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Criminal Law No. 02-30400, 7/21/2003. Click here for the full text of this decision FACTS: The petitioner, Michael Wayne Pickney, appeals the district court’s denial of habeas corpus relief on his claim of deprivation of equal protection rights because the process of selecting his grand jury foreperson was racially discriminatory. The court agrees with the district court that this claim is procedurally defaulted and that Pickney failed to establish prejudice to overcome this default. HOLDING: Affirmed. Procedural default bars federal habeas review “[i]f a state court clearly and expressly bases its dismissal of a prisoner’s claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal.” Nobles v. Johnson, 127 F.3d 409 (5th Cir. 1997). Although the Louisiana intermediate court of appeals rejected Pickney’s discrimination claim on the merits, the last court to address his claim, the Louisiana Supreme Court, denied the application on procedural grounds. The Louisiana Supreme Court held that Pickney waived his equal protection claim based on discrimination in the selection of his grand jury foreperson because he failed to file a pretrial motion to quash the indictment. A habeas petitioner “may overcome the state procedural bar only by demonstrating 1. cause for the procedural default and actual prejudice as a result of the alleged violation of federal law or 2. that failure to consider his claims will result in a fundamental miscarriage of justice.” Smith v. Johnson, 216 F.3d 521 (5th Cir. 2000). A defendant may show “cause” by proving ineffective assistance of counsel in violation of the Sixth Amendment of the U.S. Constitution. The movant makes this showing where he demonstrates that, but for the error, he might not have been convicted. The court need not address whether Pickney has made a showing of “cause” because the court is confident that he has not been prejudiced. United States v. Shaid, 937 F.2d 228 (5th Cir. 1991). After reviewing the trial record, the court has no doubt that, if Pickney had been successful in having his indictment quashed, the state of Louisiana would have sought and obtained a second indictment. Witnesses who knew Pickney placed him at the scene of the crime on the morning in question. Detective Hidalgo testified that he recovered clothing from Pickney’s home similar to those worn by the victim’s attacker. The victim also identified Pickney’s voice as being that of her assailant in a line up only hours after the attack. Even more importantly, the state produced DNA evidence that pointed to Pickney as the attacker. Given the strength of the state’s case, a successful grand jury challenge would have served no purpose other than to delay the trial. Accordingly, Pickney failed to prove actual prejudice. Citing Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993 (1979), Pickney argues that he should be excused from making a showing of actual prejudice because he has made a prima facie showing of discrimination in the selection of his grand jury foreperson in violation of the equal protection clause of the Fourteenth Amendment. In Rose v. Mitchell, the Supreme Court held that, if racial discrimination in the selection of a grand jury foreperson is shown, the conviction must be reversed without any inquiry into whether the defendant has been prejudiced. However, in Rose, the defendant preserved his equal protection claim. Here, Pickney has not. Pickney argues that Rose v. Mitchellshould be extended to apply even where the defendant has failed to preserve his equal protection claim. This argument was considered and rejected by the 11th U.S. Circuit Court of Appeals in Francois v. Wainwright, 741 F.2d 1275 (11th Cir. 1984). The court held that, where a claim of racial discrimination in selecting the grand jury foreperson has been procedurally defaulted in state court, the defendant must still show prejudice. The 11th Circuit distinguished Rose v. Mitchellon the basis that Roseapplied only to preserved claims. The Francoiscourt relied on the Supreme Court’s statement in Rosethat ” ‘[t]here is no contention in this case that respondents sought to press their challenge to the grand jury without complying with state procedural rules as to when such claims may be raised.’ ” Based on this language, the 11th Circuit concluded that the actual prejudice requirement survived Rose v. Mitchellwhere the defendant has failed to preserve his claim that his grand jury foreperson was selected through a racially discriminatory process. The court agrees with the 11th Circuit and holds that, where a defendant has failed to show actual prejudice, the court will not consider the merits of a procedurally defaulted claim of racial discrimination in the selection of a grand jury foreperson. Because Pickney has failed to show that he was prejudiced, the court declines to consider his equal protection claim. OPINION: Davis, J.; Davis, Hall and Garza, JJ.

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