Murphy v. Johnson

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 97-41259

IVAN RAY MURPHY,

Petitioner-Appellant,

VERSUS

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

Appeal from the United States District Court
for the Easter District of Texas

March 2, 2000
Before WIENER, DeMOSS, and DENNIS, Circuit Judges.

DeMOSS, Circuit Judge:

Petitioner Ivan Ray Murphy appeals the district court's denial

of his petition for writ of habeas corpus under 28 U.S.C. § 2254.

For the reasons set forth below, we affirm.

I. FACTUAL AND PROCEDURAL HISTORY

On the night of January 9, 1989, Petitioner Murphy and Douglas

Stoff went to the home of Lula Mae Denning in Denison, Texas. Ms.
Denning, an eighty-year-old lifetime friend of Murphy's, invited

the two men into her home. Once inside, the two men robbed Ms.

Denning of jewelry, beat her to unconsciousness, and left her for

dead. They returned several hours later to steal more jewelry that

they could sell for more drugs.

A Grayson County Grand Jury indicted Murphy for the capital

murder of Ms. Denning, specifically charging that he had committed

murder during the course of the commission of a robbery or

burglary. Following a trial, the jury returned a guilty verdict,

and at a subsequent punishment hearing, the same jury answered

affirmatively the two special issues set forth in the version of

article 37.071 of the Texas Code of Criminal Procedure that was in

effect at the time of the offense. Accordingly, the trial court

imposed upon Murphy the sentence of death.

Murphy's conviction and sentence were automatically appealed

to the Texas Court of Criminal Appeals. On September 23, 1993, in

an unpublished opinion, that court affirmed Murphy's conviction and

sentence. And on October 11, 1994, the United States Supreme Court

denied Murphy's petition for writ of certiorari. See Murphy v.

Texas, 115 S. Ct. 312 (1994).

Murphy next filed an application for state habeas relief. The

same judge who had presided over Murphy's trial considered his

application and issued a one-page order stating that there were no

unresolved factual issues and recommending that Murphy's

2
application be denied. On February 28, 1996, the Texas Court of

Criminal Appeals denied Murphy's application for state habeas

corpus relief. 1 Murphy then filed his petition for habeas corpus

relief in federal district court asserting eleven claims for

review. Following the district court's denial of his petition,

Murphy received from the district court, pursuant to 28 U.S.C.

§ 2253(c)(2), a certificate of appealability (“COA”) on the

following two of eight issues for which he sought a COA: (1)

whether the district court erred in refusing to grant Murphy's

request for discovery and an evidentiary hearing; and (2) whether

the district court erred in denying Murphy's claim that the grand

jury selection process of Grayson County, Texas, violated his Sixth

and Fourteenth Amendment rights. Murphy moved this Court for a COA

on four of the six issues that had been denied by the district

court. On March 8, 1999, a panel of this Court denied his request

for an additional COA. With the benefit of briefing and the oral

argument of counsel, we now proceed to the disposition of the

original two issues for which a COA was granted by the district

court.

II. DISCUSSION

Murphy's petition for writ of habeas corpus was filed on

1
Four justices of the Texas Court of Criminal Appeals dissented
based upon the state district court's failure to hold an
evidentiary hearing.

3
December 16, 1996, and is thus governed by the provisions of the

Antiterrorism and Effective Death Penalty Act (“AEDPA”). See Lindh

v. Murphy, 117 S. Ct. 2059, 2068 (1997); United States v. Carter,

117 F.3d 262 (5th Cir. 1997). The post-AEDPA version of 28 U.S.C.

§ 2254(d) provides as follows:

(d) An application for a writ of habeas
corpus on behalf of a person in custody
pursuant to the judgment of a State court
shall not be granted with respect to any claim
that was adjudicated on the merits in State
court proceedings unless the adjudication of
the claim–

(1) resulted in a decision that was contrary
to, or involved an unreasonable application
of, clearly established Federal law, as
determined by the Supreme Court of the United
States; or

(2) resulted in a decision that was based on
an unreasonable determination of the facts in
light of the evidence presented in the State
court proceeding.

