Hector Ayala v. Robert Wong

сircumstances of multiple murder and REINHARDT, Circuit Judge: murder attempted the commission of State prisoner Hector Juan Ayala (“Aya- robberies applicable were in his A case. la”) appeals the denial of his petition for a finding that one of these special circum- writ of corpus. habeas During the selec- stances was true required in order for tion of the jury that Ayala convicted and Ayala to be eligible for the death penalty. sentenced him to death, the prosecution Jury selection began used its in San peremptory Diego in challenges to strike January, 1989. all of of the Each the black and more Hispanic than jurors avail- potential jurors able for who challenge. responded The trial the sum- judge con- mons cluded that and Ayala survived hardship had established a screening was prima facie case directed of to fill racial out a 77-question, discrimination under 17-page Batson questionnaire. v. Kentucky, 476 Over the next three 1712, 90 months, L.Ed.2d 69 (1986), the but permitted court and the parties inter- prosecution the to give justifications its viewed each of the prospective for jurors re- the challenges of jurors these garding his or an in her ability to law, follow the camera hearing from which utilizing and questionnaires the as starting counsel were excluded. The points trial judge for their inquiry. jurors Those who then accepted the prosecution’s justifica- had not been dismissed for cause were tions for its strikes without disclosing them called back for general dire, voir at which rea- purported prosecutor’s consider questioned were jurors of groups smaller follow- minority jurors challenging sons defense. and prosecution both Batson third second the defense’s group remaining winnowed parties his determina- despite so He did alter- six motions. jurors seated twelve down motion, third tion, by the chal- peremptory of use through nates of showing facie prima twenty established had allotted side Each lenges. could discrimination. racial which challenges peremptory then jurors twelve any concluded upon used trial Ultimately, After jury. serve plausible proffered positioned selected, finally were seated exclusion twelve reasons race-neutral six additional allotted were parties jurors, minority both seven each in the used to be challenges Al- peremptory motions. Batson defense’s denied alternates. proceedings selection parte ex though chal- peremptory seven transcript employed transcribed, —and were seated the of selection the used it race-neu- lenges proffered thus, prosecution’s the Hispanic or black each dismiss to jurors black seven the striking for reasons tral available was who juror prospective avail- made jurors Hispanic and —were that jury a resulting challenge, after until his counsel and Ayala able ethnic of these members any of devoid trial. of the conclusion the His- Ayala, who response, In groups. all counts of Ayala jury convicted The pur- motions separate three brought panic, count, and robbery attempted single save 79, Kentucky, 476 U.S. v. Batson suant allega- circumstance special the true found (1986), 69 L.Ed.2d 1712, 90 106 S.Ct. it returned phase, penalty theAt tions. system- prosecution the that claiming death. of verdict the jurors minority excluding atically selection, jury of process in the Early race.1 basis parties the had instructed judge trial the mo- Batson its first made defense The question- the all court the to return challenged two prosecution the after tion complet- had jurors prospective the naires that found trial court The jurors. black he would them advised ed, and pri- established yet defense the point some At originals.” the “keeping discrimination, but racial case facie ma however, all trial, following the during or re- would determined nevertheless twelve of the those save questionnaires, its reasons to state prosecution the quire alternates, were five and jurors sitting At question. jurors challenging additional four questionnaires The lost. insistence, despite and prosecutor’s alternate— sixth including — refused the court objections, defense’s files, counsel’s in the located were be present counsel his or let defendant questionnaires 193 remaining set in which hearing at the located. been never deter- and reasons these forth conviction, legitimate. they were appeal direct whether On mined ex use of court’s trial challenged this employ continued judge trial claimed and proceedings, Batson parte and to hear procedure in camera parte, ex motions, pro- Ayala's characterize under technically made were motions 1. The followed, being pursuant 258, ceedings that Cal. Wheeler, 148 Cal.3d 22 People v. F.3d Ayers, v. (1978), Crittenden California Batson. P.2d Rptr. Cir.2010). (9th mo Wheeler “a Because Batson. analogue to objection,” Batson implicit as an serves tion jury law, questionnaires clearly the loss established Federal as deter- him of his to a right meaningful deprived mined Court of the United denial of his motion. appeal States;” of the “based on unreasonable A up divided California Court light determination of the facts in People conviction sentence. held his presented pro- evidence in the State court Ayala, Cal.Rptr.2d Cal.4th 2254(d). ceeding.” § 28 U.S.C. (2000). 532, 6 majority P.3d 193 held III. the trial had erred in conduct Id., proceedings parte. the Batson ex century, “For more than a [the Cal.Rptr.2d 6 P.3d at 204. It went Supreme] consistently repeated hold, however, any on to error was ly has reaffirmed that racial discrimination beyond harmless a reasonable doubt. in jury the State selection offends ques It also concluded that the loss of the Equal Georgia Protection Clause.” beyond tionnaires was harmless reason 42, 44, McCollum, 505 U.S. 112 S.Ct. Id., Cal.Rptr.2d able doubt. 6 P.3d (1992). 120 L.Ed.2d 33 Batson v. Ken dissent, at 208. George, Chief Justice tucky, joined Kennard, by Justiсe expressed his (1986), L.Ed.2d 69 established the three- disagreement majority’s “unprec step inquiry used to determine whether edented conclusion that the erroneous ex guarantee basic' constitutional has por clusion the defense from a crucial First, been violated. the defendant must jury tion selection proceedings be prima make a showing pros facie that the Id., deemed harmless.” Cal.Rptr.2d ecution peremptory has exercised chal 532, C.J., 6 P.3d (George, at 221 dissent lenges in racially discriminatory a manner. Ayala’s ing). petition for certiorari was de 96, Id. at showing 106 S.Ct. 1712. Such a nied United States made, can as the trial concluded 14, May on Ayala 2001. v. California, 532 case, in Ayala’s it was prosecu where the 1029, 1978, 149 L.Ed.2d 770 engaged pattern tion has in a of strikes (2001). against particular of a race. Id. at Ayala timely filed his pe- federal habeas 97, Second, 106 S.Ct. 1712. once the de relief, tition. The district court denied prima fendant a showing, has made facie Appealability issued Certificate of as to “the shifts to burden the State eomé Ayala’s Batson-related claims and his forward explanation with neutral for claim that the state had violated his Vien- jurors. challenging” Third, na Convention right notifica- consular whether, trial court must then determine Ayala tion.2 appeals. now taking prosecutor’s into consideration the conduct, explanations for his “the defen II. dant has purposeful established discrimi Ayala’s petition subject require- 98, 106 nation.” Id. at S.Ct. 1712. ments of the Antiterrorism and Effective Ayala contends exclusion of the (AEDPA). Death Penalty Act of 1996 defense proceedings from the in which the Kennedy 1041, v. Lockyer, 379 F.3d (9th Cir.2004). prosecution justified its strikes of may grant only We the sev- relief if jurors, en Hispanic last black or state court decision the trial on merits to, of Ayala’s “contrary claim court justifications, those accepted violated of, involved an unreasonable application right his to the assistance of counsel and Because we conclude that is entitled not whether the district decide court erred in claims, relief rejecting on his Batson-related we need his Vienna Convention claim. (2009) (reviewing de novo L.Ed.2d 398 and to present be personally right his con- him counsel had been defense, petitioner’s prevented whether in his assist did because state court stitutionally deficient ensuring that the jury right to a only petitioner fundamental decided violate his discrimination. deficiency); from racial by any free Panetti v. chosen prejudiced that, only in these Here, 930, hold we need Quarterman, 127 S.Ct. 551 U.S. circumstances, the exclusion (2007).3 L.Ed.2d 662 Section and three during steps two counsel 2254(d) is, however, far from the ob- the Constitution. violated petitioner must overcome stacle habeas a federal court consider order A. deprived claim that he was merits his Court, when California Here, rights. constitutional claim, concluded Ayala’s confronted asserts, agreed, and the district court stаte from these of defense the exclusion Ayala’s by Teague is barred claim It fact, was, erroneous. proceedings Lane, 489 U.S. uni to be almost that “it seems observed (1989). per- addition to “[I]n L.Ed.2d 334 proceed parte ex versally recognized that AEDPA, any analysis forming required ... following a motion [Batson ] ings considering peti- a habeas federal compelling unless not be conducted should Teague anal- tion a threshold must conduct Ayala, 99 Cal. them.” justify reasons properly issue is raised ysis when the Although such 6 P.3d at 203. Rptr.2d Banks, Horn v. the state.” if the might exist reasons” “compelling L.Ed.2d 301 strikes justifications its prosecution’s (2002). “strategic informa require divulge toit a “new Teague, constitution Under mat that “no tion,” determined the Court procedure” cannot be al of criminal rule[ ] revealed” dur strategy were of trial ters collateral retroactively to cases on Ayala’s applied proceedings ing the Batson 310, at 109 S.Ct. 1060 532, 6 P.3d at review. 489 U.S. Id., Cal.Rptr.2d 99 case. “[bjefore concluded, Thus, state opinion). a Accordingly, (plurality the Court 202-03. excluding Aya or may upset had erred in his state conviction the trial court prisoner review, proceed from these he counsel collateral la and his sentence on federal law, of state matter ings certainly as a matter threshold must demonstrate — of federal as a matter perhaps also seeks rule of which he the court-made that ” 532, Id., Cal.Rptr.2d law. ‘new,’ constitutional but had been the benefit at 204. 6 P.3d be the time his conviction established at Netherland, 521 v. came final. O’Dell Supreme Court the California Because 1969, 138 L.Ed.2d 351 151, 156, 117 S.Ct. might that the trial court acknowledged (1997). rule’ holding “A constitutes ‘new constitutional Ayala’s violated federal Teague if it ‘breaks meaning of within the 2254(d)’s § defer- apply do not rights, we ‘imposes obligation a new ground,’ new the state aspect to this ential standard Government,’ or the McCollum, States Federal Porter v. court’s decision. existing at 30, 447, 452, by precedent was not ‘dictated S.Ct. 558 U.S. argument exclusion of however, do, Ayala's deference bars accord AEDPA 3. We deny- ultimately steps two and three of reason for defense counsel to the state court’s been he had not Ayala's appeal: structural error. proceedings was the Batson We also court’s error. prejudiced the trial V. Part See infra that AEDPA contention agree with the state’s the time the defendant’s conviction became nized some circumstances there ” Collins, 461, final.’ Graham 506 U.S. might “compelling” be reasons to conduct 467, 892, S.Ct. L.Ed.2d 260 proceedings parte. ex Id. at 1258-59. 301, 109 (quoting Teague, 489 U.S. at S.Ct. adopt We therefore declined to an absolute 1060).4 holding rule always the defense must permitted be to participate steps at Batson B. held, however, two and three. We Ayala’s We hold that claim does not counsel must be permitted be require the application retroactive of a new present argument and offer during Batson constitutional rule of criminal procedure, steps two and prosecution’s three if the Teague-barred. and thus is not At the proffered race-neutral reason do not in- Ayala’s time conviction became final on volve or strategic confidential information. 14, 2001, May it was established that de- 1258-59.5 fense counsel must permitted to be present argument and offer during Batson Our decision in Thompson repre when, steps two and three as in Ayala’s straightforward sented the application of case, proceedings require do not two lines of Supreme Court precedent. reveal confidential informa- The of precedent first line finds its source tion strategy. or trial in the guarantee Sixth Amendment’s right to counsel. plain Because “the word Circuit, In this this rule was un ing of’ the Amendment “encompasses equivocally by precedent,” “dictated Teag counsel’s assistance whenever necessary ue, 301, 489 U.S. at 109 S.Ct. long ” ‘defence,’ assure a meaningful the Court Ayala’s final, before conviction became has long held that right applies all having been established United States v. stages “critical” proceedings. criminal (9th Cir.1987). Thompson, 827 F.2d 1254 Wade, United States 388 U.S. 224- In Thompson, we held that district court (1967); 18 L.Ed.2d 1149 had constitutionally when, erred after the also, e.g., see v. Maryland, White defendant had 373 U.S. prima established facie Batson, case under permitted L.Ed.2d (1963); prosecution to Gideon v. Wainwright, state the reasons for its 335, 345, peremptory strikes parte. ex Observing 9 L.Ed.2d 799 (1963). step Batson might two Ultimately, sometimes re the right to counsel quire to “reveal confidential “has been accorded ... ‘not for its own matters of strategy,” sake, tactics and recog- we but because of the effect it has on Teague subject 4. exceptions. is to two the exclusion of defense counsel Paries, 484, 494-95, v. 494 U.S. three, steps Saffle Batson two its conclusion (1990) (a S.Ct. 108 L.Ed.2d 415 "new was "not ... a binding "clearly rule” and applied rule” can retroactively be on collater- advisory.” puzzled Dissent at 976. We are al places review "the rule private if a class of this, by almost as we much as are beyond power conduct of the State to suggestion dissent’s Thompson that because " proscribe,” or if it constitutes a 'watershed was not it binding unanimous does not have procedure’ of implicating rule[] criminal effect and we Judge should follow Sneed’s accuracy fundamental fairness and of event, any In many dissent. constitutional proceeding”) (quoting criminal Teague, 489 recognize rules exceptions e.g., exigency 1060). — U.S. at party 109 S.Ct. Neither exception prohibi- to the Fourth Amendment exception contends applicable that either is tion on warrantless searches —but that does this case. any binding. not make the rules less that, 5. suggests Thomp- dissent because adopt son declined to an regard- absolute rule S.Ct; Dretke, 1712; fair see Miller-El to receive ability of the accused ” 231, 240, Taylor, 535 U.S. 125 S.Ct. Mickens v. 545 U.S. trial.’ 1237, 152 (2005). 166, 122 L.Ed.2d S.Ct. L.Ed.2d Cronic, 466 U.S. States (quoting United recognized that Thompson, In L.Ed.2d 657 648, 658, 104 S.Ct. leaves defense counsel Batson framework (1984)). among the attributes Foremost functions” that must be “two crucial with it be requirement is the a fair trial perform. F.2d at 1260. to permitted premise very “[t]he in nature: adversarial “to out to the point The first function is adversary justice system of our criminal government’s where the district of a advocacy on both sides partisan is that Id. may indicate bad faith.” stated reason objec the ultimate promote will best case explained: As we convicted and the guilty be tive that the York, Herring v. New go free.” innocent government For counsel here example, 853, 862, 422 U.S. because he excluded one (1975). right “The L.Ed.2d 593 neighborhood in defendant’s lived of counsel is thus the effective assistance jeans wore to court. This seems like prose require of the accused to right reason, legitimate unless a nonexcluded the crucible of case survive cution’s juror jeans wore or other also casual Cronic, testing.” adversarial meaningful dress, neighborhood in the same lived 656, 104 2039. As we counsel [DJefense as the defendant.... of a right Thompson, “[t]he observed point able to might have been out adversary pro defendant to criminal pretextual stated reasons were be- system our fundamental ceeding is similarly al- situated were cause others are justice,” parte proceedings and thus ex addition, lowed to serve. compromises “uneasy justifiable might argue counsel have been able overriding necessity.” 827 F.2d some prose- advanced that the reasons at 1258. legally improper.... Of cution were case in the second Batson the seminal course, judge might the district be able setting After out precedent. line some of deficiencies to detect these used to determine three-stage framework ' himself, his normal role but that engaged in prosecution has whether the system justice. our under in the se- racial discrimination purposeful de- jury, the Batson Court lection of a “preserve function is Id. The second procedures particular clined “to formulate record, possible crucial appeal, timely upon followed a defendant’s bearing judge’s decision.” facts challenges.” objection prosecutor’s Thompson: at 1261. As we reasoned 476 U.S. at concerning before us All we have clear, however, that the defendant made of prosecutor’s explanation issue is persuasion. ultimate burden bears judge’s rul- her reasons and the district 98, Batson also 106 S.Ct. 1712. Id. district .... we are review the [I]f must consider “all clear that a court made decision, we cannot affirm sim- judge’s deciding wheth- circumstances” relevant he must ply because we are confident has met burden er a defendant doing. can what he was We have known inquiry requires de- persuasion —an when the record only serve our function stated prosecutor’s termining whether facts, or when as the relevant clear juror are striking particular reasons any fails to out point counsel defense race-neutral, race-neutral, and, if whether 96-99, learning prosecu- such facts after Id. at they are his actual reasons. 954 tor’s Here, reasons.... the record’s si- this Circuit when a petitioner’s conviction

