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Click here for the full text of this decision FACTS: DaRoyce Lamont Mosley, who is black, was convicted of capital murder for the shooting death of a woman during a robbery. At trial, Mosley was represented by Gary Bledsoe, Cynthia Orr and Gerald Goldstein. The judge told the parties that the punishment phase of trial would commence after the verdict was reached. A verdict was reached on Saturday, Oct. 28, 1997. Though the government had a witness list on 30-minute call, Orr did not have any witnesses set or a cross-examination strategy in place. Apparently Orr, who had conducted most of the trial, was never planning to conduct the penalty phase; Goldstein was supposed to. To accommodate the jurors’ preferences, the trial court gave Orr two hours to prepare, but refused to give her until Monday, Oct. 30, as she requested. Though the trial court recommended that Mosley be granted state habeas corpus relief on ineffective assistance of counsel grounds, the Texas Court of Criminal Appeals denied his petition. Mosley filed a federal petition, again based on an ineffective assistance of counsel claim. He also made claims related to due process and to the selection process of the jury foreman. HOLDING: Affirmed. Mosley asks that his counsel’s performance be presumed ineffective based on his appellate brief. The brief was 205 pages long and raised 173 points of error, many of which were repeats or inadequately argued. Several extensions had been granted, but the brief was still filed late. Though ineffectiveness was presumed in Passamore v. Estelle, 607 F.2d 662 (5 thCir. 1979), due to an inadequate brief, the court refuses to make such a presumption here. The brief in the Passamore case was only one page long. Here, despite its problems, the brief provided adequate grounds for appeal. That the brief contained assignments of error “beyond those addressed by the court does not make the brief presumptively prejudicial.” Mosley next argues that the trial court’s refusal to allow Orr additional time to prepare for the punishment phase was a violation of his due process rights or some other clearly established federal law. He again says that prejudice should be presumed. The court notes the lack of authority for Mosley’s argument that the trial court’s decision to begin the penalty phase immediately after the guilt phase was a due process violation. The court, though, agrees to address the issue as if it was another challenge to the effectiveness of his counsel. The court finds that the lack of preparation for one portion of his trial made the entire representation ineffective, where Orr was otherwise intimately acquainted with Mosley and the facts of the case. “That Orr had been warned that the penalty phase would begin after the resolution of the guilt phase, and chose to ignore that warning, does not rise to the level of ineffective assistance of counsel.” Then, the court turns to the question of whether Mosley’s challenge to the selection of the grand jury foreperson should have been analyzed as an equal protection violation, as he asserts, or as a due process violation, which is how the Court of Criminal Appeals addressed it (and found no due process violation). The two relevant cases are Rose v. Mitchell, 443 U.S. 545 (1979), and Hobby v. United States, 468 U.S. 339 (1984). In Rose, four black men charged with murder challenged the method of choosing a grand jury foreman in Tennessee: 12 jurors were randomly selected, and a 13 thjuror was selected by the judge to serve as foreperson. The high court “recognized that a criminal defendant’s right to equal protection of the laws has been denied when he is indicted by a grand jury from which members of a racial group purposefully have been excluded.” It went on to hold that in order to show an equal protection violation as occurred, the defendant must show that the procedure resulted in substantial under-representation of his race or of the identifiable group to which he belongs. “A prima facie case of discrimination may be established only if three requirements are met: (1) the group is a recognizable, distinct class, singled out for different treatment; (2) the degree of under-representation is calculable by comparing the proportion of the group in the total population to those called to act as grand jury forepersons over”a significant period of time’; (3) the selection procedure is susceptible of abuse.” In Hobby, a white male alleged that the federal grand jury foreperson selection process discriminated against women and blacks. In that process, a foreperson was selected from among the 12 jurors. The Supreme Court ruled there was no due process violation for a generally discriminatory selection process. Rose did not apply, the court ruled, because the defendant was of a different race and/or class from those who were allegedly discriminated against. Furthermore, the grand jury foreperson had a different function in Tennessee from the function in the federal process: the foreperson had investigative authority in Tennessee, while in the federal system, the foreperson post was largely ministerial. The Court of Criminal Appeals latched onto that latter element, finding that the foreperson post in Texas was ministerial in nature, and held that Hobby should apply. The court rules that this was in error, that Rose should have been applied because the distinction between the cases lies in nature of the alleged injury, not the role of the foreperson. “When Mosley makes an equal protection challenge, he also represents the interests of those who are not selected as grand jury forepersons.” Applying Rose instead of Hobby, the court nonetheless rejects Mosley’s claim because he is unable to meet the second prong of Rose’s test. The former district attorney for Gregg County testified to the history of African-American on selection of forepersons for grand juries since the mid-1980s. He determined that since 1991, when some changes were made to improve representation, until Mosley’s trial, that 20.8 percent of all grand jury forepersons were black. For the period between 1984 and 1994, the rate was 7.9 percent, for an overall difference of 9.4 percent. “In the present case, we find an absolute disparity of 9.4% is insufficient to make out a prima facie equal protection violation under Rose.” OPINION: Clement, J.; Higginbotham, Smith and Clement, JJ.

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