Rideau v. Whitley

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 99-30849

WILBERT RIDEAU,

Petitioner-Appellant,

VERSUS

JOHN P. WHITLEY,

Respondent-Appellee.

Appeal from the United States District Court

for the Middle District of Louisiana

December 22, 2000

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

In this federal habeas corpus case, the petitioner claims that

he was the victim of racial discrimination in violation of the

Equal Protection Clause of the Fourteenth Amendment, in the

selection of the Louisiana grand jury that indicted him for murder.

I.

The petitioner, Wilbert Rideau, was indicted on March 1, 1961,

for the capital murder of Julia Ferguson, a bank employee, on

February 16, 1961, in Calcasieu Parish, Louisiana. After his armed

1

robbery of a bank in the city of Lake Charles, Rideau forced the

victim and two other bank employees to accompany him in the

victim’s car to an uninhabited area outside the city. There he

shot the three bank employees and stabbed the victim to death. The

other two bank employees survived. State v. Rideau, 137 So. 2d

283, 286 (1962) (Rideau I).

Rideau was arrested on the evening of February 16, 1961, and

confined in the Calcasieu Parish jail in Lake Charles. On the

night of his arrest he made detailed oral and written confessions

to the crimes. The next morning a sound film was made of Rideau,

in the custody of state police officers, personally confessing to

the crime in answer to leading questions by the Sheriff of

Calcasieu Parish. The film was broadcast on the Lake Charles

television station KPLC-TV on February 17, 18, and 19, 1961.

Rideau v. Louisiana, 373 U.S. 723, 724-25 (1963); see also id. at

728 (Clark, J., dissenting).

After his motion for a change of venue was denied, Rideau was

convicted of capital murder, La. R.S. § 14:30, by a jury and

sentenced to death in the Fourteenth Judicial District Court,

Parish of Calcasieu. On direct appeal to the Louisiana Supreme

Court, the conviction and sentence were affirmed. Rideau I.

The United States Supreme Court granted certiorari and

reversed Rideau’s conviction and sentence. Rideau v. Louisiana,

373 U.S. 723 (1963). The court held “that it was a denial of due

2

process of law to refuse the request for a change of venue, after

the people of Calcasieu Parish had been exposed repeatedly and in

depth to the spectacle of Rideau personally confessing in detail to

the crimes with which he was later to be charged.” Id. at 726.

Upon remand of the case to the state Fourteenth Judicial

District Court in Calcasieu Parish, the district attorney moved the

trial court to order Rideau to show cause why a change of venue

should not be made to a Parish outside the range of KPLC-TV in Lake

Charles. Rideau joined in the motion. The state district court

denied the motion, but the Louisiana Supreme Court reversed,

granted the motion, and ordered the trial judge to grant a change

of venue. State v. Rideau, 165 So. 2d 282 (La. 1964).

Venue was changed to the Nineteenth Judicial District Court

for the Parish of East Baton Rouge. Prior to trial Rideau, who is

an African-American, moved to quash his 1961 indictment by the

Calcasieu Parish grand jury on the ground that there had been a

systematic exclusion, through a token inclusion, of black jurors

from the grand jury. After an evidentiary hearing, his motion was

denied. Rideau was convicted by a jury of capital murder in East

Baton Rouge Parish, La. R.S. § 14:30, and sentenced to death. The

Louisiana Supreme Court affirmed the conviction and sentence.

State v. Rideau, 193 So. 2d 264 (La. 1967) (Rideau II). The court

held that Rideau had failed to establish discrimination or any

impropriety in the formation of the jury bodies. The United States

3

Supreme Court denied certiorari. Rideau v. Louisiana, 389 U.S. 861

(1967). Racially discriminatory grand jury selection was one of

the many errors unsuccessfully urged in Rideau’s petition for

certiorari.

In 1967, Rideau petitioned the United States District Court

for the Eastern District of Louisiana for a writ of habeas corpus.

Among numerous grounds, Rideau urged the issue of racial

discrimination in the formation of the grand jury. However, all

those issues were pretermitted when the State conceded that

reversal of Rideau’s conviction and sentence was required by the

recent decision of Witherspoon v. Illinois, 391 U.S. 510 (1968)

(holding a death sentence invalid when jurors were excluded for

cause because of general objections to death penalty).

Accordingly, the federal district court, on May 12, 1969, vacated

Rideau’s conviction and death sentence, reserving the State’s right

to re-try petitioner within a reasonable time in accordance with

law. S.J.T. III, at 16-17.1

Prior to his retrial, Rideau again moved the Nineteenth

Judicial District Court in East Baton Rouge Parish to quash his

1961 indictment by the Calcasieu Parish grand jury because of

1

To distinguish between the records in the trials and

proceedings involved in this appeal, we cite the records in the

state jury trials and the federal habeas proceedings as follows:

first, second, and third state jury trial records as “S.J.T. I, II,

and III”; the federal district court’s habeas proceeding record on

the instant petition as “F.H.P.” A copy of the federal district

court’s grant of habeas relief in 1969 is filed in S.J.T. III, at

16-17.

4

racial discrimination in selection of jury venires and their

failure to represent a cross-section of the community. After an

evidentiary hearing, Rideau’s motions were denied. Rideau was

convicted by an East Baton Rouge Parish jury of capital murder and

sentenced to death.

On appeal to the Louisiana Supreme Court, Rideau argued

numerous bills of exception, including an objection to the district

court’s denial of his motion to quash his indictment. The court

rejected all of Rideau’s bills as being without merit and affirmed

his conviction. State v. Rideau, 278 So. 2d 100, 103-06 (La. 1973)

(Rideau III). But the court concluded that, in light of the

United States Supreme Court’s decision in Furman v. Georgia, 408

U.S. 238 (1972), Rideau’s death sentence could not be affirmed.

Therefore, the Louisiana Supreme Court annulled Rideau’s death

sentence and ordered the trial court to sentence him to life

imprisonment. Rideau III, 278 So. 2d at 106. Rideau’s counsel

advised him that nothing further could be done for him in the

courts and, therefore, did not petition the United States Supreme

Court for certiorari.

Rideau filed this petition for federal habeas corpus on July

27, 1994,2 alleging that his indictment and conviction were

2

Because Rideau’s petition was filed before the April 26,

1996, effective date of the Antiterrorism and Effective Death

Penalty Act (AEDPA), its provisions amending the habeas corpus

statute do not apply here. Lindh v. Murphy, 521 U.S. 320, 326-27

(1997).

