1 United States Court of Appeals,

Fifth Circuit.

No. 93-3262.

Nolan JAMES, Petitioner-Appellee,

v.

John WHITLEY, Warden, Louisiana State Penitentiary, and Richard

P. Ieyoub, Attorney Gene r al, State of Louisiana, RespondentsAppellants.

Dec. 9, 1994.

Appeal from the United States District Court for the Middle

District of Louisiana.

Before WISDOM, KING, and DUHÉ, Circuit Judges.

DUHÉ, Circuit Judge:

Respondents John Whitle y, Warden of the Louisiana State

Penitentiary, and Richard P. Ieyoub, Attorney General of the State

of Louisiana (collectively "the State"), appeal the district

court's grant of a writ of habeas corpus to petitioner Nolan James.

James presented eight claims in his federal habeas petition. The

district court granted relief on James's eq ual protection claim,

which alleged discrimination in the selection of the foreman of the

grand jury that indicted James. We reverse the district court's

grant of the writ and remand the case for consideration of James's

other claims.

FACTS

An Ascension Parish grand jury indicted James for first degree

murder in 1979. James raised his equal protection claim in a

pretrial motion to quash the indictment. The court heard testimony

from two witnesses, both of whom were judges of the Twenty-Third2

Jud icial District, which includes Ascension Parish. The judges

testified that they had impanelled some grand juries in the Parish,

and that they did not recall ever having appointed a black as a

grand jury foreman in Ascension Paris h. At a later hearing, the

judge who presided over James's case, Judge Becnel, stated on the

record that he did not recall any b lack grand jury foreman in

Ascension Parish.

Judge Becnel denied the pretrial motion to quash the

indictment. A jury subsequently found James guilty of second

degree murder, and James was sentenced to life in prison. James

appealed his conviction to the Louisiana Court of Appeal for the

First Circuit, where he urged 28 assignments of error. The court

reconsidered his equal protection claim and determined that James

had failed to prove the degree of under-representation of blacks as

grand jury foremen in Ascension Parish. S tate v. James, 459 So.2d

1299, 1308 (La.Ct.App . 1st Cir.1984), w rit denied, 463 So.2d 600

(La.1985). In reaching its conclusion, the court found that James

failed to establish "the number of grand juries which have been

convened, nor the number of foreman [sic] appointed." Id.

James later filed his federal habeas petition, which the

district court referred to a magistrate judge. The magistrate

judge revisited the equal protection issue and recommended that the

conviction be overturned. In his review of the First Circuit's

decision, the magistrate judge found that the state court's

finding, if a factual finding, was not fairly supported by the

record. The magistrate judge then determined that James had proved1 The State realizes that our precedent forecloses our

determinations on its last two issues. See Johnson, 929 F.2d at

1071; Guice v. Fortenberry, 661 F.2d 496, 498-99 (Former 5th

Cir. Nov. 1981) (en banc) ( Guice I ). The State hopes that,

should we affirm the district court, we would reconsider these

issues en banc. Because we reverse the district court's

conclusion as to the equal protection claim, we do not reach the

State's other issues.

3 a prima facie case for equal protection, and that the state had not

rebutted his claim . The district court agreed with the

magistrate's recommendation and granted James a writ of habeas

corpus. The State appeals.

DISCUSSION

We review the district court's legal determinations de novo.

Johnson v. Puckett, 929 F.2d 1067, 1070 (5th Cir.), cert. denied,

--- U.S. ----, 112 S.Ct. 274, 116 L.Ed.2d 226 (1991). The State

raises three issues on appeal: (1) whether the district court's

conclusion that James had satisfied his prima facie requirements

was erroneous; (2) whether reversal of his conviction is the

proper remedy; and (3) whether equal protection claims concerning

the selection of grand jury foremen are cognizable in habeas corpus

proceedings. 1

To make out a prima facie case for di scrimination in the

selection of grand jury foremen, James must prove: (1) the group

to which he belongs is a recognizable, distinct class that receives

different treatment under the laws as written or applied; (2) the

degree of underrepresentation, by comparing the proportion of the

group in the total population with the proportion of the group

called to serve as grand jury foreman over a significant period of4

time; and (3) that the selection procedure is susceptible to abuse

or is not racially neutral. Rose v. Mitchell, 443 U.S. 545, 565,

99 S.Ct. 2993, 3005, 61 L.Ed.2d 739 (1979) (quoting Castaneda v.

Partida, 430 U.S. 482, 494, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498

(1977)). The Louisiana First Circuit denied James's equal

protection claim because he failed to prove the second element of

his claim. At oral argument before us, the state conceded that

James had proved the first and third elements. Thus, our inquiry

concerns only the degree of underrepresentation.

In federal habeas pr o ceedings, federal courts generally

accord state court findings of fact a presumption of correctness.

