IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-30645

DEIDRE A. PIERRE,

Petitioner - Appellant

v.

MARIANA LEGER, Warden, Louisiana Correctional Institute for Women,

Respondent - Appellee

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 6:09-CV-1881

Before KING, SMITH, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Following a bench trial, Deidre Pierre, Louisiana prisoner # 445265, was

convicted of one count of second-degree murder and one count of attempted

second-degree murder. She was sentenced to life in prison for the murder and

to a term of ten years imprisonment for the attempted murder. Pierre filed a 28

U.S.C. § 2254 petition alleging that nothing in the record shows that she

knowingly and intelligently waived her constitutional right to a jury trial. The

United States Court of Appeals

Fifth Circuit

F I L E D

October 12, 2012

Lyle W. Cayce

Clerk

 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.

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district court denied the petition with prejudice. Pierre appeals the district

court’s denial of her petition. We affirm.

I. BACKGROUND

On February 13, 1998, Pierre fatally shot her three-year-old son. Pierre

then shot and injured her husband before turning the gun on herself. The State

of Louisiana indicted Pierre for first-degree murder of her son and attempted

first-degree murder of her husband. The indictment was amended to charge her

with the offenses of second-degree murder and attempted second-degree murder.

Pierre pled not guilty and not guilty by reason of insanity to these charges. The

trial judge determined that Pierre waived her right to a jury trial. Following a

bench trial, the judge found Pierre guilty of both charged offenses. Pierre was

sentenced to life imprisonment on her conviction of second-degree murder, to run

consecutively with a sentence of ten years at hard labor on her conviction of

attempted second-degree murder.

In her direct appeal, Pierre argued that the record did not show that she

knowingly and intelligently waived her right to a jury trial. The appellate court

agreed: it reversed and set aside her convictions and sentences, and remanded

the case for a new trial. State v. Pierre, 827 So. 2d 619, 623 (La. App. 3d Cir.

2002). The State filed a writ application to the Supreme Court of Louisiana

seeking review of the appellate court’s judgment. The Supreme Court of

Louisiana granted the writ, reinstated Pierre’s convictions and sentences, and

remanded to the appellate court for consideration of the other claims raised on

appeal. State v. Pierre, 842 So. 2d 321, 322 (La. 2003) (per curiam). On remand,

the appellate court affirmed Pierre’s convictions and sentences. Pierre filed a

petition for writ of certiorari to the Supreme Court of Louisiana, which was

denied. Pierre’s attempts to obtain state post-conviction relief were unsuccessful.

Pierre then filed a petition for writ of habeas corpus in the federal district

court. After the district court denied Pierre’s petition and her request for a

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certificate of appealability, Pierre presented this court with her request for a

certificate of appealability. We found that Pierre made a “substantial showing

of the denial of [her] constitutional right” to a jury trial. 28 U.S.C. § 2253(c)(2);

Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, we granted a

1

certificate of appealability on the issue of whether the record shows that Pierre

knowingly and intelligently waived her right to a jury trial.

II. STANDARD OF REVIEW

This court has jurisdiction over this habeas corpus proceeding pursuant

to 28 U.S.C. § 2253(a). In an appeal from a denial of a habeas petition, we review

the district court’s findings of fact for clear error, while reviewing its conclusions

of law de novo, applying the same standards to the state court’s decision as did

the district court. Buntion v. Quarterman, 524 F.3d 664, 670 (5th Cir. 2008).

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

applies to Pierre’s petition. Under the standard of review set forth by AEDPA,

federal courts must defer to state court determinations of the merits of a state

prisoner’s claims. 28 U.S.C. § 2254(d). Questions of law and mixed questions of

law and fact are reviewed under section 2254(d)(1), and questions of fact are

reviewed under section 2254(d)(2). Horn v. Quarterman, 508 F.3d 306, 312 (5th

Cir. 2007). A state court’s determination of questions of law and mixed questions

of law and fact must be given deference unless the state court decision was

“contrary to” or involved an “unreasonable application of” clearly established

Supreme Court precedent. § 2254(d)(1). A state court’s factual findings are

presumed correct, and a reviewing court must give deference to such findings

unless they were based on an “unreasonable determination of the facts” in light

of the record before the state court. § 2254(d)(2).

