IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-30266

ALBERT WOODFOX,

Petitioner - Appellee

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY; JAMES 

CALDWELL,

Respondents - Appellants

Appeal from the United States District Court

for the Middle District of Louisiana

Before JOLLY, HIGGINBOTHAM, and SOUTHWICK, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Petitioner-Appellee Albert Woodfox is once again before this Court in 

connection with his federal habeas petition. The district court had originally 

granted Woodfox federal habeas relief on the basis of ineffective assistance of 

counsel, but we held that the district court erred in light of the deferential 

review afforded to state courts under the Antiterrorism and Effective Death 

Penalty Act of 1996 (“AEDPA”), and therefore vacated the district court’s

decision.1 We then remanded the case to the district court to consider the only 

remaining claim, which related to allegations of discrimination in the selection 

1 See Woodfox v. Cain (Woodfox I), 609 F.3d 774, 817–18 (5th Cir. 2010).

United States Court of Appeals

Fifth Circuit

FILED

November 20, 2014

Lyle W. Cayce

Clerk

 

 Case: 13-30266 Document: 00512843586 Page: 1 Date Filed: 11/20/2014
No. 13-30266

of the grand jury foreperson.2 On remand, the district court held that the state 

court was not entitled to AEDPA deference; that Woodfox had successfully 

made out a prima facie case of discrimination in the selection of the grand jury 

foreperson; and that the State of Louisiana, acting through RespondentAppellant Warden Burl Cain, had failed to rebut the prima facie case.3 The 

district court once again granted federal habeas relief.4

The State now appeals that grant of habeas relief. Because we find that 

AEDPA deference should not be granted, that Woodfox successfully made his 

prima facie case at the district court level, and that the State failed in its 

rebuttal, we AFFIRM.

I

A

This case has a long and complicated factual and procedural history. 

Because of our detailed recitation of this history in our earlier opinion, we 

explain here only those facts relevant to the claim at issue: discrimination in 

the selection of the grand jury foreperson.

We begin with an important observation. Woodfox’s claim is not just 

about the selection of the grand jury foreperson. Rather, it is also about the 

selection of the grand jury itself. The grand jury system used for Woodfox’s reindictment was the same as the one challenged in Campbell v. Louisiana.5 As 

the Supreme Court explained, the Louisiana system of grand jury foreperson 

selection, at the time, was unlike most other systems. Under most systems, 

“the title ‘foreperson’ is bestowed on one of the existing grand jurors without 

any change in the grand jury’s composition.”6 But under the Louisiana system 

2 Id.

3 See generally Woodfox v. Cain, 926 F. Supp. 2d 841 (M.D. La. 2013).

4 Id.

5 523 U.S. 392 (1998).

6 Id. at 396.

2

 

 Case: 13-30266 Document: 00512843586 Page: 2 Date Filed: 11/20/2014
No. 13-30266

at issue, “the judge select[ed] the foreperson from the grand jury venire before 

the remaining [eleven] members of the grand jury [were] chosen by lot.”7 The 

foreperson had the same voting power as all the other grand jurors. Thus, in 

effect, the judge chose one grand juror. This case then is one that alleges 

discrimination in the selection of the grand jurors, an important constitutional 

challenge. “For well over a century, the Supreme Court has held that a criminal 

conviction of an African-American cannot stand under the Equal Protection 

Clause of the Fourteenth Amendment if it is based on an indictment of a grand 

jury from which African-Americans were excluded on the basis of race.”8

B

In 1972, Albert Woodfox was an inmate at the Louisiana State 

Penitentiary serving a fifty-year sentence for armed robbery. On April 17, 

1972, the body of Brent Miller, a prison guard at the penitentiary, was found 

in a pool of blood, having been stabbed 32 times. Woodfox, along with three 

other prisoners, was identified as one of the assailants. Woodfox was tried 

twice for the murder. Initially, he was indicted in 1972 and convicted in 1973. 

That conviction was overturned in state court post-conviction proceedings. As 

a result, he was re-indicted in 1993 by a grand jury in West Feliciana Parish. 

The late Judge Wilson Ramshur of the 20th Judicial District appointed the 

grand jury’s foreperson.9 Woodfox was convicted of second-degree murder in 

1998. Woodfox was sentenced to life imprisonment, without the benefit of 

parole, probation, or suspension of sentence in February 1999.

After his re-indictment, Woodfox moved to quash the new indictment 

based upon allegations of discrimination in the selection of the grand jury 

7 Id.

8 Rideau v. Whitley, 237 F.3d 472, 484 (5th Cir. 2000); see, e.g., Strauder v. West

Virginia, 100 U.S. 303, 308-10 (1879).

9 The 20th Judicial District is comprised of both West and East Feliciana Parish.

3

 

 Case: 13-30266 Document: 00512843586 Page: 3 Date Filed: 11/20/2014
No. 13-30266

foreperson. The state trial court denied this motion. After his second

conviction, on direct appeal, Woodfox raised several issues, including the trial 

court’s denial of the motion to quash the indictment. On June 23, 2000, the 

Louisiana Court of Appeal, First Circuit affirmed the conviction and 

sentence,10 and in doing so, held that the trial court made no error in denying 

the motion to quash. The Louisiana First Circuit found that the claim about 

discrimination in the selection of the grand jury foreperson failed because 

Woodfox did not successfully establish a prima facie case. According to the

Louisiana First Circuit, Woodfox had not shown “substantial 

underrepresentation of his race.” Woodfox is African-American. The evidence 

available to the Louisiana First Circuit demonstrated that between March 

1980 and March 1995, African-Americans constituted 44% of all registered 

voters in the Parish, while constituting only 27% of all grand jury forepersons.

First, the Louisiana First Circuit did not think this disparity was large enough. 

Second, the court held that the percentage of African-American registered 

voters did “not indicate how many were qualified to serve as grand jurors.”11

The court reasoned that the difference could have been reduced, if not 

eliminated, if eligible population statistics instead of gross population 

statistics had been used. Woodfox filed a writ application with the Louisiana 

Supreme Court, which was denied on June 15, 2001, and then filed a writ of 

certiorari with the United States Supreme Court, which was denied on 

November 13, 2001.12

10 The Louisiana First Circuit also remanded the matter with instructions to the state 

trial court to notify Woodfox of the appropriate time period for filing an application for postconviction relief.

11 In Louisiana, to be qualified to serve on a grand jury, a person must: 1) be a citizen 

of the United States who has resided within the parish for a year, 2) be at least 18 years old, 

3) be literate in English, 4) not be incompetent because of mental or physical infirmity, and 

5) not be under indictment for or convicted of a felony. La. Code Crim. Proc. Ann. art. 401.

12 Woodfox v. Louisiana, 534 U.S. 1027, 1027 (2001).

4

 

 Case: 13-30266 Document: 00512843586 Page: 4 Date Filed: 11/20/2014
No. 13-30266

C

After failing to gain relief on direct appeal, Woodfox next filed his 

application for state post-conviction relief. He raised several claims, including 

the claim regarding discrimination in the selection of the grand jury 

foreperson. In support of that claim, Woodfox produced new evidence. First, 

Woodfox presented the disparity over a longer period of time. Between 1970 

and 1990, African-Americans represented between 40%–56% of the nonincarcerated population of the Parish. But, between 1964 and 1993, AfricanAmericans represented only 12% of all grand jury forepersons. Second, in 

response to the earlier decision on direct appeal, Woodfox presented the 

disparity using eligible population statistics, instead of general population 

statistics. For the eligible population statistics, Woodfox chose to rely on the 

race percentages found within the grand jurors drawn by lot, i.e., the racial 

makeup of non-foreperson grand jurors.13 Woodfox compiled the race data with 

information he gathered with assistance from the registrar of voters in the 

Parish, and he presented the data to the extent he could determine the race of 

all the non-foreperson grand jurors. Between 1964 and 1993, AfricanAmericans constituted an average of 36% of the non-foreperson grand jurors. 

During the same period, as mentioned above, African-Americans represented 

only 12% of all grand jury forepersons.14

The State filed a response to this application for state post-conviction 

relief.15 In its answer, the State urged the rejection of the grand jury foreperson 

13 Woodfox relied on such data because a Louisiana Supreme Court case had allowed 

the use of such data as eligible population statistics. See State v. Langley, 1995-1489 (La. 

4/3/02); 813 So. 2d 356.

