dissenting:
The majority’s action in this case, annulling a 17-year-old Louisiana state court conviction of confessed rapist Bruce Barksdale, now serving a life sentence for his crime, brings to mind the perceptive observation of Justice Black where he wrote: “It is seemingly becoming more and more difficult to gain acceptance for the proposition that punishment of the guilty is desirable, other things being equal.” Kaufman v. United States, 394 U.S. 217, 240-41, 89 S.Ct. 1068, 1081, 22 L.Ed.2d 227 (1969) (Black, J., dissenting).
Uncontroverted evidence presented at his trial for aggravated rape in Criminal District Court in Orleans Parish, Louisiana, conclusively shows that on the morning of October 3, 1962, petitioner Bruce Barksdale followed a young woman into her apartment building on Chartres Street, in New Orleans’ French Quarter, after seeing her return from the grocery store. He knocked on her door and inquired whether a couch in the hallway of the apartment was for sale. The young woman opened the door to respond to the request when Barksdale forcibly slammed the door open, shoved the *273young woman back into her apartment, and threatened her with a raised hammer. The victim tried to run past her assailant but was grabbed before she could reach the stairway in the apartment building, and was forcibly brought back into her apartment and the door was locked behind her. After robbing his victim, Barksdale dragged her into the bedroom and shoved her face down into the bed. He placed his knee in the middle of her back, and informed her that “I’m not going to hurt you if you do as I tell you.” Barksdale ordered the woman to remove her blouse, and he ripped her underwear off. Then, with his hammer still in his hand, Barksdale raped his victim. Barksdale then informed his victim that “[y]ou know I am going to have to kill you now.” She begged hysterically for her life, and Barksdale relented after requiring her to “swear on a Bible” that she would tell no one of the incident. As he left the apartment, Barksdale grabbed the young woman again by the throat and gave her this warning: “If you ever tell anybody about this I will kill you. I have before and I will again, and I better not see you on the streets.”
Several hours later the victim was found in an extremely agitated and distressed condition by her landlord, who managed to extract an account of what had happened. She was able to give the police a description of her assailant, from which a police composite drawing was made. Two workers at a hotel across the street from the victim’s apartment also gave police descriptions of a man with a hammer seen in the vicinity of the apartment that morning. On the basis of these leads, the police were able to apprehend Bruce Barksdale the next morning.
Barksdale was positively identified by his victim on October 4, the day following the attack, in a lineup held in a show-up room at New Orleans police headquarters. The two workmen also identified Barksdale at the lineup as the man with the hammer they had seen in the vicinity of the victim’s apartment on the day of the attack.
Clothing seized from Barksdale at the time of his arrest matched the victim’s description of her assailant’s apparel. A hammer similar to the one described by the victim was also recovered. Scientific tests of Barksdale’s clothing revealed seminal fluid in the genital region of his garments. Furthermore, cat hair removed from Barks-dale’s clothing was found to match cat hair taken from the victim’s bed, clothing and pet cat.
On October 5, at around 9 a. m., Barks-dale informed a police officer outside his cell that he wished to speak with the officers that had apprehended him the day before. The Detective Bureau was notified, and one of the arresting officers came to Barksdale’s cell. Barksdale informed the officer that he wished to make a statement. Barksdale was then taken to the Detective Bureau General Assignments Office, where he dictated a statement that was taken down verbatim on a typewriter by a police lieutenant.1 The facts in the statement are the same as those related by the rape victim as a witness at Barksdale’s trial.2
At trial, counsel for Barksdale presented no evidence in his favor and offered no *274defense. Indeed, except for some perfunctory cross-examination of police officers regarding the voluntariness of Barksdale’s confession, counsel for Barksdale did not even cross-examine the victim or other witnesses produced by the state. The scientific tests, eyewitness identifications and other evidence linking Barksdale to the crime were all admitted without objection.3 Furthermore, throughout the long and tedious *275judicial reexamination of this case by petitions for habeas corpus in both state and federal courts, Barksdale’s confession has never been challenged for its accuracy, reliability, voluntariness, or admissibility. Barksdale, in short, is clearly guilty. He does not contend, in this habeas petition, in a single line or phrase, that he is innocent.
