Lead Opinion
Opinion by Judge REINHARDT; Dissent by Judge CALLAHAN.
OPINION
Stаte 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,
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 case. A finding that one of these special circumstances was true was required in order for Ayala to be eligible for the death penalty.
Jury selection began in San Diego in January, 1989. Each of the more than 200 potential jurors who responded to the summons and survived hardship screening was directed to fill out a 77-question, 17-page questionnaire. Over the next three months, the court and the parties interviewed each of the prospective jurors regarding his or her ability to follow the law, utilizing the questionnaires as starting points for their inquiry. Those jurors who had not been dismissed for cause were called back for general voir dire, at which
The defense made its first Batson motion after the prosecution challenged two black jurors. The trial court found that the defense had not yet established a prima facie case of racial discrimination, but nevertheless determined that it would require the prosecution to state its reasons for challenging the jurors in question. At the prosecutor’s insistence, and despite the defense’s objections, the court refused to let the defendant or his counsel be present at the hearing in which the prosecution set forth these reasons and the court determined whether they were legitimate.
The trial judge continued to employ this ex parte, in camera procedure to hear and consider the prosecutor’s purported reasons for challenging minority jurors following the defense’s second and third Batson motions. He did so despite his determination, by the third motion, that the defense had established a prima facie showing of racial discrimination.
Ultimately, the trial judge concluded that the prosecutor had proffered plausible race-neutral reasons for the exclusion of each of the seven minority jurors, and denied the defense’s Batson motions. Although the ex parte Batson proceedings were transcribed, this transcript — and thus, the prosecution’s proffered race-neutral reasons for striking the seven black and Hispanic jurors — were not made available to Ayala and his counsel until after the conclusion of the trial.
The jury convicted Ayala of all counts save a single attempted robbery count, and found true the special circumstance allegations. At the penalty phase, it returned a verdict of death.
Early in the process of jury selection, the trial judge had instructed the parties to return to the court all the questionnaires the prospective jurors had completed, and advised them that he would be “keeping the originals.” At some point during or following the trial, however, all questionnaires, save those of the twelve sitting jurors and five alternates, were lost. The questionnaires of four additional jurors — including the sixth alternate— were located in the defensе 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, and claimed
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.
Ayala’s petition is subject to the requirements of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See Kennedy v. Lockyer,
III.
“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 proceеdings in which the prosecution justified its strikes of the seven black or Hispanic jurors, and the trial court accepted those justifications, violated his right to the assistance of counsel and
A.
The California Supreme Court, when confronted with Ayala’s claim, concluded that the exclusion of defense from these proceedings was, in fact, erroneous. It observed that “it seems to be almost universally recognized that ex parte proceedings following a [Batson ] motion ... should not be conducted unless compelling reasons justify them.” Ayala,
Because the California Supreme Court acknowledged that the trial court might have violated Ayala’s federal constitutional rights, we do not apply § 2254(d)’s deferential standard to this aspect of the state court’s decision. See Porter v. McCollum,
Under Teague, a “new constitutional rule[ ] of criminal procedure” cannot be applied retroactively to cases on collateral review.
B.
We hold that Ayala’s claim does not require the retroactive application of a new constitutional rule of criminal procedure, and thus is not Teague-barred. At the time Ayala’s conviction became final on May 14, 2001, it was established that defense counsel must be permitted to be present and offer argument during Batson steps two and three when, as in Ayala’s case, the proceedings do not require the prosecution to reveal confidential information or trial strategy.
In this Circuit, this rule was unequivocally “dictated by precedent,” Teague,
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. “[C]ircuit court holdings suffice to create a ‘clearly established’ rule of law under Teague.” Belmontes v. Woodford,
C.
We would hold that Ayala’s claim is not Teague-barred even if we were free to conclude that,' contrary to Bell and Belmontes, Thompson did not in and of itself establish that the rule Ayala seeks is not “new.” Nearly every court to consider the question by the time Ayala’s conviction became final had adopted the rule that we set forth in Thompson, concluding that defense counsel must be allowed to participate at Batson steps two and three except when confidential or strategic reasons justify the challenge. The Fourth, Eight 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.”
