Mosley v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED MAY 19, 2004
May 17, 2004
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
__________________________

No. 03-40475
__________________________

DAROYCE LAMONT MOSLEY,

Petitioner - Appellant,

versus

DOUG DRETKE, Director, Texas Department
of Criminal Justice, Correctional Institutions Division,

Respondent - Appellee.

___________________________________________________

Appeal from the United States District Court
For the Eastern District of Texas

___________________________________________________

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Petitioner DaRoyce Lamont Mosley (“Mosley”) argues that he is entitled to habeas relief

because: (1) prejudice should have been presumed on his ineffective assistance of appellate counsel

claim; (2) his right to due process was violated by the trial court’s decision to begin the penalty phase

of his trial on Saturday instead of Monday; and (3) his right to equal protection was violated by the

1
discriminatory manner in which grand jury forepersons were selected. Because we find no

constitutional violations, we AFFIRM.

I. FACTS AND PROCEEDINGS

Mosley was convicted of capital murder for the death of Patricia Colter on October 28, 1995,

and sentenced to death on November 3, 1995.

Patricia Colter, along with her husband Duane Colter, her ex-husband Alvin Waller

(“Waller”), and Luva Congleton (“Congleton”), were keeping waitress Sandra Cash (“Cash”)

company as she closed up Katie’s Lounge in Kilgore, Texas on July 21, 1994. Cash was placing the

receipts for the evening in a tackle box Katie’s used to store money. At approximately 11:45 p.m.,

two armed men wearing ski masks burst through the door. The fi rst man through the door said,

“Give me the money, you white bitch.”1 While sliding the tackle box towards the gunman, Cash was

shot in the hand as she attempted to shield her face. She was then shot in the stomach, but

nonetheless managed to call 911. This is all that Cash, the sole survivor, was able to recall.

Cash and the bodies of the Colters, Waller, and Congleton were found by police and EMS

upon their arrival. Autopsies revealed that the Colters each died from a single gunshot wound to the

back of the head. Bullets were recovered. Congleton was also shot in the back of the head, but no

bullet was recovered. Waller was shot twice in the head, and once in the thigh; any one of the three

wounds would have been fatal. Forensics determined that the gun that shot Cash was not the same

gun that shot Waller and the Colters.

1
Cash and the four patrons of Katie’s were white; Mosley and the others arrested for the
robbery and murders were black.

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 Mosley, Marcus Smith (“Marcus”), and Ray Don Mosley (“Ray Don”), Mosley’s uncle, were

arrested separately on July 22 after the police received several tips. One such tip was from Ricky

Wheat, who lived across the street from Katie’s Lounge. He informed police that Ray Don, along

with Marcus and Mosley, had spoken with him on July 21 outside his residence. Ray Don, who was

in possession of a pistol, told the informer that there was some money in the area and that he had to

have it. This party of three left the Wheat property, and returned 30 minutes later with a tackle box,

requesting a ride. Ricky Wheat stated that Ray Don told him he had shot someone over at Katie’s

Lounge. Another tip was from Christopher “Kaboo” Smith (“Kaboo”), Mosley’s best friend and

Marcus’s cousin. Kaboo told police that on the evening of the murders he saw Mosley with a gun,

which Mosley claimed to have gotten from Stanley Rossum, a neighbor. Mosley left, but returned

with Marcus and Ray Don. Ray Don stated that they had killed people in Katie’s Lounge. After

Kaboo expressed his disbelief, Mosley responded, “We did it.” Then Mosley divided the contents

of the tackle box evenly between Kaboo, Ray Don, and Marcus, each party receiving $77.00.

On July 22, 1994, after pulling over Mosley to arrest Marcus, the police asked Mosley if he

would voluntarily go to the police station to answer some questions. Mosley agreed.

At first, Mosley averred that he had nothing to do with the robbery and murders at Katie’s

Lounge. After the police received information from Marcus, however, they arrested Mosley. At this

point, Mosley made a second oral statement and admitted to shooting two of the people at Katie’s

Lounge. Mosley requested and received the presence of his grandparents before continuing further.

In the third statement, which was transcribed, Mosley insisted that the offense had been planned in

advance, but that once it was time to go through with the plan, he did not want to participate.