The jury’s determination of guilt, however, in this case as in so many others, was hardly the end, or even the beginning of the end, “but only the end of the beginning.” Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142, 142 (1970). Prior to trial, Barksdale, who is black, filed a document entitled “Motion to Set Aside Jury Commission, General Jury Venire, Grand Jury Ve-nire, Grand Jurors and Petit Jury Venire” on the ground of racial discrimination based on systematic exclusion of blacks. This motion was denied by the trial court, and after conviction Barksdale appealed to the Louisiana Supreme Court, contending that blacks had been unconstitutionally excluded from the jury venires in his case. The Louisiana Supreme Court, in a unanimous decision, found no unconstitutional exclusion of blacks from the Orleans Parish jury venires and upheld the conviction. State v. Barksdale, 247 La. 198,170 So.2d 374 (1964). The United States Supreme Court denied Barksdale’s petition for a writ of certiorari. State v. Barksdale, 382 U.S. 921, 86 S.Ct. 297, 15 L.Ed.2d 236 (1965). Approximately two years later, Barksdale filed his first state habeas petition, which was ultimately denied by the Louisiana Supreme Court. State ex rel. Barksdale v. Dees, 252 La. 434, 211 So.2d 318 (1968). Petitioner filed a second state habeas petition, which was also finally denied. State ex rel. Barksdale v. Henderson, 257 La. 551, 242 So.2d 886 (1971).
Barksdale then filed this habeas petition in federal district court. The majority opinion traces the tortuous path traveled through all levels of the federal court system since the filing of that petition.4 Suffice it to say that after the most recent federal court hearing in this case, the district judge was of the opinion that “the evidence and testimony adduced by the state adequately explains and justifies” the statistical disparities noted by the majority opinion. In my view the judgment of the trial judge should not be disturbed.
*276The district judge noted that since the decision in Eubanks v. Louisiana, 365 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991 (1958), black representation in Orleans Parish jury ve-nires has undergone dramatic change — with black representation on proposed petit jury venires rising from 6.2% in 1952 to 14.9% in 1962. Furthermore, the court found that at the time of Barksdale’s conviction the Orleans Parish jury commissioners were not excluding the “entire class” of “daily wage earners,” a practice found to have a prohibited discriminatory impact in Labat v. Bennett, 365 F.2d 698 (5th Cir. 1966).5 The district judge concluded that evidence introduced by the state
indicates that [at] the time of petitioner’s trial the jury commission and the judges were not engaged in invidious racial discrimination and purposeful exclusion of blacks as a class from jury service on the grand and petit juries. The testimony and evidence demonstrates that an attempt was being made to comply with the dictates of Eubanks. Although obviously at this early date disparities had not been reduced to the desired percentages, a sincere effort to achieve this was in effect. . The record in this case shows that the dramatic increase in black representation in the jury venires was not tokenism. Castenda v. Partida, supra holds that the statistical disparities may be explained. We believe that the evidence and testimony adduced by the state adequately explains and justifies those disparities in this case.
Not satisfied with the factual and legal determinations of the federal trial judge in this case, the majority today relies upon a series of statistical computations to set aside this conviction. But statistics, like most descriptive devices, can sometimes be used to support — and even compel — a preconceived result. The statistics bantered about in this case are an excellent example of this phenomenon. Barksdale presented the expert testimony of Dr. Arnold Levine, Professor of Mathematics, Tulane University, to support his contention that there was statistical evidence of racial discrimination in the selection of jurors at the time of his conviction.6 To counter Dr. Levine’s computations, the State of Louisiana offered the testimony of Dr. David W. Smith, Associate Professor of Experimental Statistics, Louisiana State University, who concluded that there was no evidence of nonrandom selection of grand jurors in Orleans Parish at the time of Barksdale’s trial.7 The professional resumes of both professors are impressive, both appear to be highly qualified and competent statisticians, and both reach divergent conclusions. Thus, this case is not, as the majority opinion suggests, merely an example of this court responding to a clearly defined set of facts. Before the court can hold for Barksdale today, it has to decide which set of facts— the state’s or Barksdale’s — is worthy of belief.
