Constantino Carrera v. Robert Ayers, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CONSTANTINO CARRERA, 

Petitioner-Appellant, No. 08-99007

v. D.C. No.

ROBERT L. AYERS, JR., Warden of  1:90-CV-00478-

the California State Prison at San AWI

Quentin, OPINION

Respondent-Appellee.



Appeal from the United States District Court

for the Eastern District of California

Anthony W. Ishii, Chief District Judge, Presiding

Argued and Submitted

June 14, 2010—San Francisco, California

Filed October 4, 2011

Before: Diarmuid F. O’Scannlain, A. Wallace Tashima, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Bea;

Dissent by Judge Tashima

18709

CARRERA v. AYERS 18713

COUNSEL

Stephen B. Bedrick, Law Office of Stephen B. Bedrick, Oak-

land, California, for the petitioner-appellant.

Edmund G. Brown, Attorney General of California, Michael

P. Farrell, Senior Assistant Attorney General, Harry Joseph

Colombo, Supervising Deputy Attorney General, and Clifford

E. Zall (argued), Deputy Attorney General, Sacramento, Cali-

fornia, for the respondent-appellee.

OPINION

BEA, Circuit Judge:

We must today decide whether defense counsel’s failure in

1983 to object to a California prosecutor’s allegedly group

bias-based peremptory challenges constituted ineffective

assistance of counsel, which ineffectiveness now requires a

grant of federal habeas relief under the Sixth Amendment to

the U.S. Constitution.

During the murder trial of Constantino Carrera, defense

18714 CARRERA v. AYERS

counsel failed to object to the prosecutor’s use of peremptory

challenges to strike six Hispanic1 venirepersons. Carrera

appeals the district court’s denial of his petition for a writ of

habeas corpus based on defense counsel’s claimed ineffective

assistance of counsel.

We affirm the district court’s denial of Carrera’s ineffective

assistance of counsel claim.2 Petitioner failed to present evi-

dence sufficient to overcome the strong presumption that

counsel’s performance was reasonable, as set out in Strick-

land v. Washington, 466 U.S. 668 (1984).3

I

Carrera, a Hispanic, was tried and convicted in 1983 for the

robbery and first degree murder of Jack and Carol Hayes,

managers of the Imperial 400 Motel in Mojave, California.

Carrera was sentenced to death. The death sentence has since

been invalidated.

1

The term “Hispanic” is used to mean persons whose birth surnames

derive from Spain, Portugal, or lands colonized by either. No particular

racial characteristics are implied by the term.

2

In a memorandum disposition filed concurrently with this opinion, we

affirm the denial of the remainder of Carrera’s claims.

3

The district court erred when it concluded Carrera failed to show there

was a “strong likelihood of discriminatory purpose,” citing two California

Court of Appeal cases which held that a Wheeler motion could not be suc-

cessful if the prosecutor left two or three members of the cognizable group

on the jury. See Carrera v. Ayers, 2008 WL 681842, at *26 (E.D. Cal.

2008) (citing People v. Davis, 234 Cal. Rptr. 859 (Ct. App. 1987); People

v. Boyd, 212 Cal. Rptr. 873 (Ct. App. 1985)). These cases were not

decided until two and four years after Carrera’s trial in 1983; the district

court should not have relied upon them. We must assess Carrera’s trial

counsel’s performance “as of the time of counsel’s conduct.” Strickland,

466 U.S. at 690. Nonetheless, “[w]e may affirm [the district court] on any

basis supported by the record even if the district court did not rely on that

basis.” United States v. Washington, 969 F.2d 752, 755 (9th Cir. 1992)

(internal quotation marks omitted). As shown below, we affirm on

grounds the proof submitted does not demonstrate Carrera’s defense coun-

sel rendered deficient performance.

CARRERA v. AYERS 18715

During jury selection, the prosecutor used peremptory chal-

lenges to strike six qualified4 Hispanic prospective jurors.

Two Hispanic jurors did sit on Carrera’s jury; an additional

Hispanic person served as an alternate juror. The prosecutor

struck eleven out of forty-one similarly qualified white, non-

Hispanic prospective jurors. The victims—the Hayes—were

White, non-Hispanics. Defense counsel did not object. The

Supreme Court of California affirmed Carrera’s conviction.

Carrera’s state habeas petitions were denied by the Supreme

Court of California without opinion.

Carrera filed an initial petition for habeas corpus in federal

district court on July 31, 1990. The district court denied Carr-

era’s ineffective assistance of counsel claim in an order on

March 11, 2008.5

II

We have jurisdiction over this appeal pursuant to 28 U.S.C.

§§ 1291, 2253. This court reviews de novo a district court’s

decision to deny a petition for a writ of habeas corpus and

reviews for clear error a district court’s findings of fact. Rob-

inson v. Schriro, 595 F.3d 1086, 1099 (9th Cir. 2010).

[1] The Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”) does not apply because Carrera filed his

federal habeas petition before AEDPA’s effective date; thus,

pre-AEDPA law applies. See id. Under pre-AEDPA law, this

court owes no deference to the state court’s resolution of

questions of law or mixed questions of law and fact. Id.

Whether counsel rendered ineffective assistance of counsel is

4

“Qualified” jurors are those jurors passed for cause.

5

The long delay was due, in part, to Carrera exhausting some habeas

corpus claims in state court. In 2004, the district court granted Carrera’s

motion for summary judgment on his claim that the jury’s special circum-

stance findings resulted in a violation of his due process rights—as a

result, Carrera became ineligible for the death penalty.

