Sinistaj v. Burt

• Decision Date: 03 October 1995
• Docket Number: No. 94-2076,94-2076
• Citation: 66 F.3d 804
• Parties: Fran SINISTAJ, Petitioner-Appellee, v. Sherry BURT, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 804

66 F.3d 804

Fran SINISTAJ, Petitioner-Appellee, v. Sherry BURT, Respondent-Appellant.

No. 94-2076.

United States Court of Appeals, Sixth Circuit.

Argued June 8, 1995.

Decided Oct. 3, 1995.

Fran Sinistaj, Detroit, MI, pro se.

F. Randall Karfonta (argued and briefed), Leland, MI, for Petitioner-Appellee.

Arthur E. D'Hondt (argued and briefed), Peter L. Trezise, Office of the Attorney General, Habeas Corpus Division, Lansing, MI, for Respondent-Appellant.

Before: WELLFORD, NELSON, and RYAN, Circuit Judges.

RYAN, Circuit Judge.

Sherry Burt, the warden of a Michigan prison facility, appeals from the district court's order granting the petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254 brought by Fran Sinistaj, an inmate at the facility. Respondent Burt's appeal raises several issues, but we shall address only two:

1) Whether the district court erred in finding that a state court's "abuse of discretion" in deciding a criminal defendant's motion to withdraw his waiver to a jury trial is a violation of federal law sufficient to support a writ of habeas corpus; and

2) Whether, under the circumstances of this case, the state court's refusal to permit Sinistaj to withdraw his jury trial waiver was a violation of the Sixth Amendment of the United States Constitution.

We conclude that the district court erred in granting Sinistaj's petition because a finding that a state trial court abused its discretion in denying a petitioner's motion to withdraw his waiver to a jury trial does not show, without more, a "violation of the Constitution or laws or treaties of the United States," as required by 28 U.S.C. Sec. 2254(a). ¹ We further hold that, under the circumstances of this case, Sinistaj was not denied his constitutional right to trial by jury when the state court refused to permit Sinistaj to withdraw his jury trial waiver.

I.

In May 1988, the Oakland County, Michigan, Circuit Court sentenced Sinistaj to a 10 to 20 year term of imprisonment following his conviction for possession with intent to deliver 50 to 250 grams of cocaine, and a concurrent term of 3 to 5 years for carrying a concealed weapon. Sinistaj appealed his convictions and he remained free on bond.

On October 30, 1989, while at liberty on bond, Sinistaj was arrested in Detroit, Michigan, and charged with carrying a concealed weapon. At Sinistaj's preliminary examination, Detroit Police Officer Leon Berdy testified that he had observed Sinistaj standing in front of a pawnshop on a Detroit street and watched Sinistaj pull a gun from his waistband and attempt to discard it. Nuo Dresaj, testifying as a witness for Sinistaj, stated that he was standing near Sinistaj and that it was he, Dresaj, who had the gun and that he had thrown it at Sinistaj's feet when he saw the police approaching. The state court ordered Sinistaj bound over for trial. Dresaj was then arrested and charged with carrying a concealed weapon.

The cases against Sinistaj and Dresaj came before Recorder's Court Judge John Patrick O'Brien for a calendar conference. Both defense counsel indicated to Judge O'Brien that their clients wished to waive a jury trial and be tried by the judge alone. Judge O'Brien engaged each defendant in a colloquy, ascertaining that each understood his right to a jury trial and that each was intelligently and knowingly waiving that right. Both Sinistaj and his counsel then signed a written form declaring a knowing waiver of Sinistaj's right to a jury trial.

On April 27, 1990, the cases against Sinistaj and Dresaj came before Judge O'Brien for trial. On that day, the two cases were severed because Dresaj desired to plead guilty. Judge O'Brien accepted Dresaj's guilty plea, and when Sinistaj's case was called for trial, the prosecutor objected to Judge O'Brien hearing the case without a jury, apparently because he thought it was improper for Judge O'Brien to hear Sinistaj's case after having taken Dresaj's guilty plea. Judge O'Brien declared that he thought it would not be improper for him to hear the case, but agreed, nevertheless, to send the case to another judge for trial. Sinistaj's counsel "agreed," under the assumption that a blind draw would be used to select the judge to whom the case would be assigned. Rather than use a blind draw, however, Judge O'Brien assigned the case to Judge Leonard Townsend, who was available for trial that morning.

