               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                               No. 98-11205


ROY GLENN CHAMBERS,

                                                Petitioner-Appellee,

                                  versus

GARY L. JOHNSON, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,

                                                Respondent-Appellant.



            Appeal from the United States District Court
                 for the Northern District of Texas


                          December 2, 1999

Before REAVLEY, HIGGINBOTHAM, and DENNIS, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

     Roy Glenn Chambers was convicted in 1984 of two counts of

failure to appear at trial for burglary.            He was sentenced to

twenty-five years imprisonment, a sentence enhanced for previous

felony convictions.   Chambers seeks habeas relief on the basis of

Batson v. Kentucky, 476 U.S. 79 (1986).         The Supreme Court decided

Batson while Chambers' direct appeal was pending in state court.

Chambers contends that his prosecutors' use of peremptory strikes

violated the Equal Protection Clause of the Fourteenth Amendment.

The magistrate judge agreed with Chambers and the district court

adopted the recommendation to grant habeas relief.             The Director

maintains   that   Chambers'     claim     is   barred   for   want   of   a
contemporaneous objection to the strikes, and regardless should be

dismissed as a delayed petition under Rule 9(a) of the habeas

rules.    We find that the magistrate judge abused his discretion in

refusing to consider the merits of the Director's 9(a) defense. We

VACATE    the   judgment   of   the   district   court   and   REMAND   for

proceedings in which the defense may be considered.

                                      I

     During jury selection in Chambers' trial, the prosecutor used

his peremptory strikes to exclude three black members of the

venire.    After the petit jury was selected but before they were

sworn, the trial judge asked the parties whether they had any

"objections to the jury as seated."       The state made no objections,

and the trial judge said to Chambers’ attorney, "[y]ou have a

matter you want to urge, but other than that any objection?" to

which Chambers' attorney replied "[o]ther than that."          After this

reply, the jury was sworn and directed to enter the jury room.          The

court dismissed the venire, and then heard the defense counsel's

objection.

     Chambers' counsel stated:

     [t]hose three people . . . were blacks and they were the
     only blacks among the first thirty-two. And we would
     object on that ground, and that Mr. Chambers is being
     denied a true jury of his peers and would, therefore,
     state that the prejudice shown him would cause it to be
     in line for a mistrial.

This colloquy ensued:




                                      2
     THE COURT: Any response to that?

     MR. ISAACKS [prosecutor]: Four, five and thirty-two were
     just three of ten people struck. The preemptory [sic]
     strikes were not used solely on the basis of a person’s
     race, if that’s what the defense attorney is objecting
     to.

     THE COURT: I don’t know if that’s it or not. I think
     the objection is there are no blacks on the seated jury.

     MR. LAMB [defense counsel]:       That’s correct, Judge.

     THE COURT: There aren't any.      I will let the record
     reflect there are none on the seated jury.        I don't
     recall frankly how many were on the jury panel, whether
     the names you mentioned were or not even black. I can't
     comment on that. I do know, at least by name, that there
     are three Hispanics on the jury itself. That may or may
     not mean anything.
          Mr. Lamb, I'm going to overrule your objection and
     deny your motion for mistrial at this time based on that.
     I'm not sure that I can make the State or the defendant
     ever state specifically why they exercised the preemptory
     [sic]. Mr. Isaacks has said it's not based on race, at
     least alone.   I don't think I can go any further, at
     least, I'm not willing to. So I deny that motion.


(emphasis supplied).

     Although Chambers pursued direct and discretionary review of

his conviction, he did not raise the Batson issue until he filed a

state application for habeas review with the Court of Criminal

Appeals, which the court denied.          In its judgment the court

accepted the State's contention that under Allen v. Hardy, 478 U.S.

255 (1986), the Batson claim could not be pressed in a collateral

attack. That was error.   Allen held that Batson had no retroactive

effect for habeas petitioners whose convictions were final when

Batson was announced.     See Allen, 478 U.S. at 257-58.        As the

magistrate judge correctly decided, because Chambers' direct appeal


                                   3
was pending when Batson was decided, he may pursue any claim he may

have under Batson.       See Allen, 478 U.S. at 258 n.1 (defining

finality to include exhaustion of availability of appeal); see also

Griffith v. Kentucky, 479 U.S. 314, 328 (1986)(holding that Batson

applies retroactively to cases pending on direct review when the

decision was announced).

                                    II

     Chambers filed a federal habeas petition in July 1996.          Two of

his three claims were denied, but the magistrate judge set an

evidentiary hearing for the Batson claim, the only subject of this

appeal. The Director first asserted his defense arising under Rule

9(a) of the Rules Governing Section 2254 Cases at the evidentiary

hearing, when the testimony of the prosecutors from Chambers’ trial

showed that they could not remember why the black members of the

venire were struck.1    The magistrate judge requested the parties to

brief the 9(a) issue.    The court found that the Director had waived

the defense of laches under 9(a) by not presenting it in a

responsive   pleading   at   an   earlier   point   in   time,   implicitly

refusing leave to amend to conform to the evidence.