5

unlawfully obtained by an unconstitutionally impaneled grand jury.

The State moved for dismissal of Rideau’s petition as untimely

under Rule 9(a) of the rules governing habeas corpus procedure. A

federal magistrate judge recommended that the federal district

court deny the State’s dismissal motion and grant Rideau’s petition

for a writ of habeas corpus. After an evidentiary hearing,

however, the federal district court denied Rideau’s petition and

granted the State’s Rule 9(a) motion. The court concluded that

Rideau had not proved that his “totally unreasonable” delay had not

prejudiced the State’s interests. Alternatively, the court denied

Rideau’s petition on its merits for failure to rebut with clear and

convincing evidence the presumption that the state court’s

decisions were correct. Rideau appealed.

II.

First, we must decide whether the district court correctly

dismissed Rideau’s petition for a writ of habeas corpus as untimely

under Rule 9(a) of the Rules Governing Section 2254 Cases (“Section

2254 Rules”). Rules Governing Section 2254 Cases in the United

States District Courts, R. 9(a), 28 U.S.C. foll. § 2254.3

3

We review the grant of a Rule 9(a) dismissal under the same

standard of review we employ for the grant of summary judgment.

McDonnell v. Estelle, 666 F.2d 246, 250 (5th Cir. 1982). Therefore,

we employ a de novo review, judging the propriety of the Rule 9(a)

dismissal under the same standard a district court should use: “all

reasonable doubts must be resolved in favor of [Rideau]. If there

are unresolved factual issues, the motion must be denied. If there

are no factual issues to be resolved, the court must decide whether

[the State] is entitled to judgment as a matter of law.” Id.; see

also 17A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL

6

A.

Rule 9(a) of the Section 2254 Rules allows for the dismissal

of habeas petitions that are filed in a delayed manner under

limited circumstances:

A petition may be dismissed if it appears that the state of

which the respondent is an officer has been prejudiced in its

ability to respond to the petition by delay in its filing

unless the petitioner shows that it is based on grounds of

which he could not have had knowledge by the exercise of

reasonable diligence before the circumstances prejudicial to

the state occurred.

28 U.S.C. foll. § 2254 (2000).4

The State bears a heavy burden under Rule 9(a) to “(1) make a

particularized showing of prejudice, (2) show that the prejudice

was caused by the petitioner having filed a late petition, and (3)

show that the petitioner has not acted with reasonable diligence as

a matter of law.” Walters v. Scott, 21 F.3d 683, 686-87 (5th Cir.

PRACTICE AND PROCEDURE § 4268.2 at 504-05 (2d ed. 1988).

4

In its original form as proposed by the Supreme Court, the

rule would have included a provision creating a presumption that

the State was prejudiced by delays of more than five years.

However, the House Judiciary Committee struck that provision from

the rule passed by Congress, stating that “it is unsound policy to

require the defendant to overcome a presumption of prejudice.”

H.R. Rep. No. 1471, 94th Cong., 2d Sess. 5, reprinted in 1976

U.S.C.C.A.N. 2478, 2481; see also Wise v. Armontrout, 952 F.2d 221,

223 & n.5 (8th Cir. 1991) (collecting cases from the 5th, 10th, and

11th circuits rejecting the notion that the original formulation of

the proposed rule created a presumption that extraordinarily long

delays created prejudice as a matter of law); Strahan v. Blackburn,

750 F.2d 438, 441 (5th Cir. 1985) (observing that the effect of such

a provision–in creating a statute of limitations for habeas

petitions–is arguably prohibited by the Constitution’s mandate

against suspension of the habeas writ (citing U.S. CONST. art. I, §

9, cl. 2)); Marks v. Estelle, 691 F.2d 730, 732 n.3 (5th Cir. 1982);

McDonnell, 666 F.2d at 251.

7

1994); see also Strahan, 750 F.2d at 441 (5th Cir. 1985). The State

must make a particularized showing of prejudice to its ability to

respond to the habeas petition. Walters, 21 F.3d at 687; see also

Strahan, 750 F.2d at 441. Mere passage of time alone is never

sufficient to constitute prejudice. Walters, 21 F.3d at 687; see

also Strahan, 750 F.2d at 441; McDonnell, 666 F.2d at 251; see,

e.g., Bedford v. Attorney General of Alabama, 934 F.2d 295, 299-300

(11th Cir. 1991) (refusing to grant Rule 9(a) dismissal where The

State did not show particularized prejudice from 19-year delay

between finality of conviction and commencement of any post-

conviction relief efforts); Campas v. Zimmerman, 876 F.2d 318, 324

(3d Cir. 1989) (same, regarding a 17-year delay between conviction

and filing for federal habeas relief); Hannon v. Maschner, 845 F.2d

1553, 1557 (10th Cir. 1988) (same, regarding a 25-year delay between

finality of conviction and filing for federal habeas relief);

Buchanon v. Mintzes, 734 F.2d 274, 281-82 (6th Cir. 1984) (same,

regarding a 23-year delay between conviction and filing for federal

habeas relief); Sutton v. Lash, 576 F.2d 738, 744 (7th Cir. 1978)

(same, regarding 21-year delay between finality of conviction and

filing for federal habeas relief); Hairston v. Cox, 459 F.2d 1382,

1386 (4th Cir. 1972) (refusing to grant dismissal on theory of

laches, which Rule 9(a) subsequently codified, regarding 26-year

delay between finality of conviction and filing for federal habeas

relief); Hamilton v. Watkins, 436 F.2d 1323, 1326 (5th Cir. 1970)

8

(same, regarding a 38-year delay between conviction and filing for

federal habeas relief); Hawkins v. Bennett, 423 F.2d 948, 951 (8th

Cir. 1970) (same, regarding 42-year delay between finality of

conviction and filing for federal habeas relief). Prejudice to the

State’s ability to retry or reconvict the petitioner is irrelevant.

Walters, 21 F.3d at 687 (citing Vasquez v. Hillery, 474 U.S. 254,

264-65 (1986); 17A WRIGHT, MILLER & COOPER, FEDERAL PRACTICE AND PROCEDURE

§ 4268.2 (2d ed. 1988) (first edition to same effect quoted with

approval in Strahan, 750 F.2d at 441)).

