Guillory v. Cain ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 3, 2003
Charles R. Fulbruge III
Clerk
No. 01-30962
Summary Calendar
FRANK GUILLORY, SR.,
Petitioner-Appellant,
versus
BURL CAIN,
Respondent-Appellee.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 99-CV-1352
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Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Frank Guillory, Sr., Louisiana inmate # 347892, was
convicted by a jury of two counts of first-degree murder and was
sentenced to serve concurrent life sentences without benefit of
probation, parole, or suspension of sentence. Guillory was
granted a COA and now appeals the denial of his 28 U.S.C. 2254
petition.
Guillory alleged for the first time on direct appeal that he
had been denied due process and equal protection because the
*
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that this opinion should not be published and is not precedent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.
No. 01-30962
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method of selecting the grand jury foreperson in St. Landry
Parish, Louisiana, was discriminatory. The state appellate court
concluded in 1996 that Guillory, who is white, did not have
standing to assert a claim for “alleged discrimination against
another race in the selection of a grand jury foreman” and
affirmed the convictions and sentences. Guillory did not seek
further review in the Louisiana Supreme Court.
Guillory reiterated the grand jury foreperson claims in his
first state post conviction application. He argued that although
he was white, he had standing to assert a challenge to the
exclusion of blacks as grand jury forepersons in St. Landry
Parish. The application was denied pursuant to LA. CODE CRIM.
PROC. art. 930.4, which provides that “[u]nless required in the
interest of justice, any claim for relief which was fully
litigated in an appeal from the proceedings leading to the
judgment of conviction and sentence shall not be considered.”
Guillory raised the grand jury foreperson claims in a second
state post conviction application and added claims that trial
counsel provided ineffective assistance because counsel did not
move to quash the indictment and did not challenge the method of
selection of the grand jury foreperson. The application was
denied pursuant to LA. CODE CRIM. PROC. art. 930.4 as repetitive
and art. 930.8 as untimely.
By the time Guillory reached the district court, the Supreme
Court had decided in Campbell v. Louisiana, 523 U.S. 392, 401
No. 01-30962
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(1998), that a white defendant has standing to assert claims such
as Guillory’s. The district court rejected application of the
doctrine of procedural default, concluded that Campbell announced
a new rule of constitutional law that was not retroactively
applicable to cases on collateral review, and denied 28 U.S.C.
§ 2254 relief.
A COA was granted on the issue whether Campbell announced a
new rule of constitutional law that is retroactively applicable
to cases on collateral review.
Guillory’s claims have not been adjudicated on the merits.
See Mercadel v. Cain, 179 F.3d 271, 274-75 (5th Cir. 1999).
Therefore, our review is de novo. See id. at 275.
Article 930.4A, LA. CODE CRIM. PROC., is not a procedural bar
in the traditional sense and is not a decision on the merits.
Bennett v. Whitley, 41 F.3d 1581, 1583 (5th Cir. 1994). The
article 930.4 bar does not preclude the district court from
addressing the merits of the claims. Id.In Peterson v. Cain, 302 F.3d 508, 513-14 (5th Cir. 2002),
cert. denied, 123 S. Ct. 886 (2003), we held that Campbell did
not announce a new rule of constitutional law. Accordingly, the
district court’s basis for the rejection of Guillory’s grand jury
foreperson claims was erroneous. Accordingly, the judgment of
the district court is VACATED, and Guillory’s claims that he was
denied due process and equal protection due to the method of
selection of the grand jury foreperson in St. Landry Parish are
No. 01-30962
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REMANDED for consideration in light of our opinion in Peterson v.
Cain, 302 F.3d 508, 513-14 (5th Cir. 2002).
Guillory abandoned his ineffective assistance claims by
failing to assert them in this court. Yohey v. Collins, 985 F.2d
222, 225 (5th Cir. 1993).
VACATED AND REMANDED.