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Tony Lynn Davis v. Ron Champion and Attorney General For The State of Oklahoma, 21 F.3d 1121, 10th Cir. (1994)
Tony Lynn Davis v. Ron Champion and Attorney General For The State of Oklahoma, 21 F.3d 1121, 10th Cir. (1994)
3d 1121
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
Before BRORBY and EBEL, Circuit Judges, and KANE,** District Judge.
ORDER AND JUDGMENT1
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the
determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir. R. 34.1.9.
The case is therefore ordered submitted without oral argument.
Petitioner Tony Lynn Davis appeals the district court's denial of his
petition for writ of habeas corpus. Mr. Davis was convicted in Tulsa
County District Court of willful injury to a minor child and second degree
murder. Mr. Davis' conviction was upheld by the Oklahoma Court of
Criminal Appeals, Davis v. State, 759 P.2d 1033 (Okla.Crim.App.1988),
appeal dismissed and cert. denied, 488 U.S. 999 (1989), and applications
for state post-conviction relief were denied. Petitioner then filed a petition
for writ of habeas corpus in the United States District Court for the
Northern District of Oklahoma. After conducting an evidentiary hearing,
the district court denied the petition. We affirm.
The basis for Mr. Davis' due process claim that he was improperly denied his
right to a twelve-person jury stems from an incident during trial. While the jury
was deliberating, one of the jurors began choking. The foreman of the jury,
knowing that Mr. Davis was a CPR instructor, rushed from the jury room and
yelled for Mr. Davis to help. Both Mr. Davis and his mother entered the jury
room and aided in the juror's rescue. The juror was then taken to a local
hospital. According to Mr. Davis' trial counsel, the judge then convened a
meeting with the attorneys where he indicated that a mistrial would be granted
if any of the defendants requested one, and where the attorneys and the judge
discussed the possibility of going forward with eleven jurors. In a later
conference in chambers, Mr. Davis' attorney, formally and on the record,
waived his client's right to a twelve-person jury. Mr. Davis was not present at
this conference, but he was in court later when the judge announced the
intention of the parties to proceed with eleven jurors. Mr. Davis maintains that
he did not consent to an eleven-person jury and would not have consented had
he been given the opportunity.
waiver of a twelve-person jury. After the hearing, the court concluded that Mr.
Davis had consented to his attorney's waiver of a twelve-person jury. It
therefore dismissed the habeas petition. We agree that Mr. Davis' jury waiver
claim is not a basis for habeas relief, although our analysis differs from that of
the district court.
3
While Mr. Davis did not have a federal right to a twelve-person jury, he did
have such a right under the provisions of the Oklahoma constitution. Okla.
Const., art. II, 19. In general, however, "[a] federal court may not issue the writ
on the basis of a perceived error of state law." Pulley v. Harris, 465 U.S. 37, 41
(1984). For the denial of a state-based right to support the issuance of a writ of
habeas corpus the petitioner must show that the denial was arbitrary,
unprincipled, unreasonable and with "so little basis in law and fact as to
constitute a denial of due process." United States ex rel. Burnett, 619 F.2d at
670; see also Holcomb v. Murphy, 701 F.2d 1307, 1309 (10th Cir.) (state court
trial error properly considered in federal habeas only where the "error renders
the trial so fundamentally unfair as to deprive the petitioner of federal
constitutional rights"), cert. denied, 463 U.S. 1211 (1983).
5
6
category
of cases where counsel in open court and in the absence of the accused
waives trial by jury on behalf of the accused. This situation may raise a presumption
of a valid waiver and will be so held unless the accused presents evidence to show
that he either did not authorize or consent to counsel's waiver or evidence that he did
not ratify the waiver in any manner. If the defendant presents such evidence, then a
rebuttable presumption arises that the defendant did not waive trial by jury. The
State then can only rebut this presumption if the evidence from the record
affirmatively and overwhelmingly shows the defendant consented, authorized or
ratified counsel's waiver upon his behalf.
7
After the evidentiary hearing, the district court found that defendant had
consented to the waiver before his attorney entered it on the record, and that
when the trial judge announced in open court the parties' intention to proceed
with eleven jurors, Mr. Davis did not object. We have reviewed these factual
findings and do not find them clearly erroneous. See United States v. Whalen,
976 F.2d 1346, 1347 (10th Cir.1992).
Because Oklahoma law, as stated above, recognizes a valid waiver of a twelveperson jury under facts similar to this case, the procedure used by the trial court
could not have been an error of state law sufficiently egregious to amount to a
denial of due process.4 Thus, we conclude that any irregularity in Mr. Davis'
waiver of his state right to a twelve-person jury did not reach constitutional
dimension.5 Because Mr. Davis' claim of ineffective assistance of counsel relies
solely on his attorney's role in agreeing to an eleven-person jury, that claim is
similarly without constitutional implication. 6
The judgment of the United States District Court for the Northern District of
Oklahoma is AFFIRMED.
**
Honorable John L. Kane, Jr., Senior District Judge, United States District Court
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of the court's General
Order filed November 29, 1993. 151 F.R.D. 470
Indeed, the Fifth Circuit has noted that Williams may have overruled Patton
sub silentio. United States v. Spiegel, 604 F.2d 961, 965 n. 9 (5th Cir.1979),
cert. denied, 446 U.S. 935 (1980)
The cases cited by the district court, while involving waiver of the right to a
twelve-person jury, are distinguishable. Some are cases in which the right, as
here, emanates from state law. See, e.g., State v. Roland, 807 P.2d 705, 707
(Kan.App.1991); State v. Lutz, 760 P.2d 249, 251 (Or.1988); State v. Reid, 747
P.2d 560, 563 (Ariz.1987); Walker v. Alaska, 578 P.2d 1388, 1390 (Alaska
1978). Others are direct appeals from convictions in federal district courts
where the Federal Rules of Criminal Procedure dictate twelve-person juries and
specify how that right is to be waived, see Fed.R.Crim.P. 23, and how alternate
jurors are to be used, see Fed.R.Crim.P. 24(c). See, e.g., United States v. Neal,
692 F.2d 1296, 1307-08 (10th Cir.1982); United States v. Taylor, 498 F.2d 390,
392 (6th Cir.1974); United States v. Baccari, 489 F.2d 274, 275 (10th
Cir.1973), cert. denied, 417 U.S. 914 (1974); Leser v. United States, 358 F.2d
313, 316-17 (9th Cir.), cert. dismissed, 385 U.S. 802 (1966)
The only case cited by the district court involving a 2254 petition which implies
a federal right to a twelve-person jury is Peek v. Kemp, 746 P.2d 672 (11th
Cir.1984), which was vacated at 746 F.2d 699 (1984). As noted by the district
court, the opinion on rehearing at 784 F.2d 479 does not address the waiver
issue.
Three other 2254 cases cited by the district court hold, correctly, that there is no
federal constitutional right to a twelve-person jury. See Vinston v. Lockhart,
850 F.2d 420, 424 (8th Cir.1988); Cooks v. Spalding, 660 F.2d 738, 739 (9th
Cir.1981), cert. denied, 455 U.S. 1026 (1982); United States ex rel. Burnett v.
Illinois, 619 F.2d 668, 669 (7th Cir.), cert. denied, 449 U.S. 880 (1980).
While we agree with Mr. Davis that a better procedure would be to secure a
written waiver from a defendant, or at least to require a defendant to indicate
his intent to waive on the record, the federal Constitution does not require such
a procedure regarding this state right. See United States ex rel. Burnett, 619
F.2d at 671