lence cannot be reassuring. final, became it is not a “new rule” under Thus, held, Teague. we See Belmontes, presence 350 884; F.3d and assistance of Bell Hill, v. defense counsel 190 1089, can F.3d (9th 1092-93 trial Cir.1999). and subsequent “This is appellate true even [if] other judges properly evaluate federal whether courts the de- and state courts have reject- fense has met its burden of our persuasion ed holding.” Bell, 190 F.3d at 1093. under Batson. Excluding the Because Thompson itself relied on the Su- from the Batson proceedings preme without some Court’s right to counsel equal compelling justification protection therefore violates jurisprudence, “we cannot now the Constitution. Id. at 1259-61.6 say that a state court would not have felt compelled by the Constitution and Su- Thompsoncompels us to conclude preme Court precedent” the rule Ayala not, seeks is conclude that under the rule Teague, Ayala a “new” contends one. must “[C]ircuit be applied was not holdings suffice to established at create a ‘clearly time his estab convic- lished’ tion rule of became law final. Id. Teague.” under Bel montes v. Woodford, 861, (9th 350 F.3d 884 C. Cir.2003) (reversed on other grounds by Brown v. Belmontes, We 945, would U.S. hold Ayala’s claim is not Teague-barred L.Ed.2d (2005)); even see if we were free to Williams v. Taylor, that,' conclude contrary to Bell and Bel- (2000) (O’Con montes, L.Ed.2d 389 Thompson did not in itself nor, J., Court) (“With caveat, one establish that the rule seeks is not whatever qualify would as an old “new.” rule un Nearly every court to consider the der our Teague jurisprudence question will consti the time Ayala’s conviction tute ‘clearly established law, Federal became final had adopted the rule that we determined the Supreme Court set forth in Thompson, concluding that United States’ § 2254(d)(1).... under defense counsel must be allowed partici- caveat, one as the statutory pate language at Batson steps two and three except clear, makes is that 2254(d)(1) § restricts when confidential or strategic jus- reasons the source of clearly established law to this tify the challenge. Fourth, Eight and Court’s jurisprudence.”). We have held Eleventh Circuits had all so held. See that, as long as a rule derived from Su United v. Garrison, States F.2d preme Court precedent was (4th established in 106 Cir.1988) (“We ... agree with the 6. The dissent, state and the in arguing that for review” in Lewis. Barapind Enomoto, v. Ayala’s claim is barred Teague, cite Lewis (9th F.3d Cir.2005) 750-51 (en banc) Lewis, (9th 321 F.3d Cir.2003), a case (per curiam). Indeed, passage could not granted which petitioner's habeas represent anything dicta, as the Lewis Batson claim. In the course some extend- panel could not overrule our prior decision in ed musings regarding the procedures “ideal Thompson, of whiсh it was apparently un- Batson,” under observed, id. at panel Lewis aware. See Gammie, Miller 335 F.3d footnote, in a argument (9th 899-900 Cir.2003) (en banc) (holding that “a court must allow defense counsel to prior 'that a panel’s may only decision argue” at step three was “clearly overruled a subsequent panel if the deci- law,” established "appears as it not to have sion is "clearly irreconcilable” with a higher been addressed courts.” Id. at 831 n. 27. court’s intervening ruling). Thompson’s This passage dicta, hold- as the question of ing thus unquestionably binding whether remains Cir- counsel permitted must be cuit law. argue at step three “presented was not

955 prosecutor that the has struck rights facie case important the that Ninth Circuit To jurors on the of race. the con- pro full basis deserve the by Batson guaranteed put it makes no sense to the burden except trary, process of the adversarial tection defense, the as Batson requiring persuasion secre compelling reasons where does, defense counsel the shown.”); v. Roan and then refuse States United cy are Cir.1989) (8th respond 436, opportunity hear and 441 F.2d Eagle, 867 Aya- The rule prosecution’s explanations. (“[Ojnce has advanced new, any but rather la seeks is sense the defendant explanation, racially neutral which, all courts to have one as almost rebut with opportunity have should concluded, question v. States considered United interpretation.”); his own (11th directly general more rule 1538, from the Gordon, 1541 Cir. follows F.2d 817 right “to re- 1987) evidentiary the defendant has the an hear that (remanding for case to survive the quire prosecution’s denied district court had ing where the meaningful testing.” adversarial hearing to rebut crucible request for a defendant’s Id.; West, 277, 505 Wright also v. U.S. race-neutral see government’s proffered 308-09, 2482, 225 112 S.Ct. 120 L.Ed.2d reasons). confronted state courts that J., (Kennedy, concurring all reached similar conclu the issue (“Where beginning point 6 Cal.Rptr.2d judgment) Ayala, 99 See sions. application, a general 943 a rule of ... rule 203; Shoukfeh, Goode v. P.3d at purpose (Tex.1997); designed specific Ha for the of evalu- People v. 452 S.W.2d contexts, 232, 238, it meed, ating myriad a of factual will 644 N.Y.S.2d N.Y.2d (1996); infrequent yields v. be the case result State 666 N.E.2d rule, 367, 378, forges a new one not Hood, 160 so novel that it 780 P.2d 245 Kan. 250, 257-58, State, by precedent.”). (1989); 317 Md. dictated v. Gray (1989); v. Commonwealth 562 A.2d call our atten The state and dissent 29, 51, Jackson, 562 A.2d Pa.Super. tion to two decisions that reached con Futch, (1989); v. Commonwealth conclusion, both of which were decid trary 647 N.E.2d 59 Mass.App.Ct. issued Batson. ed soon after the Court Bohlen, v. (1995); Caspari see also Davis, the Sixth Circuit United States 383, 395, 127 L.Ed.2d argument that his rejected a defendant’s (1994) (“[I]n analysis the Teague when right present had been violated be enti of state courts are reasonable views trial court allowed along those of tled to consideration camera, peremptory strikes in explain its courts.”). federal court was enti holding that “the district to hear frоm the Government under adopted Thompson tled These courts the district court Amend- whatever circumstances good reason. Sixth rule with (6th 1194, 1202 appropriate.” must felt 809 F.2d the defendant be provides ment Cir.1987). Similarly, in United States of a the assistance to have permitted Tucker, the Seventh Circuit held stages critical of the at all trained advocate challenge correct to conclude Sixth Circuit was test and proceedings order of the requires neither rebuttal “Batson prosecution’s case. aspects all defense, nor government’s reasons Cronic, hold an district court to does forbid a that there should suggest Batson did not F.2d hearing.” 836 adversarial overarching rule to this exception (7th Cir.1988).7 prima has established when defendant precludes split that our a Circuit cite a third there is and the dissent also 7. The state finding was "dictat- rule seeks they contend demonstrates decision that Aya important These decisions do not render during functions counsel serves Teague-barred. claim “[T]he la’s standard three, Batson steps two and instead con- determining for when case establishes cluding that once the defense had estab- ‘objective,’ new rule is and the mere exis prima lished facie case of racial discrimi- conflicting authority tence of does not nec nation, “participation its was no longer Williams, essarily mean a rule is new.” necessary for the district court to make its at 1495(quoting determination.” 809 F.2d at 1202. As we at Wright, 505 U.S. S.Ct. 2482 explained Thompson, in this statement is (1992) (O’Connor, J., concurring in the simply not true: defense counsel continues judgment)). To the extent that these deci to serve the two crucial functions bring- ‍‌​‌‌​​​‌‌‌​‌‌​‌‌‌​‌​‌‌‌​‌​‌‌‌​​‌​​‌​​​​‌‌‌‌‌​‌‌‌‍any right deny partic sions that there ing arguments facts and to the attention of ipate they in proceedings, simply Batson the trial preserving court and them for the cannot be reconciled the basic Sixth Thompson, record. 827 F.2d at 1260-61. that, all requirement Amendment at criti Likewise, the court in rejected Tucker cal stages of criminal proceedings, the de rule in adopted Thompson it because fendant must have the assistance coun concluded that Batson itself did not re- subject sel in prosecution’s order to quire the defense to present during be testing. case adversarial That to. three, steps Batson two and and because in fully courts Davis and Tucker failed to our exception permitting ex parte proceed- appreciate the relevance of principle this ings in some circumstances threatened to understandable, inas neither case did Tucker, “swallow the rule.” See 836 F.2d right defendants invoke the to counsel to not, however, at 340. Our rule is Davis, support their claim: in the defen Batson, directly derived but rather dants in hearings asserted that the camera from the confluence of Batson and the right violated their present at Court’s Sixth Amendment jurisprudence. trial, a right principally derived from the Moreover, simply becausе a subject rule is Clause, Sixth Confrontation Amendment’s to an exception perhaps a relatively even Davis, 1200; Tucker, see 809 F.2d — exception broad justification not a defendant claimed that ex parte pro —is rejecting altogether the rule when the ceedings rights re- process violated due sult, in impartial Tucker, and to an those cases in jury, exception which the see reason, F.2d at Perhaps 340. does not apply, deprive this is to a defendant of the Davis court failed to recognize rights.8 his constitutional Portuondo, by precedent.” Majid ed 8. Tucker recognize itself be read to this where the issue was whether the defense had point, explicitly reject did our con- right to cross-examine witnesses a Bat- hearing clusion that an adversarial at Batson n hearing, son the Second Circuit remarked steps two and three was sometimes constitu- gratuitously that argua- ”[i]t remains at least tionally compelled. Id. at It observed holding hearings may ble that courts that, general, hearings "adversarial are the [prosecution’s] explanations ... hear the appropriate handling most method for most presence camera arid outside the of the defen- Thus, Batson-type challenges.” although (2d Cir.2005). dants.” 428 F.3d purported reject the Tucker Thomp- question challenge of whether a Davis, son in favor of the decision did not type hearing of in camera Aya- conducted in necessarily foreclose defendants from claim- not, however, Teague-barred la's case is rights their had been violated the trial Moreover, before the passage court. employment court's of a nonadverserial Bat- Majid observing only can be understood as proceeding. son right that there is no absolute to an adversari- proceeding, al which is consistent with the

rule that seeks here.

957 use of challenges a defendant’s may have assuming doubt some Even Ayala challenges, “[i]n the rule seeks rare case peremptory to whether existed as in the imme- precedent” by explanation challenge “dictated in for which and Seventh of the Sixth aftermath diate communications would entail confidential 1988, by the in 1987 and decisions Circuits’ camera dis- strategy, or reveal trial in final conviction became Ayala’s time arranged.” Georgia v. can be cussion 2001, later, court to have every years 13 58, McCollum, 42, 2348, 112 505 U.S. interim —state the issue considered (1992). Thus, 120 33 the Califor- L.Ed.2d explicitly rejected, either and federal —had the rule Supreme nia Court characterized and Seventh Cir- implicitly, Sixth or Thompson Ayala rule —as one sought —the view, adopted Thompson and had cuits’ recog- universally “almost that had been 106; Garrison, at 849 F.2d rule. See 532, Cal.Rptr.2d 6 P.3d Ayala, nized.” 99 441; 99 Ayala, 867 F.2d at Eagle, Roan Supreme at 203. Given that the California 203; Goode, 532, 943 6 P.3d at Cal.Rptr.2d correct, description is the rule that Court’s Hameed, 238, 452; N.Y.2d at at 88 S.W.2d Teague- us is apply would have Hood, 1339; 466, 666 N.E.2d N.Y.S.2d 644 barred.9 378, 160; Gray, at 780 P.2d 245 Kan. that, at Accordingly, we conclude Jackson, 1278; 257-58, 562 A.2d Md. at final, Ayala’s became it was time conviction Futch, 338; 51, A.2d Pa.Super. at Teague purposes established 178, N.E.2d 59. at Mass.App.Ct. be counsel cannot excluded from also, in the inter- steps and three absent some two our rule im, acknowledged a version of dicta) justification” doing (in that, so. “compelling when a when it observed here, where, proceedings of rules that state courts have as the state We also note that Banks, question applied recognized, on direct the rule in Beard v. court themselves cf. 413, 2504, uni- appeal, and determined it be “almost 124 S.Ct. 542 U.S. Teag- recognized,” application versally Horn, (2004), at L.Ed.2d 494 petitioner’s do claims would ue to bar the comity 122 S.Ct. the interests Teag- purpose. little further the doctrine’s obviously weighty finality far less when are comity ue motivated considerations accepted a it rule than when state court has Teague, finality. 489 U.S. at Here, rejected ignored a rule. has repose to purpose to afford S.Ct. 1060. Its being forced to marshal resources state is not ensuring that criminal convic- the states against a new and novel claim that to defend they at time became tions were valid recognized the time the conviction was not upset subsequently discov- final will final; faithfully apply exist- became nor did it As ered constitutional rules. Justice O’Con- a federal ing law to have constitutional applying explained, new rules collater- nor subsequently apply new court constitutional al review contrary, the is chal- To the state commands. re- continually to marshal forces States lenging a that the California rule keep prison defen- order to sources in and con- Court found to be well established appeals conformed dants whose trials and Ayala's trolling convic- at the time affirmed existing constitutional standards. then appeal, as the time on direct as well tion Furthermore, recognized Engle proceedings. conducted its the trial court Isaac, understandably courts are "[s]tate Certainly the state court could not be "frus- they faithfully apply exist- frustrated when find that a federal court determined trated” to only to a federal law constitutional to exclude the defense from discover, that it was error during proceed- [habeas] court proceedings when state the Batson ing, [456 new constitutional commands.” very rule was held that this same itself had n. (1982).] recognized” universally and reached L.Ed.2d 783 "almost Teague Although S.Ct. 1060. Id. at itself. the same determination application in habeas federal still bar 958 conviction, F.2d at

Thompson, 827 1259-60. The it must provide Cal- also “certain safeguards minimum necessary to make ifornia Court held that this rule ” appeal ‘adequate and effective.’ found, Ayala’s case. It was violated 387, Lucey, 392, Evitts v. 469 U.S. 105 dispute, the state does not that “no mat- (1985) 830, S.Ct. 83 L.Ed.2d 821 (quoting strategy ters of trial were revealed” Illinois, 12, 20, v. 351 U.S. Griffin 585, at which the ex- hearings (1956)); 100 L.Ed. 891 see also Coe v. plained peremptory its rеasons for its chal- Thurman, 528, (9th Cir.1990) 922 F.2d 530 lenges potential of all the black and His- (“Where guarantees right a state to a 532, panic jurors. Ayala, Cal.Rptr.2d does, appeal, direct as California the state Thus, P.3d at 203.10 the exclusion of de- is to required make that appeal satisfy the fense counsel was violation of the Con- Clause.”). Due Process stitution, only remaining question Boyd Newland, v. applied we these as to that aspect of the case is whether the principles in granting petition habeas prejudicial. constitutional error was indigent of an defendant who had been copy denied a of transcript his voir dire IV. had, because the state court in violation of clearly law, established federal determined Ayala also claims that the state’s transcript necessary was not to an overwhelming loss of majority of the (9th his appeal. 467 F.3d 1139 jury questionnaires deprived him of a rec Cir.2006). We held that “all defendants adequate ord for appeal. As the California ... right have a to have access to the tools recognized, Ayala has would which enable them develop to their process right due to a record sufficient to plausible Batson claims through compara- allow him a fair and full appeal of his Id., juror tive analysis.” at 1150. It fol- Id., 532, conviction. Cal.Rptr.2d 6 P.3d lows that if question- the state’s loss of the Alvarez, (citing at 208 People v. 14 Cal.4th deprived Ayala naires of the ability to 155, 196 n. Cal.Rptr.2d 926 P.2d meaningfully appeal the denial of his Bat- (1996)). If a provides state for di claim, son deprived he was pro- of due appeal rect right from a criminal cess.11 attempts

