     Case: 08-30631     Document: 00511019048          Page: 1    Date Filed: 02/02/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                          February 2, 2010

                                       No. 08-30631                    Charles R. Fulbruge III
                                                                               Clerk

ELLIOT J SCOTT, also known as Calvin Scott,

                                                   Petitioner – Appellant
v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                                   Respondent – Appellee




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:07-CV-6430


Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Pro se Petitioner-Appellant Elliot Scott, pursuant to a Certificate of
Appealability issued by this court, appeals the district court’s dismissal of his
petition for a writ of habeas corpus. Scott contends that a state trial court
denied his Sixth Amendment right to a jury trial. We affirm.




        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                        FACTS AND PROCEEDINGS
      In 1997, Scott was convicted, after a bench trial, of simple robbery in
violation of L A. R EV. S TAT. A NN. § 14:65. The Louisiana Fourth Circuit Court of
Appeal summarized the underlying facts in its opinion affirming the conviction:
         On January 19, 1997, Elliott Scott (a/k/a Calvin Scott), the
         defendant, entered the Winn-Dixie grocery store on
         Almonaster Boulevard and got in the checkout line. When the
         cashier rang up a sale and opened the cash drawer, the
         defendant pushed ahead of the customer in front of him,
         jumped over the counter, grabbed cash from the drawer and
         attempted to flee. The cashier screamed, and this alerted the
         manager. The manager then ran after and apprehended the
         defendant, who had stuffed the cash in his mouth. When the
         police arrived, the manager was restraining the defendant on
         the ground in the store parking lot.

State v. Scott, 775 So. 2d 717 (La. Ct. App. 2000) (Table) (“Scott I”).
      Before the trial, the judge held an off-the-record bench conference with the
prosecutor and Scott’s defense counsel. The following exchange, which led to
Scott’s Sixth Amendment claim, followed:
         BY THE COURT:
             All right.
             Sir, you have a right to be tried before a Judge or a Jury.
             Make your selection.

         BY THE DEFENDANT:
             Judge, Your Honor.

         BY THE COURT:
             All right.
             You want a judge trial.
             Are we prepared to go forward with this trial now?

         BY [THE PROSECUTOR]:
              Yes, Judge.




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            BY [DEFENSE COUNSEL]:
                 Yes, Your Honor.

After a short delay, the prosecutor made her opening statement. The judge then
heard testimony from three witnesses for the prosecution. The defense rested
without putting on any witnesses, the lawyers made their closing arguments,
and the judge found Scott guilty as charged. Scott did not object to the absence
of a jury at any point during the trial, and he has never claimed that he was
coerced into accepting a bench trial. He does allege, however, that his attorney
did not counsel him on the difference between bench and jury trials.
      After Scott’s conviction, the State filed a multiple bill of information
alleging that the conviction made him a third-felony offender.1 After an appeal
on the third-felony issue, the state intermediate appellate court remanded the
case with instructions to sentence Scott as a third-felony offender. In May 1998,
the state trial court sentenced him to life imprisonment.
      Scott appealed his conviction. He made six assignments of error, including
a claim that the trial court erred by failing to ascertain whether he had
knowingly and voluntarily waived his right to a jury trial.                     The state
intermediate appellate court affirmed the conviction in an unpublished opinion.2
It noted that Louisiana law allows defendants in non-capital cases to “‘knowingly
and intelligently waive a trial by jury and elect to be tried by the judge.’” Scott
I at 7 (quoting L A. C ODE C RIM. P ROC. A NN. art. 780). “Where the trial judge
personally advises the defendant in open court of his right to trial by jury, and
defendant then personally states that he wishes to have trial before the judge,”
the court stated, “the evidence establishes that the defendant knowingly and
intelligently waived his right to trial by jury.” Id. (citing State v. Sanders, 567


      1
          See LA . REV . STAT . ANN . § 15:529.1.
      2
          Scott I.

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So. 2d 177 (La. Ct. App. 1990)). It found that Scott knowingly and voluntarily
waived the right. Id. The Louisiana Supreme Court denied Scott’s applications
for a supervisory writ without opinion.3
       Scott applied for and was denied state post-conviction relief on his jury
trial claim, among others.4 He then filed a petition for federal habeas corpus
relief in the United States District Court for the Eastern District of Louisiana.
The petition raised seven grounds for relief, including the jury trial claim. A
magistrate judge issued a report and recommendation recommending that
Scott’s claims be denied and that his petition be dismissed with prejudice. Scott
objected. The district court overruled his objections and adopted the report and
recommendation, with one amendment not relevant here. The court granted
judgment in favor of the State and denied Scott’s motion for a Certificate of
Appealability.




