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

                                                                  FILED
                                                               October 16, 2007
                                No. 05-30413
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

DONNIE RAY DALEY

                                           Petitioner-Appellant

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY

                                           Respondent-Appellee


                 Appeal from the United States District Court
                     for the Middle District of Louisiana
                           USDC No. 3:03-CV-947


Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
      Donnie Ray Daley, Louisiana prisoner # 107661, was convicted of
aggravated rape and sexual battery and sentenced to life in prison. Concerning
his application for federal habeas relief pursuant to 28 U.S.C. § 2254, our court
granted Daley a certificate of appealability on whether (1) Daley was denied due
process and equal protection in the selection of the grand jury foreperson,
(2) whether those claims were procedurally defaulted in the state courts, and



      *
      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should not be published and is not precedent except under the limited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. 05-30413

(3) whether counsel was ineffective for failing to file a pretrial motion to quash
the indictment.
      The district court’s determination that Daley’s claim under Campbell v.
Louisiana, 523 U.S. 392, 400 (1998), regarding racial discrimination in the grand
jury foreperson selection process was procedurally defaulted was erroneous. The
state court record reflects that the state trial court denied the claim on the
merits. The subsequent denial of relief by the state appellate court and state
supreme court does not appear to rely on any procedural bar. Because “the last
state court rendering a judgment in the case [did not] clearly and expressly
state[] that its judgment rest[ed] on a state procedural bar,” the procedural
default doctrine does not bar consideration of Daley’s Campbell claims. Harris
v. Reed, 489 U.S. 255, 263 (1989).
      As for Daley’s claim that counsel was ineffective in failing to move to
quash the indictment, the district court correctly found that Daley had not made
the requisite showing of prejudice to satisfy the standard set forth in Strickland
v. Washington, 466 U.S. 668, 687-94 (1984); see Pickney v. Cain, 337 F.3d 542,
545-46 (5th Cir. 2003).
      We, therefore, AFFIRM that portion of the district court’s judgment
denying Daley’s Campbell-based ineffective assistance claim. We VACATE that
portion of the district court's judgment denying Daley’s due process and equal
protection claims based on the alleged racially discriminatory method of
selecting grand jury forepersons in Iberville Parish, and we REMAND the case
for further proceedings on those issues.
      AFFIRMED IN PART; VACATED AND REMANDED IN PART.




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