Two black persons convicted of a crime in state court contend that they are entitled to a new trial because, as the result of a practice in effect for many years, blacks were systematically excluded from service as grand jury foremen both on the grand jury that indicted them and on prior grand juries. Appealing the district judge’s denial of their petition for habeas corpus, which was based on his review only of the state court record, they seek an evidentiary hear*498ing in federal court. Finding that the state court proceeding did not afford petitioners a full and fair hearing, we remand for an evidentiary hearing.
■ I.
Petitioners were the police chief and assistant police chief of Tallulah, Louisiana, a community located in Madison Parish in the northeastern part of the state. In June 1979, they were indicted by a Madison Parish grand jury for the theft of $5,000, allegedly taken for their own use from a larger sum recovered by police shortly after the robbery of a grocery store.1
Petitioners were convicted by a unanimous six-member petit jury. A number of issues were raised before the district court, including allegations of racial discrimination in selecting the jury commissioners, the grand jury venire, the petit jury venire, and the grand jury foreman. Citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the petitioners also challenged the sufficiency of the evidence of guilt adduced in the state trial. In a written opinion, the district judge denied each of these claims. Although the petitioners’ notice of appeal was comprehensive and a certificate of probable cause was granted on all issues decided by the district court, only the contentions of racial discrimination in selecting the grand jury foreman and the jury commission were briefed on appeal. Therefore, the district court’s ruling on the other claims is final. See, e. g., Mayberry v. Davis, 608 F.2d 1070, 1072 (5th Cir. 1979); Pate v. Wainwright, 607 F.2d 669, 670 (5th Cir. 1979); Galtieri v. Wainwright, 582 F.2d 348, 352 n.8 (5th Cir. 1978) (en banc).
A panel of this Court affirmed the denial of relief. 633 F.2d 699 (5th Cir. 1980). The Court en banc voted to rehear the case, 642 F.2d 98 (5th Cir. 1981) (en banc), thus vacating the panel opinion. See Fifth Circuit Local Rule 17. The petition for rehearing en banc raises only the contention that each petitioner’s right to equal protection of the laws, guaranteed by the fourteenth amendment, was violated by the systematic exclusion of black persons from service as grand jury foremen.
II.
The Supreme Court, in Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979), held that racial discrimination in the selection of the grand jury and its foreman violates the fourteenth amendment and requires a federal court to grant habeas corpus, reversing a state criminal conviction. “[Wjhere sufficient proof of discrimination in violation of the Fourteenth Amendment has been made out and not rebutted, this Court uniformly has required that the conviction be set aside and the indictment by the unconstitutionally constituted grand jury be quashed.” Id. at 553, 99 S.Ct. at 2998, 61 L.Ed.2d at 747.2 *499The Court assumed, without deciding, that invidious discrimination in “the selection of only the foreman requires that a subsequent conviction be set aside, just as if the discrimination proved had tainted the selection of the entire grand jury venire.” Id. at 553 n.4, 99 S.Ct. at 2998 n.4, 61 L.Ed.2d at 747 n.4. See United States ex rel. Barksdale v. Blackburn, 639 F.2d 1115, 1120 (5th Cir. 1981) (en banc); Williams v. Mississippi, 608 F.2d 1021, 1022 (5th Cir. 1979). The Court recognized that a defendant who had already been convicted “suffered no possible prejudice,” because the grand jury assays only probable cause, and, on the ultimate issue of guilt or innocence, the trier of fact had already determined that the defendant was guilty beyond reasonable doubt. 443 U.S. at 553, 99 S.Ct. at 2998, 61 L.Ed.2d at 747. Nevertheless, “[bjecause discrimination on the basis of race in the selection of members of a grand jury . . . strikes at the fundamental values of our judicial system and our society as a whole ... a criminal defendant’s right to equal protection of the law has been denied when he is indicted by a grand jury from which members of a racial group purposefully have been excluded.” Id. at 556, 99 S.Ct. at 3000, 61 L.Ed.2d at 749. Therefore, his conviction must be reversed without regard to prejudice. Id.
Recognizing the social costs associated with this approach, however, the Court noted that the defendant could again be indicted and tried. “[S]uch costs as do exist are outweighed by the strong policy the Court consistently has recognized of combatting racial discrimination in the administration of justice.” 443 U.S. at 558, 99 S.Ct. at 3001, 61 L.Ed.2d at 751.3 If convictions must be set aside because of taint of the grand jury, we see no reason to differentiate the result because discrimination affected only the foreman. Accepting the assumption made in Rose v. Mitchell, we hold, therefore, that the district court properly considered the claim of discrimination in the selection of grand jury foremen made in the habeas corpus petition filed by Guiee and Claxton.
III.
