Gibson v. Blair, 72-1971 Summary Calendar.

• Decision Date: 26 September 1972
• Docket Number: No. 72-1971 Summary Calendar.,72-1971 Summary Calendar.
• Parties: Ronald GIBSON, Petitioner-Appellant, v. Willie J. BLAIR, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

467 F.2d 842 (1972)

Ronald GIBSON, Petitioner-Appellant, v. Willie J. BLAIR, Respondent-Appellee.

No. 72-1971 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

September 26, 1972.

Debra A. Millenson, George M. Strickler, Jr., Elie, Strickler & Dennis, New Orleans, La., for petitioner-appellant.

William G. Guste, Jr., Atty. Gen., Baton Rouge, La., John N. Gallaspy, Bogalusa, La., W. W. Erwin, Dist. Atty., 22nd Judicial District, Franklinton, La., for respondent-appellee.

Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges.

SIMPSON, Circuit Judge:

Appellant, a black resident of Bogalusa, Louisiana, was indicted on September 21, 1970, by a grand jury of Washington Parish, Louisiana, for the crime of simple battery. On January 8, 1971, appellant timely filed in the state court a motion to quash the indictment on the grounds that blacks had been unconstitutionally excluded from the general venire of Washington Parish, from which grand jury members for the Parish are chosen. At the hearing on the motion to quash, as an alternative to an independent hearing, the court incorporated and made a part of the record in the Gibson case the transcript of a hearing on an identical motion which had been made and denied one month previously in an entirely separate criminal proceeding, State of Louisiana v. Bruce Kilbourne, No. 23,118, Twenty-Second Judicial District of the State of Louisiana, affirmed 1972, 260 La. 569, 256 So.2d 630. Appellant's motion to quash his indictment was denied, and the trial proceeded to conviction and sentence to six months confinement. The Supreme Court of Louisiana on direct appeal affirmed the conviction. State v. Gibson, 1971, 258 La. 911, 248 So.2d 334. Since the issues presented to the trial court and to the Supreme Court of Louisiana on direct appeal are identical to the contentions presented by appellant in his application to the district court below for collateral post-conviction relief, appellant has exhausted his state remedies and is eligible to apply for federal habeas corpus, Brown v. Allen, 1953, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469.

At the Kilbourne hearing, incorporated into the record in the Gibson case, preliminary testimony indicated that blacks constituted approximately 29% of the population of Washington Parish. Mr. Dewaine Seal, Clerk of the Court for Washington Parish and an ex-officio parish jury commissioner, testified that no single general venire list existed for Washington Parish. Rather, according to Mr. Seal, the jury venire consisted of names written on cards and placed in a box; cards would then be drawn at random for grand and petit juries, and the box would be replenished from time to time with additional cards inserted by Mr. Seal or the other jury commissioners. Further testimony by Mr. Seal revealed that to ascertain the racial composition of the Washington Parish general venire, it would be necessary not only to know the race of those individuals who had actually served on grand and petit juries, but also to know the race of those persons added to the box by individual commissioners. The state trial judge in Kilbourne refused to permit extended questioning of Mr. Seal concerning the racial composition of the general venire, and also refused to permit the other jury commissioners to be called for the same purpose. Further, the trial judge took the position that only evidence which demonstrated an affirmative intent intentionally to exclude blacks from the venire would be relevant to allegations of jury discrimination. Two jury commissioners and Mr. Seal all testified that they had made no effort intentionally to exclude blacks from the Washington Parish venire. As indicated it was on the basis of the Kilbourne transcript and ruling that the state court denied Gibson's motion to quash.

Following the Louisiana Supreme Court's denial of his appeal, appellant Gibson filed his habeas corpus petition in the lower court. That court denied the petition without a hearing, holding both that appellant had not established a case of prima facie discrimination in jury selection and that the trial court could have found the state's evidence sufficient to rebut any presumption which appellant had raised.

A state court conviction cannot stand if it is based on an indictment of a grand jury or the verdict of a petit jury from which black persons were excluded because of their race. Alexander v. Louisiana, 1972, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536; Whitus v. Georgia, 1967, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599; Eubanks v. Louisiana, 1958, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991; Avery v. Georgia, 1953, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244; Smith v. Texas, 1940, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84; Strauder v. West Virginia, 1880, 100 U.S. 303, 25 L.Ed. 664. While the party alleging systematic exclusion bears the initial burden of establishing a prima facie case of discriminatory jury selection, a prima facie case is established when it is demonstrated that a significant disparity exists between the percentage of blacks chosen for jury duty and the percentage of blacks eligible for jury duty in the population from which jurors are drawn. Hernandez v. Texas, 1954, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 886; Patton v. Mississippi, 1947, 332 U.S....