Lead Opinion
Opinion by Judge REINHARDT; Dissent by Judge CALLAHAN; Order; Dissent to Order by Judge IKUTA.
OPINION
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,
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,
I.
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 ease. 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 pri-ma 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,
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.
II.
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,
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.
III.
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 v?rit, 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,
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 habe-as petition is subject to the requirements of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), see Kennedy v. Lockyer,
1.
The first question is whether the state court made an adjudication on the
conclude[d] that the error was harmless under state law (People v. Watson (1956)46 Cal.2d 818 , 836,299 P.2d 243 ), and that, if federal error occurred, it, too, was harmless beyond a reasonable doubt (Chapman v. California (1967)386 U.S. 18 , 24,87 S.Ct. 824 ,17 L.Ed.2d 705 ) as a matter of federal law.
Id.; see also id.
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
(1) held that there was error under federal constitutional law;
(2) did not decide whether there was error under federal constitutional law; or
(3) held that there was no error under federal constitutional law.
[hereinafter discussed as Options 1, 2, and 3 respectively]
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,
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,
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,
Cleveland did not expressly purport to decide a federal constitutional question, but its discussion of [the federal cases] shows that the California Supreme Court understood itself to be deciding a question with federal constitutional dimensions. See25 Cal.4th, at 487 , 106*667 Cal.Rptr.2d 313,21 P.3d, at 1239 (Werdegar, J., concurring) (emphasizing importance of careful appellate review in juror discharge cases in light of the “constitutional dimension to the problem”).
Williams,
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,
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,
Because the Tennessee courts did not reach the merits of Cone’s Brady claim, federal habeas review is not subject to the deferential standard that applies under AEDPA to “any claim that was adjudicated on the merits in State court proceedings.” 28 U.S.C. § 2254(d). In*669 stead, the claim is reviewed de novo. See, e.g., Rompilla v. Beard,545 U.S. 374 , 390,125 S.Ct. 2456 ,162 L.Ed.2d 360 (2005) (de novo review where state courts did not reach prejudice prong under Strickland v. Washington,466 U.S. 668 ,104 S.Ct. 2052 ,80 L.Ed.2d 674 (1984)); Wiggins v. Smith,539 U.S. 510 , 534,123 S.Ct. 2527 ,156 L.Ed.2d 471 (2003) (same).
Id. at 472,
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,
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.
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,
B.
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,
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.
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.
This conclusion is not called into question by Briggs v. Grounds,
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,
IV.
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,
We now address these same questions, and hold that Brecht v. Abrahamson,
A.
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 preju
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,
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,
rely on the Supreme Court’s earlier usage of the phrase “critical stage,” in cases such as Hamilton v. [Alabama,368 U.S. 52 ,82 S.Ct. 157 ,7 L.Ed.2d 114 (1961)] and White [v. Maryland,373 U.S. 59 ,83 S.Ct. 1050 ,10 L.Ed.2d 193 (1963) (per curiam) ] to refer narrowly to those proceedings both at which the Sixth Amendment right to counsel attaches and at which denial of counsel necessarily undermines the reliability of the entire criminal proceeding.... [T]he Supreme Court has subsequently used the phrase “critical stage,” in cases such as [United States v.] Wade [,388 U.S. 218 ,87 S.Ct. 1926 ,18 L.Ed.2d 1149 (1967) ] and Coleman [v. Alabama,399 U.S. 1 ,90 S.Ct. 1999 ,26 L.Ed.2d 387 (1970) ], in a broader sense, to refer to all proceedings at which the Sixth Amendment right to counsel attaches— including those at which the denial of such is admittedly subject to harmless-error analysis.
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,
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,
B.
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.”
The Brecht standard has been described as follows:
[I]f one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from*675 the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence.
Merolillo v. Yates,
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,
Second, Ayala’s counsel could have “preserve[d] for the record, and possible appeal, crucial facts bearing on the judge’s decision.” Thompson,
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,
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
1. Olanders D.
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, Olan-ders 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 “actu
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.
2. Gerardo 0.
Gerardo 0. 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 documented] 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 0. Defense counsel could have first argued that one reason given — that Gerardo 0. was illiterate — was itself indicative of the prosecution’s discriminatory intent. Although Gerardo 0. 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 0. 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 0., 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,
An inference of racial bias might also have been drawn from the prosecutor’s claim that Gerardo 0. 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 0. 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 0. 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 0. Although we might hope that the trial judge would have noticed if Gerardo 0. 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,
Finally, in response to the prosecution’s third reason for the strike — that Gerardo 0. 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 0. 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 0. 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 0. violated Batson.
3. Robert M.
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 Bat-son 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:
Prosecutor: Have you followed any kind of — any court cases in the news or come downtown to watch any trials?
Robert M.: Well, I followed the Saigon [sic] Penn case.