28 U.S.C. § 2254(d). We review pure questions of law under the

“contrary to” standard of sub-section (d)(1), mixed question of law

and fact under the “unreasonable application” standard of sub-

section (d)(1), and pure questions of fact under the “unreasonable

determination of facts” standard of sub-section (d)(2). See Lamb

v. Johnson, 179 F.3d 352, 356 (5th Cir.), cert. denied, 120 S. Ct.

522 (1999) (citing Drinkard v. Johnson, 97 F.3d 751, 767-69 (5th

Cir. 1996), overruled in part on other grounds, Lindh v. Murphy,

117 S. Ct. 2059 (1997)).

An application of law to facts will only be deemed

4
unreasonable when reasonable jurists “would be of one view that the

state court ruling was incorrect.” Drinkard, 97 F.3d at 769.

Under this standard, we will grant habeas relief “only if a state

court decision is so clearly incorrect that it would not be

debatable among reasonable jurists.” Id. Additionally, under

§ 2254(e)(1), a state court's determination of a factual issue must

be presumed correct, and the habeas petitioner bears the burden of

rebutting the presumption by clear and convincing evidence. The

presumption is especially strong when, as here, the state habeas

court and the trial court are one and the same. See Amos v. Scott,

61 F.3d 333, 347 (5th Cir. 1995); James v. Collins, 987 F.2d 1116,

1122 (5th Cir. 1993) (citing Buxton v. Lynaugh, 879 F.2d 140, 146

(5th Cir. 1989)).

As a preliminary matter, Murphy argues that his state court

habeas petition was not “adjudicated on the merits” such that any

presumption of correctness under § 2254(d) could apply to the state

court's findings. Our review of the record convinces us that both

Murphy's direct criminal appeal and his state habeas application

were denied based upon a review of the merits of his claims. Thus,

the standard set forth in 28 U.S.C. § 2254(d) applies to Murphy's

present claims.

A. Discovery and an Evidentiary Hearing

Murphy contends that the district court erred in two respects.

5
First, he contends that it failed to grant his request for discovery

regarding his claim of attorney misconduct arising from his

allegation that the prosecutor induced a jailhouse informant to

testify falsely and that the same prosecutor withheld Brady material.

Second, Murphy contends that the district court improperly refused to

grant his request for an evidentiary hearing based on the court’s

conclusion that he had presented no factual issues that, if resolved

in his favor, would entitle him to habeas corpus relief.

Discovery

Murphy asserts that the district court should have allowed him

discovery to support his claims that the prosecutor improperly

coerced a jailhouse informant, Michael McGregor, into testifying

falsely against Murphy. Specifically, he wants to inspect and copy

all documents, tapes, files, written reports, memoranda, notes,

computer disks, or other written matter relating to the Grayson

County Attorney’s investigation of the case. Murphy argues that

under Bracy v. Gramley, 117 S. Ct. 1793 (1997), he is entitled to

discovery to support his claims of prosecutorial misconduct. This

court has already noted that the Bracy decision does not lower the

gate for discovery in habeas cases, but rather it merely reasserts

the standards of Harris v. Nelson, 89 S. Ct. 1082 (1969). Thus,

where “specific allegations before the court show reason to believe

that the petitioner may, if the facts are fully developed, be able to

6
demonstrate that he is . . . entitled to relief, it is the duty of

the courts to provide the necessary facilities and procedures for an

adequate inquiry.” Gibbs v. Johnson, 154 F.3d 253, 258 (5th Cir.

1998), cert. denied, 119 S. Ct. 1501 (1999).

The Bracy decision involved a defendant’s allegations that his

judge was biased against him because the judge had been accused, and

later convicted, of accepting bribes to fix murder trials. The

Supreme Court noted that Bracy’s claims were framed in specific terms

and were supported by objective, concrete factual evidence tending to

support his theory (i.e., the subsequent conviction and other

specific objective evidence). Good cause for discovery was

established in Bracy based primarily upon the specific nature of the

allegations and the concrete nature of the evidence proffered to

support Bracy’s theory.