Accordingly, we conclude that, at the time Ayala’s conviction became final, it was established for purposes of Teague that defense counsel cannot be excluded from Batson steps two and three absent some “compelling justification” for doing so.
IV.
Ayala also claims that the state’s loss of an overwhelming majority of the jury questionnaires deprived him of a record adequate for appeal. As the California Supreme Court recognized, Ayala has a due process right to a record sufficient to allow him а 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.
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,
V.
The California Supreme Court held that Ayala was not prejudiced by the trial court’s exclusion of the defense from 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 structur
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, however, 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.”
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 ensued, it was prejudicial in his case, especially 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, granting relief only if 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 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 suffered was the deprivation of the opportunity to develop, present, and likely prevail on his Batson claim. Had he pre
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 prosecution’s strikes of at least three, if not more, jurors: danders D., Gerardo 0. and Robert M.
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, Olanders D. later said during voir dire that he had reconsidered his views, and affirmed that he could be “personally responsible for being on a jury and actually voting for the death penalty.” Once again, Ana L. said almost precisely the same thing: she stated that she had since rethought her position, and affirmed that she could “actually vote” for the death penalty.
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
Third, we cannot know exactly what arguments defense counsel could have made to undermine the prosecution’s final reason for striking danders D. — that his questionnaire responses were “poor,” and demonstrated his inability to express himself. Because danders 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.
Thus, one of the four reasons given by the prosecution for striking this prospective juror was determined to be without merit by the trial judge; two failed to distinguish the juror whatsoever from at least one seated white juror; and the fourth and final reason the prosecution gave for striking the juror cannot be evaluated because his questionnaire was lost, as were those of the prospective white jurors struck by the defense. Given the objective reasons that we have even on this record to question the validity of the prosecution’s explanations for striking Olanders D., we simply. cannot conclude that it is likely that, if the defense had been present during the Batson proceedings and if the lost questionnaires had been preserved, Ayala
2. Gerardo 0.
Gerardo 0. was one of two Hispanic jurors the prosecution challenged during the sеcond round of peremptories. He was struck, the prosecutor explained in the subsequent ex parte proceeding, because: (1) he was “illiterate,” and had needed the questionnaire to be translated for him; (2) he “appeared not to fit in with anyone else,” was “standoffish,” with “dress and mannerisms ... not in keeping with the other jurors,” and “did not appear to be socializing or mixing with any of the other jurors”; and (3) his voir dire responses suggested that he was not sure “if he could take someone’s life,” and that he “felt a little shaky as far as his responsibilities in this case.” The trial judge concluded that the “record document[ed] the factors that were indicated” by the prosecutor and accepted his explanation.
Once again, had the defense not been excluded from the Batson proceedings, it likely could have called into question all of the prosecution’s stated reasons for striking Gerardo 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 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 0. 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 0. because of his dress and mannerisms would provide compelling support for Ayala’s claim that the strike was actually racially-motivated. See id. (“[A]n invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the [classification] bears more heavily on one race than another.”) (quoting Washington v. Davis,
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 Gerard 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 pretéxtual 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 рenalty.” 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 think so, but I don’t know until I have to do it.” Finally, Leona B., when asked by the prosecutor if having the responsibility for imposing the death penalty would “bother” her, responded, “Yes, I think so. I think — I think one should be affected ... by that. I don’t think it’s anything to be taken lightly.” Certainly, Gerardo 0. expressed less hesitancy than Ana L., who had flatly stated on her questionnaire that she “probably would not be able to vote for the death penalty” before subsequently changing her mind. Further, prospective white jurors accepted by the prosecution but struck by the defense might have expressed similar sentiments in their jury questionnaires. We cannot tell, because these questionnaires have been lost.
Thus, one of the reasons given by the prosecution for striking this prospective juror could have itself given rise to an
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 the defense, but had been accepted by the prosecution, may have made comparable statements in their questionnaires (which, again, have been lost). Counsel could have argued that most jurors who believed in imposing the death penalty would consider a decision to do so a “heavy” decision that would weigh on one’s conscience. Following counsel’s argument, the judge might well have recognized that there is indeed rarely a “heavier” decision a citizen is ever asked to undertake. Certainly, like Gerardo 0., Robert M. was no more hesitant than Ana L., who had actually at one point stated that she would be unable to impose the death penalty.
