IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30032
CHRISTOPHER GUILLORY,
Petitioner - Appellant,
versus
BURL CAIN, Warden,
Louisiana State Penitentiary,
Respondent - Appellee.
Appeal from the United States District Court
For the Western District of Louisiana
August 26, 2002
Before HIGGINBOTHAM, JONES, and BARKSDALE, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Christopher Guillory was convicted in Louisiana of three
counts of first degree murder. In this federal habeas petition he
attacks the process for selecting the foreperson of the grand jury
that indicted him in Calcasieu Parish. The system of selection
that Guillory complains of here was at issue in Campbell v.
Louisiana1 in 1998, discontinued the next year by an amendment to
1
523 U.S. 393 (1998).
the state criminal code and condemned in State of Louisiana v.
Ricky Langley,2 in reliance upon Campbell.
The contention is that before the change in the criminal code,
the judge presiding over the grand jury selected a foreperson from
the general venire summoned for grand jury service and not from
those randomly chosen for service from that venire. The argument
continues that this unguided discretion, left to presiding judges,
formerly white males, had produced a historical pattern of
selecting white males over blacks and females sufficient to create
a prima facie case of both racial and gender-based discrimination.
Both the state courts of Louisiana and the federal district
court refused Guillory’s request for relief. The United States
District Court concluded after conducting an evidentiary hearing
that the state had overcome Guillory’s prima facie case of
discriminatory selection with the testimony of the state trial
judge who selected the foreperson in his case. It then issued a
certificate of appealibility limited to “whether the indictment
should have been quashed due to discrimination in the selection of
the Grand Jury foreman”.
I
Guillory was indicted on May 6, 1993, on three counts of
murder and found guilty by a jury on May 10, 1996. He was
sentenced to three life terms. The Third Circuit Court of Appeals
2
813 So.2d 356 (La. 2002).
2
affirmed his conviction and sentence on March 11, 1998, and the
Supreme Court of Louisiana denied certiorari on October 9, 1998, in
an unpublished opinion. On direct appeal Guillory raised 20 points
of error, including in one assignment that the indictment should
have been quashed because there was racial and sexual
discrimination in the selection of the foreperson of the grand jury
in Calcasieu Parish. The state court of appeals rejected this
contention, finding that Guillory had failed to make a prima facie
case. It faulted the absence of a statistical comparison of the
race and sex of the selected foreperson with the venire from which
they were drawn, applying State v. Young’s3 teaching that drawing
a proportion with general population figures was not meaningful.
Guillory then filed on October 8, 1999, a federal petition for
writ of habeas corpus under 28 U.S.C. 2254, the petition now before
us. He asserted eleven claims, but only the claim that the
selection of the foreperson was tainted by discrimination remains.
II
A federal magistrate judge, after reviewing affidavits
submitted by the parties at his direction, conducted an evidentiary
hearing. Guillory’s counsel had developed an extensive study of
the patterns of selection of forepersons of grand juries in
Calcasieu Parish, as counsel in the Langley case. By agreement of
counsel, this study, as well as the testimony of Dr. Joel Devine
3
569 So. 2d 570 (La. App. 1 Cir. 1990), writ denied, 575 So.2d 386 (La. 1991).
3
who testified in Langley as an expert in statistics, was admitted
before the magistrate. The state relied upon the testimony of
Judge Wilford Carter, the presiding judge who selected the
foreperson, and Dr. Nola McDaniel, the state’s expert in
statistics.
The state did not contend that census figures could not serve
as a base in establishing a prima facie case of discrimination.
Rather, its strategy was to accept that a prima facie case was
established by the same record developed in Langley and then carry
the burden of responding to it.4 In short, events in this case
overran the limited circumstances under which a federal court can
grant an evidentiary hearing in federal habeas review of a state
conviction.5 Our question is then whether the finding of no
4
This was no oversight or abandonment of the state trial judge in this case. It was rather
a shift responsive to Campbell v. Louisiana, in which the Supreme Court found that a white
defendant had standing to complain of the selection process in Calsiesu Parish. Justice Kennedy’s
opinion for the court shed light on the proof required, as well as the issue of standing. It bears
mention that while the Supreme Court of Louisiana had disagreed with the trial court’s conclusion
in Langley that discrimination had been shown, it granted rehearing in November of 1998 and
returned the case to the state trial court to conduct an evidentiary hearing to determine if there
was intentional discrimination in the selection of grand jury foreperson in Calsiesu Parish. On
remand, discrimination was found and the Supreme Court of Louisiana has since affirmed that
decision. Supra at n. 2.
