Guice v. Fortenberry

• Decision Date: 18 November 1981
• Docket Number: No. 80-3350,80-3350
• Citation: 661 F.2d 496
• Parties: Billy GUICE and Howard Claxton, Sr., Petitioners-Appellants, v. Ray FORTENBERRY, Superintendent, East Carroll Parish Prison Farm,Respondent-Appellee. . *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 496

661 F.2d 496

Billy GUICE and Howard Claxton, Sr., Petitioners-Appellants, v. Ray FORTENBERRY, Superintendent, East Carroll Parish Prison Farm,Respondent-Appellee.

No. 80-3350.

United States Court of Appeals Fifth Circuit. ^*

Nov. 18, 1981.

George M. Strickler, Jr., New Orleans, La., Samuel Thomas, Tallulah, La., for petitioners-appellants.

James Caldwell, Dist. Atty., Tallulah, La., for respondent-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before GODBOLD, Chief Judge, BROWN, AINSWORTH, CHARLES CLARK, RONEY, GEE, TJOFLAT, FAY, RUBIN, VANCE, KRAVITCH, FRANK M. JOHNSON, Jr., GARZA, HENDERSON, REAVLEY, POLITZ, HATCHETT, ANDERSON, RANDALL, TATE, SAM D. JOHNSON, THOMAS A. CLARK and WILLIAMS, Circuit Judges. ^**

ALVIN B. RUBIN, Circuit Judge:

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 hearing 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. "(W)here 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 The 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, "(b)ecause 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 Guice 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. Blackburn, 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.... (T)here 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, "(f)urthermore, a crucial fact was not disclosed." Id....