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.
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 sеated 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. Similarly, Charles C. said, “You don’t change your stripes ... when you put on a badge; and you have to judge everybody’s testimony in a court case on its face.”
Even if the trial judge had not been willing to completely reject the prosecution’s implausible explanation that it struck Robert M. because he mentioned the' Sagon Penn case, there is a strong likelihood that, had defense counsel been present and been able to persuade the court that the prosecution’s principal reason for challenging this juror — his reluctance to impose the death penalty — was pretextual, the court would hаve 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.
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. Because the defense was excluded from the Batson proceedings, and because the vast majority of the juror questionnaires were lost, 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.
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 facia case, the evidence that the prosecution’s proffered reasons were false or discriminatory, the inferences that can be drawn from the available comparative juror analysis, and the deficiencies in the record that are themselves the product of the state’s constitutional errors, it is “impossible to conclude that [Ayala’s] substantial rights were not affected” by the exclusion of defense counsel from the Batson proceedings and the loss of the juror questionnaires. Kotteakos,
VI.
Our dissenting colleague makes three assertions that are fundamental to her disagreement with our opinion. All are plainly erroneous and illustrate her misundеrstanding of the nature of our holding. First, the dissent suggests that, because the trial court accepted the prosecutor’s rationale for striking these jurors, deference to its ruling is required under AED-PA, citing Rice v. Collins,
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.
We cannot defer to the trial court where procedural error (such as the state supreme court found here) 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 only come into play once the state court’s fact-findings survive any intrinsic challenge.” Taylor v. Maddox,
Finally, although the dissent accuses us of changing the approach in “all Batson challenges,” this plainly misstates the nature of our holding. This is not a Batson challenge in the usual sense, but rather a procedural challenge to the exclusion of counsel from Batson stages two and three. Perhaps even more important, our dissenting colleague apparently fails to recall that error has been conceded by the state. The only issue here is prejudice — i.e., the effect of that error upon the petitioner’s opportunity to show the prosecutor’s bias. This could not be more different from the traditional Batson challenge, where prejudice is structural and proof of constitutional error requires reversal without any showing of prejudice. Thus, ordinary Bat-son cases are only about constitutional error and not at all about prejudice, whereas Ayala’s case is all about prejudice and not at all about the conceded error. Accordingly, what we hold here could not possibly require that “all Batson challenges in federal habeas petitions must be granted.” To put it mildly, that contention is entirely without any rational basis whatsoever.
VII.
We hold that the exclusion of defense counsel during Batson steps two and three constitutes prejudicial error. We cannot say that had counsel been permitted to participate in the Batson proceedings, and had the state not lost the vast majority of the jury questionnaires, Ayala would have beеn 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.
Notes
. The motions were technically made under People v. Wheeler,
. Because we conclude that Ayala is entitled to relief on his Batson-related claims, we need not decide whether the district court erred in rejecting his Vienna Convention claim.
. We do, however, accord AEDPA deference to the state court’s reason for ultimately denying Ayala's appeal: that he had not been prejudiced by the trial court’s error. We also agree with the state’s contention that AEDPA bars Ayala's argument that the exclusion of defense counsel from steps two and three of the Batson proceedings was structural error. See infra Part V.
. Teague is subject to two exceptions. See Saffle v. Paries,
. The dissent suggests that, because Thompson declined to adopt an absolute rule regarding the exclusion of defense counsel from Batson steps two and three, its conclusion was "not ... a binding rule” and "clearly advisory.” Dissent at 976. We are puzzled by this, almost as much as we are by the dissent’s suggestion that because Thompson was not unanimous it does not have binding effect and we should follow Judge Sneed’s dissent. In any event, many constitutional rules recognize exceptions — e.g., the exigency exception to the Fourth Amendment prohibition on warrantless searches — but that does not make the rules any less binding.