10. Teague dissent to general reframe the applied rule. Id. Rules on a analysis Thompson merely as follows: case-by-case articu- Teague do not basis raise issues. lated the rule that West, defense counsel could not Wright 505 U.S. justifica- “compelling” excluded without (1992) (Kennedy, 120 L.Ed.2d 225 tion; Ayala's it was not until after conviction J., (“If concurring) question the rule in is one recognized became final that courts necessity requires case-by-case which of ex- (i.e., prosecutor's explanation in this case evidence, amination then we can toler- defense) revealing strategy was "not specific ate a number applications without a valid reason not to follow the norm of an saying applications that those cre- themselves proceeding.” adversarial Dissent at 977. rule.”). ate a new the contrary, Thompson directly To ad- ignores holding 11. Boyd The dissent government's argument dressed the that “an plucks and instead the words “voir dire tran- adversary hearing inappropriate is because script” opinion argue out government lawyer required reveal transcript necessary voir dire compara- confidential matters of and strategy.” tactics juror analysis. tive case, Dissent If our Thompson, 827 F.2d at 1259. In that colleague dissenting jury rejected ques- we general believes рroposi- this claim as a comparative juror tionnaires are not tion and held that tools the determination of analysis, point revealing strategy whether case her Miller-El v. Dretke could be a (Miller-El II), 256-57, compelling justification particular in a case must by examining be determined whether 162 L.Ed.2d 196 and Kes- Cambra, the facts in exception (9th that case warranted an ser v. 465 F.3d Cir. that Batson had been violated. ques- into show is not called This conclusion Grounds, F.3d 1165 Briggs Accordingly, determining whether tion (9th Cir.2012), relief, Dis- in the dissent. cited the preju- is entitled we evaluate Briggs, petitioner In at question- sent 982-83. loss dice caused of the juror question- complete had access conjunction in with the harm caused naires ap- during course of his state naires by excluding defense counsel from the Bat- in fact, heavily he relied on them peal. proceedings.12 son analysis to comparative juror a presenting claim. 682 F.3d support his Batson V. Briggs’s process rights 1171. Thus due The California Court held that language cited implicated.

were Ayala prejudiced by the trial was a of is lifted from section by the dissent of the court’s exclusion defense from the whether, discussing because opinion proceedings, Batson the state’s loss of not included questionnaires were those majority jury question- of the vast record, court we should credit the federal naires, the two errors considered characterization of those the petitioner’s Court declared “confi- together. The itself char- over the state court’s questionnaires challenged jurors dent that were ex- for our Briggs is irrelevant acterization. reasons,” proper, cluded for race-neutral i.e., Ayala’s process due purposes, whether 532, Ayala, Cal.Rptr.2d 204, 6 99 P.3d at California lost rights implicated were when concluded that the exclusion of defense rendering questionnaires, thus juror beyond a counsel was “harmless reason- appeal. for his them unavailable state doubt,” (citing Chapman able id. v. Cali- entitled to relief on this claim Ayala is 24, 18, 824, fornia, 87 17 386 U.S. questionnaires was only if the loss of the (1967)), despite and held that L.Ed.2d 705 se, conjunction or if it prejudicial in questionnaires loss of the record supra error discussed served the Batson “sufficiently complete for [it] meaningful deprive appeal. him of a jurors] able to conclude that struck [the Id.; Abrahamson, Brecht v. 507 see also challenged were not and excused on the 619, 623, 1710, L.Ed.2d U.S. Id., group of forbidden basis bias.” ..., (1993). prejudice analyzing “[I]n Cal.Rptr.2d 208. P.3d at recognized importance this court has considering the effect of of cumulative questions, We now address these same conducting simply and not multiple errors Abrahamson, Brecht v. and hold that balkanized, issue-by-issue harmless error 619, 113 S.Ct. 123 L.Ed.2d 353 Woodford, v. 428 F.3d review.” Daniels (1993), requires us reach different (9th Cir.2005) (quoting Thomas conclusion. (9th Hubbard, Cir. v. 273 F.3d 2001)). Here, question the loss A. Ayala prejudice increased the naires claims, first, Ayala that exclusion result of the exclusion suffered pro of defense counsel from the Batson steps two and defense counsel three, ability ceedings necessarily represented as it further undermined his structur- (en 2006) banc), adequate appeal capital juror See case. both which utilized —in Arkansas, questionnaires comparative juror analysis. Whitmore (1990) (Marshall, 109 L.Ed.2d 135 J., dissenting). ques- We need not decide this Eighth Ayala that there is also asserts right appeal to a record tion here. Amendment —and error, stage”

