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

                                                                            FILED
                                                                         October 12, 2012

                                       No. 11-30645                        Lyle W. Cayce
                                                                                Clerk

DEIDRE A. PIERRE,

                                                  Petitioner - Appellant
v.

MARIANA LEGER, Warden, Louisiana Correctional Institute for Women,

                                                  Respondent - Appellee



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:09-CV-1881


Before KING, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Following a bench trial, Deidre Pierre, Louisiana prisoner # 445265, was
convicted of one count of second-degree murder and one count of attempted
second-degree murder. She was sentenced to life in prison for the murder and
to a term of ten years imprisonment for the attempted murder. Pierre filed a 28
U.S.C. § 2254 petition alleging that nothing in the record shows that she
knowingly and intelligently waived her constitutional right to a jury trial. The



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                  No. 11-30645

district court denied the petition with prejudice. Pierre appeals the district
court’s denial of her petition. We affirm.
                               I. BACKGROUND
      On February 13, 1998, Pierre fatally shot her three-year-old son. Pierre
then shot and injured her husband before turning the gun on herself. The State
of Louisiana indicted Pierre for first-degree murder of her son and attempted
first-degree murder of her husband. The indictment was amended to charge her
with the offenses of second-degree murder and attempted second-degree murder.
Pierre pled not guilty and not guilty by reason of insanity to these charges. The
trial judge determined that Pierre waived her right to a jury trial. Following a
bench trial, the judge found Pierre guilty of both charged offenses. Pierre was
sentenced to life imprisonment on her conviction of second-degree murder, to run
consecutively with a sentence of ten years at hard labor on her conviction of
attempted second-degree murder.
      In her direct appeal, Pierre argued that the record did not show that she
knowingly and intelligently waived her right to a jury trial. The appellate court
agreed: it reversed and set aside her convictions and sentences, and remanded
the case for a new trial. State v. Pierre, 827 So. 2d 619, 623 (La. App. 3d Cir.
2002). The State filed a writ application to the Supreme Court of Louisiana
seeking review of the appellate court’s judgment. The Supreme Court of
Louisiana granted the writ, reinstated Pierre’s convictions and sentences, and
remanded to the appellate court for consideration of the other claims raised on
appeal. State v. Pierre, 842 So. 2d 321, 322 (La. 2003) (per curiam). On remand,
the appellate court affirmed Pierre’s convictions and sentences. Pierre filed a
petition for writ of certiorari to the Supreme Court of Louisiana, which was
denied. Pierre’s attempts to obtain state post-conviction relief were unsuccessful.
      Pierre then filed a petition for writ of habeas corpus in the federal district
court. After the district court denied Pierre’s petition and her request for a

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                                        No. 11-30645

certificate of appealability, Pierre presented this court with her request for a
certificate of appealability. We found that Pierre made a “substantial showing
of the denial of [her] constitutional right” to a jury trial. 28 U.S.C. § 2253(c)(2);
Slack v. McDaniel, 529 U.S. 473, 484 (2000).1 Accordingly, we granted a
certificate of appealability on the issue of whether the record shows that Pierre
knowingly and intelligently waived her right to a jury trial.
                             II. STANDARD OF REVIEW
       This court has jurisdiction over this habeas corpus proceeding pursuant
to 28 U.S.C. § 2253(a). In an appeal from a denial of a habeas petition, we review
the district court’s findings of fact for clear error, while reviewing its conclusions
of law de novo, applying the same standards to the state court’s decision as did
the district court. Buntion v. Quarterman, 524 F.3d 664, 670 (5th Cir. 2008).
       The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
applies to Pierre’s petition. Under the standard of review set forth by AEDPA,
federal courts must defer to state court determinations of the merits of a state
prisoner’s claims. 28 U.S.C. § 2254(d). Questions of law and mixed questions of
law and fact are reviewed under section 2254(d)(1), and questions of fact are
reviewed under section 2254(d)(2). Horn v. Quarterman, 508 F.3d 306, 312 (5th
Cir. 2007). A state court’s determination of questions of law and mixed questions
of law and fact must be given deference unless the state court decision was
“contrary to” or involved an “unreasonable application of” clearly established
Supreme Court precedent. § 2254(d)(1). A state court’s factual findings are
presumed correct, and a reviewing court must give deference to such findings
unless they were based on an “unreasonable determination of the facts” in light
of the record before the state court. § 2254(d)(2).