14 Woodfox also broke down the data by two different year periods. Between 1964 and 

1972, African-Americans constituted 13% of non-foreperson grand jurors. Between 1973 and 

1993, African-Americans constituted 45% of non-foreperson grand jurors.

15 The state trial court handling the application for post-conviction relief initially 

denied relief without requiring a response from the State. But Woodfox filed a writ to the 

5

 

 Case: 13-30266 Document: 00512843586 Page: 5 Date Filed: 11/20/2014
No. 13-30266

discrimination claim. The State argued that the new evidence was essentially 

the same as the evidence presented on direct appeal, except that the time 

period had been changed from 1980–1995 to 1964–1993. The State also argued 

that the new evidence, which presented the race of the non-foreperson grand 

jurors was publicly available information that the defense could have 

presented during direct appeal but did not. As a result, the State argued that 

the claim was “meritless,” that the matter had already been ruled upon, and 

that the state post-conviction court need not revisit the issue.

On October 25, 2004, the 21st Judicial District Court sitting as the state 

post-conviction court denied the application for post-conviction relief. The state 

post-conviction court’s decision was comprised of two separate documents: a 

“Judgment” and a statement of “Written Reasons.”

In the “Judgment,” the state post-conviction court denied Woodfox’s 

application in entirety, stating that the application was “fully addressed” by 

the State’s answer and that “[a] review of the record of these proceedings, as 

well as the answer, indicates that there is no need to hold an evidentiary 

hearing in these proceedings. For written reasons this day adopted and 

assigned, the Court finds that the allegations are without merits and the 

Application may be denied without the necessity of further proceedings.” 

In the “Written Reasons,” the state post-conviction court noted that 

Woodfox had to bear the burden of proving that he was entitled to habeas relief. 

It then cited to the Louisiana Code of Criminal Procedure article 930.2, and 

then stated: “In light of such burden of proof, the Court has fully considered 

the application, the answer, and all relevant documents and has determined 

that Petitioner has failed to carry his burden of proof. In determining that

Louisiana First Circuit. That state appellate court granted the writ on May 16, 2003 because 

Woodfox had “raised claims in the application for postconviction relief that, if established, 

would entitle him to relief” and remanded with instruction to order an answer from the State.

6

 

 Case: 13-30266 Document: 00512843586 Page: 6 Date Filed: 11/20/2014
No. 13-30266

Petitioner’s application should be denied, the Court, moreover, adopts the 

State’s [answer] as the written reasons for the Court’s decision.”

After failing to get relief from the state post-conviction court, Woodfox 

filed a writ application with the Louisiana First Circuit, which was denied on 

August 8, 2005. He then filed a writ application with the Louisiana Supreme 

Court, which was denied on September 29, 2006.

D

Woodfox timely filed his petition for federal habeas relief pursuant to 28 

U.S.C. § 2254 on October 11, 2006 and amended it on February 14, 2007.

Woodfox made several claims for habeas relief, including claims of ineffective 

assistance of counsel, claims of suppression of exculpatory evidence, and the 

claim of discrimination in the selection of the grand jury foreperson.

The case was referred to a magistrate judge. As to the ineffective 

assistance of counsel claims, the magistrate judge found that Woodfox’s 1998 

trial counsel had performed deficiently in some respects and thus prejudiced 

Woodfox, and therefore recommended that the conviction be vacated and the 

case remanded to state court.16 As to the grand jury foreperson discrimination 

claim, the magistrate judge ruled in the alternative. The magistrate judge

found that Woodfox had presented evidence sufficient to support a prima facie

case of discrimination, but that an evidentiary hearing would be necessary to 

allow the State an opportunity to rebut the prima facie case. But the 

magistrate judge did not conduct the hearing because Woodfox’s ineffective 

assistance claims were sufficient to overturn his conviction. Instead, the 

magistrate judge recommended that if the district judge disagreed with the 

16 As to the suppression of exculpatory evidence claims, the magistrate judge dealt 

with these claims in a footnote and denied an evidentiary hearing because Woodfox’s 

ineffective assistance of counsel claims were sufficient to overturn his conviction.

7

 

 Case: 13-30266 Document: 00512843586 Page: 7 Date Filed: 11/20/2014
No. 13-30266

resolution of the ineffective assistance claims, then the matter be referred back 

for the evidentiary hearing. 

On July 8, 2008, the district court adopted the magistrate judge’s report 

and granted the writ of habeas corpus. The State filed a motion to supplement 

the record and a motion to reconsider. On September 11, 2008, the district 

court reaffirmed its July 8th ruling granting the writ of habeas corpus. The 

State appealed the grant of habeas corpus. As discussed above, we vacated the 

district court’s judgment based upon the highly deferential review mandated 

by AEDPA.17 But the claim of discrimination in the selection of the grand jury 

foreperson was not before us,18 and we remanded for the resolution of this 

remaining claim.19

E

Upon remand, the district court first held that the state court’s 

decision—specifically the Louisiana First Circuit’s June 23rd ruling—was an 

unreasonable application of clearly established law as determined by the 

Supreme Court and therefore should not be afforded AEDPA deference. It then 

held an evidentiary hearing on May 29–31, 2012.20

The district court ruled that the relevant time period for grand jury 

foreperson selection in West Feliciana Parish was 1980 through March 1993.21

To establish his prima facie claim, Woodfox used both general and eligible 

population statistics. First, the general population statistics showed that in 

1990, the percentage of African-Americans in the Parish, excluding prisoners, 

was 44%.22 The percentage of African-Americans among registered voters 

17 Woodfox I, 609 F.3d at 817–18.

18 Id. at 788 n.1.

19 Id. at 818.

20 Woodfox, 926 F. Supp. 2d at 843.

21 Id. at 844.

22 Id.

8

 

 Case: 13-30266 Document: 00512843586 Page: 8 Date Filed: 11/20/2014
No. 13-30266

between 1980 and 1993 was 43.5%.23 Second, the eligible population statistics 

showed that between 1980 and March 1993, there were 297 non-foreperson 

grand jurors; Woodfox was able to establish the race of 277 of these grand 

jurors.24 Only 113 out of 277 non-foreperson grand jurors were AfricanAmerican, or 40.8%.25 Third, during this time, only 5 out of 27 grand jury 

forepersons were African-American, or 18.5%.26 Based on this and other

factors, the district court found that Woodfox had successfully made out a 

prima facie case.27 The district court then rejected the State’s rebuttal case, 

which included statistical evidence that aimed to discredit the prima facie case 

as well as evidence attempting to demonstrate that West Feliciana Parish 

judges relied on racially neutral criteria in selecting the grand jury 

foreperson.28 The district court granted habeas relief.29 The State now appeals.

II

“In a habeas corpus appeal, we review the district court’s findings of fact 

for clear error and its conclusions of law de novo, applying the same standards 

to the state court’s decision as did the district court.”30 Under 28 U.S.C. § 

2254(d), we cannot grant a writ of habeas corpus with respect to any claim 

adjudicated on the merits in state court unless such adjudication:

(1) 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

23 Id.

24 Id.

25 Id.

26 Id. 27 Id.

28 Id. at 844–58.

29 Id. at 858.

30 Lewis v. Thaler, 701 F.3d 783, 787 (5th Cir. 2012) (internal quotation marks 

omitted); see also Higgins v. Cain, 720 F.3d 255, 260 (5th Cir. 2013).

9

 

 Case: 13-30266 Document: 00512843586 Page: 9 Date Filed: 11/20/2014
No. 13-30266

(2) 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.31

For a challenge to a state court decision under § 2254(d)(1), the Supreme Court 

has clarified that the “contrary to” inquiry is different from the “unreasonable 

application” inquiry.32 A state court’s decision is “contrary to” clearly 

established federal law if “the state court arrives at a conclusion opposite to 

that reached by [the Supreme Court] on a question of law or if the state court 

decides a case differently than [the Supreme Court] has on a set of materially 

indistinguishable facts.”33 A state court’s decision involves an “unreasonable 

application” of clearly established federal law if “the state court identifies the 

correct governing legal principle from [the Supreme Court’s] decisions but 

unreasonably applies that principle to the facts of the prisoner’s case.”34 In 

reviewing a state court’s decision under the “unreasonable application” prong, 

we focus on “the ultimate legal conclusion that the state court reached and not 

on whether the state court considered and discussed every angle of the 

evidence.”35 The Supreme Court has clarified that when a claim is adjudicated 

on the merits, for the purposes of review under § 2254(d)(1), the record is 

limited to the one before the state court, even if the state court issued a 

summary affirmance.36

A challenge to a state court decision under § 2254(d)(2) challenges the 

determination of facts by the state court.37 Under 28 U.S.C. § 2254(e)(1), “a 

31 28 U.S.C. § 2254(d).

