United States Court of Appeals,
Fifth Circuit.
No. 93-3262.
Nolan JAMES, Petitioner-Appellee,
v.
John WHITLEY, Warden, Louisiana State Penitentiary, and Richard
P. Ieyoub, Attorney General, State of Louisiana, Respondents-
Appellants.
Dec. 9, 1994.
Appeal from the United States District Court for the Middle
District of Louisiana.
Before WISDOM, KING, and DUHÉ, Circuit Judges.
DUHÉ, Circuit Judge:
Respondents John Whitley, Warden of the Louisiana State
Penitentiary, and Richard P. Ieyoub, Attorney General of the State
of Louisiana (collectively "the State"), appeal the district
court's grant of a writ of habeas corpus to petitioner Nolan James.
James presented eight claims in his federal habeas petition. The
district court granted relief on James's equal protection claim,
which alleged discrimination in the selection of the foreman of the
grand jury that indicted James. We reverse the district court's
grant of the writ and remand the case for consideration of James's
other claims.
FACTS
An Ascension Parish grand jury indicted James for first degree
murder in 1979. James raised his equal protection claim in a
pretrial motion to quash the indictment. The court heard testimony
from two witnesses, both of whom were judges of the Twenty-Third
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Judicial District, which includes Ascension Parish. The judges
testified that they had impanelled some grand juries in the Parish,
and that they did not recall ever having appointed a black as a
grand jury foreman in Ascension Parish. At a later hearing, the
judge who presided over James's case, Judge Becnel, stated on the
record that he did not recall any black grand jury foreman in
Ascension Parish.
Judge Becnel denied the pretrial motion to quash the
indictment. A jury subsequently found James guilty of second
degree murder, and James was sentenced to life in prison. James
appealed his conviction to the Louisiana Court of Appeal for the
First Circuit, where he urged 28 assignments of error. The court
reconsidered his equal protection claim and determined that James
had failed to prove the degree of under-representation of blacks as
grand jury foremen in Ascension Parish. State v. James, 459 So.2d
1299, 1308 (La.Ct.App. 1st Cir.1984), writ denied, 463 So.2d 600
(La.1985). In reaching its conclusion, the court found that James
failed to establish "the number of grand juries which have been
convened, nor the number of foreman [sic] appointed." Id.
James later filed his federal habeas petition, which the
district court referred to a magistrate judge. The magistrate
judge revisited the equal protection issue and recommended that the
conviction be overturned. In his review of the First Circuit's
decision, the magistrate judge found that the state court's
finding, if a factual finding, was not fairly supported by the
record. The magistrate judge then determined that James had proved
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a prima facie case for equal protection, and that the state had not
rebutted his claim. The district court agreed with the
magistrate's recommendation and granted James a writ of habeas
corpus. The State appeals.
DISCUSSION
We review the district court's legal determinations de novo.
Johnson v. Puckett, 929 F.2d 1067, 1070 (5th Cir.), cert. denied,
--- U.S. ----, 112 S.Ct. 274, 116 L.Ed.2d 226 (1991). The State
raises three issues on appeal: (1) whether the district court's
conclusion that James had satisfied his prima facie requirements
was erroneous; (2) whether reversal of his conviction is the
proper remedy; and (3) whether equal protection claims concerning
the selection of grand jury foremen are cognizable in habeas corpus
proceedings.1
To make out a prima facie case for discrimination in the
selection of grand jury foremen, James must prove: (1) the group
to which he belongs is a recognizable, distinct class that receives
different treatment under the laws as written or applied; (2) the
degree of underrepresentation, by comparing the proportion of the
group in the total population with the proportion of the group
called to serve as grand jury foreman over a significant period of
1
The State realizes that our precedent forecloses our
determinations on its last two issues. See Johnson, 929 F.2d at
1071; Guice v. Fortenberry, 661 F.2d 496, 498-99 (Former 5th
Cir. Nov. 1981) (en banc) (Guice I ). The State hopes that,
should we affirm the district court, we would reconsider these
issues en banc. Because we reverse the district court's
conclusion as to the equal protection claim, we do not reach the
State's other issues.
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time; and (3) that the selection procedure is susceptible to abuse
or is not racially neutral. Rose v. Mitchell, 443 U.S. 545, 565,
99 S.Ct. 2993, 3005, 61 L.Ed.2d 739 (1979) (quoting Castaneda v.
Partida, 430 U.S. 482, 494, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498
(1977)). The Louisiana First Circuit denied James's equal
protection claim because he failed to prove the second element of
his claim. At oral argument before us, the state conceded that
James had proved the first and third elements. Thus, our inquiry
concerns only the degree of underrepresentation.
In federal habeas proceedings, federal courts generally
accord state court findings of fact a presumption of correctness.