18716 CARRERA v. AYERS

a mixed question of law and fact which we review de novo.

Id. However, a state court’s findings of fact are “entitled to a

presumption of correctness unless they are not fairly sup-

ported by the record.” Clark v. Brown, 450 F.3d 898, 904 (9th

Cir. 2006) (internal quotation marks and citation omitted).

III

The Sixth Amendment entitles criminal defendants to the

“effective assistance of counsel.” Strickland, 466 U.S. at 686

(internal quotation marks omitted). The Sixth Amendment’s

right to counsel has been incorporated into the Fourteenth

Amendment, so as to apply to the states. Gideon v. Wain-

wright, 372 U.S. 335, 342 (1963). To establish ineffective

assistance of counsel, a defendant must prove: (1) deficient

performance—that is, his counsel’s performance “fell below

an objective standard of reasonableness,” Strickland, 466 U.S.

at 687-88; and (2) prejudice—that is, “a reasonable probabil-

ity that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different,” id. at 694. “If we

conclude that the petitioner fails to satisfy one of the Strick-

land prongs, we need not address the other.” Stanley v.

Schriro, 598 F.3d 612, 619 (9th Cir. 2010) (citing Strickland,

466 U.S. at 697). Because Carrera failed to carry his burden

in proving his defense counsel’s performance was deficient,

we need not and do not address the prejudice prong.6

[2] “Surmounting Strickland’s high bar is never an easy

task.” Padilla v. Kentucky, 130 S. Ct. 1473, 1485 (2010). To

prove deficient performance, a defendant must prove that his

counsel’s performance “fell below an objective standard of

reasonableness.” Strickland, 466 U.S. at 687-88. In evaluating

whether counsel’s performance was deficient, “[j]udicial scru-

tiny of counsel’s performance must be highly deferential.” Id.

at 689. The Court further stated:

6

Similarly, we need not and do not address the dissent’s contention that

prejudice must be presumed under Strickland when counsel’s alleged

errors result in a structural error.

CARRERA v. AYERS 18717

A fair assessment of attorney performance requires

that every effort be made to eliminate the distorting

effects of hindsight, to reconstruct the circumstances

of counsel’s challenged conduct, and to evaluate the

conduct from counsel’s perspective at the time.

Because of the difficulties inherent in making the

evaluation, a court must indulge a strong presump-

tion that counsel’s conduct falls within the wide

range of reasonable professional assistance; that is,

the defendant must overcome the presumption that,

under the circumstances, the challenged action

“might be considered sound trial strategy.” See

Michel v. Louisiana, [350 U.S. 91, 101 (1955)].

There are countless ways to provide effective assis-

tance in any given case. Even the best criminal

defense attorneys would not defend a particular cli-

ent in the same way.

Id. Thus, Strickland places the burden on the defendant to

overcome the “strong presumption” that counsel’s perfor-

mance was within the “wide range of reasonable professional

assistance” and might be considered “sound trial strategy.”

[3] Carrera’s defense counsel’s performance must be

judged based on the law and prevailing legal standards as they

existed at his trial in 1983. Id. at 690 (“[A] court deciding an

actual ineffectiveness claim must judge the reasonableness of

counsel’s challenged conduct on the facts of the particular

case, viewed as of the time of counsel’s conduct.”). Batson v.

Kentucky, 476 U.S. 79 (1986), which held that the use of

peremptory challenges to exclude jurors based solely on their

race is a violation of the Equal Protection Clause of the Four-

teenth Amendment, was not decided until three years after

Carrera’s trial. Although Batson applies retroactively to cases

on direct review, Griffith v. Kentucky, 479 U.S. 314, 328

(1987), it does not apply retroactively on federal habeas

review, Allen v. Hardy, 478 U.S. 255, 260 (1986). Thus, Bat-

son is inapplicable for the purpose of determining whether

18718 CARRERA v. AYERS

trial counsel’s performance in 1983 was deficient. Rather, the

relevant question here is whether in California7 in 1983 “[de-

fense] counsel’s representation fell below an objective stan-

dard of reasonableness” when she failed to make a Wheeler8

motion to discharge the venire because of the prosecutor’s

claimed group-based peremptory challenges. See Strickland,

466 U.S. at 688.

[4] In People v. Wheeler, the Supreme Court of California

held that “the use of peremptory challenges to remove pro-

spective jurors on the sole ground of group bias violates the

right to trial by a jury drawn from a representative cross-

section of the community under . . . the California Constitu-

tion.” 583 P.2d 748, 761-62 (Cal. 1978). Under Wheeler,

courts begin with the presumption that “a party exercising a

peremptory challenge is doing so on a constitutionally permis-

sible ground.” Id. at 762. A party who believes “his opponent

is using his peremptory challenges to strike jurors on the

ground of group bias alone” must first “make a prima facie

case of such discrimination to the satisfaction of the court.”

Id. at 764. The challenging party “must establish that the per-

sons excluded are members of a cognizable group” and “show

a strong likelihood that such persons are being challenged

because of their group association rather than because of any

specific bias.” Id. “[T]he party may show that his opponent

has struck most or all of the members of the identified group

from the venire, or has used a disproportionate number of his

peremptories against the group.” Id. Also relevant are (1)

whether the defendant is a member of the excluded group, and

(2) whether the victim is a member of the group to which the

majority of the remaining jurors belong. Id. “If the court finds

7

The deficiency requirement as to counsel’s assistance, under Strick-

land, may be based on state law. See Valdovinos v. McGrath, 598 F.3d

568, 580 (9th Cir. 2010) (“Trial counsel’s failure to object to evidence

inadmissible under state law can constitute deficient performance under

Strickland.”).

