IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-30870
(Summary Calendar)
ROBERT YOUNG,
Petitioner-Appellant,
versus
BURL CAIN, Warden,
Louisiana State Penitentiary,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Louisiana
(97-CV-3162-B)
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April 27, 2000
Before POLITZ, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant Robert Young, Louisiana prisoner #
115638, was granted a certificate of appealability to question
whether the district court erred when, without conducting an
evidentiary hearing, it dismissed Young’s equal protection claim of
race discrimination in the selection of the grand jury foreman in
Washington Parish, Louisiana.
As an initial matter, we address Respondent’s argument that
Young is procedurally barred from raising the equal protection
*
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that this opinion should not be published and is not precedent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.
claim because his pretrial motion to quash was not properly filed;
specifically, that (1) it was not signed and dated by the clerk of
court, (2) it was not set for a hearing by an order, and (3) the
defense attorney waived the issue on the record. Respondent’s
argument challenges the district court’s ruling, in its order
denying Young’s timely filed Fed. R. Civ. P. 59(e) motion, that
Young had filed a pretrial motion to quash the indictment. As
neither Young nor Respondent filed a notice of appeal from the
court’s order disposing of the Rule 59(e) motion, we lack
jurisdiction to review the district court’s order and,
consequently, its ruling that Young had filed a motion to quash.
See Fed. R. App. P. 4(a)(4)(B)(ii); Bann v. Ingram Micro, Inc., 108
F.3d 625, 626 (5th Cir. 1997); Reeves v. Collins, 27 F.3d 174, 177
(5th Cir. 1994); see also Castaneda v. Falcon, 166 F.3d 799, 780
(5th Cir. 1999)(“we must always be sure of our appellate
jurisdiction and, if there is doubt, we must address it, sua sponte
if necessary.”).
Regarding his equal protection claim, Young argues that the
district court’s ruling (that his claim was foreclosed by his
subsequent conviction by a petit jury) is contrary to controlling
Supreme Court decisions. We have jurisdiction over this claim
because Young filed a timely and effective notice of appeal from
the district court’s order and reasons, which held, in the
alternative, that Young’s equal protection claim was foreclosed
under Campbell v. Louisiana, 523 U.S. 392, 400 (1998) (Justices
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Thomas and Scalia, concurring in part and dissenting in part).
See Fed. R. App. P. 4(a)(4)(B).
As the state habeas courts did not adjudicate the merits of
Young’s equal protection claim, the deferential standards of review
established by the Antiterrorism and Effective Death Penalty Act of
1996 do not apply. Fisher, 169 F.3d at 300. Federal review of
legal issues is de novo. Lockhart v. Johnson, 104 F.3d 54, 57 (5th
Cir. 1997).
Although most constitutional errors can be harmless, the
Supreme Court has long held that racial discrimination in the
selection of the grand jury is a structural error subject to
automatic reversal. See Neder v. United States, 527 U.S. 1, 119 S.
Ct. 1827, 1833 (1999) (citing Vasquez v. Hillery, 474 U.S. 254,
260-61) (1986)). Young’s subsequent conviction by a petit jury did
not “purge[] any taint attributable to the indictment process.”
Vasquez, 474 U.S. at 260-61. The district court’s conclusion that
Young’s equal protection claim was foreclosed by his subsequent
conviction by a petit jury was thus reversible error. Accordingly,
the judgment of the district court is vacated and the case is
remanded for further proceedings.
VACATED AND REMANDED.
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