“[L]apses of time that affect the state’s ability, but that do

not make it ‘virtually impossible’ for the state to respond, [do

not] require dismissal.” 2 JAMES S. LIEBMAN & RANDY HERTZ, FEDERAL HABEAS

CORPUS PRACTICE AND PROCEDURE § 24.3 at 928-29 (3d ed. 1998) (citing,

inter alia, Baxter v. Estelle, 614 F.2d 1030, 1035 (5th Cir. 1980);

Strahan, 750 F.2d at 443-44; Galtieri v. Wainwright, 582 F.2d 348,

357 n.20, 358 (5th Cir. 1978) (en banc) (dicta)). “Accordingly, as

to claims based on in-court proceedings or ones that otherwise were

recorded, the state generally must show both that the transcript is

unavailable and that participants in the proceeding–the presiding

judge, court reporter, prosecutor, petitioner’s trial attorney, law

enforcement officials, and the like—are unavailable or unable to

remember the critical events.” Id. at 929 (emphasis in original)

(comparing Walters, 21 F.3d at 687-89, Bedford, 934 F.2d at 299-

300, and Smith v. Duckworth, 910 F.2d 1492, 1495 (7th Cir. 1990),

9

with Walton v. Attorney General, 986 F.2d 472, 476 (11th Cir. 1993);

and citing generally Harris v. Pulley, 885 F.2d 1354, 1365-67 (9th

Cir. 1989), and Strahan, 750 F.2d at 441 n.4). “To determine

whether this burden is met, the court generally must conduct a

hearing on the question and make specific findings as to

prejudice.” Id. at 929-30 (citing Walters, 21 F.3d at 687 (finding

State’s claim of witness’s memory loss insufficient to prove

prejudice without a hearing to determine the precise extent of

witness’s recollection); Hannon, 845 F.2d at 1556 n.6; Lawrence v.

Jones, 837 F.2d 1572, 1574-75 (11th Cir. 1988) (finding that,

because the State was required to show “that the prejudice would

not have resulted had the writ been filed at an earlier time, [t]he

district court needs to determine when the prejudicial deaths

occurred and any other circumstances that would show that Alabama

would have been in a position to show the facts surrounding [the

petitioner’s] conviction had he only brought his claim earlier”

(citation omitted); McDonnell, 666 F.2d at 254-55).

If the State makes its prima facie showing of prejudice, then

the burden shifts to the petitioner, who must show either (1) that

the State’s showing of prejudice is false, or (2) that the delay

resulted from grounds that the petitioner could not have known of

through reasonable diligence prior to the occurrence of the

prejudicial circumstances. Walters, 21 F.3d at 687; see also

Strahan, 750 F.2d at 441.

10

Rule 9(a) codifies the application of the equitable doctrine

of laches to habeas corpus petitions. Walters, 21 F.3d at 686

(citing Strahan, 750 F.2d at 440). “The application of Rule 9(a)

must be carefully limited to avoid abrogating the purpose of the

writ of habeas corpus.” Id. (citing McDonnell, 666 F.2d at 251;

Hannon, 845 F.2d at 1557).

B.

Rideau’s habeas claim, asserting that the Calcasieu Parish

grand jury that indicted him was unconstitutionally formed through

racially discriminatory selection procedures, is based primarily on

the transcripts of the two pretrial evidentiary hearings held in

the East Baton Parish state court on his motions to quash the

Calcasieu Parish grand jury indictment and grand jury bodies. The

transcript of the first hearing on November 5, 1964, was introduced

as evidence in the second hearing on December 15, 1969. Both have

been made part of the record of this appeal.

Acton Hillebrandt was elected Clerk of Court of Calcasieu

Parish in 1948 and, as such, served as an ex-officio member of its

jury commission. As he was still in office during both evidentiary

hearings, he was called at each proceeding to testify as to the

jury commission’s procedures used to select the Calcasieu jury

bodies. At the first evidentiary hearing, Mr. Hillebrandt

testified that he had attended every meeting of the jury commission

except possibly one since 1948. He testified that the commission

11

obtained the names, race, and other data regarding prospective

jurors from the parish registrar of voters and other sources. The

commission prepared an identification card for each potential

venire person showing his or her race and other information.

During his testimony, Mr. Hillebrandt examined one of the

identification cards and affirmed that it indicated the race of the

venire member. The commission, consisting of Mr. Hillebrandt and

five other commissioners appointed by the court, all of whom were

white men, met together and selected the names from the cards to

make up a general venire list of 300 people. The commission

selected twenty people from the general venire to form the grand

jury venire. They “pick[ed] any name that they thought would be a

good grand juror . . . levelheaded.” They did not select the

jurors by lot or randomly. Mr. Hillebrandt testified that, as a

rule, he selected people based on their occupations or his personal

knowledge of them. He stated that he made it a point to put a

“member of the colored race” on every grand jury that he drew. He

testified that, because a conviction had been reversed “many years

before” Rideau’s grand jury was selected, the commissioners “all

knew that they might as well be sure there was some Negroes in the

panel[.]” On the other hand, Mr. Hillebrandt testified that a

person’s race would not qualify or disqualify him from serving on

either the grand or general jury venire. In response to a question

by the State’s attorney, Mr. Hillebrandt agreed that the practice

12

and procedure that the commission followed in connection with the

grand jury venire in Rideau’s case was “one of long standing and of

long vintage.” He added that, when the grand jury venire was

selected, “we had no idea what would come before it, Rideau or

who.” Mr. Hillebrandt also testified that grand jury foremen were

selected from the grand jury venire by the presiding judge, and

that to his knowledge no member of the “colored race” had ever

served as foreman. He stated that, from the names of the venire

members on the grand jury venire list, he could tell that at least

one of the twenty venire persons in Rideau’s case was black and

that sixteen were white. Rideau’s attorney subsequently introduced

the jury commission’s identification cards for the three remaining

grand jury venire members, indicating that those three venire

members were white, along with an affidavit by Mr. Hillebrandt

verifying the authenticity of the cards and explaining the racial

coding contained on them.

In addition, Rideau introduced as evidence two of the

identification cards used by the commission in drawing general and

grand jury venires, showing how the cards indicated each potential

venire member’s race with either a “W” or an “N”; the 1960 U.S.

Census results for Calcasieu Parish indicating that 18.5% of the

Parish’s male population over the age of 21 was African-American;

and an affidavit by the Calcasieu Parish Registrar of Voters

providing a breakdown of registered voters by race, showing that

13

approximately 16% of the registered voters were African-Americans.