5
Under AEDPA, a determination of a factual issue made by a state court is presumed to
be correct, unless rebutted by clear and convincing evidence. See 28 U.S.C. § 2254 (e)(1).
Requests for an evidentiary hearing are restricted to the narrow exceptions of 28 U.S.C. § 2254
(e)(2), which permit a petitioner to request an evidentiary hearing only where a) the claim relied
on a new rule of constitutional law or a factual predicate that could not have been previously
discovered through the exercise of due diligence and b) the facts underlying the claim would be
sufficient to establish by clear and convincing evidence that but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the underlying offense. See 28
4
intentional discrimination by the magistrate judge was clearly
erroneous.
III
The state first contends that the historical record of the
appointing process is not relevant when the trial judge who made
the appointment at issue explains why the selection was made. We
agree in part. But the argument misses the point that it was the
practice of requiring the presiding judge to select a foreperson
from the venire and not from randomly selected members of the grand
jury that opened the door to discrimination. And a simple denial
that race or sex had nothing to do with a selection that followed
this selection practice, in the face of the statistically
established prima facie case it produced, is not adequate.6 This
does not mean that the selecting judge cannot offer objective and
nondiscriminatory reasons for the selection which, if found to be
credible by the trier of fact, will defeat the prima facie case.
But that very prima facie case places the burden of offering such
explanations upon the official.
The state’s related argument is that since Judge Carter was
black, a new judge making his first selection, and at the time of
the federal hearing had only made three selections, there was an
U.S.C. § 2254 (e)(2). Given the state’s tactical decisions, the magistrate judge did not address
these provisions.
6
Alexander v. Louisiana, 405 U.S. 625, 632 (1972).
5
inadequate basis for inferring discrimination. This ignores the
force of the prima facie case created by the unchallenged evidence
of the historical record that this system produced: the burden is
now upon the state to offer nondiscriminatory reasons. Judge
Carter’s short tenure as a judge at the time of the now-contested
selection, his first, and a total of only three selections will not
alone support an inference of intentional discrimination. That is
plainly so, as Dr. McDaniel observed, but that reality also cuts
against the state’s efforts to draw upon it in defense. So we
return to our required inquiry of whether the state has offered
credited evidence of nondiscriminatory purpose.
IV
We review findings of fact by the standard of clearly
erroneous and questions of law de novo. The magistrate judge made
findings regarding the question that controls this case, whether
there was intentional discrimination. This finding of fact in the
context of this case a fortiori overcomes the prima facie case.
There is no legal question here regarding the structure or
mechanics of the prima facie case and the state’s burden of proof.
We have only a pure question of fact, and we review only for clear
error.7 We start with the findings of fact that underpin the
finding of no intentional discrimination.
7
Pullman-Standard v. Swint, 456 U.S. 273, 287-88 (1982).
6
Judge Carter testified that his primary aim in selecting a
foreperson was to choose a person “who would be fair and
independent” and “not necessarily go along” with the government.
He denied that race or gender was a factor in his selection of
Edwin Eisen, a white male administrator at McNeese State
University, to be foreperson of the grand jury that indicted
Guillory. He explained that as an alumnus of the University, he
knew Eisen and was familiar with his education and reputation for
not being “a go along person”. This, he said, was important
because he wanted a person who would stand up to the district
attorney. At the same time, Judge Carter made plain that “to some
extent” women and minorities should be given some preference, given
their historic under-representation.
If this were the sum of Judge Carter’s testimony, it would
offer strong support to the finding by the magistrate judge of no
discrimination. The complication in this otherwise straightforward
case rises from additional comments he made, largely volunteered.
On the matter of race, Judge Carter expressed his concern that
blacks would tend to go along with the district attorney. On the
matter of gender, while expressing no reservations in selecting a
female as foreperson, he observed that women made better
secretaries than men because they were more careful with detail;
that he had never had a male secretary.
These and other stereotypical observations cut against the
magistrate’s finding of no discrimination and give us pause. They
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may well be read to confess forms of both racial and gender bias.
Accepting them as such, the question remains, however, whether they
animated Judge Carter’s decision to select Eisen. The magistrate
judge, with the benefit of hearing and observing this witness, an
experienced lawyer and sitting judge, concluded that the selection
of Eisen, a person known by Judge Carter to possess traits that are
plainly desirable, was not the product of intentional
discrimination. Ultimately, we are persuaded that the magistrate’s
findings that Judge Carter selected Eisen because of his education
and reputation and not because of race or gender are not clearly
erroneous.