Prosecutor: All right.
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,
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. Similar
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 Sa-gon 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,
C.
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,
V.
Although our conclusions in Parts III and IV — that the state court commit
Under Teague, a “new constitutional rule[ ] of criminal procedure” cannot be applied retroactively to cases on collateral review.
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.
A.
In this Circuit, this rule was unequivocally “dictated by precedent,” Teague,
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,
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.”
In Thompson, we recognized that the Batson framework leaves defense counsel with “two crucial functions” that it must be permitted to perform.
For example, government counsel here excluded one of the jurors because he lived in defendant’s neighborhood and wore jeans to court. This seems like a legitimate reason, unless a nonexcluded juror also wore jeans or other casual dress, or lived in the same neighborhood as the defendant.... [DJefense counsel might have been able to point out that the stated reasons were pretextual because others similarly situated were allowed to serve. In addition, defense counsel might have been able to argue that the reasons advanced by the prosecution were legally improper.... Of course, the district judge might be able to detect some of these deficiencies by himself, but that is not his normal role under our system of justice.
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:
All we have before us concerning this issue is the prosecutor’s explanation of her reasons and the district judge’s ruling. ... [I]f we are to review the district judge’s decision, we cannot affirm simply because we are confident he must have known what he was doing. We can only serve our 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.... Here, the record’s silence cannot be reassuring.
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. “[CJircuit court holdings suffice to create a ‘clearly established’ rule of law under Teague.” Belmontes v. Woodford,
B.
We would hold that Ayala’s claim is not Teague-barred even if we were free to conclude that, contrary to Bell and Bel-montes, 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,
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,
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.”
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,
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,
VI.
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, defer
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,
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:
In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
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
VIL
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.
REVERSED and REMANDED.
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,
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
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,
A. The standard for determining whether a claim is barred under Teague.
In Caspari v. Bohlen,
“[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” Teague v. Lane, supra,489 U.S. at 301 [109 S.Ct. 1060 ]. In determining whether a state prisoner is entitled to habeas relief, a federal court should apply Teague by proceeding in three steps. First, the court must ascertain the date on which the defendant’s conviction and sentence became final for Teague purposes. Second, the court must “[s]urve[y] the legal landscape as it then existed,” Graham v. Collins, supra,506 U.S., at 468 [113 S.Ct. 892 ], and “determine whether a state court considering [the defendant’s] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution,” Saffle v. Parks,494 U.S. 484 , 488 [110 S.Ct. 1257 ,108 L.Ed.2d 415 ] (1990). Finally, even if the court determines that the defendant seeks the benefit of a new rule, the court must decide whether that rule falls within one of the two narrow exceptions to the nonretroactivity principle. See Gilmore v. Taylor,508 U.S. 333 , 345 [113 S.Ct. 2112 ,124 L.Ed.2d 306 ] (1993).
Id. at 390,
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.
B. The evolution of Batson as of May 2001.
In Batson v. Kentucky,
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,
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,
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,
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,
C. Ayala’s Sixth Amendment claim was not dictated by precedent in 2001.
In Horn v. Banks,
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,
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,
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,
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,
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 recu-sals was not “dictated by precedent” when Ayala’s conviction became final, and therefore the issue is Teague-barred.
II
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,
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. —,
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,
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,
A. Supreme Court precedent compels the conclusion that the California Supreme Court decided Ayala’s federal claims on their merits.
1. The California Supreme Court’s opinion.
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:
We have concluded that error occurred under state law, and we have noted Thompson’s suggestion that excluding the defense from a Wheeler-type hearing may amount to a denial of due process. We nonetheless conclude that the error was harmless under state law (People v. Watson (1956)46 Cal.2d 818 , 836,299 P.2d 243 ), and that, if federal error occurred, it, too, was harmless beyond a reasonable doubt (Chapman v. California (1967)386 U.S. 18 , 24 [87 S.Ct. 824 ,17 L.Ed.2d 705 ]) as a matter of federal law.
2. The majority’s deconstruction of the California Supreme Court’s opinion.
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,
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.
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.
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,
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.
3. The majority’s approach is contrary to recent Supreme Court opinions.
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,
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.
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,
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,
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.
B. The majority applies a de novo standard of review and fails to give proper deference to the California Supreme Court’s opinion.
The majority’s treatment of the California Supreme Court’s ruling on the Bat-son/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,
1. Deference is mandated by the statute and Supreme Court precedent.
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.”
[A] challenger must demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” [Strickland v. Washington,466 U.S. 668 ] at 694 [104 S.Ct. 2052 ,80 L.Ed.2d 674 (1984) ]. It is not enough “to show that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693 [104 S.Ct. 2052 ], Counsel’s errors must be “so serious as to deprive the defendant of a fair trial, a trial whose result is rehable.” Id. at 687 [104 S.Ct. 2052 ].