       1
          Namely, Pierre showed that reasonable jurists could debate the propriety of the
district court's decision on this issue. Slack, 529 U.S. at 484 (quoting Barefoot v. Estelle, 463
U.S. 880, 893 & n.4 (1983)).

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      Whether Pierre knowingly and intelligently waived her constitutional
right to a jury trial is a legal question. See Johnson v. Cain, 196 F.3d 1258 (5th
Cir. 1999) (per curiam) (unpublished); cf. Marshall v. Lonberger, 459 U.S. 422,
431-32 (1983) (voluntariness of state prisoner’s guilty plea is a question of law
but historical facts are entitled to presumption of correctness); Barnes v.
Johnson, 160 F.3d 218, 222 (5th Cir. 1998) (voluntariness of accused’s confession
is a legal question that may involve subsidiary factual determinations), cert.
denied, 526 U.S. 1118 (1999). Thus, regarding this issue, section 2254(d)(1)
provides the standard of review. Under section 2254(d)(1), a state court decision
is contrary to clearly established federal law “if the state court arrives at a
conclusion opposite to that reached by [the Supreme Court] on a question of law
or if the state court decides a case differently than [the] Court has on a set of
materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000).
A decision involves an unreasonable application of federal law “if the state court
identifies the correct governing legal principle . . . but unreasonably applies that
principle to the facts of the prisoner’s case.” Id. The test for determining whether
there was an unreasonable application is objective. Id. at 409. A federal court
cannot grant habeas relief by concluding only that the state court applied clearly
established federal law incorrectly; the court must conclude that such
application was also unreasonable. Id. at 410 (“[An] unreasonable application of
federal law is different from an incorrect application of federal law.”).
      Although the question of whether Pierre made an effective waiver is
reviewed under section 2254(d)(1), it may involve subsidiary factual questions
subject to review under section 2254(d)(2). We may grant habeas relief under
this prong of AEDPA if the state court decision was based on an unreasonable
determination of the facts in light of the record before the state court.
Harrington v. Richter, 131 S. Ct. 770, 785 (2011). This is a “highly deferential
standard . . . which demands that state-court decisions be given the benefit of

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                                      No. 11-30645

the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (citation
and internal quotation marks omitted). The state court’s factual findings are
presumed to be correct, and petitioner has the burden of rebutting this
presumption by clear and convincing evidence. See Wesbrook v. Thaler, 585 F.3d
245, 251 (5th Cir. 2009) (citing 28 U.S.C. § 2254(e)(1)).2
       In determining whether to grant Pierre relief, we must examine the state
habeas decision. However, in September 2009, the Supreme Court of Louisiana
issued a one-word denial of Pierre’s writ application. When the reviewing federal
court is “faced with a silent or ambiguous state habeas decision, the federal court
should ‘look through’ to the last clear state decision on the matter.” Jackson v.
Johnson, 194 F.3d 641, 651 (5th Cir. 1999). The last clear state court decision on
whether Pierre knowingly and intelligently waived her right to a jury trial was
the Supreme Court of Louisiana’s ruling of March 28, 2003. As we will explain,
that ruling is entitled to deference and should not be disturbed.
                                   III. DISCUSSION
       Pierre argues that she is entitled to federal habeas relief because she did
not knowingly and intelligently waive her Sixth Amendment right to trial by
jury. The issue before us is whether, in light of the state record, the Supreme
Court of Louisiana could have reasonably determined that Pierre made a
knowing and intelligent waiver of her right to a jury trial through her attorney.
       A. Waiver of the Sixth Amendment Right to Trial by Jury
       The Sixth Amendment right of the defendant to a jury trial in a criminal
case is a fundamental constitutional right. Duncan v. Louisiana, 391 U.S. 145,
157-58 (1968). Federal law governs whether a defendant has waived this right.