8

People v. Wheeler, 583 P.2d 748 (Cal. 1978).

CARRERA v. AYERS 18719

that a prima facie case has been made, the burden shifts to the

other party to show if he can that the peremptory challenges

in question were not predicated on group bias alone.” Id. at

764-65. “[T]he allegedly offending party must satisfy the

court that he exercised such peremptories on grounds that

were reasonably relevant to the particular case on trial or its

parties or witnesses . . . .” Id. at 765. “If the court finds that

the burden of justification is not sustained as to any of the

questioned peremptory challenges, the presumption of their

validity is rebutted.” Id. Thus, a different venire is drawn and

the jury selection process begins anew. Id.

IV

[5] Carrera contends his defense counsel was ineffective in

failing to make a Wheeler motion in response to the prosecu-

tor’s peremptory challenges against six potential Hispanic

jurors. Carrera must overcome the “strong presumption that

counsel’s conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome

the presumption that, under the circumstances, the challenged

action ‘might be considered sound trial strategy.’ ” Strickland,

466 U.S. at 689. We emphasize that the initial question is not

whether defense counsel would have succeeded had a Whee-

ler motion been made9—a reasonable attorney is not required

to make every potentially meritorious motion. Instead, the

question is whether reasonable counsel might10 have declined

to make a Wheeler motion under these circumstances. To this

question, we answer in the affirmative.

Carrera has not carried his burden to prove defense coun-

sel’s performance was deficient. During state habeas proceed-

9

We need not, and therefore do not, decide whether a Wheeler motion

would have been successful.

10

Put another way, whether failure to make the Wheeler motion “might

be considered sound trial strategy,” Strickland, 466 U.S. at 689 (emphasis

added).

18720 CARRERA v. AYERS

ings, defense counsel was asked: “Was there any strategic

reason why a Wheeler motion was not made as to any or all

of these seven prospective jurors [with Spanish surnames]?”11

In response, defense counsel’s declaration—executed over

four years after jury selection took place in Carrera’s trial—

stated: “I don’t know why at this time.”12 But, a review of the

voir dire transcript demonstrates that, as to five of the six

stricken Hispanic jurors, Carrera’s counsel had good reason

not to bring a Wheeler motion. Further, although the transcript

does not reveal a specific justification for striking the sixth

juror, it implies one; further, Carrera has failed to provide suf-

ficient evidence to overcome the strong presumption in favor

of counsel’s conduct being reasonable.13 Accordingly, Carrera

has not overcome the presumption that his counsel performed

competently.

1. Juror Estrada

Juror Estrada was defense counsel’s residential letter car-

rier. This personal acquaintance provided the prosecution with

a valid reason to challenge Estrada, and a Wheeler motion by

Carrera’s counsel would have been pointless. Defense coun-

sel’s second declaration on state habeas so establishes.

11

This question erroneously refers to seven, rather than six, prospective

Hispanic jurors. During voir dire, Juror Torres explained that she was

“white,” and that her surname was her husband’s last name. Thus, there

were only six Hispanics stricken by the prosecution.

12

During Carrera’s state habeas proceedings, nearly five years after jury

selection, the prosecutor submitted a declaration in which he stated he

could not remember the reasons for his peremptory challenges, but that he

was certain that he did not exercise the peremptory challenges based on

racial grounds.

13

Indeed, the district court reviewed the voir dire of each juror with a

Hispanic surname and concluded that reasons independent of group bias

supported each peremptory challenge. Carrera v. Ayers, No. 1:90-CV-

00478-AWI, 2008 WL 681842, at *11-19, *27-29 (E.D. Cal. March 11,

2008).

CARRERA v. AYERS 18721

2. Juror Garcia

Garcia initially told the trial judge she could not vote for

the death penalty. This response provided the prosecution

with a valid reason to remove this juror in a possible death

penalty case; in California, the jury, not the judge, then and

now decides whether to impose the death penalty. A Wheeler

motion by defense counsel as to Garcia would have been

futile.

In his comparative analysis,14 Carrera contends that Gar-

cia’s equivocal answer as to whether she could vote for the

death penalty was a pretext, as other non-Hispanic jurors gave

similarly equivocal answers but were not stricken. Thomas

Yale, Juror #9, was asked: “Could you consider the imposi-

tion of the death penalty?” Yale responded, “I believe I could,

sir, yes.” To the question “And do you believe in the death

penalty, sir?” he answered “I don’t like to take another life,

but I guess under certain circumstances it is probably justi-

fied.” Vincent Colaustro, an alternate juror, stated he was not

opposed to the death penalty philosophically. To the question

“Could you vote for [the death penalty]?” he responded, “That

is a tough question, a very tough question,” and a “tough deci-

sion.” When asked “Some murderers may warrant the death

penalty, don’t you think?” Colaustro answered “It is hard for

me to judge.” The prosecutor accepted both Yale and

Colaustro.

