REINHARDT, Circuit Judge:
State prisoner Hector Juan Ayala ("Ayala") appeals the denial of his petition for a writ of habeas corpus. During the selection of the jury that convicted Ayala and sentenced him to death, the prosecution used its peremptory challenges to strike all of the black and Hispanic jurors available for challenge. The trial judge concluded that Ayala had established a prima facie case of racial discrimination under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), but permitted the prosecution to give its justifications for the challenges of these jurors in an in camera hearing from which Ayala and his
We conduct our review of Ayala's appeal under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). In reviewing Ayala's federal claim, the state court faced two questions: first, whether the exclusion of Ayala and his counsel from the ex parte Batson proceedings was federal constitutional error, and, second, whether any such error was harmless. We conclude that the state court either resolved the first question in Ayala's favor or did not reach it. We therefore apply de novo review, and conclude that there was federal constitutional error. Turning to the second question, harmlessness, we conclude that the state court found that any federal constitutional error was harmless. We review that determination under Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), and conclude that the violation of Ayala's Batson rights was prejudicial. We therefore remand with instructions to grant the writ.
On April 26, 1985, Jose Luis Rositas, Marcos Antonio Zamora, and Ernesto Dominguez Mendez were shot and killed in the garage of an automobile repair shop in San Diego, California. A fourth victim, Pedro Castillo, was shot in the back but managed to escape alive. Castillo identified Ayala, his brother Ronaldo Ayala, and Jose Moreno as the shooters. He claimed that these men had intended to rob the deceased, who ran a heroin distribution business out of the repair shop.
Ayala was subsequently charged with three counts of murder, one count of attempted murder, one count of robbery and three counts of attempted robbery. The information further alleged that the special circumstances of multiple murder and murder in the attempted commission of robberies were applicable in his case. A finding that one of these special circumstances was true was required in order for Ayala to be eligible for the death penalty.
Jury selection began in San Diego in January 1989. Each of the more than 200 potential jurors who responded to the summons and survived hardship screening was directed to fill out a 77-question, 17-page questionnaire. Over the next three months, the court and the parties interviewed each of the prospective jurors regarding his or her ability to follow the law, utilizing the questionnaires as starting points for their inquiry. Those jurors who had not been dismissed for cause were called back for general voir dire, at which smaller groups of jurors were questioned by both the prosecution and the defense. The parties winnowed the remaining group down to twelve seated jurors and six alternates through the use of peremptory challenges. Each side was allotted twenty peremptory challenges which could be used upon any of the twelve jurors then positioned to serve on the jury. After twelve seated jurors were finally selected, both parties were allotted an additional six peremptory challenges to be used in the selection of alternates.
The prosecution employed seven of the 18 peremptory challenges it used in the selection of the seated jurors to dismiss each black or Hispanic prospective juror who was available for challenge, resulting in a jury that was devoid of any members of these ethnic groups. In response, Ayala, who is Hispanic, brought three separate motions pursuant to Batson v. Kentucky,
The defense made its first Batson motion after the prosecution challenged two black jurors. The trial court found that the defense had not yet established a prima facie case of racial discrimination, but nevertheless determined that it would require the prosecution to state its reasons for challenging the jurors in question. At the prosecutor's insistence, and despite the defense's objections, the court refused to let the defendant or his counsel be present at the hearing in which the prosecution set forth these reasons and the court determined whether they were legitimate.
The trial judge continued to employ this ex parte, in camera procedure to hear and consider the prosecutor's purported reasons for challenging minority jurors following the defense's second and third Batson motions. He did so despite his determination, by the third motion, that the defense had established a prima facie showing of racial discrimination.
Ultimately, the trial judge concluded that the prosecutor had proffered plausible race-neutral reasons for the exclusion of each of the seven minority jurors, and denied the defense's Batson motions. Although the ex parte Batson proceedings were transcribed, this transcript — and thus, the prosecution's proffered race-neutral reasons for striking the seven black and Hispanic jurors — were not made available to Ayala and his counsel until after the conclusion of the trial.
The jury convicted Ayala of all counts save a single attempted robbery count, and found true the special circumstance allegations. At the penalty phase, it returned a verdict of death.
Early in the process of jury selection, the trial judge had instructed the parties to return to the court all the questionnaires the prospective jurors had completed, and advised them that he would be "keeping the originals." At some point during or following the trial, however, all questionnaires, save those of the twelve sitting jurors and five alternates, were lost. The questionnaires of four additional jurors — including the sixth alternate — were located in the defense counsel's files, but the remaining 193 questionnaires have never been located.
On direct appeal from his conviction, Ayala challenged the trial court's use of ex parte Batson proceedings. He also claimed that the loss of the jury questionnaires deprived him of his right to a meaningful appeal of the denial of his Batson motion. A divided California Supreme Court upheld his conviction on the basis of harmless error and also upheld the sentence. People v. Ayala, 24 Cal.4th 243, 99 Cal.Rptr.2d 532, 6 P.3d 193 (2000). The court unanimously held that under state law the trial judge had erred in conducting the Batson proceedings ex parte. Id. at 204 (majority opinion); id. at 201 (George, C.J., dissenting). A majority went on to hold, however, that any error was harmless beyond a reasonable doubt. Id. at 204. It also concluded that the loss of the questionnaires was harmless beyond a reasonable doubt. Id. at 208. In dissent, Chief Justice George, joined by Justice Kennard, expressed his disagreement with the majority's "unprecedented conclusion
Ayala timely filed his federal habeas petition. The district court denied relief, but issued a Certificate of Appealability as to Ayala's Batson-related claims and his claim that the state had violated his Vienna Convention right to consular notification.
In order for this court to grant Ayala habeas relief, we must find that he suffered a violation of his federal constitutional rights. To do so, Ayala must demonstrate both that (1) the state court committed federal constitutional error and (2) that he was prejudiced as a result. We discuss the issue of error in Part III and the issue of prejudice in Part IV.
Here, Ayala alleges two federal constitutional violations, the first of which is the principal focus of this opinion. Ayala's primary claim relates to his exclusion and his counsel's from the Batson proceedings. Ayala's secondary claim, which exacerbates the overall error in this case, relates to the state court's loss of the juror questionnaires prior to Ayala's appeal. We discuss these errors separately, in Sections III.A and III.B respectively, devoting much greater attention to the first, although the second would strongly bolster the first.
The state, in defending against the grant of habeas relief to Ayala, makes two principal arguments. First, it contends that Ayala was not prejudiced by his exclusion or his counsel's from the Batson proceedings, or by the loss of the juror questionnaires. This was the state court's basis for denying Ayala relief.
Second, the state raises a procedural objection that Ayala's claim regarding his exclusion during the Batson proceedings is barred by Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). "[I]n addition to performing any analysis required by AEDPA, a federal court considering a habeas petition must conduct a threshold Teague analysis when the issue is properly raised by the state." Horn v. Banks, 536 U.S. 266, 272, 122 S.Ct. 2147, 153 L.Ed.2d 301 (2002). We conduct the requisite Teague analysis in Part V of this opinion.
In Part VI of this opinion, we respond to arguments made by the dissent, and in Part VII we set forth our conclusion and remand to the district court with instructions to grant Ayala the writ of habeas corpus.
As stated above, Ayala alleges that the state court committed two distinct federal constitutional errors. The first alleged error relates to the state court's exclusion of Ayala and his counsel from the Batson proceedings (referred to sometimes in this opinion as the "ex parte Batson proceedings"). The second error relates to the state court's loss of the juror questionnaires. We address each error in turn, concluding that Ayala is correct and that the state court committed both federal constitutional errors, although we hold that the first error is sufficient in itself to warrant the issuance of the writ, and the second simply bolsters the first.
"For more than a century, [the Supreme] Court consistently and repeatedly has reaffirmed that racial discrimination by the State in jury selection offends the Equal Protection Clause." Georgia v. McCollum, 505 U.S. 42, 44, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992). Batson established the three-step inquiry used to determine whether this basic constitutional guarantee has been violated. First, the defendant must make a prima facie showing that the prosecution has exercised peremptory challenges in a racially discriminatory manner. Batson, 476 U.S. at 96, 106 S.Ct. 1712. Such a showing may be made, as the trial judge concluded it was in Ayala's case, where the prosecution has engaged in a pattern of strikes against jurors of a particular race. Id. at 97, 106 S.Ct. 1712. Second, once the defendant has made a prima facie showing, "the burden shifts to the State to come forward with a neutral explanation for challenging" the jurors. Id. Third, the trial court must then determine whether, taking into consideration the prosecutor's explanations for his conduct, "the defendant has established purposeful discrimination." Id. at 98, 106 S.Ct. 1712.
Ayala contends that the exclusion of the defense from the proceedings in which the prosecution justified its strikes of the seven black and Hispanic jurors, and the trial court accepted those justifications, violated his right to the assistance of counsel and his right to be personally present and to assist in his defense. He further contends that these errors prevented him from ensuring that the prosecution did not violate his fundamental right to a jury chosen free from racial discrimination.
Before we may evaluate the merits of Ayala's contention, we must first determine the appropriate standard of review to apply. Specifically, because Ayala's habeas petition is subject to the requirements of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), see Kennedy v. Lockyer, 379 F.3d 1041, 1046 (9th Cir.2004), we must determine whether Ayala's claim of federal constitutional error was adjudicated on the merits, and if so what the nature of that adjudication was.
The first question is whether the state court made an adjudication on the
Id.; see also id. 99 Cal.Rptr.2d 532, 6 P.3d at 204-08 (analyzing prejudice further). Having found error but having also deemed it harmless, the state court denied Ayala relief.
There is no doubt that the California Supreme Court found that the exclusion of Ayala and his counsel from the Batson proceedings was erroneous under state law. The state court made no express finding with respect to whether the exclusion of Ayala and his counsel from the Batson proceedings was also error under federal constitutional law. Although it is not easy to interpret a state court's silence, there are only three possible determinations it could have made in this case. The California Supreme Court either
Of these three possibilities, only under Option 3 — in which the state court made an unfavorable determination on the merits of Ayala's claim of federal constitutional error — would § 2254(d) require deference to a determination against Ayala.
In determining how to interpret state court silence on the question of federal constitutional error, we consider, inter alia, two recent Supreme Court decisions: Richter, 131 S.Ct. 770, and Johnson v. Williams, ___ U.S. ___, 133 S.Ct. 1088, 185 L.Ed.2d 105 (2013). In both Richter and Williams, the Supreme Court applied a rebuttable presumption that, even though the state court was silent with respect to a fairly presented federal claim, the claim was adjudicated on the merits. The Court's rationale was that, because the state court denied relief overall, it necessarily adjudicated (and rejected) the federal claim. For example, in the context of a summary denial, as in Richter, the state court could not have denied relief overall without having rejected, and thus adjudicated, every fairly presented federal claim. Accordingly, the Supreme Court held, "[w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Richter, 131 S.Ct. at 784. The same was true when, in Williams, the state court rejected a state law claim, was silent with respect to a fairly presented federal claim, and denied relief overall. See Williams, 133 S.Ct. at 1091. There too, the state court could not have denied relief overall without having rejected, and thus adjudicated, the federal claim presented by the petitioner. Thus, the Supreme Court held, "[w]hen a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits — but that presumption can in some limited circumstances be rebutted." Id. at 1096 (discussing Richter). Here, the presumption is inapplicable for several reasons. We need mention only a couple. First, it was not necessary for the state court to reject the claim of federal constitutional error on the merits in order for it to deny relief to the petitioner. To the contrary, the state court denied Ayala relief on his federal constitutional claim only because it
We believe that there are only two plausible interpretations of the California Supreme Court's decision — either Option 1 or Option 2. The most likely interpretation is Option 1, i.e., that the California Supreme Court held implicitly that there was error under state law and under federal constitutional law alike. Notably, the California Supreme Court based its determination that the trial court's exclusion of Ayala and his counsel was impermissible "as a matter of state law," Ayala, 99 Cal.Rptr.2d 532, 6 P.3d at 203, on the fact that it was "almost universally recognized" that ex parte Batson proceedings are erroneous absent a compelling reason, expressly relying for this conclusion on multiple federal cases that themselves relied on federal constitutional law. Id. (citing United States v. Roan Eagle, 867 F.2d 436, 441 (8th Cir. 1989); United States v. Garrison, 849 F.2d 103, 106 (4th Cir.1988); United States v. Gordon, 817 F.2d 1538, 1541 (11th Cir. 1987)). The court then quoted extensively from United States v. Thompson, 827 F.2d 1254 (9th Cir.1987), in which we held that the ex parte proceedings in that case violated federal constitutional law. Ayala, 99 Cal.Rptr.2d 532, 6 P.3d at 203-04. In summarizing its discussion of error (before moving to prejudice), the California Supreme Court stated: "We have concluded that error occurred under state law, and we have noted Thompson's suggestion that excluding the defense from a [Batson]-type hearing may amount to a denial of due process." Id. 99 Cal.Rptr.2d 532, 6 P.3d at 204. The obvious message here is that the California Supreme Court believed that the federal constitutional issue should be decided the same way as the state law issue. This is consistent with the fact that California courts interpret a violation of Wheeler — California's state equivalent of Batson — as proof of a violation of Batson. See People v. Yeoman, 31 Cal.4th 93, 2 Cal.Rptr.3d 186, 72 P.3d 1166, 1187 (2003); see also Johnson v. California, 545 U.S. 162, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005) (holding that Wheeler is more demanding than Batson). Thus, if we were required to determine whether the California Supreme Court adjudicated Ayala's claim of federal constitutional error on its merits in favor of the petitioner or the state, we would hold without question that the California Supreme Court found error in petitioner's favor under both state law and federal constitutional law — i.e., Option 1.
In support of this conclusion, we find instructive — and likely dispositive — the Supreme Court's discussion in Part III of Williams. In that case, the petitioner challenged the dismissal of a holdout juror under both California state law and under the Sixth Amendment right to a fair jury. The California Court of Appeal found that there was no error under state law. It did not expressly decide petitioner's federal constitutional claim but, in the course of deciding the state law claim, cited a California Supreme Court case, People v. Cleveland, 25 Cal.4th 466, 106 Cal.Rptr.2d 313, 21 P.3d 1225 (2001). Cleveland in turn discussed three federal appellate cases in depth, each of which was based on the Sixth Amendment. In Williams, the Supreme Court explained Cleveland as follows:
Williams, 133 S.Ct. at 1098. A unanimous Supreme Court then concluded that because the state court found no error under state law on the basis in part of federal cases relying on federal constitutional law, it likewise found no error using that same analysis to decide the question under federal constitutional law. Id. at 1098-99. The obverse is necessarily true with respect to the state court's analysis in this case. The California Supreme Court, in finding that the exclusion of Ayala and his counsel from the Batson proceedings was erroneous under state law, cited to multiple federal cases relying on federal law. It did not expressly purport to decide the federal constitutional question, but it too must have understood itself to be deciding a question with federal constitutional dimensions and to be deciding it in petitioner's favor by its reliance on cases that held analogous conduct to be erroneous under the federal Constitution. Thus, if we were compelled to determine whether the California Supreme Court adjudicated Ayala's claim of federal constitutional error on its merits in favor of the petitioner or the state, we would hold without the slightest hesitation that it found that the error occurred under federal constitutional law — i.e., Option 1. Accordingly, if we apply § 2254(d) at all, we defer to a holding that there was federal constitutional error, deference that favors Ayala. See discussion supra at 664-65 n. 4.