A constitutional basis for relief from discrimination is not proved merely by suspicion or loud outcry. The prerequisites for federal relief from the allegedly discriminatory selection of a grand jury were established in Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977). The petitioner must: (1) 'establish that the group against whom discrimination is asserted is a recognizable, distinct class, singled out for different treatment; (2) prove the degree of underrepresentation by comparing the proportion of the group in the total population to the proportion called to serve, here as foremen, over a significant period of time; and (3) support the presumption thus created by showing that the selection procedure is susceptible to abuse or is not racially neutral. Id. at 494, 97 S.Ct. at 1280, 51 L.Ed.2d at 510, cited with approval, Rose v. Mitchell, 443 U.S. at 563, 99 S.Ct. at 3005, 61 L.Ed.2d at 754. See United States ex rel. Barksdale v. Black*500burn, 639 F.2d 1115, 1121-1123 (5th Cir. 1981) (en banc). Once these prerequisites have been proved, a prima facie case has been established and the burden shifts to the state to rebut that showing.
IV.
If the facts necessary to support such a constitutional challenge are disputed, an evidentiary hearing is essential to the resolution of the claim. If no such hearing has been held in the state court, despite the exhaustion of state remedies, then a federal evidentiary hearing is obviously essential. If, however, the petitioner has been accorded a fair and complete opportunity to adduce evidence in state court, neither the petitioner nor the state should be put to the wasteful exercise of repetition in federal court.
While “the power of inquiry on federal habeas corpus is plenary,” Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 757, 9 L.Ed.2d 770, 785 (1963), it should not be employed merely to demonstrate its existence. However, “[w]here the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court.... In other words a federal evidentiary hearing is required unless the state-court trier of fact has after a full hearing reliably found the relevant facts.” Id. at 312-313, 83 S.Ct. at 757, 9 L.Ed.2d at 785.
Expressly avoiding over-particularization, the Court set forth a catalog of six situations in which a federal hearing must be held. First, a federal hearing is required if “the merits of the factual dispute were not resolved in the state hearing. ...” Id. at 313, 83 S.Ct. at 757, 9 L.Ed.2d at 786. The Court explained illustratively that a hearing was also required if “the material facts were not adequately developed at the state court hearing. . . . ” Id. Elaborating further on the necessity for adequate development of the relevant facts, the Court said a federal hearing was mandatory “[i]f, for any reason not attributable to the inexcusable neglect of petitioner, evidence crucial to the adequate consideration of the constitutional claim was not developed at the state hearing. . . . ” Id. at 317, 83 S.Ct. at 759, 9 L.Ed.2d at 788 (citation omitted).4
Townsend was held to be entitled to a federal hearing on the voluntariness of his confession even though he had been accorded a state court hearing at his original trial. “The state trial judge rendered neither an opinion, conclusions of law, nor findings of fact. . . . [TJhere are no indicia which would indicate whether the trial judge applied the proper standard of federal law in ruling upon the admissibility of the confession.” Id. at 320, 83 S.Ct. at 761, 9 L.Ed.2d at 790. While the Court held that these defects in the state proceeding were significant enough by themselves to warrant an evidentiary hearing, it added, “[fjurthermore, a crucial fact was not disclosed.” Id. at 321, 83 S.Ct. at 761, 9 L.Ed.2d at 790.
Following the decision in Townsend, the habeas corpus statute, 28 U.S.C. § 2254(d), was amended in 1966.5 Courts have said uniformly that the amendment merely codified the Townsend criteria. Brewer v. Williams, 430 U.S. 387, 395-96, 97 S.Ct. 1232, 1238, 51 L.Ed.2d 424 (1977); Harris v. Oliver, 645 F.2d 327 (5th Cir. 1981); Spinkellink v. Wainwright, 578 F.2d 582, 590 (5th Cir. 1978), cert. denied, 441 U.S. 937, 99 S.Ct. 2064, 60 L.Ed.2d 667 (1979). See also Maxwell v. Turner, 411 F.2d 805 (10th Cir. 1969); United States ex rel. Hughes v. *501McMann, 405 F.2d 773, 776 (2d Cir. 1966). See generally H.R.Rep. No. 1892, 89th Cong., 2d Sess. (1966); S.Rep. No. 1797, 89th Cong., 2d Sess. (1966), U.S.Code Cong. & Admin.News 1966, p. 3663. Townsend was not, however, completely superseded by the amendment, for the Supreme Court decided when a federal evidentiary hearing is mandatory while the habeas corpus statute, as amended, merely establishes a presumption that the state court judgment is correct unless the applicant establishes one of a number of specific reasons to disregard it.6 See Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). Because the district court did not rely on the statutory presumption, but decided that no evidentiary hearing was necessary, and then proceeded to determine the merits of the claim, we examine the state court record under Townsend precepts to determine whether a federal hearing was mandatory or whether the state court record provided an adequate basis for dispensing with the federal hearing.
V.