32 Williams v. Taylor, 529 U.S. 362, 412–13 (2000).

33 Id. at 413.

34 Id.

35 Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc) (per curiam).

36 Cullen v. Pinholster, 131 S. Ct. 1388, 1398, 1402 (2011).

37 28 U.S.C. § 2254(d)(2).

10

 

 Case: 13-30266 Document: 00512843586 Page: 10 Date Filed: 11/20/2014
No. 13-30266

determination of a factual issue made by a State court shall be presumed to be 

correct” and the habeas petitioner “shall have the burden of rebutting the 

presumption of correctness by clear and convincing evidence.”38

Section 2254(e)(1) is the “arguably more deferential standard.”39 The Supreme 

Court has recognized a division among the circuits on the interplay between 

these two statutory provisions,40 but has yet to resolve this question.41

Regardless, a state court’s factual determination is “not unreasonable merely 

because the federal habeas court would have reached a different conclusion in 

the first instance.”42 For claims that are not adjudicated on the merits in the 

state court, we apply a de novo standard of review.43

Finally, “whether the grand jury was selected in a systematically 

unrepresentative or racially discriminatory manner, has long been recognized 

to be a question of law or a mixed question of fact and law.”44

III

The first issue in this appeal is which state court decision ought to be 

examined for AEDPA deference. The State argues that it is the Louisiana First 

Circuit’s June 23rd ruling on direct appeal which should be examined. Indeed, 

the district court examined this ruling for AEDPA deference. Woodfox argues 

38 Id. § 2254(e)(1).

39 Wood v. Allen, 558 U.S. 290, 301 (2010).

40 Id. at 299 (“[W]e granted review of a question that has divided the Courts of Appeals: 

whether, in order to satisfy § 2254(d)(2), a petitioner must establish only that the state-court 

factual determination on which the decision was based was ‘unreasonable,’ or whether 

§ 2254(e)(1) additionally requires a petitioner to rebut a presumption that the determination 

was correct with clear and convincing evidence.”). 41 Id. at 300 (“Although we granted certiorari to resolve the question of how 

§§ 2254(d)(2) and (e)(1) fit together, we find once more that we need not reach this question 

. . . .”).

42 Id. at 301.

43 Wright v. Quarterman, 470 F.3d 581, 591 (5th Cir. 2006).

44 Rideau, 237 F.3d at 486.

11

 

 Case: 13-30266 Document: 00512843586 Page: 11 Date Filed: 11/20/2014
No. 13-30266

that the state post-conviction court’s October 25th ruling should be 

examined.45

Under AEDPA, “we review the last reasoned state court decision.”46

Using the “look through” doctrine, we “ignore—and hence, look through—an 

unexplained state court denial and evaluate the last reasoned state court 

decision.”47 In Ylst v. Nunnemaker,48 on direct appeal, the state appeals court 

had applied a procedural bar to a claim.49 The petitioner subsequently filed a 

petition for habeas corpus with the state supreme court, “invoking the original 

jurisdiction” of that court.50 That petition was denied without opinion.51 In 

holding that the procedural bar was still valid, the Supreme Court applied a 

presumption that “[w]here there has been one reasoned state judgment 

rejecting a federal claim, later unexplained orders upholding that judgment or 

rejecting the same claim rest upon the same ground.”52 Ylst also made clear 

that if the later state court decides the question differently than the original 

state court, then the later judgment has controlling effect.53

45 The State argues in the alternative that deference should be given to both decisions. 

See Collins v. Secretary of Pennsylvania Dept. of Corrections, 742 F.3d 528, 544-46 (3rd Cir. 

2014); Loggins v. Thomas, 654 F.3d 1204, 1217 (11th Cir. 2011); Hammond v. Hall, 586 F.3d 

1289 (11th Cir. 2009). We find this argument unpersuasive. In the cases cited by the State, 

successive state court decisions decided separate issues, such as the separate prongs of a 

Strickland inquiry. None of the cases cited suggest that deference should be given to both of 

two successive state court decisions on the same issue. In this case, the later state court 

ruling decided the same issue as the earlier one: whether or not Woodfox had made out a 

prima facie case of discrimination. 

46 Batchelor v. Cain, 682 F.3d 400, 405 (5th Cir. 2012) (quoting Wood v. Quarterman, 

491 F.3d 196, 202 (5th Cir. 2007)) (internal quotation marks omitted).

47 Bledsue v. Johnson, 188 F.3d 250, 256 (5th Cir. 1999).

48 501 U.S. 797 (1991).

49 Id. at 799.

50 Id. at 800.

51 Id.

52 Id. at 803.

53 Cf. id. at 801 (“State procedural bars are not immortal, however; they may expire 

because of later actions by state courts. If the last state court to be presented with a particular 

federal claim reaches the merits, it removes any bar to federal-court review that might 

otherwise have been available.”).

12

 

 Case: 13-30266 Document: 00512843586 Page: 12 Date Filed: 11/20/2014
No. 13-30266

Here, working backwards through the state adjudicatory process, it is 

clear that during state post-conviction proceedings, neither the Louisiana First 

Circuit nor the Louisiana Supreme Court issued a reasoned opinion. At the 

very least, then, we have to examine the state post-conviction court’s October 

25th ruling. But the State contends that as to the grand jury foreperson 

discrimination claim, the October 25th ruling by the state post-conviction court

was not on an adjudication on the merits. The State contends that the state 

post-conviction court applied a special type of bar: Louisiana Code of Criminal 

Procedure article 930.4(A), which states that “[u]nless required in the interest 

of justice, any claim for relief which was fully litigated in an appeal from the 

proceedings leading to the judgment of conviction and sentence shall not be 

considered.”54 As we have recognized before, “[t]he bar imposed by article 

930.4(A) is not a procedural bar in the traditional sense, nor is it a decision on 

the merits.”55 The State argues that the state post-conviction decision cannot 

be examined for AEDPA deference because it neither adjudicated the claim on 

the merits nor applied a procedural bar in the traditional sense. The State 

wishes us to look even further back to the opinions on direct appeal. 

Specifically, the State argues that the Louisiana First Circuit’s June 23rd 

decision on direct appeal is the only one that adjudicated this claim on the 

merits; that opinion should be examined for AEDPA deference. The upshot of 

this argument is clear. The Louisiana First Circuit rejected Woodfox’s claim 

because he had failed to present eligible population statistics. Thus, the 

§ 2254(d) inquiry would ask whether the state court’s opinion was contrary to 

or an unreasonable application of clearly established federal law as determined 

by the Supreme Court in requiring eligible population statistics. By contrast, 

54 La. Code. Crim. Proc. Ann. art. 930.4(A).

55 Bennett v. Whitley, 41 F.3d 1581, 1583 (5th Cir. 1994).

13

 

 Case: 13-30266 Document: 00512843586 Page: 13 Date Filed: 11/20/2014
No. 13-30266

Woodfox did present eligible population statistics to the state post-conviction 

court. Thus, the § 2254(d) inquiry would ask whether the state court’s opinion 

was contrary to or an unreasonable application of clearly established federal 

law in rejecting the disparity demonstrated.

To our eyes, the state-post conviction opinion was an adjudication on the 

merits and should be examined for AEDPA deference. This conclusion is the 

product of two different reasons. First, the law-of-the-case doctrine suggests 

that this was a merits adjudication. “The law-of-the-case doctrine posits that 

when a court decides upon a rule of law, that decision should continue to govern 

the same issue in subsequent stages in the same case.”56 “[A]n issue of fact or 

law decided on appeal may not be reexamined either by the district court on 

remand or by the appellate court on subsequent appeal.”57 During his first 

appeal to our Court, we specifically noted that the grand jury foreperson 

discrimination claim was not at issue. Yet when deciding the nature of the 

state-post conviction opinion we also held that “it is clear that the state [postconviction] court decided all of Woodfox’s claims on the merits.”58 This holding 

binds us, and compels the conclusion that the state post-conviction court 

adjudicated the present claim on the merits.