       3
         State v. Scott, 801 So. 2d 362 (La. 2001) (Table). In State ex rel. Scott v. State, 799 So.
2d 499 (La. 2001) (Table), the Louisiana Supreme Court denied a second application for a
supervisory writ that appealed sentencing issues not before this court. Additionally, Scott
initiated a separate direct appeal challenging his sentence. That appeal, which also raised
issues not before this court, was denied by the intermediate appellate court and the Louisiana
Supreme Court; the United States Supreme Court subsequently denied Scott’s application for
a writ of certiorari. See State v. Scott, 888 So. 2d 1170 (La. Ct. App. 2004) (Table); State v.
Scott, 899 So. 2d 557 (La. 2005) (Table); Scott v. Louisiana, 546 U.S. 893 (2005) (Table).
       4
          There is no record of a hearing or ruling by the state trial court. The Louisiana
Fourth Circuit Court of Appeal, however, accepted Scott’s writ application. In August 2006,
it reviewed his post-conviction claims and denied them for failure to demonstrate entitlement
to relief. In June 2007, the Louisiana Supreme Court denied Scott’s supervisory writ
application without a written opinion. State ex rel. Scott v. State, 958 So. 2d 1186 (La. 2007)
(Table). Scott made a third attempt to have his sentence reversed by filing motions to correct
the sentence with the trial court in March 2007. It does not appear that any action was taken,
and the state intermediate appellate court subsequently sent the matter back to the trial court
for a hearing. The record does not reflect that these final motions were ever ruled on.
Regardless, Scott exhausted his state habeas remedies as to the issue on which this court
granted a COA before filing his federal habeas petition, and the state explicitly waived any
exhaustion argument. R. 399.

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       Scott timely noticed an appeal to this court. We granted him a Certificate
of Appealability on the question whether he “expressly and intelligently waived
his right to a jury trial.”
                               STANDARD OF REVIEW
       “In a habeas corpus appeal, we review the district court’s findings of fact
for clear error and review its conclusions of law de novo, applying the same
standard of review to the state court’s decision as the district court.” Foster v.
Johnson, 293 F.3d 766, 776 (5th Cir. 2002) (quotation omitted).                               The
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governed the
district court’s review of Scott’s petition. Under AEDPA, when a federal habeas
petitioner’s claim has been adjudicated on the merits in a state court proceeding,
a federal court must defer to the state court’s decision unless the adjudication
of the claim:
           (1) resulted in a decision that was contrary to, or involved an
           unreasonable application of, clearly established Federal law,
           as determined by the Supreme Court of the United States; or
           (2) resulted in a decision that was based on an unreasonable
           determination of the facts in light of the evidence presented
           in the State court proceeding.

28 U.S.C. § 2254(d); see Rogers v. Quarterman, 555 F.3d 483, 488 (5th Cir. 2009).
       When applying the “contrary to” clause of § 2254(d)(1), “a federal court
may only grant habeas relief if the state court 5 decided a case differently than
the United States Supreme Court previously decided a case on a set of nearly
identical facts.”     Taylor v. Cain, 545 F.3d 327, 334 (5th Cir. 2008).                   When


       5
         The state court did not rule on Scott’s application for habeas relief in written opinions.
But, because we review only “the reasonableness of the state court’s ultimate decision, the
AEDPA inquiry is not altered when, as in this case, state habeas relief is denied without an
opinion.” Schaetzle v. Cockrell, 343 F.3d 440, 443 (5th Cir. 2003). In this situation, the court
“(1) assumes that the state court applied the proper ‘clearly established Federal law’; and (2)
then determines whether its decision was ‘contrary to’ or ‘an objectively unreasonable
application of’ that law.” Id.