After their indictment, the defendants filed a barrage of pretrial motions.7 In addition to various claims of discrimination against black persons, their motion “to quash the jury commission, the general venire, the grand jury venire and the grand jury” charged that “blacks are excluded from serving on the grand jury and as *502Foremen solely because of their race.” The defendants also filed a motion to recuse the judges of the state court on the ground, in part, that those judges had purposely excluded black citizens, solely because of their race, from serving as jury foremen and from being included in the grand jury venires.8 In addition, they filed a separate motion to quash the indictment contending, inter alia, that the manner of selection of the grand jury and the grand jury foreman was illegal because black citizens were excluded.
The first motion set for a hearing was the motion to recuse the judges of the state court. This was assigned, in accordance with the requirements of Louisiana law, La.Code Crim.Pro.Ann. art. 675 (West 1967), to a judge from another district. That specially designated judge presided at a hearing directed entirely at the defendants’ effort to show that the judges of the district should be disqualified because of their alleged prejudice against black persons. See id. art. 671. Judge Adams, the senior of the two judges of that district, and the judge to whom the case was assigned, testified that he had never selected a black foreman in the fifteen or sixteen years from the time of his appointment until the empanelling of the grand jury that indicted the defendants. Several other witnesses testified regarding the jury selection process. The witnesses were also questioned about any biases or prejudices of the two judges. The junior judge of the district, though subpoenaed, was not called as a witness. Finding that there was no group against which either judge was so biased or prejudiced “that they would be unable to conduct a fair and impartial trial,” the designated judge orally denied the motion.
A later hearing was held before the trial judge, Judge Adams, on the motion to quash the grand jury indictment. Evidence was introduced concerning the composition of the jury commission, and other matters, but there was no further evidence concerning, nor any mention of, the allegedly discriminatory selection of the grand jury foreman. The testimony adduced at the recusal hearing was, however, expressly incorporated by stipulation. At the conclusion of the hearing, without reference to the claim of discriminatory selection of the grand jury foremen, Judge Adams denied the motion.
Several other motions, including the motions to purge the jury wheel and to quash the grand jury, grand jury venire and the jury commission, were also considered on the same day and Judge Adams denied them all, saying only that “the Defense has failed greatly in fulfilling the burden.”9 The defense assigned error each time the trial judge denied a motion. Following disposition of all the motions, a jury trial was held and the six member petit jury returned a verdict against Guice and Claxton.10 The defendants, alleging eight grounds for error, including discriminatory selection of the grand jury foreman,11 applied to the Supreme Court of Louisiana for a writ of certiorari. The Supreme Court, without opinion, denied the writ.
Following application to the federal district court for a writ of habeas corpus, the judge found that the state court record enabled him to resolve the merits of the application on the basis of the record alone without an evidentiary hearing,12 and de*503nied the application. In their appeal, the petitioners seek issuance of the writ or, in the alternative, they now expressly request remand for an evidentiary hearing.
VI.
While the federal habeas court is required by Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), to conduct a hearing in certain circumstances, such a hearing is not required unless the petitioner alleges facts that, if proved, would entitle him to the writ. Cronnon v. Alabama, 587 F.2d 246 (5th Cir.), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 792 (1978). The facts before the district court must be considered together with the mere charges in the complaint to determine the sufficiency of the charges to warrant relief, The state court record here clearly reveals that petitioners had satisfied the first and third elements of the prima facie case outlined in Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977): discrimination against a recognizable distinct class and a selection procedure susceptible to abuse. Thus, the question before us is the narrower one whether the charges in the habeas corpus petition, in the light of the state court record, set forth facts that, if proved, would demonstrate, over a significant period of time, sufficient underrepresentation of blacks in the selection of grand jury foremen to entitle petitioners to habeas relief.
At the hearing concerning the motion to recuse the state court judges, Judge Adams testified in effect, that he had never appointed a black as grand jury foreman.13 In addition, a current member of the jury commission and a former police chief, who was a life-long resident of Madison Parish, both testified that, to their knowledge, a black had never been appointed foreman.14 *504While there was thus positive evidence that no black had ever been appointed foreman of a grand jury, only inferential evidence existed to show the number of grand jury foremen actually selected during the relevant period.
Louisiana law requires that a new grand jury be empanelled every six months. La. Code Crim.Pro.Ann. art. 414 (West 1967). Therefore, during Judge Adams’ fifteen year tenure, thirty-one foremen would have been selected if article 414 had been followed.15
It is, of course, conceivable that fewer than thirty-one different individuals were appointed as foreman. Yet, when the provisions of Louisiana law pertaining to grand jury selection are considered, the probability that significantly fewer than thirty-one individuals served becomes slight.
In Louisiana, the general venire is composed of at least 300 persons selected by a parish jury commission. La.Code Crim. Proc.Ann. art. 408(A) (West Supp.1980).16 The jury commission is required to meet at least once every six months. Id. art. 408(C). The commission is required by statute, at each meeting called to select or to supplement the general venire, to delete from the venire the names of all persons who have served as jurors since the last selection of the general venire.17 Id. art. 410. See State v. Gros, 204 La. 705, 707, 16 So.2d 238, 240 (1943). In addition, a Louisiana Supreme Court rule, which became effective in 1977, requires deletion of the names of those persons who have served as grand or petit jurors during the two year period immediately preceding the selection of the jury venire. La.Sup.Ct.R. 25, § 4.