If the statistical evidence proposed by Barksdale’s expert is accepted, racial disparities between the black population in Orleans Parish and blacks appearing in the general venire, the grand jury venire, and petit jury venires at the time of his conviction approach 20%. Such disparities are apparently sufficient under the majority view to establish a prima facie case of racial discrimination. If, however, we turn from Dr. Levine’s figures to those presented by the State of Louisiana through Dr. Smith, an entirely different view of the Orleans Parish jury selection process is presented.
The state contends on the basis of this expert testimony that the disparity between the eligible black population and the number of blacks on the general jury venire is only 8.7%, the difference between the percentage of blacks with a fifth- or sixth-grade education (26.2%) and the percentage *277of blacks in the jury wheel as of January 1, 1962 (17.5%).8 As for the disparity between the general black population and those serving on Orleans Parish grand juries, the state’s figures again show a substantially smaller gap than that proposed by Barks-dale, only 11.2%.9 If the court were to adopt the state’s contention that an eighth-grade education is essential to become a qualified grand juror, the disparity would be a mere 5.8%.10 Such statistical disparities are insufficient to establish a prima facie case of racial discrimination. See Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) (disparity of 10% insufficient to state prima facie case); Thompson v. Sheppard, 490 F.2d 830 (5th Cir. 1974) (disparity of 11% insufficient for prima facie case).
The statistical evidence in this case, therefore, is not as compelling as is suggested by the majority. The trial judge, who was in a position to explore fully the statistical evidence presented by experts Levine and Smith, found no unconstitutional exclusion of blacks from Orleans Parish jury venires at the time of Barksdale’s conviction. That determination of the factfinder — the trial judge — should stand.
Barksdale’s collateral attacks on his criminal conviction have received repeated hearings and have consumed many hours of judicial time.11
The proverbial man from Mars would surely think we must consider our system of criminal justice terribly bad if we are willing to tolerate such efforts at undoing judgments of conviction. He would be surprised, I should suppose, to be told both that it never was really bad and that it has been steadily improving . His astonishment would grow when we told him that the one thing almost never suggested on collateral attack is that the prisoner was innocent of the crime.
Friendly, supra at 145. Never throughout the 17 years that Barksdale’s petitions have been before various courts has there been the slightest intimation that he is innocent of the crime for which he was convicted. As Judge Friendly asserted in the above-cited article, with only few exceptions, “convictions should be subject to collateral attack only when the prisoner supplements his constitutional plea with a colorable claim of innocence.” Id. at 142. Here, where Barksdale’s constitutional arguments shed no doubt on the issue of his guilt, the court should be especially wary to set aside his conviction on grounds as ethereal as the Three Point LaGrangian Interpolation, referred to in footnote 20 of the majority opinion to ascertain the black population for years where no actual figures are available. The hieroglyphic
*278employed by Barksdale’s expert Levine, and used by the court in footnote 20, does not compel the conclusion that Barksdale should prevail. It merely adds to the confusion of statistics in this case.
Although the majority opinion formally leaves reindictment and retrial of Barksdale as a possibility, the long period of time which has elapsed since the commission of the crime and the trial in state court, with the attendant difficulties in reassembling evidence, “makes this a matter of theory only.” Friendly, supra at 147. Thus, in practical effect the majority decision sets free a person whose guilt of a serious and heinous crime is apparent beyond a reasonable doubt.