Carrera contends the answers from Yale and Colaustro are

no less equivocal than Garcia’s, and thus any contention that

the prosecutor struck Garcia based on her equivocal answer

14

In his brief, Carrera performs a comparative analysis as to four of the

six stricken Hispanics in an effort to show the prosecution’s peremptory

challenges were based on group bias. A comparative analysis compares

the questions to, and answers from, similarly situated jurors in an effort

to uncover the actual motivations behind a peremptory challenge. See gen-

erally Miller-El v. Dretke, 545 U.S. 231 (2005).

18722 CARRERA v. AYERS

was a pretext for group bias. This contention fails on the mer-

its. Garcia was asked whether she could vote for the death

penalty if she was “convinced that the death penalty should be

imposed,” and Garcia answered “No.” When asked whether

she could vote for the death penalty under any circumstances,

she answered “No, I don’t think so.” When the judge asked

whether Garcia could “think of a case where the crime for

instance is so vicious that the death penalty should be

imposed,” Garcia finally answered “Well, yeah, in that case,

yeah.”

Garcia’s answers were more unfavorable to the prosecution

than either Yale’s or Colaustro’s answers. The prosecution

would want to remove any juror who was unsure as to the

death penalty; thus it was reasonable for defense counsel to

decline to make a futile Wheeler motion.

3. Juror Celedon

Celedon, like Garcia, expressed doubt about being able to

vote for the death penalty. To the question “[I]f after you have

heard everything you feel the death penalty is the proper pen-

alty, could you vote that way?” Celedon responded “I don’t

know.” Moreover, as noted by the district court, Celedon

seemed “bitter” about her presence on the venire, stating she

had her mind on her work with her special education students.

Doubt as to the use of the death penalty alone is sufficient to

support a peremptory challenge; an attitude resentful of jury

service also supports a peremptory challenge. Defense coun-

sel could reasonably have believed that a Wheeler motion

would fail.15

15

Celedon gave equivocal answers as to whether she could vote for the

death penalty, similar to the answers given by Colaustro—who was not

stricken by the prosecutor. Carrera performs no comparative analysis as to

Celedon. Moreover, Celedon’s answers during voir dire made it clear she

did not want to serve on Carrera’s jury. This is a significant distinction

which could cause the prosecutor to challenge Celedon over Colaustro.

CARRERA v. AYERS 18723

4. Juror Hernandez

Hernandez expressed a strong view towards the death pen-

alty, responding explicitly and unequivocally that she

believed in the death penalty. Also, Hernandez worked for the

probation department. Thus, even if defense counsel subjec-

tively believed the prosecution’s peremptory challenge

against Hernandez was based on group bias, defense counsel

had good reason to allow a pro-death penalty juror to be

removed from the jury.

In his comparative analysis as to Juror Hernandez, Carrera

does not actually compare Hernandez’s questions and answers

to any other juror. Instead, Carrera contends that Hernandez’s

role as a “group counselor housekeeper” in the Kern County

probation department was a pretext for striking Hernandez

based on her Hispanic surname. Even accepting this conten-

tion as true, and assuming defense counsel reasonably

believed Hernandez was stricken for discriminatory reasons,

this does not prove defense counsel performed deficiently in

not bringing a Wheeler motion. As Carrera himself recog-

nizes, Hernandez affirmatively declared her support for the

death penalty—defense counsel would be happy to see Her-

nandez go. Thus, Carrera has not carried his burden in prov-

ing that any reasonable criminal defense attorney would have

made a Wheeler motion under these circumstances.

5. Juror Carrillo

Carrillo, like Hernandez, expressed strong views in favor of

the use of the death penalty. Defense counsel would not be

sad to see Carrillo go, and thus was reasonable in not advanc-

ing a Wheeler motion.

In his comparative juror analysis, Carrera notes that the dis-

trict court stated there were two potential group bias-neutral

reasons for challenging Carrillo: (1) the arrest of Carrillo’s

son at age 13-14, or (2) the prosecutor’s alleged doubts about

18724 CARRERA v. AYERS

Carrillo’s ability to vote for the death penalty. Carrera con-

tends neither of these reasons could support a group bias-

neutral peremptory challenge.

As to her son’s legal problems, Carrera accurately points to

two other non-Hispanic jurors whose children had a criminal

history, both of whom the prosecutor accepted. As to Carril-

lo’s supposed inability to vote for the death penalty, Carrera

contends “there was no evidence in the record to support”

Carrillo’s alleged opposition to the death penalty. But this

actually proves that defense counsel was not ineffective in

failing to raise a Wheeler motion. Even if defense counsel

believed the prosecutor’s peremptory challenge was based on

Carrillo being Hispanic, Carrera cannot show that counsel

acted incompetently by failing to raise a Wheeler motion in

response to a peremptory challenge of an unfavorable, pro-

death penalty juror.

6. Juror Martinez

The sixth stricken Hispanic juror, Martinez, did not say

anything particularly favorable to either the prosecution or the

defense. The district court found that Martinez’s disability,

and the 30-mile drive from his home to the courthouse, “could

give rise to concern over daily punctuality.”

In his comparative analysis, Carrera contends these pur-

ported group bias-neutral reasons could not have formed the

basis of the prosecutor’s peremptory challenge. Although

Martinez was never questioned about the type of disability to

which he was subject, or how it would affect his potential ser-

vice as a juror, he did state that he had been a truck driver,

but had been disabled from that work since 1976—for 7 years

by the time of trial. Martinez’s commute from Delano to court

in Fresno was 30 miles. Another potential juror (Juror Allen)

had a longer commute than Martinez and said the commute

would “cause a problem,” whereas Martinez said his com-

mute would not be difficult. There was nothing to show Allen

CARRERA v. AYERS 18725

was in any way disabled. Allen became a juror in Carrera’s

trial.