When a court orders a grand jury to be empanelled, a grand jury venire consisting of the names of “at least 20 but not more than one hundred persons” is selected from the general jury venire. La.Code Crim. Proc.Ann. art. 411. In Madison Parish, the clerk draws a grand jury venire consisting of forty persons.
' The grand jury in Louisiana consists of twelve persons selected or drawn from the grand jury venire. Id. art. 413. The court first selects one person from the grand jury venire to serve as foreman. Id. The eleven other members of the grand jury are then selected by random drawing from the remaining thirty-nine. Id.18
Thus, foremen, at least until 1977, were chosen out of a newly constituted grand jury venire from which jurors who had served during the prior term, including, of course, the previous foreman, were excluded. Id. arts. 410, 411, 413. After 1977, assuming adherence to the then newly promulgated Supreme Court rule, the grand jury venire excluded jurors who had served during the preceding two years. La.Sup. Ct.R. 25, § 4. Moreover, even if the name of a person who had served as foreman were by accident not deleted from the general venire after he had served, he could not be reappointed unless by chance his name was among the forty potential grand jurors drawn from the general venire of 600. If a person who had once served as a grand jury *505foreman had been correctly excused for the requisite period, his name would not automatically be restored to the general venire, but would be included in that group of 600 only if drawn randomly from the jury wheel for inclusion in the reconstituted general venire. In either instance, once a person was included in the general venire, the probability against his name being included in the grand jury venire is fifteen to one.
It is, therefore, obviously possible, but highly unlikely to occur repeatedly, that the name of a person who served on a prior grand jury might later have been returned to the general venire, drawn at random for the grand jury venire, and then chosen by the judge.19 However, whether thirty-one or some slightly smaller number of different persons served, the state judge had performed the duty of appointing a foreman thirty-one different times. Not a single black was ever chosen. The population of Madison Parish is approximately 60% black.20 Even if the number of different foremen who actually served was less than thirty-one as a result of repeated selection of persons who had served previously, there was a significant underrepresentation of blacks. For example, if selection were made at random from a group composed of 60% black persons and 40% white persons, the probability of five successive selections of a white is approximately 100 to one and the probability of ten such successive selections is 10,000 to one.21
This formula is not, of course, directly applicable to the selection of a grand jury foreman. Even in a parish whose population was 60% black, the forty-name grand jury venire might not have mirrored the population. Moreover, foremen were not randomly selected, but were chosen based on qualifications. Even the credulous, however, would find it difficult to believe that, absent racially discriminatory motivation, no qualified black person could have been found and appointed in thirty-one selections, from a pool composed each time of forty names, a total over the seventeen and a half year period of 1240 persons, of whom a substantial number, likely half, were black.22
We have said in another context, “[s]tatistics are not, of course, the whole answer, but nothing is as emphatic as zero. . . . ” United States v. Hinds County School Board, 417 F.2d 852, 858 (5th Cir. 1969). In Rose v. Mitchell, the Supreme Court noted that the record did not disclose the total number of foremen selected during the relevant period. “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 of exclusion.’ ” Rose v. Mitchell, 433 U.S. 545, 571, 99 S.Ct. 2993, 3008, 61 L.Ed.2d 739, 759 *506(1979).23 Because oí the absence of positive proof of the actual number of foremen chosen, we do not now conclude that Guice and Claxton proved a prima facie case, but only that the record demonstrated the likelihood that they could prove facts entitling them to relief. We turn then to the question whether a remand for a federal evidentiary hearing is required by the record.
VII.
Townsend requires a federal hearing when the merits of the factual dispute were not resolved by the state court. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). See Part IV, supra. See also Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). While the petitioners introduced a substantial amount of testimony regarding the allegedly discriminatory selection procedures, the motions were not made, and the testimony was not developed, in a coherent fashion. The trial judge orally denied the motions challenging the propriety of the foreman selection proceedings 24 without making any findings of fact. This lack of express findings does not inexorably require a federal hearing, for the federal district court may “reconstruct” the findings of the state court if the state judge expressly or impliedly applied the correct constitutional standard. The state judge here articulated no legal standard under which he evaluated petitioners’ claim. Although we would ordinarily assume that the state judge applied the correct legal standard, id. 372 U.S. at 314-15, 83 S.Ct. at 758, 9 L.Ed.2d at 786-787, the confused nature of the presentation of the claims to the trial court militates against this assumption. This indicates the necessity of a federal hearing, but it does not stand alone.
