The opinion of the court was delivered by: HOWARD, JR.
GEORGE HOWARD, JR., UNITED STATES DISTRICT JUDGE
Currently before the Court is the petition of Charles Henry Williamson (Williamson), an inmate incarcerated at the Cummins Unit of the Arkansas Department of Correction under a life sentence, for a writ of habeas corpus pursuant to Title 28 U.S.C. § 2254 alleging:
1. Petitioner did not waive his right to a jury trial in accordance with ARCrP Rules 37.1 and 37.2. There is no written or otherwise recorded record of petitioner waiving a jury trial. Therefore, petitioner should have been entitled to a jury of his peers as guaranteed by the Arkansas and the United States Constitutions.
2. That petitioner was denied the effective assistance of counsel since counsel made no motion for a severance of defendants and counsel proceeded with a bench trial when petitioner had made no waiver of jury trial on the record or otherwise; nor was any purported waiver knowingly and intelligently made.
3. Further, under the facts and circumstances of this case petitioner has received an excessive sentence of life imprisonment, disproportionate with his conviction of conspiracy to commit capital murder. This sentence constitutes cruel and unusual punishment under the Eighth Amendment to the Constitution and the Arkansas Constitution.
Williamson and one Morris were charged, by Felony Information on September 27, 1979, with the criminal offense of conspiring to commit "Capitol Felony Murder". Following a court trial, without a jury, on March 14, 1979, both Williamson and Morrison were found guilty as charged and sentenced to life imprisonment to the Arkansas Department of Correction. The Arkansas Supreme Court affirmed the conviction on November 5, 1979. Williamson was represented in both the Pulaski County Circuit Court and the Arkansas Supreme Court by Attorney William McArthur.
On March 1, 1984, Williamson, by different counsel, Attorney Darrell F. Brown, filed a motion before the Arkansas Supreme Court for permission to seek post conviction relief pursuant to rule 37.2(a) of Arkansas Criminal Procedure asserting that Williamson was tried without a jury and that he did not waive his right to a jury, and that Williamson was entitled to a jury trial as guaranteed by the Constitutions of the State of Arkansas and the United States; that Williamson was denied the effective assistance of counsel since counsel made no motion for a severance of defendants and counsel proceeded with a bench trial when petitioner had not waived jury trial on the record or otherwise; nor was any purported waiver knowingly and intelligently made; the failure of counsel to act in a legally competent manner resulted in making the proceedings a farce and a mockery of justice and should shock the conscience of the Court; petitioner's legal representation was lacking in competence and adequacy and therefore it is the duty of this Court to direct that the sentence imposed be vacated or corrected by the lower court; petitioner has, thus, been denied the rights guaranteed to him by the Sixth and Fourteenth Amendments to the Constitution of the United States and Art. 2 §§ 7 and 8 of the Arkansas Constitution.
On March 13, 1984, respondent filed its response in opposition to Williamson's motion for post-conviction relief contending essentially that Williamson's request was untimely since it was not filed within three years from the date of his conviction; that "Respondent does not perceive the assertions now made by petitioner to be such as to render the judgment of conviction void."
On March 19, 1984, the Arkansas Supreme Court denied Williamson permission to proceed pursuant to Rule 37 without setting forth any reasons therefor.
On June 14, 1984, Williamson filed his petition for writ of habeas corpus in this Court.
On October 16, 1984, an evidentiary hearing was conducted by a Magistrate. On February 7, 1985, the Magistrate submitted his recommended disposition of the case which was the dismissal of Williamson's petition. On February 26, 1985, Williamson filed his objections to the Magistrate's recommended disposition. On January 9, 1986, this Court requested oral argument from counsel relating only to the question whether Williamson had waived his right to a jury trial voluntarily, knowingly and understandingly.
During the course of oral argument, respondent conceded that Williamson had exhausted his state court remedies regarding the jury issue, and that the jury issue is properly before this Court.
Given the fact that the courts of Arkansas are committed to the view "that the right to jury trial is a constitutional right which is so fundamental that the rule that cures error where counsel fails to object ought not to be readily applied to the denial of rights protected in the Constitution of Arkansas and described therein as 'inviolate.' (Ark. Con. Art. 2, Section 7) Procedural rules governing jury trials are not intended to diminish the right to a jury trial", this Court is not persuaded that respondent's contention has merit. Bussey v. Bank of Malvern, 270 Ark. 37, 603 S.W.2d 426 (Ark. App. 1980). Moreover, the Arkansas Supreme Court has made it clear that:
"Where a judgment or conviction is void because of the want of due process of law, it has no force and effect, and can be vacated at anytime - even after commitment to the penitentiary." State v. Manees, 264 Ark. 190 at 194 n.2. 569 S.W.2d 204 (1978), Swagger v. State, 227 Ark. 45, 296 S.W.2d 204 (1956).
