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Hector Juan Ayala v. Robert K. Wong

August 29, 2012


Appeal from the United States District Court for the Southern District of California Irma E. Gonzalez, Chief District Judge, Presiding D.C. No. 3:01-CV-01322- IEG-PLC

The opinion of the court was delivered by: Reinhardt, Circuit Judge:



Argued and Submitted February 9, 2012-Pasadena, California

Before: Stephen Reinhardt, Kim McLane Wardlaw, and Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Reinhardt;

Dissent by Judge Callahan


State prisoner Hector Juan Ayala ("Ayala") appeals the denial of his petition for a writ of habeas corpus. During the selection of the jury that convicted Ayala and sentenced him to death, the prosecution used its peremptory challenges to strike all of the black and Hispanic jurors available for challenge. The trial judge concluded that Ayala had established a prima facie case of racial discrimination under Batson v. Kentucky, 476 U.S. 79 (1986), but permitted the prosecution to give its justifications for the challenges of these jurors in an in camera hearing from which Ayala and his counsel were excluded. The trial judge then accepted the prosecution's justifications for its strikes without disclosing them to the defense or permitting it to respond. We hold that this procedure violated the Constitution and, together with the state's later loss of a large portion of the record, adversely affected Ayala's substantial rights. We therefore reverse the district court's denial of Ayala's petition and remand with instructions to grant the writ.


On April 26, 1985, Jose Luis Rositas, Marcos Antonio Zamora and Ernesto Dominguez Mendez were shot and killed in the garage of an automobile repair shop in San Diego, California. A fourth victim, Pedro Castillo, was shot in the back but managed to escape alive. Castillo identified Ayala, his brother Ronaldo Ayala, and Jose Moreno as the shooters. He claimed that these men had intended to rob the deceased, who ran a heroin distribution business out of the repair shop.

Ayala was subsequently charged with three counts of murder, one count of attempted murder, one count of robbery and three counts of attempted robbery. The information further alleged that the special circumstances of multiple murder and murder in the attempted commission of robberies were applicable in his case. A finding that one of these special circumstances was true was required in order for Ayala to be eligible for the death penalty.

Jury selection began in San Diego in January, 1989. Each of the more than 200 potential jurors who responded to the summons and survived hardship screening was directed to fill out a 77-question, 17-page questionnaire. Over the next three months, the court and the parties interviewed each of the prospective jurors regarding his or her ability to follow the law, utilizing the questionnaires as starting points for their inquiry. Those jurors who had not been dismissed for cause were called back for general voir dire, at which smaller groups of jurors were questioned by both the prosecution and the defense. The parties winnowed the remaining group down to twelve seated jurors and six alternates through the use of peremptory challenges. Each side was allotted twenty peremptory challenges which could be used upon any of the twelve jurors then positioned to serve on the jury. After twelve seated jurors were finally selected, both parties were allotted an additional six peremptory challenges to be used in the selection of alternates. The prosecution employed seven of the 18 peremptory challenges it used in the selection of the seated jurors to dismiss each black or Hispanic prospective juror who was available for challenge, resulting in a jury that was devoid of any members of these ethnic groups. In response, Ayala, who is Hispanic, brought three separate motions pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), claiming that the prosecution was systematically excluding minority jurors on the basis of race.*fn1

The defense made its first Batson motion after the prosecution challenged two black jurors. The trial court found that the defense had not yet established a prima facie case of racial discrimination, but nevertheless determined that it would require the prosecution to state its reasons for challenging the jurors in question. At the prosecutor's insistence, and despite the defense's objections, the court refused to let the defendant or his counsel be present at the hearing in which the prosecution set forth these reasons and the court determined whether they were legitimate.

The trial judge continued to employ this ex parte, in camera procedure to hear and consider the prosecutor's purported reasons for challenging minority jurors following the defense's second and third Batson motions. He did so despite his determination, by the third motion, that the defense had established a prima facie showing of racial discrimination.

Ultimately, the trial judge concluded that the prosecutor had proffered plausible race-neutral reasons for the exclusion of each of the seven minority jurors, and denied the defense's Batson motions. Although the ex parte Batson proceedings were transcribed, this transcript - and thus, the prosecution's proffered race-neutral reasons for striking the seven black and Hispanic jurors - were not made available to Ayala and his counsel until after the conclusion of the trial.