The majority, however, invokes Brecht v. Abrahamson,
Brecht was decided before the passage of AEDPA. In Fry v. Pliler,
Three years after we decided Brecht, Congress passed, and the President signed, the [AEDPA], under which a habeas petition may not be granted unless the state court’s adjudication “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). In Mitchell v. Esparza,540 U.S. 12 [124 S.Ct. 7 ,157 L.Ed.2d 263 ] (2003) (per curiam), we held that, when a state court determines that a constitutional violation is harmless, a federal court may not award habeas relief under § 2254 unless the harmlessness determination itself was unreasonable. Petitioner contends that § 2254(d)(1), as interpreted in Esparza, eliminates the requirement that a petitioner also satisfy Brecht’s standard. We think not. That conclusion is not suggested by Esparza, which had no reason to decide the point. Nor is it suggested by the text of AEDPA, which sets forth a precondition to the grant of habeas relief (“a writ of habeas corpus ... shall not be granted” unless the conditions of § 2254(d) are met), not an entitlement to it. Given our frequent recognition that AEDPA limited rather than expanded the availability of habeas relief, see, e.g., Williams v. Taylor,529 U.S. 362 , 412 [120 S.Ct. 1495 ,146 L.Ed.2d 389 ] (2000), it is implausible that, without saying so, AEDPA replaced the Brecht standard of “ ‘actual prejudice,’ ”507 U.S., at 637 [113 S.Ct.*705 1710] (quoting United States v. Lane,474 U.S. 438 , 449 [106 S.Ct. 725 ,88 L.Ed.2d 814 ] (1986)), with the more liberal AEDPA/Chapman standard which requires only that the state court’s harmless-beyond-a-reasonable-doubt determination be unreasonable. That said, it certainly makes no sense to require formal application of both tests (AED-PAf Chapman and Brecht) when the latter obviously subsumes the former.
Three aspects of the Supreme Court’s explanation are particularly important. First, the Court endorsed its prior opinion in Esparza,
The majority attempts to evade the deference inherent in the AEDPA/Brecht standard by quoting language from Mero-lillo,
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.”
3. Deference to the state court opinion reconciles Brecht and the Supreme Court’s recent opinions.
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.,
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.
Ill
A review of the record shows that although the loss of the questionnaires and
A. The loss of certain prospective jurors’ questionnaires.
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,
A reviewing court cannot examine the “totality of the relevant facts” and “all relevant circumstances,” Batson,476 U.S. at 94 [106 S.Ct. 1712 ], surrounding a prosecutor’s peremptory strike of a minority potential juror without an entire voir dire transcript. A transcript of the complete voir dire, as distinct from a partial transcript up to the time of the Batson motion, is proper because comparative juror analysis is appropriate both at the time of the Batson motion and in light of all subsequent voir dire testimony.
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,
To be fair, there is language in our en banc opinion in Kesser v. Cambra,
In addition, we recently commented on the lack of questionnaires of excused jurors in Briggs v. Grounds,
The dissent seems to conclude that because we cannot independently verify the answers from the questionnaires as they are not in the record, the defense’s characterization is equally, if not more, plausible despite the state court determinations to the contrary. However, “AEDPA imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt,” Felkner v. Jackson, [sic, — U.S. —]131 S.Ct. 1305 , 1307 [179 L.Ed.2d 374 ] (2011) (per curiam) (internal quotation marks omitted) (overturning the Ninth Circuit). The dissent’s readiness to doubt the state court determination based on the defendant’s characterization of the record does not apply the appropriate level of deference Congress and the United States Supreme Court have required of us.
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,
it would be anathema to AEDPA if we were to assume that the petitioner’s contentions about the questionnaires are true simply because the record before us does not contain the excused jurors’ questionnaires. The burden to disprove the factual findings rests with Briggs. 28 U.S.C. § 2254(e)(1) (requiring “clear and convincing evidence” to rebut “a determination of a factual issue made by a State court”).
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:
The deficiency of which he complains is the absence of certain questionnaires, which were completed by prospective jurors, then lodged with the superior court, subsequently lost by its clerk’s office, and finally determined by the superior court to be beyond reconstruction. A criminal defendant is indeed entitled to a record on appeal that is adequate to permit meaningful review. That is true under California law. [Citation.] It is true as well under the United States Constitution — under the Fourteenth Amendment generally, and under the Eighth Amendment specifically when a sentence of death is involved. [Citation.] The record on appeal is inadequate, however, only if the complained-of deficiency is prejudicial to the defendant’s ability to prosecute his appeal. ([People v. Alvarez,14 Cal.4th 155 ,] at p. 196, fn. 8 [58 Cal.Rptr.2d 385 ,926 P.2d 365 (1996)]).