. 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 "dictat
. 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 their rights had been violated by the trial court's employment of a nonadverserial Bat-son 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 Teague to bar the petitioner’s claims would do little to further the doctrine’s purpose. Teague is motivated by considerations of comity and finality. See Teague,
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, "[s]tate 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 977.
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,
. 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 982. 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 decisión, the opinion simply restates the rule set forth 18 years prior 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 cоntrary 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 981. The dissent’s only authority for its conclusion is Harrington v. Richter, - U.S. -,
At the same time that the dissent accuses us of "extending each supporting argument just slightly beyond its limitations,” Dissent at 974, the dissent does far worse in applying Harrington to prejudice analysis under AED-PA. In Fry v. Pliler,
Additionally, in the eighteen months since Hanington was handed down, we have repeatedly applied the “unrefined” Brecht test to assess prejudice in habeas cases. E.g., Merolillo v. Yates,
. There are also three other questionnaires out оf 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 prior had been rejected — applied equally to seated white juror Charles C. The second reason — that he had indicated some discomfort with the death
. 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.
. 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 Pages 961-63 & n. 15.
Dissenting Opinion
dissenting:
In 1985, Hector Juan Ayala shot and killed three men. In 1989, he was convicted on three counts of murder, and the jury returned a verdict of death. 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 cannot tell whether the prosecutor in recusing seven jurors might have had a ra
I
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 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 had not been established as a constitutional violation, and hence, was barred by Teague v. Lane,
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
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,
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,
Thompson concerned a 1985 criminal trial in a federal district court. The judge alone conducted voir dire and “the government used four of its peremptory challenges to exclude all four blacks in the venire.” Id. at 1256. When “Thompson’s lawyer moved for a mistrial,” the district court “allowed the government to put its reasons for the disputed peremptory challenges on the record, albeit in camera and out of the presence of the defendant and his lawyer.” Id. Thompson appealed arguing that this procedure violated his Fifth Amendment right to due process and his Sixth Amendment right to a fair and impartial jury. Id. We concluded that the “district court erred in refusing to allow defense counsel in this case to hear the government’s reasons for excluding the black potential jurors and to present argument thereon.” Id. at 1261. We explained that “situations where the court acts with the benefit of only one side’s presentation are uneasy compromises with some overriding necessity, such as the need to act
Although the logic behind the opinion in Thompson may be compelling, the opinion nonetheless does not dictate a constitutional standard. It concerned a federal court trial, not a state court trial.
The cautionary, rather than binding, nature of Thompson 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 comments on the grounds that they are not well-reasoned, in some instances are merely dicta, and have been
Furthermore, the rule that the majority claims was established 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 p. 957. Here, the prosecutor offered an explanation for seeking to present his reasons in camera; he did not want to reveal his strategy to the defense. Following Thompson and the other cases cited by the majority, it is now clear that this is not a valid reason not to follow the norm of an adversarial proceeding.
In sum, I agree with the district court that the right to be present and have counsel present when the prosecution presented its reasons for its challenged recusals was not “dictated by precedent” when Ayala’s conviction was final, and therefore that the issue is Teague-barred.
II
Assuming that the issue is not Teaguebarred, I agree with the majority (and the California Supreme Court) that the exclusion of the defense from the Batson proceedings was error, and that it was not structural error. See Majority at pp. 959-GO. However, we again part company when determining the appropriate standard of review. The majority reads our recent cases to allow it to pose the question as “[if] we cannot say that the exclusion of defense counsel and the loss of the questionnaires likely did not prevent Ayala from prevailing on his Batson claim, then we must grant the writ.” See Majority at p. 963. However, pursuant to controlling Supreme Court opinions, we can grant relief only if, at a minimum, the California Supreme Court’s harmlessness determination was objectively unreasonable.
In Brecht v. Abrahamson,
The imbalance of the costs and benefits of applying the Chapman harmless-error standard on collateral review counsels in favor of applying a less onerous standard on habeas review of constitutional error. The Kotteakos standard, we believe, fills the bill. The test under Kotteakos is whether the error “had substantial and injurious effect or influence in determining the jury’s verdict.”328 U.S. at 776 [66 S.Ct. 1239 ]. Under this standard, habeas petitioners may obtain plenary review of their constitutional claims, but they are not entitled to habeas relief based on trial error unless they can establish that it resulted in “actual prejudice.” See United States v. Lane,474 U.S. 438 , 449 [106 S.Ct. 725 ,88 L.Ed.2d 814 ] (1986).