Second, even if we reject the use of the law-of-the-case doctrine, we would 

still hold that the state post-conviction court adjudicated the claim on the 

merits. The Supreme Court clarified in Harrington v. Richter,59 that “[w]hen a 

federal claim has been presented to a state court and the state court has denied 

relief, it may be presumed that the state court adjudicated the claim on the 

56 Med. Ctr. Pharmacy v. Holder, 634 F.3d 830, 834 (5th Cir. 2011) (citations omitted) 

(internal quotation marks omitted).

57 United States v. Lee, 358 F.3d 315, 320 (5th Cir. 2004) (citations omitted) (internal 

quotation marks omitted).

58 Woodfox I, 609 F.3d at 798.

59 131 S. Ct. 770 (2011).

14

 

 Case: 13-30266 Document: 00512843586 Page: 14 Date Filed: 11/20/2014
No. 13-30266

merits in the absence of any indication or state-law procedural principles to 

the contrary.”60 The Richter presumption applies even where the habeas 

petitioner raises a federal claim and the “state court rules against the 

defendant and issues an opinion that addresses some issues but does not 

expressly address the federal claim in question.”61 But the “presumption may 

be overcome when there is reason to think some other explanation for the state 

court’s decision is more likely.”62 The presumption could be rebutted “either by 

the habeas petitioner (for the purpose of showing that the claim should be 

considered by the federal court de novo) or by the State (for the purpose of 

showing that the federal claim should be regarded as procedurally 

defaulted).”63 For example, “a federal claim [that] is rejected as a result of sheer 

inadvertence,” would not be afforded the Richter presumption.64 Thus, we must 

presume that the state post-conviction opinion was an adjudication on the 

merits as to the grand jury foreperson discrimination claim. And it is the 

State’s burden to demonstrate that a bar—such as Article 930.4(A)—was 

applied. The State simply cannot carry this burden.

We have adopted a three-part test when it is unclear whether a state 

court’s opinions adjudicates a claim on the merits. We consider:

(1) what the state courts have done in similar cases; 

(2) whether the history of the case suggests that the 

state court was aware of any ground for not 

adjudicating the case on the merits; and 

(3) whether the state courts’ opinions suggest reliance 

upon procedural grounds rather than a determination 

on the merits.65

60 Id. at 784–85.

61 Johnson v. Williams, 133 S. Ct. 1088, 1091 (2013).

62 Richter, 131 S. Ct. at 785.

63 Williams, 133 S. Ct. at 1091.

64 Id. at 1097.

65 Mercadel v. Cain, 179 F.3d 271, 274 (5th Cir. 1999) (citation omitted) (internal 

quotation marks omitted).

15

 

 Case: 13-30266 Document: 00512843586 Page: 15 Date Filed: 11/20/2014
No. 13-30266

As to the first prong, as we noted in Woodfox’s first appeal, the state postconviction court held that Woodfox’s claims had no merit and that it would 

adopt the State’s answer. The court cited Louisiana Code of Criminal 

Procedure article 930.2, which provides that “[t]he petitioner in an application 

for post conviction relief shall have the burden of proving that relief should be 

granted.”66 The Louisiana Supreme Court cites Article 930.2 both in cases 

where the petitioner has failed to carry his burden on the merits and where 

the petitioner has failed to meet his burden on some procedural point.67

Moreover, the Louisiana Courts of Appeals have repeatedly cited Article 

930.4(A) when relying upon it, while in this case no such citation was made.68 

Thus, consideration of what the state courts have done in similar cases does 

not support overcoming the presumption that the state court here issued a 

decision on the merits.

As to the second prong, the history of the case suggests that the state 

court was aware of a possible ground for not adjudicating the case on the 

merits. The State primarily relies on the answer that it submitted to the state 

post-conviction court. The State argued that the new evidence presented was 

both untimely and substantially similar to evidence already considered on 

appeal, and thus did not justify revisiting the already-litigated issue. This 

reasoning could support a merits decision: it urges that the logic behind the 

merits decision on appeal retained its force because nothing of consequence 

had been added in the post-conviction case. Indeed, the answer explicitly 

66 La. Code Crim. Proc. Ann. Art. 930.2.

67 Compare State v. LeBlanc, 2006-0169 (La. 9/16/06); 937 So. 2d 844, 844 (per curiam), 

with State v. Russell, 2004-1622 (La. 11/15/04); 887 So. 2d 462, 462.

68 See, e.g., State v. Mourra, 06-695 (La. App. 5 Cir. 1/30/07), 951 So. 2d 1216, 1218; 

State v. Hunter, 2002-2742 (La. App. 4 Cir. 2/19/03), 841 So. 2d 42, 43; State v. Biagas, 1999-

2652 (La. App. 4 Cir. 2/16/00), 754 So. 2d 1111, 1118.

16

 

 Case: 13-30266 Document: 00512843586 Page: 16 Date Filed: 11/20/2014
No. 13-30266

asserted that the claim was “meritless.” On the other hand, though it never 

cited Article 930.4(A), the State’s argument could also provide grounds 

supporting a non-merits decision based on that Article. It is worth noting that 

a distinction may be drawn between the state court being “aware of any ground 

for” a non-merits decision and the court being aware simply of the argument 

that such a ground exists. Putting aside that distinction, however, it does 

appear that the court was aware of a ground that might have supported a nonmerits decision under Article 930.4(A). 

As to the third prong, we find ourselves constrained to follow the logic 

adopted in Woodfox’s earlier appeal. We inquire whether the state postconviction court’s opinion suggests reliance upon procedural grounds rather 

than a determination of the merits. In its “Judgment,” the court stated that 

the record along with the State’s answer indicated that “the allegations are 

without merit.” In its “Written Reasons,” the court stated that it had 

considered “the application, the answer, and all relevant documents” before 

concluding that Woodfox failed to meet his burden. The court then stated that 

“moreover” it was adopting the State’s answer. As we noted in Woodfox’s 

earlier appeal and note again now, “moreover” means “[i]n addition thereto, 

also, furthermore, likewise, beyond this, beside this,”69 or “in addition to what 

has been said.”70 Resultantly, the state post-conviction court reviewed the 

record in its entirety and found no merit as to any of Woodfox’s claims. In 

addition to this conclusion, the court also adopted the State’s answer which, as 

discussed above, could support either a merits or non-merits decision.

We cannot simply assume that there was an implicit application of the 

Article 930.4(A) bar. To do so would fly directly in the face of the presumption 

69 Black’s Law Dictionary 1009 (6th ed. 1990).

70 Merriam-Webster’s Collegiate Dictionary 755 (10th ed. 2002).

17

 

 Case: 13-30266 Document: 00512843586 Page: 17 Date Filed: 11/20/2014
No. 13-30266

of merits adjudication the Supreme Court has clearly announced. In this case, 

the factors on balance point to the conclusion that the state post-conviction 

court adjudicated the grand jury foreperson discrimination claim on the merits.

Therefore, the district court erred in examining afresh the Louisiana First 

Circuit ruling. We now turn to examine the state post-conviction decision, 

according the deference required by AEDPA.

IV

If the state post-conviction opinion withstands the scrutiny of § 2254(d),

thereby affording AEDPA deference, habeas relief may not be granted.

A

In Castaneda v. Partida,71 the Supreme Court held that to show that an 

equal protection violation has occurred in a grand jury context, the “defendant 

must show that the procedure employed resulted in substantial 

underrepresentation of his race or of the identifiable group to which he 

belongs.”72 To make a prima facie case, the petitioner must do three things:

The first step is to establish that the group is one that 

is a recognizable, distinct class, singled out for 

different treatment under the laws, as written or as 

applied. Next, the degree of underrepresentation must 

be proved, by comparing the proportion of the group in 

the total population to the proportion called to serve 

as grand jurors, over a significant period of time. This 

method of proof, sometimes called the ‘rule of 

exclusion,’ has been held to be available as a method 

of proving discrimination in jury selection against a 

delineated class. Finally, as noted above, a selection 

procedure that is susceptible of abuse or is not racially 

neutral supports the presumption of discrimination 

raised by the statistical showing.73

71 430 U.S. 482 (1977).