The jury convicted Ayala of all counts save a single attempted robbery count, and found true the special circumstance allegations. At the penalty phase, it returned a verdict of death.

Early in the process of jury selection, the trial judge had instructed the parties to return to the court all the questionnaires the prospective jurors had completed, and advised them that he would be "keeping the originals." At some point during or following the trial, however, all questionnaires, save those of the twelve sitting jurors and five alternates, were lost.

The questionnaires of four additional jurors - including the sixth alternate - were located in the defense counsel's files, but the remaining 193 questionnaires have never been located.

On direct appeal from his conviction, Ayala challenged the trial court's use of ex parte Batson proceedings, and claimed that the loss of the jury questionnaires deprived him of his right to a meaningful appeal of the denial of his Batson motion. A divided California Supreme Court upheld his conviction and sentence. People v. Ayala, 6 P.3d 193 (Cal. 2000). The majority held that the trial judge had erred in conducting the Batson proceedings ex parte. Id. at 204. It went on to hold, however, that any error was harmless beyond a reasonable doubt. Id. It also concluded that the loss of the questionnaires was harmless beyond a reasonable doubt. Id. at 208. In dissent, Chief Justice George, joined by Justice Kennard, expressed his disagreement with the majority's "unprece-dented conclusion that the erroneous exclusion of the defense from a crucial portion of jury selection proceedings may be deemed harmless." Id. at 221 (George, C.J., dissenting). Ayala's petition for certiorari was denied by the United States Supreme Court on May 14, 2001. Ayala v. California, 532 U.S. 1029 (2001).

Ayala timely filed his federal habeas petition. The district court denied relief, but issued a Certificate of Appealability as to Ayala's Batson-related claims and his claim that the state had violated his Vienna Convention right to consular notification.*fn2 Ayala now appeals.


Ayala's petition is subject to the requirements of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See Kennedy v. Lockyer, 379 F.3d 1041, 1046 (9th Cir. 2004). We may grant relief only if the last state court decision on the merits of Ayala's claim was (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or (2) "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).


[1] "For more than a century, [the Supreme] Court consistently and repeatedly has reaffirmed that racial discrimination by the State in jury selection offends the Equal Protection Clause." Georgia v. McCollum, 505 U.S. 42, 44 (1992). Batson v. Kentucky, 476 U.S. 79 (1986), established the three-step inquiry used to determine whether this basic constitutional guarantee has been violated. First, the defendant must make a prima facie showing that the prosecution has exercised peremptory challenges in a racially discriminatory manner. Id. at 96. Such a showing can be made, as the trial judge concluded it was in Ayala's case, where the prosecution has engaged in a pattern of strikes against jurors of a particular race. Id. at 97. Second, once the defendant has made a prima facie showing, "the burden shifts to the State to come forward with a neutral explanation for challenging" the jurors. Id. Third, the trial court must then determine whether, taking into consideration the prosecutor's explanations for his conduct, "the defendant has established purposeful discrimination." Id. at 98.

Ayala contends that the exclusion of the defense from the proceedings in which the prosecution justified its strikes of the seven black or Hispanic jurors, and the trial court accepted those justifications, violated his right to the assistance of counsel and his right to be personally present and to assist in his defense, and prevented him from ensuring that the prosecution did not violate his fundamental right to a jury chosen free from racial discrimination. Here, we need hold only that, in these circumstances, the exclusion of defense counsel during Batson steps two and three violated the Constitution.


The California Supreme Court, when confronted with Ayala's claim, concluded that the exclusion of defense from these proceedings was, in fact, erroneous. It observed that "it seems to be almost universally recognized that ex parte proceedings following a [Batson] motion . . . should not be conducted unless compelling reasons justify them." Ayala, 6 P.3d at 203. Although such "compelling reasons" might exist if the prosecution's justifications for its strikes require it to divulge "strategic information," the Court determined that "no matters of trial strategy were revealed" during the Batson proceedings in Ayala's case. Id. at 202-03. Accordingly, the Court concluded, the trial court had erred in excluding Ayala and his counsel from these proceedings - certainly as a matter of state law, and perhaps also as a matter of federal constitutional law. Id. at 204.

