UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 98-30919
Summary Calendar
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GREGORY JOHNSON,
Petitioner-Appellant,
versus
BURL CAIN, Warden, Louisiana State Penitentiary,
Respondent-Appellee.
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Appeals from the United States District Court
for the Eastern District of Louisiana
(98-CV-713-B)
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September 20, 1999
Before HIGGINBOTHAM, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Gregory Douglas Johnson, Louisiana prisoner # 108327, appeals
the denial of 28 U.S.C. § 2254 habeas relief. With respect to the
sole issue on which a certificate of appealability was granted,
Johnson contends that a minute entry in the state court record,
reflecting that he had waived his right to trial by jury, is
insufficient to establish that the waiver was knowingly and
intelligently made.
The state court addressed Johnson’s claim on the merits,
holding that he had waived his right to a jury trial and that 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this opinion should not be published and is not precedent except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.
trial court’s failure to advise him of that right was harmless
because he had not alleged that he was unaware of the right. The
state court ruled, however, as a matter of state, not federal,
law.
The effectiveness of a waiver of a federal constitutional
right is governed by federal law. Boykin v. Alabama, 395 U.S. 238,
243 (1969). Although there may be subsidiary questions of fact,
whether the waiver of Johnson’s right to a jury trial was knowing
and voluntary is ultimately a legal determination. Cf. Marshall v.
Lonberger, 459 U.S. 422, 431-32 (1983) (voluntariness of state
prisoner’s guilty plea is 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 ultimately a legal determination, but the
determination may involve subsidiary factual determinations), cert.
denied, ___ U.S. ___, 119 S. Ct. 1768 (1999). Therefore, under the
standards of review provided by the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), this court must respect the
state court’s determination so long as it was not “contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States”. 28 U.S.C. § 2254(d)(1).
The right to a jury trial in a criminal case is a fundamental
constitutional right. Duncan v. Louisiana, 391 U.S. 145, 157-58
(1968). That right may be waived by the defendant, but the waiver
must be express and intelligently made. See Singer v. United
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States, 380 U.S. 24, 34 (1965); Patton v. United States, 281 U.S.
276, 298, 312 (1930); Mills v. Collins, 924 F.2d 89, 93 & n.4 (5th
Cir. 1991) (recognizing continuing validity of Patton with respect
to requirement that a federal or state court must obtain a knowing
and intelligent waiver of the right to a jury trial). Whether
“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 waiver of important constitutional rights, including the
right to trial by jury, may not be presumed from a silent record.
Boykin, 395 U.S. at 243; Dulin v. Henderson, 448 F.2d 1238, 1240
(5th Cir. 1971). “The record must show, or there must be an
allegation and evidence which show, that [the waiver was]
intelligently and understandingly [made].” Boykin, 395 U.S. at
242. In general, a minute entry will not provide any insight into
how, or in what way, a defendant had been advised of his
constitutional rights. Moran v. Estelle, 607 F.2d 1140, 1144 (5th
Cir. 1979).
Johnson has consistently alleged that he did not understand or
appreciate his right to a jury trial. The discussion in Patton,
Boykin, and their progeny reflects that mere awareness of a federal
constitutional right is not enough; instead, the waiver must be
intelligently and knowingly made. As in Moran and Dulin, the
minute entry in the instant case, standing alone, fails to
establish how, and in what way, Johnson was advised of his right to
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a jury trial. Accordingly, the state court’s determination that
Johnson knowingly and intelligently waived his right to a jury
trial involves an unreasonable application of established federal
law. The judgment of the district court is therefore VACATED, and
the case is REMANDED for further proceedings. Dulin, 448 F.2d at
1240.
VACATED and REMANDED
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