72 Id. at 494.

73 Id. (citations omitted).

18

 

 Case: 13-30266 Document: 00512843586 Page: 18 Date Filed: 11/20/2014
No. 13-30266

Upon showing of this prima facie case, “the burden then shifts to the State to 

rebut that case.”74

There can be no dispute that the first and third elements of the prima 

facie case have been met. African-Americans are a distinct, cognizable class 

that have been singled out for discrimination.75 Next, both federal and state

courts have recognized that the system of selecting the grand jury foreperson 

then in place was susceptible to abuse.76 Indeed, as the Louisiana Supreme 

Court held before Woodfox’s state post-conviction proceedings, the system “was 

unquestionably subject to abuse according to subjective criteria that may 

include race and gender.”77 If the state post-conviction court had rejected the 

prima facie case on either of these prongs, its determination would have clearly 

been contrary to or an unreasonable application of clearly established federal 

law. Therefore, the state post-conviction court could only have rejected this 

claim based on the second element: that the degree of underrepresentation had 

not been proven over a significant period of time.

B

In making our § 2254(d) inquiry, we begin first by clarifying a question 

we are not answering. We need not decide the question of whether a state court 

errs when it requires eligible population statistics rather than general 

population statistics from a petitioner in making out a prima facie case. That 

issue is quite complicated. To begin, Castaneda allowed the use of general 

population statistics in proving the degree of underrepresentation. Even 

though Chief Justice Burger argued in dissent that “eligible population 

74 Id. at 495.

75 Rose v. Mitchell, 443 U.S. 545, 555–56 (1979).

76 Campbell, 523 U.S. at 396–97; Guice v. Fortenberry (Guice I), 661 F.2d 496, 503 (5th 

Cir. 1981); Langley, 813 So. 2d at 371.

77 Langley, 813 So. 2d at 371.

19

 

 Case: 13-30266 Document: 00512843586 Page: 19 Date Filed: 11/20/2014
No. 13-30266

statistics, not gross population figures, provide the relevant starting point,”78

the majority rejected this position. The majority found that the petitioner had 

made a prima facie case, thus shifting the burden of rebuttal to the State.79

Next, the Castaneda Court faulted the Texas state court under review for 

speculating on its own motion that general population statistics were not 

reliable, and requiring the use of eligible population statistics.80 Instead, 

Castaneda made it the State’s burden to show that the statistical disparities 

are unreliable through the use of eligible population statistics.81 Thus, 

Castaneda stands for the proposition that petitioners can always prevail on the 

prima facie case using general population statistics, and it is the State’s burden 

to produce eligible population statistics.

But Castaneda’s holding is also limited by its context. First, Castaneda

compares the general population statistics to a group of persons not at issue in 

this case: people called to serve as grand jurors, not those who actually served 

as grand jurors. As the Supreme Court explained at the time, the Texas method 

of selecting grand jurors was unique. A Texas state district judge would 

appoint jury commissioners; those jury commissioners would in turn select a 

list of 15 to 20 people from which the grand jury would eventually be drawn.82

When at least 12 of those people appeared appear in court, the district judge 

would proceed to test their qualifications.83 Thus, “qualifications [were] not 

tested until the persons on the list appear[ed] in the court.”84 Castaneda

compares the general population statistics to those called by the jury 

78 Castaneda, 430 U.S. at 504 (Burger, C.J. dissenting).

79 Id. at 495 (majority opinion).

80 Id. at 498.

81 Id. at 499–500.

82 Id. at 484.

83 Id. at 484–85.

84 Id. at 488 n.8.

20

 

 Case: 13-30266 Document: 00512843586 Page: 20 Date Filed: 11/20/2014
No. 13-30266

commissioners. In other words, it compares population statistics to a group 

that had not yet been qualified. By contrast, Woodfox attempted to compare 

his population statistics to persons who actually served as grand jury 

forepersons, i.e., a group of qualified persons. Second, the Supreme Court also 

explained that it preferred not to use eligible population statistics because the 

idea that eligible population statistics ought to be used was not brought up 

until oral argument: “[T]here are so many implicit assumptions in this 

analysis, and we consider it inappropriate for us, as an appellate tribunal, to 

undertake this kind of inquiry without a record below in which those 

assumptions were tested.”85

Further complicating the question is our decision in United States ex rel. 

Barksdale v. Blackburn.86 In that case, the “issue [was] whether general 

population statistics or more meaningful eligible population statistics should 

be used where . . . those statistics are in the record.”87 We acknowledged that 

Castaneda used general population statistics, but held that Castaneda “should 

not be read to require using those figures.”88 We decided that “statistics 

describing the presumptively eligible black juror population, rather than the 

general black population, provide the proper starting point for an inquiry into 

racial disparities in the Parish.”89 This was because such “appropriate 

statistics had been developed in the record.”90

Since Woodfox presented both general and eligible population statistics

to the state post-conviction court, however, our § 2254(d) inquiry is much 

simpler. We simply have to ask whether the state post-conviction court’s 

85 Id.

86 639 F.2d 1115 (1981) (en banc).

87 Id. at 1123.

88 Id.

89 Id. at 1124.

90 Id. at 1123.

21

 

 Case: 13-30266 Document: 00512843586 Page: 21 Date Filed: 11/20/2014
No. 13-30266

rejection of the statistics presented was contrary to or an unreasonable 

application of clearly established federal law as determined by the Supreme 

Court.

C

Recall that Woodfox presented the following information to the state 

post-conviction court. First, that between 1970 and 1990, African-Americans 

represented between 40%–56% of the non-incarcerated population of the 

Parish. Second, that between 1964 and 1993, African-Americans constituted 

an average of 36% of the non-foreperson grand jurors.91 This constituted his 

proof of general and eligible population statistics. Third, that between 1964 

and 1993, African-Americans represented only 12% of all grand jury 

forepersons. Therefore, using the low end of general population statistics, the 

absolute disparity would have been 28%, and using the eligible population 

statistics it would have been 24%.

State courts are not restricted to using only absolute disparity evidence 

to evaluate a prima facie case.92 However, absolute disparity evidence was the 

only kind of evidence put before the state post-conviction court in this case. The 

Supreme Court has provided useful indicators as to the amount of absolute 

disparity that is sufficient to satisfy the second element of the prima facie case. 

To begin, the Court has held that underrepresentation by as much as 10% does 

not show purposeful discrimination based on race.93 Next, in Castaneda, the 

petitioner successfully made his prima facie case by showing that Mexican91 Woodfox also broke down the data by two different year periods. Between 1964 and 

1972, African-Americans constituted 13% of non-foreperson grand jurors. Between 1973 and 

1993, African-Americans constituted 45% of non-foreperson grand jurors.

92 Berghuis v. Smith, 559 U.S. 314, 329 (2010) (“[No] decision of this Court specifies 

the method or test courts must use to measure the representation of distinctive groups in 

jury pools.”).

93 Swain v. Alabama, 380 U.S. 202, 208–09 (1965), overruled on other ground by

Batson v. Kentucky, 476 U.S. 79 (1986).

22

 

 Case: 13-30266 Document: 00512843586 Page: 22 Date Filed: 11/20/2014
No. 13-30266

Americans constituted 79.1% of the county, yet constituted only 39% of those 

summoned for grand jury service: an absolute disparity of 40%.94 Not only that, 

but Castaneda also highlighted the other absolute disparities that were 

acceptable to establish a prima facie case. For example, the Supreme Court has 

specifically allowed the following disparities to make out a prima facie case of 

grand jury discrimination: 14.7%95; 18%96; 19.7%97; 23%.98

Based on these figures, it is apparent that the absolute disparities before 

the state post-conviction court—either 24% or 28%—could not have been 

rejected without being an unreasonable application of federal law as 

determined by the Supreme Court. These disparities are well within the range 

considered significant by the Supreme Court. As a result, the state postconviction opinion cannot be afforded AEDPA deference under the § 2254(d)

standard.

V

Having held that AEDPA deference is not warranted, we now turn to the 

proceedings held before the district court at the federal evidentiary hearing. 

We begin with the prima facie case made before the district court.

As a reminder, under Castaneda, there are three elements to the prima 

facie case: 1) the group has to be a recognizable, distinct class, singled out for 

different treatment under the laws, as written or as applied, 2) the degree of 

94 Castaneda, 430 U.S. at 495–96. 95 Jones v. Georgia, 389 U.S. 24, 24 (1967) (per curiam) (holding that disparity was 

enough where African-Americans were 19.7% of taxpayers but only 5% of jury list).

96 Whitus v. Georgia, 385 U.S. 545, 552 (1967) (holding that disparity was enough 

where African-Americans were 27.1% on the tax digest but only 9.1% of grand jury venire).