Although he admitted to being present at Katie’s Lounge when the shootings occurred, he denied

3
shooting anyone. He also informed the police that he had been wearing a ski mask or toboggan

during the offense and had thrown it in the woods near the Wheat residence.

Based upon information in the third statement, law enforcement officers requested Mosley

accompany them in search of the discarded hat. A glove was found near the toboggan, and Mosley

then admitted to wearing a glove during the robbery. Law enforcement agents explained to Mosley

that they could tell by the residue on the glove whether the person wearing it had fired a gun. They

asked if Mosley had anything to add to his previous statements.

At this time Mosley made another oral statement, indicating that he had shot four people at

Katie’s Lounge and Ray Do n had shot the woman behind the bar. After a period of rest, Mosley

made his final statement to police.

Ray Don went in first and told everybody to get down. They were still sitting up in
the chairs and I heard a shot. The people looked at me and it scared me and I shot
a lady at the table. I was about five feet from her and I shot her in the back of the
head. Another lady got up and ran. Ray Don told me to kill them. Ray Don told me
to shoot them or get shot. When I looked at Ray Don, he was pointing the gun at me.
He said this after I had already shot the first lady. Then I shot a man who was sitting
by the first lady I shot. I don’t know where I shot the man at. I was about the same
distance I was when I shot the lady. By this time the lady that ran had gotten under
the pool table. I told the lady to get out from under the pool table. Ray Don said,
“Fuck that, shoot her.” Then I shot the lady under the pool table twice in the head.
I bent down next to the pool table and shot her twice. Then Ray Don was behind the
bar and had shot behind there. I came from around the pool table and another man
was by the bar. The man got up and was coming towards me with a pool stick. Ray
Don said, “Shoot him boy, sho ot him.” I just turned my head away and shot three
times. The man fell after I had shot three times. Ray Don had gotten the money in
a big box from behind the bar. The box was dark colored. Then we ran out and ran
across the street. Ray Don started hollering and asking me where Marcus was at. I
kept telling him I didn’t know. Then we saw Marcus come up behind us after we
crossed Highway 136. Ray Don asked Marcus where he had been and Marcus told
him he had been trying to break in a car. Marcus went into Katie’s when Ray Don
and I went in. After I shot the first lady, I looked around and Marcus had left Katie’s.

Mosley was indicted for the capital murder of Patricia Colter on August 4, 1994.

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 During his trial, Mosley was represented by Gary Bledsoe (“Bledsoe”), Cynthia Orr (“Orr”),

and Gerald Goldstein (“Goldstein”). The jury returned a guilty verdict Saturday, October 28, 1995.

The penalty phase of the trial began the same day; the jury returned a death sentence on November

3, 1995.

Bledsoe and Orr represented Mosley on direct appeal to the Texas Court of Criminal Appeals.

That court affirmed his conviction and sentence. Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App.

1998). The Supreme Court of the United States denied Mosley’s petition for a writ of certiorari on

April 19, 1999. Mosley v. Texas, 526 U.S. 1070 (1999).

Before the affirmation of his conviction and sentence on direct appeal, Mosley commenced

his state post-conviction action on December 14, 1997. Although the trial court recommended that

he be granted relief on his ineffective assistance of counsel (“IAC”) claim, the Texas Court of

Criminal Appeals denied Mosley’s application for state habeas relief. Mosley’s petition for writ of

certiorari as to his state habeas claims was denied by the Supreme Court on January 10, 2000.

Mosley v. Texas, 528 U.S. 1083 (2000).

Mosley’s present writ of habeas corpus was filed on June 30, 2000 in the district court for the

Eastern District of Texas. Although the district court denied habeas relief, it granted a certificate of

appealability on the three claims now before this Court.

II. STANDARD OF REVIEW

Because Mosley filed his habeas petition after the enactment of the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254 (2000), this statutory scheme

governs our review. Penry v. Johnson, 532 U.S. 782, 792 (2001).

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 AEDPA dictates that this Court will not overturn a state court’s adjudication of a prisoner’s

claims unless the state court’s decision was either “contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court of the United

States, “ or “resulted 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) (2000). “A state

court’s decision is deemed contrary to clearly established federal law if it reaches a legal conclusion

in direct conflict with a prior decision of the Supreme Court or if it reaches a different conclusion than

the Supreme Court based on materially indistinguishable facts.” Pondexter v. Dretke, 346 F.3d 142,

145-46 (5th Cir. 2003). We use the same standard as the district court in reviewing the state habeas

court’s decision. Young v. Dretke, 356 F.3d 616, 624 (5th Cir. 2004). We review legal

determinations de novo, and the district court’s findings of fact for clear error. Busby v. Dretke, 359

F.3d 708, 713 (5th Cir. 2004).

