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The Hon. Leon Jordan, United States District Judge for the Eastern District of Tennessee, sitting by

designation. 

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 05a0577n.06

Filed: July 7, 2005

04-4136

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PHILLIP GAMMALO,

Petitioner-Appellant,

v.

MICHELLE BERLIN, Warden,

Respondent-Appellee.

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ON APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OHIO

Before: NORRIS and DAUGHTREY, Circuit Judges, and JORDAN,*

 District Judge

PER CURIAM. The petitioner, Phillip Gammalo, is an Ohio state inmate serving

a life sentence following his conviction by a three-judge panel for aggravated murder and

attempted rape. He filed a petition for a writ of habeas corpus in the Northern District of

Ohio pursuant to 28 U.S.C. § 2254, claiming that his conviction was unconstitutional

because his waiver of a jury trial was unknowing and uninformed. Specifically, Gammalo

argued that to effectuate a valid waiver of his constitutional right to a jury trial, the trial court

was required to inform him of the jury’s role in a capital sentencing and to engage him in

a colloquy to ensure the voluntariness of his waiver. The district court denied relief, finding
04-4136

Gammalo v. Eberlin

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that the Ohio courts had reasonably determined that Gammalo’s jury waiver was consistent

with clearly established federal law. We find no error and affirm.

Faced with a charge of murder and eligible for the death penalty, Gammalo waived

his right to a jury trial and agreed to be tried by a three-judge panel as provided by Ohio

law. See Ohio Rev. Code § 2945.06. He signed a waiver stating:

I, Philip Gammalo, the defendant in the above cause, hereby voluntarily and

knowingly waive and relinquish my right to a trial by jury, and elect to be tried by a

three judge panel of the court in which said cause may be pending. I fully

understand that under the laws of this state I have a constitutional right to trial by

jury.

Before accepting the wavier, the trial judge read the waiver aloud and asked Gamallo to

confirm that the signature on the form was his. Gammalo openly affirmed that he wanted

to proceed to trial before a three-judge panel.

The Ohio courts found that the waiver was valid, and the district court agreed. We

conclude that a more intensive inquiry was not constitutionally required, given that the

Supreme Court has never clearly established that a trial court must conduct a colloquy with

a defendant or otherwise inform the defendant of the jury’s role in sentencing before

accepting a valid waiver of a jury trial. Supreme Court precedent requires only that the

waiver be voluntary, knowing, and intelligent, with sufficient awareness of the relevant

circumstances and likely consequences, see Brady v. United States, 397 U.S. 742, 748
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Gammalo v. Eberlin

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(1970), and places the burden on the habeas petitioner to show otherwise. See Adams v.

United States, 317 U.S. 269, 281 (1942). 

Because the relevant case law and the reasons why Gammalo’s petition should be

denied have been accurately and adequately identified by the district court, the issuance

of a full, written opinion by this court would be duplicative and would serve no useful

purpose. Accordingly, we AFFIRM the judgment entered by the district court based upon

the reasoning set forth in the magistrate judge’s recommendation of June 15, 2004, and

the district court’s opinion filed on July 28, 2004.