The Supreme Court in Townsend also required a federal hearing “[i]f, for any reason not attributable to the inexcusable neglect of petitioner, . . . evidence crucial to the adequate consideration of the constitutional claim was not developed at the state hearing . . . . ” Id. at 317, 83 S.Ct. at 759, 9 L.Ed.2d at 788 (citation omitted). It is plain that one determinative fact, the number of grand jury foremen actually chosen by Judge Adams, was not adduced during the state court proceedings. The only remaining question then is whether Guice and Claxton inexcusably neglected to present that piece of crucial evidence. The Court in Townsend defined inexcusable neglect by reference to the deliberate bypass standard articulated in Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 848, 9 L.Ed.2d 837, 868 *507(1963), and concluded that “if for some justifiable reason [the petitioner] was previously unable to assert his rights or was unaware of the significance of the relevant facts” a hearing should be held.25 Townsend v. Sain, 372 U.S. at 317, 83 S.Ct. at 759, 9 L.Ed.2d at 788.
The neglect of Guice and Claxton to develop the crucial facts is not explained by the record. There is no substantial allegation that the petitioners made a tactical choice to leave the evidence undeveloped. It appears more likely that, based on the inartful and scattershot nature of the various motions, the defendants and their attorneys did not appreciate fully the relevance of the missing evidence. Such neglect is not inexcusable within the meaning of Fay v. Noia. The Court in Townsend noted that an expert witness “inexplicably” failed to develop the “crucially informative characterization” of the drug involved as a “truth serum.” “Under the circumstances,” the Court held, “disclosure of the identity of [the drug] as a ‘truth serum’ was indispensable to a fair, rounded development of the material facts. And the experts’ failure to testify fully cannot realistically be regarded as Townsend’s inexcusable default.” Id. 372 U.S. at 322, 83 S.Ct. at 761-62, 9 L,.Ed.2d at 791.26
The failure to develop fully the material facts of the number of grand jury foremen actually chosen was similarly not the result of a deliberate bypass. The state court proceeding was plainly not a full and fair hearing, nor was it followed by any exposition of the facts found. In fact, the trial judge, when ruling on the crucial motions, did not even refer to the alleged constitutional violation now at issue. Moreover, the very judge whose actions were being challenged was put to the task of deciding whether he had discriminated racially in violation of his own constitutional duties. Cf. id. at 316, 83 S.Ct. at 759, 9 L.Ed.2d at 787 (if the fact-finding procedure, even though not violative of the Constitution, appears to have been seriously inadequate for the ascertainment of truth, the federal judge has a duty to take evidence).27
*508The need for an evidentiary hearing becomes even more evident when we consider the limited evidence presented in state court and evaluate it in the light of the provisions of state law set forth in Part VI above. These statutory provisions were never mentioned in the state record. That, from a venire selected in a racially nondiscriminatory manner in a parish where the population is approximately 60% black, there would be no racial discrimination in the selection of a white foreman thirty-one successive times is so unlikely as to demand at least exploration. There are stranger things on earth than judges ever dreamed of, but, when an event whose occurrence is statistically implausible occurs repeatedly, and persons whose constitutional rights might thereby be affected offer to prove that it would not have occurred absent constitutional violation, they should at least be afforded a day in federal court.
VIII.
For the reasons stated above, we REVERSE the denial of the writ of habeas corpus and REMAND for an evidentiary hearing on the question of racial discrimination in selecting a grand jury foreman.
On application for rehearing en banc the petitioners suggest no fault with the panel’s determination that the jury commission was not chosen improperly. Accordingly, we reinstate Part III of the panel opinion, 633 F.2d 699,707-09 (5th Cir. 1980), and, for the reasons stated in that opinion, we affirm, in that respect, the district court’s judgment.
REVERSED and REMANDED.
. The facts giving rise to the criminal charge are fully reported in the panel opinion. 633 F.2d 699, 701 n.l (5th Cir. 1980).
. In Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979), Justices Brennan, Marshall, White and Stevens agreed with the view expressed in Part II of Justice Blackmun’s opinion for a majority of the Court, from which the quotations summarizing the holding are taken. Justice Blackmun, joined only by Justices Marshall and Brennan, while adopting the principle that claims of grand jury discrimination should be considered by a federal habeas court regardless of resulting prejudice, was of the opinion that the petitioners had not satisfied their burden of proving discrimination. Justice White, joined by Justice Stevens, stated, “[Although I agree with Parts I and II of the Court’s opinion, I believe that a prima facie case of purposeful discrimination was made out and was not rebutted by the State.” They dissented from the other portions of the opinion. A majority of five members of the Court, therefore, held that federal habeas is available to petitioners who claim discrimination in the selection of a grand jury, and assumed it was available to redress claims of discriminatory selection of grand jury foremen. See The Supreme Court, 1978 Term, 93 Harv.L.Rev. 60, 199-209 (1979); P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart and Wechsler’s The Federal Courts and The Federal System 392-93 (2d ed. Supp. 1981).