III. DISCUSSION

A. Ineffective Assistance of Counsel on Appeal

The first issue before us is whether the state court’s determination that prejudice could not

be presumed from the filing of Mosley’s appellate brief is contrary to, or an unreasonable application

of, clearly established federal law. Mosley contends that because his brief on direct appeal was filed

late, and because the brief itself was “woefully inadequate,” prejudice should have been presumed.

The Government counters that Mosley failed to show prejudice, much less that prejudice should be

presumed.

Relief based upon an IAC claim, under the standard enunciated in Strickland v. Washington,

466 U.S. 668 (1984), may only be granted if the petitioner demonstrates both that counsel was

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deficient and that the deficiency prejudiced the petitioner’s defense. 466 U.S. at 687-88, 690. In

extremely rare circumstances, however, prejudice may be presumed from the delinquent performance

of counsel. This presumption of prejudice may occur if there is a complete denial of counsel, or if

“counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.” United

States v. Cronic, 466 U.S. 648, 659 (1984). Mosley does not contend that counsel was not present

or available during direct appeal; we therefore assume that he contends that the prosecution’s case

was not tested because of the sub-standard briefing on appeal.

Uncontested evidence reveals that the brief submitted on direct appeal2 was a 205 page tome,

raising 1733 points of error. This brief was filed after several extensions of time, and was nonetheless

ultimately filed late. The brief was never proofread in its entirety. On direct appeal, the court

addressed roughly 20 of the 173 points of error. Several sets of objections were repeated later in the

brief, while others were not addressed because they were inadequately briefed. There was testimony

suggesting that the brief was prepared after the expiry of the last filing deadline.

Despite these inadequacies, it is clear from the thoughtful opinion from the Court of Criminal

Appeals that Mosley’s appellate counsel did subject the prosecution’s case to meaningful testing.

This is unlike the brief in Passamore v. Estelle, 607 F.2d 662, 663-64 (5th Cir. 1979), which was a

presumptively-prejudicial one page anomaly. In the case at bar counsel provided adequate grounds

for appeal for the court to review, and, ultimately, to deny. That the brief contained assignments of

2
Mosley makes much of the briefing deficiencies of counsel at trial; these deficiencies,
however, are of no moment to the present petition, because he failed to apply for and receive a
COA on this issue.
3
The Court of Criminal Appeals noted that although there were apparently supposed to be
176 points of error, there were no points of error numbered 75-77, so in reality there were only
173 points of error.

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error above (or below) and beyond those addressed by the court does not make the brief

presumptively prejudicial. We therefore decline to grant habeas relief on this claim.

B. Due Process

Mosley next contends that the state court’s ruling that the trial court’s refusal to allow counsel

additional time to prepare for the punishment phase was not a violation of his due process rights is

contrary to, or an unreasonable application of, clearly established federal law. Mosley maintains that

his due process rights were violated when the trial court forced his attorney to begin the penalty phase

on Saturday after the jury returned a verdict in the guilt phase. As was his stance with respect to his

IAC claim, Mosley again claims that prejudice can be presumed under Cronic.

The jury returned a guilty verdict on Saturday, October 28, 1997. The Government indicated

that it had its witnesses on 30 minute call to proceed with the penalty phase. Orr objected, indicating

to the court that she understood that even if the guilty verdict were returned on Saturday, the penalty

phase would not begin until Monday, October 30, 1997. Because this was her understanding, Orr

had failed to prepare any strategy overall, had failed to prepare a strategy for cross-examining

witnesses, and had failed to have defense witnesses on call. It was later revealed that Goldstein was

scheduled to do the penalty phase, and that Orr had never intended to perform these duties.

Based upon the preferences of the jury, the court refused Orr’s request for a continuance until

Monday. Instead, Orr was given two hours to prepare for the penalty phase of the trial.