       2
         AEDPA does not require petitioner to prove by clear and convincing evidence that the
decision was based on an unreasonable determination of facts. Miller-El v. Cockrell, 537 U.S.
322, 341 (2003). Rather, section 2254(e)(1) “pertains only to state-court determinations of
factual issues, rather than decisions.” Id.

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Boykin v. Alabama, 395 U.S. 238, 243 (1969). Under federal law, a defendant
may waive her right to a jury trial, provided that she does so voluntarily,
knowingly, and intelligently. See Brady v. United States, 397 U.S. 742, 748
(1970); Singer v. United States, 380 U.S. 24, 34 (1965). Whether a defendant has
effectively waived this right depends upon “the unique circumstances of each
case.” Adams v. United States ex rel. McCann, 317 U.S. 269, 278 (1942). But in
no case may a court presume that a defendant has waived her right to a jury
trial from a silent record. Boykin, 395 U.S. at 243.
      Although Pierre and the State disagree as to whether the record reflects
that Pierre made a knowing and intelligent waiver, the record is not silent as to
this question. From the record, it appears that Pierre was absent when her
attorney first waived the jury trial: the minutes indicate that Pierre was in the
courtroom at this time, whereas the trial transcript indicates that she was
absent. The record is clear, however, that Pierre was present in court on the
second day of trial, when the judge inquired as to whether the parties wanted to
confirm the waiver on the record. The transcript shows the following
conversation among the court, prosecutor, and defense counsel:

      The Court:         Do you want to put the jury waiver on the record?

      Prosecutor:        Yes, if we could, Judge. I just want to clarify for
                         the record, I was not present in court at 9:30 - I
                         was in another courtroom - when the waiver of a
                         jury trial was made by [defense counsel]. I would
                         just ask that be clarified, for the record, that he
                         was authorized to do that by his client, so we can
                         be on the record on that.

      Defense:           Your Honor, Ms. Pierre and I spoke about the
                         possibility of a jury trial, as well as a judge trial;
                         that in the course of our discussions, we
                         determined, mainly through me, because she was
                         relying on my expertise in this matter, whether

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                                 No. 11-30645

                        to waive the jury trial, and that was our
                        determination at the time. She wasn’t present in
                        the courtroom. She was in the jury room. At the
                        time, I did put on the record that we were
                        waiving her jury trial. She is present now. And if
                        the Court would entertain a question to her
                        whether she agrees to that.

     The Court:         For the record, just for the record purpose, are
                        you waiving your right to a trial by jury?

     Defense:           She wants to speak with me for a second.

After a discussion off the record between defense counsel and petitioner, the
conversation resumed:

     Defense:           Your Honor, I’ve spoken with Ms. Pierre. She had
                        some questions about whether it was in her best
                        interest to waive the jury. She and I had spoken
                        before yesterday. We had spoken about it last
                        week and in prior times that I met with her. She
                        is, at this time, uncertain as to whether that was
                        in her best interest or not.

     The Court:         Well, we’re going to bring the jury in and start a
                        jury trial. Okay. We have a jury trial starting at
                        1:30.

     Prosecutor:        Judge, may we approach?

     The Court:         Yes.

The bench conference then proceeded as follows:

     Prosecutor:        The issue is not what would be in the best
                        interest now. The issue is now: Did she discuss
                        with [her attorney] and determine and authorize
                        him to waive the jury trial? Which he said she
                        did. It’s as simple as that. That’s the issue. That’s


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                                  No. 11-30645

                         the question, whether or not that was done.
                         That’s the only issue.

      The Court:         We can conduct a hearing on that issue.

      Prosecutor:        Well, I mean, we’ve heard [defense counsel] state
                         that for the record.

      Defense:           That’s correct, Your Honor. What I’ve told the
                         Court is correct.

      Prosecutor:        Frankly, that’s the clarification I was looking for,
                         not now to have her withdraw.

      The Court:         You can proceed.