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applying the “unreasonable application” clause, “a court may grant habeas relief
if the state court misapplied the relevant legal principles to the facts.” Id.
Because no United States Supreme Court case has facts nearly identical to those
before us, Scott’s appeal is governed by AEDPA’s “unreasonable application”
prong. See id. “The question under AEDPA is not whether a federal court
believes the state court’s determination was incorrect but whether that
determination was unreasonable—a substantially higher threshold.” Schriro v.
Landrigan, 550 U.S. 465, 473 (2007).
                                  DISCUSSION
      The Constitution guarantees criminal defendants the right to a trial by
jury for serious offenses. U.S. Const. art. III, § 2, cl. 3 (“The Trial of all Crimes,
except in Cases of Impeachment, shall be by Jury”); id. at amend. VI (“In all
criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial, by an impartial jury of the State and district wherein the crime shall have
been committed.”);6 Duncan v. Louisiana, 391 U.S. 145, 158 (1968) (holding that
a jury trial is not constitutionally required for petty offenses). The Supreme
Court has long recognized, however, that defendants have the right to waive a
trial by jury. Patton v. United States, 281 U.S. 276, 297-99 (1930), abrogated on
other grounds by Williams v. Florida, 399 U.S. 78 (1970).
      More generally, the Court has held that the waiver of a constitutional
right is not presumed, that the waiver must be knowing and intelligent, and that
“courts [must] indulge every reasonable presumption against waiver of
fundamental constitutional rights.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938)
(quotation omitted); see also Schneckloth v. Bustamonte, 412 U.S. 218, 241-42
(1973).   In Brady v. United States, the Court held that “[w]aivers of
constitutional rights not only must be voluntary but must be knowing,

      6
       The Sixth Amendment applies to the states through the Due Process Clause of the
Fourteenth Amendment. See Gideon v. Wainwright, 372 U.S. 335, 342-45 (1963).

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intelligent acts done with sufficient awareness of the relevant circumstances and
likely consequences.” 397 U.S. 742, 748 (1970). The question whether waiver
is proper “depend[s] on the unique circumstances of each case.” Adams v. United
States ex rel. McCann, 317 U.S. 269, 278 (1942). Additionally, the waiver of a
constitutional right cannot be presumed from a silent record.                     Boykin v.
Alabama, 395 U.S. 238, 242 (1969).
       Scott argues that his decision to be tried by a judge rather than a jury was
not knowing and intelligent because he did not understand, and was not
sufficiently informed about, the consequences of the choice. Scott attributes his
lack of knowledge to the court’s failure to hold a more full colloquy that included
a discussion of the number of community members that constitute a jury, the
defendant’s ability to participate in the selection of jurors, the requirement that
a jury verdict be unanimous,7 and the fact that the judge alone will decide guilt
or innocence in the absence of a jury.
       It is not clearly established, however, that the lack of a full colloquy
invalidates an otherwise voluntary waiver.              This court has held that the
“decision to proceed with a bench trial without [the defendant’s] specific
acquiescence . . . runs afoul of the Constitution.” United States v. Mendez, 102
F.3d 126, 130 (5th Cir. 1996). Scott, however, explicitly agreed to be tried by the
judge rather than a jury. We have also found that there was no knowing and
intelligent waiver when “[t]he trial transcript is devoid of any discussion
between the court and petitioner concerning his express and intelligent waiver
of a jury trial.” Landry v. Hoepfner, 818 F.2d 1169, 1178 (5th Cir. 1987), rev’d
on other grounds by 840 F.2d 1201 (5th Cir. 1988) (en banc) (holding that
petitioner did not have an underlying Sixth Amendment right to a jury trial in
the first instance). Here, though, the record is not silent. It shows that Scott

       7
         In Louisiana, not all jury verdicts in non-capital cases require unanimity. See State
v. Mizell, 938 So.2d 712, 717 (La. Ct. App. 2006).

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was informed of his right to be tried by a jury or by a judge, and that he chose
the latter. The manner in which the state court explained the jury right was, to
be sure, far from ideal. Were we considering Scott’s case in the first instance,
whether he knowingly and intelligently waived his right to a jury trial would
present a close question. But, given the deferential AEDPA standard under
which we review state habeas decisions, we cannot say that the state court’s
determination that Scott validly waived his jury right applied clearly established
federal law in an “objectively unreasonable” manner. Bell v. Cone, 535 U.S. 686,
699 (2002).
       In support of his theory, Scott cites Coronado v. Lefevre, 748 F. Supp. 131
(S.D.N.Y. 1990). The Coronado court noted that, while the Second Circuit had
not required a specific colloquy between the trial court and defendant to
establish that a jury waiver was knowing and intelligent, “the Seventh Circuit
requires that the trial judge explain to the defendant that a jury is composed of
12 members of the community, and that if a defendant waives a jury trial, a
judge alone will decide his guilt or innocence.” Id. at 141 n.14 (citing United
States ex rel. Williams v. DeRobertis, 715 F.2d 1174, 1175 (7th Cir. 1983).
       In DeRobertis, however, the Seventh Circuit stated that its requirement
that federal district courts explain several elements of the jury trial 8 to
defendants before accepting a waiver was promulgated pursuant to the circuit
court’s “supervisory power over lower federal courts of the circuit.” Id. at 1177-
78. Even the district court, which DeRobertis reversed, acknowledged that the
elements of the circuit’s colloquy requirement “were tailored to the federal
system and could not be applied as written when considering a habeas petition


