Sylvester Rollins v. Ross Maggio, Jr., Warden, Louisiana State Penitentiary, and William J. Guste, Jr., Attorney General, State of Louisiana , 711 F.2d 592 ( 1983 )

PER CURIAM:

Petitioner’s principal contention in this Section 2254 attack upon his Louisiana conviction complains of the court’s instruction to the jury. The judge told the jury that one who assaults another with intent to inflict great bodily harm has the specific intent of second degree murder and may be so convicted if the assaulted person dies from the assault. He explained that “the law feels that a person is presumed to intend the natural and probable consequences of his own deliberate act.” He further told the jury that the law would presume a deliberate and intentional killing where a man with little or no provocation kills another. The judge informed the jury that the state had the burden of proving, beyond a reasonable doubt, the intent to kill or inflict serious bodily harm; his added instructions were designed to explain that the intent might be proved by the circumstances.

The federal district judge approved the magistrate’s denial of this writ on the grounds of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) and Tyler v. Phelps, 643 F.2d 1095 (5th Cir. 1981). Petitioner makes no attempt to explain why these cases do not control, nor do we think it could be done. Assuming that the court’s instruction did shift or relieve the State of a burden of proof, it was necessary for Rollins to object to the charge under Louisiana law in order to preserve any error. State v. Tyler, 342 So.2d 574, 580 (La.), cert. denied, 431 U.S. 917, 97 S.Ct. 2180, 53 L.Ed.2d 227 (1977). When the Tyler case came here on habeas attack, we held that Wainwright v. Sykes precluded any relief by this court. Tyler v. Phelps, 643 F.2d 1095 (5th Cir.1981), cert. denied, 456 U.S. 935, 102 S.Ct. 1992, 72 L.Ed.2d 455 (1982).

The Louisiana trial court disposed of the collateral attack in five sentences, the following being the full statement relative to the claimed error in the jury charge: “There is no merit in petitioner’s claims that erroneous jury charges were given on the day of trial.” One might raise the question about the applicability of Wainwright v. Sykes if the Louisiana court denied habeas relief by ruling on the merits of the Sandstrom claim rather than holding it to have been waived. The Louisiana court’s sentence does not necessarily deal with the Sandstrom question. The court merely says that there is no merit to the claim of the habeas petitioner. We could say the very same thing, with or without citing Wainwright v. Sykes and Tyler v. Phelps. The state judge’s mere use of the word “merit” in denying the collateral attack does not justify a federal judge to conclude that the state judge ignored his state law and secretly weighed the constitutionality or harm of the instruction. The most probable conclusion is that he knew and applied the well settled Louisiana law to the effect that petitioner waived error by failing to object to the instruction. See, Preston v. Maggio, 705 F.2d 113 (5th Cir.1983).

Petitioner also raises the objection under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) that the evidence was insufficient. Because of the three eyewitnesses who testified that Rollins killed the unarmed man who had done no more than call petitioner “boy,” we see this argument as frivolous.

AFFIRMED.