Because the California Supreme Court acknowledged that the trial court might have violated Ayala's federal constitutional rights, we do not apply § 2254(d)'s deferential standard to this aspect of the state court's decision. See Porter v. McCollum, 130 S.Ct. 447, 452 (2009) (reviewing de novo whether petitioner's counsel had been constitutionally deficient because state court had decided only that petitioner was not prejudiced by any deficiency); Panetti v. Quarterman, 551 U.S. 930, 953 (2007).*fn3 Section 2254(d) is, however, far from the only obstacle a habeas petitioner must overcome in order for a federal court to consider on the merits his claim that he was deprived of his constitutional rights. Here, the state asserts, and the district court agreed, that Ayala's claim is barred by Teague v. Lane, 489 U.S. 288 (1989). "[I]n addition to performing any analysis required by AEDPA, a federal court considering a habeas petition must conduct a threshold Teague analysis when the issue is properly raised by the state." Horn v. Banks, 536 U.S. 266, 272 (2002).

Under Teague, a "new constitutional rule[ ] of criminal procedure" cannot be applied retroactively to cases on collateral review. 489 U.S. at 310 (plurality opinion). Thus, "[b]efore a state prisoner may upset his state conviction or sentence on federal collateral review, he must demonstrate as a threshold matter that the court-made rule of which he seeks the benefit is not 'new,' " but had been established at the time his conviction became final. O'Dell v. Netherland, 521 U.S. 151, 156 (1997). "A holding constitutes a 'new rule' within the meaning of Teague if it 'breaks new ground,' 'imposes a new obligation on the States or the Federal Government,' or was not 'dictated by precedent existing at the time the defendant's conviction became final.' " Graham v. Collins, 506 U.S. 461, 467 (1993) (quoting Teague, 489 U.S. at 301).*fn4


[2] We hold that Ayala's claim does not require the retroactive application of a new constitutional rule of criminal procedure, and thus is not Teague-barred. At the time Ayala's conviction became final on May 14, 2001, it was established that defense counsel must be permitted to be present and offer argument during Batson steps two and three when, as in Ayala's case, the proceedings do not require the prosecution to reveal confidential information or trial strategy.

In this Circuit, this rule was unequivocally "dictated by precedent," Teague, 489 U.S. at 301, long before Ayala's conviction became final, having been established in United States v. Thompson, 827 F.2d 1254 (9th Cir. 1987). In Thompson, we held that a district court had constitutionally erred when, after the defendant had established a prima facie case under Batson, the court permitted the prosecution to state the reasons for its peremptory strikes ex parte. Observing that Batson step two might sometimes require the prosecutor to "reveal confidential matters of tactics and strategy," we recognized that in some circumstances there might be "compelling" reasons to conduct the proceedings ex parte. Id. at 1258-59. We therefore declined to adopt an absolute rule holding that the defense must always be permitted to participate at Batson steps two and three. We held, however, that defense counsel must be permitted to be present and offer argument during Batson steps two and three if the prosecution's proffered race-neutral reason do not involve confidential or strategic information. Id. at 1258-59.*fn5

Our decision in Thompson represented the straightforward application of two lines of Supreme Court precedent. The first line of precedent finds its source in the Sixth Amendment's guarantee of the right to counsel. Because "the plain wording of" the Amendment "encompasses counsel's assistance whenever necessary to assure a meaningful 'defence,' " the Court has long held that the right applies at all "critical" stages of criminal proceedings. United States v. Wade, 388 U.S. 218, 224-25 (1967); see also, e.g., White v. Maryland, 373 U.S. 59, 60 (1963); Gideon v. Wainwright, 372 U.S. 335, 345 (1963). Ultimately, the right to counsel "has been accorded . . . 'not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial.' " Mickens v. Taylor, 535 U.S. 162, 166 (2002) (quoting United States v. Cronic, 466 U.S. 648, 658 (1984)). Foremost among the attributes of a fair trial is the requirement that it be adversarial in nature: "[t]he very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free." Herring v. New York, 422 U.S. 853, 862 (1975). "The right to the effective assistance of counsel is thus the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing." Cronic, 466 U.S. at 656. As we observed in Thompson, "[t]he right of a criminal defendant to an adversary proceeding is fundamental to our system of justice," and thus ex parte proceedings are justifiable only as "uneasy compromises with some overriding necessity." 827 F.2d at 1258.