    1
     Rule 9(a) of the Rules Governing Section 2254 Cases provides:

     Delayed Petitions. 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.

                                     4
      First we must explain why it is necessary to reach the

question of laches when the absence of a Batson issue is so

conspicuous. Having been directed to an evidentiary hearing on the

merits of the Batson claim by the district court, the Director

conceded to the magistrate judge that Chambers proved a prima facie

case under Batson.      The Director's concession is troubling.                 The

objection lodged at trial was that there were no black persons on

the   seated   jury.     At   best     it   was    a   Swain    objection,      and

understandably so since that was the legal regime at the time of

trial.2    Of course, Chambers has the benefit of Batson since his

case was pending on appeal when Batson was decided as we explained.

With no assistance from the Director, the district court and in

turn the magistrate judge failed to realize that under controlling

decisions of this court a Batson objection must be asserted before

the   venire   is   dismissed,   and    that   a   timely      objection   is    an

essential condition to the assertion of the Batson claim.                    See,

e.g., Wilkerson v. Collins, 950 F.2d 1054, 1063 (5th Cir. 1992);

United States v. Romero-Reyna, 867 F.2d 834, 837 (5th Cir. 1989);

Jones v. Butler, 864 F.2d 348, 369 (5th Cir. 1988);               United States

v. Erwin, 793 F.2d 656, 667 (5th Cir. 1986).             As Judge Reavley has

explained for this court, the Batson "right" is grounded in a

process.   See Thomas v. Moore, 866 F.2d 803, 805 (5th Cir. 1989).

On objection a party must articulate race-neutral reasons for a


       2
      Swain v. Alabama, 380 U.S. 202, 223-24 (1965), required a
showing of systematic race discrimination in jury selection beyond
the defendant's own case to establish a violation of the Equal
Protection Clause. Batson overruled Swain.

                                       5
peremptory challenge; absent an objection there is no Batson

violation.   See id.   That said, we will not relieve the Director of

his concession any more than we will supply an objection that

Chambers never made.

                                  III

     At the hearing it became clear that the prosecutors could not

remember the specific reasons that they struck three black members

of the venire, and the prosecutor who actually made the strikes had

long since lost his notes from Chambers' trial.       With the passage

of over thirteen years since Chambers' trial and the issue of a

timely Batson objection not considered, the result was preordained.

As the magistrate judge observed, the outcome now turned on whether

the court would allow the state to invoke the defense of laches

under Rule 9(a) of the federal habeas rules.     Chiding the state for

letting some months go by before the hearing without filing a

responsive pleading asserting laches, the magistrate judge refused

to consider the defense.

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

an equitable defense of laches.        See, e.g., Walters v. Scott, 21

F.3d 683, 686 (5th Cir. 1994).     It is also true that "laches" is

among the affirmative defenses listed in Fed. R. Civ. P. 8(c),

requiring a responsive pleading.        But accepting that a Rule 9(a)

defense must be supported by a pleading does not answer the

question of when an amendment asserting the defense is allowed.

Specifically, an affirmative defense under Fed. R. Civ. P. 8(c) is

not waived when a defendant who failed to assert it in a responsive


                                   6
pleading "raised the issue at a pragmatically sufficient time, and

[the plaintiff] was not prejudiced in its ability to respond."

Lucas     v.   United     States,   807   F.2d   414,   418   (5th   Cir.

1986)(alterations in original).

     There has been no showing that the defense was not raised at

a pragmatically sufficient time or that Chambers was prejudiced in

his ability to respond.       Perhaps there is more, but on this record

the ruling strikes one as blind formalism on the one hand and

extraordinary tolerance on the other.       An insistence on timeliness

has its virtues.        Here, however, the magistrate judge held the

state's feet to the fire but granted relief to a petitioner who

waited over nine years after exhausting his state remedies to file

a federal habeas petition. During this time the state's ability to

defend was lost.        The prosecutor who struck the three members of

the venire testified at the evidentiary hearing that race was not

a reason for the challenges, but could not recall the specific

reasons for the strikes, such as occupation, work history, and so

forth.    We are persuaded there is no unfair surprise attending the

consideration of the effects of Chambers' nine-year delay in filing

his federal habeas petition upon the State's ability to defend

itself.    We VACATE the judgment granting relief and remand         for

further proceedings.       On remand the magistrate judge will consider

the defense, allowing Chambers a fair opportunity to respond.

     VACATED and REMANDED.




                                     7