Ayala,
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.
B. Challenges to the Individual Jurors
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,
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,
My primary concern with regard to [Olanders D.] is his ability to vote for the death [sentence] during the penalty phrase. On his questionnaire he indicated that he does not believe in the death penalty. He did indicate that his view had changed over the last several years. He told us that he did want to serve. During the time that he was questioned, I felt that his responses were not totally responsive to the questions of either counsel for the defense or myself.
My observations in reading his questionnaire and before even making note of his racial orientation was that his responses on the questionnaire were poor. They were not thought out. He demonstrated a lack of ability to express himself well. And his answers did not make a lot of sense. As a result, I felt that he is not a person who could actively participate in a meaningful way in deliberations with other jurors, and his ability to fit in with a cohesive group of 12 people I sincerely question, and it was for that reason plus his stand on the death penalty that led me to believe that I did not want him on this jury.
The trial judge responded:
Okay. Certainly with reference to whether or not he would get along with 12 people, it may well be that he would get along very well with 12 people. I think the other observations of counsel are accurate and borne out by the record.
The California Supreme Court held that the record showed that the challenged jurors were excluded for proper, race-neutral causes. Ayala,
[T]he prosecutor stated he had exercised the challenge in part because his questionnaire indicated he opposed the death penalty. The prosecutor acknowledged Olanders D.’s oral statements that his views had changed, but commented that his answers were “not totally responsive to the questions of either counsel for the defense or myself.” He further stated, in essence, that Olanders D.’s difficulties in communicating led him to question whether he would “fit in” on the jury. The court disagreed with the latter point, noting, “it may well be that he would get along very well with 12 people,” but added: “I think the other observations of counsel are accurate and borne out by the record.”
Id. The California Supreme Court further noted that the trial court “credited the prosecutor’s opinion[] that Olanders D. opposed the death penalty.” Id.
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 re
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,
There is no suggestion that any seated juror raised a similar set of concerns as danders D. The trial judge, who had the opportunity to observe danders D., agreed with the prosecutor that danders 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 danders 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 affixxmed by the California Supreme Court are presumed correct. Rice,
The majority’s expressed concerns about danders 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 danders D.’s is really of little moment. As noted, the trial judge — who heard danders D.’s voir dire — agreed with the prosecutor that he “demonstrated a lack of ability to express himself well.” The majority’s supposition that danders 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 danders 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,
2. Gerardo 0.
Gerardo 0. was one of the recusals that Ayala challenged in his second objection. The prosecutor explained his challenge to Gerardo 0. as follows:
I made an observation of [Gerardo] when he first entered the courtroom on the first day that the jurors were called into the area.
At that time, he appeared to not fit in with anyone else. He was a standoffish type of individual. His dress and his mannerisms I felt were not in keeping with the other jurors.
He indicated to us at the beginning that he was illiterate. Actually, his words were that he was illiterate, and that he therefore had the questionnaire translated to him, so that he could make responses.
I observed him on subsequent occasions when he came to the court, and observed that he did not appear to be socializing or mixing with any of the other jurors, and I also take into account his responses on the questionnaire and in the Ho-vey questioning process, at which time he expressed that he had no feeling with regard to the death penalty in writing. When being questioned, he said that he was not sure if he could take someone’s life, or if he could take someone’s life into his hands.
He further responded in the Hovey process that there would be eleven other people, that he felt a little shaky as far as his responsibilities in this case.
For those reasons, I felt that he would be an inappropriate juror, and for that reason, I exercised the peremptory challenge.
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 0. struggled with English and did not understand the proceedings.” Ayala,
The majority does not deny that Gerardo 0. 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 0. was not illiterate, and that Gerardo O.’s “dress and mannerisms were distinctly Hispanic.”
3. Robert M.
Robert M. was one of the last persons whose recusal was challenged. The prosecutor explained his reasons as follows:
As far as [Robert M.] is concerned, Miss Michaels and I had discussions during the selection process here in court, even as late as immediately before the exercise of the last challenge.
The court would note that I had passed at one point, leaving [Robert M.] on. I have always felt some degree of reluctance with regard to [Robert M.], and my concern primarily is in the area of whether, after conviction, [Robert M.] would actually vote for the death penalty, and it was my view that taking all of his responses in Hovey into account, and the — some of his responses even as late as yesterday — for example, the following of the Sagon Penn case. It was Miss Michaels doing the questioning at that time, and I did not actually — it would have been possibly a disadvantage or a disservice to inquire further as to his impressions about the Sagon Penn case.
I’m concerned about that case because the fact that Mr. Penn, in a very notorious trial here, was found not guilty in a second trial, and allegations of misconduct with regard to the District Attorney’s office and the police were certainly rampant in that case.