Carrera contends that had a Wheeler motion been made,

this evidence would tend to suggest the prosecutor’s peremp-

tory was based on group bias. However, the question we face

is one step removed: Was defense counsel deficient to either

(1) believe a Wheeler motion would fail because the prosecu-

tor could come up with a race-neutral reason to challenge

Martinez, or (2) decide she was happy the prosecutor struck

Juror Martinez?

Martinez presented with a combination of facts which

imply a race-neutral reason for the prosecutor to have excused

him. First, Martinez had a long-standing disability, of seven

years’ duration. Second, this disability had invalidated him

from his work—truck driving. Third, his commute from Del-

ano to the Fresno courthouse was 30 miles long. The descrip-

tion of this disability may have been obvious in the

courtroom, but was left undescribed in the record. One expla-

nation that comes to mind for the prosecutor’s decision to

excuse Martinez: the prosecutor wanted to ingratiate himself

with the remaining jurors by relieving the disabled Martinez

from sitting on a long jury trial.

However, this does not end the inquiry. There are reasons

for striking a potential juror that would not show up in a trial

transcript. See, e.g., Rice v. Collins, 546 U.S. 333, 341 (2006)

(holding that “eye rolling” and “youthfulness” were permissi-

ble grounds for exercising a peremptory challenge). Any

number of reasons for striking Juror Martinez may have been

apparent to every person in the courtroom, yet unavailable to

one reading the transcript of voir dire. But it is Carrera who

has the burden of showing defense counsel was deficient in

failing to bring a Wheeler motion in response to the prosecu-

tor’s peremptories. On this record, Carrera has failed to carry

his burden.

18726 CARRERA v. AYERS

[6] Indeed, during state habeas proceedings, the prosecutor

declared there were race bias-neutral reasons for striking each

Hispanic juror. The prosecutor declared that, although, under-

standably, he could not remember nearly five years later his

reason for striking each juror he had “specific reasons justify-

ing each of [his] challenges not based on race.” The prosecu-

tor further declared:

I believed the crimes Constantino Carrera committed

were so brutal and senseless that any responsible

juror would hold Carrera responsible if I proved my

case. I thought responsible Hispanic jurors would be

very good jurors, as they would not tolerate such

lawless, senseless, brutal and vicious conduct and

would be particularly interested in holding Carrera

responsible for his actions.

Specifically, the prosecutor declared: “I know I didn’t kick off

any jurors just because they were Hispanic. Race was never

a cause for me to excuse any juror.” This declaration provides

some evidence of the fact that—although five years later he

could not detail them—the prosecutor had group bias-neutral

reasons for his exercising peremptory challenges against each

of the six Hispanic jurors, and therefore that defense counsel

was reasonable in not making a Wheeler motion.

Further, this court’s jurisprudence demonstrates the high

level of deference given to counsel’s decisions during jury

selection. In United States v. Quintero-Barraza, 78 F.3d 1344

(9th Cir. 1995), Quintero-Barraza contended, on direct appeal,

that counsel was ineffective for failing to strike a potentially

biased juror. Id. at 1349. During voir dire in Quintero-

Barraza’s criminal trial, prospective juror David Miller, a

criminal justice student, stated his belief that one is guilty

until proven innocent. Id. He also stated that it would be “dif-

ficult” for him to be impartial. Id. Counsel did not strike Mil-

ler; instead, he expressed his admiration for Miller’s

CARRERA v. AYERS 18727

truthfulness: “I was impressed with him. I thought he gave a

very candid answer.” Id. at 1349 & n.4. This court held:

Counsel’s actions in this regard pose a more difficult

question for this Court. It is manifest, however, that

he was making a tactical decision in declining to

strike Miller. Counsel appears to have concluded that

because Miller was honest about his pretrial views,

he would also honestly apply the law as outlined in

the judge’s instructions. Under Strickland, our

review of this tactical decision “must be highly def-

erential,” and we must accord the decision “a strong

presumption” of validity, regardless of whether we

agree with it. We are not persuaded that appellant

has overcome that strong presumption.

Id. (citation to Strickland omitted).

In Fields v. Woodford, 309 F.3d 1095 (9th Cir. 2002),

Fields appealed the district court’s summary judgment of his

habeas petition. Id. at 1097-98. Fields contended “his counsel

rendered ineffective assistance by failing to conduct meaning-

ful voir dire, specifically, by failing to question at all [beyond

the questions asked by the court] six of the jurors who were

ultimately empaneled.” Id. at 1107. Fields further contended

that competent counsel, given potential juror Hillard’s equivo-

cal answer as to impartiality due to an assault against Hil-

lard’s wife, “would have questioned him further about the

incident, challenged him for cause, and if that challenge were

denied, exercised a peremptory challenge to remove him from

the jury.” Id. This court stated:

Whether counsel was deficient is a close call. On the

one hand, it is tough to imagine why he did not pur-

sue what kind of assault Hilliard’s wife suffered,

given that the non-capital charges against Fields

included rape. On the other hand, it may be that he

decided not to emphasize Fields’s behavior through

18728 CARRERA v. AYERS

additional questioning, or that counsel believed Hil-

liard’s statement that he could base his decision

strictly on the evidence despite his wife’s experi-

ence. At oral argument the state suggested another

possibility: that counsel may have wanted to keep

Hilliard on the jury because he was African-

American.