At the second evidentiary hearing, Mr. Hillebrandt gave a

similar description of the jury commisssion’s procedures. He

admitted that neither he nor any other commissioner, to his

knowledge, had ever made a conscious effort to discover or solicit

potential jurors from the black community. Mr. Hillebrandt

testified that, after the 300 general venire members were selected,

their identification cards were placed in a metal container, and

names were drawn therefrom to select the twenty-person grand jury

venire. Mr. Hillebrandt testified that “usually you couldn’t help

but be” conscious of the race of the individuals in selecting the

grand jury venire because the cards bore either a “W” or an “N” to

denote race. Rideau also introduced as evidence four of the

original twenty race-coded cards from which the jury venire was

selected, the 1960 Census information, the voter registrar’s

affidavit, and the transcript of the 1964 evidentiary hearing.

In overruling Rideau’s motion to quash after each hearing, the

state trial court assigned differing reasons. After the first

hearing, the court concluded that the commissioners properly took

into account the race of potential venire persons to determine

whether they were of good character and standing; that the

commission’s access to this information was not improper because

there was no showing of purposeful exclusion or inclusion on the

basis of race; and that the commissioners had no duty to go out and

14

investigate 300 people. After the second hearing the court

overruled the motion to quash because “the authority to that by

which I am bound, whether I agree or disagree, is the Banks case

wherein the Supreme Court had before it these same principles.”5

In appealing his third conviction to the Louisiana Supreme

Court, Rideau again argued, among numerous other issues, that the

trial court committed reversible error in denying his motion to

quash the Calcasieu Parish grand jury bodies and indictment because

of racial discrimination in the bodies’ composition. In rejecting

this argument, the Louisiana Supreme Court stated:

The majority of the contentions raised by defense counsel

in this bill of exceptions were presented on appeal and

considered by us in [Rideau II]. In deciding adversely

to defendant, we stated:

Fairness in the formation of the jury bodies

is a fundamental requirement, long recognized

by this Court. . . . Both the state and

federal constitutions require that jury bodies

be selected without discrimination because of

race. A planned limitation of the number of

negroes selected to serve on the grand jury

imposed on the basis of race is prohibited. .

. .

5

We have been unable to find the “Banks case,” upon which the

state trial court relied without citation. It is possible that the

court was referring to the similarly named relevant case of Eubanks

v. Louisiana, 356 U.S. 584 (1958). If so, the court misread

Eubanks, which held that “a criminal defendant is denied the equal

protection of the laws guaranteed by the Fourteenth Amendment if he

is indicted by a grand jury or tried by a petit jury from which

members of his race have been excluded because of their race[,]”

and concluded “that the uniform and long-continued exclusion of

Negroes from grand juries shown by this record cannot be attributed

to chance, to accident, or to the fact that no sufficiently

qualified Negroes have ever been included in the lists submitted to

the various local judges.” Id. at 585, 587.

15

The question of whether racial or other

discrimination has been practiced in the

formation of the jury bodies is one of fact. .

. . The burden of establishing such

discrimination rests upon the defendant. . . .

The Jury Commission of Calcasieu Parish

selected the list of Grand Jurors on January

5, 1961, before the commission of the crime

charged. Clearly, therefore, no action of the

jury officials could have been designed to

prejudice the defendant.

Out of an abundance of caution, we have studied this

bill and find that defendant has not shown that he

suffered any prejudice from the venire selection in

Calcasieu Parish. . . .Purposeful discrimination may not

be assumed or merely asserted, it must be proved. A

defendant who claims discrimination has the burden of

establishing that such was the fact. The mere

establishment of disparity between the number of Negroes

on a venire list and the number of whites does not make

a prima facie case of discrimination which must stand

where not rebutted by the State.

State v. Rideau, 278 So. 2d 100, 103-04 (La. 1973) (Rideau III)

(citations omitted).6

The federal habeas district court, in granting the Rule 9(a)

dismissal, held that the State had made a “particularized” showing

of prejudice by alleging that the venire identification card

6

But see id. at 107-08 (Barham, J. dissenting) (“It cannot be

seriously contended that this defendant failed to make out a prima

facie case of purposeful racial discrimination in the selection of

the grand jury venire. He has established that only 5 per cent of

the grand jury venire was black, while the population of Calcasieu

Parish 21 years or older was 25 per cent black. That grand jury

venire was selected, not at random, but with the commissioners’

full knowledge of the race of each person selected. But here, as

in Alexander, it is not necessary that we ‘rest our conclusion that

petitioner has demonstrated a prima facie case of invidious racial

discrimination on statistical improbability alone, for the

selection procedures themselves were not racially neutral.’”

(citing Alexander v. Louisiana, 405 U.S. 625 (1972); Whitus v.

Georgia, 385 U.S. 545 (1967)).

16

exhibits were missing and that Mr. Hillebrandt, the other jury

commissioners, and the presiding judges were unavailable as

witnesses. After citing these factors, the court stated:

The big issue is whether or not the court believes that the

defendants, the state of Louisiana, has made a particularized

showing of prejudice. And I think they have. I think to have

someone wait as long as Mr. Rideau has waited, and we are now

approaching the year 2000, and this crime occurred in 1961,

with the final judgment in this case being in 1973, the court

finds that this is a totally unreasonable time as a matter of

law for the defendant to wait to raise this issue[.]

Hence, the federal district court did not make specific findings as

to the particular ways in which the State had been prejudiced in

its ability to respond to the petition by the unavailability of the

witnesses or the venire identification card exhibits.

C.

It is apparent that the State failed to meet its heavy burden

of (1) making a particularized showing that it has been prejudiced

in its ability to respond to the petition; or, (2) assuming

arguendo that prejudice exists, showing that that prejudice was

caused by Rideau’s having filed a delayed petition. Therefore, we

need not reach (3) the issue of whether the petitioner has not

acted with reasonable diligence as a matter of law.