al and that he is entitled to excerpt relief can be somewhat inquiry further into he without whether misleading: although the Batson proceed The state court’s conclu- prejudiced. ings represented a stage” “critical in the sion that the error here was not structur- Ayala right sense that to counsel implicit application al—a in its conclusion during proceedings, they those were not Chapman harmless error standard necessarily stage” the sort “critical whether evaluate had suffered deprivation which the right consti subject to prejudice review under the —is tuted structural error. See United States 2254(d). §of deferential standard Owen, (4th Cir.2005). 407 F.3d Lewis, (9th 855, Byrd v. 566 F.3d 862 As explained, the Fourth Circuit has Cir.2009). in statements Mickens and Cronic Court Supreme has defined as rely Supreme on the Court’s earlier us an “structural” error that affects “the age phrase of stage,” “critical proceeds, framework within which the trial [Alabama, such as cases Hamilton v. than an simply rather error in the trial 52, 157, 368 U.S. 82 7 S.Ct. L.Ed.2d 114 process Fulminante, itself.” Arizona v. (1961)] and Maryland, [v. White 373 279, 310, 1246, 499 111 U.S. S.Ct. 113 59, 1050, U.S. 83 S.Ct. 10 L.Ed.2d 193 (1991). L.Ed.2d 302 Where this is line (1963) curiam) (per narrowly ] refer always Compare, e.g., drawn clear. those proceedings both at which the 39, Georgia, 9, Waller v. 467 U.S. 49 n. 104 right Sixth Amendment to counsel at (violation 2210, (1984) S.Ct. 81 L.Ed.2d 31 taches and at which denial of counsel right public of requires trial auto- necessarily reliability undermines the of with, reversal), e.g., matic Rushen v. the entire proceeding.... criminal [T]he 114, Spain, 2, 464 U.S. n. 117-18 & 104 Supreme subsequently Court has used (denial 453, (1983) S.Ct. 78 L.Ed.2d 267 of phrase “critical stage,” cases such right defendant’s present be trial is Wade[, as [United States v.] 388 U.S. review). subject to harmless error While 218, 1926, 87 S.Ct. 18 L.Ed.2d 1149 a violation of Batson is itself structural (1967) Alabama, ] and Coleman [v. 399 error, Supreme there no Court decision 1, 1999, 90 U.S. S.Ct. 26 L.Ed.2d 387 addressing whether the exclusion of de- (1970)], sense, in a broader to refer to fense counsel from proceedings proceedings all at which the Sixth constitutes structural error. right Amendment to counsel attaches— however, Ayala contends, that the state including those at which the denial of represents court’s decision an unreason admittedly subject such is to harmless- application able Supreme Court’s analysis. error clearly showing established rule that “no omitted). Id. at 228 (emphasis of prejudice need be made “where assis v. Lamarque, Musladin we held that tance of counsel has been entirely denied “clearly established” rule of Cronic is during stage proceed a critical ” stage” a “critical depriva- where the ings.’ Appellant Briеf of 22(quoting tion of counsel constitutes structural error Taylor, Mickens v. 162, 166, 535 U.S. 122 is one that 1237, “significant holds (2002)); consequences S.Ct. 152 L.Ed.2d 291 see Cronic, 830, (9th 648, also for the United States v. accused.” 555 F.3d 466 U.S. 839 Cir.2009) 659 Cone, n. (quoting L.Ed.2d 657 Bell 535 (1984).13 phrase 695-96, use “critical L.Ed.2d observes, cisión, 13. As the although opinion state simply Mickens restates the rule set postdates years the California prior Court's de- forth 18 in Cronic. structural were (2002)). providing would hold the error identified We novo, inquiry Supreme Court we to consider the issue de can- guidance overnight trial recess holding that, decisions as the has say criti- to be two such closing arguments AEDPA, the con- construed state court’s (citing Geders stages. Id. at 839-40 cal unreasonable. trary conclusion was States, 425 U.S. 96 S.Ct. United Musladin, F.3d at 842-43. New Herring v. 47 L.Ed.2d York, B. (1975)). L.Ed.2d that, if Ayala claims next even the fairly ambiguous stan Given this trial court’s exclusion the defense dard, applica an unreasonable it was not error in se not the sort of constitutional clearly law established federal tion requires presume that we ev Supreme Court conclude California ensued, it ery prejudice case exclusion the defense the exclusion case, especially in when prejudicial three does not steps two and Batson conjunction with the loss of considered to right deprivation amount evaluating In whether questionnaires. the likelihood that the that the counsel such prejudiced a state habeas means trial error chosen unconstitutional jury was case-by-case inquiry is petitioner, apply that a must the standard set high “so we Mickens, 166, Abrahamson, U.S. at unnecessary.” 535 granting v. forth Brecht out, it points As the state 1237. 122 S.Ct. only the had a if error “substantial relief con incongruous to be somewhat would injurious and effect or influence deter during of counsel that exclusion clude 619, jury’s verdict.” 507 U.S. mining very in the is a defect proceedings Batson (1993) 623, 113 1710, 123L.Ed.2d 353 S.Ct. if the exclusion of the trial same structure States, (quoting Kotteakos v. United 328 rea there some permissible were would be 1239, 750, 776, 90 66 S.Ct. L.Ed. 1557 U.S. justifications keep prosecution’s son (1946)). “apply Brecht test with We Thus, ju a “fairminded confidential. regard out for the state court’s harmless — Richter, rist[],” U.S. Harrington v. Chrones, determination.” Pulido v. ness 770, 786, -, 624 178 L.Ed.2d 131 S.Ct. (9th Cir.2010) 1007, (citing 629 F.3d 1012 Alvarado, Yarborough v. (quoting 121-22, Pliler, 127 Fry 551 U.S. 124 S.Ct. 158 U.S. (2007)).14 2321, 168 L.Ed.2d 16 (2004)), might conclude that L.Ed.2d standard has been described The Brecht three are not a steps two and Batson as follows: stage.” if we Cromc-type “critical Even the Brecht stan- prior us habeas court determines that appeal had before If this come 14. met, necessarily deter- Fry, dard has been it also decision we Court’s application of an unreasonable state mines be asked whether the would instead Chapman any a state court’s conclusion was determination that error court’s to, beyond a reasonable Chapman contrary harmless error was under harmless holding Ayala has demonstrat- application, of federal law. doubt. an unreasonable Brecht, we to relief under Lamarque, ed his entitlement Inthavong v. 420 F.3d See clarified, howеver, Cir.2005). an (9th hold to be unreasonable Fry therefore also Chapman the California Su- application standard to the harmless error that Brecht is preme Ayala was not conclusion Court’s applied in circumstances because be such prejudiced by of the defense the exclusion lib the "more Brecht standard "subsumes” Fry, during steps two and three or 2254(d)/Chapman See § standard. eral” Merolillo, 2321; Merolillo, questionnaires. loss of the at 551 U.S. words, at if federal F.3d 458-59. In other 663 F.3d assurance, evenly say, cannot with fair so balanced a judge one ‘feels him- [I]f equipoise all self in virtual pondering happened after with- as to the harmless- stripping out the erroneous action from ness of the error’ has ‘grave doubt whole, judgment about jury whether error affected error, swayed by [substantially substantially injuriously], ” impossible to conclude that substantial must treat the error if it did so.’ McAninch, O’Neal v. rights inquiry (quoting were not affected. The 432, 435, 437-38, merely whether there was cannot (1995)) (alteration result, apart enough support L.Ed.2d in original) (internal omitted).15 phase quotations affected the error. It is rather, so, even whether the error itself We conclude that met has had substantial influence. the Brecht standard. he prejudice Yates, (9th Merolillo 663 F.3d suffered was the deprivation of the oppor Kotteakos, Cir.2011) (quoting tunity develop, present, likely pre 1239). 765, 66 S.Ct. Batson claim. Had he “Where the record is on his pre- vail longer 15. The dissent contends that recognizing futility Brecht no oft-cited case. As if provides proper standard of review for argument, its the dissent characterizes its au- assessing prejudice, arguing "a instead that thority as “the essence of the writ issue if determine that no holdings.” Court's Dissent at 981. We do jurist fairminded could find that the exclusion is, not know what this "essence” but there is question of the defense counsel and of loss legal no the basis for dissent’s conclusion Ayala prevent prevailing naires did from 10,000 a cited case almost to times determine on his Batson claim.” Dissent at The prejudice in habeas cases was sub silentio only authority dissent’s for its is conclusion drastically a overhauled in discussion unrelat- Richter, - U.S. -, Harrington v. 131 S.Ct. prejudice. ed to 770, 786, (2011), 178 L.Ed.2d 624 the which Additionally, eighteen in the months since dissent claims "refined” the Brecht test. Dis down, Hanington was handed re sent at 981. peatedly applied the “unrefined” Brecht test At same time that the dissent us accuses prejudice to E.g., assess in habeas cases. "extending supporting argument just each Yates, 444, (9th v. Merolillo 663 F.3d 454 limitations,” slightly beyond its Dissent at Cir.2011); McDaniel, 984, Ybarra v. 656 F.3d 974, applying does dissent far worse in (9th Cir.2011); 995 Rodrigues, United v. States Harrington prejudice analysis under AED- 693, (9th Cir.2012). 678 F.3d In some Pliler, 112, 121-22, Fry PA. In v. 551 U.S. cases, Hanington we have cited analyzing in 2321, (2007), 127 S.Ct. 168 L.Ed.2d then, properly, ap constitutional error but Supreme proper Court held that Brecht ‍‌​‌‌​​​‌‌‌​‌‌​‌‌‌​‌​‌‌‌​‌​‌‌‌​​‌​​‌​​​​‌‌‌‌‌​‌‌‌‍is the plied the traditional Brecht test when deter prejudice analysis test for under AEDPA. Vail, mining prejudice. E.g., Ocampo v. Harrington, just years handed down four la- 1098, (9th Cir.2011); F.3d v. Schneider ter, Supreme Court did not оnce mention McDaniel, (9th 674 F.3d Cir. 1149-50 Furthermore, Fry or Brecht. ref- Court’s 2012). Thus, even if we believed that jurist” erence to "fairminded not in Hanington dissent were correct that rewrote reviewing prejudice context of a state court's (a prejudice test conclusion that is determination but in rather the context of wholly support without unequivo and that we a regard- whether state court's determination cally reject), three-judge panel, this like all ing constitutional error was unreasonable. others, required is apply nevertheless (Here, course, 131 S.Ct. at 785. error (and is), Brecht as it issue.) because such is prejudice conceded and is at Lacking law of the support circuit. both willing dissent thus seems to conclude that law, Supreme Brecht, Court and radically Ninth Circuit case Court "refined” pronouncement nearly precedent simply dissent’s two-decade amounts old case—a import preference virtually prejudice with central to a all federal standard adjudication, just years habeas reaffirmed under five AEDPA should be far more onerous ago Fry provides. even mention of that than current law —without claim, juror striking Hispanic applied a black or shown vailed on his Batson “just as well to an otherwise-similar non- upon impermissible acted non-Hispanic] permit even who striking [or [was] of race in one black considerations Dretke, jurors it Miller-El v. Hispanic black or ted serve.” of the seven 231, 241, struck, then, acknowledged in 125 S.Ct. as the state U.S. 162 L.Ed.2d (2005). court, Supreme Court we would 196 has em argument oral before phasized the Ayala’s importance conviction this sort of compelled reverse juror “comparative analysis” trial have been to determin his entire would because prosecutor’s whether a reasons for by this violation the Constitu- infected minority Hillery, challenging juror pretex Vasquez v. 474 U.S. were tion. Id.; Louisiana, 263-64, Snyder see 106 S.Ct. 88 L.Ed.2d 598 tual. also 472, 483-85, (1986); ques- 467 F.3d at 1150. The 552 U.S. 128 S.Ct. Boyd, (2008). tion, then, Although Ayala Ayala is whether could have L.Ed.2d 175 can— showing argu but for the state’s con- and does—still raise some of these made this say appeal, deprived If we cannot that ments on he was of the stitutional errors. opportunity present of defense counsel crucial them to the the exclusion did questionnaires likely positioned institutional actor best loss evalu prevent prevailing from Bat- ate them. As the has claim, observed, grant appellate then we must the writ. courts must son accord findings deference to “trial court on the Here, probable that discriminatory issue of intent” because precluded Ayala errors from turn state’s finding largely “the will turn on evaluation very plausible is a ing what Cockrell, credibility.” Miller-El v. prosecution’s challenge claim—the 123 S.Ct. L.Ed.2d minority strikes of all win —into (2003) (quoting Hernandez New counsel ning preventing one York, 352, 366, 1859, 114 the two “crucial func performing (in (plurality opinion)) L.Ed.2d 395 First, Thompson. tions” we identified quotation ternal marks citations omit have out Ayala’s pointed counsel could ted). Because, finding prima after facie justifi prosecution’s purported where the violation, case of a Batson the trial court be or indicate bad might pretextual cations key not made of facts that could was aware Although judge may the trial have faith. credibility have determina influenced of these been able to “detect some defi tion, is there substantial reason doubt himself, by might ... ciencies there Ayala’s challenge proper Batson arguments would overlook” because [he] ly denied. an he was “unassisted advocate.” Second, Ayala’s have “pre- counsel could jury at 1260-61. The Thompson, 827 F.2d record, possible ap- for the serve[d] process took over three months selection peal, bearing judge’s crucial facts on the comprises more than six thousand Thompson, decision.” 827 F.2d 1261. judge, of at pages the record. The trial many cannot of the facts materi- tempting prosecution’s to evaluate the rea We know striking jurors prosecution’s al to whether the rea- light of this stated sons information, false, pretex- discriminatory of almost sons were or massive amount facts, forget key or overlook but tual because defense counsel was not able certain to substantially regarding pro- facts preserve could have been aided relevant jurors’ appearances, in the ad be- presence participants process spective physical of havior, Although prosecution. particular, In or other characteristics. verse lawyers trial could have aware of Ayala’s pointed could out been facts, proffered appellate only reason for court “can prosecutor’s when these Dretke, is function when record See Miller-El serve [its] facts, 2317. relevant or when clear as to the point any out fails to such counsel so, Even we have substantial reason to learning prosecutor’s rea facts after question prosecution the motivation of the Id.; also v. Al see United States sons.” in engaging peremptory in its challenges Cir.1990) cantar, (9th 436, 438 897 F.2d jurors. of the black and Hispanic con conviction where (reversing defendant’s ducting inquiry, keep our we must mind proceedings the Batson conducted below strength Ayala’s prima of facie case. adequately “to left defense unable statistical evidence alone raises “[T]he challenge prosecution’s pre reasons as prosecution some debate as whether the reviewing textual” and left the court un acted with a when strik race-based reason had, prosecution as to whether the certain ing prospective jurors.” Miller-El Batson). fact, violated Cockrell, 537 U.S. at prosecution That the struck each of the deficiency greatly This second aug- black or Hispanic seven available jury question- mented the loss of the challenge signifi establishes basis for questionnaires naires. The that hаve cant doubt its motives: “[h]appenstance preserved been are those of the seated and unlikely produce disparity.” jurors.16 alternate are unable eval- We legitimacy uate the of the prosecu- some Perhaps important, analysis more proffered striking tion’s reasons for prosecution’s possible motives that is Hispanic jurors black and they because on the partial record before us demon- questionnaires referred to that are now many strates that itsof stated reasons for questionnaires lost. The loss of the also striking the seven Hispanic ju- black and potentially us lacking leaves crucial infor- false, rors or were have been discrim- mation about certain individuals who were inatory pretextual. good There are Ayala’s subject neither the chal- reasons to think that race motivated the lenge ultimately jurors.17 nor as prosecution’s three, served strikes at least if Thus, perform compara- more, jurors: D., we cannot a fair danders Gerardo 0. juror analysis required by tive say, Batson. and Robert M.18 “cannot We rounds, questionnaires 16. There are three "underlying question also other several and the out of more than 200 which thought were somehow is not what the defense about these located, particular significance jurors,” have no but what the did. Id. at respect comparative analysis. juror with to a 245 n. 125 S.Ct. 2317. appear 18.Although The state and the provides dissent both to the record somewhat presume comparisons that the prosecution’s relevant less reason to conclude that the juror comparative analysis justifications in a are between for the strikes of the four other jurors jurors the and Hispanic jurors struck the who are ulti- pretextual, black and were seated, mately played Miller-El but made clear that race also a have substantial role jurors the challenges. example, Ayala otherwise-similar whom in these For jurors compared might be prose- struck can include those have been able to show that the "permitted prosecution Hispan- serve” cution violated Batson when it struck See, ultimately juror e.g., George struck per- the defense. ic S. in the final round Dretke, 244-45, emptory challenges. prosecution Miller-El v. U.S. gave The juror (comparing striking George S.Ct. 2317 a struck to a five for reasons S. The first juror challenged by prosecution not application police who reason —that his defense). This, challenged by twenty years was later prior officer some had been re- course, perfect jected applied equally juror makes sense: these some of seated white — jurors were not struck the defense until Charles C. The he second reason —that had prosecution passed after the had them for indicated some discomfort with the death First, assurance, response prosecution’s in pondering all that after fair it was concerned that Olanders claim that the erroneous stripping without happened impose the hesitate to death D. would whole,” Kotteakos, 328 from the action point- have defense counsel could penalty, Ayala that was jurors had to seated white who ex- ed pros- that the showing prevented not from hesitancy. similar or greater One pressed jurors these one of struck at least ecution juror particular in indistin- seated of his race. because regard. D. in this from Olanders guishable had in (apparently) D. written his Olanders D. 1. Olanders in not he did believe questionnaire jurors D. one of two black Olanders L., a penalty. Ana seated white death in first struck whom juror, precisely made almost same During challenges. peremptory round of questionnaire, writing in her statement hearing followed the the in camera “probably that she would not be able to motion, Also, defense’s for death Olan- penalty.” vote be-D. during that he struck Olanders D. voir dire that he explained ders later said (1) views, for not be able vote might he had reconsidered his affirmed cause: his “personally responsible he written in he could be penalty, as had the death it, being jury actually voting believe in on that he did not questionnaire again, Ana L. penalty.” the death Once in questioning had indicated and he thing: (2) precisely almost the same she said recently changed; his had his view rethought that she had her stated since often were questions voir answers to dire could position, and affirmed she “actu- (3) questionnaire his fully responsive; penalty.19 vote” for the death ally he “poor”; responses been “ability fit lack might Second, in to the prosecution’s answer The trial people.” group cohesive concern that Olanders D.’s an- purported proffered rejected one of the four always fully on voir dire were not swers inability “to fit purported reasons —his responsive, defense counsel could have people.” of 12 group with a cohesive assessment, validity of this questioned counsel, pres- and the presence of defense that his answers were fact suggested could questionnaires, pointed ervation of to seated fully responsive, and question all less to call into whose answers were re- permitted white accept- D.’s. sponsive than Olanders Our review three of reasons nothing transcript the voir dire reveals legitimate. ed as distinguish juror jury a civil significantly him because he had been penalty —did jurors. and final reason —that "holdout.” fifth a number of seated white placed emphasis he he excessive Bible The third reason —that Section V.B.2. infra jury questionnaire be evaluated at all prior a "holdout" on a had been —could —cannot lost, along questionnaire has been question had defense because the called into have been whom the jury on with those of others point to out that the counsel been able might passed. George was a have S. been a "holdout” which had one, dispute had been civil that the issue in jurors to whom dеfense damages, that unanimi- 19. Other seated white the and assessment of required. pointed have in order to show ty reason —that counsel could not The fourth was pretextual prosecution's questionnaire be stated con- to he had written in his willing be to cern that Olanders D. would not parties probably want him to serve would not C., penalty Dorothy impose death include entirely with the third juror overlapped as a — L., reason, Dorothy B. H. and Leona George explained that he Dorothea as S. had might Section V.B.2. parties not want him as wrote that the infra who, prosecution’s juror claim: supports seated white for example, . D.’s answers were responsive danders opined of “I gangs, street feel the to complete. order this fact and bad, make media coverage they however, is get judge, clear to the trial defense counsel those whom usually do constructive events compared again could once have danders positive seek out Fur- coverage.” media had, juror D. to seated Ana L. Ana L. for ther, this is obvious instance which example, is to a responded “That correct” prejudiced by defense is being unable asking question “why” prefer she would compare Olanders D.’s answers to those juror, blankly to sit as .stared prospective jurors white who ac- were in response question defense counsel to a cepted by prosecution by but struck presumption innocence, on the defense, questionnaires whose failed, points, respond various direct- also, course, have been lost.20 It ly yes questions. or no possible that Olanders D.’s answers were Third, exactly we cannot know what ar- poor at all. We have no way of know- guments defense counsel could have made ing. prosecution’s to undermine the final reason Thus, one of the four given by reasons striking ques- for D.—that danders his prosecution for striking this prospec- “poor,” tionnaire responses were dem- juror tive was determined to without be inability express onstrated his himself. by merit trial judge; two failed to Because danders questionnaire D.’s has distinguish juror whatsoever from at lost, may only been we speculate as to its juror; least one seated and the white If contents. the reason his answers were fourth and final reason the “poor” they was not particularly were gave striking juror for cannot evalu- detailed, the defense have compared could lost, questionnaire ated because his was questionnaire L., his to that of Ana whose jurors were those of the prospective white answers were brief and often incomplete, objective struck the defense. Given the G., or to that of Charles a seated white reasons that we have on even this record juror responses whose questions question the validity prosecution’s of the rarely longer were than two or three D., explanations striking Olanders apiece. If words the reason his answеrs simply. cannot poor likely were conclude they ina- reflected an that, if bility clearly to think the defense express complex present had been dur- thoughts, proceedings the defense have compared could and if the lost questionnaire B., to that of Thomas a questionnaires preserved, Ayala been S., example, nary questions? who in all packet Elizabeth This was a For of mate- white, likelihood was seated as an alternate juror's rial lounge. in the panel accepted prosecution— A: No. perempto- which never used its sixth and final Q: You didn't read it? ry challenge selection alternate today. A. papers they Not I read the was later struck the defense. —but gave me the office. lost, questionnaire, might Her which was Q. Today? particularly been valuable to A. Yeah. comparative juror analysis if her written re- Q. Okay. summary legal -That was the sponses anything were like those she deliv- preliminary- questions? issues and during following ered voir dire. Consider the Yeah, A. Yeah. exchange between trial court and Eliza- Perhaps because of this and ex- similar beth S.: changes, she was later asked if had she Q: you Did opportunity have an to review hearing problem, which she did not. summary legal of prelimi- issues and English spelling. prosecu his to show that about not have been able would striking striking reasons for reason for Gerar purported stated tion’s prosecution’s pretextual, 0., then, and that directly D. were to his Olanders do was related were racial. actual reasons who spoke Spanish as someone as status Thus, language. first as his 2. 0. Gerardo circumstance, in a similar Court observed Hispanic of was one two Gerardo 0. frank prosecutor’s “the admission his during challenged jurors excusing juror[ for related ground th[is] ] He peremptories. round of the second ability speak to and to understand [his] struck, in the prosecutor explained was not a plausible, though raised a Spanish parte proceeding, because: subsequent ex might inference that necessary, language (1) “illiterate,” and had needed he was race- pretext [was what fact a] (2) him; be translated for questionnaire peremptory challenge[ Hernan ].” based anyone fit in with he not to “appeared dez, (plural S.Ct. 1859 “standoffish,” else,” with “dress and was ity opinion). presence Defense counsel’s keeping ... not in with mannerisms necessary point out the potential was appear and to be jurors,” other “did judge urge to the trial and inferences socializing mixing any or with other adopt judge appropriate the one most responses jurors”; and his voir dire here. “if he could suggested that he was not sure might An inference of racial bias also life,” and he “felt a take someone’s prosecutor’s from the been drawn responsibilities shaky little as far his challenged claim that Gerardo 0. was be trial concluded that this case.” The cause did not dress or act like оther he the factors document[ed] the “record socialize jurors, did not mix and ac- were indicated” likely them. It is Gerardo O.’s dress cepted explanation. his distinctly Hispanic. and mannerisms were again, had the defense been Once Perhaps Hispanic in the late 1980s males proceedings, from the Batson excluded Diego County likely in San were more into all of question could have likely called other than members of racial or ethnic reasons for strik prosecution’s stated particular in the area to groups wear could have 0. Defense counsel Gerardo shirt, style or color of 0. was Gerardo given reason argued first that one —that (and wearing such shirt for this reason itself indic Gerardo 0. was illiterate —was in,” mind, prosecutor’s in the not “fit did discriminatory the prosecution’s ative jurors). so, If if with the other de did need Although intent. Gerardo 0. bring able this fact fense counsel were questionnaire to fill out the someone attention, the prosecu the trial court’s not, him, that he was the record reveals that it explanation tion’s struck Gerardo 0. fact, illiterate, difficulty simply had dress and mannerisms because English. been writing Gerardo Aya provide compelling support for would En Mexico and not a native born in actually claim that the ra la’s strike graduated from but he had glish speaker, (“[A]n id. cially-motivated. See invidious college in the high school and attended discriminatory purpose may often be in States, perfectly capable and was United totality of the relevant ferred from the summary legal issues reading fact, true, facts, including the if it is before given prospective that was heavily more bears [classification] explained As questioning. voir he dire another.”) (quoting than Wash dire, one race question he not fill out the voir did Davis, 229, 242, ington he himself was concerned naire because (1976)). present 48 L.Ed.2d If onstrated this reason pretéxtual to be hearing, at the defense counsel could have through comparisons jurors prose- strongly a that would have made record cution did not strike. Gerardo 0. had supported these claims. during stated voir dire that “I’m not sure if I my can take someone’s life hand and Even if Gerardo O.’s clothes and behav- know, say you ‘death,’ ... or something,” way ior were in no correlated with his but soon he thereafter affirmed that he race, might defense counsel have been able “could vote for the penalty.” death This explanation prosecution’s to show the to be indistinguishable statement was pretextual. might Defense counsel have by those made number seated white pointed prosecution to other had jurors. Dorothy C. said in voir dire that not struck who had similar characteris- juror as a serving capital case would perhaps, example, for a seated white tics— her “worry cause a lot” because it was juror actually had worn outfit identical “a lot responsibility,” gasped when de- to Gerardo O.’s. Defense counsel might juror fense counsel told her that as a she challenge also have been able to the factual sentence,” stated, would “decide the prosecution’s basis for the perhaps, claim— never “I’ve had to vote penalty. on death judge, unbeknownst the trial Gerardo 0. might That be a little bit difficult or when did a number “socializ[e] mix[ ]” right it, came down to jurors, say other but I’d I’m for organized had even Likewise, H., it.” Dorothy dinner for when some of them at his asked in favorite voir if dire she could Mexican restaurant. return a verdict of death, stated, “I don’t think it would be an only speculate canWe as to whether or easy thing anyone, for Ibut think don’t—I explana- how could have shown this I I could do it if felt thing it was the for striking tion Gerardo 0. facially to be do.” hesitant, Dorothea L. was even more discriminatory, pretextual false or because saying, when asked the same “I question, nothing we know about his dress or man- so, think but I don’t until I know have to nerisms, or that of the other prospective Finally, B., do it.” Leona by when asked jurors. exactly These are sort having if responsibility physical and behavioral observations that for imposing the penalty death would preserved the defense could have for the her, “Yes, responded, “bother” I think so. permitted record had it been to hear and I think —I think one should be affected ... respond prosecution’s to the explanations by I that. don’t think anything it’s to be challenging Although Gerardo 0. taken lightly.” Certainly, Gerardo 0. ex- might hope that the trial would have pressed L., less hesitancy than Ana who noticed if Gerard 0. had been wearing a flatly questionnaire stated her only by shirt worn members Hispan- she “probably would not be able to vote for ic community, or had been identi- dressed penalty” death before subsequently cally prospective jurors other whom the changing Further, her mind. prospective prosecution had not challenged, had in jurors accepted white prosecution fact been socializing with jurors, other “we might struck cannot affirm the defense have ex- simply because we are confi- pressed he similar jury dent must have known sentiments their what he was doing.” questionnaires. Thompson, tell, 827 F.2d at 1261. We cannot because questionnaires these have been lost.

