* Circuit Judge of the United States Ninth Circuit, sitting by designation.

-1- United States Court of Appeals

Fifth Circuit



## FILED

July 21, 2003

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_________________________

No. 02-30400

_________________________

MICHAEL WAYNE PICKNEY

Petitioner-Appellant,

VERSUS

BURL CAIN, WARDEN

LOUISIANA STATE PENITENTIARY

Respondent-Appellee.

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Appeal from the United States District Court

For the Western District of Louisiana

_________________________________

Before DAVIS, CYNTHIA HOLCOMB HALL * and EMILIO M. GARZA, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Petitioner, Mic hael Wayne Pickney (Pickney), appeals the district court’s denial of habeas

corpus relief on his claim of deprivation of equal protection rights because the process of selecting

his grand jury foreperson was racially discriminatory. We agree with the district court that this claim

is procedurally de fault ed and that Pickney failed to establish prejudice to overcome this default.

Accordingly, we affirm the district court’s judgment.-2- I.

On January 27, 1995, a

St. Landry Parish, Louisiana grand jury indicted Pickney with the

aggravated rape of Christina Scott (Scott).

In the early morning of June 12. 1994, Christina Scott awoke to find a male intruder standing

in the doorway of her bedroom. The intruder told Scott that she must do what he asked, or he would

kill her and her eighteen month-old daughter who was sleeping with her. The man told Scott to face

the wall during the attack, so she never saw his face. He instructed her to disrobe, and Scott began

to cry. Scott’s daughter awoke from the noise and also started crying. The intruder instructed Scott

to silence her daughter, or he would kill the child. After Scott quieted her baby, the intruder ran a

knife back and forth over Scott’s back, t elling her that he would use it if necessary. Scott asked the

int ruder if she could go to the bathroom. He allowed her to do so but followed her to the door.

When they returned, the man raped Scott at knife point. After the rape, the man told Scott that he

would kill her if she called the police. He remained in her home for twenty minutes constantly talking

to Scott. After he left, Scott sought help from a friend and was taken to a hospital where a rape kit

was prepared.

Two witnesses, Lloyd Henry and Keith Henry, both of whom knew the defendant, Pickney,

testified that they saw him at Scott’s apartment complex between 1:00 and 2:00 a.m. on the morning

she was raped. They described Pickney as wearing a white t-shirt and dark jeans and having a lot of

facial hair. Lloyd stated that Pickney was wearing boots. Scott also testified that her assailant was

wearing a white t-shirt, dark jeans and boots.

After leaving the hospital, Scott was taken to the police station. She told the police that she

could not describe her assailant’s face or his build, but she could identify his voice. Scott identified-3-

Pickney in a voice line-up conducted at 11:00 a.m. on the morning of the rape.

At trial, the State introduced the results of DNA testing whi ch had been conducted using

Scott’s blood, Pickney’s blood, and samples collected after the rape. The State’s expert testified that

Pickney’s DNA correlated to the ten genetic markers found in the sample collected after the rape.

Under a conservative estimate, only 1 in 1.3 millio n African-Americans’ DNA would correlate to all

ten of these genetic markers.

A jury convicted Pickney, and he wa s sent enced to life imprisonment. H is conviction was

a ffirmed on direct appeal. S ee State v. Pickney

, supra

. The Louisiana Supreme Court denied

Pickney’s request for a writ of certiorari. S ee State v. Pickney

, 1998-1857 (La. 11/13/98), 730 So.2d

457.

Pickney

filed a state application for post-conviction relief raising, i nter alia

, claims of

discrimination in the selection of grand jury forepersons and ineffective assistance of counsel. His

application was denied by the trial court on the basis that his claim was procedurally defaulted. The

Louisiana Third Circuit Court of Appeal also de nied Pickney’s writ application but did so on the

basis that Pickney failed to make a prima facie showing of discrimination. The Louisiana Supreme

Court likewise denied Pickney’s writ application. However, like the state district court, the Louisiana

Supreme Court did so on the basis of procedural default.

Pickney filed a Section 2254 application in feder al dist rict court for habeas relief, arguing

racial discrimination in the selection of his grand jury foreperson and ineffective assistance of counsel

based on trial counsel’s failure to file a motion to quash the indictment. The respondent answered

asserting that Pickney’s claim of discriminatory selection of grand jury forepersons was procedurally

barred and was without merit, and because the claim had no merit, Pickney’s ineffective assistance-4-

of counsel claim was also without merit.

The magistrate judge recommended that Pickney’s application be denied and dismissed with

prejudice. The magistrate judge found that Pickney had procedurally defaulted his discrimination

c laim by not moving to quash the indictment before trial and that he had not show n cause and

prejudice or a fundamental miscarriage of justice to excuse this default. T he magistrate judge also

found that Pickney’s ineffective assistance claim, which was based on counsel’s failure to move to

quash the indictment, was without merit because Pickney had not shown prejudice. The magistrate

judge concluded that, even if Pickney’s counsel had succeeded in persuading the court to dismiss the

indictment, a properly constituted grand jury would have simply reindicted Pickney on t he same

charge.

Pickney filed objections to the magistrate’s report. The district court ordered that Pickney’s

Section 2254 application be denied and dismissed with prejudice for the reasons state d in the

Magistrate’s report. The district court also denied Pickney a certificate of appealability (COA).

