                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-1918
                                   ___________

James Miller,                           *
                                        *
                     Appellee,          *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Eastern District of Missouri.
Dave Dormire,                           *
                                        *
                    Appellant.          *
                                   ___________

                             Submitted: September 10, 2002

                                  Filed: November 12, 2002
                                   ___________

Before WOLLMAN, HEANEY and BYE, Circuit Judges.
                         ___________

HEANEY, Circuit Judge.

       James Miller was charged in Missouri state court with trafficking six grams or
more of a cocaine base substance in violation of Mo. Rev. Stat. §195.223.3(2) (1994).
He was convicted after a bench trial and sentenced as a persistent offender to twenty
years imprisonment without the possibility of parole. After exhausting state court
remedies, Miller sought federal habeas relief under 28 U.S.C. § 2254, alleging that
trial counsel’s waiver of his right to a jury trial was made without his consent or
understanding. The district court1 granted a writ of habeas corpus, and the
government appeals. We affirm.

I.    Background

      At trial, the state court judge addressed Miller’s trial counsel, Bob Tyler, as
follows:


           The Court:         Okay. Do I understand that this is to be tried
                              to the Court without a jury?

           Mr. Tyler:         That is correct, Your Honor.

           The Court:         Okay. And your client wants to affirmatively
                              waive his rights to a jury trial; is that accurate?

           Mr. Tyler:         That’s correct.

(Tr. at 2). Miller was present and silent during this exchange. The trial judge did not
address him directly. Following sentencing and judgment, Miller sought state post-
conviction relief for ineffective assistance of counsel because his attorney waived his
right to a jury trial. Without holding an evidentiary hearing on the issue, the court
rejected his claim, and decided that Miller had affirmatively waived his right to a jury
because he was present when his attorney waived that right. Having exhausted his
state remedies, Miller sought habeas relief.

        The district court appointed counsel and granted an evidentiary hearing on
Miller’s claim. Miller testified that his trial attorney never explained his right to a
jury trial to him, and advised him to waive a jury trial because it “would be better for

      1
       The Honorable Catherine D. Perry, United States District Court Judge for the
Eastern District of Missouri.

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him.” Miller claims he did not realize that he could object to his attorney’s stated
course of action. He testified that he would have insisted upon a jury trial had he
known he had the right to make such a decision.

       The government presented Miller’s trial counsel’s affidavit at the hearing, in
which he stated that it was his normal practice to explain his clients’ Sixth
Amendment jury trial rights to them. In the end, the court granted habeas relief
because there was no direct evidence to contradict Miller’s testimony that his attorney
failed to explain his Sixth Amendment right to trial by jury. The court also concluded
that because Miller believed that his attorney had the right to waive a jury trial, his
silence could not reasonably have been presumed to have been an affirmative waiver.
The government appeals, asserting that under Strickland v. Washington, 466 U.S. 668
(1984), Miller failed to show that, but for the breach of duty, the outcome of the trial
would have been different.

II.   Discussion

        We review questions of ineffective assistance of counsel based on an
undisputed factual record de novo. Strickland v. Washington, 466 U.S. 668, 698
(1984); McGurk v. Stenberg, 163 F.3d 470, 473 (8th Cir. 1998). The Sixth
Amendment guarantees the criminal defendant the right to effective assistance of
counsel. Strickland, 466 U.S. at 686. To state a claim for ineffective assistance of
counsel, a habeas petitioner must demonstrate that (1) “counsel’s representation fell
below an objective standard of reasonableness;” and (2) “the deficient performance
prejudiced the defense.” Id. at 687-88. “To satisfy the second part of the Strickland
test, the petitioner must prove that ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’” Garrett v. Dormire, 237 F.3d 946, 950 (8th Cir. 2001) (quoting Strickland,
466 U.S. at 694).



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       The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) limits
the scope of judicial review in a habeas proceeding. Habeas relief cannot be granted
on any claim that was “adjudicated on the merits in State court proceedings unless the
adjudication of the claim . . . 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 “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). A state court decision is “contrary to”
clearly established federal law if it either “arrives at a conclusion opposite to that
reached by [the Supreme Court] on a question of law” or if the state court arrives at
a result opposite to one reached by the Supreme Court on “materially
indistinguishable” facts. Bell v. Cone, 122 S.Ct. 1843, 1850 (2002); Hall v.
Luebbers, 296 F.3d 685, 692 (8th Cir. 2002) (quoting Williams v. Taylor, 529 U.S.
362, 405 (2000) (O’Connor, J., concurring)). A state court’s findings of fact are
entitled to a presumption of correctness. § 2254(e)(1).