Alternatively, we are willing to assume another, albeit weaker, interpretation of the California Supreme Court's decision that leads to the same result. Under that interpretation, the state court did not, deliberately or otherwise, decide whether there was error under federal law, i.e., Option 2 above. In short, it failed to decide the merits of the question of federal constitutional error because it thought there was nothing to be gained by doing so. It had already decided that the state court had erred on state law grounds and nothing further was to be gained by holding that it was also a federal constitutional error. Richter and Williams instruct us to afford a rebuttable presumption that a fairly presented claim was "adjudicated on the merits" for purposes of § 2254(d), but this presumption is rebuttable if there is "any indication or state-law procedural principles" supporting the conclusion that the state court did not adjudicate the federal claim on the merits. Richter, 131 S.Ct. at 784-85. Here, the California Supreme Court denied Ayala relief overall but did so by (1) finding that the trial court committed error on state law grounds, (2) failing to make any express determination of error on federal constitutional grounds, and (3) finding any error harmless under both the state and federal standards for harmless error. In the context of these holdings, the rebuttable presumption that Richter and Williams instruct us to afford is, in fact, rebutted. The California Supreme Court, by finding any alleged error harmless under both the state and federal standards for harmless error, had no reason to reach the question of whether federal constitutional error occurred. This is not an unusual practice; courts often choose not to decide the question whether an error occurred by deciding that any error was harmless. Indeed, we have found no published opinion in which, after a state court has denied relief based on harmless error, a federal court has presumed that the state court adjudicated the merits of the question of error.
In fact, the California Supreme Court would have had good reason not to
Our reasoning finds support in a different line of Supreme Court cases, in which the Court has interpreted state court silence with regard to a particular issue as not constituting an "adjudication on the merits." Many of these cases involved claims of ineffective assistance of counsel brought under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland claims have two prongs, deficiency of counsel's performance and prejudice to the defendant; failure on either prong is dispositive. Id. at 680, 104 S.Ct. 2052. Accordingly, state courts frequently decide Strickland claims by rejecting either deficiency or prejudice and remain silent with respect to the other prong. When these claims are raised in federal habeas proceedings, the Supreme Court has repeatedly interpreted that silence as a failure to reach the other prong and therefore not an "adjudication on the merits" of it. See Wiggins v. Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) ("Our review is not circumscribed by a state court conclusion with respect to prejudice, as neither of the state courts below reached this prong of the Strickland analysis." (emphasis added)); Rompilla v. Beard, 545 U.S. 374, 390, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) ("Because the state courts found the representation adequate, they never reached the issue of prejudice, and so we examine this element of the Strickland claim de novo." (emphasis added) (internal citations omitted)); Porter v. McCollum, 558 U.S. 30, 130 S.Ct. 447, 452, 175 L.Ed.2d 398 (2009) ("Because the state court did not decide whether Porter's counsel was deficient, we review this element of Porter's Strickland claim de novo." (emphasis added)). Nor has the Supreme Court limited this reasoning to Strickland claims. In Cone v. Bell, 556 U.S. 449, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009), the petitioner raised a claim under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), in his federal habeas petition. The state habeas court dismissed the claim based on a factual determination that the Supreme Court held was erroneous. Id. at 466-69, 129 S.Ct. 1769. Turning to the merits of the claim, the Supreme Court stated:
Id. at 472, 129 S.Ct. 1769 (emphasis added). Again, even though the state court was silent with respect to the merits of Cone's Brady claim, the Supreme Court did not presume that the claim was adjudicated on the merits. Thus, as Wiggins, Rompilla, Porter, and Cone demonstrate, and as both Richter and Williams have recognized, in some instances, a state court's silence with respect to a part of a claim should not be interpreted as an "adjudication on the merits" on that part for purposes of § 2254(d).
We summarize the law as set forth by the Supreme Court as follows. There are circumstances in which, even if a state court has denied relief overall, a state court's silence with respect to a fairly presented federal issue cannot be interpreted as an "adjudication on the merits" of that issue for purposes of § 2254(d), because the rebuttable presumption cited in Richter and Williams is rebutted by the legal principles involved (including the principle of constitutional avoidance) and factual context applicable to a particular case. See Wiggins v. Smith, 539 U.S. at 534, 123 S.Ct. 2527; Rompilla v. Beard, 545 U.S. at 390, 125 S.Ct. 2456; Porter v. McCollum, 558 U.S. 30, 130 S.Ct. 447, 452, 175 L.Ed.2d 398 (2009); Cone v. Bell, 556 U.S. at 472, 129 S.Ct. 1769.
This is such a case. As explained earlier, the California Supreme Court had no reason to reach Ayala's federal constitutional claim once it had decided that (1) the alleged error occurred as a matter of state law, (2) the error was harmless under the state and federal standards for harmless error, and (3) whether or not that occurrence also violated federal constitutional law was of no consequence. Furthermore, under long established legal principles, the California Supreme Court had every reason not to decide unnecessarily a question of federal constitutional law. Thus, we find merit in Option 2, i.e., that the California Supreme Court did not decide whether there was error under federal constitutional law.
We recognize that it remains unclear whether the California Supreme Court decision is better read as Option 1 or Option 2.
Having determined that only Options 1 and 2 are plausible readings of the California Supreme Court decision, we proceed to review de novo Ayala's claim that his exclusion from stages two and three of the Batson proceedings violated the federal constitution.
Under de novo review, it is clear that it was federal constitutional error to exclude both Ayala and his counsel from stages two and three of the Batson proceedings. As the California Supreme Court recognized, our circuit had already held in United States v. Thompson, 827 F.2d 1254 (9th Cir.1987) that, in the absence of a "compelling justification" (e.g., the disclosure of trial strategy) for conducting ex parte Batson proceedings, such exclusions violate federal constitutional law. Id. at 1258-59. Here, the California Supreme Court concluded — and neither party to this appeal disputes — that there was no such compelling justification for
Ayala also claims that the state's loss of an overwhelming majority of the jury questionnaires deprived him of a record adequate for appeal and thus violated his federal due process rights. Although less clear than with Ayala's first federal constitutional claim, the California Supreme Court also decided this claim on the basis of harmless error only. Ayala, 99 Cal.Rptr.2d 532, 6 P.3d at 208 ("Thus, even if there was federal error, it was harmless beyond a reasonable doubt."). Accordingly, for the reasons explained supra Section III.A.1, we proceed with de novo review.
As the California Supreme Court recognized, Ayala has a due process right to a record sufficient to allow him a fair and full appeal of his conviction. Id. 99 Cal.Rptr.2d 532, 6 P.3d at 208 (citing People v. Alvarez, 14 Cal.4th 155, 196 n. 8, 58 Cal.Rptr.2d 385, 926 P.2d 365 (1996)). If a state provides for a direct appeal as of right from a criminal conviction, it must also provide "certain minimum safeguards necessary to make that appeal `adequate and effective.'" Evitts v. Lucey, 469 U.S. 387, 392, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985) (quoting Griffin v. Illinois, 351 U.S. 12, 20, 76 S.Ct. 585, 100 L.Ed. 891 (1956)); see also Coe v. Thurman, 922 F.2d 528, 530 (9th Cir.1990) ("Where a state guarantees the right to a direct appeal, as California does, the state is required to make that appeal satisfy the Due Process Clause.").
In Boyd v. Newland, we applied these principles in granting the habeas petition of an indigent defendant who had been denied a copy of his voir dire transcript because the state court had, in violation of clearly established federal law, determined that the transcript was not necessary to his Batson appeal. 467 F.3d 1139 (9th Cir.2006). We held that "all defendants... have a right to have access to the tools which would enable them to develop their plausible Batson claims through comparative juror analysis." Id. at 1150. It follows that if the state's loss of the questionnaires deprived Ayala of the ability to meaningfully appeal the denial of his Batson claim, he was deprived of due process.
This conclusion is not called into question by Briggs v. Grounds, 682 F.3d 1165 (9th Cir.2012), cited in the dissent. Dissent at 708. In Briggs, the petitioner had complete access to the juror questionnaires during the course of his state appeal. In fact, he relied heavily on them in presenting a comparative juror analysis to
Ayala is entitled to relief on this claim only if the loss of the questionnaires was prejudicial in se or if it in conjunction with the Batson error discussed supra served to deprive him of a meaningful appeal. Id.; see also Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). "[I]n analyzing prejudice ..., this court has recognized the importance of considering the cumulative effect of multiple errors and not simply conducting a balkanized, issue-by-issue harmless error review." Daniels v. Woodford, 428 F.3d 1181, 1214 (9th Cir.2005) (quoting Thomas v. Hubbard, 273 F.3d 1164, 1178 (9th Cir. 2001)). Here, the loss of the questionnaires increased the prejudice that Ayala suffered as a result of the exclusion of defense counsel from Batson steps two and three, as it further undermined his ability to show that Batson had been violated. Accordingly, in determining whether Ayala is entitled to relief, we evaluate the prejudice caused by the loss of the questionnaires in conjunction with the harm caused by excluding defense counsel from the Batson proceedings. As we will explain immediately below, the analysis under Brecht regarding the Batson error demonstrates that the exclusion of Ayala and his counsel from the second and third stages of the Batson inquiry is sufficiently prejudicial to require reversal for that reason alone.
The California Supreme Court held that Ayala was not prejudiced by the trial court's exclusion of the defense from stages two and three of the Batson proceedings, by the state's loss of the vast majority of the jury questionnaires, or by the two errors considered together. The Court declared itself "confident that the challenged jurors were excluded for proper, race-neutral reasons," Ayala, 99 Cal.Rptr.2d 532, 6 P.3d at 204, concluded that the exclusion of defense counsel was "harmless beyond a reasonable doubt," id. (citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)), and held that despite the loss of the questionnaires the record was "sufficiently complete for [it] to be able to conclude that [the struck jurors] were not challenged and excused on the basis of forbidden group bias." Id. 99 Cal.Rptr.2d 532, 6 P.3d at 208.
We now address these same questions, and hold that Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), requires us to reach a different conclusion.
Ayala claims, first, that exclusion of defense counsel from the Batson proceedings necessarily represented structural error, and that he is entitled to relief without further inquiry into whether he was prejudiced.
The Supreme Court has defined as "structural" an error that affects "the framework within which the trial proceeds, rather than simply an error in the trial process itself." Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Where this line is drawn is not always clear. Compare, e.g., Waller v. Georgia, 467 U.S. 39, 49 n. 9, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (violation of the right to public trial requires automatic reversal), with, e.g., Rushen v. Spain, 464 U.S. 114, 117-18 & n. 2, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983) (denial of a defendant's right to be present at trial is subject to harmless error review). While a violation of Batson is itself structural error, there is no Supreme Court decision addressing whether the exclusion of defense counsel from Batson proceedings constitutes structural error.
Ayala contends that the state court's decision represents an unreasonable application of the Supreme Court's clearly established rule that "no showing of prejudice need be made `where assistance of counsel has been denied entirely or during a critical stage of the proceedings.'" Brief of Appellant at 22 (quoting Mickens v. Taylor, 535 U.S. 162, 166, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002)); see also United States v. Cronic, 466 U.S. 648, 659 n. 25, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).
Id. at 228 (emphasis omitted).
In Musladin v. Lamarque, we held that the "clearly established" rule of Cronic is that a "critical stage" where the deprivation of counsel constitutes structural error is one that holds "significant consequences for the accused." 555 F.3d 830, 839 (9th Cir.2009) (quoting Bell v. Cone, 535 U.S. 685, 695-96, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002)). We identified as providing guidance in this inquiry Supreme Court
Given this fairly ambiguous standard, it was not an unreasonable application of clearly established federal law for the California Supreme Court to conclude that the exclusion of the defense from Batson steps two and three does not amount to a deprivation of the right to counsel such that the likelihood that the jury was chosen by unconstitutional means is "so high that a case-by-case inquiry is unnecessary." Mickens, 535 U.S. at 166, 122 S.Ct. 1237. As the state points out, it would be somewhat incongruous to conclude that the exclusion of counsel during Batson proceedings is a defect in the very structure of the trial if the same exclusion would be permissible were there some reason to keep the prosecution's justifications confidential. Thus, a "fairminded jurist[]," Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)), might conclude that Batson steps two and three are not a Cronic-type "critical stage." Even if we would hold the error to be structural were we to consider the issue de novo, we cannot say that as the Supreme Court has construed AEDPA the state court's contrary conclusion was unreasonable. See Musladin, 555 F.3d at 842-43.
Ayala claims next that, even if the trial court's exclusion of the defense was not the sort of constitutional error in se that requires that we presume that in every exclusion case prejudice ensues, it was prejudicial in his case, both in solo and when considered in conjunction with the loss of the questionnaires. In evaluating whether a trial error prejudiced a state habeas petitioner, we must apply the standard set forth in Brecht v. Abrahamson, determining whether the error had a "substantial and injurious effect or influence in determining the jury's verdict." 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). We "apply the Brecht test without regard for the state court's harmlessness determination." Pulido v. Chrones, 629 F.3d 1007, 1012 (9th Cir. 2010) (citing Fry v. Pliler, 551 U.S. 112, 121-22, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007)).
The Brecht standard has been described as follows:
Merolillo v. Yates, 663 F.3d 444, 454 (9th Cir.2011) (quoting Kotteakos, 328 U.S. at 765, 66 S.Ct. 1239). "Where the record is so evenly balanced that a judge `feels himself in virtual equipoise as to the harmlessness of the error' and has `grave doubt about whether an error affected a jury [substantially and injuriously], the judge must treat the error as if it did so.'" Id. (quoting O'Neal v. McAninch, 513 U.S. 432, 435, 437-38, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995)) (alteration in original) (internal quotations omitted).
