion or control over it,

and intend to exercise that dominion or control.    United States

v. Jenkins, 90 F.3d 814, 817-18 (3d. Cir. 1996); United States v.



                                13
Brown, 3 F.3d 673, 680 (3d Cir. 1993); Commonwealth v. Mudrick,

507 A.2d 1212, 1213 (Pa. 1986); Commonwealth v. Carroll, 507 A.2d

819, 820-21 (Pa. 1986); Commonwealth v. Macolino, 469 A.2d 132,

134 (Pa. 1983).    In my view, the evidence in this case will not,

as a matter of due process, see Jackson v. Virginia, 443 U.S. 307

(1979), support the conviction of Christine Jackson for

constructive possession of the cocaine contained within the ice

chest in her brother's room.   I therefore dissent.   I turn first

to an analysis of the record, and then to the legal issues.



                                 I.

                                 A.

          The linchpin of the majority opinion is its conclusion

that Jackson, because she was the lessee of the apartment, had

access to and control of all areas of the apartment, including

the rear bedroom used by her brother, and hence of the ice chest

and the cocaine.    In my view, this conclusion is supported by

neither the law nor the facts.

          The Commonwealth has cited no case establishing, as a

matter of real property law or otherwise, that a lessee can enter

his or her sublessee's room at will.    Nor does the record suggest

such entry or access as a matter of fact, only the contrary.

Finally, and most importantly, there is nothing in the record

that reflects a conscious intention by Jackson to exercise




                                 2
dominion or control over the bedroom or the drugs, or from which

such an intention could be inferred.

           The state trial judge made much of the fact that the

ice chest "belonged" to Jackson, but the uncontradicted evidence

is that she had discarded it when she got a refrigerator and did

not know that her brother was using it to store drugs.     Although

the police found the door to her brother's room unlocked (Jackson

had always thought that it was locked), there is no evidence that

she was ever in the room, much less knew what its contents were.

 None of Jackson's possessions was found in her brother's

bedroom, nor were her fingerprints detected on any of the drugs

or other items seized.

           There was, to be sure, some drug paraphernalia and a

shotgun in a common area of the apartment.   But shotguns are not

the weapon of choice among drug dealers, and thus cannot

inherently support an inference of drug possession.   And the drug

paraphernalia, even if Jackson knew about it, is simply not

enough to link Jackson to the cocaine in her brother's room or to

any kind of drug dealing, given the absence of other inculpatory

facts.   And it surely does not supply evidence of conscious

dominion or control.   Indeed, while the drug paraphernalia in the

kitchen cabinet and closet may logically demonstrate that

Jackson's brother had dominion and control over the common areas

of the apartment, it does not suggest that Jackson had dominion




                                3
or control over the bedroom which, on this record, was subject to

her brother's exclusive, private use.

                                  B.

          The case that the majority puts most stock in, and on

which its position essentially stands or falls, is Commonwealth

v. Aviles, 615 A.2d 398 (Pa. Super. Ct. 1992) (in banc), cert.

denied, 115 S. Ct. 78 (1994).    I find Aviles of little value.

Aviles was a 5-4 decision of an intermediate appellate court

(which is not entitled to deference, but only to weight if it is

persuasive, which, I think, it is not).    It was not cited in

either the majority or the dissenting opinion of the Pennsylvania

Supreme Court in this case.1    I note in this regard that

Jackson's conviction was affirmed by the Pennsylvania Supreme

Court in a 3-3 vote.   Justice Zappala's forceful dissent, which

articulates the same concerns that I express herein, was joined

by Justice Cappy and (now Chief) Justice Flaherty, so that of the

current Pennsylvania Supreme Court Justices, the vote was 3-2 in

favor of Jackson.   I do not believe that Aviles would be approved

by Pennsylvania's present high court.

          It seems clear to me that under our jurisprudence, see,

e.g., United States v. Jenkins, 90 F.3d 814 (3d Cir. 1996), and

United States v. Brown, 3 F.3d 673 (3d Cir. 1993), the evidence

against Jackson would be insufficient to sustain a conviction


1. It is also not even cited by the Commonwealth in its present
brief.




                                  4
based on constructive possession.    The facts in Brown are similar

to the facts in Jackson's case: acting on a tip, the police

searched Brown's home for drugs.    During the search, Ama

Baltimore arrived at the house, inserted a key into the lock, and

was arrested as she entered.   She protested, "But you can't

arrest me because I am in my own house."    In the upstairs sewing

room, the police found a pair of shorts and a switchblade, both

of which Baltimore admitted were hers.    Large quantities of

heroin, cocaine powder, and crack cocaine were found in the

refrigerator in the kitchen, the kitchen closet, and one of the

upstairs bedrooms.   Equipment and supplies to prepare, cook, cut,

and distribute the drugs were also found in the bedroom.