Rule 6 of the Rules Governing § 2254 cases permits discovery

only if and only to the extent that the district court finds good

cause. Good cause may be found when a petition for habeas corpus

relief “establishes a prima facie claim for relief.” Harris, 89

S. Ct. at 1086. Additionally, a petitioner's factual allegations

must be specific, as opposed to merely speculative or conclusory, to

justify discovery under Rule 6. See West v. Johnson, 92 F.3d 1385,

1399-1400 (5th Cir. 1996) (citing Ward v. Whitley, 21 F.3d 1355, 1367

(5th Cir. 1994)). Simply put, Rule 6 does not authorize fishing

expeditions. See Ward, 21 F.3d at 1367.

7
 Here, Murphy’s allegations of prosecutorial misconduct and the

withholding of Brady material are insufficient to entitle him to

discovery. Murphy has failed to establish a prima facie claim under

Brady by virtue of his having failed to demonstrate the existence or

concealment of a deal between the prosecution and the witness

McGregor or that proof of such a deal would be material to the

outcome.2 Under Brady, a defendant's due process rights may be

violated when exculpatory or impeachment evidence, which is both

favorable to the defendant and material to guilt or punishment, is

concealed by the government. See Hughes v. Johnson, 191 F.3d 607,

629 (5th Cir. 1999). Evidence is material when there is a reasonable

probability that a different outcome would have resulted if the

government had disclosed the evidence prior to trial. See id.

(citing United States v. Bagley, 105 S. Ct. 3375, 3379 (1985)).

Allegations that are merely “conclusionary” or are purely speculative

cannot support a Brady claim. See id. at 629-30 (citing United

States v. Pretel, 939 F.2d 233, 240 (5th Cir. 1991)).

After having carefully reviewed the entire record of this case,

including all pleadings, transcripts, affidavits, and supplemental

filings submitted to this Court, we conclude that Murphy’s conclusory

2
The essential elements of a Brady claim are: (1) the
prosecution suppressed evidence; (2) the evidence was favorable to
the defense; and (3) the evidence was material to either guilt or
punishment. See Blackmon v. Scott, 22 F.3d 560, 564 (5th Cir.
1994).

8
allegation that the prosecutor failed to disclose a secret deal with

McGregor is based purely on speculation. We find that the Brady

materiality element is refuted by the fact that when cross-examined

at trial, McGregor denied any deal, and by the defense's introduction

of the trial testimony of another inmate, Joseph Potts, who testified

that McGregor wanted to get back at Murphy and also wanted to get out

of jail at all costs. Murphy’s counsel argued his theory of a secret

deal and all of these contentions vigorously to the jury which chose

to reject them.

Because Murphy has pointed to little if anything which could be

gleaned from additional discovery on this issue, and because by

failing to establish a prima facie Brady claim he has failed to show

good cause for discovery, we find that the district court did not err

in denying Murphy additional discovery on this issue.

Evidentiary Hearing

Murphy also contends that the district court erred in failing to

grant his request for an evidentiary hearing because the state courts

summarily denied relief on his claims. He contends that there was no

“adjudication” in the state court which would entitle the state

court’s findings to a presumption of correctness. The government

urges that the district court did not accord the presumption of

correctness to the state court findings, rather it confined itself to

the conclusion that Murphy alleged no facts which, if resolved in his

9
favor, would entitle him to relief.