We conclude that Ayala has met the Brecht standard. The prejudice he
Here, it is probable that the state's errors precluded Ayala from turning what is a very plausible Batson claim — the challenge to the prosecution's strikes of all minority jurors — into a winning one by preventing defense counsel from performing the two "crucial functions" we identified in Thompson. First, Ayala's counsel could have pointed out where the prosecution's purported justifications might be pretextual or indicate bad faith. Although the trial judge may have been able to "detect some of these deficiencies by himself, ... there might be arguments [he] would overlook" because he was "unassisted by an advocate." Thompson, 827 F.2d at 1260-61. The jury selection process took over three months and comprises more than six thousand pages of the record. The trial judge, attempting to evaluate the prosecution's reasons for striking the jurors in light of this massive amount of information, was almost certain to forget or overlook key facts, but could have been substantially aided by the presence of participants in the process adverse to the prosecution. In particular, Ayala's lawyers could have pointed out when the prosecutor's proffered reason for striking a black or Hispanic juror applied "just as well to an otherwise-similar nonblack [or non-Hispanic] who [was] permitted to serve." Miller-El v. Dretke, 545 U.S. 231, 241, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005). The Supreme Court has emphasized the importance of this sort of "comparative juror analysis" to determining whether a prosecutor's reasons for challenging a minority juror were pretextual. Id.; see also Snyder v. Louisiana, 552 U.S. 472, 483-85, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008). Although Ayala can — and does — still raise some of these arguments on appeal, he was deprived of the crucial opportunity to present them to the institutional actor best positioned to evaluate them. As the Supreme Court has observed, appellate courts must accord deference to "trial court findings on the issue of discriminatory intent" because "the finding largely will turn on evaluation of credibility." Miller-El v. Cockrell, 537 U.S. 322, 339, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (quoting Hernandez v. New York, 500 U.S. 352, 366, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality opinion)) (internal quotation marks and citations omitted). Because, after finding a prima facie case of a Batson violation, the trial court was not made aware of key facts that could have influenced its credibility determination, there is substantial reason to doubt
Second, Ayala's counsel could have "preserve[d] for the record, and possible appeal, crucial facts bearing on the judge's decision." Thompson, 827 F.2d at 1261. We cannot know many of the facts material to whether the prosecution's stated reasons were false, discriminatory, or pretextual because defense counsel was not able to preserve relevant facts regarding prospective jurors' physical appearances, behavior, or other characteristics. Although the trial judge could have been aware of these facts, an appellate court "can only serve [its] function when the record is clear as to the relevant facts, or when defense counsel fails to point out any such facts after learning of the prosecutor's reasons." Id.; see also United States v. Alcantar, 897 F.2d 436, 438 (9th Cir.1990) (reversing a defendant's conviction where the Batson proceedings conducted below left the defense unable "to adequately challenge the prosecution's reasons as pretextual" and left the reviewing court uncertain as to whether the prosecution had, in fact, violated Batson).
This second deficiency is greatly augmented by the loss of the jury questionnaires. The only questionnaires that have been preserved are those of the seated and alternate jurors.
Even so, we have substantial reason to question the motivation of the prosecution in engaging in its peremptory challenges of the black and Hispanic jurors. In conducting our inquiry, we must keep in mind the strength of Ayala's prima facie case. "[T]he statistical evidence alone raises some debate as to whether the prosecution acted with a race-based reason when striking prospective jurors." Miller-El v. Cockrell, 537 U.S. at 342, 123 S.Ct. 1029. That the prosecution struck each of the seven black or Hispanic jurors available for challenge establishes a basis for significant doubt of its motives: "[h]appenstance is unlikely to produce this disparity." Id.
Perhaps more important, the analysis of the prosecution's motives that is possible on the partial record before us demonstrates that many of its stated reasons for striking the seven black and Hispanic jurors were or may have been false, discriminatory, or pretextual. There are good reasons to think that race motivated the
Olanders D. was one of two black jurors whom the prosecution struck in the first round of peremptory challenges. During the in camera hearing that followed the defense's Batson motion, the prosecutor explained that he struck Olanders D. because: (1) he might not be able to vote for the death penalty, as he had written in his questionnaire that he did not believe in it, and he had indicated in questioning that his view had recently changed; (2) his answers to voir dire questions often were not fully responsive; (3) his questionnaire responses had been "poor"; and (4) he might lack the "ability to fit in with a cohesive group of 12 people." The trial judge rejected one of the four proffered reasons — his purported inability "to fit in with a cohesive group of 12 people." The presence of defense counsel, and the preservation of the questionnaires, could have permitted Ayala to call into question all three of the reasons that the court accepted as legitimate.
First, in response to the prosecution's claim that it was concerned that Olanders D. would hesitate to impose the death penalty, defense counsel could have pointed to seated white jurors who had expressed similar or greater hesitancy. One seated juror in particular was indistinguishable from Olanders D. in this regard. Olanders D. had (apparently) written in his questionnaire that he did not believe in the death penalty. Ana L., a seated white juror, made almost precisely the same statement in her questionnaire, writing that she "probably would not be able to vote for the death penalty." Also, Olanders D. later said during voir dire that he had reconsidered his views, and affirmed that he could be "personally responsible for being on a jury and actually voting for the death penalty." Once again, Ana L. said almost precisely the same thing: she stated that she had since rethought her position, and affirmed that she could "actually
Second, in answer to the prosecution's purported concern that Olanders D.'s answers on voir dire were not always fully responsive, defense counsel could have questioned the validity of this assessment, suggested that his answers were in fact fully responsive, and pointed to seated white jurors whose answers were less responsive than Olanders D.'s. Our review of the voir dire transcript reveals nothing that supports the prosecution's claim: Olanders D.'s answers were responsive and complete. In order to make this fact clear to the trial judge, defense counsel could once again have compared Olanders D. to seated juror Ana L. Ana L. had, for example, responded "That is correct" to a question asking "why" she would prefer not to sit as a juror, stared blankly at defense counsel in response to a question on the presumption of innocence, and failed, at various points, to respond directly to yes or no questions.
Third, we cannot know exactly what arguments defense counsel could have made to undermine the prosecution's final reason for striking Olanders D. — that his questionnaire responses were "poor," and demonstrated his inability to express himself. Because Olanders D.'s questionnaire has been lost, we may only speculate as to its contents. If the reason his answers were "poor" was that they were not particularly detailed, the defense could have compared his questionnaire to that of Ana L., whose answers were brief and often incomplete, or to that of Charles G., a seated white juror whose responses to the 77 questions were rarely longer than two or three words apiece. If the reason his answers were poor was that they reflected an inability to think clearly or express complex thoughts, the defense could have compared his questionnaire to that of Thomas B., a seated white juror who, for example, opined of street gangs, "I feel the only media coverage they get is bad, however, those whom do constructive events usually seek out positive media coverage." Further, this is an obvious instance in which the defense is prejudiced by being unable to compare Olanders D.'s answers to those of prospective white jurors who were accepted by the prosecution but struck by the defense, and whose questionnaires have been lost.
Gerardo O. was one of two Hispanic jurors the prosecution challenged during the second round of peremptories. He was struck, the prosecutor explained in the subsequent ex parte proceeding, because: (1) he was "illiterate," and had needed the questionnaire to be translated for him; (2) he "appeared not to fit in with anyone else," was "standoffish," with "dress and mannerisms ... not in keeping with the other jurors," and "did not appear to be socializing or mixing with any of the other jurors"; and (3) his voir dire responses suggested that he was not sure "if he could take someone's life," and that he "felt a little shaky as far as his responsibilities in this case." The trial judge concluded that the "record document[ed] the factors that were indicated" by the prosecutor and accepted his explanation.
Once again, had the defense not been excluded from the Batson proceedings, it likely could have called into question all of the prosecution's stated reasons for striking Gerardo O. Defense counsel could have first argued that one reason given — that Gerardo O. was illiterate — was itself indicative of the prosecution's discriminatory intent. Although Gerardo O. did need someone to fill out the questionnaire for him, the record reveals that he was not, in fact, illiterate, but simply had difficulty writing in English. Gerardo O. had been born in Mexico and was not a native English speaker, but he had graduated from high school and attended college in the United States, and was perfectly capable of reading the summary of legal issues that was given to prospective jurors before voir dire questioning. As he explained at voir dire, he did not fill out the questionnaire himself because he was concerned about his English spelling. The prosecution's purported reason for striking Gerardo O., then, was directly related to his status as someone who spoke Spanish as his first language. Thus, as the Supreme Court observed in a similar circumstance, "the prosecutor's frank admission that his ground for excusing th[is] juror[] related to [his] ability to speak and understand Spanish raised a plausible, though not a necessary, inference that language might be a pretext for what in fact [was a] race-based peremptory challenge[]." Hernandez, 500 U.S. at 363, 111 S.Ct. 1859 (plurality opinion). Defense counsel's presence was necessary to point out the potential inferences to the trial judge and urge the judge to adopt the one most appropriate here.
An inference of racial bias might also have been drawn from the prosecutor's claim that Gerardo O. was challenged because he did not dress or act like other jurors, and did not mix or socialize with them. It is likely that Gerardo O.'s dress and mannerisms were distinctly Hispanic. Perhaps in the late 1980s Hispanic males
Even if Gerardo O.'s clothes and behavior were in no way correlated with his race, defense counsel might have been able to show the prosecution's explanation to be pretextual. Defense counsel might have pointed to other jurors the prosecution had not struck who had similar characteristics — perhaps, for example, a seated white juror had actually worn an outfit identical to Gerardo O.'s. Defense counsel might also have been able to challenge the factual basis for the prosecution's claim — perhaps, unbeknownst to the trial judge, Gerardo O. did "socializ[e] or mix[]" with a number of other jurors, and had even organized a dinner for some of them at his favorite Mexican restaurant.
We can only speculate as to whether or how Ayala could have shown this explanation for striking Gerardo O. to be facially discriminatory, false or pretextual because we know nothing about his dress or mannerisms, or that of the other prospective jurors. These are exactly the sort of physical and behavioral observations that the defense could have preserved for the record had it been permitted to hear and respond to the prosecution's explanations for challenging Gerardo O. Although we might hope that the trial judge would have noticed if Gerardo O. had been wearing a shirt worn only by members of the Hispanic community, or had been dressed identically to other prospective jurors whom the prosecution had not challenged, or had in fact been socializing with other jurors, "we cannot affirm simply because we are confident he must have known what he was doing." Thompson, 827 F.2d at 1261.
Finally, in response to the prosecution's third reason for the strike — that Gerardo O. seemed reluctant to impose the death penalty — defense counsel could have demonstrated this reason to be pretextual through comparisons to jurors the prosecution did not strike. Gerardo O. had stated during voir dire that "I'm not sure if I can take someone's life in my hand and say ... you know, `death,' or something," but he soon thereafter affirmed that he "could vote for the death penalty." This statement was indistinguishable from those made by a number of seated white jurors. Dorothy C. said in voir dire that serving as a juror in a capital case would cause her to "worry a lot" because it was "a lot of responsibility," gasped when defense counsel told her that as a juror she would "decide the sentence," and stated, "I've never had to vote on a death penalty. That might be a little bit difficult when it came right down to it, but I'd say I'm for it." Likewise, Dorothy H., when asked in voir dire if she could return a verdict of death, stated, "I don't think it would be an easy thing for anyone, but I don't — I think I could do it if I felt it was the thing to do." Dorothea L. was even more hesitant, saying, when asked the same question, "I
Thus, one of the reasons given by the prosecution for striking this prospective juror could have itself given rise to an inference of discriminatory intent. A second reason cannot be evaluated because defense counsel was excluded from the Batson proceedings and could not preserve for the record certain crucial facts. The third reason given failed to distinguish Gerardo O. from seated white jurors the prosecutor chose not to strike, as well as, possibly, from other prospective white jurors struck not by the prosecution but by the defense. Given the cause we have to question the validity of the prosecution's reasons that can be evaluated on this record, we cannot say that Ayala would not have shown that the trial court would or should have determined that the prosecution's strike of Gerardo O. violated Batson.
The prosecution struck Hispanic juror Robert M. in the final round of peremptory challenges. In camera, the prosecutor explained that he had been concerned, given Robert M.'s response to voir dire questioning, that he might not be willing to impose the death penalty. This concern had been heightened by Robert M.'s mentioning the Sagon Penn case — a case in which the defendant was found not guilty in a second trial and the police and the district attorney's office were accused of misconduct. The trial judge accepted the prosecution's explanation, stating that, although Martinez's "questionnaire would tend to indicate a person that is certainly pro the death penalty[,] ... his answers varied somewhat to the extent that individually, there may well be a legitimate concern as to whether or not he could impose it."
Defense counsel's presence in the Batson proceedings was necessary to call into question the prosecution's claim that it struck Robert M. because of his reluctance to impose the death penalty. Even without comparing Robert M. to other jurors permitted to serve, this explanation is highly suspect: Robert M. repeatedly stated during voir dire that he believed in the death penalty and could personally vote to impose it, and his questionnaire (which has, of course, been lost) manifested a similar enthusiasm according to the trial judge. Defense counsel could have brought to the trial court's attention that the only statement potentially raising any question whatsoever — that voting for a death sentence might "weigh on his conscience," and would be a "heavy" decision — was indistinguishable from a practical standpoint from statements by Dorothy C., who said that serving as juror in a capital case was "a lot of responsibility" and would cause her to "worry a lot," Dorothy H., who stated that imposing the death penalty would not "be an easy thing for anyone," Dorothea L., who said she would not know if she could impose the death penalty until she had to do it, and Leona B., who affirmed that this responsibility would "bother" her. Other prospective jurors who were struck by
To the extent that the prosecution gave Robert M.'s reference to the Sagon Penn case as a separate reason for its challenge, defense counsel could likely have demonstrated that this reason was pretextual. First, the entirety of the Sagon Penn exchange was as follows:
Robert M. briefly mentioned the case in response to the prosecution's question, and he said nothing about any accusations of police or prosecutorial misconduct.
Second, although none of the seated jurors had been asked a similar question, one seated white juror had on his own initiative referred to a far more controversial capital case. When asked to describe his feelings about the death penalty, Douglas S. mentioned the "Harris" case, saying: "The Harris case, which goes back.... I believe he's on death row ... I can't even recall the exact crimes, but I remember them to be quite bizarre, and — and here he was, facing execution, and I don't know." Douglas S. was presumably referring to Robert Alton Harris, who at the time of Ayala's trial was on California's death row, and had, in a case that was extensively covered by the press, been tried, convicted and sentenced to death in San Diego. People v. Harris, 28 Cal.3d 935, 171 Cal.Rptr. 679, 623 P.2d 240, 246 (1981). As Harris's case wound its way through the state and federal courts, it generated substantial controversy, some of which, as in the Sagon Penn case, was related to allegations of official misconduct. See, e.g., id. 171 Cal.Rptr. 679, 623 P.2d at 267 (Bird, C.J., dissenting) (arguing that Harris had been denied his right to a fair trial due to extensive and prejudicial pretrial publicity, partially the product of the "sorry spectacle of prosecutorial offices publicly vying with each other to have `first crack' at convicting the accused"); see also Stephen R. Reinhardt, The Supreme Court, The Death Penalty, and The Harris Case, 102 Yale L.J. 205, 205 & n.1 (1992) (for further description of controversy generated by case). Douglas S.'s statement about the case — "here he was, facing execution, and I don't know" — suggests that this controversy had created some doubt in his mind as to the propriety of Harris's conviction and sentence. Certainly, Douglas S.'s unelicited discussion of the Harris case should have troubled the prosecutor far more than Robert M.'s brief direct response regarding the Sagon Penn case.
Finally, if there was any inference to draw from Robert M.'s fleeting reference to the Sagon Penn case, it was that Robert M. would not return a guilty verdict based on a blind trust of the police and the prosecution who had arrested and charged the defendant with the crime. Numerous seated white jurors expressed similar sentiments. Douglas S., for example, stated that the last person who had lied to his face was a California policeman. Similarly,
Even if the trial judge had not been willing to completely reject the prosecution's implausible explanation that it struck Robert M. because he mentioned the Sagon Penn case, there is a strong likelihood that, had defense counsel been present and been able to persuade the court that the prosecution's principal reason for challenging this juror — his reluctance to impose the death penalty — was pretextual, the court would have concluded that the strike violated Batson. We thus cannot conclude that the exclusion of defense counsel from the Batson proceedings did not prevent Ayala from showing that the prosecution's strike of Robert M. was based on its impermissible consideration of race.
