U.S. ex rel. Barksdale v. Blackburn, 78-2582

• Decision Date: 21 January 1980
• Docket Number: No. 78-2582,78-2582
• Citation: 610 F.2d 253
• Parties: UNITED STATES of America ex rel. Bruce BARKSDALE, Petitioner-Appellant, v. Frank BLACKBURN, Warden, Louisiana State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 253

610 F.2d 253

UNITED STATES of America ex rel. Bruce BARKSDALE, Petitioner-Appellant, v. Frank BLACKBURN, Warden, Louisiana State Penitentiary,

Respondent-Appellee.

No. 78-2582.

United States Court of Appeals, Fifth Circuit.

Jan. 21, 1980.

John Wilson Reed, New Orleans, La. (Court-appointed), for petitioner-appellant.

William F. Wessel, Asst. Dist. Atty., New Orleans, La., John S. Baker, Jr., Baton Rouge, La., for respondent-appellee.

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

Before GOLDBERG, AINSWORTH and KRAVITCH, Circuit Judges.

KRAVITCH, Circuit Judge.

Appellant Bruce Barksdale appeals from the denial of his petition for a writ of habeas corpus. For the reasons stated below, we reverse.

I. Facts :

In July 1963, Barksdale was convicted of aggravated rape and was sentenced to death ¹ by an Orleans Parish jury. He had been indicted by the September 1962 Orleans Parish Grand Jury. Through appropriate motion, Barksdale challenged the racial composition of the venire from which the grand jury which indicted him and the petit jury which would try him were chosen. After a hearing, both motions were denied. Barksdale appealed his conviction, again challenging the composition of the grand and petit juries. The Louisiana Supreme Court affirmed the conviction, reasoning that educational and economic factors explain the disparity between the number of black males in the population and the number of blacks appearing on the jury wheel. State v. Barksdale, 247 La. 198, 170 So.2d 374, 381 (1964), Cert. denied, 382 U.S. 921, 86 S.Ct. 297, 15 L.Ed.2d 236 (1965).

Relying partially on this court's decision in Labat v. Bennett, 365 F.2d 698 (5th Cir. 1966), Cert. denied, 386 U.S. 991, 87 S.Ct. 1303, 18 L.Ed.2d 334 (1967), Barksdale next pursued state habeas corpus. Again, the Louisiana Supreme Court denied his petition, State ex rel. Barksdale v. Dees, 252 La. 434, 211 So.2d 318 (1968). Three years later Barksdale filed a petition in federal court for a writ of habeas corpus. His case was consolidated with that of John Newman ² for the purpose of an evidentiary hearing before a United States magistrate. After the hearing before the magistrate, the cases were separated and sent back to the judges to whom the cases initially had been assigned. The convictions of both Newman and Barksdale were set aside. The State appealed the decision in the Newman case, but did not immediately do so in the Barksdale case. The decision of the district court in the Newman case was affirmed. Newman v. Henderson, 539 F.2d 502 (5th Cir. 1976), Cert. denied, 433 U.S. 914, 97 S.Ct. 2986, 53 L.Ed.2d 1100 (1977). ³

Four months after the district court's decision in the Barksdale case, the State requested permission, which was granted, to file a belated notice of appeal. That appeal was dismissed by this court upon motion of Barksdale. Barksdale v. Henderson, No. 73-1536, Cert. denied, 419 U.S. 880, 95 S.Ct. 145, 42 L.Ed.2d 120 (1974). Meanwhile, the State moved to vacate the original judgment in accordance with Federal Rules of Civil Procedure, Rule 60(b)(4) on the ground that the hearing before the magistrate was an improper delegation of authority under Wingo v. Wedding, 418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed.2d 879 (1974). The motion was granted and appealed unsuccessfully by Barksdale, Barksdale v. Henderson, 510 F.2d 382 (5th Cir.), Cert. denied, 422 U.S. 1045, 95 S.Ct. 2662, 45 L.Ed.2d 697 (1975).

An evidentiary hearing was held by District Judge Christenberry, who died while the case was under consideration. Upon agreement of the parties, another evidentiary hearing was held before Judge Schwartz. As he had done at the previous hearing, Barksdale presented the testimony of Dr. Arnold Levine, a statistician, and Julian Murphy, a jury commission employee. The State, for the first time, introduced the testimony of Dr. David Smith, a statistician, to rebut in part the testimony of Dr. Levine. The court denied the petition for habeas corpus.