In his brief to this Court, Mosley offers no cases to support a due process claim based upon

a trial court’s ruling that the penalty phase would commence immediately after the guilt phase of a

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trial. Because the due process claim has not been briefed to this Court, we decline to examine it. See

Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993) (finding that a defendant abandons arguments

by failing to argue them in the body of his brief).

Although Mosley claims this portion of his brief amounts to a due process challenge, the cases

he cites in support of his contention are for Sixth Amendment deprivation of effective assistance of

counsel. Out of an abundance of caution, we will address his claims with respect to the sentencing

phase of the trial as IAC claims. In so doing, we cannot find this lack of preparation for one portion

of his trial deficient. As the Supreme Court noted in Morris v. Slappy, 461 U.S. 1, 11 (1983) “[n]ot

every restriction on counsel’s time or opportunity to investigate or consult with his client or otherwise

to prepare for trial violates a defendant’s Sixth Amendment right to counsel. . . . [O]nly an

unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay

violates the right to the assistance of counsel.” (emphasis added) (citations and quotations omitted).

In Slappy, the Supreme Court found no violation of the defendant’s right to counsel despite the fact

that replacement counsel had been appointed six days prior to the beginning of trial. The

circumstances here are even less problematic, primarily because Orr was chief counsel throughout

the guilt phase of the trial. She was intimately acquainted with Mosley and the facts of the case. She

had heard all of the testimony and had an opportunity to observe the jury. That Orr had been warned

that the penalty phase would begin after the resolution of the guilt phase, and chose to ignore that

warning, does not rise to the level of ineffective assistance of counsel.

C. Equal Protection

The final, and most contentious, issue before us is whether the state court’s determination that

there was no equal protection violation in the selection of the grand jury foreperson is contrary to,

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or an unreasonable application of, clearly established federal law. Mosley asserts that the Court of

Criminal Appeals’s application of the due process, instead of equal protection test, violates Supreme

Court precedent. The Government insists that the use of the due process test was not in violation of

clearly established Supreme Court precedent, even though the state court’s methodology was

contrary to Fifth Circuit precedent.

At the heart of the matter are two Supreme Court cases: Rose v. Mitchell, 443 U.S. 545

(1979), and Hobby v. United States, 468 U.S. 339 (1984). Rose addressed a possible equal

protection violation in the selection of grand jury forepersons. Hobby, on the other hand, addressed

a possible due process violation in the selection of grand jury forepersons.

(1) Rose v. Mitchell and the Equal Protection Clause

In Rose, four black men indicted for capital murder filed pleas in abatement, seeking dismissal

of their indictments “on the grounds that the grand jury array, and the foreman, had been selected

in a racially discriminatory fashion.” 443 U.S. at 548 (emphasis added). In Tennessee, a grand jury

consisted of 12 members, with the foreperson making up the thirteenth. The 12 grand jury members

were selected by a key man system, in which three commissioners compiled a list of qualified potential

jurors from which the grand jurors were selected at random. The foreperson, on the other hand, was

appointed by the judge of the court for a two year term. Id. at n.2. The pleas in abatement were

denied, and the four were found guilty of first-degree murder. Id. at 549. On direct appeal, the

convictions were affirmed. Id. After post-conviction proceedings, the Supreme Court granted

certiorari to consider the equal protection claim with respect to the selection of the foreperson of the

grand jury. Id. at 550.

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 The court first determined that racial discrimination did pose a potential for harm, even in the

context of the selection of grand jury forepersons. 443 U.S. at 554. It then reviewed the evils sought

to be eradicated by the Equal Protection Clause, observing that “[d]iscrimination on the basis of race,

odious in all aspects, is especially pernicious in the administration of justice. Selection of members

of a grand jury because they are of one race and not another destroys the appearance of justice and

thereby casts doubt on the integrity of the judicial process.” Id. at 555-56. It is for this reason that

the Supreme Court “recognized that a criminal defendant’s right to equal protection of the laws 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.

The Supreme Court then addressed concerns expressed in the concurrence that the remedy

necessary for discrimination in the selection of the grand jury — quashing the indictment — was too

drastic. The Court noted that even if the original indictment were quashed, the defendant could still

be re-indicted, and re-convicted, with the same proof used at the first trial, so long as the procedure

used “conforms to constitutional requirements.” 443 U.S. at 552 (cit ations omitted). While

recognizing this as a cost, the Court nonetheless insisted this was the remedy necessary if

discrimination were found in the selection of the grand jury or the grand jury foreperson. Id. at 551.