Under AEDPA, requests for an evidentiary hearing are to be

evaluated under the provisions of 28 U.S.C. § 2254(e)(2). See

McDonald v. Johnson, 139 F.3d 1056, 1059 (5th Cir. 1998). A habeas

petitioner’s entitlement to an evidentiary hearing, when he has

failed to develop the factual basis of a claim, is restricted to the

narrow exceptions of subsection (e)(2) which provides as follows:

(2) If the applicant has failed to develop the
factual basis of a claim in State court
proceedings, the court shall not hold an
evidentiary hearing on the claim unless the
applicant shows that -

(A) the claim relies on -

(I) a new rule of constitutional law, made
retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable;
or

(ii) a factual predicate that could not
have been previously discovered through the
exercise of due diligence; and

(B) the facts underlying the claim would
be sufficient to establish by clear and
convincing evidence that but for constitutional
error, no reasonable factfinder would have found
the applicant guilty of the underlying offense.

28 U.S.C. § 2254(e)(2). These exceptions are applicable only where

the failure to develop the factual basis is the result of a decision

or omission of the petitioner himself. See McDonald, 139 F.3d at

1059.

Here, the government argues that under § 2254(e)(2) Murphy

cannot be entitled to an evidentiary hearing because his claims are

10
not derived from any new rule of law from the Supreme Court, and

because no new, previously undiscoverable facts establish his

innocence of the crime. Indeed, as noted above, all of the evidence

relied upon by Murphy to support his claim that the government had a

deal with McGregor was available before, and was presented and argued

at the original trial.

Murphy contends that he did not fail to develop the factual

basis of his claims in state court, rather he argues that he was

unable to do so because the state courts denied him discovery and an

evidentiary hearing, and that as a result, § 2254(e)(2) does not

automatically deny him the right to an evidentiary hearing in federal

court. However, overcoming the narrow restrictions of § 2254(e)(2)

does not guarantee a petitioner an evidentiary hearing, it merely

opens the door for one; once a petitioner overcomes the obstacles of

§ 2254(e)(2), under Rule 8 of the Rules Governing § 2254 Cases, the

district court retains discretion over the decision to grant an

evidentiary hearing. See McDonald, 139 F.3d at 1059-60. Thus, we

review the district court’s denial of an evidentiary hearing in this

scenario for an abuse of discretion. See id. at 1059.

Our pre-AEDPA jurisprudence is instructive in evaluating

whether the district court's denial of an evidentiary hearing was

an abuse of discretion. Prior to the enactment of AEDPA, we

consistently held that when there is a factual dispute which “‘if

resolved in the petitioner's favor, would entitle [the petitioner]

11
to relief and the state has not afforded the petitioner a full and

fair hearing,’ a federal habeas corpus petitioner is entitled to

discovery and an evidentiary hearing.” Perillo v. Johnson, 79 F.3d

441, 444 (5th Cir. 1996) (quoting Ward v. Whitley, 21 F.3d 1355,

1367 (5th Cir. 1994)); see also Moawad v. Anderson, 143 F.3d 942,

947-48 (5th Cir.), cert. denied, 119 S. Ct. 383 (1998). To find an

abuse of discretion that would entitle Murphy to an evidentiary

hearing, we must find that the state did not provide him with a

full and fair hearing and we must be convinced that if proven true,

his allegations would entitle him to relief. See Moawad, 143 F.3d

at 948.

With respect to whether Murphy was afforded a full and fair

hearing by the state court, Murphy contends that he requested

discovery and an evidentiary hearing in the state habeas court, but

that his requests were denied. The state habeas court then denied

his application for habeas relief based upon just those pleadings

and affidavits that Murphy had submitted, without waiting for the

government’s response and without holding a live evidentiary

hearing, i.e. Murphy was given only a paper hearing, see Perillo,

79 F.3d at 446 n.7.

A full and fair hearing does not necessarily require live

testimony. We have repeatedly found that a paper hearing is

sufficient to afford a petitioner a full and fair hearing on the

factual issues underlying his claims, especially where as here, the

12
trial court and the state habeas court were one and the same. See

Perillo, 79 F.3d at 446-47 (listing cases where the presumption of

correctness, which attached to factual determinations made after a

full and fair hearing under the pre-AEDPA version of § 2254(d), was

established with only a paper hearing before the same state judge

who presided over the criminal trial). In his report and

recommendation, the magistrate judge conceded that Murphy may

arguably have been denied a full and fair hearing in the state

court. We are not as convinced as the magistrate judge that Murphy

was denied a full and fair hearing as the state habeas court, after

first presiding over Murphy’s criminal trial and after considering

the pleadings and affidavits that had been filed in support of

Murphy’s claims, fully considered the merits of Murphy’s claims.