28 U.S.C. § 2254(d) (1988). Eight exceptions exist to this

pre sumption. One of the exceptions is if the record does not

fairly support the finding. I d. § 2254(d)(8). If the record as a

whole does not fairly support the finding, the finding is not

entitled to the presumption of correctness. A rmstead v. Scott, 37

F.3d 202, 206 (5th Cir.1994). If the record does fairly support

the finding, the presumption of correctness applies and the

petitioner must prove by clear and conv incing evidence that the

finding is erroneous. I d. at 206; W illiams v. Scott, 35 F.3d 159,

161 (5th Cir.1994).

The district court erroneously determined that the record as

a whole did not fairly support the finding of the Louisiana First

Circuit that James did not establish the number of grand juries

convened in Ascension Parish between 1965 and 1979 nor the number

of foremen appointed. "[Q]uestions of fact that underlie the2 In Guice I, the presumption of correctness did not apply

because the state court did not resolve the merits of the factual

dispute. 661 F.2d at 506-07. The Johnson court disagreed with

the state court's mixed ruling of law and fact, to which the

presumption does not apply. 929 F.2d at 1072-72. The Supreme

Court in Rose recognized that the § 2254(d) presumption could

apply to the statistics underlying the degree of

underrepresentation. 443 U.S. at 574 n. 13, 99 S.Ct. at 3009 n.

3. Nevertheless, the presumption did not apply in Rose because

the state court did not resolve the merits of the factual

dispute. Id.

5 ult imate conclusion a re governed by the statutory presumption."

Sumner v. Mata, 455 U.S. 591, 597, 102 S.Ct. 1303, 1307, 71 L.Ed.2d

480 (1982) (per curiam). In reaching his conclusion, the

magistrate judge compared the statistical information available in

this case to Guice I and Johnson. When the issue is whether §

2254(d)(8) applies, however, the appropriate analysis is whether

the record fairly supports the finding, not whether the record

shows sufficient statistical information to establish the degree of

underrepresentation. 2

The determination of whether the record fairly supp orts a

state court finding requires a high measure of deference. Rushen

v. Spain, 464 U.S. 114, 120, 104 S.Ct. 453, 456, 78 L.Ed.2d 267

(1983). Mere disagreement with a state court finding does not

entitle a federal court to overturn it. M arshall v. Lonberger, 459

U.S. 422, 432, 103 S.Ct. 843, 849-50, 74 L.Ed.2d 646 (1983).

The First Circuit found that James had failed to prove the

number of grand jury foremen appointe d between 1965 and 1979.

"Absent such evidence, it is difficult to say that the number of

Negroes appointed foreman, even i f zero, is statistically so

significant as to make out a case of discrimination under the "rule3 The testimony of the judges goes toward the number of grand

juries convened, not the number of grand jury foremen appointed.

In contrast, in Guice v. Fortenberry, 722 F.2d 276, 278 (5th

Cir.1984) ( Guice II ), the chief deputy clerk of court testified

that, to her personal knowledge, 31 grand jury foremen were

appointed during the relevant period.

6 of exclusion.' " R ose, 443 U.S. at 571, 99 S.Ct. at 3008. On the

number of grand jury foremen selected, James's evidence is purely

inferential. Louisiana law requires that a grand jury be convened

in Ascension Parish twice a year. La.Code Crim.Proc.Ann. art. 414

(West 1991). In G uice I, we noted that this statute prov ides

inferential, not positive, evidence of the number of grand jury

foremen actually selected during the relevant period. 661 F.2d at

504. James presents no positive evidence of the number of grand

jury foremen appointed. 3

The absence of positive proof in the record of the number of

grand jury foremen appointed means that record fairly supports the

state court finding. An ambiguous record provides fair support for

a state court finding. Wainwright v. Goode, 464 U.S. 78, 85, 104

S.Ct. 378, 382-83, 78 L.Ed.2d 187 (1983). Because the evidence put

forth by James is inferential, the state court could reach the

opposite inference an d find that he had not proven the number of

grand jury foremen appointed. Under § 2254(d)(8), we must respect

that finding. We determine that the record fairly supports the

First Circuit's factual finding.

Because the record fairly supports the state court finding,

the presumption of correctness applies. Without positive proof of

the number of grand juries conven ed and foremen appointed in7

Ascension Parish betwee n 1965 and 1979, James cannot show the

degree of underrepresentation required by Rose. The Supreme Court

e mphasized the importance of such statistics in proving an equal

protection claim. R ose, 443 U.S. at 574, 99 S.Ct. at 3009 ("We

decline to overlook so fundame ntal a defect in respondent's

case."). We conclude that James has failed to prove the degree of

underrepresentation required to establish an equal protection

claim.

CONCLUSION

The trial court's grant to James of a writ of habeas corpus is

REVERSED, and the case is REMANDED to consider the other claims in

James's petition.