The parties disagree as to whether this conversation shows that Pierre made a
knowing and intelligent waiver of her right to a jury trial through her attorney.
      According to Pierre, the record does not support the finding that she
knowingly and intelligently waived her right to a jury trial through defense
counsel. Pierre argues that the record does not show that she authorized her
attorney to waive the jury. She further argues that memorializing the earlier
waiver did not make that waiver effective in light of the transcript. In her view,
the transcript presents no evidence that defense counsel ever advised her of her
right to a jury trial, or that she understood the right so as to be able to
knowingly and intelligently waive it. In short, Pierre points to the absence of
evidence in the record as support for her argument that she did not personally
waive her right to a jury trial or authorize defense counsel to waive it.
      The State argues the converse is true. It is undisputed, the State asserts,
that Pierre was present when defense counsel stated for the record that he had
consulted with her numerous times about her right to trial by jury, and that she
authorized him to waive the jury trial. As the transcript shows, Pierre did not
disagree or advise the court to the contrary. Further, neither she nor her


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                                       No. 11-30645

attorney objected to the continued bench trial or requested a jury trial, even
after the trial judge offered one. The State argues that Pierre’s failure to act
clearly evinces a knowing and intelligent waiver of her right to a jury trial,
noting that the Supreme Court of Louisiana had so held.3
       B. The Reasonableness Standard Under AEDPA
       Under the applicable AEDPA standard of review, § 2254(d)(1), we must
affirm the district court’s denial of Pierre’s habeas petition unless the state
court’s decision was contrary to or involved an unreasonable application of
clearly established Supreme Court precedent. “Because no Supreme Court case
involves facts nearly identical to those before us, [Pierre’s] appeal is governed by
the ‘unreasonable application’ prong of AEDPA.” Scott v. Cain, 364 F. App’x 850,
853 (5th Cir. 2010) (per curiam), cert. denied, 130 S. Ct. 3519 (2010) (citing
Taylor v. Cain, 545 F.3d 327, 334 (5th Cir. 2008)). AEDPA effectively decides the
issue in this case: Pierre is not entitled to habeas relief because we cannot say
that the state court applied Supreme Court precedent to the facts of this case in
an objectively unreasonable manner. See Williams, 529 U.S. at 413.
       Pierre’s claim that she is entitled to habeas relief because the record does
not reflect that she authorized the waiver is unpersuasive. We have held that
“[c]ourt records alone may be insufficient to establish a waiver of [fundamental


       3
         The Supreme Court of Louisiana found that the record reflects that counsel waived
a jury trial on petitioner's behalf, that the state trial court memorialized the earlier waiver
when petitioner was present, and that the memorialization came in light of comments by
defense counsel that he and Pierre had discussed the waiver at length on several occasions,
and that both had agreed to it. Pierre, 842 So. 2d at 322. Notably, Louisiana Courts have
limited Pierre’s holding to the factual highlight of the extensive discussions between Pierre
and her attorney. See State v. Onstead, 875 So. 2d 908, 917-18 (La. App. 5 Cir. 2004) (holding
that Pierre involved the unique factual situation where “defense counsel specifically stated
that he and his client had discussed the waiver at length on several occasions, and that both
had agreed to the waiver” and that generally, “it is preferable for the trial court to advise a
defendant of the right to trial by jury in open court before obtaining a waiver” and “it is
preferable, but not necessary, for the defendant to personally waive the right to a jury trial”
(citations omitted)).

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                                      No. 11-30645

