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

                                                 FILED
                                                                           March 12, 2009
                                     No. 06-31054
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

CHARLES CARLTON WALL

                                                   Petitioner-Appellant

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY

                                                   Respondent-Appellee


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:03-CV-1641


Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
       We withdraw our prior unpublished opinion, 2008 WL 5068622 (5th Cir.
Dec. 1, 2008) (per curiam), and issue the following substitute opinion.
       In October 1997, Charles Carlton Wall, Louisiana prisoner # 240914, was
convicted by jury verdict of second-degree murder and sentenced to life
imprisonment. We granted Wall a certificate of appealability to appeal the
district court’s judgment denying his 28 U.S.C. § 2254 application on his claim
of racial discrimination against African-Americans in the process for selection

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                   No. 06-31054

of Tangipahoa Parish grand jury forepersons at the time of his indictment. Wall
asserts that he has standing to raise equal protection and due process challenges
to the grand jury foreperson selection process and that he has made a prima
facie showing of racial discrimination in that process. The Respondent counters
that we may not review the merits of Wall’s claim because the documents he
submitted to support it were not authenticated pursuant to the Federal Rules
of Evidence and were therefore inadmissible. We review the district court’s
findings of fact for clear error and its conclusions of law de novo, applying the
same standard of review to the state court’s decision as the district court.
Martinez v. Johnson, 255 F.3d 229, 237 (5th Cir. 2001).
      The magistrate judge correctly stated that, in order to obtain relief on his
discrimination claim, Wall was “required to prove discrimination under the
standards set out in the Supreme Court’s cases.” Rideau v. Whitley, 237 F.3d
472, 484-85 (5th Cir. 2000). After implicitly holding that Wall had standing to
raise this discrimination claim, the magistrate judge found that Wall had not
suffered an “injury in fact” under Campbell v. Louisiana, 523 U.S. 392, 397-98
(1998), and had failed to state a constitutional violation, citing to Guillory v.
Cain, 303 F.3d 647, 653 (5th Cir. 2002).       In reaching this conclusion, the
magistrate judge noted that Wall had submitted various documents in support
of his claim and that Wall’s documentation was not certified or verified in any
way. After assuming that Wall’s documents were authentic and admissible, the
magistrate judge found that the statistics were incomplete because the relevant
documents failed to indicate the race or gender of the listed grand jury
forepersons. The district court denied § 2254 relief on Wall’s discrimination
claim because, as determined by the magistrate judge, “Wall had made no
showing of intentional race or gender discrimination in the selection of his grand
jury foreperson under Guillory.”
      In Campbell, the Supreme Court concluded that “Campbell, like any other
white defendant, has standing to raise an equal protection challenge to

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discrimination against black persons in the selection of his grand jury.” 523 U.S.
at 400. In so holding, the Court found that all three preconditions had been
satisfied, including that “the defendant suffered an ‘injury in fact.’” Id. at 397-
98. The Court noted that “[r]egardless of his or her skin color, the accused
suffers a significant injury in fact when the composition of the grand jury is
tainted by racial discrimination.” Id. at 398. Because Wall had standing to raise
his discrimination claim, he met the “injury in fact” requirement under
Campbell.
      In Guillory, the State adopted a strategy of (1) conceding that the
petitioner had established a prima facie case and (2) bearing the burden of
rebutting that prima facie case. 303 F.3d at 649. The relevant issue in Guillory
was thus whether the State had met its burden of rebutting the presumption of
discrimination by showing that objective, race-neutral criteria were used in the
selection process. Id. at 650. In the instant case, Wall’s claim was presumably
denied because the magistrate judge and the district court determined that he
had failed to establish a prima facie case of discrimination. The district court’s
and the magistrate judge’s reliance on Guillory for the proposition that Wall
made no showing of intentional discrimination was misplaced; such a showing
is not required to establish a prima facie case. See Rose v. Mitchell, 443 U.S.
545, 565 (1979) (listing the three elements of a prima facie case).
      The magistrate judge considered only the first list of grand jury
forepersons and seemingly rejected the second list of grand jury forepersons due
to the lack of any indication as to the source of its information, despite the stated
assumption of the authenticity and admissibility of Wall’s documents. The race
and gender information for the listed grand jury forepersons was included only
in the second list. Examination of Wall’s documents indicates that neither list
specifies the source of the included information. Due to the inconsistencies in
the magistrate judge’s factual findings, which were relied upon by the district
court, our review leaves us “with the definite and firm conviction that a mistake

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has been committed.” Fairman v. Anderson, 188 F.3d 635, 640 (5th Cir. 1999)
(internal quotation marks and citation omitted).
      Based upon the foregoing reasons, the district court’s judgment denying
Wall’s § 2254 application as to his claim of racial discrimination in the grand
jury foreperson selection process in Tangipahoa Parish is VACATED, and this
case is REMANDED to the district court for further proceedings consistent with
this opinion. We express no views as to the admissibility or probative value of
Wall’s documents, whether Wall has established a prima facie case regarding the
instant claim, or the ultimate outcome of the proceedings.




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