Additionally, while the numerous cases cited by Murphy do

support the notion that a summary denial by a state court may entitle

a petitioner to an evidentiary hearing in federal court, they

overlook this court’s holding that, where a district court has before

it sufficient facts to make an informed decision regarding the merits

of a claim, a district court does not abuse its discretion in

refusing to grant an evidentiary hearing (even where no factual

findings are explicitly made by any state court). See McDonald, 139

F.3d at 1060 (denying evidentiary hearing where state courts had

failed to make any specific factual findings because the district

court had sufficient affidavits from the parties in interest to make

13
a determination). Here, the magistrate judge and the district court

reviewed the record, pleadings, and all available evidence, including

exhibits and affidavits in support of Murphy’s alleged claims.

Furthermore, the magistrate judge recognized that Murphy arguably may

not have been allowed a full and fair hearing in the state court, but

nonetheless determined that the fact that Murphy failed to

demonstrate a factual dispute that would entitle him to relief if it

were resolved in his favor, justified denial of an evidentiary

hearing.

We next consider whether there is a factual dispute that, if

resolved in Murphy’s favor, would entitle him to relief. This

Court has consistently held that a petitioner is entitled to an

evidentiary hearing only where a factual dispute, if resolved in his

favor, would entitle him to relief, and not where a petitioner’s

allegations are merely conclusory allegations unsupported by

specifics. See Ward, 21 F.3d at 1367.

Murphy alleges that there was an undisclosed secret deal between

the prosecutor and McGregor, but that he needs more discovery and an

evidentiary hearing in order to fully develop this claim. His

request in this regard is tantamount to an impermissible fishing

expedition. See Perillo, 79 F.3d at 444 (noting that Rule 6 of the

Rules Governing § 2254 Cases “‘does not authorize fishing

expeditions.’” (quoting Ward, 21 F.3d at 1367)). Discovery may

only be permitted with respect to a specifically alleged factual

14
dispute, not to a general allegation. See Ward, 21 F.3d at 1367.

Here, Murphy’s claim was adequately developed below and Murphy

has failed to demonstrate anything more than was presented and

argued to the jury at trial. He seeks discovery and an evidentiary

hearing in the hopes of finding additional evidence which might

support his conclusory and speculative claim, but not with respect

to a specific factual allegation which would entitle him to relief.

As we have already noted, the discovery provisions of Rule 6 do not

contemplate this type of fishing expedition. We therefore find that

Murphy’s conclusory allegations are insufficient to require either

discovery or an evidentiary hearing, and the district court did not

abuse its discretion in denying Murphy's request for the same.

B. Grand Jury Selection in Grayson County

In this second issue, Murphy contends that the grand jury

selection process in Grayson County systematically excludes young

people in violation of his Sixth Amendment right to an impartial jury

and his Fourteenth Amendment right to equal protection. He correctly

notes that the Sixth Amendment has been construed to require a petit

jury to be drawn from a fair cross-section of the community in which

the proceedings are held. See Taylor v. Louisiana, 95 S. Ct. 692

(1975). He argues that the fair cross-section requirement applies to

grand juries as well. See Atwell v. Blackburn, 800 F.2d 502 (5th Cir.

15
1986). However, as the government notes, Atwell does not

specifically so hold. In fact, the Atwell court in a footnote stated

“[w]e do not hold that Atwell had a right . . . to a grand jury

selected under cross-sectional procedures similar to those implicated

by the Sixth Amendment.” Atwell, 800 F.2d at 507 n.10. In Atwell,

we assumed arguendo that if Atwell did have the right to a grand jury

in conformance with the cross-sectional requirements of the Sixth

Amendment, that right was not violated in his case.