97 Sims v. Georgia, 389 U.S. 404, 407 (1967) (per curiam) (holding that disparity was 

enough where African-Americans were 24.4% of the individual taxpayers in the county but 

only 4.7% of the names on the grand jury list).

98 Turner v. Fouche, 396 U.S. 346, 359 (1970) (holding that disporting was enough 

where African-Americans were 60% of the general population in the county but only 37% on 

the list from which grand jury was drawn).

23

 

 Case: 13-30266 Document: 00512843586 Page: 23 Date Filed: 11/20/2014
No. 13-30266

underrepresentation must be proved over a significant period of time, and 3) 

the selection procedure must be susceptible of abuse or must not be racially 

neutral.99 Again, there can be no doubt that Woodfox met the first and third 

elements. Woodfox is African-American and African-Americans constitute a 

distinct, cognizable class.100 Next, the Louisiana procedure for selecting grand 

jury forepersons prior to 1999 was “unquestionably subject to abuse according 

to subjective criteria that may include race and gender.”101

As to the second element, the district court held that the relevant time 

period was between 1980 and March 1993. Recall that, to establish his prima 

facie claim, Woodfox used both general and eligible population statistics. First, 

the general population statistics showed that in 1990, the percentage of 

African-Americans in the Parish, excluding prisoners, was 44%.102 The 

percentage of African-Americans among registered voters between 1980 and 

1993 was 43.5%.103 Second, the eligible population statistics showed that 

between 1980 and March 1993, there were 297 non-foreperson grand jurors;

Woodfox was able to establish the race of 277 of these grand jurors.104 Only 113 

out of 277 non-foreperson grand jurors were African-American, or 40.8%.105

Third, during this time, only 5 out of 27 grand jury forepersons were AfricanAmerican, or 18.5%.106 Based on these statistics, the district court found that 

a prima facie case had been established. We agree. The absolute disparity 

using general population statistics is at least 25%. This in itself would be 

enough to establish the prima facie case. First, our Court has previously 

99 Castaneda, 430 U.S. at 494.

100 Mitchell, 443 U.S. at 565.

101 Langley, 813 So. 2d at 371.

102 Id.

103 Id.

104 Id.

105 Id.

106 Id.

24

 

 Case: 13-30266 Document: 00512843586 Page: 24 Date Filed: 11/20/2014
No. 13-30266

allowed the use of general population statistics for this purpose.107 Second, this 

disparity is exactly in the range the Supreme Court has found sufficient for a 

prima facie case.108 Fifth Circuit precedent confirms that these numbers are 

enough.109 Moreover, the absolute disparity using eligible statistics is 22.3%.110

The district court did not err in finding that Woodfox had made out his prima 

facie case.

VI

The prima facie case made by Woodfox “therefore shifted the burden of 

proof to the State to dispel the inference of intentional discrimination.”111

Before proceeding to the rebuttal case, however, we deal with the evidentiary 

stages the district court set up for the proceedings. 

The district court split its hearing into three stages. Stage One was to be 

the prima facie case. The prima facie case, as discussed above, was for between 

1980 and March 1993. And it covered grand jury foreperson selections for all 

of West Feliciana Parish, i.e., it covered grand jury foreperson selections by 

both Judge Ramshur (the appointing judge in Woodfox’s re-indictment) and 

Judge William Kline. Stage Two was to be the State’s rebuttal, both as to 

statistics and race-neutral criteria used in the selection of grand jury 

forepersons. Stage Three was to be Woodfox’s reply because once the rebuttal 

was successful, the presumption of discrimination would disappear and 

Woodfox would again have the burden of showing discriminatory intent on the 

107 See Rideau, 237 F.3d at 486 (using general population statistics).

108 See Castaneda, 430 U.S. at 495–96; Fouche, 396 U.S. at 359; Jones, 389 U.S. at 24; 

Whitus, 385 U.S. at 552; Sims, 389 U.S. at 407.

109 See Rideau, 237 F.3d at 486 (holding that disparity was enough where AfricanAmericans were 18.5% of the parish’s male population over 21 and 16-2/3% of registered 

voters, but only 5% of the grand jury venire).

110 The State takes issue with the use of Woodfox’s eligible population statistics for 

the prima facie case because they were not developed until Stage Three. Even accepting this 

contention, however, we find the general population statistics from Stage One were enough.

111 Castaneda, 430 U.S. at 497–98.

25

 

 Case: 13-30266 Document: 00512843586 Page: 25 Date Filed: 11/20/2014
No. 13-30266

part of Judge Ramshur. This framework parallels the Supreme Court’s

Batson112 framework, which “(1) requir[es] defendants to establish a prima 

facie case of discrimination, (2) ask[s] prosecutors then to offer a race-neutral 

explanation for their use of the peremptory, and then (3) require[es]

defendants to prove that the neutral reason offered is pretextual.”113

The State argues that this three-stage process is not allowed under 

Castaneda; that although the district court pronounced that it did not need to 

reach Stage Three, it implicitly did so because it used Woodfox’s eligible 

population statistics as the proper baseline, which were developed in Stage 

Three. While we agree, we do not find any reversible error. First, the Batson

framework is not an exact analogy to the Castaneda framework. While in 

Batson a simple articulation of any race-neutral reason moves the process to 

the next stage, we have found the rebuttal stage of Castaneda to encompass 

more: it is an examination into whether there was intentional 

discrimination.114 Thus, in Castaneda challenges, Stages Two and Three are 

really one and the same. Second, it is evident that the district court had to 

reach the evidence in Stage Three. As we discuss below, the State provided a 

statistical rebuttal and Woodfox a statistical reply. For the district court to rely 

on Woodfox’s statistical reply, it necessarily reached what it termed Stage 

Three. This presents no reversible error. Even considering all the Stage Two 

and Three evidence together, the State fails in its rebuttal case.

VII

In rebuttal of the prima facie case, the State renews its arguments that 

the eligible population statistics used by Woodfox were not appropriate and 

that, in any case, the statistical disparity was not enough.

112 Batson v. Kentucky, 476 U.S. 79 (1986).

113 Miller-El v. Dretke, 545 U.S. 231, 267 (2005) (Breyer, J., concurring). 

114 Guillory v. Cain, 303 F.3d 647, 650 (5th Cir. 2002).

26

 

 Case: 13-30266 Document: 00512843586 Page: 26 Date Filed: 11/20/2014
No. 13-30266

A

As Castaneda suggests, the State in rebuttal tried to introduce its own 

eligible population statistics. The State introduced an expert according to 

whom the eligible population statistics for the Parish showed that AfricanAmericans were only 36.62% of the population eligible for grand jury 

foreperson service. The district court rejected the use of this figure, concluding

that the appropriate baseline for comparison was 40.8% from Woodfox’s 

eligible population statistics. We agree.

To understand the problematic nature of the State’s 36.62% baseline, it 

is important to understand how it was derived. The State’s expert started with 

the voter rolls for West Feliciana Parish. He then proceeded to screen out those 

people on the voter rolls who would be ineligible to serve as grand jurors, and 

did so by using illiteracy as his screening factor. But public records only 

contained the illiteracy data for 1980–1985 and 1988–1993. Moreover, only the 

data from 1980–1985 were broken down by race, and they indicated that 97.8% 

to 98% of illiterate voters were African-American. The expert used the smaller 

of these numbers (97.8%) and applied it to the 1988–1993 data to derive the 

percentage of illiterate voters who were African-American. Then, for the 

missing time period of 1986–1987, he used a regression analysis to determine 

the number of illiterate voters in the two year period. Finally, he then 

combined this illiteracy data with the voter rolls to conclude that AfricanAmericans were only 36.62% of the eligible population. In sum, this analysis 

relies on limited information about literacy rates from 1980–1985 and no 

evidence of literacy rates, broken down by race, from 1985–1993. Given this 

incomplete picture, we cannot find reversible error in the district court’s 

refusal to rely upon it. In Barksdale, for example, we similarly rejected the 

27

 Case: 13-30266 Document: 00512843586 Page: 27 Date Filed: 11/20/2014
No. 13-30266

opinion of a state’s expert footed on his statistical analysis where he was

“overzealous in his adjustment of the eligible population.”115

The type of eligible population statistics provided by Woodfox have 

already been accepted by the Louisiana Supreme Court. First, the Louisiana 

Supreme Court has held that for the purposes of a grand jury foreperson 

discrimination claim, a petitioner can use the percentage of a racial group from 

the non-foreperson grand jurors as representative of eligible population 

statistics.116 As to the State’s argument that Woodfox’s eligible population 

statistics are merely a sample and not the whole population, “common sense 

tells us that the group of grand jurors who actually served is . . . a randomlyselected sample or subset of” the eligible population.117 More importantly, the 

district court concluded that the State’s statistics “relied on more incomplete 

data” than the statistics relied on by Woodfox.118 It further found that “the 

State has altered the numbers to reduce the baseline of eligible AfricanAmericans.”119 Given the fact-intensive nature of the competing statistical 

inquiries and the district court’s through review of these questions, we hold 

the district court did not clearly err in finding that the appropriate baseline for 

eligible population statistics was 40.8%.