Pickney moved this court for a COA, and we granted COA.

II.

Procedural default bars federal habeas review “[i]f a state court clearly and expressly bases

its dismissal of a prisoner’s claim o n a state procedural rule, and that procedural rule provides an

independent and adequate ground for the dismissal.” N obles v. Johnson

, 127 F.3d 409, 420 (5th Cir.

1997). Although the Louisiana intermediate court of appeals rejected Pickney’s discrimination claim

on the merits, the last court to address his claim, the Louisiana Supreme Court, denied the application

on procedural grounds. The Louisiana Supreme Court held that Pickney waived his equal protecti on

claim based on discrimination in the selection of his grand jury foreperson because he failed to file a-5-

pretrial motion to quash the indictment.

A habeas petitioner “may overcome the state procedural bar only by demonstrating (1) cause

for the procedural default and actual prejudice as a result of the alleged violation of federal law or (2)

that failur e t o co nsider his claims will result in a fundamental miscarriage of justice.” S mith v.

Joh nson , 216 F.3d 521, 524 (5th Cir. 2000) (internal quotation marks and citation omitted). A

defendant may show “cause” by proving ineffective assistance of counsel in violation of the Sixth

Amendment of the Constitution. S ee Murray v. Carrier

, 477 U.S. 478, 488 (1986). “In addition to

cause, [a defendant] must show actual prejudice to overcome the procedural bar.” U nited States v.

Guerra

, 94 F.3d 989, 994 (5th Cir. 1996) (internal quotati ons omitted). “The movant mak e s this

showing where he demonst rates that, but for the error, he might not have been convicted.” I d

.

We need not address whether Pickney has made a showing of “cause” b e cause we are

confident that he has not been prejudiced. U nited States v. Shaid

, 937 F.2d 228, 334 (5th Cir. 1991).

After reviewing the trial record, we have no doubt that, if Pickney had been successful in having his

indictment quashed, t he State of Louisiana would have sought and obtained a second indictment.

Witnesses who knew Pickn ey placed him at the scene of the crime on the morning in question.

Detective Hidalgo testified that he recovered clothing from Pickney’s home similar to those worn by

Scott’s attacker. Scott also identified Pickney’s voice as being that of her assailant in a line up only

hours after the attack. Even more importantly , the state produced DNA evidence that point ed t o

Pickney as Scott’s attacker. Given the strength of the State’s case, a successful grand jury challenge

would have served no purpose other than to delay the trial. Accordingly, Pickney has failed to prove

actual prejudice.

Citing Rose v. Mitchell

, 443 U.S. 545, 99 S.Ct. 2993 (1979), Pickney argues that he should-6-

be excused from making a showing of actual prejudice because he has made a prima facie showing

of discrimination in the selection of his grand jury foreperson i n violation of the equal protecti on

clause of the Fourt eenth Amendment. In R ose v. Mitchell

, the Supreme Court held that, if racial

discrimination in the selection of a grand jury foreperson is shown, the conviction must be reversed

without any inquiry into whether the defendant has been prejudiced. R ose v. Mitchell

, 443 U.S. 545,

556. However, in R ose

, the defendant preserved his equal protecti on claim. Here, Pickney has not.

Pickney argues that Rose v. Mitchell should be extended to apply even where the defendant has failed

to preserve his equal protection claim.

This argument was considered and rejected by the Eleventh Circuit in Francois v. Wainwright

,

741 F.2d 1275, 1283 (11th Cir. 1984). The court held that, where a claim of racial discrimination

in selecting the grand jury foreperson has been procedurally defaulted in state court, the defendant

must still show prejudice. The Eleventh Circuit distinguished Rose v. Mitchell on the basis that Rose

applied only to preserved claims. The F rancois court relied on the Supreme Court’s statement in

Rose that “‘[t]here is no contention in this case that respondents sought to press their challenge to

the grand jury without complying with state procedural rules as to when such claims may be raised.’”

Id. (quoting Rose v. Mitchell

, 443 U.S. 545, 559 n.8). Based on this language, the Eleventh Circuit

concluded that the actual prejudice requirement survived Rose v. Mitchell where the defendant has

failed to pres erve his claim that his grand jury foreperson was selected through a racially

discriminatory process.

We agree with the Eleventh Circuit and hold that, where a defendant has failed to show actual

prejudice, we will not consider the merits of a procedurally defaulted claim of racial discrimination

in the selection of a grand jury foreperson. Because Pickney has failed to show that he was-7-

prejudiced, we decline to consider his equal protection claim.

Our conclusion that Pickney suffered no prejudice from counsel’s failure to quash the

indictment also precludes Pickney’s claim of ineffective assistance of counsel. To establish ineffective

assistance of counsel under Strickland v. Washington

, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80

L.Ed.2d 674 (1984), Pickney must show that counsel’s performance was deficient and that he was

prejudiced by the defense. Because Pickney cannot meet the prejudice prong of S trickland

, his claim

of ineffective assistance of counsel must fail.

III.

For the reasons stated above, we affirm the judgment of the district court denying Pickney’s

petition for habeas relief.

AFFIRMED.