Justice Black stated that “[i]n collateral attacks whether by habeas corpus or by § 2255 proceedings, I would always require that the convicted defendant raise the kind of constitutional claim that casts some shadow of a doubt on his guilt.” Kaufman v. United States, 394 U.S. 217, 242, 89 S.Ct. 1068, 1082, 22 L.Ed.2d 227 (1969). Such a view is consonant with the historical use to which the Great Writ has been put. See Schneckloth v. Bustamonte, 412 U.S. 218, 249, 93 S.Ct. 2041, 2059, 36 L.Ed.2d 854 (Powell, J., concurring). As Mr. Justice Powell stated in his concurring opinion in Schneckloth, the “central reason” for habe-as corpus is “the affording of means, through an extraordinary writ, of redressing an unjust incarceration.” Id. at 257-58, 93 S.Ct. at 2063. That central purpose is not served by the majority decision,12 especially where the decision runs contrary to the factual determinations of the federal trial judge and is based upon highly doubtful and even conjectural statistics relating to alleged racial discrimination in jury selection. Accordingly, I dissent.
. At trial, the police officer who typed the statement testified that he took down the statement exactly as dictated by Barksdale, using phonetic spellings when necessary.
. The full text of Barksdale’s confession, along with several questions asked by police officers following the statement, follows:
Statement of one Bruce Barksdale, CM, age 27 yrs, residing 1121 Ursuline St, rear apartment, relative to the Aggravated Rape of one -, WF, 21 yrs residing_Char-tres St, upper front apartment, which occurred at 9:30 AM, on Wednesday, October 3, 1962 at -Chartres St.
STATEMENT
Early last Wednesday morning. I’d say about nine o’clock, I was helping this white man move abed, out his house to his car; on Du-maine between Chartres and Decatur. I saw this girl, white girl, come by pulling this dog along. She was carrying a grocery bag. And I laughed the way she was pulling the dog, and she looked at me and laughed. So after I got through helping the man, I was on my way back of town and I saw her again. She was going in her door. And the door was opened, it was closed but unlocked. I passed on by, and went halfway to the comer and stopped and came back. And I went inside the place in the hall. And I went upstairs and I seen where the *274dog had made some mess and I figured that was her place. And I knocked on the door, and she opened the door. They had a sofa laying outside the door in the hall and I asked her if she wanted to sell it. She was nervous and upset, I guessshe was scared of me. The door was opened, and I reched at her but I missed, and then she tried to run out the door. Then reched at her and grabbed her by her arms and I pulled her back in, and then I closed the door. I couldn’t lock the door with the chain and I told her to lock the door, and she locked the door. I asked her for money, she say she didn’t have no money, she hand me a dollar and I give it back to her. Seemed to me like she got nervous and start to whining like she was git-ting ready to holler, and that’s when I got the hammer from my back pocket. I drew it back at her, and she say don’t hurt me and I told her I wasn’t going to hurt her. I told her to take off her clothes, she had on a tie on skirt, and she took it off. She was scared, she kept saying don’t hurt me, don’t hurt me. And I told her to go lay on the bed. She lay on the bed on her back but she lay kinda across the bed. I reched down and tore her pants off. Then I took my private out and got on top of her. Then I put my private in her, and while I was intercoursing I made her kiss me and I made her stick her tongue out and I went to kiss her again and she put her tongue back in. She told me you gonna hurt me and I told her no I’m not going to hurt you and I took the hammer and threw it on the bed next to her. She was sitting on the bed and I was standing up. This was after I finish with her and I had come in her. I had put my private back in my pants and closed my pants. I told her I say I know you gonna call the police. She say man no I ain’t gonna call the police, I’m from Illinois. And I say I don’t care I betcha you still gonna call the police. And she say you gonna hurt me and I say.no I ain’t gonna hurt you. I say would you swear on a bible you ain’t gonna call the police and she say she don’t swear and she say she ain’t got no bible. I say if this was someone else I betcha if you say you gonna call the police they’d kill you. I told her open the door and let me out. And as I walk out the door I say I know you gonna call the police. She say man, I don’t wanna die. I ran on down the stairs, then after I got outside I walked back of town on Ursuline street one block and I caught the bus on Royal and Ursuline, I went to Canal Street and transferred to the City Park bus and I went back by my brother’s house at 2429 St. Ann. And I stayed there and I changed clothes completely, and I waited and went to Parish Prison and seened my brother. Then I came back to 2429 St. Ann and changed back into my own clothes excepting the shirt. The I jist stood around and watched the ball game and then I went home. Then the next day I’d say it was a little bit before the ball game come on around noon I guess, the police apprehended both me and my wife by my house. And they booked me at the First Precinct, and they took my wife in another police car. They told me they were booking me with aggravated rape. Then this morning I told the turnkey I wanted to talk to one of the Detectives that arrested me and tell ’em the truth about everything. He say he would git ’em. And this Officer asked me if I would be willing to put my story down in writing and I say yeah. And that’s when he brought me up here to make the statement.