Chief Justice Burger and Justices Stewart, Powell and Rehnquist did not join in Part II. 443 U.S. at 545, 99 S.Ct. at 2995, 61 L.Ed.2d at 743. Justices Stewart, Powell and Rehnquist, in concurring opinions authored by Justices Stewart and Powell, expressed the view that *499federal habeas relief should not be available to redress claims, such as grand jury discrimination, that do not touch on the fairness of a petitioner’s conviction. See also Cassell v. Texas, 339 U.S. 282, 298-305, 70 S.Ct. 629, 637-40, 94 L.Ed. 839, 853-856 (1950) (Jackson, J., dissenting). Chief Justice Burger joined neither of these concurrences.
. The Court added:
And regardless of the fact that alternative remedies remain to vindicate the rights of those members of the class denied the chance to serve on grand juries, the fact is that permitting challenges to unconstitutional state action by defendants has been, and is, the main avenue by which Fourteenth Amendment rights are vindicated in this context. Prosecutions under 18 U.S.C. § 243 have been rare, and they are not under the control of the class members and the courts. Civil actions, expensive to maintain and lengthy, have not often been used. And even assuming that some type of pretrial procedure would be open to a defendant, e. g., petitioning for a writ of habeas corpus in federal court, under such a procedure the vindication of federal constitutional rights would turn on a race to obtain a writ before the State could commence the trial.
443 U.S. at 558, 99 S.Ct. at 3001, 61 L.Ed.2d at 751.
. The listing also included those instances in . which (1) the state fact-finding procedures were “inadequate,” (2) there is a substantial allegation of newly discovered evidence, (3) the state court determination of facts was not “fairly supported” by the record and (4) the state, for whatever reason, had not provided a full and fair hearing. Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 757, 9 L.Ed.2d 770, 785 (1963). See generally Developments in the Law: Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1113-1145 (1970); Wright & Sofaer, Federal Habeas Corpus For State Prisoners: The Allocation of Fact-Finding Responsibility, 75 Yale L.J. 895, 919-83 (1966).
. Act of November 2, 1966, Pub.L. No. 89-711, § 2, 80 Stat. 1105, amending 28 U.S.C. § 2254(d).
. [T]he statute does not purport to define when a federal evidentiary hearing is mandatory; it appears merely to state a set of rather confused burden of proof rules to guide the district courts which are holding such hearings.”
P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart and Wechsler’s The Federal Courts and The Federal System 1505 (2d ed. 1973).
The statute lists eight possible deficiencies in state court fact-findings (rather than the Townsend six); but their relevance is to the question whether the state findings are to be “presumed” correct. Further, if none of the eight deficiencies is shown, the effect of this is, not to negate the power of the judge to call for a hearing, but, confusingly, to shift to the petitioner the burden to show at a hearing that the state findings were erroneous. The statute also leaves it unclear whether, if one of the eight deficiencies is established, the burden of proof on all facts shifts to the state.
Of the eight statutory criteria, three (lack of jurisdiction in state court; failure to appoint counsel when this was constitutionally required; applicant was denied due process in the state court proceedings) are not found in Townsend (but would not appear to change the law). The remaining five appear to subsume the Townsend six.
Id. at 1505 n.7. See also 17 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4265 (1978).
. Excluding motions for continuances and certain other procedural motions, the pleadings record discloses that the following pretrial motions were filed:
Motion to Recuse the District Attorney;
Motion to Compel the Election by District Attorney (To Compel Him to Elect Which Indictment He Will Fix For Trial First);
Motion to Quash Arraignment and Trial Date;
Motion to Purge Jury Wheel and Enlarge Sources From Which Venire Was Selected;
Motion to Quash The Grand Jury Indictment on The Ground That The Manner of Selection of the General Venire, The Grand Jury Venire, The Grand Jury and the Grand Jury Foreman Was Illegal Because Black Citizens Were Excluded As the Official Policy of the Judges, Etc.;
Application for Bill of Particulars; '
Supplemental Motion to Recuse the District Attorney;
Motion to Disclosure [sic] and Produce Evidence Affecting Cross-Examination, Credibility and Jury’s Demeanor, Evaluation Of State Witness, and for Brady Material;
Motion to Suppress Any Inculpatory Statement;
Motion to Quash Act 527 of 1975 As It Amends CCP [CCrP] Article 778;
Motion To Quash the Grand Jury Indictment [This appears to be the same as the prior motion to Quash Grand Jury Indictment];
Motion for Preliminary Examination;
Motion to Enjoin Use by the State of Peremptory Challenges to Exclude Qualified Blacks From Petit Jury Service;
Motion to Quash the Petit Jury Venire Selected for the Week Beginning September 17, 1979;
Motion for Production of Janie Jones’ Grand Jury First Appearance Testimony;
Motion to Recuse the Judges of the Sixth Judicial District;
Motion to Quash the Jury Commission, the General Venire, the Grand Jury Venire and the Grand Jury;
Motion to Quash Arraignment and Cancel Trial Date.