Id. at 637,
Fry challenged his murder conviction on the grounds that the state trial court exclusion of a person’s testimony deprived him of constitutional due process. Id. at 115,
In its opinion in Fry, the Supreme Court reconciled the Brecht standard with AED-PA. The Court explained:
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. 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 AED-PA/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 (AEDPA/Chapman and Brecht) when the latter obviously subsumes the former. Accordingly, the Ninth Circuit was correct to apply the Brecht standard of review in assessing the prejudicial impact of federal constitutional error in a state-court criminal trial.
Fry,
Three aspects of the Supreme Court’s explanation are particularly important. First, the Court endorsed its opinion in
in § 2254 proceedings a court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the “substantial and injurious effect” standard set forth in Brecht, supra, whether or not the state appellate court recognized the error and reviewed it for harmlessness under the “harmless beyond a reasonable doubt” standard set forth in Chapman,386 U.S. 18 [87 S.Ct. 824 ].
Despite the relatively clear language in Fry, the majority, citing our decisions in Pulido v. Chrones,
Our opinion in Pulido does not support the majority’s approach. The majority cites a single clause out of context: we “apply the Brecht test without regard for the state court’s harmlessness determination.” Majority at p. 961 (quoting Pulido,
In Fry v. Pliler,551 U.S. 112 ,127 S.Ct. 2321 ,168 L.Ed.2d 16 (2007), the Supreme Court clarified that the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) did not replace the traditional test for prejudice on collateral review — i.e., whether the error “had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht,507 U.S. at 623 ,113 S.Ct. 1710 . Moreover, Fry explained that we need not conduct an analysis under AEDPA of whether the state court’s harmlessness determination on direct review— which is governed by the “harmless beyond a reasonable doubt” test set forth in Chapman v. California,386 U.S. 18 , 24,87 S.Ct. 824 ,17 L.Ed.2d 705 (1967)— was contrary to or an unreasonable application of clearly established federal law. Fry,551 U.S. at 119-20 ,127 S.Ct. 2321 (citing 28 U.S.C. § 2254(d)(1)). This is because the Brecht test “obviously subsumes” the “more liberal AED-PA/Chapman standard which requiresonly that the state court’s harmless-beyond-a-reasonable-doubt determination be unreasonable.” Id. at 120, 127 S.Ct. 2321 . Accordingly, we apply the Brecht test without regard for the state court’s harmlessness determination.FN3 See id. at 121-22,127 S.Ct. 2321 .
FN3. It follows that we apply Brecht “whether or not the state appellate court recognized the error and reviewed it for harmlessness” under Chapman. Fry,551 U.S. at 121-22 ,127 S.Ct. 2321 .
Merolillo is arguably more ambiguous. The opinion first recognizes that we 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.”
Merolillo goes on to cite Fry and Pulido, and in light of these cases held that:
the Brecht “substantial and injurious effect” standard governs our harmless error review in this case. For the reasons discussed below, we conclude that under the Brecht standard, Merolillo is entitled to habeas relief. We further conclude that even if Merolillo were also inquired to satisfy the AEDPAJChapman standard, he would, as the state court’s determination that the error was harmless beyond a reasonable doubt was an objectively unreasonable application of Chapman.
The arguable tension between the “grave doubt as to the harmlessness of an error” and AEDPA was relieved by the Supreme Court in Harrington v. Richter, — U.S. -,
The Court of Appeals appears to have treated the unreasonableness question as a test of its confidence in the result it would reach under de novo review: Because the Court of Appeals had little doubt that Richter’s Strickland claim had merit, the Court of Appeals concluded the state court must have been unreasonable in rejecting it. This analysis overlooks arguments that would otherwise justify the state court’s result and ignores further limitations of § 2254(d), including its requirement that the state court’s decision be evaluated according, to the precedents of this Court. See Renico v. Lett, 559 U.S. —,130 S.Ct. 1855 ,176 L.Ed.2d 678 (2010). It bears repeating that even a strong case for relief does not mean the state court’s contrary conclusion was unreasonable. See Lockyer [v. Andrade ], [538 U.S. 63 ] at 75 [123 S.Ct. 1166 ,155 L.Ed.2d 144 (2003) ].
