1997 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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1

 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
2

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. 
3

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. 
4

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. 
5

 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 
6

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 
7

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 
8

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 
9

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 
10

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 
11

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 
12

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 
13

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. 
2

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 
3

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 
4

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. 
5

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 
6

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 
7

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 SCIHuntingdon, 946 F.2d 236 (3d Cir. 1991), these were instances in 
8

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
9

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.