McMahon v. Hodges

• Decision Date: 31 August 2004
• Docket Number: No. 02-2666.,02-2666.
• Citation: 382 F.3d 284
• Parties: William K. McMAHON, Petitioner-Appellee, v. Gary HODGES, Warden, Gowanda Correctional Facility, and the Attorney General of the State of New York, Respondent-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

382 F.3d 284

William K. McMAHON, Petitioner-Appellee, v. Gary HODGES, Warden, Gowanda Correctional Facility, and the Attorney General of the State of New York, Respondent-Appellant.

No. 02-2666.

United States Court of Appeals, Second Circuit.

Argued: April 8, 2004.

Decided: August 31, 2004.

Appeal from the United States District Court for the Southern District of New York, Denny Chin, J William A. Gerard, Palisades, NY, for Petitioner-Appellee.

Tina Guccione, District Attorney's Office Rockland County (Michael E. Bongiorno, District Attorney, Ellen O'Hara Woods, Ann C. Sullivan, Senior Assistant District Attorneys, of counsel), New City, NY, for Respondent-Appellant.

David A. Lewis, The Legal Aid Society Federal Defender Division Appeals Bureau, New York, NY, Amicus Curiae.^*

Before: FEINBERG and SACK, Circuit Judges, WEXLER, District Judge.¹

SACK, Circuit Judge.

The State of New York appeals from a judgment of the United States District Court for the Southern District of New York (Denny Chin, Judge) granting the petitioner-appellee William McMahon's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court concluded that although the state trial judge did not err in declining to recuse himself from presiding over McMahon's trial, he did violate established federal law, as determined by the Supreme Court of the United States, by conditioning the transfer of McMahon's case at his request to another judge on McMahon's waiver of his right to trial by jury. McMahon v. Hodges, 225 F.Supp.2d 357, 359 (S.D.N.Y.2002). We agree with the district court that the original trial judge was not required to recuse himself but disagree with the district court's conclusion that McMahon's waiver of his right to a jury trial was void. McMahon waived that right in the course of accepting the original trial judge's offer to transfer McMahon's case to another judge for a bench trial. The offer to McMahon of the option of a bench trial before another judge did not coerce McMahon into waiving his right to trial by jury. Because McMahon's waiver was voluntary, the application for a writ of habeas corpus should have been denied.

BACKGROUND

The facts relevant to this appeal are set forth in some detail by the district court in its published opinion. McMahon, 225 F.Supp.2d at 359-64. We rehearse them here only insofar as we think it necessary to explain our resolution of this appeal.

On October 6, 1995, McMahon and his brother-in-law Ronald Hall were charged in New York State County Court, Rockland County, with kidnapping in the second degree, unlawful imprisonment in the first degree, attempted rape in the first degree, and assault in the second degree. The charges arose out of allegations that they had assaulted a woman who was renting a room in the McMahon family home, where both McMahon and Hall were living at the time. The prosecutions of the two were severed for trial.

Then-Orange County Court Judge Jeffrey G. Berry presided over Hall's trial first. A jury found Hall guilty of charges of kidnapping in the second degree, unlawful imprisonment in the first degree, and assault in the second degree. He was acquitted of attempted rape in the first degree.

Subsequently, on the day McMahon's trial was scheduled to begin before Judge Berry, the judge held an ex parte conference with defense counsel to review the evidence that the defense wanted to offer to impeach the credibility of the victim. Judge Berry indicated that all of the proffered evidence would likely be held inadmissible. Judge Berry then convened a preliminary conference with the prosecution and the defense during which the judge discussed, on the record, his view of the case. He explained some of the benefits he thought McMahon would receive if he accepted a plea agreement rather than go to trial. He characterized the state's plea offer as "very, very fair." Prelim. Conf., June 11, 1996, at 5. He also said that he had read McMahon's grand jury testimony and thought that McMahon had admitted to imprisoning the victim unlawfully.

As Judge Berry made these comments, McMahon's counsel became concerned that the judge had decided that McMahon was guilty of the charges against him. Counsel asked Judge Berry to "keep an open mind." Id. at 11. The judge responded that he had "sat through the trial of this case already [i.e., the related charges against Hall, and had] heard the evidence in this case already." Id. He noted that McMahon's grand jury testimony was "extremely inculpating to the degree that he inculpates himself for the unlawful imprisonment first degree." Id. at 12. After defense counsel protested, the judge continued, "From what I can see from the facts of this case, [] your client — having sat through the trial of the co-defendant — that the People have the ability to prove him guilty beyond a reasonable doubt." Id. at 13. He nonetheless assured counsel that, "[a]s a judge, [he would be] totally fair and impartial." Id. At the end of this colloquy, McMahon's counsel asked Judge Berry to recuse himself. Judge Berry declined to do so.

