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Smith v. Zimmerman

July 16, 1985


Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Docket No. 84-1368.

Author: Rosenn

Before SEITZ, WEIS, and ROSENN, Circuit Judges.


ROSENN, Circuit Judge.

This case comes to us in an unusual posture. the federal constitution guarantees a defendant in a criminal case an unconditional right to a trial by jury. It makes no mention of any correlative right of a defendant to have his case decided by a judge when he tactically deems it advantageous. The petitioner in this appeal seeks a writ of habeas corpus because he claims that a Pennsylvania state trial court erroneously denied his motion for a non-jury trial and that the state appellate courts have denied him procedural due process in his effort to seek appellate review. Petitioner sought habeas corpus relief under 28 U.S.C. § 2254 in the United States District Court for the Eastern District of Pennsylvania. That court granted the petition for a writ of habeas corpus and the Commonwealth of Pennsylvania appealed. We reverse.


The Commonwealth of Pennsylvania charged the petitioner, Robert Smith, in August 1979 with burglary and related offenses. He filed a pretrial motion to waive a jury trial, offering the court a signed form waiver of jury trial, but after objection by the Commonwealth, the court rejected the waiver. Two months later he was tried to a jury and found guilty as charged. Smith appealed to the Superior Court of Pennsylvania, an intermediate court of appeal, asserting that the Pennsylvania statute, 42 Pa. Cons. Stat. Ann. § 5104(c), authorizing the Commonwealth to demand a jury trial violated the Pennsylvania Constitution. The superior court certified Smith's claim to the state supreme court. After consolidating Smith's case with four others, that court, by a four to three margin, held that section 5104(c) did indeed violate Art. 5, Sec. 10 of the Pennsylvania Constitution because it precluded the trial court from "exercising the discretion conferred by [Pa. Crim. P.] rule 1101 in assessing whether a non-jury trial should be permitted." Commonwealth v. Sorrell, 500 Pa. 355, 361, 456 A.2d 1326, 1328 (1982); see also Commonwealth v. Sherman, 500 Pa. 369, 460 A.2d 1074 (1982). The supreme court accordingly remanded the cases to the superior court for further proceedings consistent with its opinion in discussing the cases, the supreme court specifically noted, however, that there was no error in Smith's case because the trial judge had properly exercised his discretion in denying the defendant's request for a bench trial, Sorrell, 500 Pa. at 359, 456 A.2d at 1329.

On remand, the superior court dismissed Smith's appeal, holding that the state supreme court had found that Smith's motion for a non-jury trial had been denied on the basis of Pennsylvania's R. Crim. P. 1101 (1984),*fn1 and not in reliance on the unconstitutional state statute. The Pennsylvania Supreme Court denied Smith's petition for allowance of appeal, whereupon he filed a federal petition for a writ of habeas corpus claiming, as he did in his request for review in the state supreme court, that the state's highest court had denied him procedural due process by relying on the trial court's post-trial opinion setting forth its reasons for the denial of a jury trial and thereby denying him a new trial.

In the federal district court, Smith's habeas corpus petition was referred to a magistrate who unequivocally found that the record did not support the trial judge's post-trial statement for denying the defendant a non-jury trial. He concluded, however, that an erroneous interpretation of state law by a state court did not constitute a denial of due process rising to the level of a federal question. He therefore recommended that the petition for habeas corpus be denied. The district court, on the other hand, rejected the magistrate's legal conclusion and granted the writ. At the same time, the district court noted that the reasons offered in the trial judge's opinion did not agree with the reasons he gave at the time he denied defendant's motion for non-jury trial. The district court further concluded that the state supreme court's reliance on a post-trial opinion which contradicts the trial transcript is a violation of due process. The Commonwealth appealed.


During the past decade, the United States Supreme Court has moved away from an expansive view of habeas corpus relief and applied numerous strictures to the writ. See generally M. Rosenn, The Great Writ -- A Reflection of Societal Change, 44 Ohio St. L. J. 337, 355-63 (1983). This fundamental change in the Court's approach has significantly limited the availability of collateral review of criminal proceedings. A review of the applicable strictures reveals that, in the instant case, the district court erred in granting the petition for a writ of habeas corpus.


The writ of habeas corpus is available only to persons held "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). As stated by the Supreme Court, "federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension." Smith v. Phillips, 455 U.S. 209, 221, 71 L. Ed. 2d 78, 102 S. Ct. 940 (1982); Donnelly v. DeChristoforo, 416 U.S. 637, 40 L. Ed. 2d 431, 94 S. Ct. 1868 (1974).

There is no federal right to a non-jury criminal trial. See Singer v. United States, 380 U.S. 24, 34, 13 L. Ed. 2d 630, 85 S. Ct. 783 (1965). Thus, as the district court in this case recognized, the state trial judge's denial of a bench trial "does not implicate any federal constitutional rights." Moreover, petitioner questions ...

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