Before Judge Townsend, Sinistaj's counsel moved to withdraw the waiver of a jury trial or, in the alternative, to have the case assigned by blind draw. Judge Townsend denied the motion, and the case then proceeded to trial before Judge Townsend without a jury. After hearing testimony from witnesses for the state and for the defendant, Judge Townsend found Sinistaj guilty of carrying a concealed weapon.

When Sinistaj later appeared before Judge Townsend for sentencing, Sinistaj's counsel made a motion for a new trial based in part on the complaint that Sinistaj had been denied his right to a jury trial. Judge Townsend denied the motion and sentenced Sinistaj to 40 to 60 months imprisonment, to be served consecutively with his sentence for possession of cocaine.

In his direct appeal to the Michigan Court of Appeals, Sinistaj raised five issues, including whether the trial court denied Sinistaj's right to a jury trial under the federal and Michigan constitutions when it denied his motion to withdraw his waiver of trial by jury. The Michigan Court of Appeals issued an unpublished per curiam opinion affirming Sinistaj's conviction and sentence and later denied Sinistaj's motion for rehearing. The Michigan Supreme Court denied Sinistaj's petition for leave to appeal.

Sinistaj then filed a pro se petition for a writ of habeas corpus, under 28 U.S.C. Sec. 2254, in the United States District Court for the Eastern District of Michigan. The petition raised five issues, the first of which was whether Sinistaj was entitled to a jury trial under the circumstances, and whether denying it to him violated the federal and Michigan constitutions. The matter was assigned to a magistrate judge, who issued a report and recommendation suggesting that Sinistaj's petition be dismissed without prejudice as it contained both exhausted and nonexhausted claims.

The district court issued an order rejecting the magistrate judge's report and recommendation, concluding that only the jury trial issue was an exhausted claim. The court held that all the other claims were based solely on state law, and should, therefore, be dismissed with prejudice. The district court then addressed the merits of the sole remaining claim, that is, that Sinistaj had been denied his federal constitutional right to a jury trial. Finding that Sinistaj had been denied his right to trial by jury, the district court issued a writ of habeas corpus.

The respondent filed a motion to alter or amend the judgment, and raised for the first time six grounds upon which the respondent asserted that the district court's judgment was in error. The district court vacated its prior order and issued an amended order in which it again rejected the magistrate judge's recommendation and issued the writ of habeas corpus. Sinistaj v. Burt, 860 F.Supp. 1209 (E.D.Mich.1994).

II.

A.

Although our standard of review for issuance of a writ of habeas corpus is de novo, we render clearly erroneous review of any findings of fact made by the district court. McCall v. Dutton, 863 F.2d 454, 459 (1988), cert. denied, 490 U.S. 1020, 109 S.Ct. 1744, 104 L.Ed.2d 181 (1989).

An intelligent and voluntary waiver of the right to a jury trial is valid, and a conviction obtained after such a waiver is not constitutionally infirm. See, e.g., Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930). Warden Burt's primary argument is that the district court's decision is based not on a finding of a violation of the Sixth Amendment of the United States Constitution, but upon a perceived error of state law. Errors of state law alone cannot form the basis of relief under federal habeas corpus. Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 479-80, 116 L.Ed.2d 385 (1991). Only where the violation of state law is also a violation of federal law may the error support a claim under federal habeas. Id. at 68, 112 S.Ct. at 480.

A careful reading of the district court's opinion reveals that the court thought the issue before it was whether the state court abused its discretion in denying the petitioner's request for withdrawal of his previously filed waiver of jury trial. Early in its opinion, the district court declared: "Therefore, the issue before the court is whether the Michigan Courts abused their discretion in denying Petitioner's motion to withdraw his waiver of a jury trial and reassert his constitutional guarantee." 860 F.Supp. at 1214.

The court then proceeded, after examining cases from five states as well as one case from this court, to identify the four criteria many courts use to determine "the propriety of a trial judge's exercise of discretion" in deciding a motion to withdraw a waiver of jury trial. Id. The district court then carefully considered the facts of the waiver proceedings before Judge O'Brien and the motion to withdraw the waiver before Judge Townsend in order "to determine whether an...