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Appeal from the United States District Court for the Middle District of Louisiana.
For Albert Woodfox, Petitioner - Appellee: Carine M. Williams, George H. Kendall, Squire Patton Boggs (U.S.) LLP, New York, NY; Christopher Albert Aberle, Mandeville, LA; Nicholas Joseph Trenticosta, Esq., Attorney, Herrero & Trenticosta, New Orleans, LA.
James Caldwell, Respondent - Appellant, Pro se, Baton Rouge, LA.
For James Caldwell, Respondent - Appellant: Colin Andrew Clark, Esq., Assistant Attorney General, Kurt Lawrence Wall, Assistant Attorney General, Office of the Attorney General for the State of Louisiana, Baton Rouge, LA; Richard A. Curry, Esq., Michael Brent Hicks, Dan Edward West, McGlinchey Stafford, P.L.L.C., Baton Rouge, LA; Michelle West Scelson, Esq., Richard C. Stanley, Esq., Stanley, Reuter, Ross, Thornton & Alford, L.L.C., New Orleans, LA.
For Burl Cain, Warden, Louisiana State Penitentiary, Respondent -- Appellant: James David " Buddy" Caldwell, Colin Andrew Clark, Esq., Assistant Attorney General, Kurt Lawrence Wall, Assistant Attorney General, Office of the Attorney General for the State of Louisiana, Baton Rouge, LA; Richard A. Curry, Esq., Michael Brent Hicks, Dan Edward West, McGlinchey Stafford, P.L.L.C., Baton Rouge, LA; Michelle West Scelson, Esq., Richard C. Stanley, Esq., Stanley, Reuter, Ross, Thornton & Alford, L.L.C., New Orleans, LA.
For Promise of Justice Initiative, Pascal F. Calogero, Jr., Amici Curiae: Pascal F. Calogero Jr., Esq., New Orleans, LA.
For Naacp Legal Defense And Educational Fund, Incorporated, Amicus Curiae: Danielle Mary Spinelli, Sonya Ludmilla Lebsack, WilmerHale, Washington, DC.
Before JOLLY, HIGGINBOTHAM, and SOUTHWICK, Circuit Judges.
PATRICK E. HIGGINBOTHAM, 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. We then remanded the case to the district court to consider the only remaining claim, which related to allegations of discrimination in the selection of the grand jury foreperson. 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 Respondent-Appellant Warden Burl Cain, had failed to rebut the prima facie case. The district court once again granted federal habeas relief.
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.
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 re-indictment was the same as the one challenged in Campbell v. Louisiana . 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."  But under the Louisiana system 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."  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." 
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. 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 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, 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."  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.
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 non-incarcerated population of the Parish. But, between 1964 and 1993, African-Americans 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. 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, African-Americans 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.
The State filed a response to this application for state post-conviction relief. In its answer, the State urged the rejection of the grand jury foreperson 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 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.
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. 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 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. But the claim of discrimination in the selection of the grand jury foreperson was not before us, and we remanded for the resolution of this remaining claim.
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.
The district court ruled that the relevant time period for grand jury foreperson selection in West Feliciana Parish was 1980 through March 1993. 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 ...