       8
         Namely, “(1) that a jury is composed of twelve members of the community, (2) that the
defendant may participate in the selection of jurors, (3) that the verdict of the jury must be
unanimous, and (4) that if the defendant waives a jury trial, the judge alone will determine
guilt or innocence.” Id. at 1178 (citing United States v. Delgado, 635 F.2d 889, 890 (7th Cir.
1981)).

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from a state prisoner.” Id. at 1178. Recognizing that it “might be wise for states
to require that criminal defendants be informed” of the elements of a jury trial,
the Seventh Circuit held that “awareness of the two jury attributes at issue
here . . . is not constitutionally required for a knowing and intelligent jury
waiver.” Id. It ultimately upheld the jury waiver, noting that the defendant
“understood that the choice confronting him was, on the one hand, to be judged
by a group of people from the community, and on the other hand, to have his
guilt or innocence determined by a judge.” Id. at 1180. In Scott’s case, it was not
objectively unreasonable for the state court to decide that he understood the
choice confronting him and validly waived the right.
      Additionally, neither this court nor the Supreme Court has defined fact-
specific constitutional minima for a valid jury waiver, found a jury waiver
insufficient in a situation analogous to Scott’s, or required a set colloquy before
a jury waiver can be accepted. In United States v. Igbinosun, this court held
that, where a federal defendant executed the written waiver required under
F EDERAL R ULE OF C RIMINAL P ROCEDURE 23(a), she could not overcome the
presumption that her waiver was knowing and intelligent by showing that the
trial judge “did not inform her that a jury is comprised of twelve individuals,
that she could take part in jury selection, and that the jury verdict must be
unanimous.” 528 F.3d 387, 390 (5th Cir. 2008). Indeed, where a written waiver
is executed, we have held that “it is not necessary that the district court orally
examine the defendant to determine if the [written] waiver was intelligently
made.” United States v. Gordon, 712 F.2d 110, 115 (5th Cir. 1983).
      Igbinosun emphasized that “the better practice” would be for district
courts to engage in a colloquy about the function of a jury and the difference
between a bench and jury trial, and cited cases from a number of other circuits
that “strongly suggest” the same. 528 F.3d at 390 n.4. Rather than support



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Scott’s position, this undercuts it: the “better practice” implies a preference, not
a requirement, and thus cannot be said to constitute a constitutional minimum.
       Finally, Scott cites several Louisiana cases in support of his argument.
The two cited cases in which the state court found a jury waiver invalid involved
a defense counsel waiver of the right, not a personal waiver, as in Scott’s case.
See State v. Onstead, 922 So. 2d 622 (La. App. Ct. 2006); State v. Lokey, 889 So.
2d 1151 (La. Ct. App. 2004). Other Louisiana cases have found that waivers
similar to the one Scott gave were knowing and intelligent. See State v. Lee, 826
So. 2d 616, 622 (La. Ct. App. 2002); State v. Long, 408 So. 2d 1221, 1228-29 (La.
1982).
       This court has “no authority to grant habeas corpus relief simply because
we conclude, in our independent judgment, that a state supreme court’s
application of federal law is erroneous or incorrect.” Martinez v. Dretke, 404 F.3d
878, 884 (5th Cir. 2005) (quotation and alteration omitted). Here, the state court
found that Scott’s waiver did not offend the Constitution, and thus that it was
voluntary, knowing, and intelligent.      The minimum factual threshold for a
knowing and intelligent personal waiver of the right to a jury trial is an open
question when a defendant voices his preference for a bench trial in person.
Thus, AEDPA decides the issue: we cannot say that the state court’s decision
here was an objectively unreasonable application of clearly established federal
law.
                                 CONCLUSION
       The district court’s dismissal of Scott’s habeas corpus petition is
AFFIRMED.




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