Allen v. Cain ( 2003 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-30954
Summary Calendar
FLOYD ALLEN,
Petitioner-Appellant,
versus
BURL CAIN, WARDEN,
LOUISIANA STATE PENITENTIARY,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 99-CV-915-B
--------------------
March 12, 2003
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Floyd Allen, Louisiana prisoner # 211312, moves this court for
a certificate of appealability ("COA") to appeal the district
court's denial of his 28 U.S.C. § 2254 habeas corpus petition in
which he attacks his 1993 conviction for second degree murder.
This court issues a COA to an applicant only if he makes "a
substantial showing of the denial of a constitutional right." See
28 U.S.C. § 2253(c)(2). To make this showing, Allen must
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
"demonstrate that reasonable jurists would find the district
court's assessment of the constitutional claims debatable or
wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Any doubt
regarding whether to grant a COA is resolved in favor of the
petitioner. Fuller v. Johnson, 114 F.3d 491, 495 (5th Cir. 1997).
Allen argues that the state failed to disclose a plea
agreement it made with one of its witnesses in order to obtain the
witness's testimony. However, Allen has not shown a violation of
Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States,
405 U.S. 150 (1972). He also argues that the trial judge
erroneously denied his challenge for cause of a prospective juror.
The state court held this claim was procedurally barred, which
Allen has failed to overcome. See Coleman v. Thompson, 501 U.S.
722, 729 (1991). Allen further argues that his counsel rendered
ineffective assistance by failing to argue mitigating circumstances
to the jury and failing to object to the denial for cause of the
prospective juror. Allen has not met the test for ineffective
assistance. See Strickland v. Washington, 466 U.S. 668, 689-94
(1984). Allen's arguments that the evidence was insufficient, that
the prosecutor made improper argument to the jury, and that there
was cumulative error, are all without merit. See Darden v.
Wainwright, 477 U.S. 168, 181 (1986); Jackson v. Virginia, 443 U.S.
307, 319 (1979); Derden v. McNeel, 978 F.2d 1453, 1458 (5th Cir.
1992)(en banc).
2
Finally, Allen argues that East Baton Rouge Parish used a
racially discriminatory system of selecting grand jury foremen and
that counsel was ineffective for failing to object to the selection
system. A prima facie case of discrimination in the selection of
a grand jury foreman is established if the petitioner 1) shows that
the group against whom discrimination is asserted is a distinct
class, singled out for different treatment; 2) proves the degree of
under-representation by comparing the proportion of the group in
the total population to the proportion called to serve as foremen
over a "significant period of time;" and 3) shows that the
selection procedure is susceptible to abuse or is not racially
neutral. See Rose v. Mitchell, 443 U.S. 545, 565 (1979); Guice v.
Fortenberry ("Guice I"), 661 F.2d 496, 498-99 (5th Cir. 1981)(en
banc). Once a prima facie case is established, the state may offer
rebuttal evidence showing that objective, racially neutral criteria
were used in the selection process. Johnson v. Puckett, 929 F.2d
1067, 1072 (5th Cir. 1991).
Allen, who is black, presented data showing that between 1976
and 1992, only four black grand jury foremen were selected out of
47 grand juries but that the black population in East Baton Rouge
Parish comprised between 21% and 30% of the total population of
registered voters during that time period. The district court
concluded that Allen had made out a prima facie case of
discrimination between 1976 and 1992 but concluded that any
inferences of discrimination were refuted by data for the five
3
years preceding Allen's indictment showing that three out of nine
grand jury foremen were black.
Reasonable jurists would find debatable the district court's
focus solely on statistical data for the five years before Allen's
indictment. See Johnson, 929 F.2d at 1072; Guice v. Fortenberry
("Guice II"), 722 F.2d 276, 279-80 (5th Cir. 1984). Therefore, we
GRANT COA as to the issue of the grand jury foremen selection
process. It does not appear from the record that the state offered
any rebuttal evidence or that the material facts were adequately
developed in the state court habeas proceedings. See Guice I, 661
F.2d at 500. We therefore VACATE the district court's judgement in
part and REMAND so that the district court may further consider the
issue and conduct an evidentiary hearing, if necessary. The
district court's denial of Allen's claim that counsel was
ineffective for failing to object to the grand jury foremen
selection system was based on its resolution of the merits of the
grand jury issue. We therefore GRANT COA on this ineffective
assistance claim and VACATE the district court's judgment in part
and REMAND so that the district court may further consider the
issue.
COA GRANTED IN PART AND DENIED IN PART; VACATED IN PART AND
REMANDED.
G:\OPIN-SC\02-30954.opn.wpd 4