Reviewing the facts of the case before it, the Court reminded readers that habeas relief was

only available if discrimination were proved. “[I]n order to show that an equal protection violation

has occurred in the context of grand jury foreman selection, the defendant must show that the

procedure employed resulted in substantial underrepresentation of his race or of the identifiable group

to which he belongs.” 443 U.S. at 565 (citations omitted). A prima facie case of discrimination may

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be established only if three requirements are met: (1) the gro up is a recognizable, distinct class,

singled out for different treatment; (2) the degree of underrepresentation is calculable by comparing

the proportion of the group in the total population to those called to act as grand jury forepersons

over “a significant period of time”; (3) the selection procedure is susceptible of abuse. Id. If the

defendant makes such a prima facie showing, the burden shifts to the state to rebut that showing.

The Supreme Court determined that, although arguendo the first and third requirements had

been met, the degree of underrepresentation had not been established. 443 U.S. at 566. The

defendants based their case for underrepresentation solely on the testimony of three former grand jury

foremen from the county in question. The Court concluded that the testimony did not cover any

significant period of time and failed to include any numerical data on the total number of grand jury

foreperso ns appo inted during the critical period of time, and thus that the defendants failed to

establish a prima facie case of discrimination. Id. at 570-71.

(2) Hobby v. United States and the Due Process Clause

The Supreme Court in Hobby v. United States, 468 U.S. 339 (1948), faced a similar set of

facts but wholly different constitutional claims than it did in Rose. Hobby, a white male defendant,

alleged that discrimination against blacks and women in the selection of federal grand jury forepersons

resulted in a violation of his right to due process under the Fifth Amendment. 468 U.S. at 341-42.

Because of this discrimination, Hobby asserted, the indictment against him should have been quashed.

Id. at 343.

The Supreme Court disagreed. It first observed that, while due process rights were implicated

in the discriminatory selection of a grand jury, no such rights were implicated by the discriminatory

selection of a grand jury foreperson. “Unlike the grand jury itself, the office of grand jury foreman

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is not a creature of the Constitution; instead, the post of foreman was originally instituted by statute

for the convenience of the court.” 468 U.S. at 344. The Court found that Hobby’s due process

rights were not impinged upon by the selection of a grand jury foreperson in a discriminatory fashion.

The role of the foreperson in a federal grand jury, the Court observed, is purely ministerial. Given

the ministerial purpose of the position, “discrimination in the selection of one person from among the

members of a properly constituted grand jury can have little, if indeed any, appreciable effect upon

the defendant’s due process right to fundamental fairness.” Id. at 345 (emphasis added).

Hobby argued that Rose compelled a different result and that the Supreme Court should set

aside his indictment. 468 U.S. at 346. The Court disagreed, finding Hobby’s reliance on Rose

misplaced. First the Court noted that the defendants in Rose were of the same race as those excluded

from the jury.4 The Court also observed that the state of Tennessee used a unique method to select

the jury foreperson in Rose. In the federal system, under which Hobby was indicted, the jury

foreperson was selected from among the twelve grand jurors, while in Rose the twelve grand jurors

were selected, and then the judge selected a thirteenth person as the jury foreperson, effectively

putting on the grand jury a “surrogate of the judge.” Id. at 348. Finally, the Court distinguished Rose

because of the role the foreperson was to play on the Tennessee grand jury as opposed to the federal

grand jury. In Tennessee, the foreperson had investigative and administrative power, while in the

federal system, the role was ministerial in nature. Id. at 348-49. The Hobby Court concluded that

Rose “assumed . . . that discrimination with regard to the foreman’s selection would require the

4
After the Supreme Court’s decision in Campbell v. Louisiana, 523 U.S. 392 (1998),
which extended standing to white criminal defendants raising equal protection and due process
objections to discrimination against black persons in grand jury selection, this point of distinction
is no longer relevant.

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setting aside of a subsequent conviction,” but that “[n]o such assumption is appropriate here,

however, in the very different context of a due process challenge by a white male to the selection of

foremen of federal grand juries.” Id. at 349 (emphasis added).

