Senk v. Zimmerman

• Decision Date: 26 October 1989
• Docket Number: No. 88-5794,88-5794
• Citation: 886 F.2d 611
• Parties: Frank Earl SENK, Appellant v. Charles H. ZIMMERMAN, Superintendent and Leroy Zimmerman, Attorney General of the State of Pennsylvania.
• Court: U.S. Court of Appeals — Third Circuit

Page 611

886 F.2d 611

Frank Earl SENK, Appellant v. Charles H. ZIMMERMAN, Superintendent and Leroy Zimmerman Attorney General of the State of Pennsylvania.

No. 88-5794.

United States Court of Appeals Third Circuit.

Argued June 29, 1989.

Decided Sept. 29, 1989.

Rehearing and Rehearing In Banc Denied Oct. 26, 1989.

D. Toni Byrd (argued), Federal Public Defender's Office, Harrisburg, Pa., Melinda C. Ghilardi, Federal Public Defender's Office, Scranton, Pa., for appellant.

Andrea F. McKenna (argued), Office of Atty. Gen., Harrisburg, Pa., for appellees.

Before MANSMANN, SCIRICA and SEITZ, Circuit Judges.

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:

[I]n 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 ma[l]ice and intention to kill exists. This would likewise apply to repeated blows, or a severe blow upon a vita[l] 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. ¹ This claim was also ignored in the course of two post-conviction petitions and two federal petitions for writ of habeas corpus. ² 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. Sec. 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 the objective standard of reasonableness set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The district court adopted the magistrate's report and dismissed Senk's petition. In October, 1988, Senk filed this appeal. ³

II.

Senk claims that his trial counsel and all subsequent counsel were ineffective for failing to pursue a merited claim, i.e., the unconstitutionality of the jury instruction on intent. Citing Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), and Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), both decided at least seventeen years after his trial, Senk contends that the jury instruction was unconstitutional because a reasonable jury could have viewed the instruction as including either a "mandatory conclusive presumption" or a "mandatory rebuttable presumption" as to his intent to kill.

In Sandstrom, the defendant argued at his state trial that his personality disorder, aggravated by alcohol consumption, prevented him from forming the requisite intent for "deliberate homicide." The trial court instructed the jury that "[t]he law presumes that a person intends the ordinary consequences of his voluntary acts." The Supreme Court, granting certiorari "to decide the important question of the instruction's constitutionality," 442 U.S. at 514, 99 S.Ct. at 2454, ruled that both a mandatory conclusive (i.e., irrebuttable) presumption, which requires the jury to find intent, and a mandatory rebuttable presumption, which requires the jury to find intent unless the defendant offers evidence to the contrary, violate the Due Process Clause of the Fourteenth Amendment by relieving the prosecution of the burden of proving every element of the crime. See Sandstrom, 442 U.S. at 521-24, 99 S.Ct. at 2457-59. While Sandstrom suggested that a trial court could constitutionally instruct the jury to draw "permissive inferences" from defendant's acts, 442 U.S. at 519, 99 S.Ct. at 2456, in Francis v. Franklin, the Court made explicit that a "permissive inference" does not violate the Due Process Clause, unless the suggested conclusion is "not one that reason and common sense justify in light of the proven facts," 471 U.S. at 315, 105 S.Ct. at 1971.

In Senk's case, the jury was informed that the presumption on intent "may be rebutted ... by other circumstances in the case," and that the question of intent is "solely a jury question." The instruction, therefore, did not create a "conclusive mandatory presumption." Senk also argues, however, that the instruction created a "mandatory rebuttable presumption." In contrast, the Commonwealth maintains that the instruction created a "permissive inference" that did not impermissibly shift the burden of proof to the defendant.

Senk claims that his sixth amendment rights to effective assistance of counsel at trial, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, and in his first appeal as of right, Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985), were violated. ⁴ Thus, Senk's contention that he is entitled to relief only indirectly implicates the Sandstrom and Francis decisions, as we are concerned with his attorney's performance and not simply whether the Sandstrom-Francis rule was violated. See Government of the Virgin Islands v. Forte, 865 F.2d 59, 63 (3d Cir.1989). ⁵ We will therefore assume arguendo that the instruction on intent was a mandatory rebuttable presumption, not a permissive inference, and evaluate the effectiveness of counsels' performance in light of the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052. Moreover, while Strickland itself concerned the sufficiency of trial counsel, this court has applied the same standard when measuring the performance of both trial and appellate counsel. See Diggs v. Owens, 833 F.2d 439, 444-45 (3d Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1277, 99 L.Ed.2d 488 (1988).

In Strickland, the Supreme Court held that "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." 466 U.S. at 686, 104 S.Ct. at 2064; McNeil v. Cuyler, 782 F.2d 443, 447-49 (3d Cir.), cert. denied, 479 U.S. 1010, 107 S.Ct. 654, 93 L.Ed.2d 709 (1986). Thus, a defendant claiming ineffective assistance of counsel must show that counsel's performance was "deficient," and that this deficiency deprived defendant of a trial "whose result is reliable." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. To demonstrate that counsel's performance was deficient, defendant must show that "counsel's representation fell below an objective standard of reasonableness," id. at 688, 104 S.Ct. at 2064, based on the "facts of the particular case, viewed as of the time of counsel's conduct," id. at 690, 104 S.Ct. at 2066. Moreover, the Court admonished that our scrutiny of counsel's performance must be "highly deferential." Id. at 689, 104 S.Ct. at 2065. The Court's cautionary words regarding the twenty-twenty vision afforded by hindsight prove particularly applicable to this case:

It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or...