Although each of the reasons offered by the prosecution for challenging the black and Hispanic jurors discussed above could have been shown to be pretextual had defense counsel been allowed to participate at steps two and three of the Batson proceedings, it is not necessary that all of the reasons advanced by the prosecution be pretextual or be shown to be pretextual. Notwithstanding the existence of some apparently appropriate reasons, "if a review of the record undermines... many of the proffered reasons, the reasons may be deemed a pretext for racial discrimination." Kesser v. Cambra, 465 F.3d 351, 360 (9th Cir.2006) (en banc) (quoting Lewis v. Lewis, 321 F.3d 824, 830 (9th Cir.2003)) (emphasis added). In short, "[a] court need not find all nonracial reasons pretextual in order to find racial discrimination" with respect to any particular juror, and the exclusion of any one juror in violation of Batson requires reversal of the verdict. Id.
Because the defense was excluded from the Batson proceedings, it could not bring necessary facts and arguments to the attention of the trial judge, the institutional actor best positioned to evaluate the prosecution's credibility and to determine if its proffered reasons for striking the minority jurors were its actual and legitimate reasons. Furthermore, because the defense was excluded from the Batson proceedings, the appellate courts reviewing this case cannot engage in a proper comparative juror analysis, or know what other facts and arguments might be employed to demonstrate that the proffered reasons were false, facially discriminatory, and pretextual. The latter form of prejudice was exacerbated when the vast majority of the juror questionnaires were lost.
Even on this deficient record, Ayala's Batson claim is compelling: the prosecution struck all seven of the black and Hispanic jurors in a position to serve on the jury, and many of its proffered race-neutral reasons are highly implausible. Given the strength of Ayala's prima facie case, the evidence that the prosecution's proffered reasons were false or discriminatory, and the inferences that can be drawn from the available comparative juror analysis, it is "impossible to conclude that [Ayala's] substantial rights were not affected" by the exclusion of defense counsel from the Batson proceedings. Kotteakos, 328 U.S. at 765, 66 S.Ct. 1239. Ayala has suffered prejudice under Brecht, and is entitled to relief. When that demonstration of prejudice is supplemented by the state's loss of the juror questionnaires, the case for prejudice under Brecht is even more clear.
Although our conclusions in Parts III and IV — that the state court committed
Under Teague, a "new constitutional rule[] of criminal procedure" cannot be applied retroactively to cases on collateral review. 489 U.S. at 310, 109 S.Ct. 1060 (plurality opinion). Thus, "[b]efore a state prisoner may upset his state conviction or sentence on federal collateral review, he must demonstrate as a threshold matter that the court-made rule of which he seeks the benefit is not `new,'" but had been established at the time his conviction became final. O'Dell v. Netherland, 521 U.S. 151, 156, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997). "A holding constitutes a `new rule' within the meaning of Teague if it `breaks new ground,' `imposes a new obligation on the States or the Federal Government,' or was not `dictated by precedent existing at the time the defendant's conviction became final.'" Graham v. Collins, 506 U.S. 461, 467, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993) (quoting Teague, 489 U.S. at 301, 109 S.Ct. 1060).
We hold that Ayala's claim does not require the retroactive application of a new constitutional rule of criminal procedure, and thus is not Teague-barred. At the time Ayala's conviction became final on May 14, 2001, it was established that defense counsel must be permitted to be present and offer argument during Batson steps two and three when, as in Ayala's case, the proceedings do not require the prosecution to reveal confidential information or trial strategy.
In this Circuit, this rule was unequivocally "dictated by precedent," Teague, 489 U.S. at 301, 109 S.Ct. 1060 (emphasis omitted), long before Ayala's conviction became final, having been established in United States v. Thompson, 827 F.2d 1254 (9th Cir.1987). In Thompson, we held that a district court had made a constitutional error when, after the defendant had established a prima facie case under Batson, the court permitted the prosecution to state the reasons for its peremptory strikes ex parte. Observing that Batson step two might sometimes require the prosecutor to "reveal confidential matters of tactics and strategy," we recognized that in some circumstances there might be "compelling" reasons to conduct the proceedings ex parte. Id. at 1258-59. We therefore declined to adopt an absolute rule holding that the defense must always be permitted to participate at Batson steps two and three. We held, however, that defense counsel must be permitted to be present and offer argument during Batson steps
Our decision in Thompson represented the straightforward application of two lines of Supreme Court precedent. The first line of precedent finds its source in the Sixth Amendment's guarantee of the right to counsel. Because "the plain wording of" the Amendment "encompasses counsel's assistance whenever necessary to assure a meaningful `defence,'" the Court has long held that the right applies at all "critical" stages of criminal proceedings. United States v. Wade, 388 U.S. 218, 224-25, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); see also, e.g., White v. Maryland, 373 U.S. 59, 60, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); Gideon v. Wainwright, 372 U.S. 335, 345, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Ultimately, the right to counsel "has been accorded ... `not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial.'" Mickens, 535 U.S. at 166, 122 S.Ct. 1237 (quoting Cronic, 466 U.S. at 658, 104 S.Ct. 2039). Foremost among the attributes of a fair trial is the requirement that it be adversarial in nature: "[t]he very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free." Herring v. New York, 422 U.S. 853, 862, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975). "The right to the effective assistance of counsel is thus the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing." Cronic, 466 U.S. at 656, 104 S.Ct. 2039. As we observed in Thompson, "[t]he right of a criminal defendant to an adversary proceeding is fundamental to our system of justice," and thus ex parte proceedings are justifiable only as "uneasy compromises with some overriding necessity." 827 F.2d at 1258.
Batson is the seminal case in the second line of precedent. After setting out the three-stage framework used to determine whether the prosecution has engaged in purposeful racial discrimination in the selection of a jury, the Batson Court declined "to formulate particular procedures to be followed upon a defendant's timely objection to a prosecutor's challenges." 476 U.S. at 99, 106 S.Ct. 1712. Batson made clear, however, that the defendant bears the ultimate burden of persuasion. Id. at 98, 106 S.Ct. 1712. Batson also made clear that a court must consider "all relevant circumstances" in deciding whether a defendant has met his burden of persuasion — an inquiry that requires determining whether a prosecutor's stated reasons for striking a particular juror are race-neutral, and, if race-neutral, whether they are his actual reasons. Id. at 96-99, 106 S.Ct. 1712; see Miller-El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005).
In Thompson, we recognized that the Batson framework leaves defense counsel with "two crucial functions" that it must be permitted to perform. 827 F.2d at 1260. The first function is "to point out to the district judge where the government's
Id. The second function is to "preserve for the record, and possible appeal, crucial facts bearing on the judge's decision." Id. at 1261. As we reasoned in Thompson:
Id. Thus, we held, only with the presence and assistance of defense counsel can the trial judge and subsequent appellate judges properly evaluate whether the defense has met its burden of persuasion under Batson. Excluding the defense from the Batson proceedings without some compelling justification therefore violates the Constitution. Id. at 1259-61.
Thompson compels us to conclude that the rule Ayala seeks is not, under Teague, a "new" one. "[C]ircuit court holdings suffice to create a `clearly established' rule of law under Teague." Belmontes v. Woodford, 350 F.3d 861, 884 (9th Cir.2003) (reversed on other grounds by Brown v. Belmontes, 544 U.S. 945, 125 S.Ct. 1697, 161 L.Ed.2d 518 (2005)); see Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (O'Connor, J., for the Court) ("With one caveat, whatever would qualify as an old rule under our Teague jurisprudence will constitute `clearly established Federal law, as determined by the Supreme Court of the United States' under § 2254(d)(1).... The one caveat, as the statutory language makes clear, is that § 2254(d)(1) restricts
We would hold that Ayala's claim is not Teague-barred even if we were free to conclude that, contrary to Bell and Belmontes, Thompson did not in and of itself establish that the rule Ayala seeks is not "new." Nearly every court to consider the question by the time Ayala's conviction became final had adopted the rule that we set forth in Thompson, concluding that defense counsel must be allowed to participate at Batson steps two and three except when confidential or strategic reasons justify the challenge. The Fourth, Eighth and Eleventh Circuits had all so held. See United States v. Garrison, 849 F.2d 103, 106 (4th Cir.1988) ("We ... agree with the Ninth Circuit that the important rights guaranteed by Batson deserve the full protection of the adversarial process except where compelling reasons requiring secrecy are shown."); United States v. Roan Eagle, 867 F.2d 436, 441 (8th Cir.1989) ("[O]nce the prosecutor has advanced his racially neutral explanation, the defendant should have the opportunity to rebut with his own interpretation."); United States v. Gordon, 817 F.2d 1538, 1541 (11th Cir. 1987) (remanding for an evidentiary hearing where the district court had denied the defendant's request for a hearing to rebut the government's proffered race-neutral reasons). The state courts that confronted the issue had all reached similar conclusions. See Ayala, 99 Cal.Rptr.2d 532, 6 P.3d at 203; Goode v. Shoukfeh, 943 S.W.2d 441, 452 (Tex.1997); People v. Hameed, 88 N.Y.2d 232, 238, 644 N.Y.S.2d 466, 666 N.E.2d 1339 (1996); State v. Hood, 245 Kan. 367, 378, 780 P.2d 160 (1989); Gray v. State, 317 Md. 250, 257-58, 562 A.2d 1278 (1989); Commonwealth v. Jackson, 386 Pa.Super. 29, 51, 562 A.2d 338 (1989); Commonwealth v. Futch, 38 Mass.App.Ct. 174, 178, 647 N.E.2d 59 (1995); see also Caspari v. Bohlen, 510 U.S. 383, 395, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994) ("[I]n the Teague analysis the reasonable views of state courts are entitled to consideration along with those of federal courts.").
These courts adopted the Thompson rule with good reason. The Sixth Amendment provides that the defendant must be permitted to have the assistance of a trained advocate at all critical stages of the proceedings in order to test and challenge all aspects of the prosecution's case. See Cronic, 466 U.S. at 656, 104 S.Ct. 2039. Batson did not suggest that there should be an exception to this overarching rule when a defendant has established a prima facie case that the prosecutor has struck jurors on the basis of race. To the contrary, it makes no sense to put the burden of persuasion on the defense, as Batson does, and then refuse defense counsel the opportunity to hear and respond to the prosecution's explanations. The rule Ayala seeks is not in any sense new, but rather one which, as almost all courts to have considered the question
The state and the dissent call our attention to two decisions that reached a contrary conclusion, both of which were decided soon after the Court issued Batson. In United States v. Davis, the Sixth Circuit rejected a defendant's argument that his right to be present had been violated when the trial court allowed the prosecution to explain its peremptory strikes in camera, holding that "the district court was entitled to hear from the Government under whatever circumstances the district court felt appropriate." 809 F.2d 1194, 1202 (6th Cir. 1987). Similarly, in United States v. Tucker, the Seventh Circuit held that the Sixth Circuit was correct to conclude that "Batson neither requires rebuttal of the government's reasons by the defense, nor does it forbid a district court to hold an adversarial hearing." 836 F.2d 334, 340 (7th Cir.1988).
These decisions do not render Ayala's claim Teague-barred. "[T]he standard for determining when a case establishes a new rule is `objective,' and the mere existence of conflicting authority does not necessarily mean a rule is new." Williams, 529 U.S. at 410, 120 S.Ct. 1495 (quoting Wright, 505 U.S. at 304, 112 S.Ct. 2482 (1992) (O'Connor, J., concurring in the judgment)). To the extent that these decisions deny that there is any right to participate in Batson proceedings, they simply cannot be reconciled with the basic Sixth Amendment requirement that, at all critical stages of criminal proceedings, the defendant must have the assistance of counsel in order to subject the prosecution's case to adversarial testing. That the courts in Davis and Tucker failed to fully appreciate the relevance of this principle is understandable, as in neither case did the defendants invoke the right to counsel to support their claim: in Davis, the defendants asserted that the in camera hearings had violated their right to be present at trial, a right derived principally from the Sixth Amendment's Confrontation Clause, see Davis, 809 F.2d at 1200; in Tucker, the defendant claimed that the ex parte proceedings violated his rights to due process and to an impartial jury, see Tucker, 836 F.2d at 338, 340. Perhaps for this reason, the Davis court failed to recognize the important functions counsel serves during Batson steps two and three, instead concluding that once the defense had established a prima facie case of racial discrimination,
Even assuming some doubt may have existed as to whether the rule Ayala seeks was "dictated by precedent" in the immediate aftermath of the Sixth and Seventh Circuits' decisions in 1987 and 1988, by the time Ayala's conviction became final in 2001, 13 years later, every court to have considered the issue in the interim — state and federal — had rejected, either explicitly or implicitly, the Sixth and Seventh Circuits' view, and had adopted the Thompson rule. See Garrison, 849 F.2d at 106; Roan Eagle, 867 F.2d at 441; Ayala, 99 Cal.Rptr.2d 532, 6 P.3d at 203; Goode, 943 S.W.2d at 452; Hameed, 88 N.Y.2d at 238, 644 N.Y.S.2d 466, 666 N.E.2d 1339; Hood, 245 Kan. at 378, 780 P.2d 160; Gray, 317 Md. at 257-58, 562 A.2d 1278; Jackson, 386 Pa.Super. at 51, 562 A.2d 338; Futch, 38 Mass.App.Ct. at 178, 647 N.E.2d 59. The Supreme Court had also, in the interim, acknowledged a version of our rule when it observed (in dicta) that, when a prosecutor challenges a defendant's use of peremptory challenges, "[i]n the rare case in which the explanation for a challenge would entail confidential communications or reveal trial strategy, an in camera discussion can be arranged." Georgia v. McCollum, 505 U.S. 42, 58, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992). Thus, the California Supreme Court characterized the rule Ayala sought — the Thompson rule — as one that had been "almost universally recognized." Ayala, 99 Cal.Rptr.2d 532, 6 P.3d at 203. Given that the California Supreme Court's description is correct, the rule that Ayala would have us apply is not Teague-barred.
Our dissenting colleague makes three assertions that are fundamental to her disagreement with our opinion. All are plainly erroneous and illustrate her misunderstanding of the nature of our holding. First, the dissent suggests that, because the trial court accepted the prosecutor's rationale for striking these jurors, deference
Each of these assertions assumes, incorrectly, that we are confronting an ordinary Batson challenge on habeas review — a challenge to the holding in a case in which defense counsel was able to present arguments to the trial court regarding racial bias, appeal that claim to the state appellate court, and subsequently seek reversal in federal court of the judgment that none of the jurors was struck by the prosecution for impermissible racially motivated reasons. Rice and Felkner are precisely such cases. The Supreme Court has emphasized, in such cases, that deference is required, that the petitioner must demonstrate his factual claims of prosecutorial bias by clear and convincing evidence, and that we may not give the petitioner the benefit-of-the-doubt with regard to the existence of racial prejudice. However, this case is not an ordinary Batson challenge, and for the reasons we have explained supra the dissent's approach is both inapplicable and wholly inappropriate. This, as the dissent consistently ignores, is a case in which the challenge is to the procedure employed by the trial court in conducting the Batson inquiry — a procedure that resulted in the denial of a fair Batson hearing to the defendant. Thus, it is not our task here to show that Ayala should have prevailed on his Batson claim, but only that he was prejudiced in his ability to prevail on that claim by the fact that his counsel was not present at the Batson hearing.