Id. at 1108. This court concluded it could “not say that failure

to inquire beyond the court’s voir dire was outside the range

of reasonable strategic choice.” Id.

In Hovey v. Ayers, 458 F.3d 892 (9th Cir. 2006), Hovey

appealed the district court’s denial of his petition for a writ of

habeas corpus. Id. at 897. One of Hovey’s claims was that

counsel’s voir dire was so perfunctory that counsel failed to

protect Hovey’s rights to an impartial jury. Id. at 909. Specifi-

cally, Hovey contended that “counsel should have questioned

potential jurors on both the widespread pretrial publicity and

Hovey’s decision not to testify.” Id. at 910. This court

rejected the claim. Id. This court stated that “[t]he conduct of

voir dire ‘will in most instances involve the exercise of a

judgment which should be left to competent defense coun-

sel.’ ” Id. (quoting Gustave v. United States, 627 F.2d 901,

906 (9th Cir. 1980)). Counsel testified that he believed the

least voir dire to be the best tactic, explaining that he pre-

ferred to rely on “nonverbal communication.” Id. Thus, this

court held counsel’s performance was not deficient under Str-

ickland. Id.

[7] Similarly here, Carrera has not overcome the strong

presumption that defense counsel’s decision not to challenge

the prosecutor’s peremptory challenges was strategic. There

are many reasons why an attorney may strike a juror. See,

e.g., Felkner v. Jackson, 562 U.S. ___ (2011) (per curiam)

(holding that perceived racial harassment by police and edu-

cational background were permissible grounds for exercising

peremptory challenges); Rice, 546 U.S. at 341 (holding that

CARRERA v. AYERS 18729

“eye rolling” and “youthfulness” were permissible grounds

for exercising a peremptory challenge). Further, there are

many reasons why defense counsel may have supported the

removal of the Hispanics struck by the prosecutor. Indeed,

defense counsel may have been pleased with the resulting

jury, despite the fact that the prosecutor had removed several

Hispanic venirepersons. Moreover, when the prosecutor

peremptorily challenged each Hispanic, defense counsel may

have made a split-second decision that the challenge was on

a permissible, bias-neutral ground, and that a Wheeler motion

would therefore be futile. Carrera does not address these pos-

sibilities. The only evidence Carrera has proffered in support

of the assertion that defense counsel was ineffective in not

making a Wheeler motion is the declaration of an expert, who

was not present at voir dire to observe the demeanor or

appearance of the prospective jurors and did not even review

any part of the voir dire transcript. This court has previously

rejected similar (and stronger) evidence as unpersuasive. See

Paradis v. Arave, 954 F.2d 1483, 1491 (9th Cir. 1992) (reject-

ing an attorney’s testimony in support of habeas petitioner’s

ineffective assistance of counsel claim because the attorney

was not present to observe the demeanor of jurors and

reviewed voir dire of only the jurors ultimately empaneled),

rev’d on other grounds, 507 U.S. 1026 (1993).

Judge Tashima, in dissent, contends that defense counsel’s

failure to make a Wheeler motion was deficient performance.

Respectfully, the dissent errs in three significant ways. First,

the dissent focuses on whether defense counsel could estab-

lish a prima facie case under Wheeler, while largely ignoring

Wheeler’s second step—the prosecutor’s opportunity to

respond with a group bias-neutral reason for exercising the

peremptory challenge. Even if we were to assume a prima

facie case could have been made, a group bias-neutral reason

for exercising a peremptory challenge would defeat a Wheeler

motion, and the presence of such a reason could cause a rea-

sonable defense attorney under the circumstances to decline

18730 CARRERA v. AYERS

to make a Wheeler motion.16 The group bias-neutral reasons

defense counsel could have anticipated would be forthcoming

are set forth above as to each venireperson struck.

Second, the dissent employs the “smell test” summarily to

conclude that “a reasonable attorney in the same circum-

stances would have objected.” Dissent at 18738. However, it

is not clear why this is so. To the extent the dissent concludes

a reasonable attorney should have made a Wheeler motion

based solely on the percentage of each race that was chal-

lenged by the prosecutor, this ironically reinforces the very

racial stereotypes that Wheeler and Batson were meant to pre-

vent. See Batson, 476 U.S. at 89 (“[T]he Equal Protection

Clause forbids the prosecutor to challenge potential jurors

solely on account of their race or on the assumption that black

jurors as a group will be unable impartially to consider the

State’s case against a black defendant.”); see also Powers v.

Ohio, 499 U.S. 400, 410 (1991) (“A person’s race simply is

unrelated to his fitness as a juror. We may not accept as a

defense to racial discrimination the very stereotype the law

condemns.” (internal quotation marks and citation omitted)).

[8] Further, the dissent brushes aside as irrelevant the pos-

sibility that defense counsel was pleased with the resulting

jury.17 It also mistakes the role of defense counsel. Defense

16

The dissent points out that the prosecutor failed—almost five years

after jury selection—to remember the reasons he struck the Hispanic

jurors in this case. Dissent at 18734 n.2. Contrary to the dissent’s conten-

tion, however, the prosecutor’s failure to remember does not mean that no

group bias-neutral reasons existed. Indeed, the prosecutor declared under

penalty of perjury that he had group bias-neutral reasons at the time, and

could have explained them had a Wheeler motion been made. See supra

page 18726.