The government argues first that at the time Murphy’s conviction

became final in 1994, no Supreme Court authority dictated a rule that

the fair cross-section requirement applies to state grand juries.

The government suggests that the Sixth Amendment cross-section

argument advanced by Murphy does not apply retroactively to his grand

jury because, under Teague v. Lane, 109 S. Ct. 1060 (1989), none of

the appropriate exceptions to the non-retroactive applicability of

the grand jury cross-sectional requirement apply.

We are not as convinced as the government that the fair cross-

section requirement of the Sixth Amendment did not apply to Murphy's

grand jury, however, we are persuaded that Teague bars our

consideration of Murphy's claim that the fair cross-section

requirement was violated by the alleged systematic exclusion of young

people by the grand jury selection process in Grayson County.

16
 Under Teague, we are prohibited from granting habeas relief

based on "new" rules of constitutional law. A rule of

constitutional law is “new” under Teague, if the result sought by

application of the rule was not "dictated by precedent existing at

the time the defendant's conviction became final." Teague, 109

S. Ct. at 1070. Our duty is to "[s]urve[y] the legal landscape as

it then existed and determine whether a state court considering

[Murphy's] claim at the time his conviction became final would have

felt compelled by existing precedent to conclude that the rule

[sought to be applied] was required by the Constitution." Caspari

v. Bohlen, 114 S. Ct. 948, 953 (1994)(internal quotations and

citations omitted). The only exceptions to the non-retroactivity

principle of Teague are “for rules that would place certain primary

conduct beyond the government's power to proscribe or bedrock rules

of criminal procedure that are necessary to ensure a fundamentally

fair trial.” Felder v. Johnson, 180 F.3d 206, 211 (5th Cir.)(citing

O'Dell v. Netherland, 117 S. Ct. 1969, 1973, (1997)), cert. denied,

120 S. Ct. 63 (1999).

Murphy's conviction and sentence became final for purposes of

our Teague analysis on October 11, 1994, when the Supreme Court

denied his petition for certiorari after his conviction was

affirmed on direct review in the Texas Court of Criminal Appeals.

See Murphy v. Texas, 115 S. Ct. 312 (1994). We have, therefore,

limited our analysis to a survey of the legal landscape as it existed

17
on October 11, 1994.

The government urges that when Murphy's conviction became final,

there existed no precedent establishing a defendant's right to a

grand jury selected in conformance with the Sixth Amendment's fair

cross-section requirement. While in Atwell, we declined to

explicitly hold that Atwell had a right to a grand jury which

represented a fair cross-section of the community, our earlier

decisions are more specific. In Curry v. Estelle, 524 F.2d 981 (5th

Cir. 1975), relying on the Supreme Court's then recent decision in

Taylor v. Louisiana, 95 S. Ct. 692 (1975), we held that if a

defendant could establish that a grand jury pool systematically

excluding a substantial and identifiable class of citizens did not

represent a fair cross-section of the community, his conviction was

subject to attack. See Curry, 524 F.2d at 983. We note

additionally, that by October 1994, the Supreme Court had

consistently held that racial discrimination in the selection of

grand juries was violative of the fair cross-section requirement.

See Peters v. Kiff, 92 S. Ct. 2163, 2168 (1972); Smith v. Texas, 61

S. Ct. 164, 166 (1940). Thus, at the time Murphy's conviction became

final, our precedent dictated that the fair cross-section requirement

of the Sixth Amendment applied to the selection process for grand

juries.