Batson is the seminal case in the second line of precedent. After setting out the three-stage framework used to determine whether the prosecution has engaged in purposeful racial discrimination in the selection of a jury, the Batson Court declined "to formulate particular procedures to be followed upon a defendant's timely objection to a prosecutor's challenges." 476 U.S. at 99. Batson made clear, however, that the defendant bears the ultimate burden of persuasion. Id. at 98. Batson also made clear that a court must consider "all relevant circumstances" in deciding whether a defendant has met his burden of persuasion - an inquiry that requires determining whether a prosecutor's stated reasons for striking a particular juror are race-neutral, and, if race-neutral, whether they are his actual reasons. Id. at 96-99; see Miller-El v. Dretke, 545 U.S. 231, 240 (2005).

In Thompson, we recognized that the Batson framework leaves defense counsel with "two crucial functions" that it must be permitted to perform. 827 F.2d at 1260. The first function is "to point out to the district judge where the government's stated reason may indicate bad faith." Id. As we explained:

For example, government counsel here excluded one of the jurors because he lived in defendant's neighborhood and wore jeans to court. This seems like a legitimate reason, unless a nonexcluded juror also wore jeans or other casual dress, or lived in the same neighborhood as the defendant. . . . [D]efense counsel might have been able to point out that the stated reasons were pretextual because others similarly situated were allowed to serve. In addition, defense counsel might have been able to argue that the reasons advanced by the prosecution were legally improper. . . . Of course, the district judge might be able to detect some of these deficiencies by himself, but that is not his normal role under our system of justice.

Id. The second function is to "preserve for the record, and possible appeal, crucial facts bearing on the judge's decision." Id. at 1261. As we reasoned in Thompson:

All we have before us concerning this issue is the prosecutor's explanation of her reasons and the district judge's ruling. . . . [I]f we are to review the district judge's decision, we cannot affirm simply because we are confident he must have known what he was doing. We can only serve our function when the record is clear as to the relevant facts, or when defense counsel fails to point out any such facts after learning of the prosecutor's reasons. . . . Here, the record's silence cannot be reassuring.

Id. Thus, we held, only with the presence and assistance of defense counsel can the trial judge and subsequent appellate judges properly evaluate whether the defense has met its burden of persuasion under Batson. Excluding the defense from the Batson proceedings without some compelling justification therefore violates the Constitution. Id. at 1259-61.*fn6

[3] Thompson compels us to conclude that the rule Ayala seeks is not, under Teague, a "new" one. "[C]circuit court holdings suffice to create a 'clearly established' rule of law under Teague." Belmontes v. Woodford, 350 F.3d 861, 884 (9th Cir. 2003) (reversed on other grounds by Brown v. Belmontes, 544 U.S. 945 (2005)); see Williams v. Taylor, 529 U.S. 362, 412 (2000) (O'Connor, J., for the Court) ("With one caveat, whatever would qualify as an old rule under our Teague jurisprudence will constitute 'clearly established Federal law, as determined by the Supreme Court of the United States' under § 2254(d)(1). . . . The one caveat, as the statu tory language makes clear, is that § 2254(d)(1) restricts the source of clearly established law to this Court's jurisprudence."). We have held that, as long as a rule derived from Supreme Court precedent was established in this Circuit when a petitioner's conviction became final, it is not a "new rule" under Teague. See Belmontes, 350 F.3d at 884; Bell v. Hill, 190 F.3d 1089, 1092-93 (9th Cir. 1999). "This is true even [if] other federal courts and state courts have rejected our holding." Bell, 190 F.3d at 1093. Because Thompson itself relied on the Supreme Court's right to counsel and equal protection jurisprudence, "we cannot now say that a state court would not have felt compelled by the Constitution and Supreme Court precedent" to conclude that the rule Ayala contends must be applied was not established at the time his conviction became final. Id.