. See La.Code Crim.Pro.Ann. art. 671 (West 1967).
. The judge’s rulings on all these motions were delivered orally. No findings of facts regarding the selection of foremen, or any other issue, are stated in the record or transcript.
. The petit jury consisted of five women and one man, of whom two were black.
. The application for a writ of certiorari alleged trial court error in denying the motions (1) to recuse the judges, (2) to recuse the district attorney, (3) to quash the grand jury indictment, (4) to quash the jury commission, the general venire, the grand jury venire and the grand jury, (5)'to purge the jury wheel and enlarge sources from which venires are selected, (6) to quash the petit jury venire, (7) to substitute a different petit jury venire, and (8) for a new trial.
. No express motion was made for an independent evidentiary hearing. In a minute entry denying petitioners’ request to stay the execution of their sentences, the district court stated *503that “the court will determine whether an evidentiary hearing is necessary.”
. The transcript of Judge Adams’ testimony on .the subject reads as follows:
Murphy Bell [defense counsel]:
Now, Judge, can you give us some idea what criteria you utilize to select a jury foreman after you impanel a Grand Jury?
Judge Adams:
Well, I have never lived anywhere else but Tallulah in all my life except for time spent in college and time spent in the army and uh . . . when I get the jury list . . . now you said for a Grand Jury foreman?
Murphy Bell:
Yes, sir.
Judge Adams:
When I get the Grand Jury venire I look for a person who can perform the duties to my knowledge of a foreman and that is he can preside over the . . . over the Grand Jury . . . he can administer the oath, he can read and write, he would be able to articulate what the proceedings were, and I’ll be perfectly frank if uh ... that uh .. . that if he didn’t like what the District Attorney was doing would let it be known. And so uh ... I look for good qualified, decent and I generally think of his morals, also. And uh .. . that’s what I look for.
Murphy Bell:
Well, during the course of your years on the bench did you ever find any black person who had those qualities?
Judge Adams:
Yes, I’ve been tempted to try it. But I still in my humble opinion I pick the one that I thought was best qualified for the job and I believe that sincerely that the law gave me that right and that discretion and authority and I would have been remissed [sic] had I not used it. I don’t have any scruples of feelings against appointing a black as a foreman and I’ll say this, there will be blacks on there but as of this moment the ones that I have felt were the ones that were best suited were the ones that were appointed.
Murphy Bell:
Your Honor, I’m not questioning your authority, Judge. »
Judge Adams:
I know exactly what you are doing and I want to be sure that I as long as the law gives me that discretion I will endeavor to use it to fulfill those requirements that I have announced and not to be badgered by an attorney who is seeking to make a problem out of something that a problem doesn’t exist.
Murphy Bell:
Well, the fact of the matter I was trying to find out, we have alleged that you have never appointed a black citizen?
Judge Adams:
Now, I said that- we will eventually get to that.
Murphy Bell:
Alright then, we will leave it at that, Judge.
. See Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935) (prima facie *504case of discrimination in the selection of juries proved, in part, by the testimony of lifelong county residents and various court and jury commission officials.) Cf. Rose v. Mitchell, 443 U.S. 545, 571, 99 S.Ct. 2993, 3008, 61 L.Ed.2d 739, 759 (1979) (“[t]here thus was no positive testimony that no Negro had ever served during the critical point in time”).
. The total of thirty-one is computed by assuming two foremen were chosen in each year, including 1978, plus the appointment in 1979 of the foreman of the grand jury that indicted Guice and Claxton. See La.Code Crim.Pro. Ann. art. 414 (West 1967).
. According to the testimony of the Madison Parish Clerk of Court, the general venire in Madison Parish consisted of at least 600 persons.
. The statute is silent regarding the manner in which the persons placed in the general venire are selected. According to testimony adduced with respect to the motion to quash the grand jury indictment, the general venire is drawn by lot from the “big barrel” or jury wheel.
. For a review of grand jury selection procedures and the powers of the grand jury, see Comment, Selected Problems of the Louisiana Grand Jury, 52 Tul.L.Rev. 707, 708-10 (1978).
. Unlike the testimony adduced in Rose v. Mitchell, 433 U.S. 545, 571, 99 S.Ct. 2993, 3008, 61 L.Ed.2d 739, 759 (1979), there was no suggestion by Judge Adams that he looked favorably upon past foreman experience. Considering that Louisiana law precluded holdover grand juries and the improbability of repeated selection in the grand jury venire, it is not surprising that experienced foremen did not appear often. Although one person testified at the state court hearing on the motion to recuse the judges that he had served “at least once previously” as foreman, this patently would not likely have occurred with any degree of frequency.
. The 1970 census showed that the population was 15,065 persons of whom 9,385 were black, making the ratio about 62% black. The relative number of black residents has since declined. In Wyche v. Madison Parish Police Jury, 635 F.2d 1151, 1155 (5th Cir. 1981), the panel, based on later data, concluded that in 1979 Madison Parish’s population was 58% black.