We cannot defer to the trial court where procedural error (such as the state supreme court found here and that the state concedes) has rendered the trial court's determination unreliable. Ayala's counsel was excluded from Batson stages two and three, thus depriving him of the opportunity to persuade the trial judge that the prosecutor was motivated by racial bias. Even a very capable trial judge may overlook or fail to understand the arguments supporting racial motivation "if unassisted by an advocate." Thompson, 827 F.2d at 1261. Because the procedures designed to ensure a fair hearing to the defendant were not followed, we cannot afford deference to the trial court's determination of the merits of the Batson claim. As we concluded in Thompson, we "cannot rely on ... such fundamentally flawed procedures to show that that defendant suffered no prejudice." Id. at 1261.
Next, for similar reasons, the "clear and convincing evidence" standard has no role with regard to Ayala's challenge. The dissent's position is inherently at odds with the statutory authority on which it relies. That AEDPA provision reads as follows:
28 U.S.C. § 2254(e)(1). We have previously held, in interpreting § 2254(e)(1), that "the presumption of correctness and the clear-and-convincing standard of proof
We hold that the exclusion of Ayala and his counsel during Batson steps two and three constitutes prejudicial error. In the language of Brecht: we cannot say that had counsel been permitted to participate in the Batson proceedings, Ayala would have been unable to show that the prosecution violated Batson. To the contrary, constitutional error on the part of the state likely prevented Ayala from showing that the prosecution utilized its peremptory challenges in a racially discriminatory manner, and thus permitted him to be tried, convicted, and sentenced to death by a jury selected in a manner repugnant to the Constitution. Accordingly, we reverse the judgment of the district court, and remand with instructions to grant the writ and order that Ayala be released from custody unless the state elects to retry him within a reasonable amount of time to be determined by the district court.
CALLAHAN, Circuit Judge, dissenting:
In 1985, Hector Juan Ayala shot and killed three men. In 1989, he was convicted of three counts of murder, and the jury returned a death sentence. On direct appeal his conviction and sentence were affirmed by the California Supreme Court in 2000. People v. Ayala, 24 Cal.4th 243, 99 Cal.Rptr.2d 532, 6 P.3d 193 (2000). The Supreme Court of the United States denied his petition for certiorari in 2001. Ayala v. California, 532 U.S. 908, 121 S.Ct. 1235, 149 L.Ed.2d 143 (2001). Ayala filed his initial petition for a writ of habeas corpus in the United States District Court for the Southern District of California in 2002. This appeal is from the district court's February 17, 2009, final order denying the petition.
The majority holds, based primarily on law developed after Ayala's trial, that Ayala must be released or retried because it suspects the prosecutor might have had a racial motive in recusing seven jurors. It does so by inappropriately deconstructing
I agree with the district court and the State that Ayala's claim that he was deprived of his constitutional rights when his attorney was not present when the prosecutor offered his reasons for the challenged recusals, is barred under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).
In Caspari v. Bohlen, 510 U.S. 383, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994), the Supreme Court set forth the test for determining whether a state prisoner's claim was Teague-barred:
Id. at 390, 114 S.Ct. 948 (emphasis as quoted in Caspari).
There is no dispute that Ayala's conviction became final in May 2001, when the Supreme Court denied certiorari, and Ayala does not assert that he comes within either of the two narrow exceptions. The remaining question is whether, in May 2001, the unconstitutionality of ex parte procedure used by the trial court in 1986 was "dictated" by precedent.
In Batson v. Kentucky, 476 U.S. 79, 96, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court held that "a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial." See
In setting forth this three-step standard, the Supreme Court specifically declined "to formulate particular procedures to be followed upon a defendant's timely objection to a prosecutor's challenges." Id. at 99, 106 S.Ct. 1712. The Court reiterated that "[i]n light of the variety of jury selection practices followed in our state and federal trial courts, we make no attempt to instruct these courts how best to implement our holding today." Id. at 99 n. 24, 106 S.Ct. 1712. As a result, during the quarter of a century that has passed since Batson, courts have considered numerous ways of applying Batson's three-step standard.
Ayala's primary argument is that the trial court's exclusion of him and his counsel from the proceedings in which the prosecution justified its recusal of seven jurors violated his constitutional rights to assistance of counsel at critical stages of the proceedings, to be personally present, and to assist his counsel in his defense. In response, the State argued and the district court held that in 2001, when Ayala's conviction became final, the exclusion of Ayala and his counsel from the proceedings was not a constitutional violation, and hence, Ayala's claim was barred by Teague, 489 U.S. 288, 109 S.Ct. 1060.
The California Supreme Court, in reviewing Ayala's direct appeal, concluded that it was "almost universally recognized that ex parte proceedings following a motion regarding peremptory challenges allegedly made on the basis of improper group bias are poor procedure and should not be conducted unless compelling reasons justify them." Ayala, 99 Cal.Rptr.2d 532, 6 P.3d at 203.
The majority claims that in May 2001 this rule had been "unequivocally `dictated by precedent'" as a result of our opinion in United States v. Thompson, 827 F.2d 1254 (9th Cir.1987). Majority at 685. Thompson concerned a 1985 criminal trial in a federal district court. The judge alone conducted voir dire and "the government used four of its peremptory challenges to exclude all four blacks in the venire." Id. at 1256. When Thompson's lawyer moved for a mistrial, the district court "allowed the government to put its reasons for the disputed peremptory challenges on the record, albeit in camera and out of the presence of the defendant and his lawyer." Id. Thompson appealed, arguing that this procedure violated his Fifth Amendment right to due process and his Sixth Amendment right to a fair and impartial jury. Id. A divided panel concluded that the "district court erred in refusing to allow defense counsel in this case to hear the government's reasons for excluding the black potential jurors and to present argument thereon." Id. at 1261. We explained that "situations where the court acts with the benefit of only one side's
In Horn v. Banks, 536 U.S. 266, 272, 122 S.Ct. 2147, 153 L.Ed.2d 301 (2002), the Supreme Court held that "a federal court considering a habeas petition must conduct a threshold Teague analysis when the issue is properly raised by the state," even if the state supreme court did not consider the issue. Thus, we are required to determine as a threshold matter whether Ayala's claim is Teague-barred. I would hold that Ayala's claim is Teague-barred because it was not "dictated" by Supreme Court case law, and the case Ayala relies upon, Thompson, did not announce a clear constitutional rule. The majority confuses the wisdom of Thompson with whether that wisdom had been embraced by 2001.
Thompson is not a Supreme Court opinion and concerned a federal court trial, not a state court trial. Accordingly, it could not dictate the result in Ayala's case when his conviction became final. In Massachusetts Delivery Ass'n v. Coakley, 671 F.3d 33, 47 (1st Cir.2012), the First Circuit reiterated that "[s]tate courts are not bound by the dictates of the lower federal courts, although they are free to rely on the opinions of such courts when adjudicating federal claims." (internal citations omitted.). Similarly, in Bromley v. Crisp, 561 F.2d 1351, 1354 (10th Cir.1977), the Tenth Circuit noted that "the Oklahoma Courts may express their differing views on the retroactivity problem or similar federal questions until we are all guided by a binding decision of the Supreme Court." Also, in U.S. ex rel. Lawrence v. Woods, 432 F.2d 1072, 1076 (7th Cir.1970), the Seventh Circuit agreed that "because lower federal courts exercise no appellate jurisdiction over state tribunals, decisions of lower federal courts are not conclusive on state courts." Consistent with our sister circuits' decisions, our prior opinion in Thompson, which was an appeal from a federal criminal action, was not binding on the California Supreme Court.
Furthermore, even though the logic behind the opinion in Thompson may be compelling, the opinion does not set forth a clear rule of constitutional law. The opinion recognized that there were "occasional departures from" the norm of holding adversarial proceedings, noted a number of instances in which in camera proceedings were appropriate, and concluded that departure from the norm "may amount to a denial of due process." Id. at 1258-59 (emphasis added). The language in Thompson is vague compared, for example, to our statement in Menefield v. Borg, 881 F.2d 696, 699 (9th Cir.1989), that "we hold that the right to counsel attaches to the motion for a new trial stage."
The fact that Thompson did not lay down a clear rule of constitutional law is confirmed by a review of other Ninth Circuit cases as well as decisions by our sister circuits. In Lewis v. Lewis, 321 F.3d 824, 831 n. 27 (9th Cir.2003), we observed that "[c]ertainly, requiring a court to allow defense counsel to argue [during the three-step Batson process] is not clearly established
The majority strives mightily to distinguish these cases on the grounds that they are not well-reasoned, in some instances are dicta, and have been rejected by other circuits and most state courts. But the standard established by the Supreme Court for determining whether an issue is Teague-barred is not the merits of the old rule, or even recognition of the wisdom of the new rule, but whether the new rule was "dictated by precedent." Caspari, 510 U.S. at 390, 114 S.Ct. 948. These conflicting cases confirm that Thompson did not dictate the result in Ayala's case.
Moreover, as noted, the rule that the majority claims was established in Thompson is not a bright-line rule. Rather, at most, Thompson states that defense counsel could not be excluded absent some "compelling justification." See Majority at 691. Here, the prosecutor offered an explanation for seeking to present his reasons in camera: he did not want to reveal his strategy to the defense. Following Thompson and the other cases cited by the majority, it is now clear that this is not a valid reason not to follow the norm of an adversarial proceeding.
In sum, I agree with the district court that the right to be present and have counsel present when the prosecution presented its reasons for its challenged recusals was not "dictated by precedent" when Ayala's conviction became final, and therefore the issue is Teague-barred.
Assuming the issue is not Teague-barred, we must next turn to the question of what exactly the California Supreme Court held and what deference it is owed. The court first acknowledged that "no particular procedures are constitutionally required" to conduct a Batson hearing, thereby rejecting Ayala's federal claim. Ayala, 99 Cal.Rptr.2d 532, 6 P.3d at 202. "The next question," it said, was "whether it was error to exclude defendant from participating in the hearings on his Wheeler motions." It concluded that "as a matter of state law, it was." Id. 99 Cal.Rptr.2d 532, 6 P.3d at 203 (emphasis added).
The majority and I part ways as to how to review this holding. Because the state court adjudicated Ayala's federal claim on the merits and rejected it, we must accord that decision deference under AEDPA. See Johnson v. Williams, ___ U.S. ___, 133 S.Ct. 1088, 1094, 185 L.Ed.2d 105 (2013) ("[W]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.") (internal citations omitted).
However, the majority's dislike for AEDPA drives it to try to avoid its provisions. In its initial opinion, the majority interpreted the Supreme Court's opinion in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), in such a manner as to allow it to grant relief without deferring to the California Supreme Court. See Ayala v. Wong, 693 F.3d 945, 961-63 (9th Cir.2012). The majority now takes a different tack in an effort to circumnavigate AEDPA and review Ayala's 1989 state court conviction de novo. Contrary to the Supreme Court's recent opinions, the majority deconstructs the California Supreme Court's opinion. In doing so, the majority: (1) separates the California Supreme Court's finding of error under state law from its adjudication of the federal claim; (2) decides that the California Supreme Court did not determine whether there was error under federal law; and then (3) concludes that it has "no reason to give § 2254(d) deference" to the California Supreme Court's decision. Majority at 670.
The majority's approach is fundamentally flawed for at least two reasons. First, it is contrary to the Supreme Court's opinions directing that any question as to whether a state court considered a constitutional issue is to be resolved in favor of finding that it did. Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 784-85, 178 L.Ed.2d 624 (2011); Johnson v. Williams, ___ U.S. ___, 133 S.Ct. 1088, 1094-96, 185 L.Ed.2d 105 (2013). Second, by separating the California Supreme Court's determination of Batson/Wheeler
The California Supreme Court's evaluation of the Batson/Wheeler issue was clear
The California Supreme Court then turned to the question of prejudice and held:
99 Cal.Rptr.2d 532, 6 P.3d at 204. There can be no doubt that the California Supreme Court adjudicated the federal claim, first by implicitly rejecting it, and then, as an alternative holding, finding that any error was harmless.
The majority acknowledges this portion of the California Supreme Court's opinion. Majority at 664. However, it then proceeds to mull over whether the state court (a) held there was error under federal constitutional law, (b) held there was no error under federal constitutional law, or (3) did not decide whether there was error under federal constitutional law. Id. These are idle musings, for the "only question that matters under § 2254(d)(1)" is whether the petitioner's claim was adjudicated on the merits, and whether that adjudication was contrary to or an unreasonable application of clearly established Supreme Court precedent. Lockyer v. Andrade, 538 U.S. 63, 71, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Whether one agrees with the California Supreme Court's decision or not, the federal claim was clearly adjudicated.
The majority, although purporting to accept that the California Supreme Court found constitutional error, proceeds to argue that "alternatively" the exception to deference set forth in Richter applies.
Majority at 667.
The majority then argues that the California Supreme Court "would have had good reason not to decide the merits of the federal constitutional issue" because courts generally do not pass on questions of constitutionality unless adjudication is unavoidable. Majority at 667. Also, by analogy it draws on cases involving claims of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), where the Supreme Court has interpreted a state court's silence as a failure to reach an issue and thus not an adjudication on the merits. Majority at 668.
The majority then proffers its vision of the law: "There are circumstances in which, even if a state court has denied relief overall, a state court's silence with respect to a fairly presented federal issue cannot be interpreted as an `adjudication on the merits' of that issue for purposes of § 2254(d), because the rebuttable presumption cited in Richter and Williams is rebutted by the legal principles involved (including the principle of constitutional avoidance) and factual context applicable to a particular case." Majority at 669. This novel approach allows the majority to assert that the "California Supreme Court had no reason to reach Ayala's federal constitutional claim," and to conclude that it has "no reason to give § 2254 deference" to the California Supreme Court's decision. Majority at 670.
The majority's deconstruction of the California Supreme Court's opinion, besides being unnecessary dicta and unpersuasive, is contrary to recent Supreme Court opinions that were directed at the Ninth Circuit. In both Richter, 131 S.Ct. 770, and Johnson, 133 S.Ct. 1088, the Supreme Court reversed us for failing to give proper deference to the state courts' opinions.
Two years later, in Williams, a unanimous Supreme Court found it necessary to remind us of this standard. Williams challenged his conviction for first degree murder on the ground that the trial court improperly dismissed a juror. 133 S.Ct. at 1093. The California state courts denied him relief and the district court denied Williams' habeas petition. Judge Reinhardt, writing for a three judge panel of the Ninth Circuit, held that despite the Richter presumption, the state courts had not adjudicated Williams' federal claim,
The Supreme Court firmly rejected our opinion. It first noted that the assumption that a federal claim was overlooked by the state court is wrong for a number of reasons, including: (1) "there are circumstances in which a line of state precedent is viewed as fully incorporating a related federal constitutional right,"
If federal courts are to presume that a state court considers a federal claim even when the court does not expressly address the claim, it follows that where, as here, the California Supreme Court's opinion clearly reflects that the court was aware of the federal claims, we must accept that the federal claims were "adjudicated on the merits," and limit any relief according to § 2254(d). See Richter, 131 S.Ct. at 784.