Finally, response prosecution’s Thus, third reason for the strike —that one of the given Gerardo reasons impose seemed reluctant the death striking this prospective penalty juror counsel could have dem- could itself given rise to an —defense voir that during intent. A dire he believed discriminatory sec- stated inference cannot be evaluated because penalty personally in the death and could ond reason the excluded from it, counsel was his impose questionnaire vote to preserve not and could proceedings lost) (which has, course, been mani- crucial facts. record certain for the according a enthusiasm to fested similar given distinguish to reason failed third judgе. trial could the Defense counsel jurors the from seated white Gerardo 0. brought have trial court’s attention strike, as, as to chose not well prosecutor potentially that the statement rais- ju- white prospective from other possibly, ing any question voting whatsoever —that by prosecution the not rors struck might “weigh a death sentence on his for to the we have Given cause the defense. conscience,” a “heavy” and would deci- validity prosecution’s question indistinguishable prac- a sion—was on rec- can be evaluated this reasons that tical from statements Doro- standpoint ord, not say that would we cannot C, serving thy juror said that as in who or the trial court would have shown that was “a lot of capital responsibility” a case prosecu- that should have determined lot,” “worry cause and would her 0. violated Batson. tion’s strike Gerardo H., Dorothy who that imposing stated penalty not an easy death would “be M. 3. Robert L., anyone,” thing Dorothea who said juror Hispanic struck prosecution impose if she could she would know perempto- final round of Robert M. it, until she had to do penalty the death camera, ry challenges. B., who affirmed that this re- and Leona concerned, giv- had been explained he would her. Other sponsibility “bother” response ques- M’s to voir dire en Robert jurors who were struck prospective might willing not be that he tioning, defense, accepted by but had been This penalty. death concern impose the have prosecution, may compa- made men- heightened by Robert M.’s had been questionnaires in their in rable statements Sagon Penn case—a case tioning lost). (which, guilty was found not again, which the defendant been Counsel police trial and the second most argued could have who attorney’s office were accused district penalty imposing death believed accepted the The trial misconduct. so a consider a decision to do would that, stating al- explanation, prosecution’s weigh “heavy” decision that would though “questionnaire would Martinez’s Following ar- conscience. counsel’s one’s certainly person tend to indicate judge might recog- well have gument, the ... his answers pro penalty[,] the death rarely a nized that there is indeed that individ- to the extent varied somewhat a citizen is ever asked “heavier” decision ually, legitimate well be a con- there 0., Certainly, like to undertake. Gerardo impose he could cern to whether more than Robert M. was no hesitant it.” L., actually point at one Ana who Bat- presence Defense counsel’s to im- that she would be unable stated necessary call proceedings son penalty. pose death claim question prosecution’s into gave To extent that reluc- it struck Robert M. because the Sagon Penn Robert M’s reference Even impose penalty. the death tance to challenge, its separate case as reason ju- Robert M. other comparing without likely have demon- defense counsel could serve, explanation this rors permitted pretextual. repeatedly strated reason suspect: Robert M. highly First, Case, entirety Sagon of the Penn ex- Yale L.J. 205 & n.l (for change follows:, aswas description gen- further of controversy case). Douglas you Have erated statement any Prosecutor: followed S.’s was, any kind court cases the news or about the case—“here he facing exe- of— any cution, to trials? come downtown watch suggests and I don’t know”— Well, controversy this I had created some doubt Saigon Robert M.: followed his mind of propriety Penn case. Harris’s [sic] conviction and Certainly, Doug- sentence. right. All Prosecutor: las unelicited S.’s discussion the Harris briefly case in Robert M. mentioned case should have troubled the response prosecution’s question, and far more than Robert M.’s brief direct any nothing he said about accusations of response regarding Sagon Penn case. police prosecutorial misconduct. Second, ju although none of the seated Finally, any if there was inference to question, rors had been asked similar fleeting draw from Robert M’s reference juror one white had on his seated own case, Sagon Penn it that Robert initiative to a far more referred controver M. guilty would not return a verdict based capital case. When sial asked to describe on a blind trust police and about feelings penalty, Doug the death prosecution charged who had arrested and case, las S. mentioned the saying: “Harris” the defendant with the crime. Numerous case, “The which goes Harris back.... I jurors expressed seated white similar sen- believe he’s on death ... I row can’t even Douglas S., example, timents. stated crimes, I recall the exact remember person that the' last who had lied to his bizarre, quite them to be and—and here he policeman. face awas California Similar- was, execution, I facing and don’t know.” ly, said, your “You change Charles C. don’t Douglas presumably referring S. was you put ... stripes when on a badge; and Harris, Robert Alton who the time of you have to everybody’s testimony Ayala’s row, trial was on California’s death in a on court case its face.” had, in a that was extensively case tried, press, covered been convicted if the trial judge Even had not been and sentenced to death in Diego. San willing reject to completely prosecu- Harris, People 28 Cal.3d 171 Cal. implausible explanation tion’s that it struck (1981). Rptr. 623 P.2d As Robert M. because he mentioned the' Sa- way Harris’s case wound through its case, gon Penn strong there is a likelihood courts, generated state and federal sub that, had present defense counsel been which, controversy, stantial some of as in persuade been able to the court that the case, Sagon Penn was related to alle proseсution’s principal for challeng- reason gations See, of official e.g., misconduct. juror impose reluctance —his id., Cal.Rptr. P.2d 267 the penalty pretextual, death —was (Bird, C.J., dissenting) (arguing that Har court would have concluded that the strike ris had right been denied his to a fair trial violated Batson. We thus cannot conclude prejudicial pretrial due extensive and that the exclusion of defense counsel publicity, partially the product of the “sor the Batson proceedings prevent did not spectacle ry prosecutorial public offices Ayala from showing prosecution’s ly vying with each other to have ‘first strike Robert M. was im- based its accused”); crack’ at convicting the see also permissible consideration of race. Stephen Reinhardt, R. Court, Penalty, The Death and The Harris and His the black all seven of tion struck Although each reasons of to. serve on the position in a challenging jurors panic

fered proffered discussed its many of race-neu Hispanic jury, and the black pretex to be shown implausible. Given highly have been are reasons above could tral allowed case, counsel been facia prima strength Ayala’s tual had of the three two and steps at participate prof prosecution’s that the evidence the question the and had proceedings Batson discriminatory, or were false reasons fered been jurors of majority the vast of naires drawn from the that can be inferences the all of necessary that it is not preserved, analysis, and juror comparative available by the advanced reasons the that are record the deficiencies pretextual. to shown be or be pretextual con of the state’s product themselves ap of some the existence Notwithstanding to con errors, “impossible it is stitutional reasons, “if a review appropriate parently were rights substantial [Ayala’s] clude that many of ... record undermines of the of defense the exclusion not affected” may be reasons, the reasons proffered and proceedings Batson from the counsel discrimina for racial pretext deemed Kot juror questionnaires. the loss Cambra, F.3d v. Kesser tion.” 1239. teakos, banc) Cir.2006) (en Lewis (9th (quoting Brecht, under prejudice Ayala has suffered Cir.2003)) (9th Lewis, F.3d to is entitled relief. and added). short, court “[a] (emphasis pretex reasons find all nonracial need VI. racial discrimination” to find order tual in juror, and any particular to respect with three colleague makes dissenting Our in violation juror one any the exclusion to her dis fundamental that are assertions the verdict. reversal of requires Batson plain All are opinion. with our agreement illustrate her misunder and ly erroneous holding. our nature of of the standing C. that, because suggests First, the dissent was excluded the defense Because prosecutor’s accepted court trial bring it could proceеdings, the Batson defer striking jurors, these for rationale at- arguments necessary facts and under AED- ruling required to its ence the institutional judge, trial tention Collins, U.S. PA, citing Rice v. prose- to evaluate positioned actor best L.Ed.2d 824 338-39, if its and to determine credibility cution’s Along similar (2006). 984-86. Dissent at minority striking reasons proffered failing lines, accuses us the dissent legitimate rea- were its actual “benefit of decision the state court give the excluded Because the sons. - Jackson, doubt,” citing Felkner and because proceedings, Batson from the 1305, 1307, 179 -, question- juror of the majority the vast (2011). at 989-90. Dissent L.Ed.2d courts re- lost, appellate were naires Second, assumes the dissent prop- in a engage cannot this case viewing ju individual demonstrate must analysis, know juror comparative er reasons racial might be struck arguments rors were facts what other evidence,” citing 28 prof- convincing to demonstrate “clear employed false, facially 2254(e)(1). discrimi- Dissent 983. § were fered reasons U.S.C. pre pretextual. bizarre natory and makes the Third, the dissent all Bat- approach “[u]nder diction record, Ayala’s this deficient on Even petitions in federal habeas challenges son prosecu compelling: claim is Batson granted because no one can dis- cannot must be afford deference to trial court’s Dissent at prove negative.” determination of the merits of the Batson claim. As Thompson, we concluded in assumes, of these incor Each assertions ... rely “cannot such fundamentally confronting ordinary we are rectly, that procedures flawed show that defen- challenge on habeas review—a prejudice.” dant suffered no Id. at 1261. holding in a challenge to the case in which present argu defense counsel was able Next, reasons, for similar the “clear and regarding the trial court racial ments to convincing evidence” has standard no role bias, appeal appel claim the state regard Ayala’s challenge. The dis- court, subsequently late .and seek reversal position sent’s is inherently at odds with judgment federal that none statutory authority the on which it relies. by prosecution of the the struck That AEDPA provision reads as follows: racially impermissible motivated rea a proceeding by applica- instituted an sons. Rice and are precisely Felkner such tion for a of corpus by writ habeas a cases. The empha has person custody pursuant to the judg- sized, cases, in such that deference is re court, ment of a State determination of quired, that the petitioner must demon a factual by issue made a State court his factual prosecutorial strate claims of be presumed shall to be correct. The by evidence, bias clear convincing and and applicant shall have the burden of rebut- may that give petitioner we not ting presumption of by correctness regard benefit-of-the-doubt with to the ex ' clear аnd convincing evidence. However, racial prejudice. istence of this 2254(e)(1). § 28 U.S.C. previous haveWe ordinary case not an challenge, is held, ly 2254(e)(1), § in interpreting that and for the we reasons have explained “the presumption correctness and the supra the approach dissent’s is inap both clear-and-convincing of proof standard plicable This, and wholly inappropriate. only come play into once the state court’s consistently ignores, the dissent is a fact-findings any survive intrinsic case in chal challenge proce which the is to the Maddox, lenge.” Taylor by dure 366 F.3d employed the trial con court in (9th Cir.2004) added) (cited ducting (emphasis inquiry the Batson procedure —a that by expressly resulted of a not denial fair Batson overruled Wood v. . Allen, hearing to the defendant 848-49 (2010)). & n. 175 L.Ed.2d 738 In Tay We cannot defer to the trial court where lor, explained we that a state court factual (such procedural error as the state su- finding intrinsically is if pro flawed “the here) preme court found has rendered the employed by cess the state court is defec trial court’s determination unreliable. tive,” (citing Mueller, Id. at 999 Nunes Ayala’s counsel was excluded from Batson (9th Cir.2003)). 350 F.3d 1055-56 stages three, and depriving two thus him Here, the state admitted precluding opportunity persuade to the trial Ayala’s establishing counsel from a Batson judge was motivated at stages violation two three of by and racial bias. a very capable Even trial state’s trial court proceeding fail constituted overlook or to understand procedural error. Under arguments supporting Taylor, because racial motiva- flawed, tion state by proceeding “if unassisted it is advocate.” Thompson, 827 not entitled presumption F.2d at 1261. Because the to a of correct procedures ness, designed Ayala required to ensure a fair hear- is not to demon followed, to the defendant were strate his Batson claim clear and con- contrary, To the consti- assertion violated Batson. The dissent’s vincing evidence. to contrary Taylor part AEDPA and tutional error on state bar- an insurmountable simply likely prevented Ayala showing erect from would the conceded error protect peremptory rier would utilized its review. any effective federal against challenges racially discriminatory in a manner, permitted him and thus us dissent accuses Finally, although the tried, convicted, and sentenced death in “all Batson approach changing in a jury repugnant selected manner the na- challenges,” plainly misstates Accordingly, we reverse holding. This is a Batson the Constitution. ture of our sense, court, judgment but rather of the district challenge in the usual challenge grant to the exclusion writ procedural remand instructions three. stages two and from Batson counsel and order that be released our Perhaps important, more dissent- even custody retry the state elects to him unless fails recall ing colleague apparently amount of to be within reasonable time has conceded the state. error been by the district court. determined prejudice i.e., here is issue — REMANDED. REVERSED and petitioner’s upon error effect prosecutor’s bias. to show the opportunity CALLAHAN, Judge, dissenting: Circuit from the could not be more different This Ayala Juan In Hector shot and preju- where challenge, traditional Batson three men. In he was killed convict- and proof is structural constitution- dice murder, jury on three counts of and the ed any reversal without requires al error a verdict of death. On returned direct Thus, Bat- ordinary showing prejudice. his appeal conviction and sentence were er- cases about constitutional son are Supreme affirmed the California Court prejudice, all about whereas ror and not at Ayala, 24 Cal.4th People in and not prejudice is all about Ayala’s case (2000). Cal.Rptr.2d The P.3d Accord- the conceded error. at all about Supreme Court of United States de- possibly hold could not ingly, what we here petition for certiorari in 2001. nied challenges in fed- “all Batson require that California, Ayala granted.” must be petitions eral habeas (2001). 149 L.Ed.2d 143 entirely put mildly, To contention is a writ of habeas petition filed his initial for any rational basis whatsoever.21 without in States District Court corpus the United the Southern District of California for VII. appeal 2002. This is from district that the exclusion of defense We hold 17, 2009, February final de- court’s order steps two and three during counsel Batson petition. nying We cannot prejudicial error. constitutes holds, primarily on majority The based permitted to say that had counsel been trial, developed Ayala’s Aya- law after proceedings, in the participate Batson be or retried because it la must released majority of had the state not lost the vast tell in re- cannot whether the jury Ayala would questionnaires, ra- jurors might seven have had a cusing to show that been unable explained supra, Brecht dissent- well-established one additional error our 21. There is governing prejudice has not been ing colleague is not limited to standard makes that modified, sugges- and the dissent’s law of revised but would rewrite the Batson context contrary is without rea- tion to the merit. prejudice all cases. For that habeas son, Pages supra at 961-63 & n. 15. here. we have discussion it deserves mention As doing showing, It does so defendant makes a prima cial motive for so. facie just supporting argument each extending the burden shifts to the to come State limitations, beyond in order to slightly its with a explanation forward neutral that appears reach a conclusion reasonable jurors.” Third, challenging black Id. does not withstand scruti- but nonetheless trial court must if the then “determine ny. majority goal reaches its rul- purposeful defendant has established dis- Ayala’s argument is not primary crimination.” Id. 106 S.Ct. 1712. Teague-barred, creating unreasonable standard, In forth setting three-step reviewing alleged ancient standard Supreme specifically Court declined violations, give refusing particular procedures “to formulate to be findings Supreme Court’s California objec- upon timely followed a defendant’s several recent deference United tion to a prosecutor’s challenges.” Id. opinions require. States 99, 106 S.Ct. 1712. The Court reiterated essence, majority holds that be- light variety jury “[i]n selec- not affirmatively cause the record does tion practices followed our state negate possible of a racial the existence courts, trial federal we make no attempt bias, the existence such bias be instruct imple- these courts how best to approach assumed. Under this all Batson holding today.” ment our at 99 n. challenges petitions habeas must federal result, 1712. As a during granted disprove because no one can quarter of century passed that has since negative. clearly Court has Batson, courts have considered numerous rejected accordingly, such a standard and ways applying three-step Batson’s stan- I dissent.