There’s really no way for me to inquire as to where [Robert M.] actually stood. As far as [Robert M.] is concerned, our scores, a combination of all the factors— Mr. Cameron graded [Robert M.] as a four, Miss Michaels had rated [Robert M.] as a five, and my score on him was four to a five, somewhere in that area. I had before doing any of the selection process, resolved that at the very best, we would not wish to have any jurors on this case whose combined score was five or less.
In spite of that, I passed once on him, but it is my view, basically, that because of his attitudes with regard to the death*714 penalty, such as in his first response to whether he would always vote for — well, in the question number one about whether he would always vote for guilt, he indicated that it was a difficult question.
He said that he believed in the death penalty, but it was hard for him to be involved in the death penalty.
With regard to questions about whether he would vote for death, he said no, it would be hard to say, no, I don’t know what the evidence is, and Miss Michael’s reasons, which she expressed to me, and I have to agree with, is a great degree of concern about whether if we get to that point he could actually vote for death, and having that kind of a question in my mind as I’m trying this case would be distracting and worrisome to me during the process of the trial.
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,
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.
4. The Other Jurors
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 question
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 dis-cernable 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 Olan-ders D., Gerardo 0., 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,
The California Supreme Court may not have been compelled to conclude that “the challenged jurors were excluded for proper, race-neutral reasons.” Ayala,
IV
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.”
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,
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.
ORDER
The opinion and dissenting opinion, filed on September 13, 2013, and published at
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 DENIED. No further petitions will be entertained.
Judge Ikuta’s dissent from denial of rehearing en banc is filed concurrently with this Order.
Notes
. The motions were technically made under People v. Wheeler,
. Because we conclude that Ayala is entitled to relief on his Bafsora-related claims, we need not decide whether the district court erred in rejecting his Vienna Convention claim.
. “By its terms § 2254(d) bars relitigation of any claim ‘adjudicated on the merits' in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2).” Harrington v. Richter,
(1) 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; or
(2) resulted in ,a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
. Under Option 1, i.e., if the California Supreme Court found error under federal consti-lulional law, as well as under state law, an argument can be made that we would be
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,
. The dissent therefore misstates our holding when it claims we have ”decide[d] that the California Supreme Court did not determine whether there was error under federal law.” Dissent at 671. That is only one of two holdings we find possible; the other is that the Supreme Court decided that there was federal constitutional error for the same reasons that there was state constitutional error. It follows that it is also not true that we have concluded, as the dissent claims, that there is “no reason” to give the California Supreme Court decision § 2254(d) deference. As explained supra at 664-65 n. 4, if the California Supreme Court held that there was federal constitutional error — Option 1 — we might give this holding § 2254(d) deference, although the question of what level of deference to afford a finding in favor of petitioner is a question of first impression that we need not decide here.
. In other words, because Wheeler is Batson-plus, and because its Wheeler holding relied on Batson case law, it is impossible that the California Supreme Court found no Batson error on the merits while finding Wheeler error on the merits. It either found Batson
. Even the dissent struggles to argue that Option 3 is the best reading. First, it states that the California Supreme Court “rejected” Ayala's federal claim. Dissent at 698. Then, suddenly less confident, the dissent argues only that "[tjhere may be some question as to whether the California Supreme Court actually found that there was federal error.” Id. Finally, backing away from its original claim even more, the dissent seems to endorse Option 1, suggesting that the Supreme Court found that there was federal constitutional error: “The California Supreme Court’s evaluation of the BatsonfWheeler issue was clear and concise. It held that 'it was error to exclude defendant from participating in the hearings on the Wheeler motions.' ” Dissent at 698-99 (citing Ayala,
. As discussed supra at 664-65 fn. 4, there are three possible standards of review that could apply to the California Supreme Court’s decision on federal constitutional error. Because, under the circumstances of this case, de novo review is the most searching of the three, we need not review the decision under the other two standards.
. Part of our reason for brevity in our analysis of Ayala’s claim under de novo review is that his case is clearly controlled by Thompson. Another reason is that our analysis in Part V, in which we reject the state’s Teague argument, explains further why Ayala suffered a constitutional violation in this case.
. The dissent ignores the holding of Boyd and instead plucks the words "voir dire transcript" out of the opinion to argue that only a voir dire transcript is necessary for comparative juror analysis. Dissent at 707-08. If our dissenting colleague believes that jury questionnaires are not tools for comparative juror analysis, we point her to Miller-El v. Dretke (Miller-El II),
. Ayala also asserts that there is an Eighth Amendment right to appeal — and to a record adequate for appeal — in a capital case. See Whitmore v. Arkansas,
. As the state observes, although Mickens postdates the California Supreme Court's de-cisión, the opinion simply restates the rule set forth 18 years earlier in Cronic.