Furthermore, in order to rebut the Richter presumption there must be "reason to think some other explanation for the state court's decision is more likely." Richter, 131 S.Ct. at 785. But here, there can be no doubt that the California Supreme Court did consider Ayala's federal claims, first by stating that "no particular procedures are constitutionally required" to hold a Batson hearing, and then, in the alternative, holding that any federal error was harmless. Ayala, 99 Cal.Rptr.2d 532, 6 P.3d at 202-04. Thus, the California Supreme Court's opinion is not best read as addressing Ayala's federal claims, as the majority admits,
In sum, a review of the California Supreme Court's opinion allows for only one conclusion: that the court considered Ayala's federal claims. Moreover, even if this conclusion was not mandated, and the presumption set forth by the Supreme Court in Richter and Williams came into play, the presumption would be controlling. Because the California Supreme Court considered Ayala's federal claims (and, in any event, must be presumed to have done so), the AEDPA standard of review applies.
The majority's treatment of the California Supreme Court's ruling on the Batson/Wheeler violation is a smoke screen designed to obscure the fact that the majority reviews prejudice de novo rather than under the AEDPA deference standard. This approach cannot be squared with the Supreme Court's recent opinions, which require that we ask whether the California Supreme Court's determination that the error was harmless beyond a reasonable doubt was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility of fair minded disagreement." Richter, 131 S.Ct. at 786-87.
The applicable provisions of AEDPA are codified in 28 U.S.C. § 2254.
The Supreme Court further elaborated on the applicable standard. In Richter, it held that a "state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." 131 S.Ct. at 786 (citing Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)). In addressing prejudice in a claim of ineffective assistance of counsel under Strickland, the Supreme Court held:
131 S.Ct. at 787-88. The Supreme Court again emphasized this deference when it reversed us in Felkner v. Jackson, ___ U.S. ___, 131 S.Ct. 1305, 179 L.Ed.2d 374 (2011).
The majority, however, invokes Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), in order to justify what is, in essence, a de novo standard of review. Majority at pp. 33-37. The majority asserts that relief may be granted if we find that the error had a "substantial and injurious effect or influence in determining the jury's verdict," Majority at 674 (quoting Brecht, 507 U.S. at 623, 113 S.Ct. 1710), or "if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action for the whole, that the judgment was not substantially swayed by the error," Majority at 675 (quoting Merolillo v. Yates, 663 F.3d 444, 454 (9th Cir.2011)), or even where a "judge feels himself in virtual equipoise as to the harmlessness of the error." Majority at 675 (quoting Merolillo, 663 F.3d at 454). That the majority essentially conceives of this as de novo review is obvious from its declaration that "[i]f we cannot say that the exclusion of defense counsel with or without the loss of the questionnaires likely did not prevent Ayala from prevailing on his Batson claim, then we must grant the writ." Majority at 676.
Brecht was decided before the passage of AEDPA. In Fry v. Pliler, 551 U.S. 112, 121, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007), the Supreme Court held that "in § 2254 proceedings a court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the `substantial and injurious effect' standard set forth in Brecht." However, in doing so, the Supreme Court construed the Brecht standard as including the AEDPA standard:
551 U.S. at 119-20, 127 S.Ct. 2321.
Three aspects of the Supreme Court's explanation are particularly important. First, the Court endorsed its prior opinion in Esparza, 540 U.S. 12, 124 S.Ct. 7, that habeas relief was available only if the state court's determination of harmlessness was unreasonable. Fry, 551 U.S. at 119, 127 S.Ct. 2321. Second, the Court reiterated that AEDPA "limited rather than expanded the availability of habeas relief." Id. Third, the Court held that the Brecht "actual prejudice" standard requires a greater showing than the "the more liberal AEDPA/Chapman standard which requires only that the state court's harmless-beyond-a-reasonable-doubt determination be unreasonable." Id. at 119-20, 127 S.Ct. 2321. See also Brecht, 507 U.S. at 637, 113 S.Ct. 1710 (holding that habeas petitioners "are not entitled to habeas relief based on trial error unless they can establish that it resulted in `actual prejudice'"); Pulido v. Chrones, 629 F.3d 1007, 1020 (9th Cir. 2010) (holding that because the petitioner "did not suffer any actual prejudice, he is not entitled to habeas relief").
The majority attempts to evade the deference inherent in the AEDPA/Brecht standard by quoting language from Merolillo, 663 F.3d at 454. The majority asserts that when a judge is "in virtual equipoise as to the harmlessness of the error" and has "grave doubt about whether an error affected a jury [substantially and injuriously], the judge must treat the error as if it did so." Majority at 675 (citations omitted).
The majority takes this standard out of context. Merolillo does not suggest that the state court's opinion is not entitled to deference. Our opinion first recognized that we continue to look to the last reasoned decision of the state court, and that the state court's findings "are entitled to a presumption of correctness unless the petitioner rebuts the presumption with clear and convincing evidence." 663 F.3d at 453 (citing 28 U.S.C. § 2254(e)(1)). Although the opinion refers to the Supreme Court's prior elucidations on harmless error, we concluded that Brecht's "substantial and injurious effect" standard governs our harmless error review. Merolillo, 663 F.3d at 455. Our opinion also determined that applying the AEDPA/Chapman standard, the state court's determination of harmless error was objectively unreasonable. Id.
The majority fails to appreciate that even when focusing on harmlessness, a state court's factual findings are entitled to deference, see, e.g., Mansfield v. Sec'y, Dep't of Corr., 679 F.3d 1301, 1309 (11th Cir.2012), and that this deference informs the definition of "grave doubt." In order to grant relief, a federal court must have "grave doubt" as to the harmlessness of the error. Critically, the Supreme Court's opinions mandate that this "grave doubt" be objective rather than subjective. Our personal perspectives as to harmlessness are not controlling. Rather, we are directed to consider whether "there is no possibility fairminded jurists could disagree" with the state court's decision, and whether there "was an error well understood
The reach of this mandate from Richter can be illustrated by considering the majority's statement in a footnote. The majority opines that the California Supreme Court's conclusion that Ayala was not prejudiced was "an unreasonable application of Chapman."
In this case, consistent with the Supreme Court's opinions, a writ may not issue just because "we cannot say that the exclusion of defense counsel and the loss of questionnaires likely did not prevent Ayala from prevailing on his Batson claim." Majority at 676. Rather, a writ may issue only if we determine (using the majority's language) that there is a "grave doubt as to the harmlessness of the error," meaning that no fairminded jurist could find that the exclusion of defense counsel and the loss of questionnaires did not prevent Ayala from prevailing on his Batson claim.
A review of the record shows that although the loss of the questionnaires and
The majority states that it is "unable to evaluate the legitimacy of some of the prosecution's proffered reasons for striking the black and Hispanic jurors because they referred to questionnaires that are now lost." Majority at 677. Of course, this statement misses the mark because the real question is whether the record was sufficient to allow the California Supreme Court to review Ayala's claims as he presented them to that court. A review of the California Supreme Court's opinion and Ayala's filings shows that the state court fully and fairly considered his claims. Furthermore, Ayala has not shown that the loss of certain prospective jurors' questionnaires violated his constitutional rights or that the loss prejudiced him.
First, it is critical to note what was in the record before the California Supreme Court. The record contained the voir dire transcript for all prospective jurors, the transcript of the in camera hearings on the prosecutor's reasons for the recusals, the questionnaires of all the seated jurors, and the questionnaires of the alternate jurors. What was missing were the 77-question, 17-page questionnaires the 200 or so other potential jurors had filled out.
In Boyd v. Newland, 467 F.3d 1139 (9th Cir.2006), we recognized that the Supreme Court's opinion in Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005), holds that "comparative juror analysis is an important tool that courts should utilize in assessing Batson claims."
467 F.3d at 1151. Here, we have the entire voir dire transcript. Moreover, there is nothing in Boyd to suggest that in addition to the voir dire transcript, juror questionnaires from jurors who are not selected are essential to a determination of the totality of the relevant facts.
Indeed, the opposite conclusion can be drawn from our treatment in Boyd of a California rule requiring an indigent defendant to show some cause in order to receive a free transcript of voir dire. We held, citing United States v. MacCollom, 426 U.S. 317, 322-23, 96 S.Ct. 2086, 48 L.Ed.2d 666 (1976), that the California rule did not violate the Constitution, but that the state court erred in failing to recognize that the defendant had raised a plausible
To be fair, there is language in our en banc opinion in Kesser v. Cambra, 465 F.3d 351 (9th Cir.2006) (en banc), that could be read to infer a right to juror questionnaires. We concluded that: "In this case, an evaluation of the voir dire transcript and juror questionnaires clearly and convincingly refutes each of the prosecutor's nonracial grounds, compelling the conclusion that his actual and only reason for striking [a juror] was her race." Id. at 360. But this statement shows only that where juror questionnaires are available, we will consider them, not that the questionnaires are necessary. Instead, we commented that a comparative juror analysis was appropriate because "[w]e too have a transcript of voir dire and a Batson claim fairly presented, and that is all Miller-El requires." Id. at 361.
In addition, we recently commented on the lack of questionnaires of excused jurors in Briggs v. Grounds, 682 F.3d 1165 (9th Cir.2012). Briggs concerned a Batson challenge to a state court conviction where the federal record did not contain the questionnaires of excused jurors. Id. at 1170. In affirming the district court's denial of relief, the majority noted:
Id. at 1170-71. The majority in Briggs further noted that "it is widely acknowledged that the trial judge is in the best position to evaluate the credibility of the prosecutor's proffered justifications." Id. at 1171 (internal citations omitted). Citing the Supreme Court's statements in Rice v. Collins, 546 U.S. 333, 338-39, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006), that a "federal habeas court can only grant Collins' petition if it was unreasonable to credit the prosecutor's race-neutral explanations for the Batson challenge," we stated in Briggs that:
Id.
It follows that the lack of prospective jurors' questionnaires does not relieve Ayala of his burden to show by clear and convincing evidence that the California Supreme Court was wrong in determining that the prosecutor was not biased. Accordingly, we must determine whether
First, the California Supreme Court reasonably rejected Ayala's claim that his constitutional rights were infringed by the loss of the bulk of prospective juror questionnaires. It explained:
Ayala, 99 Cal.Rptr.2d 532, 6 P.3d at 208. The California Supreme Court concluded that if the loss of the questionnaires was error under either federal or state law, "it was harmless beyond a reasonable doubt." Id. This determination is reasonable and entitled to deference. Rice, 546 U.S. at 338-39, 126 S.Ct. 969.
Second, the determination is reasonable because the missing juror questionnaires are not critical to Ayala's federal claims. The questionnaires of the 70 or so jurors who were never called are not relevant because Ayala does not allege, let alone show, that the potential jurors were excused due to constitutionally forbidden reasons.
Third, none of the prosecutor's stated reasons for recusing the questioned jurors relied solely, or even primarily, on the jurors' questionnaires. Rather, in each instance the prosecutor mentioned the juror's specific answers to questions posed on voir dire. In a couple of instances the prosecutor referenced a person's questionnaire, but this was primarily to explain why the prosecutor found the individual's oral responses troubling.
Finally, Ayala has ably presented his specific Batson challenges based on the voir dire transcript and the extant questionnaires of the seated jurors and alternates. Although Ayala argues that the lost questionnaires might support his arguments, such a contention can be made about any lost document. If such speculation constituted prejudice, the standard would be reduced to a per se rule.
The remaining issue is whether Ayala has shown by clear and convincing evidence that no reasonable jurist could have credited the prosecutor's non-discriminatory reasons for excusing the seven jurors in issue. In other words, whether at least one fairminded jurist could agree with the California Supreme Court's opinion. The majority discusses only three of the jurors in its opinion, but a review of the prosecutor's reasons for excusing each of the seven jurors shows that the California Supreme Court's determination that "the challenged jurors were excluded for proper, race-neutral reasons" was reasonable. See Ayala, 99 Cal.Rptr.2d 532, 6 P.3d at 204.
Olanders D. was one of the first jurors challenged by Ayala. The trial court held that Ayala had not met the first prong of the Batson test (a prima facie showing that the challenge was based on race, see Kesser, 465 F.3d at 359), but nonetheless indicated that it would hear the prosecutor's reasons for the recusal in order to have a complete record. The prosecutor stated in the ex parte proceeding:
The trial judge responded:
The California Supreme Court held that the record showed that the challenged jurors were excluded for proper, race-neutral causes. Ayala, 99 Cal.Rptr.2d 532, 6 P.3d at 204. Addressing Olanders D., the court commented:
Id. The California Supreme Court further noted that the trial court "credited the prosecutor's opinion[] that Olanders D. opposed the death penalty." Id. 99 Cal.Rptr.2d 532, 6 P.3d at 206.
The majority claims that the prosecutor's motives for excusing Olanders D. is suspect for several reasons. First, Ayala "could have pointed to seated white jurors" who similarly expressed hesitancy to impose the death penalty. Majority at 678. Second, the majority asserts that its review of the voir dire transcript shows that "Olanders D.'s answers were responsive and complete." Majority at 679. Third, it claims that the responses of a seated white juror were just as unresponsive. Majority at 679. The majority concludes that none of the reasons proffered by the prosecutor should be sustained because one was rejected
Were we reviewing the trial judge's decision de novo, the majority's approach might be persuasive. But the applicable standard is whether no fairminded judge could agree with the California Supreme Court's determination that the juror was excluded for proper, race-neutral reasons. See Richter, 131 S.Ct. at 786. Ayala does not come close to meeting this standard.
There is no suggestion that any seated juror raised a similar set of concerns as Olanders D. The trial judge, who had the opportunity to observe Olanders D., agreed with the prosecutor that Olanders D. was ambivalent about the death penalty, had not been responsive on his questionnaire, and lacked the ability to express himself clearly. Moreover, the trial judge did not necessarily reject the prosecutor's concern that Olanders D. could not participate in a meaningful way in jury deliberations, but rather only commented that it "may well be that he would get along very well with 12 people [on the jury]." The trial court's determinations as affirmed by the California Supreme Court are presumed correct. Rice, 546 U.S. at 338-39, 126 S.Ct. 969 ("State-court factual findings, moreover, are presumed correct; the petitioner has the burden of rebutting the presumption by `clear and convincing evidence.' § 2254(e)(1).").