We would hold that Ayala's claim is not Teague-barred even if we were free to conclude that, contrary to Bell and Belmontes, Thompson did not in and of itself establish that the rule Ayala seeks is not "new." Nearly every court to consider the question by the time Ayala's conviction became final had adopted the rule that we set forth in Thompson, concluding that defense counsel must be allowed to participate at Batson steps two and three except when confidential or strategic reasons justify the challenge. The Fourth, Eight and Eleventh Circuits had all so held. See United States v. Garrison, 849 F.2d 103, 106 (4th Cir. 1988) ("We . . . agree with the Ninth Circuit that the important rights guaranteed by Batson deserve the full protection of the adversarial process except where compelling reasons requiring secrecy are shown."); United States v. Roan Eagle, 867 F.2d 436, 441 (8th Cir. 1989) ("[O]nce the prosecutor has advanced his racially neutral explanation, the defendant should have the opportunity to rebut with his own interpretation."); United States v. Gordon, 817 F.2d 1538, 1541 (11th Cir. 1987) (remanding for an evidentiary hearing where the district court had denied the defendant's request for a hearing to rebut the government's proffered race-neutral reasons). The state courts that confronted the issue had all reached similar conclusions. See Ayala, 6 P.3d at 203; Goode v. Shoukfeh, 943 S.W.2d 441, 452 (Tex. 1997); People v. Hameed, 88 N.Y.2d 232, 238 (1996); State v. Hood, 245 Kan. 367, 378 (1989); Gray v. State, 317 Md. 250, 257-58 (1989); Commonwealth v. Jackson, 386 Pa. Super. 29, 51 (1989); Commonwealth v. Futch, 38 Mass. App. Ct. 174, 178 (1995); see also Caspari v. Bohlen, 510 U.S. 383, 395 (1994) ("[I]n the Teague analysis the reasonable views of state courts are entitled to consideration along with those of federal courts.").

These courts adopted the Thompson rule with good reason. The Sixth Amendment provides that the defendant must be permitted to have the assistance of a trained advocate at all critical stages of the proceedings in order to test and challenge all aspects of the prosecution's case. See Cronic, 466 U.S. at 656. Batson did not suggest that there should be an exception to this overarching rule when a defendant has established a prima facie case that the prosecutor has struck jurors on the basis of race. To the contrary, it makes no sense to put the burden of persuasion on the defense, as Batson does, and then refuse defense counsel the opportunity to hear and respond to the prosecution's explanations. The rule Ayala seeks is not in any sense new, but rather one which, as almost all courts to have considered the question have concluded, follows directly from the more general rule that the defendant has the right "to require the prosecution's case to survive the crucible of meaningful adversarial testing." Id.; see also Wright v. West, 505 U.S. 277, 308-09 (1992) (Kennedy, J., concurring in the judgment) ("Where the beginning point is a rule of . . . general application, a rule designed for the specific purpose of evaluating a myriad of factual contexts, it will be the infrequent case that yields a result so novel that it forges a new rule, one not dictated by precedent.").

The state and the dissent call our attention to two decisions that reached a contrary conclusion, both of which were decided soon after the Court issued Batson. In United States v. Davis, the Sixth Circuit rejected a defendant's argument that his right to be present had been violated when the trial court allowed the prosecution to explain its peremptory strikes in camera, holding that "the district court was entitled to hear from the Government under whatever circumstances the district court felt appropriate." 809 F.2d 1194, 1202 (6th Cir. 1987). Similarly, in United States v. Tucker, the Seventh Circuit held that the Sixth Circuit was correct to conclude that "Batson neither requires rebuttal of the government's reasons by the defense, nor does it forbid a district court to hold an adversarial hearing." 836 F.2d 334, 340 (7th Cir. 1988).*fn7