Namely, Pierre showed that reasonable jurists could debate the propriety of the 1

district court's decision on this issue. Slack, 529 U.S. at 484 (quoting Barefoot v. Estelle, 463

U.S. 880, 893 & n.4 (1983)).

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Whether Pierre knowingly and intelligently waived her constitutional

right to a jury trial is a legal question. See Johnson v. Cain, 196 F.3d 1258 (5th

Cir. 1999) (per curiam) (unpublished); cf. Marshall v. Lonberger, 459 U.S. 422,

431-32 (1983) (voluntariness of state prisoner’s guilty plea is a 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 a legal question that may involve subsidiary factual determinations), cert.

denied, 526 U.S. 1118 (1999). Thus, regarding this issue, section 2254(d)(1)

provides the standard of review. Under section 2254(d)(1), a state court decision

is contrary to clearly established federal law “if the state court arrives at a

conclusion opposite to that reached by [the Supreme Court] on a question of law

or if the state court decides a case differently than [the] Court has on a set of

materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000).

A decision involves an unreasonable application of federal law “if the state court

identifies the correct governing legal principle . . . but unreasonably applies that

principle to the facts of the prisoner’s case.” Id. The test for determining whether

there was an unreasonable application is objective. Id. at 409. A federal court

cannot grant habeas relief by concluding only that the state court applied clearly

established federal law incorrectly; the court must conclude that such

application was also unreasonable. Id. at 410 (“[An] unreasonable application of

federal law is different from an incorrect application of federal law.”).

Although the question of whether Pierre made an effective waiver is

reviewed under section 2254(d)(1), it may involve subsidiary factual questions

subject to review under section 2254(d)(2). We may grant habeas relief under

this prong of AEDPA if the state court decision was based on an unreasonable

determination of the facts in light of the record before the state court.

Harrington v. Richter, 131 S. Ct. 770, 785 (2011). This is a “highly deferential

standard . . . which demands that state-court decisions be given the benefit of

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the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (citation

and internal quotation marks omitted). The state court’s factual findings are

presumed to be correct, and petitioner has the burden of rebutting this

presumption by clear and convincing evidence. See Wesbrook v. Thaler, 585 F.3d

245, 251 (5th Cir. 2009) (citing 28 U.S.C. § 2254(e)(1)).2

In determining whether to grant Pierre relief, we must examine the state

habeas decision. However, in September 2009, the Supreme Court of Louisiana

issued a one-word denial of Pierre’s writ application. When the reviewing federal

court is “faced with a silent or ambiguous state habeas decision, the federal court

should ‘look through’ to the last clear state decision on the matter.” Jackson v.

Johnson, 194 F.3d 641, 651 (5th Cir. 1999). The last clear state court decision on

whether Pierre knowingly and intelligently waived her right to a jury trial was

the Supreme Court of Louisiana’s ruling of March 28, 2003. As we will explain,

that ruling is entitled to deference and should not be disturbed.

III. DISCUSSION

Pierre argues that she is entitled to federal habeas relief because she did

not knowingly and intelligently waive her Sixth Amendment right to trial by

jury. The issue before us is whether, in light of the state record, the Supreme

Court of Louisiana could have reasonably determined that Pierre made a

knowing and intelligent waiver of her right to a jury trial through her attorney.

A. Waiver of the Sixth Amendment Right to Trial by Jury

The Sixth Amendment right of the defendant to a jury trial in a criminal

case is a fundamental constitutional right. Duncan v. Louisiana, 391 U.S. 145,

157-58 (1968). Federal law governs whether a defendant has waived this right.

