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Senk v. Zimmerman

argued: June 29, 1989.

FRANK EARL SENK, APPELLANT
v.
CHARLES H. ZIMMERMAN, SUPERINTENDENT AND LEROY ZIMMERMAN, ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA



On Appeal from the United States District Court for the Middle District of Pennsylvania, D.C. Civil Action No. 87-1533.

Mansmann, Scirica and Seitz, Circuit Judges.

Author: Scirica

Opinion OF THE COURT

SCIRICA, Circuit Judge.

Frank Earl Senk appeals the denial of his petition for writ of habeas corpus. The petition alleges that Senk was denied his sixth amendment right to effective assistance of counsel by virtue of his lawyer's failure to pursue, in post-trial motions and on appeal, a challenge to the trial court's charge on first degree murder, which Senk alleges contained an impermissible mandatory presumption on the element of intent. The district court held that because the judicial decisions that arguably render unconstitutional the jury instruction on intent were not decided until many years after Senk's trial, his counsel's failure to pursue the claim did not rise to the level of ineffective assistance. We will affirm.

I.

On April 5, 1962, Senk was convicted of first degree murder in the Court of Common Pleas of Columbia County, Pennsylvania. In the jury charge, the trial court gave the following instruction:

[In] all cases of malicious killing, if no intention to kill can be inferred or collected from the circumstances, then the verdict would be guilty of murder of the second degree.

Our courts have held that the intentional, unlawful and fatal use of a deadly weapon upon a vital part of the body gives rise to a presumption of fact that [malice] and intention to kill exists. This would likewise apply to repeated blows, or a severe blow upon a [vital] part of the body. This is a presumption of fact based upon common knowledge that such conduct is reasonably likely to cause death. Every person is presumed to intend the natural and probable consequences of his act or acts. Therefore, if one does an act, the consequences of which are almost certain to cause death, there would be a presumption that that was what he intended to do. Being a presumption of fact, it may be rebutted only by other circumstances in the case. This is solely a jury question.

At the conclusion of the court's charge, trial counsel made the following objection:

And now, April 5th, counsel for the defendant respectfully excepts to the Charge in general, and specifically, to that part of the Charge wherein the Court stated in substance that the jury could presume from the use of a deadly weapon that the defendant must have known that his act was likely to cause death, and knowing this, he must be presumed to intend the death which was the probable and ordinary consequence of such an act.

Trial counsel did not, however, pursue this claim in post-verdict motions or on direct appeal.*fn1 This claim was also ignored in the course of two post-conviction petitions and two federal petitions for writ of habeas corpus.*fn2 Trial counsel filed Senk's first post-conviction petition. In the subsequent collateral proceedings, Senk pursued his claims either pro se or with the assistance of three different attorneys.

For the first time, in April, 1983, in his third petition under the Pennsylvania Post Conviction Hearing Act, 42 Pa.Cons.Stat.Ann. ยง 9541 et seq. (1982), Senk alleged that he received ineffective assistance of counsel at trial and on appeal because counsel failed to challenge the jury instruction on intent. The Court of Common Pleas' denial of his petition was affirmed without opinion by the Pennsylvania Superior Court. Commonwealth v. Senk, 341 Pa.Super. 619, 491 A.2d 921 (1985). The Pennsylvania Supreme Court denied Senk's Petition for Allocatur. Allocatur docketed, No. 351 (Pa. 1985), Allocatur denied, Dec. 31, 1986. Thereafter, Senk filed his third petition for writ of habeas corpus, claiming he received ineffective assistance of counsel because his lawyer failed to pursue a challenge to the constitutionality of the jury instruction on intent. On August 18, 1988, the United States Magistrate recommended that Senk's petition be denied, concluding that defense counsel's performance was not ineffective, as it did not fall below ...


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