The following questions were propounded by Officer Jerry Chatelain and the corresponding answers were given by Bruce Barksdale.
Q. What kind of hammer was it that you used in raping this girl?
A. A small iron crate opener, the one that the police got from 2429 St. Ann.
Q. When did you take the hammer off the bed?
A. After I’d asked to swear to God she wouldn’t call the police.
Q. Did she seem scared or cry while this was going on?
A. She was scared and cried while I was inter-coursing her.
Q. Is this all that you know about the above?
A. That’s all there is to know about it.
Q. Did anybody promise you anything to make this statement, or did they threaten you to get you to make this statement?
A. No, of my own free will. Cause I’m guilty of what I’d done. I wish that it’d help me.
(s) Bruce Barksdale
Bruce Barksdale
This statement taken in the Detective Bureau in Police Headquarters on Friday, October 5, 1962, typed by D/Sgt. Paul Dyer in the presence of Officer Jerry Chatelain, and completed at 10:30 AM.
Note: In this footnote the name and address of the victim have been deleted from the above confession to protect her identity.
. The above recital of facts was taken entirely from the transcript of testimony before the state criminal trial court, which was included as an exhibit to this habeas petition.
. As noted by the majority, at one point Barks-dale’s instant petition was consolidated with that of John Newman for the purpose of an evidentiary hearing before a federal magistrate. After the hearing before the magistrate, the cases were separated and sent back to the district judges to whom the cases initially had been assigned. The district judge set aside Newman’s conviction, and the state appealed. The Fifth Circuit originally reversed the district court and affirmed the conviction, on the ground that Newman had waived his objections regarding the jury panel. Newman v. Henderson, 496 F.2d 896 (5th Cir. 1974). The Supreme Court vacated that opinion, and remanded for reconsideration of the waiver argument relied upon. Newman v. Henderson, 425 U.S. 967, 96 S.Ct. 2162, 48 L.Ed.2d 791 (1976). On remand, without briefs from the parties, the Fifth Circuit reversed itself and set aside Newman’s conviction. Newman v. Henderson, 539 F.2d 502 (5th Cir. 1976). In a supplemental brief, the state recites that in Newman it “was given no opportunity to fully present the issues to the Court.” Supplemental brief of appellee at 6.
Although the court notes in footnote 3 that it “expressly declines to decide whether the Newman decision could collaterally estop the State of Louisiana from relitigating the legality of the September 1962 Grand Jury,” the state should not be bound by the conclusion of the court in Newman. The state offered no factual defense or memoranda of law to the district court in the Newman case, or in the original hearing in district court in this case. A new state District Attorney, recognizing the gravity of these cases, sought a rehearing in the Barksdale case, and for the first time presented evidence to rebut Barksdale’s allegations. Barksdale v. Henderson, 510 F.2d 382 (5th Cir. 1975), cert. denied, 422 U.S. 1045, 95 S.Ct. 2662, 45 L.Ed.2d 697 (1975). A new hearing was not sought in Newman because, at the time, the Fifth Circuit had reversed the district court on the ground that the petitioner had waived his challenge to the jury. Newman v. Henderson, 496 F.2d 896 (5th Cir. 1974). Thus, when Newman was finally decided by the Fifth Circuit, the state had not attempted to rebut the allegations of racial discrimination in that case. Therefore, Newman should not govern this case in which the state is contesting Barksdale’s contentions of racial discrimination.
