IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-30338

EDWARD E PRICE

Petitioner - Appellant

v.

BURL CAIN, WARDEN, LOUISIANA

STATE PENITENTIARY

Respondent - Appellee

Appeal from the United States District Court 

for the Western District of Louisiana

Before JOLLY, DAVIS, and DeMOSS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Edward Price, an African-American, was tried and convicted by an allwhite jury of aggravated rape and sentenced to life in prison. After exhausting

his remedies in state court, Price filed a petition for a writ of habeas corpus in

the United States District Court for the Western District of Louisiana. That

petition claimed that the state trial court erred when it overruled Price’s Batson

challenge on the ground that Price did not make a prima facie showing that the

State had exercised its peremptory challenges on the basis of race. The district

court denied Price’s claim and dismissed Price’s petition. Price appeals that

dismissal. 

United States Court of Appeals

Fifth Circuit

F I L E D

February 17, 2009

Charles R. Fulbruge III

Clerk
No. 08-30338

2

There is no dispute that the jury empaneled in Price’s case was all-white.

That jury was selected from a 54-member venire, of which 16 members were

African-American. The State used six of its twelve peremptory challenges to

strike African-Americans, three of whom the State had unsuccessfully

challenged for cause. Price used one peremptory challenge to strike an AfricanAmerican. After the jury was empaneled, but before the panel was sworn, Price

raised a Batson objection:

Price: I think that we would interpose at this point a Batson

challenge because the State, I think this panel is going

to be exclusively white.

Court: . . . Make your case. Is that it?

Price: Yeah, that’s it. I mean – 

Court: – You better make it better than that. . . . You make a

prima facie case?

Price: Right.

Court: So, the fact that the panel . . . you think you’ve stated

enough by just saying they’re all white?

The trial court concluded that the mere statement that the jury was allwhite was insufficient to make a prima facie showing to support a Batson

challenge. Louisiana v. Price, 917 So.2d 1201, 1210 (La. Ct. App. 2005)

(recounting colloquy). Because the trial court ruled that Price failed to make a

prima facie case, and thus failed Batson’s first step, it did not proceed to the

second step, which asks the State to articulate race-neutral reasons for its

peremptory challenges. Price’s appeal therefore requires us to decide whether

a prima facie case is made, and Batson’s first step is satisfied, when the

prosecution’s use of peremptory challenges to strike six African-American

veniremen results in an all-white jury.
No. 08-30338

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Under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), this

court may not grant relief on a claim adjudicated by a state court unless the

adjudication “resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by

the Supreme Court of the United States; or . . . resulted in a decision that was

based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1) & (2). “A state

court’s decision is deemed ‘contrary to’ clearly established federal law if it relies

on legal rules that directly conflict with prior holdings of the Supreme Court or

if it reaches a different conclusion than the Supreme Court on materially

indistinguishable facts.” Murphy v. Dretke, 416 F.3d 427, 431-32 (5th Cir. 2005)

(quoting Busby v. Dretke, 359 F.3d 708, 713 (5th Cir. 2004) (citing Williams v.

Taylor, 529 U.S. 362, 405-06 (2000)). “A state court’s decision constitutes an

unreasonable application of clearly established federal law if it is objectively

unreasonable.” Id. (quoting Pondexter v. Dretke, 346 F.3d 142, 146 (5th Cir.

2003) (citing Williams, 529 U.S. at 409)).

Under Batson v. Kentucky, 476 U.S. 79 (1986), claims of racial

discrimination in jury selection are analyzed in a three-step process. Id. 96-98.

First, a defendant must make a prima facie showing that the prosecution has

exercised peremptory challenges on the basis of race. Id. at 93-94, 96-97.

Second, if a prima facie showing is made, the burden shifts to the prosecution to

articulate a race-neutral reason for the peremptory challenge at issue. Id. at 94,

97-98. Third, the trial court must determine whether the defendant has proved

purposeful discrimination. Id. at 98. 

This appeal is concerned only with step one, whether a prima facie

showing was made. Batson explained that to establish a prima facie case, a

defendant: (1) must show that he is a member of a cognizable racial group, and

that the prosecutor has exercised peremptory challenges to remove members of
No. 08-30338

4

that group from the venire; (2) is entitled to rely on the fact “that peremptory

challenges constitute a jury selection practice that permits ‘those to discriminate

who are of a mind to discriminate’”; and (3) must show that these facts and

circumstances raise an inference that the prosecutor exercised peremptory

challenges on the basis of race. Id. at 96 (quoting Avery v. Georgia, 345 U.S. 559,

562 (1953)).

The Supreme Court recently stressed in Johnson v. California, 545 U.S.

162 (2005), that Batson “spoke of methods by which prima facie cases could be

proved in permissive terms.” Id. at 169 n.5 (emphasis added). We read the

Supreme Court’s use of the word permissive to describe the method by which

prima facie cases may be proved to mean not restrictive. In Johnson, the

Supreme Court held that California courts could not require a defendant to show

at step one that “it is more likely than not” that peremptory challenges, if

unexplained, were based on impermissible group bias. Id. at 171-72. The

Supreme Court explained:

We did not intend the first step to be so onerous that a

defendant would have to persuade the judge – on the

basis of all the facts, some of which are impossible for

the defendant to know with certainty – that the

challenge was more likely than not the product of

purposeful discrimination. Instead, a defendant

satisfies the requirements of Batson’s first step by

producing evidence sufficient to permit the trial judge

to draw an inference that discrimination has occurred.

Id. at 170.

In other words, Batson intended for a prima facie case to be simple and

without frills. The opinion was “designed to produce actual answers to

suspicions and inferences.” Id. at 172. Actual answers are preferable to

“needless and imperfect speculation when a direct answer can be obtained by

asking a simple question.” Id. (citations omitted). Batson thus seeks to promote
No. 08-30338

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“‘prompt rulings on objections to peremptory challenges without substantial

disruption of the jury selection process.’” Id. (quoting Hernandez v. New York,

500 U.S. 352, 358-59 (1991)). 

To make a prima facie case, Price needed to show only that the facts and

circumstances of his case gave rise to an inference that the State exercised

peremptory challenges on the basis of race. This was a light burden, and Price

carried it. Price, an African-American man, was tried for the rape of a ChineseAmerican woman. The State used six of its twelve peremptory challenges to

strike African-Americans from the venire, and the resulting jury was all-white.

Under Batson’s “permissive terms,” these facts and circumstances were

“sufficient to permit the trial judge to draw an inference that discrimination has

occurred.” Johnson, 545 U.S. at 170. 

In the light of the foregoing, we remand this case to the district court for

a hearing to determine whether a Batson violation occurred. If the district court

determines that the jury that convicted Price was selected in violation of Batson,

it will grant habeas relief, ordering the state to either retry Price within a

reasonable time or to release him; otherwise it will deny relief and dismiss the

petition. The judgment of the district court is therefore 

REVERSED, VACATED, and REMANDED.