                        NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                                   File Name: 05a0061n.06
                                   Filed: January 26, 2005

                                                               No. 03-1397

                                      UNITED STATES COURT OF APPEALS
                                           FOR THE SIXTH CIRCUIT


HERMAN L. DIXON, also known as                                                )
Siddiqquii Abdul-Sadah Mohhommed,                                             )
                                                                              )
                      Petitioner-Appellant,                                   )          On Appeal from the United States
                                                                              )          District Court for the Eastern
                                                                              )          District of Michigan
v.                                                                            )
                                                                              )
DAVID JAMROG,                                                                 )
                                                                              )
                      Respondent-Appellee.                                               )

Before: BOGGS, Chief Judge; GILMAN, Circuit Judge; WEBER, District Judge.*

PER CURIAM.

           Petitioner-Appellant Dixon appeals from a judgment of the district court denying his petition

for writ of habeas corpus filed under 28 U.S.C. § 2254.

           Dixon was convicted at a bench trial of two counts of felonious assault, one count of

possession of a firearm during the commission of a felony and one count of being a felon in

possession of a firearm. See Mich. Comp. Laws §§750.82(1), 750.227b, and 750.224f. He was

sentenced as a habitual offender, M.C.L. § 769.10, to an aggregate term of from four to nine and one-

half years of imprisonment. His sentence was affirmed on direct appeal and the Michigan Supreme

Court declined further review in 2001.

* The Honorable Herman J. Weber, Senior United States District Judge for the Southern District of Ohio, sitting by designation.




                                                                        1
       In his § 2254 petition, Dixon primarily alleged: 1) that he had not made a valid waiver of his

right to counsel, 2) that he had not made a valid waiver of his right to a jury trial, 3) that the trial

judge was biased, and 4) that he was denied the effective assistance of counsel at sentencing. On

March 13, 2003, the district court issued an order denying Dixon’s petition for a writ of habeas

corpus. (J.A. at 57). The district court issued a certificate of appealability (“COA”) that was limited

to Dixon’s claim that he had not made a valid waiver of his right to a jury trial. (J.A. at 79).

       This court reviews the district court’s legal conclusions denying a habeas corpus petition de

novo and its findings of fact for clear error. Seymour v. Walker, 224 F.3d 542, 549 (6th Cir. 2000),

cert. denied, 532 U.S. 989 (2001). Federal habeas corpus relief is available only if the state court’s

rejection of Appellant’s 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.
28 U.S.C. § 2254(d). Under 28 U.S.C. § 2254(d)(2), a federal court is to apply a presumption of

correctness to state court findings of fact for habeas corpus purposes unless clear and convincing

evidence is offered to rebut the presumption. 28 U.S.C. § 2254(e)(1); Warren v. Smith, 161 F.3d

358, 360-361 (6th Cir.1998), cert. denied, 527 U.S. 1040 (1999).

       The Michigan Court of Appeals analyzed Dixon’s claim that he had not validly waived his

right to a jury trial as follows when it affirmed his sentence:

       [T]he record is disjointed concerning the waiver of defendant’s jury trial right, after
       counsel informed the court that defendant was demanding a bench trial. Nevertheless,
       the record sufficiently indicates that defendant voluntarily waived his right to a jury
       trial, given the repeated references to defendant’s demand for a bench trial, including
       specific acknowledgments by defendant himself, and the prosecutor’s agreement to


                                                   2
       the bench trial at the hearing.

State v. Dixon, No. 217840, 2000 WL 33407137, at *2 (Mich. Ct. App. Sept. 15, 2000)(citations

omitted)(unpublished opinion).

       The district court properly rejected Dixon’s claim because the state court’s analysis was not

based upon an unreasonable determination of the facts or an unreasonable application of controlling

precedent. See 28 U.S.C. § 2254(d); Warren v. Lewis, 365 F.3d 529, 533 (6th Cir. 2004). In Adams

v. United States, 317 U.S. 269, 281 (1942), the United States Supreme Court stated:

       [A] determination of guilt by a court after waiver of jury trial could not be set aside
       and a new trial ordered except upon a plain showing that such waiver was not freely
       and intelligently made.