28 U.S.C. § 2254(d) (1988). Eight exceptions exist to this
presumption. One of the exceptions is if the record does not
fairly support the finding. Id. § 2254(d)(8). If the record as a
whole does not fairly support the finding, the finding is not
entitled to the presumption of correctness. Armstead v. Scott, 37
F.3d 202, 206 (5th Cir.1994). If the record does fairly support
the finding, the presumption of correctness applies and the
petitioner must prove by clear and convincing evidence that the
finding is erroneous. Id. at 206; Williams v. Scott, 35 F.3d 159,
161 (5th Cir.1994).
The district court erroneously determined that the record as
a whole did not fairly support the finding of the Louisiana First
Circuit that James did not establish the number of grand juries
convened in Ascension Parish between 1965 and 1979 nor the number
of foremen appointed. "[Q]uestions of fact that underlie the
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ultimate conclusion are governed by the statutory presumption."
Sumner v. Mata, 455 U.S. 591, 597, 102 S.Ct. 1303, 1307, 71 L.Ed.2d
480 (1982) (per curiam). In reaching his conclusion, the
magistrate judge compared the statistical information available in
this case to Guice I and Johnson. When the issue is whether §
2254(d)(8) applies, however, the appropriate analysis is whether
the record fairly supports the finding, not whether the record
shows sufficient statistical information to establish the degree of
underrepresentation.2
The determination of whether the record fairly supports a
state court finding requires a high measure of deference. Rushen
v. Spain, 464 U.S. 114, 120, 104 S.Ct. 453, 456, 78 L.Ed.2d 267
(1983). Mere disagreement with a state court finding does not
entitle a federal court to overturn it. Marshall v. Lonberger, 459
U.S. 422, 432, 103 S.Ct. 843, 849-50, 74 L.Ed.2d 646 (1983).
The First Circuit found that James had failed to prove the
number of grand jury foremen appointed between 1965 and 1979.
"Absent such evidence, it is difficult to say that the number of
Negroes appointed foreman, even if zero, is statistically so
significant as to make out a case of discrimination under the "rule
2
In Guice I, the presumption of correctness did not apply
because the state court did not resolve the merits of the factual
dispute. 661 F.2d at 506-07. The Johnson court disagreed with
the state court's mixed ruling of law and fact, to which the
presumption does not apply. 929 F.2d at 1072-72. The Supreme
Court in Rose recognized that the § 2254(d) presumption could
apply to the statistics underlying the degree of
underrepresentation. 443 U.S. at 574 n. 13, 99 S.Ct. at 3009 n.
3. Nevertheless, the presumption did not apply in Rose because
the state court did not resolve the merits of the factual
dispute. Id.
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of exclusion.' " Rose, 443 U.S. at 571, 99 S.Ct. at 3008. On the
number of grand jury foremen selected, James's evidence is purely
inferential. Louisiana law requires that a grand jury be convened
in Ascension Parish twice a year. La.Code Crim.Proc.Ann. art. 414
(West 1991). In Guice I, we noted that this statute provides
inferential, not positive, evidence of the number of grand jury
foremen actually selected during the relevant period. 661 F.2d at
504. James presents no positive evidence of the number of grand
jury foremen appointed.3
The absence of positive proof in the record of the number of
grand jury foremen appointed means that record fairly supports the
state court finding. An ambiguous record provides fair support for
a state court finding. Wainwright v. Goode, 464 U.S. 78, 85, 104
S.Ct. 378, 382-83, 78 L.Ed.2d 187 (1983). Because the evidence put
forth by James is inferential, the state court could reach the
opposite inference and find that he had not proven the number of
grand jury foremen appointed. Under § 2254(d)(8), we must respect
that finding. We determine that the record fairly supports the
First Circuit's factual finding.
Because the record fairly supports the state court finding,
the presumption of correctness applies. Without positive proof of
the number of grand juries convened and foremen appointed in
3
The testimony of the judges goes toward the number of grand
juries convened, not the number of grand jury foremen appointed.
In contrast, in Guice v. Fortenberry, 722 F.2d 276, 278 (5th
Cir.1984) (Guice II ), the chief deputy clerk of court testified
that, to her personal knowledge, 31 grand jury foremen were
appointed during the relevant period.
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Ascension Parish between 1965 and 1979, James cannot show the
degree of underrepresentation required by Rose. The Supreme Court
emphasized the importance of such statistics in proving an equal
protection claim. Rose, 443 U.S. at 574, 99 S.Ct. at 3009 ("We
decline to overlook so fundamental a defect in respondent's
case."). We conclude that James has failed to prove the degree of
underrepresentation required to establish an equal protection
claim.
CONCLUSION
The trial court's grant to James of a writ of habeas corpus is
REVERSED, and the case is REMANDED to consider the other claims in
James's petition.
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