AEDPA does not require petitioner to prove by clear and convincing evidence that the 2

decision was based on an unreasonable determination of facts. Miller-El v. Cockrell, 537 U.S.

322, 341 (2003). Rather, section 2254(e)(1) “pertains only to state-court determinations of

factual issues, rather than decisions.” Id.

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Boykin v. Alabama, 395 U.S. 238, 243 (1969). Under federal law, a defendant

may waive her right to a jury trial, provided that she does so voluntarily,

knowingly, and intelligently. See Brady v. United States, 397 U.S. 742, 748

(1970); Singer v. United States, 380 U.S. 24, 34 (1965). Whether a defendant has

effectively waived this right depends upon “the unique circumstances of each

case.” Adams v. United States ex rel. McCann, 317 U.S. 269, 278 (1942). But in

no case may a court presume that a defendant has waived her right to a jury

trial from a silent record. Boykin, 395 U.S. at 243.

Although Pierre and the State disagree as to whether the record reflects

that Pierre made a knowing and intelligent waiver, the record is not silent as to

this question. From the record, it appears that Pierre was absent when her

attorney first waived the jury trial: the minutes indicate that Pierre was in the

courtroom at this time, whereas the trial transcript indicates that she was

absent. The record is clear, however, that Pierre was present in court on the

second day of trial, when the judge inquired as to whether the parties wanted to

confirm the waiver on the record. The transcript shows the following

conversation among the court, prosecutor, and defense counsel:

The Court: Do you want to put the jury waiver on the record?

Prosecutor: Yes, if we could, Judge. I just want to clarify for

the record, I was not present in court at 9:30 - I

was in another courtroom - when the waiver of a

jury trial was made by [defense counsel]. I would

just ask that be clarified, for the record, that he

was authorized to do that by his client, so we can

be on the record on that.

Defense: Your Honor, Ms. Pierre and I spoke about the

possibility of a jury trial, as well as a judge trial;

that in the course of our discussions, we

determined, mainly through me, because she was

relying on my expertise in this matter, whether

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to waive the jury trial, and that was our

determination at the time. She wasn’t present in

the courtroom. She was in the jury room. At the

time, I did put on the record that we were

waiving her jury trial. She is present now. And if

the Court would entertain a question to her

whether she agrees to that.

The Court: For the record, just for the record purpose, are

you waiving your right to a trial by jury?

Defense: She wants to speak with me for a second.

After a discussion off the record between defense counsel and petitioner, the

conversation resumed:

Defense: Your Honor, I’ve spoken with Ms. Pierre. She had

some questions about whether it was in her best

interest to waive the jury. She and I had spoken

before yesterday. We had spoken about it last

week and in prior times that I met with her. She

is, at this time, uncertain as to whether that was

in her best interest or not.

The Court: Well, we’re going to bring the jury in and start a

jury trial. Okay. We have a jury trial starting at

1:30.

Prosecutor: Judge, may we approach?

The Court: Yes.

The bench conference then proceeded as follows:

Prosecutor: The issue is not what would be in the best

interest now. The issue is now: Did she discuss

with [her attorney] and determine and authorize

him to waive the jury trial? Which he said she

did. It’s as simple as that. That’s the issue. That’s

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the question, whether or not that was done.

That’s the only issue.

The Court: We can conduct a hearing on that issue.

Prosecutor: Well, I mean, we’ve heard [defense counsel] state

that for the record.

Defense: That’s correct, Your Honor. What I’ve told the

Court is correct.

Prosecutor: Frankly, that’s the clarification I was looking for,

not now to have her withdraw.

The Court: You can proceed.

The parties disagree as to whether this conversation shows that Pierre made a

knowing and intelligent waiver of her right to a jury trial through her attorney.

