* 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that this opinion should not be published and is not precedent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. 99-30870

(Summary Calendar)

 

ROBERT YOUNG,

Petitioner-Appellant,

versus

BURL CAIN, Warden, 

Louisiana State Penitentiary,

Respondent-Appellee.

- - - - - - - - - -

Appeal from the United States District Court

for the Eastern District of Louisiana

(97-CV-3162-B)

- - - - - - - - - -

April 27, 2000

Before POLITZ, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Petitioner-Appellant Robert Young, Louisiana prisoner #

115638, was granted a certificate of appealability to question

whether the district court erred when, without conducting an

evidentiary hearing, it dismissed Young’s equal protection claim of

race discrimination in the selection of the grand jury foreman in

Washington Parish, Louisiana.

As an initial matter, we address Respondent’s argument that

Young is procedurally barred from raising the equal protection
2

claim because his pretrial motion to quash was not properly filed;

specifically, that (1) it was not signed and dated by the clerk of

court, (2) it was not set for a hearing by an order, and (3) the

defense attorney waived the issue on the record. Respondent’s

argument challenges the district court’s ruling, in its order

denying Young’s timely filed Fed. R. Civ. P. 59(e) motion, that

Young had filed a pretrial motion to quash the indictment. As

neither Young nor Respondent filed a notice of appeal from the

court’s order disposing of the Rule 59(e) motion, we lack

jurisdiction to review the district court’s order and,

consequently, its ruling that Young had filed a motion to quash.

See Fed. R. App. P. 4(a)(4)(B)(ii); Bann v. Ingram Micro, Inc., 108

F.3d 625, 626 (5th Cir. 1997); Reeves v. Collins, 27 F.3d 174, 177

(5th Cir. 1994); see also Castaneda v. Falcon, 166 F.3d 799, 780

(5th Cir. 1999)(“we must always be sure of our appellate

jurisdiction and, if there is doubt, we must address it, sua sponte

if necessary.”). 

Regarding his equal protection claim, Young argues that the

district court’s ruling (that his claim was foreclosed by his

subsequent conviction by a petit jury) is contrary to controlling

Supreme Court decisions. We have jurisdiction over this claim

because Young filed a timely and effective notice of appeal from

the district court’s order and reasons, which held, in the

alternative, that Young’s equal protection claim was foreclosed

under Campbell v. Louisiana, 523 U.S. 392, 400 (1998) (Justices
3

Thomas and Scalia, concurring in part and dissenting in part).

See Fed. R. App. P. 4(a)(4)(B).

As the state habeas courts did not adjudicate the merits of

Young’s equal protection claim, the deferential standards of review

established by the Antiterrorism and Effective Death Penalty Act of

1996 do not apply. Fisher, 169 F.3d at 300. Federal review of

legal issues is de novo. Lockhart v. Johnson, 104 F.3d 54, 57 (5th

Cir. 1997).

Although most constitutional errors can be harmless, the

Supreme Court has long held that racial discrimination in the

selection of the grand jury is a structural error subject to

automatic reversal. See Neder v. United States, 527 U.S. 1, 119 S.

Ct. 1827, 1833 (1999) (citing Vasquez v. Hillery, 474 U.S. 254,

260-61) (1986)). Young’s subsequent conviction by a petit jury did

not “purge[] any taint attributable to the indictment process.”

Vasquez, 474 U.S. at 260-61. The district court’s conclusion that

Young’s equal protection claim was foreclosed by his subsequent

conviction by a petit jury was thus reversible error. Accordingly,

the judgment of the district court is vacated and the case is

remanded for further proceedings.

VACATED AND REMANDED.