If this standard is difficult to meet, that is because it was meant to be. As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651 , 664,116 S.Ct. 2333 ,135 L.Ed.2d 827 (1996) (discussing AEDPA’s “modified res judicata rule” under § 2244). It preserves authority to issue the writ in cases where there is no possibility fair-minded jurists could disagree that the state court’s decision conflicts with this Court’s precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a “guard against extreme malfunctions in the state criminal justice systems,” not a substitute for ordinary error correction through appeal. Jackson v. Virginia,443 U.S. 307 , 332, n. 5,99 S.Ct. 2781 ,61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.
In reiterating that a writ may issue only where there is no possibility that fairminded jurists could agree with the state court’s decision, the Supreme Court refined the “grave doubt” standard set forth in Brecht. A federal court cannot have “grave doubt” as to harmlessness if a fair-minded jurist could agree on the correctness of the state court’s decision. See Harrington,
Accordingly, pursuant to Supreme Court precedent, 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 p. 963. Rather, 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. This is the essence of the Supreme Court’s holdings and we should accept it as such. See, e.g., Harrington,
Ill
The application of the fairminded jurist standard requires deference to the California Supreme Court’s opinion.
A. The Loss of Certain Prospective Jurors’ Questionnaires.
The majority stresses the “loss of an overwhelming majority of the jury questionnaires” in concluding that this “increased the prejudice that Ayala suffered as a result of the exclusion of defense counsel.” Majority at pp. 958, 959. However, Ayala has not shown either that the loss of certain prospective jurors’ questionnaires violated his constitutional rights or that the loss prejudiced him.
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 the panel’s treatment of a state 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,
Recently, 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,” Jackson v. Felkner,[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 (parallel citation omitted). The majority 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. Thus, under controlling Supreme Court and Ninth Circuit case law, 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.
In the absence of any authority holding that the lost jurors’ questionnaires inherently deprives a reviewing court of a sufficient record to evaluate a Batson claim, the issue becomes whether Ayala has shown that the lack of the questionnaires in his case renders thе record insufficient. He fails in this task for several reasons.
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 importance of the missing juror questionnaires is questionable. The questionnaires of the 70 or so jurors who were never called have little relevance. The questionnaires of those jurors who were called and then excused would be relevant only if there was some showing that the jurors were excused due to constitutionally forbidden reasons. However, Ayala has not offered any specific allegations concerning the missing questionnaires.
Third, none of the prosecutor’s stated reasons for recusing the questioned jurors relied solely 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 he found the individual’s oral responses troubling.
Finally, Ayala has been able to present 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.
It follows that the next question 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. The majority only discusses three of the jurors in its opinion, but a review of the prosecutor’s reasons for excusing each of the seven jurors shоws that the California Supreme Court’s determination that “the challenged jurors were excluded for proper, race-neutral reasons,” was reasonable. See Ayala,
1. Olanders D.
Olanders D.’s recusal was one of the first 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 demonstrateda 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.”
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. Second, the majority asserts that its review of the voir dire transcript shows that “Olanders D.’s answers were responsive and complete.” It further asserts that the responses of a seated white juror, Ana L., were just as unresponsive. Third, the majority argues that because Olanders D.’s questionnaire was lost, they “cannot know exactly what arguments defense counsel could have made to undermine” the prosecutor’s claim that Olanders D.’s questionnaire responses were poor. See Majority at p. 985. The majority concludes that none of the reasons proffered by the prosecutor should be sustained because one was rejected by the trial judge, “two failed to distinguish the juror whatsoever from at least one seated white juror,” and the fourth cannot be evaluated because his questionnaire was lost. Majority at pp. 985-86.