The Sixth Amendment to Federal Constitution provides:
In all criminal prosecutions, the accused shall enjoy the right to . . . an impartial jury. . . .
The constitutional right of a defendant to a jury trial in a state criminal proceeding is secured under the due process clause of the Fourteenth Amendment to the Federal Constitution. Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792; Rogers v. Britton, 466 F. Supp. 397 (1979).
Although a trial by jury in criminal cases is fundamental and essential to a fair trial, a defendant may waive jury trial providing it is done voluntarily, knowingly and understandingly. Dranow v. United States, 325 F.2d 481 (8th Cir. 1963). While the prevailing view under federal law appears to be that the waiver need not be in any particular form, the evidence, however, must establish a proper and intelligent waiver. United States v. McCurdy, 450 F.2d 282 (9th Cir. 1971).
Under Arkansas law, a criminal defendant's right to a jury trial is not only highly cherished, but is secured constitutionally, statutorily, by rule of criminal procedure and case law.
Article 2, § 7, of the Constitution of Arkansas states plainly:
The right of trial by jury shall remain inviolate, and shall extend to all cases at law, . . . but a jury trial may be waived by the parties in all cases in the manner prescribed by law ; . . . (Emphasis added)
Rule 31.2 of Arkansas Rules of Criminal Procedure, which became effective on January 1, 1976, pursuant to an order of the Arkansas Supreme Court provides:
Should a defendant desire to waive his right to trial by jury, he must do so personally either in writing or in open court. A verbatim record of any proceedings at which a defendant waives his right to trial by jury shall be made and preserved. (Emphasis added).
Arkansas' substantive provision, Ark. Stat. Ann. § 43-2108 (1977 Repl.) states:
In all criminal cases, except where the sentence of death may be imposed, trial by a jury may be waived by the defendant, provided the prosecuting attorney gives his assent to such waiver. Such waiver and the assent thereto shall be made in open court and entered of record. In the event of such waiver, the trial judge shall pass both upon the law and the facts.
In Bussey v. Bank of Malvern, 270 Ark. 37, 603 S.W.2d 426 (1980), the Arkansas Court of Appeals, in reversing the trial court's action in taking a civil proceeding from the jury where both parties had moved for directed verdicts, at the close of the presentation of evidence by each party, made the following relevant observation which makes clear the high premium that the Arkansas Judiciary places on one's right to a jury trial and what a trial judge must do before a waiver is found:
We believe that the trial court erred in taking the case away from the jury and that this case should be reversed irrespective of the fact that counsel for appellant failed to object to the error. We agree with appellants' contention that the right to jury trial is a constitutional right which is so fundamental that the rule that cures error where counsel fails to object ought not to be readily applied to the denial of rights protected in the Constitution of Arkansas and described therein as 'inviolate.' . . . . Procedural rules governing jury trials are not intended to diminish the right to a jury trial. These rights should be interpreted so as not to give effect to dubious waivers of rights. (Emphasis added)
In Moore v. State, 241 Ark. 335, 407 S.W. 2d 744 (1966), the Arkansas Supreme Court found that Moore had waived his right to a jury in his criminal trial, but only after finding that Moore had personally asked the trial judge, in open court, to be tried by the judge, sitting as a jury, and further finding that Ark. Stat. Ann. § 43-2108 had been followed by the trial judge. The Supreme Court found specifically:
The case was heard by the court, sitting as a jury, only because of appellant's insistence that this be done.
The trial court record, in the instant proceeding, is completely silent not only with reference to any action taken by the trial court, and the prosecuting attorney regarding any waiver of a jury trial by Williamson, but void absolutely of any request by Williamson or his attorney to waive a jury trial, aside from the failure to cope with the crucial question whether Williamson knowingly, intelligently and voluntarily waived a trial by jury. This deficiency not only fails to comport with the Sixth Amendment to the Federal Constitution as secured to Williamson under the due process clause of the Fourteenth Amendment to the Federal Constitution, but equally as much under the Arkansas standard.
According to docket entries bearing the following dates - April 3rd, June 28th, July 7th, July 10th, July 28th, 1978, January 2nd and March 7th, 1979 - Williamson's case was scheduled for a "jury trial" on the following dates:
1. July 14, 1978, by Circuit Judge William Kirby (T. 21, 23, 24).
2. September 15, 1978 by Judge Kirby (T. 26).
3. March 14th and 15th, 1979 (T. 31) by Judge Lowber Hendricks (T. 31, 34).
On March 13, 1979, the following docket entry was made:
"Case passed to March 22, 1979 for Court ...