Because the right to a jury trial is a fundamental right, there must be no doubt that any waiver of the

right is made knowingly, intelligently, and voluntarily. Spytma v. Howes, 313 F.3d 363, 370 (6th Cir.

2002); United States v. Martin, 704 F.2d 267, 272-73 (6th Cir. 1983). The Spytma court continued:

       For a waiver to be voluntary, knowing, and intelligent, the defendant must possess a
       minimum amount of knowledge concerning his jury trial right and the mental capacity
       to understand the implications of waiver of that right.

Spytma, 313 F.3d at 370.

       In denying his petition, the district court stated:

                First, as previously discussed, petitioner has failed to show that he was denied
       the right to counsel or the right to the effective assistance of counsel. Second,
       petitioner does not deny that he voluntarily and intelligently chose to have his case
       decided by the judge only. Petitioner’s decision to choose a bench trial was stated on
       the record in open court at a pre-trial hearing held on May 18, 1998. See, Tr. Pre-
       Trial Hearing of May 18, 1998 at 15-18. A reference was made at that hearing to a
       prior occasion upon which petitioner stated the same preference. Id. at 15. Further,
       petitioner made no objections to proceeding with a bench trial at the time of trial and,
       as noted, petitioner states in his petition that he expressed the wish to have a bench
       trial. Petition at 14. Therefore, this Court concludes that the Michigan Court of
       Appeals decision that petitioner voluntarily and intelligently waived his right to a jury
       trial is a reasonable application of federal constitutional law.


                                                   3
(J.A.at 71-72).

       Pursuant to the statutory presumption of correctness, the reviewing court gives complete

deference to the federal district and state court findings of fact if supported by the evidence. Clemons

v. Sowders, 34 F.3d 352, 354 (6th Cir. 1994). The district court’s findings of fact are reviewed for

clear error. Id. The reviewing court is “required to give a high measure of deference to the state

court’s findings concerning the jury waiver, which are supported by the contemporaneous record in

the case.” Spytma, 313 F.3d at 371.

       Appellant does not deny the facts as recited by the district court and he acknowledges that he

voluntarily requested a bench trial. Throughout the proceedings he was either represented or advised

by counsel and he gave every indication of understanding the implications of a bench trial.

Moreover, he had been tried in a bench trial before. Appellant’s claim that he did not properly waive

his right to a jury trial therefore rests entirely on the written demand submitted on September 22. We

must therefore consider whether Appellant effectively withdrew his waiver, on the “unique

circumstances” of this case, Martin, 704 F.2d at 272, when his counsel filed a motion requesting a

jury trial. According to the record, the request seems to have been filed and then subsequently

ignored by all parties and the court. There is no indication that Appellant mentioned the demand for

a jury trial at any point, and he does not claim otherwise. The attorney who filed the motion, James

Pratt, also did not pursue or even mention the demand for a jury trial even though he continued to

advise Appellant and he was present at trial and other proceedings. Nor is there any indication on

the record that the court responded to or followed up on the demand for a jury trial. The written

demand seems to have been entirely ignored.



                                                   4
5
         We do not believe that the written demand for a jury trial, standing alone, renders the state

court’s conclusion unreasonable. Given the silence of Appellant and Pratt, it was reasonable to

conclude that Appellant either never supported the demand for a jury trial or that he immediately

reverted to preferring a bench trial. Appellant was not shy about objecting or filing motions, and if

he never asserted a desire for a jury trial in court it is reasonable to conclude that he stood by his

original waiver. Thus it was reasonable for the state court to find that Appellant’s waiver remained

valid.

         Dixon now argues that his claim was not subject to a harmless-error analysis because it

involves a fundamental right. However, the state court of appeals did not rely primarily on such an

analysis when it concluded that Dixon waived his right to a jury trial. Rather, it concluded that Dixon

had properly waived his right, and so there was no need for harmless-error analysis.

         Dixon also continues to argue that the trial judge was biased against him. However, he was

not granted a COA regarding that claim, and it is not reviewable in this appeal. See 28 U.S.C. §

2253(c); Seymour, 224 F.3d at 561.

         Accordingly, the district court’s judgment is AFFIRMED.




                                                   6