17

The dissent ignores the record to conclude that “trial counsel’s failure

to make a Wheeler motion was not based on trial strategy.” Dissent at

18737. During state habeas proceedings, defense counsel testified she did

not know why she failed to make a Wheeler motion “at this time”—that

is, at the time of her declaration over four years after jury selection. This

implies that there was a reason defense counsel did not make a Wheeler

motion, but that she could not remember it due to the passage of time.

CARRERA v. AYERS 18731

counsel’s duty is to represent her client with zeal and vigor in

an effort to acquit her client of the charged counts. It is not

deficient performance to decline to move to strike a jury that

defense counsel believes gives her client the best chances of

being acquitted—even if defense counsel is convinced the

prosecutor exercised his peremptory challenges in an imper-

missible manner. As discussed in depth above, a potential

juror who is in favor of the death penalty is a bad juror for a

death-penalty-eligible defendant, even if the defendant and

that juror happen both to be Hispanic. Thus, defense counsel

would be reasonable in failing to make a Wheeler motion, and

to require counsel to object to the jury under these circum-

stances would be to require counsel to put the interests of her

client second. This we cannot hold.

[9] Lastly, the dissent is misguided in concluding that

under these circumstances, a reasonable attorney would have

at least “developed the record.” Dissent at 18738. This phrase,

“develop a record,” is often found in proceedings such as

habeas corpus hearings or civil depositions, where evidence

can be introduced by question and answer. This phrase sounds

as if it is something every reasonably proficient attorney can

and should do, but the dissent overlooks one thing: the only

way to “develop a record” as to group or race bias in jury

selection is to make a Wheeler motion. This forces the prose-

cutor to justify the peremptory challenge, and if the prosecu-

tor fails to provide a reasonable group bias-neutral

justification, the whole jury is replaced. Wheeler, 583 P.2d at

765 (holding that the remedy for a successful Wheeler motion

is that “a different venire shall be drawn and the jury selection

process may begin anew”). Thus, to “develop a record,”

defense counsel would have to risk losing a jury from which

several pro-death penalty jurors had been stricken. If a new

panel resulted in seating more pro-death penalty jurors, would

the dissent be prepared to hold the Wheeler/Batson challenge

was ineffective assistance of counsel? To incur the risk of los-

ing a fairly good jury would not seem to be “reasonable repre-

sentation,” and surely is not required under Strickland.

18732 CARRERA v. AYERS

V

[10] At the end of the day, this case comes down to Carr-

era’s failure to carry his burden of proof so as to overcome the

presumption this court has cited. Strickland requires that the

panel “indulge a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assis-

tance; that is, the defendant must overcome the presumption

that, under the circumstances, the challenged action ‘might be

considered sound trial strategy.’ ” Strickland, 466 U.S. at 689.

Not “must,” not “would,” but “might.” Based on the tactical

nature of jury selection, the presence of some reasons for not

bringing Wheeler motions to challenge the prosecutor’s

peremptory challenges of these specific jurors, and the dearth

of evidence Carrera provided to overcome the strong pre-

sumption in favor of defense counsel’s reasonableness—

Carrera presented only a deposition from an expert who nei-

ther witnessed voir dire to observe the demeanor of the attor-

neys and jurors involved, nor even reviewed any part of the

voir dire transcript—Carrera’s Strickland claim must be

denied.

AFFIRMED.

TASHIMA, Circuit Judge, dissenting:

Constantino Carrera, who is Hispanic, was tried and con-

victed in 1983 of the double murder of a white couple in Kern

County, California. In the course of jury selection, the prose-

cutor exercised the State’s peremptory challenges against six

of eight Hispanic venire persons. Although People v. Whee-

ler, 583 P.2d 748 (Cal. 1978), had been the law in California

for five years, defense counsel did not raise a Wheeler chal-

lenge against the prosecution’s highly disproportionate use of

its peremptory challenges to excuse 75 percent of Hispanic

venire persons who were called. Because, in failing to object

CARRERA v. AYERS 18733

and failing to develop the record, Carrera’s trial counsel

ignored an obvious prima facie case that the prosecutor was

using his peremptory challenges disproportionately to strike

Hispanic jurors in violation of Wheeler, I respectfully dissent

from the majority’s denial of the writ.1 Because this deficient

performance resulted in a structural error, prejudice must be

presumed. Accordingly, I would grant Carrera habeas relief.

I

Carrera has overcome the “strong presumption” that his

trial counsel’s failure to object was “sound trial strategy.”

Strickland v. Washington, 466 U.S. 668, 689 (1984). Trial

counsel could not offer any reason or explanation for her fail-

ure to make a Wheeler challenge. In these circumstances, Car-

rera has established that his trial counsel failed properly to

develop the record and to object where there was an obvious

prima facie case of the biased use of peremptory challenges.

This was not “sound trial strategy” — insofar as the record

shows, it was no strategy at all — nor does it fall within the

“wide range of reasonable professional assistance.” Id.

1

Although the district court conducted a careful review of the voir dire

of the eight Hispanic jurors, as the majority recognizes, Maj. Op. at 18714

n.3, the district court erred in its Wheeler analysis. The district court con-

cluded that Carrera failed to show that there was a “strong likelihood of

discriminatory purpose,” citing two California Court of Appeal cases

which held that a Wheeler motion could not be successful if the prosecutor

left two or three members of the cognizable group on the jury. See Carr-

era v. Ayers, 2008 WL 681842, at *26 (E.D. Cal. 2008) (citing People v.