       “In certain Sixth Amendment contexts, prejudice is presumed.” Strickland, 466
U.S. at 692. The Supreme Court has explained that a jury trial is “fundamental to the
American scheme of justice,” Duncan v. Louisiana, 391 U.S. 145, 149 (1968), and
that the defendant has the ultimate authority to make fundamental decisions regarding
his case, such as whether to waive a jury, Jones v. Barnes, 463 U.S. 745, 751 (1983)
(citing Wainwright v. Sykes, 433 U.S. 72, 93 n.1 (1977) (Burger, J., concurring)).
“The right includes . . . as its most important element, the right to have the jury, rather
than the judge, reach the requisite finding of ‘guilty.’” Sullivan v. Louisiana, 508
U.S. 275, 277 (1993).

       When a defendant’s right to a jury trial is denied as a result of his attorney’s
deficient performance, this circuit has determined that on the basis of Supreme Court
precedent, Strickland prejudice is presumed because such misconduct is tantamount
to a structural error. McGurk v. Stenberg, 163 F.3d 470, 475 (8th Cir. 1998).

                                           -4-
“‘Structural errors’ . . . call into question the very accuracy and reliability of the trial
process and thus are not amenable to harmless error analysis, but require automatic
reversal.” McGurk, 163 F.3d at 474 (citing Arizona v. Fulminante, 499 U.S. 279,
309-10 (1991); Brecht v. Abrahamson, 507 U.S. 619, 629-30 (1993)).

        The government argues that the state court’s judgment was reasonable and
entitled to deference under § 2254(d). It asks that we limit our analysis to the
Strickland test, which, it alleges, requires us to conclude that Miller failed to
demonstrate a reasonable probability that but for his attorney’s breach of duty, the
outcome of the trial would have been different. The government criticizes the district
court’s determination that prejudice in this matter must be presumed under McGurk.
It asserts that the threshold question before us is whether it was reasonable for the
state court to rely upon Strickland v. Washington in deciding an ineffective assistance
of counsel claim, and asserts that it was. The government also argues that there is no
Supreme Court precedent that dictates the rule in McGurk; rather, the McGurk
decision requires “the application of several Supreme Court decisions to reach the
outcome.” The government asks us to disregard the McGurk holding and to solely
rely upon the Strickland standard because AEDPA mandates that the federal court
rely on U.S. Supreme Court precedent, not circuit court precedent, to support its
reversal of a state court decision.

       The government’s argument is unpersuasive. The state court found that Miller
had affirmatively waived his right to a jury trial. This is an unreasonable
determination of the facts, 28 U.S.C. § 2254(d)(2), and an unreasonable determination
of the federal law as interpreted by the United States Supreme Court, 28 U.S.C. §
2254(d)(1). The record is devoid of any direct testimony from Miller regarding his
consent to waive trial by jury. It appears that Miller’s counsel failed to advise him
of a fundamental right given to criminal defendants, one fully supported and
protected by Supreme Court precedent. Miller was therefore denied effective
assistance of counsel. The prejudice component of Strickland must be presumed from

                                            -5-
this error. Although most federal constitutional errors are amenable to harmless-error
analysis, some errors will always invalidate the conviction. Sullivan v. Louisiana,
508 U.S. at 279. The Supreme Court has delineated an approach for determining
whether a federal constitutional error, in this case a Sixth Amendment violation,
requires reversal. Id. The reviewing court should consider:

         not what effect the constitutional error might generally be expected
         to have upon a reasonable jury, but rather what effect it had upon
         the guilty verdict in the case at hand. Harmless error review looks
         . . . to the basis on which “the jury actually rested its verdict.” The
         inquiry, in other words, is not whether, in a trial that occurred
         without the error, a guilty verdict would surely have been rendered,
         but whether the guilty verdict actually rendered in this trial was
         surely unattributable to the error. . . . [T]o hypothesize a guilty
         verdict that was never in fact rendered – no matter how inescapable
         the findings to support that verdict might be – would violate the
         jury-trial guarantee.


Id. at 279-80. (Citations omitted). “The Sixth Amendment requires more than
appellate speculation about a hypothetical jury’s action . . . it requires an actual
finding of guilty.” Id. at 280. There is no jury verdict to assess under harmless error
analysis in this case because Miller’s right to a trial by jury was denied entirely.
“This deprivation is of a similar constitutional dimension to other ‘structural defects’
held by the Court to warrant automatic reversal.” McGurk, 163 F.3d at 475 (citing
Arizona v. Fulminante, 499 U.S. 279, 309-10 (1986) (other citations omitted). The
state court’s determination that Miller’s attorney’s waiver of a jury trial constituted
harmless error is unreasonable and contrary to clearly established federal law. When
a defendant is deprived of his right to trial by jury, the error is structural and requires
automatic reversal of the defendant’s conviction.

      For the reasons cited above, we affirm the district court.


                                           -6-
A true copy.

      Attest:

         CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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