These decisions do not render Ayala's claim Teague-barred. "[T]he standard for determining when a case establishes a new rule is 'objective,' and the mere existence of conflicting authority does not necessarily mean a rule is new." Williams, 529 U.S. at 410 (quoting Wright, 505 U.S. at 304 (1992) (O'Connor, J., concurring in the judgment)). To the extent that these decisions deny that there is any right to participate in Batson proceedings, they simply cannot be reconciled with the basic Sixth Amendment requirement that, at all critical stages of criminal proceedings, the defendant must have the assistance of counsel in order to subject the prosecution's case to adversarial testing. That the courts in Davis and Tucker failed to fully appreciate the relevance of this principle is understandable, as in neither case did the defendants invoke the right to counsel to support their claim: in Davis, the defendants asserted that the in camera hearings had violated their right to be present at trial, a right derived principally from the Sixth Amendment's Confrontation Clause, see Davis, 809 F.2d at 1200; in Tucker, the defendant claimed that the ex parte proceedings violated his rights to due process and to an impartial jury, see Tucker, 836 F.2d at 338, 340. Perhaps for this reason, the Davis court failed to recognize the important functions counsel serves during Batson steps two and three, instead concluding that once the defense had established a prima facie case of racial discrimination, its "participation was no longer necessary for the district court to make its determination." 809 F.2d at 1202. As we explained in Thompson, this statement is simply not true: defense counsel continues to serve the two crucial functions of bringing facts and arguments to the attention of the trial court and preserving them for the record. Thompson, 827 F.2d at 1260-61. Likewise, the court in Tucker rejected the rule we adopted in Thompson because it concluded that Batson itself did not require the defense to be present during Batson steps two and three, and because our exception permitting ex parte proceedings in some circumstances threatened to "swallow the rule." See Tucker, 836 F.2d at 338, 340. Our rule is not, however, derived directly from Batson, but rather from the confluence of Batson and the Court's Sixth Amendment jurisprudence. Moreover, simply because a rule is subject to an exception - perhaps even a relatively broad exception - is not a justification for rejecting the rule altogether when the result, in those cases in which the exception does not apply, is to deprive a defendant of his constitutional rights.*fn8

Even assuming some doubt may have existed as to whether the rule Ayala seeks was "dictated by precedent" in the immediate aftermath of the Sixth and Seventh Circuits' decisions in 1987 and 1988, by the time Ayala's conviction became final in 2001, 13 years later, every court to have considered the issue in the interim - state and federal - had rejected, either explicitly or implicitly, the Sixth and Seventh Circuits' view, and had adopted the Thompson rule. See Garrison, 849 F.2d at 106; Roan Eagle, 867 F.2d at 441; Ayala, 6 P.3d at 203; Goode, 943 S.W.2d at 452; Hameed, 88 N.Y.2d at 238; Hood, 245 Kan. at 378; Gray, 317 Md. at 257-58; Jackson, 386 Pa. Super. at 51; Futch, 38 Mass. App. Ct. at 178. The Supreme Court had also, in the interim, acknowledged a version of our rule when it observed (in dicta) that, when a prosecutor challenges a defendant's use of peremptory challenges, "[i]n the rare case in which the explanation for a challenge would entail confidential communications or reveal trial strategy, an in camera discussion can be arranged." Georgia v. McCollum, 505 U.S. 42, 58 (1992). Thus, the California Supreme Court characterized the rule Ayala sought - the Thompson rule - as one that had been "almost universally recognized." Ayala, 6 P.3d at 203. Given that the California Supreme Court's description is correct, the rule that Ayala would have us apply is not Teague-barred.*fn9

[4] Accordingly, we conclude that, at the time Ayala's conviction became final, it was established for purposes of Teague that defense counsel cannot be excluded from Batson steps two and three absent some "compelling justification" for doing so. Thompson, 827 F.2d at 1259-60. The California Supreme Court held that this rule was violated in Ayala's case. It found, and the state does not dispute, that "no matters of trial strategy were revealed" in the hearings at which the prosecution explained its reasons for its peremptory challenges of all the potential black and Hispanic jurors. Ayala, 6 P.3d at 203.*fn10 Thus, the exclusion of defense counsel was in violation of the Constitution, and the only remaining question as to that aspect of the case is whether the constitutional error was prejudicial.


Ayala also claims that the state's loss of an overwhelming majority of the jury questionnaires deprived him of a record adequate for appeal. As the California Supreme Court recognized, Ayala has a due process right to a record sufficient to allow him a fair and full appeal of his conviction. Id. at 208 (citing People v. Alvarez, 14 Cal. 4th 155, 196 n.8 (1996)). If a state provides for a direct appeal as of right from a criminal conviction, it must also provide "certain minimum safeguards necessary to make that appeal 'adequate and effective.' " Evitts v. Lucey, 469 U.S. 387, 392 (1985) (quoting Griffin v. Illinois, 351 U.S. 12, 20 (1956)); see also Coe v. Thurman, 922 F.2d 528, 530 (9th Cir. 1990) ("Where a state guarantees the right to a direct appeal, as California does, the state is required to make that appeal satisfy the Due Process Clause.").