B

The State also argues that Woodfox failed to show statistical significance 

in the disparity. As both parties acknowledge, there are other statistical 

methods besides absolute disparity, such as disparity in standard deviations

as well as hypothesis testing (including one-tailed and two-tailed testing).

115 Barksdale, 639 F.2d at 1125–26.

116 Langley, 813 So. 2d at 371–72.

117 Id. at 369–70.

118 Woodfox, 926 F. Supp. 2d at 848.

119 Id. at 850.

28

 

 Case: 13-30266 Document: 00512843586 Page: 28 Date Filed: 11/20/2014
No. 13-30266

We begin with a necessary observation. While it is true that Castaneda

discussed disparity in standard deviations, the Supreme Court conducted its 

analysis in absolute disparity terms by holding that a 40% disparity was 

enough to establish a prima facie case.120 Indeed, we have “referred to 

statistical methods other than absolute disparity, but have never found a 

constitutional violation based on the data produced by such methods.”121 In 

this case, the absolute disparities shown are within the range traditionally 

accepted by the Supreme Court to establish a prima facie case of 

discrimination.

However, the gravamen of the State’s argument is that the absolute 

disparities shown are meaningless because they are statistically insignificant. 

The State argues that under the 40.8% baseline of eligible population 

statistics, the disparity is only 2.37 standard deviations.122 Woodfox argues 

that standard deviations are not the appropriate method of measuring 

statistical significance. He argues next that under the more accurate one-tailed 

and two-tailed testing, he has shown statistical significance for both baselines.

We begin first with the disparity in standard deviations. The source of 

the difficulty is the Supreme Court’s general language in Castaneda, offering 

a description of standard deviation, but not an explanation of its context or use 

with regard to binomial distributions. As the Court explained:

If the jurors were drawn randomly from the general 

population, then the number of Mexican-Americans in 

the sample could be modeled by a binomial 

120 Compare Castaneda, 430 U.S. at 496, with id. at 496 n.17 (discussing disparity in 

terms of standard deviations).

121 United States v. Maskeny, 609 F.2d 183, 190 (5th Cir. 1980) (citing Berry v. Cooper, 

577 F.2d 322, 326 n.11 (5th Cir. 1978) and United States v. Goff, 509 F.2d 825, 826–27 & n.3 

(5th Cir. 1975), cert. denied, 423 U.S. 857 (1975)).

122 The State also argues that under the 36.62% baseline, the disparity is 1.95 

standard deviations. We need not concern ourselves with this argument, however, because 

we have already rejected the State’s eligible population statistics.

29

 

 Case: 13-30266 Document: 00512843586 Page: 29 Date Filed: 11/20/2014
No. 13-30266

distribution. Given that 79.1% of the population is 

Mexican-American, the expected number of MexicanAmericans among the 870 persons summoned to serve 

as grand jurors over the 11-year period is 

approximately 688. The observed number is 339. Of 

course, in any given drawing some fluctuation from 

the expected number is predicted. The important 

point, however, is that the statistical model shows that 

the results of a random drawing are likely to fall in the 

vicinity of the expected value. The measure of the 

predicted fluctuations from the expected value is the 

standard deviation, defined for the binomial 

distribution as the square root of the product of the 

total number in the sample (here 870) times the 

probability of selecting a Mexican- American (0.791) 

times the probability of selecting a non-MexicanAmerican (0.209). Thus, in this case the standard 

deviation is approximately 12. As a general rule for 

such large samples, if the difference between the 

expected value and the observed number is greater 

than two or three standard deviations, then the 

hypothesis that the jury drawing was random would 

be suspect to a social scientist. The 11-year data here 

reflect a difference between the expected and observed 

number of Mexican-Americans of approximately 29 

standard deviations.123

Despite its generality, two important lessons are fairly drawn from this 

discussion. First, in Castaneda, the difference between the expected and 

observed number was 29 standard deviations, very different from the 2.37

standard deviations present in this case. Second, and importantly, the 

Supreme Court did not define the number of standard deviations necessary to 

offer a statistically significant result. Instead, it observed only that a difference 

greater than 2 or 3 standard deviations would cause a social scientist to doubt 

that the difference had occurred by chance. This is important because the State 

123 Castaneda, 430 U.S. at 496 n.17.

30

 

 Case: 13-30266 Document: 00512843586 Page: 30 Date Filed: 11/20/2014
No. 13-30266

primarily argues that a standard deviation between 2 and 3 is a “gray zone,” 

not necessarily implicating statistically significance. Since the disparity is only 

2.37 standard deviations, the State argues that Woodfox has not shown 

statistical significance.

We need not linger further here because the district court found the onetailed and two-tailed tests more appropriate and addressed the statistical 

significance issue in those terms. Woodfox’s expert explained that standard 

deviation is a crude tool to analyze symmetric, bell-shaped, normallydistributed data, but does not work where, as here, the data is not 

symmetrically distributed. Again, given the fact-intensive nature of the 

statistical inquiry, we can find no clear error in the district court’s opting to 

use the one-tailed and two-tailed tests.

The basics of hypothesis testing (including one-tailed and two-tailed 

tests) are explained through two simple examples. First, suppose that 50% of 

the population eligible to serve as jurors in a county are women.124 A jury is 

drawn from a panel of 350 persons selected by the clerk of the court, but the 

panel includes only 102 women, i.e., less than 50%.125 Hypothesis testing 

answers the question of whether the shortfall in women can be explained by 

the mere play of random chance.126 A statistician would formulate and test a 

null hypothesis, which in this case would see the panel of 350 as 350 persons 

drawn at random from the larger eligible population.127 The expected number 

of women would be 50% of 350, which is 175.128 The observed number is 

124 David H. Kaye & David A. Freedman, Reference Guide on Statistics, in Reference 

Manual on Scientific Evidence 211, 249 (3d ed. 2011).

125 Id.

126 Id.

127 Id.

128 Id.

31

 

 Case: 13-30266 Document: 00512843586 Page: 31 Date Filed: 11/20/2014
No. 13-30266

obviously less: 102.129 The shortfall is the difference between 175 and 102: 

73.130 Hypothesis testing answers the question of how likely it is to find this

disparity between the numbers—the probability is called the p-value.131 “Large 

p-values indicate that a disparity can easily be explained by the play of 

chance.”132 “[I]f p is very small, something other than chance must be 

involved.”133 “In practice, statistical analysts typically use levels of 5% and 1%” 

for statistical significance.134

Second, to demonstrate the difference between one-tailed and two-tailed 

testing, suppose a coin is tossed 1000 times and the result is 532 heads.135 “The 

null hypothesis to be tested asserts that the coin is fair.”136 If correct, the 

chance of getting 532 or more heads is 2.3%; in other words, the p-value is 

2.3%.137 This is called one-tailed testing.138 Alternatively, a statistician can 

compute the chance of getting 532 or more heads or 468 heads or fewer.139 The 

p-value for this example would be 4.6%.140 This is called two-tailed testing.141

We discuss these basics of statistical analysis to accent the fact that at 

the district court level, the parties divided over which test was more 

appropriate: one-tailed or two-tailed. While agreeing that a p-value of 5% or 

smaller showed statistical significance for two-tailed testing, they disagreed 

about the significance level for one-tailed testing. The State argued that a p129 Id.

130 Id.

131 Id.

132 Id. at 250.

133 Id.

134 Id. at 251.

135 Id. at 255.

136 Id.

137 Id.

138 Id.

139 Id.

140 Id.

141 Id.

32

 

 Case: 13-30266 Document: 00512843586 Page: 32 Date Filed: 11/20/2014
No. 13-30266

value of 2.5% or smaller showed statistical significance for one-tailed testing, 

while Woodfox argued that 5% or smaller would do.

