McCloud v. Cain

• Decision Date: 11 April 2013
• Docket Number: CIVIL ACTION NO. 08-3800
• Parties: TROY McCLOUD v. BURL CAIN, WARDEN
• Court: U.S. District Court — Eastern District of Louisiana

TROY McCLOUD v. BURL CAIN, WARDEN

CIVIL ACTION NO. 08-3800

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA SECTION "C"

April 11, 2013

ORDER AND REASONS

Before the Court is a petition for habeas corpus by Troy McCloud filed pursuant to 28 U.S.C. § 2254. Petitioner seeks relief from his November 13, 2003, conviction and sentence for distribution of cocaine within one thousand feet of a school under of LSA-R.S. 40:981.3.¹ He asserts as grounds for relief that: (1) he received ineffective assistance of counsel when counsel failed to file a motion to suppress the arrest warrant; (2) the trial court erred in failing to take judicial notice of an error in his arrest warrant; (3) the trial court erred when it denied petitioner's motion to suppress a suggestive photographic identification; (4) McCloud did not knowingly and voluntarily waive his right to a trial by jury; (5) the trial court wrongly denied McCloud his right to counsel of his choice; (6) the trial court's ruling on the motion to suppress should be annulled due to "ill practice;" and (7) McCloud received ineffective assistance of counsel when his counsel failed to object to the trial court's denial of petitioner's counsel of choice and held him in contempt. Rec. Docs. 1, 22, 42.²

The Court has independently reviewed the petition, the record, and the applicable law, the Magistrate Judge's Report and Recommendation, and the petitioner's objections thereto. The procedural history and facts of petitioner's arrest and conviction, as well as the standard of review and the Magistrate Judge's recommendations for the petitioner's first, second, and third claims, are concisely and accurately stated in the Report and Recommendation and are adopted by this Court as its opinion as to the petitioner's first, second, and third claims. As to the petitioner's fifth, sixth, and seventh claims pertaining to actions in 02-5896, a different state court proceeding, the Court finds those claims lacks merit and are irrelevant to the conviction under examination here. These six claims are dismissed for the reasons set forth in the Report and Recommendation.

With regard to the fourth claim, raised in a supplemental amendment to petitioner's writ of habeas corpus, petitioner alleges that his Sixth Amendment right to trial by jury was violated because he did not knowingly and voluntarily waive it. The Court agrees with the petitioner. The right to trial by jury is not only one of the oldest and mostly clearly established principles of Anglo-American jurisprudence, but one of its most important. Sullivan v. Louisiana, 508 U.S. 275, 277 (1993). See also United States v. DeRobertis, 715 F.2d 1174, 1178 (5th Cir. 1983), (citing Duncan v. Louisiana, 391 U.S. 145, 157-58 (1968)). It was considered such an important right under the common law that a criminal defendant could not waive it even if he wished to do so. Patton v. United States, 281 U.S. 276 (1930), abrogated by Williams v. Florida, 399 U.S. 78, 90 (1970). It has long been settled that the importance of this right requires it to be "jealously preserved," so that any waiver of it must be made by a defendant "intelligently—with full knowledge of his rights and capacity to understand them . . ." Id. at 312; United States ex rel.McCann v. Adams, 320 U.S. 220, 221 (1943). The Supreme Court, quoting Blackstone, has described it as a "critically important" safeguard against "'the violence and partiality of judges . . . who might . . . imprison, dispatch, or exile any man that was obnoxious to the government, by an instant declaration, that such is their will and pleasure.'" Apprendi v. New Jersey, 530 U.S. 466, 548 (2000).

However, today the right may be waived by a criminal defendant if the waiver is "intelligent and competent." Johnson v. Zerbst, 304 U.S. 458, 464-65 (1938). "Courts indulge every reasonable presumption against waiver of fundamental constitutional rights." Id. at 464 (internal quotations omitted). Furthermore, "whether 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). The Adams decision also affirmed an earlier line of United States Supreme Court cases that required the waiver of a criminal defendant's right to trial by jury be "express," with the additional consent of the Government as well as the responsible judgment of the trial court.³ Id. at 277-78.