. The probability is calculated in a scientifically recognized manner by the use of a formula or a table. See M. Hamburg, Statistical Analysis for Decision Making 690, Table A-l (2d ed. 1977). The probability of five successive selections of a white person, from a population consisting of 60% blacks and 40% whites, is 1.000 — 0.9898 or .0102. A probability of .0102 means that the result can be expected statistically to occur 102 times if the event is repeated 10,000 times. The probability of ten such successive selections is 1.000-.9999 or .0001.
. The petit jury venire from which the jury was drawn contained the names of twenty-seven blacks and thirty-three white persons.
. The facts of Rose v. Mitchell were significantly different from those here presented. In Rose v. Mitchell, there was no positive evidence that blacks had been totally excluded from the position of foreman. The record disclosed that the black population of the county was approximately 30%. Moreover, the foremen served two year terms and were not limited in the number of terms they could serve. This showing was held insufficient to establish a prima facie case. The Court contrasted the proof introduced in Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935), as being sufficient to establish a prima facie case.
The petitioners in Norris presented uncontroverted testimony that, within the memories of several witnesses, no black had served on any jury. This testimony was corroborated by several court and municipal officers. While not mentioned in Rose v. Mitchell, the percentage of eligible blacks in Norris was less than 8%. Without specifying the number of jurors actually involved, the Court held that the foregoing .“testimony in itself made out a prima facie case of the denial of equal protection which the Constitution guarantees.” While it is, of course, easier to assume a significant number of jurors than grand jury foremen, the evidence presented in Norris illustrates the weight of the proof adduced by Guice and Claxton.
For the purpose of determining whether a federal evidentiary hearing is here required, it is perhaps noteworthy that the mandate in Rose v. Mitchell directed that the case be remanded for “further proceedings consistent with this opinion.” 443 U.S. at 572, 99 S.Ct. at 3009, 61 L.Ed.2d at 759. The Court did not specify, however, whether an evidentiary hearing was required. See id. at 592 n.5, 99 S.Ct. at 3019 n.5, 61 L.Ed.2d at 772 n.5 (White, J., dissenting); The Supreme Court, 1978 Term, 93 Harv. L.Rev. 60, 201 n.19 (1979).
. Both the “Motion to Quash the Jury Commission, the General Venire, the Grand Jury Venire and the Grand Jury” and the “Motion to Quash the Grand Jury Indictment” raised the issue of discriminatory selection of grand jury foremen. The “Motion to Recuse” also raised this issue, but it was denied by the judge designated to hear only that motion.
. While the teachings of Fay v. Noia have been rejected in several contexts, see, e. g., Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (habeas corpus unavailable to challenge Miranda violation when state courts refused to consider the claim because of noncompliance with a state contemporaneous-objection rule); Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) (federal habeas court should not hear state prisoner challenges, resting on the fourth amendment when the state courts have afforded a full and fair opportunity to litigate those claims); Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976) (state prisoner who failed timely to challenge the racial composition of the grand jury that indicted him could not, after his conviction, bring that challenge in a federal habeas corpus proceeding), neither the Supreme Court nor this Court has ever suggested that the standard developed in Francis and adopted in Sykes should replace the deliberate bypass standard in the Townsencfinquiry. Cf. Gates v. Henderson, 568 F.2d 830, 837-40 (2d Cir. 1977) (en banc) (court held that Stone v. Powell displaced the Townsend inquiry, if the state provides an opportunity to the petitioner to litigate his fourth amendment claim), cert. denied, 434 U.S. 1038, 98 S.Ct. 775, 54 L.Ed.2d 787 (1978). Indeed, the policies relied upon in those cases, federalism, comity and concerns for the orderly administration of criminal justice, do not apply when the prisoner has challenged the violations throughout the state process and the state has held proceedings directed at the constitutional claim reasserted in a federal habeas court.
. See also Wright & Sofaer, Federal Habeas Corpus For State Prisoners: The Allocation of Fact-Finding Responsibility, 75 Yale L.J. 895, 971 n.273 (1966) (“Actually, this ‘failure’ to testify was no more than a failure by counsel to develop the relevant facts through his witnesses. The Court’s refusal to regard this failure as an inexcusable default reflects its position that unintentional flaws of counsel should not bar the assertion or full development of federal rights.”).
. In Rose v. Mitchell, a federal evidentiary hearing had been held even though the state court had previously conducted such a hearing. While not directed at the need for a separate evidentiary hearing, but buttressing its reasons for federal relief by the Great Writ even after the claim had been heard in state court, the Supreme Court stated:
Federal habeas review is necessary to ensure that constitutional defects in the state judiciary’s grand jury selection procedure are not overlooked by the very state judges who operate that system.
*508As noted above, in this case, the very judge whose conduct respondents challenged decided the validity of that challenge.
443 U.S. at 563, 99 S.Ct. at 3004, 61 L.Ed.2d at 754.