(1)

The State claims that it has been prejudiced in its ability to

respond to the petition because Acton Hillebrandt, the other

members of the jury commission, and the two state trial judges are

either too elderly to recall specific details, deceased, or are at

17

unknown locations. To meet its burden of making a particularized

showing of prejudice, however, the State may not merely allege

prejudicial facts, but must offer concrete proof of the

allegations. Wise, 952 F.2d at 223; accord Marks, 691 F.2d at 732,

734; Paprskar v. Estelle, 612 F.2d 1003, 1008 (5th Cir. 1980); see

also Jackson v. Estelle, 570 F.2d 546, 547 (5th Cir. 1978)

(“[P]roblems of proof attendant to claims regarding events which

occurred over 30 years ago . . . ‘alone [are] no bar to federal

habeas relief’” (quoting Hamilton v. Watkins, 436 F.2d 1323, 1326

(5th Cir. 1970))); Hudson v. Alabama, 493 F.2d 171, 173 (5th Cir.

1974) (holding that there is no prejudice if crucial facts are not

in doubt); see generally, LIEBMAN & HERTZ, supra, § 24.3 at 927 n.3

(citing and quoting foregoing authorities).

The State alleged but did not present concrete proof that Mr.

Hillebrandt was physically or mentally unable to testify regarding

the Calcasieu Parish grand jury selection procedures. Further, the

State has not alleged the factual substance of such testimony by

Mr. Hillebrandt or even alleged that it would differ from the

transcripts of his testimony at the two state court evidentiary

hearings. See Walters, 21 F.3d at 688 (noting that, “[i]f the

state wishes to establish prejudice from the death of the court

reporter and the unavailability of the court reporter’s records, it

must also establish that the substance of those records is

unavailable from other sources. This the state has not done.”);

18

McDonnell, 666 F.2d at 253 (“[P]rejudice resulting from the judge’s

death occurs only if there are no other sources from which the

state can obtain the requisite information to counter the

petitioner’s claim.”).

At the evidentiary hearing in the federal district court in

the present case, the parties stipulated that four of the jury

commissioners and one of the state court judges were deceased as of

January 1999. However, the State has not alleged or proved with

concrete evidence the date upon which each of the witnesses died or

became unavailable, the date upon which Rideau’s delay became

unreasonable, or the substance of each witness’s testimony that has

been lost during the specific period of Rideau’s allegedly

unreasonable delay. See, e.g., McDonnell, 666 F.2d at 253-54

(finding that prejudice had not been established because the State

had not shown when records were destroyed during the course of

delay and whether an earlier filing would have made a fuller

response possible); see also Lonchar v. Thomas, 517 U.S. 314, 327

(1996) (“[H]istory of the Rule [9(a)] makes plain that the

prejudice requirement represents a critical element in the

balancing of interests undertaken by Congress and the framers of

the Rule which courts may not undermine through the exercise of

background equitable powers.”); Prejean v. Smith, 889 F.2d 1391,

1405 (5th Cir. 1989) (“This circuit has held that no matter how long

the delay may be, a particularized showing of prejudice is

19

required.”).

The State also argues that it has been prejudiced by the

disappearance from the state trial records of the race-coded

identification cards and other documentary exhibits. However, the

State does not make any particularized showing of prejudice from

this disappearance. Furthermore, Mr. Hillebrandt described the

identification cards fully in his testimony at the two state

evidentiary hearings, and the transcripts of that testimony have

been fully preserved, making the availability of the cards

themselves unnecessary in these proceedings. See Walters, 21 F.3d

at 688; McDonnell, 666 F.2d at 253.

(2)

Assuming arguendo that the death, disability, or

unavailability of each witness is construed as prejudicial to the

State, the State bears the further burden of proving that Rideau’s

delay in filing his habeas petition caused all sources of the

evidence each could have provided to be lost. At a minimum, this

requires the State to establish that if Rideau had filed his habeas

petition at a specific earlier time, the evidence the State claims

to have lost would have been available and material. The witnesses

may have died or become unavailable before or shortly after

Rideau’s conviction and sentence became final in the Louisiana

Supreme Court. In that case, the loss of the witnesses’ testimony

certainly would not be attributable to Rideau’s delay in bringing

20

his habeas petition. Moreover, the State apparently failed to take

advantage of opportunities during the two state evidentiary

hearings to present the testimony of the jury commissioners it now

claims are deceased or unavailable. The State has not alleged or

proved any facts to show that the loss of those witnesses is not

attributable to its own lack of diligence. We simply do not have

the necessary facts before us. The State has the burden to prove

those facts; the absence of their proof compels the conclusion that

the necessary foundation for a Rule 9(a) dismissal has not been

laid. See Walters, 21 F.3d at 688-89 (citing and quoting Lawrence,

837 F.2d at 1575 (11th Cir. 1988) (“The district court needs to

determine when the prejudicial deaths occurred and any other

circumstances that would show that [the State] would have been in

a position to show the facts surrounding [petitioner’s] conviction

had he only brought his claim earlier.” (footnote omitted));

McDonnell, 666 F.2d at 249 (noting as dispositive the State’s

failure to show when the records were destroyed and, consequently,

that petitioner’s delay caused prejudice); Marks, 691 F.2d at 733

(“[T]he state’s Rule 9(a) motion is meritorious only if it suffered

some prejudice after the lapse of a reasonable amount of time for

Marks to learn of [the Argersinger] decision and act.”).

(3)

Because we hold that the State has failed to make a sufficient

showing of prejudice in its ability to respond to the petition that

21

was caused by the petitioner’s delay, it is unnecessary for us to

determine whether Rideau’s delay in filing his petition was

unreasonable. Walters, 21 F.3d at 686-87; see also Strahan, 750

F.2d at 441, 443; McDonnell, 666 F.2d at 251; Bouchillon v.

Estelle, 628 F.2d 926, 929 (5th Cir. 1980); Smith, 910 F.2d at 1492;

see generally LIEBMAN & HERTZ § 24.3, at 926 n.1 (citing and quoting

from foregoing cases).7

III.

Because the State failed to carry its burden under Rule 9(a),

we turn to a review of the decisions of the state courts and the

federal district court on the merits of Rideau’s petition for

habeas corpus. In a federal habeas corpus proceeding, we review

the district court’s legal determinations de novo. Johnson v.

Puckett, 929 F.2d 1067, 1070 (5th Cir. 1991). We review state court

rulings of law or mixed rulings of law and fact de novo in habeas

proceedings. Id. at 1072 (citing Sumner v. Mata, 455 U.S. 591, 597

(1982)). In habeas proceedings under the pre-AEDPA 28 U.S.C. §

2254, we accord a rebuttable presumption of correctness to written

state court findings of fact. 28 U.S.C. § 2254(d) (1994); Sumner,

455 U.S. at 592.

7

Although we do not decide the issue of the reasonableness of

Rideau’s delay, the author of this opinion certifies that his

careful examination of the record reveals no evidence that supports

the State’s assertion of purposeful delay for tactical advantage by

the petitioner.

