Not for Publication in West's Federal Reporter

          United States Court of Appeals
                        For the First Circuit

No. 08-1744

                            WILLIAM PIMENTAL,

                        Petitioner, Appellant,

                                      v.

                    LUIS SPENCER, SUPERINTENDENT,
                             MCI NORFOLK,

                         Respondent, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Rya W. Zobel,       U.S. District Judge]


                                   Before

                          Lynch, Chief Judge,
                Torruella and Howard, Circuit Judges.



     William Pimental on brief pro se.
     Scott A. Katz, Assistant Attorney General, and Martha
Coakley, Attorney General, on brief for appellee.



                             January 9, 2009
            Per Curiam.      In this petition for habeas relief under 28

U.S.C. § 2254, we affirm the judgment substantially for the reasons

recited in the district court's decision, adding only the following

comments.

            Although petitioner filed a formal notice of appeal

outside the normal 30-day appeal period, he filed a COA application

and an accompanying affidavit within that period.               We find these

documents to be the "functional equivalent" of a notice of appeal,

since   they       gave   the   "pertinent      information"    and   "plainly

evidence[d] an intention to appeal." Campiti v. Matesanz, 

, 320 (1st Cir. 2003).         As respondent acknowledges, the appeal

is thus timely.

            Petitioner challenges the sufficiency of the evidence

showing that he was in constructive possession of a stash of

cocaine, which was found in the basement of the house in which he

and   his   wife    lived.      Proof   of    constructive   possession   under

Massachusetts law requires two elements: (1) knowledge, and (2) the

ability and intention to exercise dominion and control. See, e.g.,

Commonwealth v. Sespedes, 

, 793 (Mass. 2004).                 At

trial, petitioner sought to rebut this theory by arguing that the

house was a two-family dwelling and the basement was a common area.

The Appeals Court held that the evidence on this point, although

"somewhat inconsistent," was sufficient to warrant submission to



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the jury.   Commonwealth v. Pimental, 

, at *2 (Mass.

App. Ct. 2006).

            As an aside, we note that petitioner's challenge would

likely fall short even on the arguendo assumption that the house

was a two-family dwelling.         Cf. Commonwealth v. Velasquez, 

, 402 (Mass. App. Ct. 1999) ("That others in the building

also had access to the basement and might have hidden drugs in the

basement does not require a finding of not guilty in favor of

Velasquez."); Commonwealth v. Montanez, 

, 1383

(Mass. 1991) (similar).      But no such assumption need be made here,

for when the record "supports conflicting inferences," a federal

habeas court "must presume ... that the trier of fact resolved any

such conflicts in favor of the prosecution, and must defer to that

resolution."     Jackson v. Virginia, 

, 326 (1979).            We

can thus proceed on the assumption that the house was a one-family

dwelling.

            A   challenge   to   the   sufficiency   of   the   evidence   is

governed by the constitutional standard set forth in Jackson:

"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." 

(emphasis deleted).      As the district court properly observed,

"the inquiry is not whether the Appeals Court was correct in

finding the evidence of constructive possession sufficient to


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support a conviction beyond a reasonable doubt, but rather whether

its judgment amounted to a decision that unreasonably applied

Jackson."    Pimental v. Spencer, 

, at *3 (D. Mass.

2008) (applying 28 U.S.C. § 2254(d)); accord, e.g., Hurtado v.

Tucker, 

, 14-20 (1st Cir. 2001).                For the reasons

enumerated by the district court, the Appeals Court cannot be said

to have unreasonably applied the Jackson standard.               See Pimental,

, at *3-*4 (describing circumstantial evidence of

guilt and noting lack of any indication "that the Appeals Court

ignored material evidence or failed to give appropriate weight to

all of the evidence").

            Petitioner properly acknowledges in his brief that he

faces   a   "heavy   burden"   in    seeking   habeas   relief    based    on   a

challenge to the sufficiency of the evidence.               In Hurtado, we

stated that, "as a general rule,"

            federal courts should be particularly cautious
            about issuing habeas, on grounds of the
            objective unreasonableness of a state court's
            conclusion that the evidence is sufficient,
            where there has been a verdict of guilt by a
            jury of a defendant's peers, where the
            defendant's credibility was evaluated by the
            jury hearing his testimony, where that verdict
            has been affirmed on appeal in the state
            system, and where there is no claim of
            constitutional error in the conduct of the
            

.         Although one distinguishing factor is that

petitioner    here   did    not     testify,   we   nonetheless     find   this

cautionary note equally applicable in the present case.

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Affirmed.




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