According to Pierre, the record does not support the finding that she

knowingly and intelligently waived her right to a jury trial through defense

counsel. Pierre argues that the record does not show that she authorized her

attorney to waive the jury. She further argues that memorializing the earlier

waiver did not make that waiver effective in light of the transcript. In her view,

the transcript presents no evidence that defense counsel ever advised her of her

right to a jury trial, or that she understood the right so as to be able to

knowingly and intelligently waive it. In short, Pierre points to the absence of

evidence in the record as support for her argument that she did not personally

waive her right to a jury trial or authorize defense counsel to waive it.

The State argues the converse is true. It is undisputed, the State asserts,

that Pierre was present when defense counsel stated for the record that he had

consulted with her numerous times about her right to trial by jury, and that she

authorized him to waive the jury trial. As the transcript shows, Pierre did not

disagree or advise the court to the contrary. Further, neither she nor her

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attorney objected to the continued bench trial or requested a jury trial, even

after the trial judge offered one. The State argues that Pierre’s failure to act

clearly evinces a knowing and intelligent waiver of her right to a jury trial,

noting that the Supreme Court of Louisiana had so held.3

B. The Reasonableness Standard Under AEDPA

Under the applicable AEDPA standard of review, § 2254(d)(1), we must

affirm the district court’s denial of Pierre’s habeas petition unless the state

court’s decision was contrary to or involved an unreasonable application of

clearly established Supreme Court precedent. “Because no Supreme Court case

involves facts nearly identical to those before us, [Pierre’s] appeal is governed by

the ‘unreasonable application’ prong of AEDPA.” Scott v. Cain, 364 F. App’x 850,

853 (5th Cir. 2010) (per curiam), cert. denied, 130 S. Ct. 3519 (2010) (citing

Taylor v. Cain, 545 F.3d 327, 334 (5th Cir. 2008)). AEDPA effectively decides the

issue in this case: Pierre is not entitled to habeas relief because we cannot say

that the state court applied Supreme Court precedent to the facts of this case in

an objectively unreasonable manner. See Williams, 529 U.S. at 413.

Pierre’s claim that she is entitled to habeas relief because the record does

not reflect that she authorized the waiver is unpersuasive. We have held that

“[c]ourt records alone may be insufficient to establish a waiver of [fundamental

The Supreme Court of Louisiana found that the record reflects that counsel waived 3

a jury trial on petitioner's behalf, that the state trial court memorialized the earlier waiver

when petitioner was present, and that the memorialization came in light of comments by

defense counsel that he and Pierre had discussed the waiver at length on several occasions,

and that both had agreed to it. Pierre, 842 So. 2d at 322. Notably, Louisiana Courts have

limited Pierre’s holding to the factual highlight of the extensive discussions between Pierre

and her attorney. See State v. Onstead, 875 So. 2d 908, 917-18 (La. App. 5 Cir. 2004) (holding

that Pierre involved the unique factual situation where “defense counsel specifically stated

that he and his client had discussed the waiver at length on several occasions, and that both

had agreed to the waiver” and that generally, “it is preferable for the trial court to advise a

defendant of the right to trial by jury in open court before obtaining a waiver” and “it is

preferable, but not necessary, for the defendant to personally waive the right to a jury trial”

(citations omitted)).

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constitutional rights] if they are ambiguous.” Williford v. Estelle, 672 F.2d 552,

554 (5th Cir. 1982) (citing Moran v. Estelle, 607 F.2d 1140, 1144 (5th Cir. 1979)

(finding that a minute entry, the contents of which defendant disputed, could not

by itself establish waiver)). The record in this case, which twice has been

submitted to the Louisiana Supreme Court, does not suffer from such ambiguity.

The transcript shows that defense counsel, at the time of trial and in Pierre’s

presence, informed the court that he had consulted with Pierre numerous times

about waiving the jury trial, and that Pierre had agreed with him to do so. The 4

transcript further shows that Pierre did not object to the bench trial at any time

between when the court asked her if she wished to waive her right to a jury trial

and when it memorialized the waiver on the record. At no point during the bench

trial did Pierre object to the waiver. Under section 2254(d)(2), Pierre must show

that the state decision was based on the unreasonable determination that she

consented to the waiver in light of the state court record as determined by the

Louisiana Supreme Court. We find that Pierre has failed to make this showing.