22

In the present case, the State did not introduce any evidence

in either the federal or the state courts to rebut the evidence

taken in the state trial court hearings on Rideau’s motions to

quash the Calcasieu Parish grand jury indictment. As a

consequence, the federal district court and the state courts were

not required to make any purely factual determinations that we are

called upon to review. Rather, we review their decisions only for

error in rulings of law or mixed rulings of fact and law.

A.

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. See Rose v. Mitchell, 443 U.S. 545,

556 (1979); Alexander v. Louisiana, 405 U.S. 625, 628 (1972); Bush

v. Kentucky, 107 U.S. 110, 119 (1883); Neal v. Delaware, 103 U.S.

370, 394 (1881); see also Castaneda v. Partida, 430 U.S. 482,

492-95 & n.12 (1977). Recently the Supreme Court reaffirmed this

principle in holding that a white criminal defendant has the

requisite standing to raise equal protection and due process

objections to discrimination against black persons in the selection

of grand juries. Campbell v. Louisiana, 523 U.S. 392, 397-401

(1998). “Regardless of his or her skin color, the accused suffers

a significant injury in fact when the composition of the grand jury

23

is tainted by racial discrimination. ‘[D]iscrimination on the

basis of race in the selection of members of a grand jury . . .

strikes at the fundamental values of our judicial system’ because

the grand jury is a central component of the criminal justice

process.” Campbell, 523 U.S. at 398 (1998) (quoting Rose, 443 U.S.

at 556).

A criminal defendant “is entitled to require that the State

not deliberately and systematically deny to members of his race the

right to participate as jurors in the administration of justice.”

Alexander, 405 U.S. at 628-29. Accordingly, where sufficient proof

of discrimination in violation of the Fourteenth Amendment has been

made out and not rebutted, the Supreme Court uniformly has required

that the conviction be set aside and the indictment returned by the

unconstitutionally constituted grand jury be quashed. See, e.g.,

Hill v. Texas, 316 U.S. 400, 406 (1942). In Castaneda, the Court

noted that among the cases in which the Court had applied this

principle in circumstances involving grand jury discrimination were

Alexander, supra; Arnold v. North Carolina, 376 U.S. 773 (1964);

Eubanks, supra; Reece v. Georgia, 350 U.S. 85 (1955); Cassell v.

Texas, 339 U.S. 282 (1950); Hill, supra; Smith v. Texas, 311 U.S.

128 (1940); Pierre v. Louisiana, 306 U.S. 354 (1939); Rogers v.

Alabama, 192 U.S. 226 (1904); Carter v. Texas, 177 U.S. 442 (1900);

and Bush v. Kentucky, supra. 430 U.S. at 492 n.12.

These holdings make clear that claims of discrimination in the

24

selection of members of the grand jury are cognizable on federal

habeas corpus, and will support issuance of a writ setting aside a

state conviction and ordering the indictment quashed. Rose, 443

U.S. at 564-65. Nevertheless, to be entitled to habeas relief a

claimant is required to prove discrimination under the standards

set out in the Supreme Court’s cases. Id. That is, “in order to

show that an equal protection violation has occurred in the context

of grand jury selection, the defendant must show that the procedure

employed resulted in substantial underrepresentation of his race or

of the identifiable group to which he belongs.” Castaneda, 430

U.S. at 494. Specifically, Rideau was required to prove his prima

facie case with regard to selection of the grand jury as follows:

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, . . . a selection procedure

that is susceptible of abuse or is not racially neutral

supports the presumption of discrimination raised by the

statistical showing. Once the defendant has shown

substantial underrepresentation of his group, he has made

out a prima facie case of discriminatory purpose, and the

burden then shifts to the State to rebut that case.

Id. at 494-95 (citations and footnote omitted).

The petitioner may also prove a prima facie case without

showing a statistical disparity “over a significant period of

25

time”; he may satisfy his prima facie burden by showing a disparity

in the particular grand jury body that indicted him, coupled with

proof either that (1) the selection process was itself not racially

neutral and presented an opportunity for discrimination, or that

(2) the jury commissioners had made no attempt to acquaint

themselves with eligible members of the African-American community.

Id. at 493-94 (quoting Washington v. Davis, 426 U.S. 229, 241

(1976) (“A prima facie case of discriminatory purpose may be proved

as well by the absence of Negroes on a particular jury combined

with the failure of the jury commissioners to be informed of

eligible Negro jurors in a community . . . or with racially non-

neutral selection procedures.”)); cf. Batson v. Kentucky, 476 U.S.

79, 94-95 (1986) (regarding the selection of petit jury venires,

holding that, “[s]ince the ultimate issue is whether the State has

discriminated in selecting the defendant’s venire, however, the

defendant may establish a prima facie case in other ways than by

evidence of long-continued unexplained absence of members of his

race from many panels. In cases involving the venire, this Court

has found a prima facie case on proof that members of the

defendant’s race were substantially underrepresented on the venire

from which his jury was drawn, and that the venire was selected

under a practice providing the opportunity for discrimination.

This combination of factors raises the necessary inference of

purposeful discrimination because the Court has declined to

26

attribute to chance the absence of black citizens on a particular

jury array where the selection mechanism is subject to abuse.”

(internal quotations and citations omitted)).

Because racial discrimination in the grand jury selection

process “strikes at the fundamental values of our judicial system

and our society as a whole,” it is well-established that a criminal

defendant has suffered an equal protection violation when he is

indicted by a grand jury that is the product of such a

discriminatory process. Rose, 443 U.S. at 556 (citing Neal, 103

U.S. at 394; Reece, 350 U.S. at 87). “Since the beginning,” the

United States Supreme Court has “reversed the conviction and

ordered the indictment quashed in such cases without inquiry into

whether the defendant was prejudiced in fact by the discrimination

at the grand jury stage.” Id. at 556-57 (citing Neal, 103 U.S. at

394; Bush, 107 U.S. at 119; Virginia v. Rives, 100 U.S. 313, 322

(1880)).

