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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-31054

Summary Calendar

CHARLES CARLTON WALL

Petitioner-Appellant

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY

Respondent-Appellee

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:03-CV-1641

Before WIENER, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

We withdraw our prior unpublished opinion, 2008 WL 5068622 (5th Cir.

Dec. 1, 2008) (per curiam), and issue the following substitute opinion.

In October 1997, Charles Carlton Wall, Louisiana prisoner # 240914, was

convicted by jury verdict of second-degree murder and sentenced to life

imprisonment. We granted Wall a certificate of appealability to appeal the

district court’s judgment denying his 28 U.S.C. § 2254 application on his claim

of racial discrimination against African-Americans in the process for selection

United States Court of Appeals

Fifth Circuit

F I L E D

March 12, 2009

Charles R. Fulbruge III

Clerk
No. 06-31054

2

of Tangipahoa Parish grand jury forepersons at the time of his indictment. Wall

asserts that he has standing to raise equal protection and due process challenges

to the grand jury foreperson selection process and that he has made a prima

facie showing of racial discrimination in that process. The Respondent counters

that we may not review the merits of Wall’s claim because the documents he

submitted to support it were not authenticated pursuant to the Federal Rules

of Evidence and were therefore inadmissible. We review the district court’s

findings of fact for clear error and its conclusions of law de novo, applying the

same standard of review to the state court’s decision as the district court.

Martinez v. Johnson, 255 F.3d 229, 237 (5th Cir. 2001).

The magistrate judge correctly stated that, in order to obtain relief on his

discrimination claim, Wall was “required to prove discrimination under the

standards set out in the Supreme Court’s cases.” Rideau v. Whitley, 237 F.3d

472, 484-85 (5th Cir. 2000). After implicitly holding that Wall had standing to

raise this discrimination claim, the magistrate judge found that Wall had not

suffered an “injury in fact” under Campbell v. Louisiana, 523 U.S. 392, 397-98

(1998), and had failed to state a constitutional violation, citing to Guillory v.

Cain, 303 F.3d 647, 653 (5th Cir. 2002). In reaching this conclusion, the

magistrate judge noted that Wall had submitted various documents in support

of his claim and that Wall’s documentation was not certified or verified in any

way. After assuming that Wall’s documents were authentic and admissible, the

magistrate judge found that the statistics were incomplete because the relevant

documents failed to indicate the race or gender of the listed grand jury

forepersons. The district court denied § 2254 relief on Wall’s discrimination

claim because, as determined by the magistrate judge, “Wall had made no

showing of intentional race or gender discrimination in the selection of his grand

jury foreperson under Guillory.”

In Campbell, the Supreme Court concluded that “Campbell, like any other

white defendant, has standing to raise an equal protection challenge to
No. 06-31054

3

discrimination against black persons in the selection of his grand jury.” 523 U.S.

at 400. In so holding, the Court found that all three preconditions had been

satisfied, including that “the defendant suffered an ‘injury in fact.’” Id. at 397-

98. The Court noted that “[r]egardless of his or her skin color, the accused

suffers a significant injury in fact when the composition of the grand jury is

tainted by racial discrimination.” Id. at 398. Because Wall had standing to raise

his discrimination claim, he met the “injury in fact” requirement under

Campbell.

In Guillory, the State adopted a strategy of (1) conceding that the

petitioner had established a prima facie case and (2) bearing the burden of

rebutting that prima facie case. 303 F.3d at 649. The relevant issue in Guillory

was thus whether the State had met its burden of rebutting the presumption of

discrimination by showing that objective, race-neutral criteria were used in the

selection process. Id. at 650. In the instant case, Wall’s claim was presumably

denied because the magistrate judge and the district court determined that he

had failed to establish a prima facie case of discrimination. The district court’s

and the magistrate judge’s reliance on Guillory for the proposition that Wall

made no showing of intentional discrimination was misplaced; such a showing

is not required to establish a prima facie case. See Rose v. Mitchell, 443 U.S.

545, 565 (1979) (listing the three elements of a prima facie case).

The magistrate judge considered only the first list of grand jury

forepersons and seemingly rejected the second list of grand jury forepersons due

to the lack of any indication as to the source of its information, despite the stated

assumption of the authenticity and admissibility of Wall’s documents. The race

and gender information for the listed grand jury forepersons was included only

in the second list. Examination of Wall’s documents indicates that neither list

specifies the source of the included information. Due to the inconsistencies in

the magistrate judge’s factual findings, which were relied upon by the district

court, our review leaves us “with the definite and firm conviction that a mistake
No. 06-31054

4

has been committed.” Fairman v. Anderson, 188 F.3d 635, 640 (5th Cir. 1999)

(internal quotation marks and citation omitted).

Based upon the foregoing reasons, the district court’s judgment denying

Wall’s § 2254 application as to his claim of racial discrimination in the grand

jury foreperson selection process in Tangipahoa Parish is VACATED, and this

case is REMANDED to the district court for further proceedings consistent with

this opinion. We express no views as to the admissibility or probative value of

Wall’s documents, whether Wall has established a prima facie case regarding the

instant claim, or the ultimate outcome of the proceedings.