Later that day, in open court, Judge Berry returned to the question of his recusal and his impartiality. He said:

Well, you know, I'm not the trier of fact in this case. I am the judge who will moderate and produce a fair and impartial trial. Now, if, in fact, you wanted to have a non-jury trial, I would — could arrange to have a judge here to try the case non-jury if you felt that that right was being impeded at this time.

Do you feel that that's being impeded? Is there a desire for a non-jury trial?

Sandoval Hearing,² June 11, 1996, at 32-33.

After consulting with McMahon, McMahon's counsel accepted Judge Berry's offer of a transfer to another judge for a non-jury trial. The case was then transferred to County Court Judge Robert R. Meehan.

When the parties appeared before Judge Meehan, he said, "I understand there's an application by the defense in this case and, for that reason, the case has been approved by the presiding judge . . . to be transferred to me." Waiver of Jury Trial Proceedings, June 11, 1996, at 40. McMahon's counsel then made an application to waive trial by jury. Judge Meehan explained to McMahon and his counsel that McMahon had a right to a trial by jury and discussed the consequences of waiving that right. Judge Meehan asked McMahon if he "really want[ed] to . . . waive [his] constitutional right to a jury trial." Id. at 41. McMahon answered in the affirmative. McMahon's lawyer reviewed the court-supplied document incorporating the waiver with his client. McMahon executed the waiver, which Judge Meehan then read aloud.

Pursuant to the waiver, the case was then tried to Judge Meehan without a jury. He found McMahon guilty of kidnapping in the second degree, attempted rape in the first degree, and assault in the second degree.

McMahon appealed his conviction to the Appellate Division, Second Department, on several grounds, including that he had been denied his right to trial by jury. The Appellate Division, although modifying the judgment by reversing the conviction of kidnapping in the second degree, affirmed on all other grounds. People v. McMahon, 248 A.D.2d 642, 643, 669 N.Y.S.2d 951, 951 (2d Dep't 1998). Leave to appeal to the New York Court of Appeals was denied. People v. McMahon, 92 N.Y.2d 928, 680 N.Y.S.2d 469, 703 N.E.2d 281 (1998) (Wesley, J.).

On September 29, 1999, McMahon filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Southern District of New York. He argued, first, that his due process rights had been violated because the trial judge was biased, and, second, that he had been denied his right to a jury trial under the Sixth Amendment to the United States Constitution as applied to New York State through the Fourteenth Amendment because the trial judge had impermissibly conditioned his recusal from McMahon's case on McMahon's waiver of that right. The district court concluded that McMahon's first argument had no merit, noting that "the state court system permits a judge to participate in [plea] negotiations," McMahon, 225 F.Supp.2d at 369, and that, according to the United States Supreme Court, "opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible," id. (quoting Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994)) (internal quotation marks omitted). Because New York State law permits a judge to participate in plea negotiations and the trial judge had not displayed a "deep-seated favoritism or antagonism that would make fair judgment impossible," Liteky, 510 U.S. at 555, 114 S.Ct. 1147, there was neither a state-law nor a constitutional basis for requiring him to recuse himself.

But the district court agreed with McMahon's second argument. The court concluded that the state trial judge had violated the Sixth Amendment by conditioning McMahon's transfer of the case to another judge on McMahon's waiver of his right to a jury trial. Id. at 371. Noting that the right to a trial by jury for serious criminal offenses is "fundamental," id., the district court concluded that McMahon gave up that right "under undue pressure," id. at 373, and "received no benefit in return," id. at 374. The district court therefore granted McMahon's application for a writ of habeas corpus.

The State appeals.

DISCUSSION

I. Standard of Review

We review a district court's decision to grant a writ of habeas corpus de novo. Lurie v. Wittner, 228 F.3d 113, 121 (2d Cir.2000), cert. denied, 532 U.S. 943, 121 S.Ct. 1404, 149 L.Ed.2d 347 (2001).

II. Review Under AEDPA

Under the Antiterrorism and Effective Death Penalty Act, ...