          This Court overturned Baltimore's conviction for

insufficient evidence of possession, holding that, although the

evidence showed that she had access to, or resided in the house

and knew of the presence of the drugs, it did not, without more,

establish that she had conscious dominion or control over the

drugs.   Brown, 3 F.3d at 682-83.   "[M]ere proximity to the drug

or mere presence on the property where it is located or mere

association with the person who does control the drug or the

property, is insufficient to support a finding of possession."

Id. at 680 (citing United States v. Davis, 461 F.2d 1026, 1036

(3d Cir. 1972)).

          We further noted that neither Baltimore, nor any of her

possessions, were found in any of the rooms where the drugs were




                                5
seized, none of her fingerprints was found on any of the drugs or

drug paraphernalia, and there was no other evidence that she ever

exerted any control over the drugs or drug paraphernalia.    Id. at

683.   The facts in Brown, we believed, supported the conclusion

that she had access to or resided at the residence, but not that

she exercised control over the drugs.    Id. at 682.

          Similarly, in the instant case, aside from the tenuous

link sought to be drawn from the discarded ice chest and drug

paraphernalia, nothing in the record supports a finding of

constructive possession.   As stated previously, none of Jackson's

possessions was found in her brother's bedroom, nor were her

fingerprints detected on any of the drugs or other items seized.

 In fact, the evidence in Jackson's case is merely consistent

with her access to or residence at the apartment, but with no

control over the drugs.    See Brown, 3 F.3d at 681 (concluding

that while the evidence may be sufficient to show that Baltimore

was residing at the home and knew that the drugs were in the

house, the evidence did not support a finding that she exercised

dominion or control over the drugs).    Hence, I disagree with the

majority's position that the facts in Jackson's case meet the

federal constructive possession standard.

                                II.

          Although it does not expressly so hold, the majority

nonetheless seems to intimate that the legal sufficiency standard

on habeas corpus is somehow different (and diluted) when a state




                                 6
rather than federal conviction is at issue.   The majority

explicitly disclaims such a holding, suggesting that it would

apply a unitary standard:
In these circumstances, we have no need to consider whether there
          is a range of constructive possession cases in which on
          the same facts we would reverse convictions under
          federal law but would deny habeas corpus petitions
          challenging confinement following state convictions.
          See Brumley, 83 F.3d 856; Chalmers, 73 F.3d 1262. In
          principle, arguably there could be such a group of
          cases, as the distinction simply would reflect
          differences in the definition of what conduct
          constituted constructive possession under state and
          federal law. Cf. Zettlemoyer, 923 F.2d at 291 (In a
          habeas corpus proceeding following a state conviction
          "we do not exercise the supervisory power that we might
          possess on an appeal from a conviction in the district
          court.").


I applaud the disclaimer, but find it elusive and unconvincing.

I draw this conclusion because if a unitary standard is, in fact,

being imposed, the majority has strayed from (or diluted) the

federal cases.   I think it important to make clear in this regard

that, for the Jackson v. Virginia analysis, there can be no

difference in the definition of what conduct constitutes

constructive possession.

          As previously noted, Pennsylvania's definition of

"constructive possession" is identical to the federal definition.

 While it is true that federal courts have sometimes deferred to

states and their interpretations of what constitutes sufficient

evidence to convict on state crimes, see Brumley v. Detella, 83

F.3d 856 (7th Cir. 1996); Moore v. Deputy Commissioner of SCI-

Huntingdon, 946 F.2d 236 (3d Cir. 1991), these were instances in




                                7
which the federal courts looked strictly at state law because

there was no analogous federal statute.   But see Chalmers v.

Mitchell, 73 F.3d 1262 (2d Cir. 1996).    Jackson's appeal,

however, is distinguishable since, in addition to state law,

federal case law has also defined and interpreted constructive

possession.

          As stated above, I believe that the evidence in

Jackson's case is insufficient to meet the federal and state

definitions of constructive possession.   But even if

Pennsylvania's standard for constructive possession were lower

(which it is not), it would be incorrect and manifestly unjust

for the disposition of Jackson's appeal to differ depending on

the forum, state or federal, because evidence that fails to meet

federal due process standards in a federal forum should be

insufficient to meet the guarantees of federal due process in a

state court.   In other words, regardless of the forum in which

the case is heard, the standard for satisfying federal due

process should be uniform.   This is especially true in light of

the fact that the federal and state statutes for possession of

drugs are similar, the definitions of constructive possession are

identical, and the (federal) Jackson v. Virginia, 443 U.S. 304

(1979), standard for reviewing sufficiency of the evidence is

perforce the overarching standard.   I also note, moreover, that

the standard of review for sufficiency of the evidence in

Pennsylvania is identical to the federal Jackson v. Virginia




                                8
standard.   Evans v. Court of Common Pleas, 959 F.2d 1227, 1232

(3d Cir. 1991).

                                III.

            Because there is an absence of facts justifying an

inference that Jackson had conscious dominion or control over the

contraband, or that she intended to exercise that dominion or

control, as a matter of due process this conviction should not

stand.   Accordingly, I would reverse the district court's denial

of habeas corpus relief.




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