[5] In Boyd v. Newland, we applied these principles in granting the habeas petition of an indigent defendant who had been denied a copy of his voir dire transcript because the state court had, in violation of clearly established federal law, determined that the transcript was not necessary to his Batson appeal. 467 F.3d 1139 (9th Cir. 2006). We held that "all defendants . . . have a right to have access to the tools which would enable them to develop their plausible Batson claims through comparative juror analysis." Id. at 1150. It follows that if the state's loss of the questionnaires deprived Ayala of the ability to meaningfully appeal the denial of his Batson claim, he was deprived of due process.*fn11

This conclusion is not called into question by Briggs v. Grounds, 682 F.3d 1165 (9th Cir. 2012), cited in the dissent. Dissent at 10151. In Briggs, the petitioner had complete access to the juror questionnaires during the course of his state appeal. In fact, he relied heavily on them in presenting a comparative juror analysis to support his Batson claim. 682 F.3d at 1171. Thus Briggs's due process rights were not implicated. The language cited by the dissent is lifted from a section of the opinion discussing whether, because those questionnaires were not included in the federal court record, we should credit the petitioner's characterization of those questionnaires over the state court's characterization. Briggs is irrelevant for our purposes, i.e., whether Ayala's due process rights were implicated when California lost the juror questionnaires, thus rendering them unavailable for his state court appeal.

[6] Ayala is entitled to relief on this claim only if the loss of the questionnaires was prejudicial in se, or if it in conjunction with the Batson error discussed supra served to deprive him of a meaningful appeal. Id.; see also Brecht v. Abraham-son, 507 U.S. 619, 623 (1993). "[I]n analyzing prejudice . . . , this court has recognized the importance of considering the cumulative effect of multiple errors and not simply conducting a balkanized, issue-by-issue harmless error review." Daniels v. Woodford, 428 F.3d 1181, 1214 (9th Cir. 2005) (quoting Thomas v. Hubbard, 273 F.3d 1164, 1178 (9th Cir. 2001)). Here, the loss of the questionnaires increased the prejudice that Ayala suffered as a result of the exclusion of defense counsel from Batson steps two and three, as it further undermined his ability to show that Batson had been violated. Accordingly, in determining whether Ayala is entitled to relief, we evaluate the prejudice caused by the loss of the questionnaires in conjunction with the harm caused by excluding defense counsel from the Batson proceedings.*fn12


The California Supreme Court held that Ayala was not prejudiced by the trial court's exclusion of the defense from the Batson proceedings, by the state's loss of the vast majority of the jury questionnaires, or by the two errors considered together. The Court declared itself "confident that the challenged jurors were excluded for proper, race-neutral reasons," Ayala, 6 P.3d at 204, concluded that the exclusion of defense counsel was "harmless beyond a reasonable doubt," id. (citing Chapman v. California, 386 U.S. 18, 24 (1967)), and held that despite the loss of the questionnaires the record was "sufficiently complete for [it] to be able to conclude that [the struck jurors] were not challenged and excused on the basis of forbidden group bias." Id. at 208.

We now address these same questions, and hold that Brecht v. Abrahamson, 507 U.S. 619 (1993), requires us to reach a different conclusion.


Ayala claims, first, that exclusion of defense counsel from the Batson proceedings necessarily represented structural error, and that he is entitled to relief without further inquiry into whether he was prejudiced. The state court's conclusion that the error here was not structural - a conclusion implicit in its application of the Chapman harmless error standard to evaluate whether Ayala had suffered prejudice - is subject to review under the deferential standard of § 2254(d). See Byrd v. Lewis, 566 F.3d 855, 862 (9th Cir. 2009).

[7] The Supreme Court has defined as "structural" an error that affects "the framework within which the trial proceeds, rather than simply an error in the trial process itself." Arizona v. Fulminante, 499 U.S. 279, 310 (1991). Where this line is drawn is not always clear. Compare, e.g., Waller v. Georgia, 467 U.S. 39, 49 n.9 (1984) (violation of the right to public trial requires automatic reversal), with, e.g., Rushen v. Spain, 464 U.S. 114, 117-18 & n.2 (1983) (denial of a defendant's right to be present at trial is subject to harmless error review). While a violation of Batson is itself structural error, there is no Supreme Court decision addressing whether the exclusion of defense counsel from Batson proceedings constitutes structural error.