The state court could have reasonably determined from the totality of the record

that Pierre authorized defense counsel to waive her right to a jury trial.

Pierre’s claim that her waiver was invalid because she did not personally

waive her right to a jury trial is also unavailing. This court has found that a

defendant may waive this right through counsel. See United States v. Page, 661

F.2d 1080, 1080-83 (5th Cir. Nov. 1981). Because the Supreme Court has not

held that a defendant must personally waive her right to a jury trial, see Scott,

364 F. App’x at 855, we cannot find that the state court unreasonably applied

clearly established federal law to the facts of this case in determining that the

lack of personal waiver did not render Pierre’s waiver ineffective.

 We note defense counsel’s constitutional effectiveness was scrutinized during three 4

days of evidentiary hearings and was upheld.

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A defendant may waive her right to a jury trial through her attorney, see

Page, 661 F.2d at 1080-83, but this court has held that such waivers must be

knowing and intelligent. See United States v. Mendez, 102 F.3d 126, 130-31 (5th

Cir. 1996); see also Patton v. United States, 281 U.S. 276, 312 (1930) (“Not only

must the right of the accused to a trial by a constitutional jury be jealously

preserved, but 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.) (emphasis added)), overruled on other grounds by

Williams v. Florida, 399 U.S. 78, 92 (1970). We found that the defendant in Page

was a “learned, articulate man suffering neither language nor perceptive

difficulty.” Page, 661 F.2d at 1083. Thus, we held that the defendant’s attorney

could waive a jury trial without affirmative action on his client’s part. Id. By

contrast, this court found that the defendant in Mendez was “a purported drug

mule” who “was unable to speak or understand English” and “did not understand

the purpose of a jury.” Mendez, 102 F.3d at 130-31. Accordingly, in Mendez we

found that a method of waiver similar to the one used in Page was ineffective.

Id. This court distinguished Mendez from Page by noting the differences between

the two defendants. Whereas Mendez was poorly educated and unable to

understand courtroom proceedings, Page was an English-speaking science

professor. Id. In short, we found, Mendez was “a far cry from Professor Page.” Id.

The facts in the present case are distinguishable from those in Mendez.

The district court in Mendez scheduled a bench trial in the event the parties

failed to reach a plea agreement. Mendez could not have waived his right to a

trial by jury: his attorney did not contest the court’s decision to schedule a bench

trial, and failed to reach a plea agreement. Mendez’s right to a jury trial was

waived for him by default. Id. at 128. As a practical matter, Mendez could not

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have objected to the waiver given his inability to speak or understand English.

This became clear at the conclusion of the trial, when Mendez’s attorney

explained to the court that he had not discussed the issue of waiver with his

client because, among other reasons, he was having trouble getting an

interpreter into the jail. Id. As the district court would discover, Mendez “had

little understanding of what was transpiring” and “had infrequent contact with

his lawyer.” Id.

In contrast with Mendez, who neither spoke nor understood English,

Pierre both speaks and understands English. The conversation that occurred

between the court and both parties on the second day of trial regarding the

waiver stands in contrast to the bench trial that occurred by default in Mendez.

Pierre, having the ability to understand generally what was being discussed,

could have objected to the waiver at this time. Whereas Mendez’s attorney

openly admitted to the district court that he had not discussed waiver with his

client due to problems of interpretation, the record indicates that Pierre’s

attorney discussed waiving the jury with Pierre on several occasions before trial

began, and that the waiver was a joint decision. The facts on the record do not

suggest that Pierre was a Page, luring the state trial court into error, but neither

do they suggest that she was a Mendez, the victim of a language barrier and an

incommunicado defense counsel.5

In her brief, Pierre points to her history of mental health problems and claims that 5

