Mosby v. Cain

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-30755
Summary Calendar
_____________________
CHARLES MOSBY,
Petitioner-Appellant,
v.
BURL CAIN, Acting Warden; RICHARD P. IEYOUB,
Attorney General,
Respondents-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Middle District of Louisiana
(93-CV-951)
_________________________________________________________________
March 4, 1996
Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Charles Mosby seeks relief under 28 U.S.C. § 2254, claiming
that he did not knowingly and intelligently waive his right to
trial by jury in connection with his conviction under Louisiana
law of second degree murder and his sentence to life imprisonment
without benefit of probation, parole, or suspension of sentence.
The district court denied Mosby's habeas petition. We affirm.
Procedural History
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
Mosby's application for state post-conviction relief began
with his "Assignment of Error No. #1" -- that "he did not make a
knowing and intelligent waiver of his fundamental right to trial
by jury in violation of his guarantee provided by the Sixth and
Fourteenth Amendment's [sic] to the United States Constitution."
Mosby buttressed his claim for relief by pointing out that the
state trial record failed to show that he made such a waiver.
The state district court determined that Mosby's claim was based
on a statutory right arising under La. Code Crim. Proc. Ann. art.
780 (West 1985), which did not raise a constitutional claim, and
the Louisiana Supreme Court denied Mosby's application for review
of the decision without written reasons.
Mosby filed a federal habeas corpus petition alleging again
that he did not make a knowing and intelligent waiver of his
right to trial by jury. He further argued that he was never
apprised by the court or counsel of his right to a jury trial.
The respondent answered and conceded that Mosby had exhausted his
state remedies. The respondent argued that Mosby was merely
raising a state statutory claim that did not give rise to a
constitutional right. The respondent further argued that the
claim was without merit as a matter of state law because Mosby
failed to make a motion in arrest of judgment in the trial court
and, thus, did not preserve the error on appeal. Finally, the
respondent argued that the state court record reflects that Mosby
had validly waived his right to a jury trial.
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The magistrate judge concluded that the state court record
did not contain sufficient evidence to show that Mosby had
knowingly and intelligently waived his right to a jury trial, and
that there were no binding factual findings at the state court
level that were entitled to a presumption of correctness.
Accordingly, the magistrate judge scheduled an evidentiary
hearing and appointed counsel for Mosby.
Evidentiary Hearing
At the hearing, Leon Jackson testified that he had
represented Mosby in May 1982. Jackson related that he had
reviewed his file concerning Mosby, but admitted that he had no
independent recollection of the case. Jackson stated that he had
a standard practice of advising clients charged with felonies of
their right to a trial by jury. According to Jackson, his
handwritten notes reflected that Mosby had requested a judge
trial on the day of his trial.
Mosby testified at some length. He testified that he met
Leon Jackson about fifteen minutes prior to trial and Jackson
told him that they were proceeding with a judge trial. Mosby
stated that he had never gone to trial before and he relied on
the lawyer's advice. Mosby testified that he was not aware that
he was entitled to a jury trial after talking to Jackson. He
acknowledged that he had been represented by other counsel prior
to Jackson's appointment, but did not recall being represented by
a Jeff Calmes at his preliminary hearing. Mosby claimed that he
did not become aware that he had been entitled to a jury trial
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until 1987, five years after he had been imprisoned. Mosby
admitted that he had been arrested for several felonies prior to
the instant offense, but denied discussing his right to trial by
jury with any of his attorneys.
The respondent filed several affidavits into the record at
the hearing, including one by Jeff Calmes who had represented
Mosby at his preliminary hearing. Calmes also had no independent
recollection of his representation of Mosby, but stated that as a
matter of course, he always advised his clients of their right to
a jury trial.
Findings of Fact and Conclusions of Law
The magistrate judge filed a report containing detailed
findings of fact and conclusions of law. The magistrate judge
specifically found that Mosby knowingly and intelligently agreed
with the decision to go to trial without a jury. Mosby filed
objections to the magistrate judge's findings and conclusions.
The district court adopted the magistrate judge's recommendation
and denied Mosby's habeas petition. Mosby appealed, and filed a
motion for a certificate of probable cause which this court
granted.
Procedural Bar
As an initial matter, the respondent is arguably asserting a
procedural bar to our consideration of Mosby's challenge to his
conviction. The respondent argues that, under state law, a
defendant cannot raise the waiver issue for the first time on
appeal and that Mosby was required under state law to raise the
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issue in a motion in arrest of judgment, which he failed to do.
