United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 13, 2005
Charles R. Fulbruge III
No. 03-30817 Clerk
Summary Calendar
DONALD GALLOW,
Petitioner-Appellant,
versus
BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,
Respondent-Appellee.
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Appeal from the United States District Court
for the Western District of Louisiana
(6:01-CV-2739)
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Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant Donald Gallow, Louisiana prisoner #
126280, appeals the district court’s denial of relief on his 28
U.S.C. § 2254 petition, which Gallow filed to challenge his
conviction for murder. This court granted a certificate of
appealability (COA) on Gallow’s claim that Evangeline Parish used
a racially discriminatory system in the selection of the grand jury
foreperson.
On appeal from the denial of a 28 U.S.C. § 2254 petition,
“this court reviews a district court’s findings of fact for clear
*
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this opinion should not be published and is not precedent except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.
error, and it reviews a district court’s conclusions of law
de novo, applying the same standard of review to the state court’s
decision as the district court.” Robertson v. Cain, 324 F.3d 297,
301 (5th Cir. 2003). Because the state habeas court decided
Gallow’s grand jury discrimination claim on the merits, that
court’s decision is entitled to deference under 28 U.S.C. §
2254(d). See Valdez v. Cockrell, 274 F.3d 941, 946 (5th Cir.
2001).
In denying COA relief, the district court determined,
inter alia, that Gallow had not provided the state habeas court
with statistical evidence to support his claim. On appeal Gallow
contends that he attached statistical evidence to his state habeas
petition, and that the evidence shows that Evangeline Parish
employed a racially discriminatory system in selecting grand jury
forepersons.
In support of such a claim, a petitioner must first establish
a prima facie case of discrimination in the selection of a grand
jury foreperson by (1) showing that the group against whom
discrimination is asserted is a distinct class, singled
out for different treatment; (2) proving the degree of under-
representation by comparing the proportion of the group in the
total population to the proportion called to serve as forepersons
over a “significant period of time”; and (3) showing that the
selection procedure is susceptible to abuse or is not race-neutral.
See Rose v. Mitchell, 443 U.S. 545, 565 (citation omitted); Guice
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v. Fortenberry, 661 F.2d 496, 499 (5th Cir. 1981) (en banc) (“Guice
I”).
Gallow has not shown that the district court clearly erred in
its determination that he failed to support his claim with
statistical data in the state habeas court. See Meanes v. Johnson,
138 F.3d 1007, 1010 (5th Cir. 1998). Our review of the state
habeas record shows that in his efforts to support his claim,
Gallow provided the state habeas court with nothing more than a
textual discussion of statistics from unspecified sources.
In the absence of competent evidence, Gallow’s assertion of
racial discrimination is, at best, conclusional, and thus
insufficient to obtain habeas relief. See Ellis v. Lynaugh, 873
F.2d 830, 839 (5th Cir. 1989). In view of the deficiency of proof
submitted by Gallow, we agree with the district court that the
state habeas court’s determination that Gallow failed to establish
a prima facie case for his claim of discrimination in the grand
jury foreman selection process was not “contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” and that the
state habeas court’s adjudication of the claim did not “result[] 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)(1), (2). Accordingly, the
judgment of the district court is
AFFIRMED.
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