she was not competent to knowingly and intelligently waive her right to a jury trial. Pierre

previously had raised the issue of her mental health during post-conviction proceedings but

only in connection with claims of ineffective assistance of counsel. We cannot grant relief on

the basis of Pierre’s claim that she could not have effectively waived the jury because of her

mental state at the time of trial. The State competency report and a psychological evaluation

found Pierre competent to stand trial. According to these sources, Pierre could participate in

her own defense, assist her attorney, understand her legal rights, and distinguish the

functions of judge and jury. Given the significant deference we give to state court findings of

fact, 28 U.S.C. § 2254(e)(1), Pierre has failed to overcome the presumption thatthe evaluations

were correct and that she was competent to stand trial. We therefore cannot find that Pierre

could not make a knowing and intelligent waiver due to her history of mental health problems.

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Finally, Pierre fails to persuade this court that she was deprived of her

constitutional right to a jury trial because, in the absence of a colloquy between

her and the trial judge regarding this right, her waiver was not knowing and

intelligent. See Brady, 397 U.S. at 748. The absence of a colloquy between Pierre

and the trial judge regarding her constitutional right to a jury trial does not

compel the finding that her waiver was not knowing and intelligent. In accord

with several other circuits, this court has recognized that it would be advisable

for federal district courts to engage in a colloquy with the defendant about the

function of a jury and the difference between a bench and jury trial. See United

States v. Igbinosun, 528 F.3d 387, 390 n.4 (5th Cir. 2008); Marone v. United

States, 10 F.3d 65, 68 (2d Cir. 1993) (per curiam); United States v. Cochran, 770

F.2d 850, 853 (9th Cir. 1985); United States v. Martin, 704 F.2d 267, 275 (6th

Cir. 1983); United States v. Delgado, 635 F.2d 889, 890 (7th Cir. 1981). But

neither this court nor the Supreme Court has defined any “fact-specific

constitutional minima for a valid jury waiver,” or has “required a set colloquy

before a jury waiver can be accepted.” Scott, 364 F. App’x at 855.6

Were this case a federal criminal case on direct appeal, reversal would be

obligatory. Fed. R. Crim. P. 23(a)(1). But this court has “no authority to grant

habeas corpus relief simply because we conclude, in our independent judgment,

that a state supreme court’s application of [clearly established federal law] is

erroneous or incorrect.” Neal v. Puckett, 286 F.3d 230, 236 (5th Cir. 2002) (en

banc), cert. denied, Neal v. Epps, 537 U.S. 1104 (2003). We must consider the

state court’s determination that Pierre, through her counsel, made a knowing

and intelligent waiver in light of the standard of review under AEDPA. The

The Fourth Circuit has expressly noted the lack of constitutional minima for the 6

waiver of the right to trial by jury. That court found that “[t]he constitutional imperative is

this, no less and no more: the waiver must be knowing, intelligent, and voluntary.” United

States v. Boynes, 515 F.3d 284, 286 (4th Cir. 2008).

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question now before us “is not whether . . . the state court’s determination was

incorrect but whether that determination was unreasonable—a substantially

higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007); see Williams,

529 U.S. at 410. Pierre has not met this threshold. Pierre’s argument rests on

the claim that the absence of evidence in the record of her personally making a

knowing and intelligent waiver means that there was no waiver. Pierre has not

shown that it was unreasonable for the state court to find that she waived her

right to a jury trial, given the portions of the transcript indicating that defense

counsel was authorized to waive this right, and that the waiver was knowing

and intelligent. She has thus failed to satisfy the standard of review under

AEDPA, which precludes habeas corpus relief except in cases where the state

court’s decision rested on an unreasonable determination of clearly established

federal law. See Williams, 529 U.S. at 410. This was not such a case. We find

that the decision of the state court, in light of the record, was not objectively

unreasonable. It therefore stands.

IV. CONCLUSION

For the reasons stated, we AFFIRM the judgment below.

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