Ayala contends, however, that the state court's decision represents an unreasonable application of the Supreme Court's clearly established rule that "no showing of prejudice need be made 'where assistance of counsel has been denied entirely or during a critical stage of the proceedings.' " Brief of Appellant at 22 (quoting Mickens v. Taylor, 535 U.S. 162, 166 (2002)); see also United States v. Cronic, 466 U.S. 648, 659 n.25 (1984).*fn13 The use of the phrase "critical stage" in this excerpt can be somewhat misleading: although the Batson proceedings represented a "critical stage" in the sense that Ayala had the right to counsel during those proceedings, they were not necessarily the sort of "critical stage" at which the deprivation of that right constituted structural error. See United States v. Owen, 407 F.3d 222, 227 (4th Cir. 2005). As the Fourth Circuit has explained, the statements in Mickens and Cronic

rely on the Supreme Court's earlier usage of the phrase "critical stage," in cases such as Hamilton v. [Alabama, 368 U.S. 52 (1961)] and White [v. Maryland, 373 U.S. 59 (1963) (per curiam)] to refer narrowly to those proceedings both at which the Sixth Amendment right to counsel attaches and at which denial of counsel necessarily undermines the reliability of the entire criminal proceeding. . . . [T]he Supreme Court has subsequently used the phrase "critical stage," in cases such as [United States v.] Wade [, 388 U.S. 218 (1967)] and Coleman [v. Alabama, 399 U.S. 1 (1970)], in a broader sense, to refer to all proceedings at which the Sixth Amendment right to counsel attaches - including those at which the denial of such is admittedly subject to harmless-error analysis.

Id. at 228 (emphasis omitted).

In Musladin v. Lamarque, we held that the "clearly established" rule of Cronic is that a "critical stage" where the deprivation of counsel constitutes structural error is one that holds "significant consequences for the accused." 555 F.3d 830, 839 (9th Cir. 2009) (quoting Bell v. Cone, 535 U.S. 685, 695-96 (2002)). We identified as providing guidance in this inquiry Supreme Court decisions holding an overnight trial recess and closing arguments to be two such critical stages. Id. at 839-40 (citing Geders v. United States, 425 U.S. 80 (1976) and Herring v. New York, 422 U.S. 853 (1975)).

[8] Given this fairly ambiguous standard, it was not an unreasonable application of clearly established federal law for the California Supreme Court to conclude that the exclusion of the defense from Batson steps two and three does not amount to a deprivation of the right to counsel such that the likelihood that the jury was chosen by unconstitutional means is "so high that a case-by-case inquiry is unnecessary." Mick-ens, 535 U.S. at 166. As the state points out, it would be somewhat incongruous to conclude that the exclusion of counsel during Batson proceedings is a defect in the very structure of the trial if the same exclusion would be permissible were there some reason to keep the prosecution's justifications confidential. Thus, a "fairminded jurist[ ]," Harrington v. Richter, 131 S.Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)), might conclude that Batson steps two and three are not a Cronic-type "critical stage." Even if we would hold the error to be structural were we to consider the issue de novo, we cannot say that, as the Supreme Court has construed AEDPA, the state court's contrary conclusion was unreasonable. See Musladin, 555 F.3d at 842-43.


[9] Ayala claims next that, even if the trial court's exclusion of the defense was not the sort of constitutional error in se that requires that we presume that in every exclusion case prejudice ensued, it was prejudicial in his case, especially when considered in conjunction with the loss of the questionnaires. In evaluating whether a trial error prejudiced a state habeas petitioner, we must apply the standard set forth in Brecht v. Abrahamson, granting relief only if the error had a "substantial and injurious effect or influence in determining the jury's verdict." 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). We "apply the Brecht test without regard for the state court's harmlessness determination." Pulido v. Chrones, 629 F.3d 1007, 1012 (9th Cir. 2010) (citing Fry v. Pliler, 551 U.S. 112, 121-22 (2007)).*fn14

The Brecht standard has been described as follows:

[I]f one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence.

Merolillo v. Yates, 663 F.3d 444, 454 (9th Cir. 2011) (quoting Kotteakos, 328 U.S. at 765). "Where the record is so evenly balanced that a judge 'feels himself in virtual equipoise as to the harmlessness of the error' and has 'grave doubt about whether an error affected a jury [substantially and injuriously], the judge must treat the error as if it did so.' " Id. (quoting O'Neal v. ...

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