702 F.2d 423
Michael SIMMONS, Petitioner-Appellee,
v.
Stephen DALSHEIM, Respondent-Appellant.
No. 733, Docket 82-2230.
United States Court of Appeals,
Second Circuit.
Argued Jan. 25, 1983.
Decided March 18, 1983.
Susan L. Yarbrough, Asst. Atty. Gen., New York City (Robert Abrams, Atty. Gen. of the State of N.Y., Gerald J. Ryan, Asst. Atty. Gen., New York City, of counsel), for respondent-appellant.
Steven Lloyd Barrett, The Legal Aid Soc., Federal Defender Services Unit, New York City, for petitioner-appellee.
Before OAKES, PRATT, and WEISS,* Circuit Judges.
PER CURIAM:
This is an appeal from a judgment entered in the United States District Court for the Southern District of New York, Robert J. Ward, Judge, granting a petition for a writ of habeas corpus. The petitioner in this case, Michael Simmons, was convicted in 1976 of sodomy, robbery, and criminal possession of a weapon after a jury trial in the Supreme Court of New York, Bronx County. At trial, on direct appeal, and in his habeas petition, Simmons argued that the trial court's instructions to the jury regarding his alibi defense shifted the burden of proof and therefore violated his right to a fair trial. Judge Ward, in a thorough and careful opinion, granted the writ after concluding that the charge was erroneous and that the error could not be considered harmless. We affirm on the strength of Judge Ward's opinion. See Simmons v. Dalsheim, 543 F.Supp. 729 (S.D.N.Y.1982).
Judgment affirmed.
Of the United States Court of Appeals for the Third Circuit, sitting by designation