Case: 09-30206     Document: 00511005656          Page: 1    Date Filed: 01/15/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                          January 15, 2010

                                       No. 09-30206                    Charles R. Fulbruge III
                                                                               Clerk

FRANK GUILLORY, SR.,

                                                   Petitioner-Appellant,
v.

BURL CAIN, Warden, Louisiana State Penitentiary,

                                                   Respondent-Appellee.




                    Appeal from the United States District Court
              for the Western District of Louisiana, Lafayette Division
                              USDC No. 6:99-CV-01352


Before JONES, Chief Judge, and SMITH and ELROD, Circuit Judges.
PER CURIAM:*
        At issue is whether the district court properly dismissed Petitioner-
Appellant Frank Guillory Sr.’s petition, pursuant to 28 U.S.C. § 2254, which
alleged grand-jury and grand-jury-foreperson discrimination under the Due
Process and Equal Protection Clauses.              The court dismissed these claims,
without an evidentiary hearing, after reviewing the transcript of the selection
proceedings. Based on the transcript, the district court concluded that the state



        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                       No. 09-30206

court selected the grand jury and its foreperson in a random and race-neutral
manner. We agree, and therefore, we AFFIRM the decision of the district court.
       This court’s prior decision in Guillory v. Cain, 250 F. App’x 95 (5th Cir.
2007) (unpublished), sets forth the background and relevant procedural history
of this case, which we will not repeat here. In that decision, we remanded the
case for the district court to consider the merits of Guillory’s discrimination
claims. See 

       On remand, the district court referred the case to the magistrate judge,
who then prepared to hold an evidentiary hearing on the matter. Prior to the
hearing, Respondent-Appellee Burl Cain produced, for the first time, a transcript
of the grand-jury selection. The parties submitted briefs in light of this newly
produced evidence. Cain contended that the transcript demonstrated that the
state court selected the grand jurors and foreperson at random.                     Guillory
responded that the transcript was too ambiguous to support that contention.
       Based on the transcript, the magistrate judge found that “the grand jurors
were selected at random and by lots and that the foreperson of the grand jury
was selected at random from amongst those already chosen to serve.” The
magistrate judge recommended denying the petition with prejudice on this
ground alone. The district court adopted this report and recommendation but
granted a certificate of appealability on “whether the petitioner’s rights to due
process and equal protection were violated as a result of discrimination on the
basis of race in the selection of the grand jury that indicted him.” 1 Guillory
timely appealed.
       The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs
this habeas proceeding because Guillory filed his petition on July 27, 1999, after
AEDPA’s effective date of April 24, 1996. See Amador v. Quarterman, 

        Unless otherwise indicated, all references to the findings and decision of the district
court encompass the report and recommendation.

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397, 409 (5th Cir. 2006) (citation omitted). However, the ordinary standard of
review for state-court judgments under AEDPA does not apply here. In this
unusual case, the federal district court was required to conduct a de novo review
of the issues raised by Guillory because the Louisiana courts had not ruled on
the merits of his claim. Cf. 28 U.S.C. § 2254(d) (describing AEDPA standards of
review where a claim was “adjudicated on the merits” by state courts). In
addition, the district court had evidence before it (the transcript) that was not
before the state court. This new evidence was the sole basis for its decision.
       Under these circumstances, in reviewing the denial of habeas relief, the
court examines factual findings for clear error, and it reviews, de novo, questions
of law and mixed questions of law and fact. Carty v. Thaler, 

, 252-53
(5th Cir. 2009) (citations omitted). When reviewing mixed questions of law and
fact, the de novo standard requires “independently applying the law to the facts
found by the district court, as long as the district court’s factual determinations
are not clearly erroneous.” Ramirez v. Dretke, 

, 649 (5th Cir. 2005)
(citation omitted). This court has held that the “ultimate question . . . [of]
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.” Rideau v. Whitley, 

, 486 (5th
Cir.   2000) (citations omitted).    The court reviews the decision to deny an
evidentiary hearing for abuse of discretion. See Clark v. Johnson, 

,
765 (5th Cir. 2000). An evidentiary hearing is unnecessary if the court had
sufficient facts before it to resolve the claims. McDonald v. Johnson, 

, 1060 (5th Cir. 1998); West v. Johnson, 

, 1410 (5th Cir. 1996)
(citations omitted).
       Guillory cannot prevail because the transcript establishes that the court
selected the grand jury and its foreperson in a random and race-neutral manner.
See Johnson v. Puckett, 

, 1072 (5th Cir. 1991) (“[A] prima facie case

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                                  No. 09-30206

[of discrimination in the selection of a grand-jury foreperson] may . . . be
rebutted by evidence that objective, racially neutral criteria were used in the
selection process.”) (citations omitted); cf. Castaneda v. Partida, 

,
494-95 (1977) (“a selection procedure that is susceptible of abuse or is not
racially neutral supports the presumption of discrimination”) (citations omitted).
Specifically, the transcript shows that the court, with the aid of a conscientious
prosecutor, randomly pulled the names of the grand jurors and foreperson from
a box. Thus, the district court did not abuse its discretion in denying the petition
without holding an evidentiary hearing. See McDonald v. Johnson, 

, 1060 (5th Cir. 1998) (“The district court had sufficient facts before it to
make an informed decision on the merits of McDonald’s claim and, accordingly,
did not abuse its discretion in refusing to hold an evidentiary hearing.”).
      Accordingly, the decision of the district court is AFFIRMED.




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