We note that the respondent did not specifically argue
"procedural bar" in the district court. Assuming arguendo that
the respondent is making such an argument here, and that we would
permit such an argument for the first time on appeal, it is
enough to dispose of it to say that this court will not invoke a
state procedural bar that the state courts have not addressed.
See Ratcliff v. Estelle, 597 F.2d 474, 477 (5th Cir.), cert.
denied, 444 U.S. 868 (1979). The last state court to render a
reasoned judgment in this case, i.e., the state district court,
did not do so based on Mosby's failure to follow proper state law
procedure. Instead, the state court reviewed Mosby's petition
and determined that his allegations did not provide a basis for
postconviction relief. Thus, even if the respondent had
adequately invoked the procedural bar, it does not bar federal
review of Mosby's petition.
Merits of Mosby's Constitutional Claim
Turning to the merits, Mosby argues that he was denied the
right to a jury trial and that he would have elected to proceed
before a jury if he had known that he had an opportunity to do
so. The respondent is correct that the failure to comply with a
state procedural rule does not raise a federal constitutional
issue subject to habeas review. See Stewart v. Estelle, 634 F.2d
998, 999 (5th Cir. 1981). However, Mosby clearly argued in state
court that he did not make a knowing and intelligent waiver of
his right to trial by jury. He also argued, whether simply as
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support for his main argument or as an additional argument, that
the record did not reflect that he made a knowing waiver in the
form required under Louisiana statutory law. But, as the
magistrate judge and the district judge correctly recognized, if
Mosby's state court application presented the issue of the
voluntariness of the waiver to the state court -- as it did --
the fact that the state court did not address the merits of the
claim cannot obviate the necessity for the federal courts to
address it.
Mosby argues that the case of Jackson v. Hopper, 547 F.2d
260 (5th Cir.), cert. denied, 434 U.S. 842 (1977), is
distinguishable from his case because Jackson had signed a
written waiver and his counsel testified that he had advised
Jackson of his right to a jury trial. He argues that there is no
written documentation of a waiver in his case and neither of his
counsel could positively testify that he had advised Mosby of his
rights. Thus, Mosby argues, there was insufficient evidence to
support the district court's determination that he knowingly
waived his right to a jury trial.
The right to trial by jury may be waived only when the
defendant's decision is voluntary, knowing and intelligent. See
Patton v. United States, 281 U.S. 276, 312 (1930). "[W]hether or
not there is an intelligent, competent, self-protecting waiver of
jury trial by an accused must depend upon the unique
circumstances of each case." Adams v. United States ex rel
McCann, 317 U.S. 269, 278 (1942). A habeas petitioner has the
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burden of establishing that he did not competently and
intelligently waive his constitutional rights. See Johnson v.
Zerbst, 304 U.S. 458, 468-69 (1938).
In this case, a minute entry entered at the commencement of
the trial reflected that Mosby was present at the time that his
counsel informed the court that Mosby wished to waive trial by
jury and had elected to be tried by the judge. A minute entry
standing alone is not sufficient to establish that the defendant
waived his right to trial by jury. See Williford v. Estelle, 672
F.2d 552, 554-55 (5th Cir.), cert. denied, 459 U.S. 856 (1982).
However, the minute entry, read in conjunction with the testimony
and affidavits presented at the federal evidentiary hearing,
reflect that both counsel who represented Mosby had a practice of
advising their clients of their right to a jury trial and
supported the magistrate judge's conclusion that Mosby was aware
that counsel was waiving that right on his behalf at the
commencement of his trial.
Jackson is relevant to this case in that it reflects this
court's decision to rely on the district court's factual
determination concerning the credibility of the petitioner's
testimony. Here, the magistrate judge, after hearing the
testimony of Mosby and his counsel, determined that Mosby had
knowingly and intelligently waived his right to a jury trial.
Those findings were adopted by the district court. The record
evidence supporting that conclusion leads us to decide that the
finding was not clearly erroneous. See Gomez v.Collins, 993 F.2d
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96, 98 (5th Cir. 1993) (determination whether petitioner had
intelligently waived his right to counsel was a factual
determination, subject to clearly erroneous standard).
The judgment of the district court is AFFIRMED.
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