. Labat dealt with improper jury selection in Orleans Parish for a period ending in 1953. The district court in this case specifically concluded that the exclusion of daily wage earners, found objectionable in Labat, did not occur in 1962-63, the critical period in this case.
. Levine, Detection of Non-Randomness in Jury Selections.
. Smith, A Critique of “Detection of Non-Randomness in Jury Selections."
. Brief for appellee at 30 31.
. This disparity is the difference between blacks with a fifth- or sixth-grade education, 26.2% of the Orleans Parish population, and the percentage of blacks actually serving on grand juries, 15%. Brief for appellee at 33.
. This disparity is the difference between the percentage of blacks with an eighth-grade education, 20.8%, and the percentage of blacks actually serving on grand juries between 1958 and 1962, 15%. Brief for appellee at 33. Admittedly, the above statistics are obtained by imposing an educational requirement which tends to constrict the pool of qualified black candidates. However, it is not unreasonable to require some level of educational achievement in prospective jurors. See Carter v. Jury Commissioners, 369 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 991 (1970).
. This petition alone has received four separate evidentiary hearings in federal court. In February 1973, the first evidentiary hearing was had before a United States magistrate. Relying on a magistrate’s report, the district judge (J. Christenberry) granted Barksdale’s petition for habeas corpus. One year later, that judgment was vacated and a second evi-dentiary hearing was held before Judge Chris-tenberry. Before judgment could be rendered, Judge Christenberry died. Consequently, a third evidentiary hearing was held before a newly appointed federal judge (J. Schwartz). At this third hearing, the state introduced statistical evidence to counter that presented by *278Barksdale. On April 1, 1977, Judge Schwartz rendered an opinion denying Barksdale’s petition. Because of a factual error in the opinion, both parties moved for a new trial, and the district court granted the motion for a partial new trial. At this fourth evidentiary hearing, both parties introduced additional evidence. In June 1978, Judge Schwartz rendered a new opinion again denying Barksdale’s petition for habeas corpus.
. The Supreme Court in Rose v. Mitchell, —U.S. —, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979), held that a claim of racial discrimination in the selection of a grand jury foreman presented an issue cognizable on habeas corpus regardless of the guilt or innocence of the petitioner and regardless of whether the state had previously granted a full and fair hearing to the petitioner’s claim. However, the portion of the opinion so holding has questionable precedential value, for as noted by Mr. Justice Powell in his concurring opinion, “not all of the four Members who join it support even the Court’s judgment.” Id. at —, 99 S.Ct. at 3014 n. 3 (Powell, J., concurring). The Supreme Court’s judgment in Rose may not be the final word on this
subject. As noted by Mr. Justice Powell in his concurrence:
Whenever a federal court is called upon by a state prisoner to issue a writ of habeas corpus, it is asked to do two things that should be undertaken only with restraint and respect for the way our system of justice is structured. First, as one court of general jurisdiction it is requested to entertain a collateral attack upon the final judgment of another court of general jurisdiction. Second, contrary to principles of federalism, a lower federal court is asked to review not only a state trial court’s judgment, but almost invariably the judgment of the highest court of the State as well. These considerations prompt one to inquire, more critically than this Court ever has, whether it is appropriate to allow the use of habeas corpus by state prisoners who do not seek to protect their personal interest in the justness of their convictions.
Id. at-, 99 S.Ct. at 3012 (Powell, J., concurring).