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 Harrington,
There is no suggestion that any seated juror raised a similar set of concerns as Olanders D. The trial judge, who had the opportunity to observe Olanders D., agreed with the prosecutor that Olanders D. was ambivalent about the death penalty, had not been responsive on his questionnaire, and lacked the ability to express himself clearly. Moreover, the trial judge
The majority’s expressed concerns about Olanders D.’s recusal are far from compelling. It is hardly surprising that a number of potential jurors expressed ambivalence about the death penalty. The fact that a prosecutor is more concerned with one potential juror’s ambivalence than another is not necessarily a sign of racial prejudice. Similarly, the fact that the majority in reviewing the voir dire transcripts thinks that a seated juror’s responsеs were no more responsive than Olanders D.’s is really of little moment. As noted, the trial judge — who heard Olanders D.’s voir dire — agreed with the prosecutor that he “demonstrated a lack of ability to express himself well.” The majority’s supposition that Olanders D.’s questionnaire responses may not have been “poor” is not clear or convineing evidence of anything. At most, the majority’s arguments and assumptions may suggest that the prosecutor’s evaluation of Olanders D. was not compelled, but none of them really question the sincerity of the prosecutor’s reasons or suggest a likelihood of some unstated improper motive.
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 observedthat 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 Hovey 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 O. stated that he was illiterate, or that he needed someone to fill out his questionnaire, or that he dressed differently, or that he did not mix with the other jurors. See Majority at pp. 966-68. Instead, the majority speculates that Ayala’s- lawyer might have shown that (1) despite his own cоmments, Gerardo 0. was not illiterate, or that (2) Geraldo 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 MJ 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 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 spec
4. The Other Jurors
The majority does not mention the other four minority jurors who were excused. 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. The prosecutor noted that George S. (a) had been a holdout juror on a prior jury, (b) was equivocal on the death penalty, (c) had been rejected as a police officer candidate, and (d) placed undue emphasis on the Bible. 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 оral answers were incomplete and non-responsive.
A review of the prosecutor’s reasons for excusing these jurors shows that, as with the three jurors mentioned by the majority, the prosecution team offered individualized reasons for each recusal. There is no blatant racism, no reference to stereotypes — veiled or otherwise, and no discern-able pattern of discrimination.
Nonetheless, the four recusals are susceptible to the type of speculative challenges that the majority hurls at the recusals of Olanders D., Gerardo O., and Robert M. Other jurors expressed ambivalence and equivalence about the death penalty. Other jurors offered slow or incomplete responses. 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 reversing the Ninth Circuit, recently 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. Felkner v. Jackson, — U.S. -,
Perhaps the California Supreme Court was not compelled to conclude that “the
. See Massachusetts Delivery Ass’n v. Coakley,
. Contrary to the majority's suggestion, it was the absolute nature of our holding in Menefield, not the fact that the reasoning in Menefield was based on Supreme Court cases concerning constitutional rights, thаt commanded our adherence to Menefield’s holding in Bell v. Hill,
. The California Supreme Court carefully considered the prosecutor's claim that his reasons 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,
. In contrast to the standard set forth in the body of its opinion, the majority in footnote 11 recognizes that "[i]n 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.” I agree with this approach but not its conclusion. In order to reach the conclusion that the California Supreme Court’s determination that the constitutional violation was harmless, we must follow the Supreme Court’s opinion in Esparza, as cited in Fry,
. 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 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,
The racial animus behind the prosecutor’s strike is clear. When he was asked to explain why he used a peremptory challenge to eliminate Rindels, he answered using blatant racial and cultural stereotypes.
Id. at 357. Here, in contrast, all the majority can do is suggest that other jurors, like Olanders D., were uncomfortable with the death penalty, failed to offer thoughtful answers, and did not communicate well. But even if the prosecutor's perceptions about Olanders D. were incorrect or not unique, that fact would not be such compelling evidence of pretext as to justify a failure to defer to the California Supreme Court's reasoned determination that the jurors were excused for proper, race-neutral reasons. Ayala,
. 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 p. 968. 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 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 the characterizations of my dissent set forth in Section VI of the opinion. I have set forth my reasons in this dissent and trust that the reader will be able to discern the respective merits of the majority and dissent without further assistance. To the extent Section VI curtails the potential scope of the opinion, that, in my opinion, improves the disposition.