. If this appeal had come before us prior to the Supreme Court’s decision in Fry, we would have instead asked whether the state court’s determination that any error was harmless under Chapman was contrary to, or an unreasonable application, of federal law. See Inthavong v. Lamarque,
. The dissent contends that Brecht no longer provides the proper standard of review for assessing prejudice, arguing instead that a writ may issue only if we determine 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.” Dissent at 706-07. The dissent’s only authority for its conclusion is Harrington v. Richter,
The dissent clearly errs in applying Richter to prejudice analysis under AEDPA. In Fry,
Furthermore, because Richter and Pinhol-ster 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,
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,
. There are also three other questionnaires out of more than 200 which were somehow located, but have no particular significance with respect to a comparative juror analysis.
. The state and the dissent both appear to presume that the only relevant comparisons in a comparative juror analysis are between the struck jurors and the jurors who are ultimately seated, but Miller-El made clear that the otherwise-similar jurors to whom the struck jurors can be compared include those "permitted to serve” by the prosecution but ultimately struck by the defense. See, e.g., Miller-El v. Dretke,
. Although the record provides somewhat less reason to conclude that the prosecution’s justifications for the strikes of the four other black and Hispanic jurors were pretextual, race may also have played a substantial role in these challenges. For example, Ayala might have been able to show that the prosecution violated Batson when it struck Hispanic juror George S. in the final round of peremptory challenges. The prosecution gave five reasons for striking George S. The first reason — that his application to be a police officer some twenty years earlier had been rejected — applied equally to seated white juror Charles C. The second reason — that he had indicated some discomfort with the death penalty — did not significantly distinguish him from a number of seated white jurors. See infra Section V.B.2. The third reason — that he had been a "holdout” on a prior jury' — could have been called into question had defense counsel been able to point out that the jury on which George S. had been a "holdout” was a civil one, that the issue in dispute had been the assessment of damages, and that unanimity was not required. The fourth reason — that he had written in his questionnaire that the parties probably would not want him to serve as a juror — overlapped entirely with the third reason, as George S. had explained that he wrote that the parties might not want him as a juror because he had been a civil jury “holdout.” The fifth and final reason — that he placed excessive emphasis on the Bible in his questionnaire — cannot be evaluated at all because the questionnaire has been lost, along with those of others whom the prosecutor might have passed.
. Other seated white jurors to whom defense counsel could have pointed in order to show to be pretextual the prosecution’s stated concern that Olanders D. would not be willing to impose the death penalty include Dorothy C., Dorothea L., Dorothy H. and Leona B. See infra Section V.B.2.
. For example, Elizabeth S., who was in all likelihood white, was seated as an alternate on a panel accepted by the prosecution— which never used its sixth and final peremptory challenge in the selection of the alternate jurors — but was later struck by the defense. Her questionnaire, which was lost, might have been particularly valuable to Ayala for comparative juror analysis if her written responses were anything like those she delivered during voir dire. Consider the following exchange between the trial court and Elizabeth S.:
Q: Did you have an opportunity to review the summary of legal issues and preliminary questions? This was a packet of material in the juror’s lounge.
A: No.
Q: You didn’t read it?
A. Not today. I read the papers that they gave me in the office.
Q. Today?
A. Yeah.
Q. Okay. That was the summary of legal issues and preliminary questions?
A. Yeah, Yeah.
Perhaps because of this and similar exchanges, she was later asked if she had a hearing problem, which she did not.
. Teague is subject to two exceptions. See Saffle v. Parks,
. The dissent suggests that, because Thompson recognized the need for "occasional departures" from the rule regarding the exclusion of defense counsel from Batson steps two and three, Thompson,
. The state and the dissent, in arguing that Ayala’s claim is barred by Teague, cite Lewis v. Lewis,
. The state and the dissent also cite a third decision that they contend demonstrates that there is a Circuit split that precludes our finding that the rule Ayala seeks was "dictated by precedent.” In Majid v. Portuondo, where the issue was whether the defense had the right to cross-examine witnesses at a Bat-son hearing, the Second Circuit remarked gratuitously that "[i]t remains at least arguable that courts holding Batson hearings may ... hear the [prosecution's] explanations in camera and outside the presence of the defendants.”
. Tucker itself may be read to recognize this point, as it did not explicitly reject our conclusion that an adversarial hearing at Batson steps two and three was sometimes constitutionally compelled. Id. at 340. It observed that, in general, "adversarial hearings are the most appropriate method for handling most Batson-type challenges.” Id. Thus, although the Tucker court purported to reject Thompson in favor of Davis, the decision did not necessarily foreclose defendants from claiming that their rights had been violated by the trial court's employment of a nonadverserial Batson proceeding.