The majority's expressed concerns about Olanders D.'s recusal are far from compelling. It is hardly surprising that a number of potential jurors expressed ambivalence about the death penalty. The fact that a prosecutor is more concerned with one potential juror's ambivalence than another is not necessarily a sign of racial prejudice. Similarly, the fact that the majority in reviewing the voir dire transcripts thinks that a seated juror's responses were no more responsive than Olanders D.'s is really of little moment. As noted, the trial judge — who heard Olanders D.'s voir dire — agreed with the prosecutor that he "demonstrated a lack of ability to express himself well." The majority's supposition that Olanders D.'s questionnaire responses may not have been "poor" is not clear or convincing evidence of anything. At most, the majority's arguments and assumptions may suggest that the prosecutor's evaluation of Olanders D. was not compelled, but none of them really question the sincerity of the prosecutor's reasons or suggest a likelihood of some unstated improper motive. The majority fails to show that a fairminded jurist could not have agreed with the California Supreme Court.
The only indicia of possible racial bias was the fact that seven of the eighteen peremptory challenges exercised by the prosecutor excused African-American and Hispanic jurors. If this were enough to compel a finding of racial bias, there would be no reason for the second and third steps in the Batson standard or for deference to the trial court's determinations. The lack of any compelling evidence of racial bias is clear when the record in this case is compared to the prosecutor's statements in Kesser, 465 F.3d 351. There, in overcoming the deference due to the state court's determinations, we commented: "The racial animus behind the prosecutor's strike is clear. When he was asked to explain why he used a peremptory challenge to eliminate [a juror], he answered using blatant racial and cultural stereotypes." Id. at 357. Here, in contrast, all the majority can do is suggest that other jurors, like Olanders D., were uncomfortable with the death penalty, failed to offer thoughtful answers, and did not communicate well. But even if the prosecutor's
Gerardo O. was one of the recusals that Ayala challenged in his second objection. The prosecutor explained his challenge to Gerardo O. as follows:
The trial court accepted the prosecutor's reasons. It noted that the record supported the prosecutor's observations and commented that the recusal was based on Gerardo O.'s individual traits. The California Supreme Court in rejecting Ayala's Wheeler/Batson claim noted that "Gerardo O. struggled with English and did not understand the proceedings." Ayala, 99 Cal.Rptr.2d 532, 6 P.3d at 206.
The majority does not deny that Gerardo O. stated that he was illiterate, or that he needed someone to fill out his questionnaire, or that he dressed differently, or that he did not mix with the other jurors. See Majority at 680-82. Instead, the majority speculates that Ayala's lawyer might have shown that despite his own comments, Gerardo O. was not illiterate, and that Gerardo O.'s "dress and mannerisms were distinctly Hispanic."
Robert M. was one of the last persons whose recusal was challenged. The prosecutor explained his reasons as follows:
The trial judge accepted the prosecutor's reasons, noting that although Robert M. "is certainly pro the death penalty," his answers varied and "there may well be a legitimate concern as to whether or not he could impose it." The court further noted that "an appropriate use of a peremptory would be for a person that any party feels either could not vote for death or could not vote for life." In affirming Ayala's conviction the California Supreme Court observed "that Robert M. was less than desirable from the prosecution's point of view." Ayala, 99 Cal.Rptr.2d 532, 6 P.3d at 206.
Again, the majority does not really question the prosecutor's reasons, but speculates that had Ayala's counsel been present he might have argued that Robert M.'s reluctance to impose the death penalty was not different from other jurors' reluctance. Majority at 682. In addition, the majority does not deny that Robert M. had stated that he had followed the Sagon Penn case, but argues that he only mentioned this briefly.
The only other recused juror that the majority mentions is George S. See Majority at 678 n. 17. The prosecutor explained that he had recused George S. because he (a) stated that he had sat on a prior jury and "was the one hold-out with regard to whatever issue was being presented at that time"; (b) was equivocal on the death penalty, (c) had been rejected as a police officer candidate, and (d) placed undue emphasis on the Bible. The trial judge commented that the prosecutor's observations were accurate. The majority does not deny that the prosecution offered these individualized grounds for the recusal. Instead, the majority dismisses the fact that George S. had been a holdout juror with the comment that it was a civil action and speculates that George S.'s alleged emphasis on the Bible "cannot be evaluated at all" because of the loss of the questionnaires.
There were valid nondiscriminatory grounds for recusing the remaining three minority jurors. Galileo S. was recused because he (a) displayed a non-conformist attitude to the justice system, (b) had more run-ins with the law than he admitted, and (c) had an attitude that might create alienation and hostility on the part of other jurors. Luis M. was challenged because he (a) expressed ambivalence on the death penalty, (b) had investigated the case on his own, and (c) left the military with a low rank suggesting some sort of misconduct or inability to perform. Barbara S. was challenged because (a) her responses to oral questions were slow, (b) she had an empty look in her eyes and seemed out of tune with what was going on, and (c) her written and oral answers were incomplete and non-responsive.
As with the other recused jurors, the prosecution team offered individualized reasons for each of these recusals. There is no blatant racism, no reference to stereotypes (veiled or otherwise), and no discernable pattern of discrimination in the reasons advanced by the prosecution. Nonetheless, these recusals are susceptible to the type of speculative challenges that the majority hurls at the recusals of Olanders D., Gerardo O., and Robert M. In all likelihood, other jurors expressed ambivalence and equivalence about the death penalty, other jurors offered slow or incomplete responses, and other jurors probably had been denied employment or performed poorly in a job. These might be appropriate avenues to explore at the time that a recusal is made. But we are reviewing a 1989 state trial pursuant to AEDPA, and the Supreme Court in its recent opinions has reiterated that (a) Batson issues turn largely on evaluations of credibility, (b) the trial court's determination is entitled to great deference, (c) the determination must be sustained unless it is clearly erroneous, and (d) AEDPA demands that state-court decisions be given the benefit of the doubt. See Felkner, 131 S.Ct. at 1307.
The California Supreme Court may not have been compelled to conclude that "the challenged jurors were excluded for proper, race-neutral reasons." Ayala, 99 Cal.Rptr.2d 532, 6 P.3d at 204. But its conclusion was objectively reasonable. That is, Ayala has not shown that the California Supreme Court's ruling "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 131 S.Ct. at 786-87. As in Richter, the majority's opinion "illustrates a lack of deference to the state court's determination and an improper intervention in state criminal processes, contrary to the purpose and mandate of AEDPA and to the now well-settled meaning and function of habeas corpus in the federal system." Id. at 787.
The Supreme Court decided Batson v. Kentucky in 1986, a year after Ayala killed three men and three years before his murder conviction. In Batson, the Supreme Court declined "to formulate particular procedures to be followed upon a defendant's timely objection to a prosecutor's challenges." 476 U.S. at 99, 106 S.Ct. 1712. I would hold that Ayala's claim that he had a constitutional right to have counsel present when the prosecutor offered its reasons for the challenged recusals was not dictated by precedent when Ayala's
Ultimately, however, this case turns on the reasonableness of the California Supreme Court's 2000 opinion that the absence of defense counsel and the loss of jury questionnaires were harmless error beyond a reasonable doubt as a matter of federal law. Ayala, 99 Cal.Rptr.2d 532, 6 P.3d at 204. Following the Supreme Court's pointed guidance in Richter, 131 S.Ct. 770, and Williams, 133 S.Ct. 1088, we must conclude that the California Supreme Court adjudicated Ayala's federal claims on their merits and thus apply AEDPA's deferential standard of review.
This standard of review mandates that we determine whether fairminded jurists could agree with the California Supreme Court. In other words, we can grant relief only if no fairminded jurist could find that the exclusion of defense counsel and the loss of questionnaires did not prevent Ayala from prevailing on his Batson claim. Here, the evidence of valid non-pretextual reasons for the prosecutor's recusals renders the state court's decision objectively reasonable.
Because the majority fails to appreciate that Ayala's federal claim is Teague-barred, and applies a de novo standard of review, despite the Supreme Court's contrary directions, I dissent.
The opinion and dissenting opinion, filed on September 13, 2013, and published at 730 F.3d 831, are replaced by the amended opinion and amended dissenting opinion filed concurrently with this Order.
Judges Reinhardt and Wardlaw voted to deny the petition for rehearing en banc. Judge Callahan voted to grant the petition. A judge requested a vote on whether to rehear this matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35. The request for rehearing en banc is
Judge Ikuta's dissent from denial of rehearing en banc is filed concurrently with this Order.
IKUTA, Circuit Judge, joined by O'SCANNLAIN, TALLMAN, BYBEE, CALLAHAN, BEA, M. SMITH, and N.R. SMITH, Circuit Judges, dissenting from the denial of rehearing en banc:
The Supreme Court has twice before rejected the approach to habeas review that the panel majority adopts here. In two prior habeas opinions, Richter v. Hickman, 578 F.3d 944 (9th Cir.2009) (en banc), and Williams v. Cavazos, 646 F.3d 626 (9th Cir.2011), we brushed aside the deference we owe a state court's adjudication of a petitioner's claim under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d), and reviewed a petitioner's claim de novo. The Supreme Court unanimously reversed both of these opinions. It held that we must defer to a state court denial of a federal claim even if the state court issued only a summary denial, Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 784-85, 178 L.Ed.2d 624 (2011), and even if the state court issued a reasoned opinion that did not expressly reject the federal claim,
Undeterred, the panel majority now tries yet another route to de novo review. It reasons that the Supreme Court has not yet directly told us that we must defer to a state court decision holding that any potential federal constitutional error was harmless. Therefore, the panel majority concludes, we can review such a claim de novo, free of AEDPA deference. In reaching this conclusion, the panel majority ignores the clear command of AEDPA and the Supreme Court, and creates a circuit split. Because we should interpret AEDPA in accordance with the statutory language and the direction provided by the Supreme Court, I respectfully dissent from the court's failure to rehear this case en banc.
The length and complexity of the panel majority's opinion cannot disguise the fact that it circumvents the Supreme Court's ruling in Richter and Williams that "a federal habeas court must presume that the federal claim was adjudicated on the merits." Williams, 133 S.Ct. at 1096. Here, Juan Ayala presented his claim — that the Constitution required defense counsel to be present when the prosecutor presented his reasons for striking certain jurors — to the California Supreme Court, and the court rejected that claim. Twice.
The facts underlying Ayala's claim are straightforward. Ayala was charged with multiple murders. During jury selection, he argued that the prosecutor was striking jury panelists on the basis of their race or ethnicity in violation of People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978),
On direct appeal to the California Supreme Court, Ayala challenged his exclusion from the ex parte Batson hearings. The court addressed the issue at length. See id. at 259-69, 99 Cal.Rptr.2d 532, 6 P.3d 193. It began by reciting the Batson/Wheeler procedure for determining whether a prosecutor's peremptory challenges were discriminatory. Id. at 260-61, 99 Cal.Rptr.2d 532, 6 P.3d 193. First, the defendant must make a prima facie case that the prosecutor used his peremptory challenges to exclude "members of a cognizable group" because of their group association. Id. at 260, 99 Cal.Rptr.2d 532, 6 P.3d 193. Second, the burden shifts to the prosecutor "to provide a race-neutral explanation
After explaining the necessary steps in a court's adjudication of a Batson/Wheeler claim, the California Supreme Court held that, so long as "the inquiry proceeds within the general framework just articulated, no particular procedures are constitutionally required." Id. The court's conclusion rested on Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), which stated, with respect to Batson hearings, that "`[i]t remains for the trial courts to develop rules, without unnecessary disruption of the jury selection process, to permit legitimate and well-founded objections to the use of peremptory challenges as a mask for race prejudice.'" Ayala I, 24 Cal.4th at 261, 99 Cal.Rptr.2d 532, 6 P.3d 193 (quoting Powers, 499 U.S. at 416, 111 S.Ct. 1364). This conclusion resolved Ayala's federal constitutional claim that Batson required the trial court to include the defendant or defense counsel in the hearings on the prosecutor's reasons for striking jury panelists.
While rejecting Ayala's constitutional claim, the court went on to consider "whether it was error to exclude defendant from participating in the hearings on his Wheeler motions" as a matter of California law. Id. at 262, 99 Cal.Rptr.2d 532, 6 P.3d 193. Because "[t]he question whether ex parte communications are proper in ruling on a Wheeler motion ha[d] not arisen in California decisional law," the court surveyed the legal landscape, citing cases from the Fourth, Sixth, Seventh, Eighth, Ninth, and Eleventh Circuits, as well as cases from New York, Maryland, and Texas that had considered analogous procedural issues. Id. It noted that "[w]hile some decisions have tolerated an ex parte Batson hearing procedure on the ground that the United States Constitution permits it," id. (citing United States v. Tucker, 836 F.2d 334, 340 (7th Cir.1988), and United States v. Davis, 809 F.2d 1194, 1202 (6th Cir.1987)), most courts to have considered the issue determined that ex parte proceedings were "poor procedure and should not be conducted unless compelling reasons justify them," id. at 262-63, 99 Cal.Rptr.2d 532, 6 P.3d 193. Aligning itself with the majority, the court held that, as a matter of state procedure, trial courts should not hold ex parte Batson/Wheeler hearings, and therefore "that error occurred under state law" in Ayala's case. Id. at 263-64, 99 Cal.Rptr.2d 532, 6 P.3d 193. Nevertheless, after a careful review of the record pertaining to the seven challenged jurors, including the transcripts of the exchanges between the prosecutor and the judge, the court concluded that the prosecutor's peremptory challenges did not exclude a cognizable group from the jury on a discriminatory basis. Id. at 264-68, 99 Cal.Rptr.2d 532, 6 P.3d 193. Consequently, although the trial court erred in light of the newly adopted state procedure, "the error was harmless." Id. at 268, 99 Cal.Rptr.2d 532, 6 P.3d 193. And any potential federal error "was harmless beyond a reasonable doubt," according to the California Supreme Court. Id. at 269, 99 Cal.Rptr.2d 532, 6 P.3d 193 (citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)).
In short, the California Supreme Court considered Ayala's Batson claim, rejected it on the merits, and followed that up by holding that any potential error was harmless. Given that Richter, 131 S.Ct. at 784-85, and Williams, 133 S.Ct. at 1094-96, require us to presume that the state court adjudicated a claim on the merits when the claim was presented to the state court and the state court denied relief, there is no
As the California Supreme Court pointed out, "no particular procedures are constitutionally required." Ayala I, 24 Cal.4th at 261, 99 Cal.Rptr.2d 532, 6 P.3d 193. Batson itself "decline[d] ... to formulate particular procedures to be followed upon a defendant's timely objection to a prosecutor's challenges," 476 U.S. at 99, 106 S.Ct. 1712, and the Supreme Court has left it to the lower courts to "develop [the] rules," Powers, 499 U.S. at 416, 111 S.Ct. 1364. No subsequent Supreme Court case has given further instruction on Batson procedures, and certainly no Supreme Court case has foreclosed the use of ex parte proceedings. Therefore, the California Supreme Court's rejection of Ayala's Batson claim in this case was not contrary to, or an unreasonable application of, clearly established Supreme Court caselaw, and we should have affirmed the district court.
Contrary to Supreme Court precedent, the plain language of AEDPA, and the decisions of our sister circuits, the panel majority here reasons that no AEDPA deference is owed to the state court's opinion. Am. Maj. Op. at 660, 663. Notwithstanding the presumption established by Richter and Williams, the panel majority concludes that the state court did not adjudicate Ayala's claim on the merits because the state court never analyzed the merits of Ayala's Batson claim and held only that any federal error would have been harmless. As a threshold matter, this misreads the state court's opinion. The California Supreme Court addressed and rejected Ayala's Batson claim on the ground that no particular procedures are constitutionally required, and only later reinforced its rejection of the Batson claim by holding that any potential error was harmless. But even if the state court had limited itself to holding that any federal error was harmless, the panel majority's analysis of whether the state court adjudicated Ayala's claim on the merits is wrong.