constitutional rights] if they are ambiguous.” Williford v. Estelle, 672 F.2d 552,
554 (5th Cir. 1982) (citing Moran v. Estelle, 607 F.2d 1140, 1144 (5th Cir. 1979)
(finding that a minute entry, the contents of which defendant disputed, could not
by itself establish waiver)). The record in this case, which twice has been
submitted to the Louisiana Supreme Court, does not suffer from such ambiguity.
The transcript shows that defense counsel, at the time of trial and in Pierre’s
presence, informed the court that he had consulted with Pierre numerous times
about waiving the jury trial, and that Pierre had agreed with him to do so.4 The
transcript further shows that Pierre did not object to the bench trial at any time
between when the court asked her if she wished to waive her right to a jury trial
and when it memorialized the waiver on the record. At no point during the bench
trial did Pierre object to the waiver. Under section 2254(d)(2), Pierre must show
that the state decision was based on the unreasonable determination that she
consented to the waiver in light of the state court record as determined by the
Louisiana Supreme Court. We find that Pierre has failed to make this showing.
The state court could have reasonably determined from the totality of the record
that Pierre authorized defense counsel to waive her right to a jury trial.
       Pierre’s claim that her waiver was invalid because she did not personally
waive her right to a jury trial is also unavailing. This court has found that a
defendant may waive this right through counsel. See United States v. Page, 661
F.2d 1080, 1080-83 (5th Cir. Nov. 1981). Because the Supreme Court has not
held that a defendant must personally waive her right to a jury trial, see Scott,
364 F. App’x at 855, we cannot find that the state court unreasonably applied
clearly established federal law to the facts of this case in determining that the
lack of personal waiver did not render Pierre’s waiver ineffective.



       4
         We note defense counsel’s constitutional effectiveness was scrutinized during three
days of evidentiary hearings and was upheld.

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                                  No. 11-30645

      A defendant may waive her right to a jury trial through her attorney, see
Page, 661 F.2d at 1080-83, but this court has held that such waivers must be
knowing and intelligent. See United States v. Mendez, 102 F.3d 126, 130-31 (5th
Cir. 1996); see also Patton v. United States, 281 U.S. 276, 312 (1930) (“Not only
must the right of the accused to a trial by a constitutional jury be jealously
preserved, but the maintenance of the jury as a fact-finding body in criminal
cases is of such importance and has such a place in our traditions, that, before
any waiver can become effective, the consent of government counsel and the
sanction of the court must be had, in addition to the express and intelligent
consent of the defendant.) (emphasis added)), overruled on other grounds by
Williams v. Florida, 399 U.S. 78, 92 (1970). We found that the defendant in Page
was a “learned, articulate man suffering neither language nor perceptive
difficulty.” Page, 661 F.2d at 1083. Thus, we held that the defendant’s attorney
could waive a jury trial without affirmative action on his client’s part. Id. By
contrast, this court found that the defendant in Mendez was “a purported drug
mule” who “was unable to speak or understand English” and “did not understand
the purpose of a jury.” Mendez, 102 F.3d at 130-31. Accordingly, in Mendez we
found that a method of waiver similar to the one used in Page was ineffective.
Id. This court distinguished Mendez from Page by noting the differences between
the two defendants. Whereas Mendez was poorly educated and unable to
understand courtroom proceedings, Page was an English-speaking science
professor. Id. In short, we found, Mendez was “a far cry from Professor Page.” Id.
      The facts in the present case are distinguishable from those in Mendez.
The district court in Mendez scheduled a bench trial in the event the parties
failed to reach a plea agreement. Mendez could not have waived his right to a
trial by jury: his attorney did not contest the court’s decision to schedule a bench
trial, and failed to reach a plea agreement. Mendez’s right to a jury trial was
waived for him by default. Id. at 128. As a practical matter, Mendez could not

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                                       No. 11-30645

have objected to the waiver given his inability to speak or understand English.
This became clear at the conclusion of the trial, when Mendez’s attorney
explained to the court that he had not discussed the issue of waiver with his
client because, among other reasons, he was having trouble getting an
interpreter into the jail. Id. As the district court would discover, Mendez “had
little understanding of what was transpiring” and “had infrequent contact with
his lawyer.” Id.
       In contrast with Mendez, who neither spoke nor understood English,
Pierre both speaks and understands English. The conversation that occurred
between the court and both parties on the second day of trial regarding the
waiver stands in contrast to the bench trial that occurred by default in Mendez.
Pierre, having the ability to understand generally what was being discussed,
could have objected to the waiver at this time. Whereas Mendez’s attorney
openly admitted to the district court that he had not discussed waiver with his
client due to problems of interpretation, the record indicates that Pierre’s
attorney discussed waiving the jury with Pierre on several occasions before trial
began, and that the waiver was a joint decision. The facts on the record do not
suggest that Pierre was a Page, luring the state trial court into error, but neither
do they suggest that she was a Mendez, the victim of a language barrier and an
incommunicado defense counsel.5