[N]o state is at liberty to impose upon one charged with crime

a discrimination in its trial procedure which the

Constitution, and an Act of Congress passed pursuant to the

Constitution, alike forbid. Nor is this Court at liberty to

grant or withhold the benefits of equal protection, which the

Constitution commands for all, merely as we may deem the

defendant innocent or guilty. It is the state’s function, not

ours, to assess the evidence against a defendant. But it is

our duty as well as the state’s to see to it that throughout

the procedure for bringing him to justice he shall enjoy the

protection which the Constitution guarantees. Where, as in

this case, timely objection has laid bare a discrimination in

the selection of grand jurors, the conviction cannot stand,

because the Constitution prohibits the procedure by which it

was obtained. Equal protection of the laws is something more

than an abstract right. It is a command which the state must

27

respect, the benefits of which every person may demand. Not

the least merit of our constitutional system is that its

safeguards extend to all–the least deserving as well as the

most virtuous.

Hill, 316 U.S. at 406 (citations omitted).

B.

The ultimate question in the present case, 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. See, e.g., Rose, 443 U.S.

at 561-62; Whitus, 385 U.S. at 550; Hill, 316 U.S. at 406; Cassell,

339 U.S. at 291-92 (Frankfurter, J., concurring).8

Rideau, as an African-American, is a member of a distinct,

cognizable class that has been singled out for discrimination.

Rose, 443 U.S. at 555-56. Rideau has also made a showing that the

grand jury venire in his case was disparate in its representation

of African-Americans in comparison to the proportion of African-

Americans in the community. The 1960 Census figures for Calcasieu

Parish indicate that 18.5% of the parish’s male population over the

age of 21 was African-American. F.H.P., at 167-69. An affidavit

by the Calcasieu Parish registrar of voters shows that 16-2/3% of

8

Cf. Johnson, 929 F.2d at 1072 (finding question of whether

discriminatory selection of grand jury foremen had occurred over a

significant period of time to be mixed question of fact and law

implicating no deference to state court’s conclusion); see also

Brantley v. McKaskle, 722 F.2d 187, 189 (5th Cir. 1984) (“If,

however, the challenge goes to the inferences drawn from the facts,

the reviewing court need not accept the [state court’s] conclusion

and may independently examine and weigh the facts.”); see generally

1 LIEBMAN & HERTZ § 20.3d at 767-94 and n.56.

28

the registered voters in Calcasieu Parish was African-American.

S.J.T. III. Nevertheless, only one member, or 5%, of the twenty-

person grand jury venire was African-American, a mathematical

disparity similar to those that the Supreme Court has found to

establish a presumption of discrimination. See Castaneda, 430 U.S.

at 495-96 (finding a presumption of discrimination where 79.1% of

county’s population was Mexican-American but only 39% of people

summoned to grand jury service were Mexican-American) (citing

Whitus, 385 U.S. at 550 (27.1%-to-9.1% disparity); Sims v. Georgia,

389 U.S. 404 (1967) (24.4%-to-4.7% disparity); Jones v. Georgia,

389 U.S. 24 (1967) (19.7%-to-5% disparity)). This 18.5%-to-5%

disparity between the distinct group’s presence in the community

population and its representation on the grand jury venire in

Rideau’s case might, standing alone, support a presumption of

discrimination. We need not decide that, however. The Supreme

Court has stressed that it

has never announced mathematical standards for the

demonstration of “systematic exclusion of blacks but has,

rather, emphasized that a factual inquiry is necessary in

each case that takes into account all possible

explanatory factors. The progressive decimation of

potential Negro grand jurors is indeed striking here, but

we do not rest our conclusion that petitioner has

demonstrated a prima facie case of invidious racial

discrimination on statistical improbability alone, for

the selection procedures themselves were not racially

neutral.

Alexander, 405 U.S. at 630. Here, as well, additional factors

supplement the statistical disparity. For example, Mr. Hillebrandt

29

testified that neither he nor any of the other commissioners, to

his knowledge, had made any attempt to identify and call upon

eligible African-Americans for potential selection as general or

grand jury venire persons. Washington, 426 U.S. at 241 (holding

that a presumption of prejudice is shown when the disparity on a

particular grand jury venire panel is “combined with the failure of

the jury commissioners to be informed of eligible” African-

Americans in the community); Smith v. Texas, 311 U.S. 128, 132

(1940) (“Where jury commissioners limit those from whom grand

juries are selected to their own personal acquaintance,

discrimination can arise from commissioners who knew no negroes as

well as from commissioners who know but eliminate them.”); Scott v.

Walker, 358 F.2d 561, 573-74 (5th Cir. 1966) (en banc) (“It is plain

from the record here that the commissioners put on the list only

those personally known to them. They made no especial effort to

ascertain whether there were qualified Negroes in the parish for

jury service. In failing to do so they violated the rule announced

by the Supreme Court . . . in Cassell v. State of Texas, where it

was said, ‘When the commissioners were appointed as judicial

administrative officials, it was their duty to familiarize

themselves fairly with the qualifications of the eligible jurors of

the county without regard to race and color. They did not do so

here, and the result has been racial discrimination.’” (quoting 339

U.S. at 289)).

30

Also, it is evident that the degree of underrepresentation of

African-Americans on the general and grand jury venires had

prevailed over a significant period of time. According to Mr.

Hillebrandt, who had attended virtually all of the meetings of the

jury commission since his election in 1948, the commission’s venire

selection practices and procedures were of long standing and long

vintage in Calcasieu Parish. Many years before 1961, Mr.

Hillebrandt testified, after a jury conviction had been reversed,

he began the practice of making sure that there was at least one

“colored person” on each grand jury venire.9 This practice,

however, he clearly indicated, was merely a token inclusion of

African-Americans and was by no means intended to rectify their

underrepresentation.

Rideau introducted additional census and venire composition

evidence in the proceedings before the Magistrate Judge that fully

corroborates the Calcasieu Parish jury commission’s long-lived

pattern of discrimination against African-Americans in the

selection of general and grand jury venires. As the Magistrate

Judge’s report correctly found:

The statistical evidence of under-representation is

overwhelming and unrebutted. According to the 1960 U.S.

Census, Calcasieu Parish had 7,237 black men over the age of

9

As the Magistrate Judge’s report in these proceedings

observes, “It is difficult, if not impossible, to interpret this

statement, when read in context with the other facts, as anything

other than an admission that jury commissioners were trying to get

away with putting as few blacks on grand juries as they thought

they could.”