The presence of identified objective criteria known in advance
to the appointing judges would have mitigated the difficulties of
the selection system then in place. The process was flawed, and
that seeded the statistical pattern underlying the prima facie
case. It does not follow however that every selection of a grand
jury foreperson in Calsiesu Parish before the criminal code was
amended was the product of discrimination. Not only was Judge
Carter’s selection of Eisen supported by nondiscriminatory reasons
which he articulated, there is no evidence that any other member of
the venire was better qualified. Of course, without more, there
would remain the inference that black or female candidates faced
the headwind of Judge Carter’s bias and were passed over; that the
absence of a selection process that considered every member of the
venire by objective standards favored white males.
8
It is the case that the flawed system adversely impacted
blacks and females. That is the prima facie case. But that
doesn’t answer the ultimate question of whether this selection was
the product of intentional discrimination. The selection of blacks
by Judge Carter in the two selections that followed the appointment
at issue, while offering meager statistical fodder, is direct
evidence that any assertion that Judge Carter’s expressed concern
that blacks would not be sufficiently independent of the district
attorney did not find expression in his appointments. Taken
through the venire list by Guillory’s counsel, Judge Carter
identified two black males he knew and thought qualified, but
explained that both were in law enforcement and in his view should
not serve as a foreperson. He did not pass over them because he
thought blacks would not be sufficiently independent of the
prosecutor. As for gender discrimination, Judge Carter testified
that he would have been “glad to get a woman he was as comfortable
with as Eisen,” but did not know one on the venire that was better
qualified or that he knew as well. Fairly read, his statement
regarding his being “comfortable with” his appointment speaks to
relative qualifications–education and leadership experience.
Critically, these circumstances and reasons for selection were
credited by the trier of fact. There is record evidence to support
them, and we must then affirm the ultimate legal conclusion that in
this case the flawed system did not produce a selection that was
the product of intentional discrimination.
9
To accept the magistrate’s findings of fact while rejecting
the magistrate’s conclusion of law would translate to a conclusion
that the process of selection itself compelled a finding of
intentional discrimination. This confuses the prima facie case
with the elements of an entire case.
V
Nor is our decision in Guice v. Fortenberry, 722 F.2d 276
(1984), to the contrary. There the same selection process was at
issue, and the majority of the panel held that the denial of
discrimination by the presiding judge was insufficient to overcome
the petitioner’s prima facie case. That proof included evidence
that no black person had ever served as the foreperson of a grand
jury in the parish. The judge making the selection at issue there
was a white male and had served as judge since October of 1963. He
had selected twenty eight of the thirty two forepersons selected
during the time from his appointment to the impaneling of the grand
jury that indicted the petitioners Guice and Claxton. All were
white. The panel stressed the absence of objective selection
criteria and viewed his testimony “with a great deal of judicial
scrutiny.” It found clear error in crediting his testimony. Given
his past record, his explanation for his selection of a local
banker was found to be business as usual.
We do not read Guice to hold that the sole means of rebutting
a prima facie case is proof that racially neutral procedures have
10
been independently adopted. That may well be the case when the
only rebuttal of the prima facie case is a denial from the official
whose decisions created it. Here we have a new judge who was
selecting a foreperson for the first time. He had not been a part
of the regime that produced the monochromatic all white male result
and the prima facie case. Indeed, his later selections were both
black. The prima facie case was comprised of decisions made before
he became a judge, and he articulated criteria that went beyond not
knowing only members of the same race and sex–criteria that led him
to select black forepersons for other grand juries.
It is true that Judge Carter’s testimony read in transcript is
at times rambling and convoluted, but that is common to direct
transcription of oral testimony. As we observed, his studiously
open and politically incorrect phrasings leave his testimony
vulnerable to being read as proof that he harbored both racial and
sexist views. And a forceful argument is made that they are. The
argument goes to the question of whether the reasons he gave for
his decision were to be believed. If credited, they are adequate
to rebut the prima facie case. They need not have been credited,
but they were. We are persuaded that this was the call of the
magistrate judge and we cannot say that it was clearly erroneous,
however we think we may have viewed it, if we had been presiding at
the evidentiary hearing.
AFFIRMED.
11