. We also note that where, as here, the state court applied the rule in question on direct appeal, and determined it to be "almost universally recognized,” the application of Teag-ue to bar the petitioner’s claims would do little to further the doctrine’s purpose. Teag-ue is motivated by considerations of comity and finality. See Teague,
*691 continually forces the States to marshal resources in order to keep in prison defendants whose trials and appeals conformed to then existing constitutional standards. Furthermore, as we recognized in Engle v. Isaac, “[sítate courts are understandably frustrated when they faithfully apply existing constitutional law only to have a federal court discover, during a [habeas] proceeding, new constitutional commands.” [456 U.S. 107 , 128 n. 33,102 S.Ct. 1558 ,71 L.Ed.2d 783 (1982).]
Id. at 310,
. The dissent attempts to reframe the Teague analysis as follows: Thompson merely articulated the rule that defense counsel could not be excluded without "compelling” justification; it was not until after Ayala's conviction became final that courts recognized that the prosecutor’s explanation in this case (i.e., not revealing his strategy to the defense) was "not a valid reason not to follow the norm of an adversarial proceeding.” Dissent at 697.
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,
. There is one additional error our dissenting colleague makes that is not limited to the Batson context but would rewrite the law of prejudice in all habeas cases. For that reason, it deserves mention here. As we have explained supra, the well-established Brecht standard governing prejudice has not been revised or modified, and the dissent's suggestion to the contrary is without merit. See discussion supra at 672-75 & nn. 12-13.
. There does not appear to be any question that there was sufficient evidence to convict Ayala of murder. See Ayala,
. Because it is clear that Ayala’s claims would be Teague-barred if reviewed de novo, the majority should have begun and ended with this Teague analysis, rather than reach the more difficult questions regarding the standard of review under 28 U.S.C. § 2254(d).
. In all quotations, the parallel citations have been omitted.
. The dissent argued that the majority's choice of an adversarial proceeding over an in camera proceeding was contrary to the Supreme Court’s decision in Batson not to formulate particular procedures. Id. at 1262 (Sneed, J., dissenting).
. The California Supreme Court carefully considered the prosecutor's claim that his reasons for the recusals would disclose matters of strategy. It concluded that the prosecutor had “simply [given] the reasons for his challenges, reasons that defendant was entitled to hear and that disclosed no secrets of trial strategy.” Ayala, 99 Cal.Rptr.2d 532,
. As the majority notes, People v. Wheeler,
. This "alternate" approach, in addition to being incorrect, serves to obscure the majority's separation of the California Supreme Court’s determination that there was federal constitutional error from that court's determination that any error "was harmless beyond a reasonable doubt as a matter of federal law." Ayala,
. See Richter v. Hickman,
. The panel had reasoned:
It is obvious, not “theoretical” or "speculative],” that Williams's constitutional claim was not adjudicated at all, and so the Richter presumption is overcome. Id. at 785. Specifically, the portion of the court’s opinion concerning the discharge of Juror No. 6 reveals that the court upheld his dismissal on the sole basis that the trial court had not abused its discretion in applying section 1089. That the court engaged in an extended discussion of Williams's statutory claim, but made no mention whatsoever of her more fundamental constitutional claim, is a compelling "indication” that the court either overlooked or disregarded her Sixth Amendment claim entirely, rather than that it adjudicated the claim but offered no explanation at all for its decision.
Williams v. Cavazos,
. The Supreme Court specifically noted that "[i]n California, for example, the state constitutional right to be present at trial is generally coextensive with the protections of the Federal Constitution.”
. The majority states: "if we were compelled to determine whether the California Supreme Court adjudicated Ayala’s federal claim on its merits in favor of the petitioner or the state, we would hold without the slightest hesitation that it found that error occurred under federal constitutional law.” Majority at 667.
. Section 2254(d) reads in relevant part:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) 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; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
(e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
. Although the majority here engages in considerably more analysis than we did in Felk-ner, the Supreme Court's admonition remains instructive. The Court held:
The Batson issue before us turns largely on an "evaluation of credibility.”476 U.S., at 98, n. 21 ,106 S.Ct. 1712 . The trial court's determination is entitled to "great deference,” ibid., and "must be sustained unless it is clearly erroneous,” Snyder v. Louisiana,552 U.S. 472 , 477,128 S.Ct. 1203 ,170 L.Ed.2d 175 (2008).
That is the standard on direct review. On federal habeas review, AEDPA "imposes a highly deferential standard for evaluating state-court rulings” and “demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett,559 U.S. 766 ,130 S.Ct. 1855 , 1862,176 L.Ed.2d 678 , (2010) (internal quotation marks omitted). Here the trial court credited the prosecu*704 tor's race-neutral explanations, and the California Court of Appeal carefully reviewed the record at some length in upholding the trial court’s findings. The state appellate court's decision was plainly not unreasonable. There was simply no basis for the Ninth Circuit to reach the opposite conclusion, particularly in such a dismissive manner.