       5
          In her brief, Pierre points to her history of mental health problems and claims that
she was not competent to knowingly and intelligently waive her right to a jury trial. Pierre
previously had raised the issue of her mental health during post-conviction proceedings but
only in connection with claims of ineffective assistance of counsel. We cannot grant relief on
the basis of Pierre’s claim that she could not have effectively waived the jury because of her
mental state at the time of trial. The State competency report and a psychological evaluation
found Pierre competent to stand trial. According to these sources, Pierre could participate in
her own defense, assist her attorney, understand her legal rights, and distinguish the
functions of judge and jury. Given the significant deference we give to state court findings of
fact, 28 U.S.C. § 2254(e)(1), Pierre has failed to overcome the presumption that the evaluations
were correct and that she was competent to stand trial. We therefore cannot find that Pierre
could not make a knowing and intelligent waiver due to her history of mental health problems.

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                                       No. 11-30645

       Finally, Pierre fails to persuade this court that she was deprived of her
constitutional right to a jury trial because, in the absence of a colloquy between
her and the trial judge regarding this right, her waiver was not knowing and
intelligent. See Brady, 397 U.S. at 748. The absence of a colloquy between Pierre
and the trial judge regarding her constitutional right to a jury trial does not
compel the finding that her waiver was not knowing and intelligent. In accord
with several other circuits, this court has recognized that it would be advisable
for federal district courts to engage in a colloquy with the defendant about the
function of a jury and the difference between a bench and jury trial. See United
States v. Igbinosun, 528 F.3d 387, 390 n.4 (5th Cir. 2008); Marone v. United
States, 10 F.3d 65, 68 (2d Cir. 1993) (per curiam); United States v. Cochran, 770
F.2d 850, 853 (9th Cir. 1985); United States v. Martin, 704 F.2d 267, 275 (6th
Cir. 1983); United States v. Delgado, 635 F.2d 889, 890 (7th Cir. 1981). But
neither this court nor the Supreme Court has defined any “fact-specific
constitutional minima for a valid jury waiver,” or has “required a set colloquy
before a jury waiver can be accepted.” Scott, 364 F. App’x at 855.6
       Were this case a federal criminal case on direct appeal, reversal would be
obligatory. Fed. R. Crim. P. 23(a)(1). But 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 [clearly established federal law] is
erroneous or incorrect.” Neal v. Puckett, 286 F.3d 230, 236 (5th Cir. 2002) (en
banc), cert. denied, Neal v. Epps, 537 U.S. 1104 (2003). We must consider the
state court’s determination that Pierre, through her counsel, made a knowing
and intelligent waiver in light of the standard of review under AEDPA. The



       6
         The Fourth Circuit has expressly noted the lack of constitutional minima for the
waiver of the right to trial by jury. That court found that “[t]he constitutional imperative is
this, no less and no more: the waiver must be knowing, intelligent, and voluntary.” United
States v. Boynes, 515 F.3d 284, 286 (4th Cir. 2008).

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                                  No. 11-30645

question now before us “is not whether . . . 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); see Williams,
529 U.S. at 410. Pierre has not met this threshold. Pierre’s argument rests on
the claim that the absence of evidence in the record of her personally making a
knowing and intelligent waiver means that there was no waiver. Pierre has not
shown that it was unreasonable for the state court to find that she waived her
right to a jury trial, given the portions of the transcript indicating that defense
counsel was authorized to waive this right, and that the waiver was knowing
and intelligent. She has thus failed to satisfy the standard of review under
AEDPA, which precludes habeas corpus relief except in cases where the state
court’s decision rested on an unreasonable determination of clearly established
federal law. See Williams, 529 U.S. at 410. This was not such a case. We find
that the decision of the state court, in light of the record, was not objectively
unreasonable. It therefore stands.
                              IV. CONCLUSION
      For the reasons stated, we AFFIRM the judgment below.




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