dard. I Ayala’s primary argument is that the 79, Kentucky, 96, In v. 476 U.S. of him exclusion and his counsel from the 1712, (1986), 106 S.Ct. 90 L.Ed.2d 69 the proceedings prosecution justi- in which the Supreme Court held “a defendant es- fied its of recusal seven violated prima tablish of purposeful a facie case rights constitutional to assistance of coun- discrimination in of petit jury selection the stages sel at critical proceedings, solely concerning on prosecu- evidence the present, be personally and to assist his challenges tor’s exercise of peremptory at response, counsel in In his defense. the the Georgia defendant’s trial.” also v. argued and State the district court held McCollum, 47, 42, 2348, 112 505 U.S. S.Ct. 2001, Ayala’s in when conviction be- (1992). 120 L.Ed.2d 33 Batson established final, came the of Ayala exclusion and his First, three-step inquiry. a the defendant proceedings counsel from the had not been prima must make a showing facie the violation, a established as constitutional peremptory has exercised hence, Lane, by and Teague was barred v. challenges racially in a discriminatory 288, 1060, 489 U.S. 109 S.Ct. 103 L.Ed.2d Batson, 96, manner. 476 106 U.S. S.Ct. (1989). 334 1712. The Court stated that it The California in re- Supreme Court had “confidence judges, ‍‌​‌‌​​​‌‌‌​‌‌​‌‌‌​‌​‌‌‌​‌​‌‌‌​​‌​​‌​​​​‌‌‌‌‌​‌‌‌‍experi- that trial viewing Ayala’s appeal direct concluded dire, supervising in enced voir will be able that it universally recognized was “almost if to decide the circumstances concerning parte proceedings following that ex a mo- prosecutor’s the of use chal- peremptory regarding challenges tion al- lenges peremptory prima creates a facie case dis- jurors.” legedly against improper crimination black made the Id. at basis of 97, Second, 106 poor S.Ct. 1712. group procedure “[o]nce the bias are and should

975 948(emphasis quot- S.Ct. compelling unlеss rea- not be conducted removed). in Ayala, Cal.Rptr.2d Caspari, parallel ed cites justify them.” sons However, Ayala’s in Horn v. dispute at 203. There is no conviction P.3d Banks, May 536 U.S. final in the became when Su- (2002), certiorari, 153 L.Ed.2d preme Court denied “a court consider- federal held he does not assert that comes within either petition must conduct a ing a habeas exceptions. Thus, two narrow analysis when the issue Teague threshold in question presented May is whether if state,” raised even properly ex unconstitutionality parte court did consider the supreme state procedure used trial court issue. by precedent. was “dictated” Bohlen, 383, 114 v. Caspari In majority May claims that (1994), the Su- 127 L.Ed.2d “unequivocally this rule had been ‘dictated ” set forth test deter- preme Court by precedent’ opinion as a result of our Teague mining a claim was whether Thompson, F.2d United States barred: (9th Cir.1987). Thompson, however, did a rule if case announces new “[A] rule, not announce clear constitutional by precedent result was dictated furthermore, majority confuses con- existing at time defendant’s what it sees as the wisdom Thompson Lane, Teague viction became final.” question with the of whether that wisdom at 301 supra, [109 1060]. had been embraced determining prisoner whether state Thompson concerned 1985 criminal relief, a federal is entitled habeas trial in a federal The judge district court. Teague by proceed- apply court should govern- alone conducted dire “the voir First, steps. three the court must peremptory ment four its chal- used on which the defen- ascertain date lenges to exclude all four in the blacks and sentence became dant’s conviction “Thompson’s Id. at 1256. venire.” When Second, Teague purposes. final for mistrial,” lawyer moved for district “[s]urve[y] legal court must the land- government put court “allowed the to its existed,” scape as it then Graham v. the disputed peremptory reasons for chal- Collins, U.S., at 468 supra, [113 506 record, lenges on the albeit in camera and 892], a and “determine whether presence out of the of the defendant and considering [the defendant’s] state court lawyer.” Thompson appealed argu- his Id. his conviction became claim at the time procedure that this his Fifth violated compelled by final have felt exist- would right to due process Amendment to ing precedent conclude that rule right Sixth Amendment to a fair and im- required seeks was the Constitu- [he] partial jury. that Id. We concluded Parks, tion,” v. 494 488 U.S. Saffle in refusing “district court erred allow (1990). 415] 108 L.Ed.2d [110 S.Ct. counsel in this case to hear the defense if even the court determines Finally, government’s excluding reasons that seeks the benefit of a the defendant present argu- and to potential black rule, new the court must decide whether explained ment thereon.” Id. at 1261. We falls of the two that rule within one that “situations where court acts with exceptions to the nonretroactivi- narrow presentation one Taylor, benefit side’s ty principle. See v. 508 Gilmore uneasy compromises are with some over- [113 (1993). necessity, need act such riding 306] L.Ed.2d keep cautionary, binding, or to sensitive information The rather than na- quickly party. such opposing Absent Thompson ture confirmed a review justification, parte ex compelling proceed- of other Ninth Circuit cases as well as system justice our anathema in ings are decisions our sister In circuits. Lewis trial, and, a may criminal in context Lewis, (9th v. 321 F.3d 831 n. process.” to a denial of due Id. at amount Cir.2003), we “[cjertainly, observed that 1258-59. a requiring court allow counsel argue [during three-step Batson

Although opinion behind the in logic opinion process] clearly is not compelling, the established law.” Thompson Portuondo, (2d Majid dictate a nonetheless does not constitution In v. 428 F.3d It court Cir.2005), al standard. concerned federal the Second Circuit commented trial, trial.1 It not a state court arguable “[i]t remains least argued opinion unanimous dissent holding hearings may, courts to the majority’s choice of an adversarial contrary, explanations hear in camera proceeding proceeding over an in camera presence and outside the of the defen- contrary Court’s deci (citations omitted). dants.” Id. at 128 particular sion in Batson not to formulate Tucker, United States v. 836 F.2d (Sneed, J., procedures. dis (7th Cir.1988), the Seventh Circuit noted Moreover, although Thompson senting). the Supreme in Batson ex- in the held that district case pressly procedures declined formulate it had matter of constitu before erred as disagreed with the Ninth Circuit’s law, it set forth binding tional did not opinion Thompson required insofar itas recognized The opinion rule. there hearing “adversarial once a defendant departures were “occasional from” prima establishes a facie purposeful case of holding proceedings, norm of adversarial discrimination.” Similarly, in United noted a number of instances which Davis, (6th F.2d States proceedings camera were appropriate, and Cir.1987), the Sixth Circuit commented concluded that norm departure from the partic- that Batson does not “require “may amount to a process.” denial due ipation of defense counsel while the Gov- added). Id. at 1258-59 lan (emphasis ernment’s explanations being prof- are guage Thompson clearly advisory fered.” compared when to our statement in Mene majority mightily strives distin- (9th Borg, 881 F.2d Cir. field 1989) guish grounds these comments on the right that “we hold that the to coun well-reasoned, they are not sel attaches to the motion for a trial in some in- new stage.”2 dicta, stances are merely and have been (7th Cir.1970) Delivery Coakley, 1. (noting See Massachusetts Ass’n v. that "because fed- 33, (1st Cir.2012) (reiterating appellate 671 F.3d jurisdiction eral courts no exercise "[sjtate tribunals, by that not bound the state courts are dic over decisions of lower federal courts, courts”). although the they tates of lower courts are not federal conclusive on state rely opinions are free to on the of such courts claims”) (internal adjudicating when federal Contrary majority's suggestion, 2. it omitted); Bromley Crisp, citations v. F.2d holding was the nature of absolute our 1351, (10th Cir.1977) (noting "the Menefield, that reasoning fact not the may express differing Oklahoma Courts their Supreme was based Court cases Menefield retroactivity problem views on the or similar concerning rights, constitutional that com questions guided by we federal are all holding until manded our adherence Menefield’s Court”); binding Hill, Supreme (9th decision the of v. in Bell 190 F.3d 1092-93 Woods, 1999). U.S. ex rel. Lawrence Majority pp. 432 F.2d Cir. See at 954-55. determining appropriate when the stan- circuits and most state by other rejected majority established our But the standard dard of review. The reads courts. determining wheth- Supreme pose ques- Court it to the recent cases allow the is not the Teague-barred an issue is er say we that exclu- tion cannot the “[if] recogni- rule or the of the old even merits of and the sion defense counsel loss rule, new but the wisdom the tion of likely prevent Ayala not questionnaires did rule “dictated the new was whether claim, prevailing from on his Batson then at 510 U.S. Caspari, precedent.” at Majority See grant we must writ.” confirm conflicting cases 948. These S.Ct. However, pursuant controlling 963. p. advisory nature. Thompson’s opinions, we can re- grant Court Supreme Furthermore, majority rule minimum, that if, at a lief California bright line was not claims established Supreme Court’s harmlessness determina- most, Rather, Thompson states at rule. objectively tion was unreasonable. excluded could not be that defense counsel Abrahamson, In Brecht v. justification.” “compelling some absent 633-37, L.Ed.2d Here, prosecu- Majority p. at (1993), explained that seeking explanation offered an tor collateral review different direct camera; he did not his reasons present It held: review. the defense. strategy to reveal want and the other cases Following Thompson imbalance of costs and benefits it clear majority, is now that by the cited Chapman harmless-er- applying reason not to follow the is not valid this ror on collateral review coun- standard proceeding.3 How- adversarial norm sels in favor of less onerous applying ever, in 2001 when this was not dictated on habeas review constitu- standard final. Ayala’s convictionbecame standard, Kotteakos tional error. The sum, I with the district court agree believe, fills under the bill. test present and to be right “had Kotteakos is whether error pre- present when counsel injurious effect or influ- substantial challenged for its recu- its sented reasons jury’s determining ence in verdict.” when precedent” was “dictated sals at 776 [66 1239]. 328 U.S. Under final, therefore Ayala’s conviction standard, petitioners habeas Teague-barred. that the issue is their plenary obtain review of cоnstitu- claims, they tional are entitled II on trial error unless habeas relief based Assuming Teague- the issue is not they resulted can establish (and barred, agree majority I prejudice.” “actual See United States Court) the exclu- California Lane, [106 pro- from the Batson sion (1986). 814] 88 L.Ed.2d error, and it was not ceedings (parallel citations 113 S.Ct. 1710 Majority pp. 959- error. See structural omitted). However, again part company GO. ala,Ay carefully strategy." Supreme disclosed no secrets of trial Court

3. The California 532, prosecutor's claim that his Cal.Rptr.2d considered the at Ac 99 6 P.3d 202-03. strategy. It disclose matters of reasons would cordingly, "[i]t it was unrea concluded “simply had concluded that exclude hear sonable to defendant challenges, [given] for his reasons the reasons 532, Id., ings.” Cal.Rptr.2d 6 P.3d at 203. entitled to hear that defendant was harmless, Supreme Three after the tional years Court violation is a federal Brecht, passed, may “Congress decided and the not award habeas relief un signed, § President der the Antiterrorism and 2254 unless the de harmlessness Penalty Effective Death Act of 1996 termination was unreasonable. itself (AEDPA), petition 2254(d)(1), § under which a habeas Petitioner contends that granted unless the Esparza, be state interpreted eliminates adjudication court’s ‘resulted in decision requirement that a petitioner satis also to, contrary that was an or involved unrea fy Brecht’s standard. not. We think of, application clearly sonable established That suggested by conclusion is not Es law, Federal as determined the Su parza, which had no reason to decide Court of the preme United States. . . .' 28 point. suggested by Nor is it 2254(d)(1).” Pliler, § Fry v. U.S.C. AEDPA, text of pre which sets forth a U.S. S.Ct. 168 L.Ed.2d grant condition to the of habeas relief (2007). (“a writ of ... habeas shall not corpus granted” be unless the conditions of Fry challenged his murder conviction on 2254(d) met), § are entitlement grounds that the state trial court ex to it. our frequent Given recognition person’s clusion of testimony deprived that AEDPA limited rather ex than process. him of constitutional due Id. at panded relief, the availability of habeas 115, 127 appellate S.Ct. 2321. The state see, e.g., Taylor, Williams v. court found the trial court had not 412 [120 S.Ct. 146 L.Ed.2d abused its discretion excluding the testi (2000), that, is implausible 389] it with mony passing and noted in that there was so, out saying replaced AEDPA possible prejudice. Fry no Id. filed ha “ ” Brecht standard of prejudice,’ ‘actual petition in a beas federal district court. 507 U.S. at (quot [113 1710] Id. The district S.Ct. court determined that the Lane, United States v. testimony exclusion of the had been “an U.S. [106 application clearly unreasonable 88 L.Ed.2d 814] estab (1986)), law,” and with the disagreed lished more liberal AED- state PA/Chapman court’s appellate requires determination that standard which there possible was “no prejudice,” the state court’s but nonethe harmless-be yond-a-reasonable-doubt less concluded that “there been an determination ha[d] showing said, insufficient improper certainly ex unreasonable. That clusion of testimony Maples of Ms. no require makes sense to appli formal injurious a substantial and effect on cation both tests (AEDPA/Chapman Brecht) jury’s verdict under the standard set forth obviously when the latter 115-16, in Brecht.” Id. at subsumes the former. Accordingly, the (internal omitted). quotation marks Ninth Circuit was to apply correct affirmed, Ninth Circuit Brecht standard of in assessing review in turn Court prejudicial affirmed Ninth Circuit. impact of federal consti 116, 122, 127 S.Ct. 2321. tutional error in a state-court criminal trial. opinion In its Fry, Supreme Court 119-120, Fry, 551

reconciled the Brecht AED- standard with 2321(emphasis original, parallel citations PA. The explained: omitted). In Mitchell v. Esparza, 540 U.S. 12 [124 S.Ct. 157 L.Ed.2d aspects 263] Three Court’s curiam), (per that, explanation we held when a particularly are important. First, state court determines that a constitu- the Court its in opinion endorsed