. The majority states:
In holding that Ayala has demonstrated his entitlement to relief under Brecht, we therefore also hold to be an unreasonable application of Chapman the California Supreme Court's conclusion that Ayala was not prejudiced by the exclusion of the defense during Batson steps two and three or by the loss of the questionnaires.
Majority at 674 n. 13.
. This approach is also consistent with the Supreme Court's opinion in Cullen v. Pinholster, - U.S. -,
. We further held that the right to a comparative juror analysis explicitly set forth in Miller-El was not Teague-barred as it "simply illustrates the means by which a petitioner can establish, and should be allowed to establish, a Batson error.” Boyd,
. The majority's cited quote from Hernandez v. New York,
. The majority also suggests that Gerardo O.'s ambivalence to the death penalty was no more pronounced than some seated white jurors. Majority at 681-82. As previously noted, the potential jurors' attitudes toward the death penalty was an important consideration for both the defense and the prosecution. The fact that the prosecutor distinguished between levels of ambivalence that the majority over twenty years later argues are indistinguishable is hardly a sign of pretext. Moreover, there is no doubt that Gerardo O.'s qualifications — professed illiteracy, distinctive dress and aloofness, and ambivalence to the death penalty — were unique.
. The majority goes so far as to fantasize that "perhaps” unbeknownst to the trial judge, Gerardo O. "had even organized a dinner for some of them at his favorite Mexican restaurant.” Majority at'681.
. The extent of the majority's speculation is illustrated by its argument that because another juror who was seated mentioned that he was aware of the capital case People v. Harris,
. I do not agree with some of the majority's characterizations of my dissent. I have set forth my reasons in this dissent and trust the reader will be able to discern the respective merits of the majority and dissent without further assistance. To the extent the majority accuses me of relying heavily on recent Supreme Court opinions such as Richter,
Dissenting Opinion
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,
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.
I
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,
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,
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,
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,
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,
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,
As the California Supreme Court pointed out, “no particular procedures are constitutionally required.” Ayala I,
II
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.”
The panel majority attempts to evade this conclusion by insisting that the rebut-table 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,
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,
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,
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,
Ill
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,
But the panel majority’s application of the Brecht prejudice standard contradicts the Supreme Court’s direction in Fry v. Pliler,
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 AED-PA/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,
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 well-reasoned and supported explanations for why “the challenged jurors were excluded for proper, race-neutral reasons.” Ayala I,
Because we would be compelled to defer to the state court under an AEEPA/Chap-man framework, we necessarily should find no Brecht prejudice. See Pliler,
IV
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,
. Wheeler presaged Batson by interpreting the California Constitution to prohibit race-based peremptory challenges. See Wade v. Terhune,
. As Williams demonstrated, this presumption is quite robust. In Williams, the California Court of Appeal had rejected a petitioner’s claim regarding the dismissal of a juror, citing only a California Supreme Court opinion, People v. Cleveland, 25 Cal.4th 466,
. A confusing aspect of the panel majority’s opinion is its observation that “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.” Am. Maj. Op. at 666 (emphases altered). The panel majority refers to this scenario as "Option 1.” Id. at 664. "Option 1” would present a very different case: Had the California Supreme Court held that the trial court committed a Batson error, and had Ayala challenged only the court's determina-lion under Chapman that such error was harmless, we would have to decide the open question of how AEDPA would apply to that type of adjudication on the merits. But the panel majority does not resolve this question, and instead makes the fatal error of holding that the California Supreme Court did not adjudicate Ayala’s federal claim on the merits, whether in favor of Ayala, see id. at 663 n. 3, 664-65 n. 4, or against him. Thus, while the panel majority discusses the "Option 1” scenario at great length, it elects instead to presume (contrary to Richter and Williams) that the state court avoided an "Option 1” scenario by deciding Ayala’s claims on state law grounds.
. Another case cited by the panel majority, Cone v. Bell,
. One particularly striking example of the panel majority’s highly speculative approach is worth mentioning here. The panel majority offers the following hypothesis regarding how Ayala’s input might have changed the trial court’s conclusion that the prosecutor's reason for challenging one of the potential jurors was a legitimate nondiscriminatoiy reason (the panel majority discusses only three of the seven):
An inference of racial bias might [] 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 manner*724 isms were distinctly Hispanic. Perhaps in the late 1980s Hispanic males in San Diego County were more likely than members of other racial or ethnic groups in the area to wear a particular style or color of shirt, and Gerardo O. was wearing such a shirt (and for this reason did not 'fit in,’ in the prosecutor's mind, with the other jurors). If so, and if defense counsel were able to bring this fact to the trial court's attention, the prosecution's explanation that it struck Gerardo O. because of his dress and mannerisms would provide compelling support for Ayala's claim that the strike was actually racially-motivated.
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.