31

21, and 31,729 white men in the same category. Thus, about

18.5 percent of the parish’s population was black and eligible

for grand jury service in 1960 and 1961. According to the

1950 U.S. Census, Calcasieu Parish had 26,172 men over the age

of 21. Of that number, 5,626 were black–about 21.5 percent of

the eligible population.

According to undisputed evidence of the 12 grand juries that

were selected between October 3, 1954 and January 16, 1961, no

grand jury had more than one black member (out of 12 on each

panel). Of 144 grand jurors that were selected during this

period, only six were black–about four percent.

F.H.P., at 190-91 (footnote omitted). Consequently, under either

standard, disproportionate underrepresentation over a significant

period of time, or disproportionate underrepresentation of African-

Americans in Rideau’s own grand jury venire coupled with a racially

non-neutral selection process and the failure of the jury

commissioners to acquaint themselves with a representative number

of African-Americans eligible for jury service, we conclude that

Rideau proved a prima facie case of unconstitutional grand jury

venire selection and composition.

A telling sign that the prevalent statistical

underrepresentation of minorities on the grand jury venires

resulted from racial discrimination was the commission’s venire

selection procedure, which was “susceptible of abuse or [was] not

racially neutral.” Castaneda, 430 U.S. at 494. According to Mr.

Hillebrandt’s testimony, as supported by the general venire

identification cards introduced at the two state evidentiary

hearings, and not disputed here, each potential grand jury venire

member’s identification information was entered onto a card that

32

also indicated the race of each person. S.J.T. III, at 128. In

cases in which the jury commissioners have had access to the racial

identity of potential grand jurors while engaged in the selection

process, the Supreme Court has repeatedly found that the procedure

constituted a system impermissibly susceptible to abuse and racial

discrimination. Castaneda, 430 U.S. at 495 (finding that the non-

random selection of names of grand jurors was susceptible to abuse

because Mexican-Americans were easily identifiable by their Spanish

surnames); Alexander, 405 U.S. at 630 (“[W]e do not rest our

conclusion that petitioner has demonstrated a prima facie case of

invidious racial discrimination on statistical improbability alone,

for the selection procedures themselves are not racially neutral.

The racial designation on both the questionnaire and the

information card provided a clear and easy opportunity for racial

discrimination.”); Whitus, 385 U.S. at 548-49 (finding a selection

system was susceptible to abuse where potential grand jurors were

selected from segregated tax digest lists, which also coded

African-Americans with a “(c)” behind each name); cf. Avery v.

Georgia, 345 U.S. 559, 562 (1953) (finding that the practice of

placing potential petit jurors’ identification on yellow cards if

they were African-American and on white cards if they were white

“[o]bviously . . . makes it easier for those to discriminate who

are of a mind to discriminate.” (quoted approvingly in Alexander,

405 U.S. at 631)).

33

That Mr. Hillebrandt testified that he did not intentionally

seek to discriminate against prospective grand jurors by using

cards bearing racial identifications, and that he did not know

whether the other jury commissioners did so, does not dissipate a

prima facie case established under the Court’s decisions. Norris

v. Alabama, 294 U.S. 587, 598 (1935) (“If, in the presence of such

testimony as defendant adduced, the mere general assertions by

officials of their performance of duty were to be accepted as an

adequate justification for the complete exclusion of negroes from

jury service, the [Equal Protection Clause] would be but a vain and

illusory requirement.”); see also Alexander, 405 U.S. at 630

(finding the racial identification in the selection process

impermissible “although there is no evidence that the commissioners

consciously selected by race”); Whitus, 385 U.S. at 551 (“While the

commissioners testified that no one was included or rejected on the

jury list because of race or color this has been held insufficient

to overcome prima facie evidence.”); Eubanks, 356 U.S. at 587

(quoting above passage from Norris); Reece, 350 U.S. at 88 (“[M]ere

assertions of public officials that there has not been

discrimination will not suffice.”). The Supreme Court has spoken

to this point in words that are equally applicable to the present

case:

As in Whitus v. Georgia, supra, the clerk of court, who was

also a member of the jury commission, testified that no

consideration was given to race during the selection

procedure. The Court has squarely held, however, that

34

affirmations of good faith in making individual selections are

insufficient to dispel a prima facie case of systematic

exclusion. . . .The result bespeaks discrimination, whether or

not it was a conscious decision on the part of any individual

jury commissioner.

Alexander, 405 U.S. at 632 (internal quotations and citations

omitted).

Consequently, we conclude that Rideau established a prima

facie case of racial discrimination in the process used to select

the grand jury that indicted him. The State produced no evidence

to rebut any portion of Rideau’s prima facie case in either the two

state evidentiary hearings or the federal district court

proceedings. The only evidence the State can point to is Mr.

Hillebrandt’s testimony that neither he nor any other commissioner

to his knowledge used the race-coded identification cards to

intentionally exclude African-Americans from grand jury venires.

As we have noted, however, such disclaimers are insufficient to

rebut a prima facie showing of discrimination. The State must

“show[] that permissible racially neutral selection criteria and

procedures have produced the monochromatic result,” and it has made

no strides in making such a showing, either here or in the state

courts. Alexander, 405 U.S. at 632.

Accordingly, Rideau’s conviction must be reversed and his

unconstitutionally obtained indictment quashed. Vasquez, 474 U.S.

at 264 (“The overriding imperative to eliminate this systematic

flaw in the charging process, as well as the difficulty of

35

assessing its effect on any given defendant, requires our continued

adherence to a rule of mandatory reversal.”).

[I]ntentional discrimination in the selection of grand jurors

is a grave constitutional trespass, possible only under color

of state authority, and wholly within the power of the State

to prevent. Thus, the remedy we have embraced for over a

century–the only effective remedy for this violation–is not

disproportionate to the evil that it seeks to deter. If grand

jury discrimination becomes a thing of the past, no conviction

will ever again be lost on account of it.

Id. at 262. However, as the Supreme Court noted in Hill, “A

prisoner whose conviction is reversed by this Court need not go

free if he is in fact guilty, for [the State] may indict him and

try him again by the procedure which conforms to the constitutional

requirements.” 316 U.S. at 406. Consequently, the State of

Louisiana is free to seek another indictment and retrial of Rideau

in accordance with the Constitution, the laws, and this opinion.

For the foregoing reasons, we REVERSE and REMAND to the

district court with instructions to issue the writ of habeas corpus

unless, within a reasonable time to be designated by the district

court, the State should again indict and try Rideau.

36