979 majority 7, Majority at How the p. 124 S.Ct. that See 962. Esparza, 540 U.S. only reaches this conclusion is somewhat available if the state relief was habeas mystery.4 of harmlessness was determination court’s Second, the Court reiterat-

unreasonable. opinion support Our in Pulido does not rather ex- AEDPA “limited than ed that majority’s majority approach. the availability of habeas relief.” panded single cites a of context: we clause out 119, 127 at S.Ct. 2321. Fry, 551 U.S. “apply regard without Brecht test Third, that the “ac- held Brecht the Court the state court’s harmlessness determina- requires greater prejudice” tual standard Pulido, Majority p. (quoting tion.” at 961 more AED- the “the liberal showing than 1012). However, 629 F.3d at this clause requires which PA/Chapman standard paragraph comes at end of a court’s harmless-be- the state explains: yond-a-reasonable-doubt determination be Pliler, Fry In v. 127 S.Ct. 551 U.S. 119-20, at 127 S.Ct. unreasonable.” (2007), 16 the Su L.Ed.2d led the 2321. These concerns Antiter preme Court clarified hold that: Penalty rorism and Effective Death Act a court proceedings §in must as (“AEDPA”) replace of 1996 did impact constitu prejudicial sess the traditional on collater prejudice test for in a state-court criminal trial tional error i.e., al whether the error “had review — injurious the “substantial and ef under injurious substantial and effect or influ Brecht, in supra, fect” set forth standard in determining jury’s ence verdict.” appellate or not the state whether Brecht, 507 U.S. at 113 S.Ct. 1710. the error and reviewed it for recognized Moreover, Fry explained that we need under the “harmless be harmlessness analysis not conduct an under AEDPA doubt” set yond a reasonable standard of whether the state court’s harmless Chapman, in 386 U.S. S.Ct. [87 forth direct review— ness determination on 824]. governed be which is the “harmless 121-22, 127 2321 (parallel yond a test forth reasonable doubt” set omitted). citations in Chapman California, 386 U.S. (1967)— 824, 17 relatively language clear 87 S.Ct. L.Ed.2d Despite the contrary ap an unreasonable Fry, majority, citing our decisions to or (9th Chrones, federal plication clearly F.3d 1007 established Pulido v. Cir. 2010), Yates, 119-20, Fry, 663 F.3d 444 law. and Merolillo 2254(d)(1)). (9th § Cir.2011), (citing revises the Brecht standard 28 U.S.C. test “obvious evenly the record This is because the Brecht relief where require AED- “grave ly subsumes” “more liberal has doubt balanced and PA/Chapman requires which jury.” an error affected the standard about whether Califor- In set order to reach the conclusion that the contrast to the standard forth in majority body opinion, the in footnote of its Supreme determination that nia Court’s holding recognizes Ayala "[i]n harmless, constitutional violation was his entitlement to relief un- has demonstrated opinion follow Court’s must Brecht, also hold to be an der we therefore Esparza, Fry, U.S. at cited in application Chapman unreasonable that “the and determine harmless- Supreme Court's conclusion California was unreasonable.” ness determination itself prejudiced was not exclusion Here, (emphasis original). California during steps two and three determination of harmless- Court's questionnaires.” agree byor I the loss of objectively was not unreasonable. ness approach not its with this conclusion. only that the state court’s harmless-be to habeas relief. We further conclude yond-a-reasonable-doubt determination that even if Merolillo inquired were also 120, unreasonable.” Id. at 127 S.Ct. satisfy the AEDPAJChapman stan- Accordingly, apply we the Brecht dard, would, he as the state court’s de- regard test without the state court’s termination that the error was harmless harmlessness determination.FN3 See id. beyond a reasonable doubt an objec- 121-22, 127 S.Ct. 2321. tively application unreasonable of Chap- FN3. It follows that we apply Brecht man. appellate “whether or not the state 663 F.3d at 455. recognized the error and reviewed arguable tension between the Chapman. Fry, harmlessness” under “grave doubt as to the of an harmlessness 121-22, 127 atU.S. S.Ct. 2321. error” and AEDPA was relieved 629 F.3d at 1012 and n. (parallel citations Richter, in Harrington Court v. omitted). Thus, Pulido does suggest — U.S. -, 131 S.Ct. 178 L.Ed.2d disregard we the California Su- (2011). There, the Court reiterated preme Court’s determination that the con- state court’s “[a] determination that a stitutional violation was harmless. claim precludes lacks merit federal habeas is arguably ambiguous. Merolillo more long relief so jurists ‘fairminded could opinion first recognizes that we look disagree’ on the correctness of the state to the last reasoned decision of the state Alvarado, court’s Yarborough decision. court and that findings state court’s 652, 654, 541 U.S. 124 S.Ct. “are presumption entitled to a of correct- (2004).” L.Ed.2d 938 Id. at 786. Justice petitioner ness unless the pre- rebuts Kennedy, Court, writing for the explained: sumption with convincing clear and evi- The Court of Appeals appears to have dence.” 663 F.3d (citing at 453 28 U.S.C. treated the question unreasonableness 2254(e)(1)). § The opinion quotes from as a test of its confidence in the result it the Supreme Court’s discussion of harm- would reach under de novo review: Be opinions, less error two Kotteakos v. cause Appeals the Court of States, had little 750, 765, United 328 U.S. 66 S.Ct. doubt that Richter’s (1946), Strickland claim 90 L.Ed. 1557 O’Neal merit, McAninch, 432, 435, Appeals Court 513 U.S. conclud (1995). O’Neal, 130 L.Ed.2d 947 ed the state court must have been un Brecht, decided after reasonable in rejecting analysis it. This held “that in grave cases of doubt as to overlooks arguments that would other petitioner harmlessness must win.” justify wise the state court’s result and 513 U.S. at It S.Ct. 992. conclud- ignores 2254(d), § further limitations of ed that “when a grave habeas court is in including requirement its that the state doubt as to the harmlessness of an error court’s decision be according, evaluated that affects substantial rights, it should precedents of this Court. See grant relief.” Id. at 115 S.Ct. 992. Lett, , Renico v. — (2010). 176 L.Ed.2d 678 It goes Fry

Merolillo on to cite bears and Puli- do, light repeating and in strong of these cases held that: that even a case for relief does not mean the state court’s injurious

the Brecht “substantial ef- contrary conclusion was fect” unreasonable. governs standard our harmless er- Lockyer ], ror review this Andrade [v. [538 case. For the reasons U.S. 63] below, discussed at 75 conclude that under [123 L.Ed.2d 144 standard, the Brecht Merolillo is entitled ]. possible it is meet, then it must ask whether that is difficult

If this standard disagree to be. As that jurists it was meant could is because fairminded 2254(d) AEDPA, stops § inconsis- arguments or theories are those amended bar on imposing complete short holding prior in a decision tent with of claims al- relitigation federal court this Court.” Id. rejected proceedings. in state

ready Supreme Accordingly, pursuant 651, 664, Turpin, 518 U.S. Felker v. Cf. may just not issue be- precedent, a writ 2333, 135 L.Ed.2d 827 116 S.Ct. say that the exclusion of cause “we cannot ju- res (discussing AEDPA’s “modified question- counsel and the loss 2244). pre- § It under dicata rule” from likely prevent Ayala did not naires in authority to issue the writ serves Majority on his Batson claim.” prevailing fair- possibility there is no cases where Rather, if may only a writ issue p. 963. that jurists disagree could minded jurist that no fairminded we determine with this decision conflicts state court’s that the ‍‌​‌‌​​​‌‌‌​‌‌​‌‌‌​‌​‌‌‌​‌​‌‌‌​​‌​​‌​​​​‌‌‌‌‌​‌‌‌‍exclusion of defense could find It no farther. precedents. goes Court’s questionnaires did counsel and the loss 2254(d) the view that reflects Section prevent Ayala prevailing ex- “guard against is a corpus habeas Batson claim. This is the essence of the criminal in the state treme malfunctions should Supreme holdings Court’s not a substitute for justice systems,” See, ap- ordinary through accept e.g., Harrington, error correction it as such. Virginia, (“As peal. Jackson a condition for 131 S.Ct. at 786-87 307, 332, 61 L.Ed.2d n. 99 S.Ct. obtaining corpus habeas from a federal (1979) (Stevens, J., in concurring court, prisoner a state must show that the for obtain- judgment). As condition ruling being court’s on the claim state court, from a federal ing corpus habeas lacking in federal court was so presented show that a state must prisoner justification in there was an error well ruling being on the claim state court’s comprehended existing understood and so lack- federal presented beyond any possibility for fairminded law justification there was an disagreement.”). comprehend- error well understood and beyond any possibili- existing ed in law Ill ty disagreement. fairminded jurist of the fairminded application (parallel at 786-87 citations omit- requires deference to the Califor- standard ted). Supreme opinion. nia Court’s that a issue reiterating writ possibility there is no fairmind- where Prospective A. The Loss Certain Ju- the state jurists agree ed could Questionnaires. rors’ decision, Court re- court’s majority stresses the “loss of an “grave doubt” standard set forth fined jury overwhelming majority ques- in Brecht. A federal court cannot have concluding tionnaires” in this “in- to harmlessness if a fair- “grave doubt” as prejudice creased the suffered jurist agree on the correct- minded could as a result of the exclusion of defense ness of the state court’s decision. See Majority pp. counsel.” How- Harrington, at 786. The Court ever, Ayala has not shown either “[ujnder 2254(d), § a habe- explained that jurors’ question- prospective loss of certain arguments must determine what as court or rights violated his constitutional or, here, naires theories could supported decision; him. prejudiced that the loss supported, the state court’s First, critical nothing it is to note what was there is in Boyd suggest that in dire, the record before the California juror addition to questionnaires voir The record contained the voir dire Court. jurors who are not selected are criti- jurors, of all prospective transcript cal to a totality determination of the of the hearings prosecutor’s camera on the relevant facts. recusals, question- reasons for the Indeed, opposite conclusion can be jurors, of all the naires seated and the panel’s drawn from the treatment of a questionnaires jurors. of the alternate requiring state rule an indigent defendant missing 77-question, What was were the to show some cause order to receive a 17-page questionnaires that the 200 or so transcript held, free of voir dire. We cit- potential jurors other had filled out. MacCollom, ing United v. States Newland, (9th Boyd In 467 F.3d 1139 317, 322-23, 96 S.Ct. 48 L.Ed.2d 666 Cir.2006), recognized that we (1976), that the local rule did not violate Dretke, opinion Court’s in Miller-El v. constitution, but that the state court 162 L.Ed.2d 196 in failing recognize erred that the defen- (2005), “comparative juror holds that anal- plausible dant had raised a Batson claim ysis important is an tool that courts should entitling him a transcript of voir dire. utilize in assessing Batson claims.”5 Boyd, 467 F.3d at 1151. If a defendant Boyd, 467 F.3d at 1145. We commented required can be to show some cause in juror that “comparative analysis” referred order transcript dire, to receive a of voir “to examination of a prosecutor’s ques- follows that a defendant has no per se prospective jurors jurors’ tions to and the right preservation question- of all responses, to see whether the naires filled by prospective jurors out who treated otherwise similar differently were not seated. because of their membership in a particu- fair, To be language there is in our en lar group.” Boyd Id. concluded: Cambra, opinion banc in Kesser v. reviewing A сourt cannot examine the (9th Cir.2006) (en banc), F.3d 351 “totality of the relevant facts” and “all might juror be read to infer a right circumstances,” Batson, relevant questionnaires. We concluded that: “In U.S. at surrounding case, an evaluation of the voir dire prosecutor’s peremptory strike of a mi- transcript juror questionnaires clearly nority potential juror without an entire and convincingly each prose- voir dire refutes of the transcript. transcript A of the dire, grounds, cutor’s nonracial complete voir compelling as distinct from a partial transcript up to the time conclusion that his actual reason motion, proper because for striking com- Rindels was her race.” Id. at parative juror analysis is appropriate appears Kesser, 360. It juror that in both at the time of the Batson motion questionnaires were available and thus we and in light of all subsequent voir dire them, could consider but we did not indi- testimony. they Instead, cate that necessary. were 1151(internal comparative juror F.3d at commented that a par- citation and omitted). Here, allel analysis citations appropriate we have the because “[w]e too Moreover, entire voir dire transcript. transcript have a of voir dire and a Batson establish, right 5. We compara- further held that the ato can and should be allowed to estab- juror analysis explicitly lish, tive set forth in Mil- Boyd, a Batson error.” F.3d Teague-barred ler-El "simply was not as it (internal omitted). citation petitioner illustrates the means which a questionnaires are all tentions about and that is Mil- fairly presented, claim simply because the record before us Id. at 361. true requires.” ler-El jurors’ does not contain the excused Grounds, 682 F.3d Recently, Briggs questionnaires. disprove The burden (9th Cir.2012), we considered Batson findings Briggs. rests with the factual a state court conviction challenges to 2254(e)(1) § (requiring “clear 28 U.S.C. not contain federal record did where the convincing “a evidence” rebut jurors. excused questionnaires of of a factual issue made determination affirming the district court’s at 1170. court”). a State relief, majority noted: denial of Thus, controlling Supreme under Court Id. seems to conclude be The dissent law, the lack of verify and Ninth Circuit case independently we cannot cause questionnaires prospective jurors’ questionnaires answers from the does not record, defense’s they are not in the Ayala of his burden to show relieve more, if equally, is characterization convincing evidence that the clear and Cal- the state court deter plausible despite Supreme wrong ifornia Court was deter- However, contrary. minations to the was not biased. mining highly deferential imposes “AEDPA any authority holding In the absence of rul evaluating state-court standard jurors’ questionnaires inher- the lost that state-court deci and demands ings reviewing court of a suffi- ently deprives doubt,” of the given the benefit sions claim, cient rеcord to evaluate Batson — Felkner,[sic] Jackson Ayala the issue becomes whether has —, —, 179 L.Ed.2d questionnaires lack of the shown that the curiam) (internal quota (per in his case renders the record insufficient. omitted) (overturning the marks tion He fails in this task for several reasons. Circuit). The dissent’s readiness Ninth First, Supreme the California Court rea- court determination doubt the state sonably rejected Ayala’s claim that his characteriza on the defendant’s based rights infringed by were constitutional apply of the record does tion prospective juror ques- loss of the bulk of Congress level of deference appropriate explained: tionnaires. It Supreme Court and the United States is deficiency complains “The of which he required of us. questionnaires, the absence of certain omitted). citation (parallel Id. at 1170-71 by prospective ju- completed which were “it is majority further noted that rors, lodged superior with the then that the trial is widely acknowledged court, lost its clerk’s subsequently the credi- position in the to evaluate best office, by the su- finally determined justifi- proffered bility prosecutor’s beyond to be reconstruc- perior court (internal citations at 1171 cations.” Id. A criminal defendant is indeed tion. omitted). Citing Supreme Court’s appeal to a record on is entitled Collins, statements Rice adequate permit meaningful review. 338-39, 163 L.Ed.2d 824 law. [Ci- That is true under California (2006), can that a “federal habeas court It is true as well under the if it unrea- only grant petition tation.] was Collins’ race- States Constitution —under prosecutor’s to credit the United sonable generally, for the Batson chal- explanations neutral Fourteenth Amendment majority specifical- stated: Amendment lenge,” Eighth under the is involved. ly a sentence of death when AEDPA if we it would be anathema to appeal is in- The record on con- petitioner’s [Citation.] to assume that the were however, Challenges if the Ju- only com- B. the Individual adequate, plained-of deficiency prejudicial rors. ap- ability prosecute defendant’s question It the next follows Alvarez, 14 Cal.4th peal.” ([People v. whether has shown clear and Cal.Rptr.2d fn. p. 196 155] ju- evidence that convincing no reasonable (1996)]). 926 P.2d 365 [ prosecutor’s rist could have credited the 532, 6 P.3d at

Ayala, Cal.Rptr.2d 208. non-discriminatory excusing reasons for concluded The California jurors in majority the seven issue. The if the questionnaires loss of the jurors three of the its discusses law, “it under either state error federal or opinion, a review of the prosecutor’s beyond harmless doubt.” reasonable excusing reasons for each of seven This determination is entitled defer- jurors shows that the California Rice, 338-39, 126 ence. 546 U.S. at challenged determination that “the Court’s proper, excluded for were race-neu- Second, missing importance of reasons,” Ayala, tral was reasonable. See juror questionnaires questionable. The Cal.Rptr.2d 6 P.3d at 204. jurоrs so of the 70 or who questionnaires D. 1. Olanders never called little relevance.

were jurors questionnaires The of who those Olanders D.’s recusal was one of were called and then excused would be challenged by Ayala. first The trial showing relevant if some there was Ayala held that had not met the first jurors due to were excused consti- (a prong of the Batson facie prima test tutionally However, forbidden reasons. showing challenge on based Ayala any specific allega- has not offered Kesser, race, 359), see 465 F.3d at concerning missing question- tions indicated hear nonetheless it would naires. prosecutor’s reasons for the in recusal Third, prosecutor’s none of the stated complete order to have a record. recusing jurors for questioned reasons prosecutor parte stated the ex proceed- solely jurors’ questionnaires. relied ing:

Rather, in each prosecutor instance the My primary concern with to regard juror’s specific mentioned the answers to ability is his for [Olanders D.] vote posed In a questions couple on voir dire. during the death the penalty [sentence] of instances the referenced a On phrase. questionnaire his he indicat- person’s questionnaire, pri- but this was he ed that does not believe in death marily to explain why he found the individ- penalty. He did indicate that view his responses ual’s oral troubling. changed over the years. last several us that he He told did want to serve. Finally, Ayala present has been able to During questioned, time that he was specific his based on the challenges responses totally I that his felt were not transcript ques- voir dire and the extant responsive questions either of tionnaires the seated alter- myself. counsel the defense or Although Ayala nates. argues questionnaires might support argu- My reading lost his question- observations his ments, such a can making contention be made naire and before even note any specula- about lost If such responses document. racial orientation was that his prejudice questionnaire They tion constituted the standard poor. on the were per thought would be reduced to a rule. out. se were not He demonstrated penalty.” Cal.Rptr.2d well. the death ability .express himself a lack not make a lot of P.3d at 206. And his answers did result, I felt that he is not As a sense. majority claims that prosecu- actively participate who could person excusing tor’s motives for Olanders D. is with meaningful way deliberations -First, suspect several reasons. ability fit in with jurors, and his other pointed “could have to seated jurors” white sincerely I people cohesive group similarly expressed hesitancy who to im- plus for that reason question, and it was Second, pose penalty. the death ma- led penalty the death his stand on jority asserts that its review of the voir him on that I did not want me believe transcript dire shows that D.’s “Olanders jury. responsivе answers were and complete.” responses It further asserts that the of a judge responded: The trial juror, L., just seated white Ana were Okay. Certainly with reference Third, unresponsive. the majority argues get along he would whether questionnaire that because D.’s Olanders may well be that he would people, lost, they exactly “cannot know what I get along very people. well with 12 arguments defense counsel could have counsel think other observations of prosecutor’s undermine” the made claim by the rec- are accurate and borne out questionnaire that Olanders responses D.’s ord. poor. Majority p. were 985. The The California Court held majority none concludes that the rea- ju- that the challenged the record showed proffered by prosecutor sons should be race-neu- proper, rors were excluded rejected by sustained because one was causes. Ayala, Cal.Rptr.2d tral judge, trial “two failed to distinguish the D., Addressing at 204. Olanders P.3d juror whatsoever from at least one seated commented: juror,” white and the fourth cannot be prosecutor he stated had exercised [T]he questionnaire evaluated because his ques- in his challenge part because Majority lost. at pp. 985-86. opposed he the death tionnaire indicated reviewing the trial judge’s Were de- penalty. prosecutor acknowledged The novo, majority’s de approach cision oral that his Olanders D.’s statements might persuasive. be But the applicable that changed, views but commented judge standard is whether no fairminded totally responsive his were “not answers agree Supreme could with the California questions of either counsel for the the juror Court’s determination that stated, He myself.” defense or further proper, excluded for race-neutral reasons. essence, in that Olanders D.’s difficulties Harrington, Ayala communicating question led him to meeting not come close to stan- does jury. “fit in” whether he would dard. latter disagreed The court with the “it well that he

point, noting, suggestion any There is no that seated get along very peo- would well with juror raised similar set of concerns as but “I ob- ple,” added: think the other judge, D. trial Olanders The who had the servations of counsel are accurate and D., to observe opportunity Olanders borne out the record.” agreed prosecutor with the that Olanders Cal.Rptr.2d penal- 6 P.3d at 204. The D. was ambivalent the death about ty, responsive ques- Court further noted had not been on his Supreme California tionnaire, ability prosecu- express and lacked the trial court “credited the Moreover, clearly. opposed D. himself the trial opinion[] tor’s Olanders reject necessarily prosecutor’s convineing most, evidence anything. did not At partici- majority’s D. could not arguments concern Olanders assumptions way jury pate meaningful may suggest in a delibera- prosecutor’s evalua- tions, but rаther commented that he tion of Olanders D. compelled, was not “may get along very really well be that he would none of them question sincerity people jury].” prosecutor’s with 12 The [on well reasons or suggest a trial court’s determinations as affirmed likelihood of some unstated improper mo- pre- are majority the California tive.6 The fails to show that a Rice, 338-39, jurist sumed correct. fairminded agreed could not have (“State-court factual find- with the California Court. moreover, correct; presumed ings, are 2. Gerardo 0. petitioner rebutting has the burden of presumption by convincing ‘clear and evi- Gerardo 0. was one of the recusals that 2254(e)(1).”). § dence.’ challenged objection. his second prosecutor explained challenge majority’s expressed concerns about Gerardo 0. as follows: far compel- Olanders D.’s recusal are I made observation of [Gerardo] It ling. hardly surprising that a number when he first entered the courtroom on jurors potential expressed ambivalence day the first were called penalty. about the death The fact that a into the area. is more concerned with one time, At that appeared he to not fit in potential juror’s ambivalence than another anyone else. He awas standoffish necessarily a sign prejudice. is not of racial type of individual. His dress and his Similarly, majority the fact that I mannerisms felt were not in keeping reviewing the voir transcripts dire thinks jurors. with the other juror’s that a responses seated were no He indicated to us at the responsive beginning more than Olanders D.’s is real- ly noted, Actually, he was illiterate. of little moment. As his words the trial illiterate, were that he and that heard Olanders D.’s voir he —who agreed questionnaire therefore had the prosecutor with the translat- that he dire — him, ed to so that ability “demonstrated a lack of he could make re- express sponses. himself majority’s well.” The supposition that questionnaire Olanders D.’s responses I him subsequent observed occasions “poor” not have been court, is not clear or when he came to the and observed possible 6. The indicia of plain why racial bias was peremptory challenge he used a eighteen peremptory Rindels, the fact that seven of the using eliminate he answered challenges exercised ex- stereotypes. blatant racial and cultural Hispanic jurors. cused African-American and Here, contrast, Id. at 357. majority all the enough compel If this were finding suggest jurors, can do is that other like Olan bias, racial there would be no reason for the D., ders were uncomfortable with the death steps second and third in the Batson standard answers, penalty, thoughtful failed to offer or for deference to the trial court’s determina- and did not communicate well. But even if any compelling tions. The lack evidence of prosecutor's perceptions about Olanders racial bias is clear when the record in this unique, D. were incorrect or not that fact compared prosecutor’s case is state- compelling would not be such evidence of Kesser, There, ments in 465 F.3d 351. pretext justify as to a failure to defer to the overcoming the deference due to the state California Court's reasoned determi determinations, court’s we commented: prop nation that the were excused for er, prosecutor’s Ayala, The racial animus behind the race-neutral reasons. 99 Cal. strike is clear. Rptr.2d When he was asked to ex- 6 P.3d at 204. and did struggled English with socializing 0. to be appear that he did Ayala, 99 proceedings.” understand jurors, the other any of mixing with or Cal.Rptr.2d 6 P.3d at 206. respons- into account I also take in the Ho- questionnaire es on the deny that Gerar- majority does not at which time process, vey questioning illiterate, that he was or do O. stated that feeling with he had no that expressed he question- fill out his he needed someone to writing. penalty the death regard to differently, or naire, he or that dressed jurors. mix with the other that he did not that he he said being questioned, When Instead, the pp. at 966-68. Majority take someone’s if he could was not sure Ayala’s- lawyer majority speculates life life, could take someone’s or if he (1) despite his own might have shown hands. into his illiterate, comments, 0. was not Gerardo Hovey pro- in the responded He further and manner- Geraldo O.’s “dress be eleven other there would cess that Majority distinctly Hispanic.”7 isms were far shaky little that he felt a people, prose- p. at 967. It further muses in this case. responsibilities as his concerning Gerardo O.’s cutor’s comments reasons, I felt that he would For those manner and aloofness and his ambivalence juror, and for inappropriate an have been penalty toward the death could chal- reason, peremptory I exercised underlying racial bias.8 pretexts lenge. course, it Majority pp. 967-68. Of impossible negate possibilities, such but prosecutor’s accepted The trial court majority’s imagi- sup- nothing the record there It noted that reasons. Here, fuel and nation to its assertions. observations ported prosecutor’s prosecutor’s judge agreed on trial that the recusal was based commented of Gerardo 0. and the Cali- traits. The Cali- observations O.’s individual Gerardo Supreme Court affirmed. The ma- rejecting Ayala’s fornia Supreme Court fornia type of clear jority presented has not claim noted that “Gerardo Wheeler/Batson leaps unsupported conclusion that the majority's quote cited 7. The Hernandez York, striking "prosecutor’s purported reason for v. New O., then, (1991), directly related to his Gerardo demonstrates 114 L.Ed.2d 395 spoke Spanish as his applicable case. The status as someone who to this is not Hernandez language.” Majority p. The ma- prosecutor’s frank first Supremе Court noted "the illogical, jority’s speculation may but it not be ground excusing these that his admission compelling. is far from ability speak and to their to related plausible, Spanish raised understand though necessary, inference that lan- not a majority suggests also that Gerardo O.’s 8. The pretext in fact guage might be a for what penalty to the death was no ambivalence challenges.” peremptory ju- race-based pronounced were white more than some seated Here, Majority p. previously at 111 S.Ct. 1859. not- rors. 968. As ed, any with Gerardo potential jurors’ not mention concern toward the did attitudes does ability speak Spanish penalty important and there consideration O.’s death was an any ju- prosecution. any and the appear to be indication for both the defense prosecutor distinguished be- ability speak Spanish was an issue. fact that the ror’s Instead, majority poured majority having over the tween levels of ambivalence O., twenty years argues despite later are indistin- Gerardo over to determine that record hardly sign pretext. guishable More- illiteracy, "attended is admission of had his own over, States,” no doubt that Gerardo O.’s opines that he there is college the United illiteracy, qualifications professed distinctive reading the sum- perfectly capable of "was — aloofness, to the given pro- dress and and ambivalence mary legal was issues that unique. penalty Majority p. It then death spective jurors.” —were evidence the United States I doing had before any of the selection necessary process, Court has held is best, overcome resolved that at very findings. our deference to state court would not wish to any jurors have Rice, 338-39, this case whose 546 U.S. at combined score S.Ct. 969. was five

or less. M. 3. Robert that, spite passed him, I once on view, my but it basically, is M. was one persons Robert of the last that.because of his attitudes regard recusal challenged. prose- whose death penalty, such as in explained response cutor his reasons as his first follows: whether always well, he would vote concerned, farAs as [Robert M.] Miss for— question number one about Michaels and I had discussions during whether always he would guilt, vote for court, process the selection here in even he indicated that it was a ques- difficult immediately as late as before the exer- tion. cise of the challenge. last He said that he believed in the death

The court would note that I passed penalty, but it was hard for him to be point, at one leaving [Robert on.M.] involved in the death penalty. I always have felt degree some of reluc- regard With questions about whether tance with regard M.], to [Robert and death, he would no, vote for he said my concern primarily is in the area of say, no, would be hard to I don’t know whether, conviction, after [Robert M.] is, what the evidence and Miss Michael’s actually would vote for the death penаl- reasons, me, which she expressed to and ty, and it my view that taking all of I with, have to agree a great degree responses his in Hovey account, into concern about whether if getwe to that the—some of responses his even as late point actually he could death, vote for yesterday example, following —for having that kind of a question my Sagon Penn case. It was Miss mind as I’m trying this case would be doing Michaels the questioning at that distracting and worrisome to me during time, and I did actually would —it process of the trial. possibly been a disadvantage or a disservice to inquire further as to his The trial judge accepted prosecu- impressions Sagon about the Penn case. tor’s noting reasons that although Robert I’m M. “is certainly pro concerned about that penalty,” case the death because Penn, the fact that Mr. answers varied very and “there notori- well be a here, legitimate ous trial was found not concern as to guilty in a whether or not he trial, second could allegations impose it.” The court miscon- further noted duct with that “an regard appropriate to the District use of a peremptory Attor- ney’s office and would police person be for a certainly any party were feels rampant in that either could not case. vote for death or could not vote for life.” In affirming Ayala’s convic- really There’s way no for me to inquire tion the California Supreme Court ob- as to where actually [Robert M.] stood. served “that Robert M. was less than de- As far as concerned, [Robert our MJ sirable the prosecution’s point of scores, a combination all the factors— Ayala, view.” 99 Cal.Rptr.2d 6 P.3d Mr. graded Cameron [Robert a M.] as at 206. four, Miss Michaels had rated [Robert five, my M.] as and score on him Again, was the majority really does not ques- five, four ato somewhere in that area. tion prosecutor’s reasons, spec- but eyes and seemed out of pres- empty been look her Ayala’s had counsel ulates that (c) on, and her going tune with what was argued that Robert M.’s might have ent he incomplete were written and oral answers penalty the death was impose reluctance non-responsive. and jurors’ reluctance. from other not different addition, at 969-70. Majority pp. prosecutor’s A of the reasons for review that, jurors M. shows as with deny excusing that Robert had these majority does jurors by majori- the three mentioned Sagon had followed the that he stated ty, team offered individual- case, that he men- argues Penn ized reasons for each recusal. There is no briefly.9 Majority pp. 969— tioned racism, no reference to stereo- blatant Nonetheless, in a Robert M.’s interest otherwise, or and no discern- types—veiled in- criminal case that recent notorious pattern able discrimination. prosecutor and volved misconduct Nonetheless, the four recusals are sus- legiti- guilty in a verdict is resulted type sрeculative chal- ceptible non-discriminatory reason for recusal mate lenges majority hurls at the re- prosecutor. D., O., of Olanders Gerardo and cusals jurors expressed M. Robert Other ambiv- 4. The Other Jurors equivalence alence and about the death majority not mention the other does jurors in- penalty. Other offered slow or were excused. minority who four complete responses. jurors proba- Other (a) he dis- was recused because Galileo S. bly employment per- had been denied attitude to the a non-conformist played job. poorly might formed These be (b) more run-ins justice system, had explore avenues to appropriate (c) admitted, and had an the law than he But time that recusal is made. we are and might create alienation attitude reviewing pursuant a 1989 state trial jurors. of other Luis hostility part on the AEDPA, Court, and the in re- (a) he ex- challenged because M. was Circuit, recently versing the Ninth reiter- penalty, ambivalence on the death pressed (a) largely ated that Batson issues turn (b) own, on his investigated the case (b) credibility, the trial on evaluations (c) rank military left the with a low and great court’s determination is entitled to (c) deference, of misconduct or ina- suggesting some sort the determination must be erroneous, clearly perform. noted sustained unless it is bility to (d) (a) AEDPA demands that state-court juror George had been a holdout S. given decisions the benefit (b) jury, equivocal on the prior on a — Jackson, doubt. Felkner v. (c) rejected as a penalty, had been death 1305, 1307, -, 179 L.Ed.2d (d) candidate, placed un- police officer (2011). emphasis on the Bible. Barbara S. due (a) responses her challenged because Perhaps California (b) slow, compelled had an was not to conclude “the questions oral were she Sagon majority's speculation case was similar to the Penn the Harris 9. The extent unlikely argument an- case. This seems as the crime in its that because illustrated place years took some eleven juror who mentioned that he Harris other was seated Harris, process People jury in this case. capital case before selection was aware of the Moreover, alleged in the Cal.Rptr. unlike the verdict Cal.3d 623 P.2d case, (1981), guilty Sagon was found prosecutor’s concern with Penn Harris opinion, Sagon the California Court’s M.’s interest in the Penn case Robert any Majority p. did not find serious pretextual. at which ‍‌​‌‌​​​‌‌‌​‌‌​‌‌‌​‌​‌‌‌​‌​‌‌‌​​‌​​‌​​​​‌‌‌‌‌​‌‌‌‍issued have been attorney. argument misconduct the district This assumes that somehow 970. challenged jurors prop were excluded for

er, Ayala, race-neutral reasons.” 99 Cal. But

Rptr.2d 6 P.3d 204. its conclu certainly objectively

sion was reasonable.10

Ayala has not shown that the California ruling Court’s lacking “was so

justification that there was an error well comprehended

understood and in existing beyond any possibility

law for fairminded

disagreement.” Harrington, 131 S.Ct. at Indeed, that, appears

786-87. as in

Harrington, majority’s opinion “illus

trates a lack of deference to the state

court’s determination an improper in

tervention state criminal processes, con

trary purpose and mandate of AED-

PA and to the now well-settled meaning

and function of corpus habeas in the feder system.”

al agree 787. I with the

district court’s denial of relief and accord

ingly, dissent from majority’s opinion. America,

UNITED STATES of

Plaintiff-Appellee,

Joseph Sablan, Appellee- Cabrera

Intervenor, GUERRERO,

James Ninete Leon

Defendant-Appellant.

No. 11-10577.

United States Appeals, Court of

Ninth Circuit.

Argued April Submitted 2012. Aug.

Filed agree 10. I do not with the ty characterizations and dissent without further assistance. To my dissent set forth in Section VI of the the extent VI potential Section curtails the opinion. my I have set forth reasons in this that, scope opinion, my opinion, dissent and trust that the reader will be able improves disposition. respective to discern majori- merits

Case Details

Case Name: Hector Ayala v. Robert Wong

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 29, 2012

Citation: 693 F.3d 945

Docket Number: 09-99005

Court Abbreviation: 9th Cir.