The district court found it unnecessary to solve these problems. Under 

the 40.8% eligible population baseline, the p-value for one-tailed testing was 

1.26% and for two-tailed testing was 1.85%. Both p-values were below the 

threshold required to show statistical significance. We do not find any clear 

error in the district court finding.

Therefore, the State’s attempt to rebut the prima facie cases using 

statistics does not persuade. The district court did not err in finding as such.

VIII

The State also renews its arguments that it rebutted the prima facie case 

by demonstrating the use of race-neutral criteria in the selection of grand jury 

forepersons. Such a rebuttal case operates by “showing that permissible 

racially neutral selection criteria and procedures have produced the 

monochromatic result.”142 “[A]ffirmations of good faith in making individual 

selections are insufficient to dispel a prima facie case of systematic 

exclusion.”143 But the “presumption of discriminatory conduct may be 

successfully rebutted by testimony of responsible public officials if that 

testimony establishes the use of racially neutral selection procedures.”144

During the time relevant time period, the two judges of the 21st Judicial 

District appointed grand jury forepersons in West Feliciana Parish: the late 

Judge Ramshur and Judge Kline.

Judge Kline testified at the federal evidentiary hearing. According to 

Judge Kline, he would think of someone who would be a good foreperson and 

would attempt to contact them during the morning of the venire. If he did not 

142 Alexander v. Louisiana, 405 U.S. 625, 632 (1972).

143 Id.

144 Guice v. Fortenberry (Guice II), 722 F.2d 276,281 (5th Cir. 1984).

33

 

 Case: 13-30266 Document: 00512843586 Page: 33 Date Filed: 11/20/2014
No. 13-30266

know someone on the venire, he sought facts about the person, not opinions, 

about whether he or she would be good foreperson. Judge Kline explained that 

various criteria mattered, including character, communication skills, patience, 

independence, reputation and education. But while education and employment 

were important, they were not determinative. Instead, Judge Kline sought 

“basic education” and looked for employment because it “reflected some

dependability.” But Judge Kline also stated that he did not want to choose only 

people with advanced degrees because that would eliminate “a whole body of 

good folks with good common sense.” Judge Kline also stated that he actively 

tried to be inclusive, and appointed women and African-American forepersons 

without as much education as others in the pool but who were “representative 

of the community.” Finally, Judge Kline clarified that he could only speak to 

his own selection procedures.

Because Judge Ramshur passed away in 2006, the State presented other 

officials familiar with his selection process. The State presented Judge George 

H. Ware, Jr., who was the District Attorney of West Feliciana Parish from 1985 

through 1996. Ware testified that he would meet with the judges as they were 

selecting the foreperson and discuss potential selections. He testified that the 

question the judges asked him suggested they were seeking information about 

“community leadership role, responsibility in the community, background, 

whether or not this person was a gossip.” Occasionally, the judges would ask 

him questions about the potential foreperson’s job and family. The State also 

presented Jesse Means, the Assistant District Attorney for the 20th Judicial 

District from 1985 through 2006. Means testified that while Judge Ramshur 

never asked him for advice, on one occasion, he advised the Judge not to select 

a person. But this testimony was given only under proffer as it was hearsay 

testimony. In totality, Means testified that he did not give Judge Ramshur 

“specific advice about specific people” because the Judge did not need it. 

34

 Case: 13-30266 Document: 00512843586 Page: 34 Date Filed: 11/20/2014
No. 13-30266

Finally, the State also presented other witnesses to attest to the race-neutral 

selection by Judge Ramshur. Much of this testimony is irrelevant or was 

offered under proffer. As an example, the former clerk of the court in East 

Feliciana Parish testified as to what she thought Judge Ramshur’s practices 

were in East Feliciana.145

This rebuttal evidence is more that affirmations of good faith that 

discrimination did not occur, but it is not the sort of evidence that rebuts a 

prima facie case.146 The State contends that subjective criteria like “character”

and “leadership” are acceptable. We need not disagree, although our past 

pronouncements have created some confusion on this point.147 But the 

difficulty is that while Judge Kline was able to articulate race-neutral criteria, 

there is almost no evidence that Judge Ramshur employed race-neutral 

criteria, either objective or subjective. What makes matters worse is that the 

only information the judges received about the people on the grand jury venire 

were the names, addresses, and in later years, the telephone numbers. As we 

have noted before, “[t]he presence of identified objective criteria known in 

advance to the appointing judge would have mitigated the difficulties of the 

selection system then in place.”148 As far as we are able to discern, Judge 

145 See Guice II, 722 F.2d at 278 (focusing attention on statistics from and the selection 

procedure in the parish where the indictment issued despite testimony concerning other 

parishes); Crandell v. Cain, 421 F. Supp. 2d 928, 938 (W.D. La. 2004) (noting that there is no

legal basis for examining statistics from a sister parish). 

146 See Guice II, 722 F.2d at 281 (holding that rebuttal was unsuccessful because 

testimony did not reveal objective criteria and showed judge selected someone he knew 

always); United States v. Perez-Hernandez, 672 F.2d 1380, 1387 (11th Cir. 1982) (holding that 

the rebuttal was successful when eight district judges testified to similar guidelines used to 

make foreperson selections).

147 Compare Johnson v. Puckett, 929 F.2d 1067, 1073 (5th Cir. 1991) (“This court has 

required that testimony rebutting a prima facie case of discrimination establish the use of 

objective, racially neutral selection procedures.”), with Guillory, 303 F.3d at 650–51 

(accepting such subjective race-neutral criteria as “who would be fair,” “independent,” and 

“not necessarily go along”).

148 Guillory, 303 F.3d at 651.

35

 

 Case: 13-30266 Document: 00512843586 Page: 35 Date Filed: 11/20/2014
No. 13-30266

Ramshur mostly selected people known to him without any systematic attempt 

to obtain information about qualifications. Indeed, Judge Ramshur’s grand 

jury venire transcripts shows a lack of questions as to qualifications. We also 

take special note of the fact that of the five African-American grand jury 

forepersons during the relevant time period, Judge Kline selected four. Thus, 

Judge Ramshur selected only one. Indeed, as Woodfox points out, Judge 

Ramshur selected a grand jury foreperson nineteen times during this same 

period.

The State does suggest a plethora of race-neutral criteria that can 

account for the disparity, such as employment, education, character, and 

independence. In support, the State provided a lot of data. First, it compiled a 

list of grand jury forepersons between 1980 and March 1993 to show that they 

all shared similar education and employment characteristics. Second, it 

produced U.S. census data showing educational attainment by race for 1980 

and 1990. These data corroborate that African-Americans were less educated 

than the general population. Third, it produced U.S. census data showing 

unemployment and lack of participation in the labor force by race for 1980 and 

1990. These data also corroborate that African-American were less employed 

and participated less in the labor force that the general population. Yet the 

problem with this evidence is that it fails to persuade when considered in light 

of the fact that there is no evidence Judge Ramshur actually knew about the 

characteristics when picking the foreperson.149

The State’s argument that West Feliciana Parish is small and the judges 

knew all its members is no more than a good faith assertion. Moreover, the 

149 Guice II, 722 F.2d at 281 (“Judge Adams' testimony regarding the qualifications of 

the particular individual he chose as foreman of the grand jury does not undermine our 

reasoning when considered in the light of the fact that he testified that he made no inquiries 

regarding the qualifications of any of the other venire members.”).

36

 

 Case: 13-30266 Document: 00512843586 Page: 36 Date Filed: 11/20/2014
No. 13-30266

State’s assertion that the judges made proactive attempts to include women 

and minorities fails to convince. Only Judge Kline made such an assertion, and 

we have no reason to believe that Judge Ramshur made similar attempts. 

Furthermore, the records reveals that Judge Ramshur in particular passed 

over equally qualified African-American candidates to appoint white 

forepersons. Woodfox identified specific African-American venire members and 

their employment and education, and compared those qualifications to the 

white forepersons actually selected. For almost every year, Woodfox can point 

to African-Americans in the grand jury venire that had comparable 

educational and employment experience to the selected foreperson. This 

bolsters our conclusion.

We hold then that the State has not demonstrated reversible error in the 

district court’s holding that it failed to rebut the prima facie case.

IX

For these reasons, we AFFIRM the district court’s grant of habeas relief.

37

 Case: 13-30266 Document: 00512843586 Page: 37 Date Filed: 11/20/2014