Despite the foregoing, Murphy's burden under Teague, is to show

that the particular result he desires was dictated by a particular

18
precedent, that is, he must show that at the time his conviction

became final, there existed precedent which would have compelled the

state court to conclude that he was entitled to a grand jury

comprised of a fair cross-section of the community with respect to

certain age groups, more specifically, one which represented 18 to 30

year olds. In the absence of specific binding precedent prohibiting

the exclusion of a specific group of individuals as violative of the

fair cross-section requirement of the Sixth Amendment, Teague

prohibits us from granting relief. See, e.g., Wilkerson v. Whitley,

28 F.3d 498, 508 (5th Cir. 1994)(en banc)(finding meritless, in light

of the standard of proving that a result is dictated by particular

precedent, the claim that cases prohibiting the exclusion of blacks

from the grand jury selection process dictated the conclusion that

the systematic exclusion of women from grand juries was

unconstitutional).

While Murphy argues that the systematic exclusion of young

people, ages 18 to 30 years old, from the grand jury selection

process in Grayson County is unconstitutional because it violates the

fair cross-section requirement, he has identified no precedent

setting forth such a rule, and we have found none so specific. Thus,

any declaration by this Court that the fair cross-section requirement

of the Sixth Amendment is violated by the systematic exclusion of a

group of individuals identified by their age, and any corollary

finding that a grand jury selection process so excluding a specific

19
age group is unconstitutional, would effectively announce a “new”

rule of constitutional law. Under Teague, we are precluded from

applying such a “new rule” to Murphy's case unless he satisfies one

of the two exceptions noted above. We conclude that neither of the

narrow exceptions to the Teague bar apply in this case. Having been

referred to none, and having found no case dictating the result

Murphy seeks, and having concluded that neither of the narrow

exceptions to the Teague non-retroactivity principle apply, we are

prohibited from granting the relief Murphy seeks in this issue. For

similar reasons, we conclude that Murphy's alternative claim that

Grayson County's grand jury selection process violates his Fourteenth

Amendment right to equal protection is likewise Teague barred.3

3
At the time Murphy's conviction became final in October 1994,
there existed no precedent dictating the conclusion that a
defendant's equal protection rights are violated by the systematic
exclusion from a grand jury selection process of young people, ages
18 to 30 years old.

We pause here to note that in order to make a prima facie showing
of an equal protection violation related to grand jury selection,
Murphy must show: (1) that the group allegedly discriminated against
is “distinct” within the community; (2) that the group has been
substantially underrepresented in jury venires over a significant
period of time; and (3) that the selection process is either not
racially neutral or is susceptible to use as a tool for
discrimination. See Castaneda v. Partida, 97 S. Ct. 1272, 1280
(1977). And, although we do not decide the issue today, we note
that several of our sister circuit courts of appeals have concluded
that the group of individuals allegedly excluded according to Murphy
(young persons between the ages of 18 and 30), is not a “cognizable”
or “distinctive” group within the community. See e.g., Wysinger v.
Davis, 886 F.2d 295, 296 (11th Cir. 1989) (age alone does not identify
an ”identifiable” group); Ford v. Seabold, 841 F.2d 677, 681-82 (6th
Cir. 1988) (young adults not cognizable); Johnson v. McCaughtry, 92
F.3d 585, 590-93 (7th Cir. 1996) (18 to 25 year olds not cognizable);

20
 V. CONCLUSION

For all of the reasons set forth above, we are unconvinced that

the district court erred in refusing to grant Murphy either discovery

or an evidentiary hearing, and we are precluded by the non-

retroactivity principle announced in Teague v. Lane from granting

relief on Murphy's claims that the grand jury selection process in

Grayson County, Texas, is violative of his rights under the Sixth or

Fourteenth Amendments. Accordingly, we AFFIRM the district court's

denial of habeas corpus relief under 28 U.S.C. § 2254.

Barber v. Ponte, 772 F.2d 982, 996-1000 (1st Cir. 1985) (en banc)
(young adults aged 18-34 are not “cognizable”). Additionally, we
have ourselves previously held that there is nothing distinctive
about a short age range of young persons. See United States v.
Kuhn, 441 F.2d 179, 180 (5th Cir. 1971) (nothing identifiable about 21
to 23 year olds). Thus, irrespective of Teague, we express serious
doubt as to whether Murphy would be entitled to relief on equal
protection grounds.

21