Williams held that we must presume that a state court adjudicated a federal claim on the merits, and that this presumption is rebutted only "[w]hen the evidence leads very clearly to the conclusion that a federal claim was inadvertently overlooked in state court." 133 S.Ct. at 1097.
The panel majority attempts to evade this conclusion by insisting that the rebuttable presumption discussed in Richter and Williams is rebutted in this case by the "principle of constitutional avoidance." Am. Maj. Op. at 667, 669. The panel majority reasons that "the California Supreme Court had no reason to reach Ayala's federal constitutional claim" because it could resolve the claim as a matter of state law, and "under long established legal principles, the California Supreme Court had every reason not to decide unnecessarily a question of federal constitutional law." Id. at 669. Because there was no compelling reason for the California Supreme Court to have evaluated the claim of constitutional error, the panel majority concludes that the California Supreme Court did not adjudicate Ayala's Batson claim on the merits. Id. at 23-25.
The panel majority supports its reverse presumption by reference to Supreme Court cases granting relief to habeas petitioners raising ineffective assistance of counsel claims. Id. at 668-69 (citing Porter v. McCollum, 558 U.S. 30, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009); Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005); Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)). But these cases offer no support for the panel majority's novel theory. In those cases, a state court rejected a petitioner's ineffective assistance claim on either the deficiency or prejudice prong, and did not reach the other prong. Applying § 2254(d), the Supreme Court concluded in each case that the state court's adjudication of one of the Strickland prongs was contrary to, or an unreasonable application of, Strickland. Because the state court did not reach the other prong, the Supreme Court addressed it de novo. Porter, 558 U.S. at 39, 130 S.Ct. 447; Rompilla, 545 U.S. at 390, 125 S.Ct. 2456;
Moreover, the Supreme Court has never suggested that when a state court rejects a petitioner's claim because any potential error was harmless, we can review the claim de novo because that claim was not fully adjudicated on the merits. Such a conclusion contravenes Richter and Williams, which instruct us to presume that a state court has adjudicated a claim on the merits and to apply AEDPA deference when a state court has denied relief overall, regardless of the grounds for denying relief. The panel majority's interpretation also contradicts the commonsense interpretation of "adjudicated on merits." We have held that the term "adjudicated on the merits" as used in § 2254(d) means that "the petition ... was either granted or denied, [and] ... that the grant or denial rest[s] on substantive, rather than procedural, grounds." Lambert v. Blodgett, 393 F.3d 943, 966 (9th Cir.2004); see also Barker v. Fleming, 423 F.3d 1085, 1092 (9th Cir.2005). A determination that any error was harmless is a denial of relief on "substantive ... grounds." Accordingly, a decision that any error was harmless is an adjudication on the merits, and we should apply § 2254(d) to that adjudication. The majority's failure to do so is contrary to the command of § 2254(d) and our precedents interpreting it.
Not only does the panel majority's approach contradict AEDPA and our precedent, it also conflicts with the conclusion reached by our sister circuits. As the Tenth Circuit recently explained, "[w]here a state court assumes a constitutional violation in order to address whether the defendant was actually harmed by the violation, as here, the state court takes the claim on the merits; it just disposes of it on alternative merits-based reasoning." Littlejohn v. Trammell, 704 F.3d 817, 850 n. 17 (10th Cir.2013). The Tenth Circuit concluded that because the state court rejected petitioner's constitutional claim on the ground that any error was harmless, it "render[ed] a decision that is on the merits for purposes of AEDPA." Id. at 850 n. 17. Accordingly, the Tenth Circuit proceeded to consider whether the adjudication of the constitutional claim was an unreasonable application of Supreme Court precedent. Id. The Seventh and Eighth Circuits have adopted a similar interpretation of "adjudicated on the merits." See Anderson v. Cowan, 227 F.3d 893, 898 (7th Cir.2000) (considering a state court's rejection of a Bruton error on the ground that any such error was harmless beyond a reasonable doubt, and concluding that this rejection of the Bruton claim was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent);
This is not a case-specific error that will be confined to the facts of this opinion. The panel majority's approach sets the groundwork for authorizing federal courts to review a habeas petition de novo whenever a state appellate court rejects a petitioner's federal claim on harmlessness grounds, contrary to the Supreme Court's admonition to defer to the state court's decisions, and the general rule that § 2254(d) barely "stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings," Richter, 131 S.Ct. at 786. The consequences of the panel majority's approach will reverberate throughout this circuit. The state courts within our circuit routinely resolve claims of federal error on the basis that any potential error was harmless. See, e.g., People v. Thomas, 54 Cal.4th 908, 936-37, 144 Cal.Rptr.3d 366, 281 P.3d 361 (2012); People v. Loy, 52 Cal.4th 46, 69-71, 127 Cal.Rptr.3d 679, 254 P.3d 980 (2011); Smith v. State, 111 Nev. 499, 505-06, 894 P.2d 974 (1995); State v. Walton, 311 Or. 223, 229-31, 809 P.2d 81 (1991); State v. Whelchel, 115 Wn.2d 708, 728-30, 801 P.2d 948 (1990); Braham v. State, 571 P.2d 631, 645-48 (Alaska 1977). Under the panel majority's rationale, we would give AEDPA deference to none of these determinations.
Not only does the panel majority commit serious errors in its AEDPA analysis, it lands yet another blow to our AEDPA jurisprudence by concluding that we review a state court's harmless error analysis under an exceptionally nondeferential standard. After erroneously concluding that the California Supreme Court did not adjudicate Ayala's Batson claim on the merits, Am. Maj. Op. at 669-70, and determining under de novo review that the state trial court committed a Batson error in holding an ex parte hearing with the prosecutor, id. at 670, the panel majority purports to apply the prejudice standard set forth in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), to review the California Supreme Court's conclusion that any federal error was harmless, Am. Maj. Op. at 674-84.
But the panel majority's application of the Brecht prejudice standard contradicts the Supreme Court's direction in Fry v. Pliler, 551 U.S. 112, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007). Under Brecht, a federal habeas court that determines there is constitutional error cannot grant relief unless the error "had substantial and injurious effect or influence in determining the jury's verdict." 507 U.S. at 638, 113 S.Ct. 1710 (internal quotation marks omitted). Before Pliler, a federal court faced a conundrum in considering a state court's decision that a constitutional error was harmless beyond a reasonable doubt under Chapman. The federal habeas court had to determine whether to: (1) apply § 2254(d), and ask whether the state court's rejection of the petitioner's claim on harmlessness grounds was based on an unreasonable application of Chapman, (2) apply the general harmless error standard for habeas cases in Brecht, or (3) do both.
In Pliler, the Supreme Court sought to simplify the harmlessness assessment for federal courts and ensure that state courts received proper deference. It held that
Nevertheless, given Pliler's determination that the Brecht standard is more deferential to state courts than an AEDPA/Chapman analysis, it logically follows that if the state court's determination that an error is harmless beyond a reasonable doubt is not an unreasonable application of Chapman, then there is no prejudice under Brecht. See Pliler, 551 U.S. at 120, 127 S.Ct. 2321 (Brecht "obviously subsumes" AEDPA/Chapman review). Anything else would be inconsistent with Pliler's reasoning. It would also be contrary to § 2254(d), which provides that a federal court cannot grant the writ unless the state court's adjudication of a claim resulted in a decision that was contrary to, or an unreasonable application of, clearly established Supreme Court precedent. See Cudjo v. Ayers, 698 F.3d 752, 768 (9th Cir.2012) (stating that "if the California Supreme Court had appropriately applied the Chapman analysis in analyzing this Constitutional error, this court would be required to defer to that analysis under AEDPA unless it was unreasonable").
Applying this reasoning here, the California Supreme Court's determination that the procedure adopted by the trial court in holding an ex parte hearing was harmless beyond a reasonable doubt was not an unreasonable application of Chapman. The California Supreme Court devoted several pages to a meticulous review of the trial court's decision regarding the seven jurors who were excluded and gave wellreasoned and supported explanations for why "the challenged jurors were excluded for proper, race-neutral reasons." Ayala I, 24 Cal.4th at 264, 99 Cal.Rptr.2d 532, 6 P.3d 193.
Because we would be compelled to defer to the state court under an AEDPA/Chapman framework, we necessarily should find no Brecht prejudice. See Pliler, 551 U.S. at 120, 127 S.Ct. 2321. In contrast, the panel majority engages in not just de novo legal analysis, but de novo review of the record that piles speculation upon speculation instead of giving due deference to the finder of fact.
In sum, the panel majority's path to de novo review is contrary to the plain language of AEDPA, which precludes granting the writ unless the state court's adjudication of a claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The panel majority hops over AEDPA's "bar on federal court relitigation of claims already rejected in state proceedings," Richter, 131 S.Ct. at 786, with a novel theory that ignores recent Supreme Court jurisprudence and conflicts with our sister circuits. In fact, the panel majority's opinion raises every red flag that should have prompted us to rehear a case en banc. The approach to AEDPA embodied in the panel majority's opinion has already struck out twice at the Supreme Court. I fear that with this case, we are looking at a hat trick. Because we should have corrected these errors ourselves, rather than asking the Supreme Court to weigh in a third time, I respectfully dissent from the denial of rehearing en banc.
28 U.S.C. § 2254(d).
Under Option 2, i.e., if the California Supreme Court found error with respect to the Batson issue as a matter of state law only and did not decide the question of federal constitutional error on the merits, our review would be de novo. See Cone v. Bell, 556 U.S. 449, 472, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009) (reviewing de novo because the "[state] courts did not reach the merits of [the petitioner's constitutional] claim"); Lott v. Trammell, 705 F.3d 1167, 1218 (10th Cir.2013); Harris v. Thompson, 698 F.3d 609, 624 (7th Cir.2012). A decision "as a matter of state law only" perforce does not constitute an "adjudication on the merits" of a federal claim, and therefore § 2254(d) would not apply.
The dissent clearly errs in applying Richter to prejudice analysis under AEDPA. In Fry, 551 U.S. 112, 127 S.Ct. 2321, the Supreme Court held that Brecht is the proper test for prejudice analysis under AEDPA. In Richter, handed down just four years later, the Supreme Court did not once mention Fry or Brecht. Furthermore, the Court's reference to "fairminded jurist" was not in the context of reviewing a state court's prejudice determination but rather in the context of whether a state court's determination regarding constitutional error was unreasonable. 131 S.Ct. at 785. (Here, as explained supra, the state court was silent on the question of error, and thus only prejudice is at issue.) The dissent thus seems willing to conclude that the Supreme Court radically changed Brecht, a nearly two-decade old precedent — a case with central import in virtually all federal habeas adjudication, reaffirmed just five years ago in Fry — without even a mention of that oft-cited case. There is no legal basis for the dissent's conclusion that a case cited almost 10,000 times to determine prejudice in habeas cases was sub silentio drastically overhauled in a discussion unrelated to prejudice. The dissent's reference to Pinholster is equally unpersuasive. In that case, as in Richter, the Court did not use the language "fairminded jurist" in reviewing a state court's prejudice determination. Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1408, 179 L.Ed.2d 557 (2011).
Furthermore, because Richter and Pinholster were ineffective assistance of counsel cases, the Court had no reason to apply Brecht. Strickland, not Brecht, provides the proper prejudice standard for ineffective assistance of counsel claims. See Musladin v. Lamarque, 555 F.3d 830, 834 (9th Cir.2009) ("[W]here a habeas petition governed by AEDPA alleges ineffective assistance of counsel under [Strickland], we apply Strickland's prejudice standard and do not engage in a separate analysis applying the Brecht standard.").
Additionally, in the thirty months since Richter was handed down, we have repeatedly applied the traditional Brecht test to assess prejudice in habeas cases. E.g., Merolillo, 663 F.3d at 454; Ybarra v. McDaniel, 656 F.3d 984, 995 (9th Cir.2011); United States v. Rodrigues, 678 F.3d 693, 695 (9th Cir.2012). In some cases, we have cited Richter in analyzing constitutional error but then, properly, applied the traditional Brecht test when determining prejudice. E.g., Ocampo v. Vail, 649 F.3d 1098, 1106 (9th Cir.2011); Schneider v. McDaniel, 674 F.3d 1144, 1149-50 (9th Cir. 2012). Thus, even if we believed that the dissent were correct that Richter rewrote the test for prejudice (a conclusion that is wholly without support and that we unequivocally reject), this three judge court, like all others, is nevertheless required to apply Brecht as it was (and is), because such is the law of the circuit. Lacking support in both Supreme Court and Ninth Circuit case law, the dissent's pronouncement simply amounts to a preference that the prejudice standard under AEDPA should be far more onerous than current law provides.
Perhaps because of this and similar exchanges, she was later asked if she had a hearing problem, which she did not.
Id. at 310, 109 S.Ct. 1060. Although Teague may still bar the application in federal habeas proceedings of rules that the state courts have themselves recognized, cf. Beard v. Banks, 542 U.S. 406, 413, 124 S.Ct. 2504, 159 L.Ed.2d 494 (2004), Horn, 536 U.S. at 272, 122 S.Ct. 2147, the interests of comity and finality are obviously far less weighty when a state court has accepted a rule than when it has rejected or ignored a rule. Here, the state is not being forced to marshal resources to defend against a new and novel claim that was not recognized at the time the conviction became final; nor did it faithfully apply existing constitutional law only to have a federal court subsequently apply new constitutional commands. To the contrary, the state is challenging a rule that the California Supreme Court found to be well established and controlling at the time it affirmed Ayala's conviction on direct appeal, as well as at the time the trial court conducted its proceedings. Certainly the state court could not be "frustrated" to find that a federal court determined that it was error to exclude the defense from the Batson proceedings when the state court itself had held that this very same rule was "almost universally recognized" and reached the same determination itself.
To the contrary, Thompson directly addressed the government's argument that "an adversary hearing is inappropriate because the government lawyer is required to reveal confidential matters of tactics and strategy." Thompson, 827 F.2d at 1259. In that case, we rejected this claim as a general proposition and held that the determination of whether revealing case strategy could be a compelling justification in a particular case must be determined by examining whether the facts in that case warranted an exception to the general rule. Id. Rules applied on a case-by-case basis do not raise Teague issues. See Wright v. West, 505 U.S. 277, 308, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (Kennedy, J., concurring) ("If the rule in question is one which of necessity requires a case-by-case examination of the evidence, then we can tolerate a number of specific applications without saying that those applications themselves create a new rule.").
Williams v. Cavazos, 646 F.3d 626, 639 (9th Cir.2011). The majority appears to follow a similar course in the case at bar.
131 S.Ct. at 1307.
Majority at 674 n. 13.
Am. Maj. Op. at 680. This sort of conjecture in the face of a contrary determination by the trier of fact has no place in analyzing prejudice.