(3) Mosley’s Equal Protection Claim under Hobby

When Mosley brought his equal protection claim, the Texas Court of Criminal Appeals on

direct appeal concluded that Hobby, and not Rose, controlled. It determined that, although Rose was

directed at an equal protection claim, as was Mosley’s claim, the ministerial nature of the Texas state

grand jury foreperson, along with the method of foreperson selection, made the case more closely

resemble the facts outlined in Hobby. Mosley v. State, 983 S.W.2d 249, 256 (Tex. Crim. App. 1998).

In dismissing Mosley’s appeal on this issue, the court intoned that Mosley’s

own equal protection interests are satisfied by the impartial selection of the members
of the grand jury. That selection ensures that the decision-making process is not
tainted by racial discrimination. Because the foreman’s additional duties are merely
ministerial, they do not impact an appellant’s right to a grand jury determination of
probable cause to go forward with a prosecution.

Id. Despite federal cases to the contrary, the Texas Court of Criminal Appeals followed its precedent

in Rousseau v. State, 855 S.W.2d 666, 687-688 (Tex. Crim. App. 1993), and upheld the

constitutionality of Mosley’s indictment under Hobby.

The decision of the Texas Court of Criminal Appeals to apply Hobby to the case at bar flatly

contradicts the clearly established federal law of Rose. The distinction between Hobby and Rose lies

not with the role of the foreperson, but rather with the nature of the alleged injury. Johnson v.

Puckett, 929 F.2d 1067, 1071 (5th Cir. 1991). The Texas court mistakenly assumed that only

Mosley’s equal protection interests were implicated by the selection of a grand jury foreperson. This

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is simply not the case. When Mosley makes an equal protection challenge, he also represents the

interests of those who are not selected as grand jury forepersons. While these “non-selects” may have

no due process interests in being a grand jury foreperson, they undoubtedly have an equal protection

interest in performing the duties of foreperson. Id. “This [equal protection] injury to society as a

whole, as well as the stigmatization and prejudice directed against a distinct group, exists regardless

of the extent of the grand jury foreman’s authority.” Id.

The Supreme Court in Rose unequivocally stated that “in order to show that an equal

protection violation has occurred in the context of grand jury foreman selection, the defendant must

show that the procedure employed resulted in substantial underrerpresentation of his race or of the

identifiable group to which he belongs.” 443 U.S. 545, 565 (emphasis added). Nothing in Hobby

purported to address an alleged equal protection violation or to change the test for equal protection

violations as elucidated in Rose. Rose provides the three-step test for evaluating an equal protection

claim; the Texas state court simply failed to apply this standard. The decision reached by the Texas

state court is in direct conflict with Rose, and therefore Mosley is entitled to habeas relief, in the form

of having the correct test applied.

(4) Mosley’s Equal Protection Claim under Rose

Applying Rose to the facts at hand, Mosley has failed to make a prima facie showing of

discrimination. There is no question that Mosley, as a black man, is a member of a recognizable

group.

Mosley also satisfies the third prong of the Rose test, which inquires as to whether the process

for selecting grand jury forepersons is susceptible to abuse. Potential members of grand juries in

Gregg County are selected either using the grand jury commissioner system or a jury wheel system.

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Under Texas law, “[w]hen the grand jury is completed, the court shall appoint one of the number

foreman.” TEX. CODE CRIM. PROC. ANN. art. 19.34 (1977). This unfettered discretion permits the

trial court to select the foreperson by simply looking at the grand jury members. “In cases in which

the jury commissioners have had access to the racial identity of potential grand jurors while engaged

in the selection process, the Supreme Court has repeatedly found that the procedure constituted a

system impermissibly susceptible to abuse and racial discrimination.” Rideau, 237 F.3d at 488. A

judge in Texas has access to the race of potential grand jury forepersons as the entire grand jury array

is visible to him. “Obviously that practice makes it easier for those to discriminate who are of a mind

to discriminate.” Alexander v. Louisiana, 405 U.S. 625, 631 (1972) (citations omitted).