Because of a factual error committed by the district court, Barksdale moved for and was granted a new hearing. ⁴ At this hearing additional evidence was introduced both by the State and by Barksdale. The district Despite its lengthy history, the primary issue in this case is relatively simple: Was the system of selecting grand and petit jurors in Orleans Parish at the time Bruce Barksdale was indicted and tried one which discriminated against blacks in violation of Barksdale's equal protection and due process rights? In addition to the primary issue, there are several collateral issues. The State urges on appeal that Barksdale's habeas claim should not be cognizable under the rationale of Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); that an evidentiary hearing should not have been held on the petition as there had been a full and fair hearing on the claim in state court; and, finally, that the petition is barred by Rule 9 of 28 U.S.C. § 2254.

court again denied the petition for habeas relief. It is from that order that the petitioner appeals to this court.

To decide the primary issue of unlawful discrimination this court has been presented with a mass of statistics representing various views of the disparities which existed between the black population of the parish and the percentage of blacks at various phases in the jury selection process. Our task has been made more difficult by the fact that the State changed its explanation of the statistics between the time it proposed findings of fact to the district court and the filing of its brief in this court.

The district court found the following facts:

In 1962 blacks constituted 38.8% of the Orleans Parish population.

In 1963 blacks constituted 39.5% of the Orleans Parish population.

In 1962 blacks constituted 33.7% of the male population aged 21 through 64.

In 1963 blacks constituted 34.4% of the male population aged 21 through 64. ⁵

The court found that while Levine concluded in his report that in 1962, 32% of the literate male population aged 21-64 not occupationally exempt from jury service was black and that in 1963, 32.7% of the same population was black, Levine had left "literate" undefined. The court referred to the Levine report which indicated that of the male population aged 21-64 not occupationally exempt, in 1962, 31.9% with at least five years of education was black, 30.9% with at least six years of education was black, and 29.7% with at least seven years of education was black. The court observed that no comparable data for 1963 had been presented. The court also found that Levine's report indicated that in 1962 blacks constituted approximately 17% of the registered voters.

The court further found:

As of January 1, 1962, prior to drawing of the venire, blacks constituted approximately 14.9% of the general venire as embodied in the Orleans Parish jury wheel from which grand and petit jury venires were drawn. As of January 1, 1963 blacks constituted no more than 14.3% of the persons in the general venire as embodied in the Orleans Parish jury wheel. As of January 1, 1964 blacks constituted no more than 14% of the persons in the general venire, as embodied in the Orleans Parish jury wheel. In 1962 blacks constituted 13.9% of all persons appearing on the final petit jury venires. In January, June, and July, 1963 blacks constituted 21.8% of all persons appearing on final petit jury venires and blacks constituted 17.3% of the persons appearing on the final petit jury venire called into Section E in July 1963 for the trial of petitioner's case (Stipulation D). There were apparently no blacks on the petit jury that tried petitioner's case (Stipulation C).

The disparity between the presumptively eligible population of black males of 21-64 in 1962 (33.7%) and the grand jury venire (14.9%) of January, 1962 is 18.8%.

The disparity between the presumptively eligible population of black males Although we are bound by the clearly erroneous standard when reviewing the findings of fact of the district court, Wade v. Mayo, 334 U.S. 672, 683-84, 68 S.Ct. 1270, 92 L.Ed. 1647 (1948), we are not bound by errors of law. Because the district court improperly applied the law to the facts, we reverse.

of 21-64 in 1962 (33.7%) and the final petit jury venire in 1962 (13.9%) is 19.8%. ⁶

II. Habeas Corpus Issue

The State contends that Barksdale's claim of grand jury discrimination is not a proper issue for federal habeas corpus.

In Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), the Supreme Court held that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." 428 U.S. at 494, 96 S.Ct. at 3052.

Relying on a dissenting opinion in Castaneda v. Partida, 430 U.S. 482, 508 n. 1, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977), the State urges that Stone v. Powell be extended to foreclose a grant of federal habeas corpus relief to a state prisoner who claims discrimination in the selection of the grand jury. It argues that habeas corpus relief should be available only where the error alleged affected the determination of guilt, and that in this case, as in Stone v. Powell, no error affected the trial on the merits.

These same arguments for extending Stone v. Powell were considered and rejected recently by the Supreme Court in Rose v. Mitchell, --- U.S. ----, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979), a case involving alleged racial discrimination in the selection of Tennessee grand jury foremen.

Writing for the majority, Mr. Justice Blackmun pointed out that in Stone v. Powell the Court confined its ruling to cases involving the judicially created exclusionary rule, which had minimal utility when applied in a habeas corpus proceeding.

Mr. Justice Blac...