One of the most significant cases to discuss the defendant's ability to waive his right to trial by jury in criminal proceedings is Patton, wherein the Supreme Court held that "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." 281 U.S. at 312 (emphasis added). The Fifth Circuit inUnited States v. Mendez, 102 F.3d 126, 130-31 (5th Cir. 1996), interpreted the "express" waiver in Patton as a constitutional requirement. Since the district court in Mendez had not followed proper procedures in a federal criminal proceeding, its failure to do so violated the defendant's right to due process under the Fifth Amendment, leading the Fifth Circuit to remand the case for a trial by jury.⁴ Id. In Singer v. United States, 380 U.S. 24, 33-34 (1965), the United States Supreme Court reaffirmed its prior holdings in Patton and Adams. Although the Singer decision concerned the Government's consent to a defendant's waiver of his right to trial by jury, the court again noted that any waiver must be both "express" and "intelligent." Id. at 34. See also Mills v. Collins, 924 F.2d 89, 93 & n.4 (5th Cir. 1991).

The validity of a waiver of a federal constitutional right is governed by federal law. See Boykin v. Alabama, 395 U.S. 238, 243 (1969). "Although there may be subsidiary questions of fact, whether the waiver of [petitioner]'s right to a jury trial was knowing and voluntary is ultimately a legal determination." Johnson v. Cain, 1999 WL 800187, at *1 (citing Marshall v. Lonberger, 459 U.S. 422, 431-32 (1983); Barnes v. Johnson, 160 F.3d 218, 222 (5th Cir. 1998)). See also Brewer v. Williams, 430 U.S. 387, 397 n.4 (1977) ("[W]hether [petitioner] waived his constitutional rights was not, of course, a question of fact, but an issue of federal law.").

In the present case, the petitioner raised on direct appeal his claim that his waiver of a jury trial was invalid. The Louisiana Fifth Circuit Court of Appeals discussed the evidence regarding petitioner's jury trial waiver, writing:

The minute entry for November 11, 2003, the day of trial, reflects that "The Defendant waived his rights to a jury trial." The transcript of that proceeding shows that the following exchange took place just before the commencement of trial:

MR. THOMAS [defense counsel]:

Your Honor, Mr. McCloud informed me as the jury was coming into the room that he had changed his mind and wanted to go with a Bench trial.

THE COURT:

Well, it's certainly his prerogative.

MR. THOMAS:

I apologize to the Court that we didn't notify you earlier, but it is Mr. McCloud's choice.

THE COURT:

Well, as long as he is aware that once the trial begins-and it will begin as soon as the State calls its first witness-that he can't change his mind once again on that.

McCloud, 901 So.2d at 503-504.⁵

After reviewing the above evidence, the state appellate court found that "[t]here [was] nothing in the record to show that defendant was fully informed of his right to a jury trial, eitherby the court or by his attorney," let alone that he had made his waiver knowingly and intelligently. Id. at 504. As a result, the state appellate court conditionally affirmed the petitioner's conviction and remanded the case to the trial court with instructions to hold an evidentiary hearing to determine whether the petitioner had validly waived his right to trial by jury. Id. The Louisiana Code of Criminal Procedure provides that "[a] defendant charged with an offense other than one punishable by death may knowingly and intelligently waive a trial by jury and elect to be tried by the judge." La.C.Cr.P. art. 780(a). Generally, the waiver is to be entered at arraignment, but the trial judge may accept a waiver of a jury trial at any point prior to commencement. La.C.Cr.P. art. 780(b). Even though it is a preferred method for the state trial court to advise a defendant of the right to trial by jury in open court before obtaining a waiver, that practice is not statutorily required under Louisiana law. See State v. Lokey, 889 So.2d 1151, 1154 (La. App. 5th Cir. 2004). In fact, the Louisiana Supreme Court has expressly rejected on multiple occasions a rule "which would require the trial judge to personally inform the defendant of his right to a jury trial." State v. Kahey, 436 So.2d 475, 486 (La. 1983) (citing State v. Phillips, 365 So.2d 1304 (La.1978)).

Here, the state trial court, pursuant to the appellate court's remand, held an evidentiary hearing on June 1, 2006 before Judge Greg G. Guidry. (Rec. Doc. 31 at 19). The petitioner argued that he did not waive his right to a jury. At the hearing, petitioner's lawyer testified that he had advised his client, prior to trial, of his right to trial by jury and of the other rights associated with it, and that he believed his client had voluntarily and knowingly waived his right. Judge Guidry did not rule on the issue at the hearing. Instead, at a later date, Judge Walter E.Kollin, after reviewing the testimony adduced at that evidentiary hearing, held without explanation that the petitioner had validly waived his right.

Petitioner filed a second appeal with the Louisiana Fifth Circuit Court of Appeal and argued once again that he did not validly waive his right to trial by jury. (Rec. Doc. 31 ...