Not only is this method of selecting a foreman opaque, but the Government effectively

established by its own testimony the susceptibility of the process to abuse. The prosecuting attorney

for Mosley’s case, Richard Dunn (“Dunn”) testified at the hearing to quash the indictment that, in his

years in the District Attorney’s office, from 1982 to the date of the hearing, he had noticed a pattern

in the selection of grand jury forepersons. He testified:

[In] ‘87 . . . it began to be noticeable to me, perhaps even a few years later on, that
there were not any African-Americans from our community who had actually presided
and been Foreman of the Grand Jury. Since it was the law, and we submit it still is,
that when the job is ministerial in nature only, the race of the Foreman doesn’t make
that much difference so long as the overall process is not under-representative which
we did not believe it to be. However, there came a time –- and that time — and I
wish I could give everybody a date on this with more precision — but I can tell
everyone here that that happened on — what I’m about to describe happened some
time in mid to late 1991. I talked to Mr. Brabham [the district attorney] and related
my concerns to him that, even from the standpoint of appearance and from no other
standpoint, and fundamentally dealing with respect to the process, setting aside what
some Appellate Court might or might not say, that I was beginning to be concerned
that we did not have any African-American Grand Jury Foreman — or that we had
not. I recalled one — I happened to recall one from 1983 who had been Foreman.
But from 1984, ‘85, ‘86 — particularly beginning with ‘85, I was aware that there had
not been a Grand Jury Foreman who was African-American. Based on that — as I

16
 said approximately that time — we’ll say the middle of 1991, I approached each of
our District Judges, Judge Khoury [presiding over the Mosley trial] and Judge Starr,
and mentioned to them that I saw this as something they just needed to be aware of.

There was further testimony that, from January 1991, the time at which Dunn alerted the judges of

Gregg County of the trend he had noticed, until the time of Mosley’s trial, 20.8% of all grand jury

forepersons were black.

The most pressing concern is whether Mosley presented a degree of underrepresentation of

blacks as grand jury forepersons over a significant period of time, and thereby satisfied the second

prong of Rose. Reviewing the voluminous record on the matter, we conclude that he has not

adequately established underrepresentation. At a hearing on Mosley’s motion to quash his

indictment, the trial court was presented with the following uncontroverted testimony: according to

the 1990 census, 17.3% of the adult voting age population of Gregg County was black; from the

beginning of 1984 through the end of 1994, sixty-three grand jury forepersons were selected, only

five of whom, or 7.9%, were black. The absolute difference between the percentage of voting age

blacks in Gregg County and the percentage of blacks chosen as grand jury forepersons is 9.4%.5

It is true that the Supreme Court “has never announced mathematical standards for the

demonstration of systematic exclusion of blacks.” Rideau v. Whitley, 237 F.3d 472, 487 (5th Cir.

2000) (citations and internal quotations omitted). This Court has, however, recognized that absolute

disparities of 19.7%, 14.7% and 13.5% are sufficient to satisfy this prong of the Rose test. Id. at 486

(citing Sims v. Georgia, 389 U.S. 404 (1967) and Jones v. Georgia, 389 U.S. 24 (1967)). This Court

5
When the group in question makes up a sufficiently large proportion of the overall
population, absolute disparity is the only disparity used by this Court to determine
underrepresentation. We leave open the possibility that if the distinctive group at issue makes up
less than 10% of the population, comparative disparity may be used. United States v. Butler, 615
F.2d 685, 686 (5th Cir. 1980), denial of petition for rehearing en banc.

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has also recognized that absolute disparities of 10% or less are insufficient to establish statistical

discrepancies worthy of relief. See United States v. Maskeny, 609 F.2d 183, 190 (5th Cir. 1980)

(finding that the disparity offered by the defendant was less than 10% and therefore did “not make

out a constitutional violation”).6 We find the reasoning employed in Maskeny persuasive, and again

do not believe that the Supreme Court intended the amount of disparity necessary to prove purposeful

discrimination in the jury venire in violation of the Equal Protection Clause to be different from the

amount of disparity necessary to make a prima facie case under Rose. In the present case, we find

an absolute disparity of 9.4% is insufficient to make out a prima facie equal protection violation under

Rose.

IV. CONCLUSION

For the foregoing reasons, the judgment of the district court is AFFIRMED.

6
In Maskeny, this Court recognized that while the 10% figure it was using came from an
equal protection case where purposeful discrimination needed to be shown, Swain v. Alabama,
380 U.S. 202 (1965) overruled in part by Batson v. Kentucky, 476 U.S. 79 (1986), nothing in
Supreme Court jurisprudence suggested that the necessary amount of disparity would differ
between an equal protection claim and a Sixth Amendment cross-section. 609 F.2d 183, 190
(1980).

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