Davis, 234 Cal. Rptr. 859 (Ct. App. 1987); People v. Boyd, 212 Cal. Rptr.

873 (Ct. App. 1985)). But these cases were not decided until two and four

years after Carrera’s trial in 1983, so they could not have been the law in

California at the time of Carrera’s trial. Moreover, these cases were

quickly overruled by the California Supreme Court. See People v. Snow,

746 P.2d 452 (Cal. 1987). Thus, although the district court acknowledged

that, under Strickland, it was required to assess Carrera’s trial counsel’s

“performance in the context of what the applicable law was at the time of

Carrera’s trial,” it nevertheless erred by evaluating counsel’s effectiveness

on the basis of case law that was not the law of California at the time of

Carrera’s trial.

18734 CARRERA v. AYERS

Under Wheeler, a party may establish a prima facie case of

the discriminatory use of peremptory challenges by “show-

[ing] that his opponent has struck most or all of the members

of the identified group from the venire, or has used a dispro-

portionate number of his peremptories against the group.” 583

P.2d at 764. This statistical evidence is bolstered if, as is the

case here: (1) the defendant is a member of the excluded

group; and (2) the victim is a member of the group to which

the majority of remaining jurors belong. Id.

Had she objected, Carrera’s trial counsel clearly could have

made a prima facie case that the prosecutor used his peremp-

tory challenges to eliminate “members of a cognizable

group”: Hispanics. The prosecution used its peremptory chal-

lenges to strike 75 percent of potential Hispanic jurors and

only 27 percent of the potential non-Hispanic white jurors.

Carrera is Hispanic. The victims were white. This is a prima

facie case of bias under Wheeler.

Was the fairness of Carrera’s trial compromised because

the prosecutor used his peremptory challenges to strike most

of the Hispanic potential jurors on the basis of group bias? Of

course, we will never know the answer. Because Carrera’s

trial counsel failed to object, the prosecutor never had to jus-

tify his peremptory challenges.2 Indeed, Carrera’s counsel

failed even to make a record, so there is little to indicate what

the prosecutor’s “group bias”-neutral reasons may have been,

if any, for striking the potential Hispanic jurors.3 This is not

2

Tellingly, when asked in post-trial proceedings, the prosecutor could

not recall his reasons for striking five of the six potential Hispanic jurors,

although he denied that his actions were racially motivated. This gives rise

to a reasonable inference that there was no apparent reason, other than

group bias, to challenge them.

3

Trial counsel’s failure even to make a record on the dismissal of the

potential Hispanic jurors, particularly potential juror Martinez, was defi-

cient performance. See Wheeler, 583 P.2d at 764 (explaining that a party

who suspects his opponent is striking potential jurors based on group bias

“should make as complete a record of the circumstances as is feasible”).

CARRERA v. AYERS 18735

the sort of small, inevitable trial error which led the Supreme

Court to observe, “A defendant is entitled to a fair trial but not

a perfect one.” Lutwak v. United States, 344 U.S. 604, 619

(1953). Rather, it is the kind of fundamental error that calls

into question the basic fairness of the trial mechanism itself.

It cannot, and should not, be explained away by speculation

on what possible reasons might have motivated either the

prosecutor or defense counsel.

In the absence of any record evidence to support its posi-

tion, the majority searches for snippets in the voir dire tran-

script to justify that which, prima facie, appears motivated by

bias. “But it does not matter that the prosecutor might have

had good reasons to strike the prospective jurors. What mat-

ters is the real reason they were stricken.” Paulino v. Castro,

371 F.3d 1083, 1090 (9th Cir. 2004).4 The majority engages

in exactly the kind of “judicial speculation” of which the

Supreme Court expressly disapproves. See Johnson v. Cali-

fornia, 545 U.S. 162, 173 (2005) (criticizing “the imprecision

of relying on judicial speculation to resolve plausible claims

of discrimination”). The majority fails to explain why it is

appropriate, on habeas review, to do exactly what trial courts

have been instructed they absolutely may not do: speculate

about the prosecutor’s reasons for striking potential jurors

who belong to a cognizable group.5

Critically, Wheeler does not require the removal of a spe-

cific number or percentage of the targeted group in order to

establish a prima facie violation. See 583 P.2d at 764

(explaining that a party can make a prima facie case by

4

As the majority notes, Maj. Op. at 18715, this is a pre-AEDPA case.

5

This differs from the legitimate use of comparative juror analysis,

which takes place at the third step of a Wheeler or Batson challenge, after

the prosecution proffers bias-neutral reasons for striking members of a

cognizable group. See Lewis v. Lewis, 321 F.3d 824, 830-31 (9th Cir.

2003) (explaining that the court may review the voir dire record to deter-

mine whether the prosecutor’s proffered reasons are credible or pretex-

tual); Wheeler, 583 P.2d at 765.

18736 CARRERA v. AYERS

“show[ing] that his opponent has struck most or all of the

members of the identified group from the venire”) (emphasis

added). A violation occurs, and a new jury must be drawn, if

even a single peremptory was based on group-bias. See id. at

765. As the California Supreme Court stated:

If the court finds that the burden of justification is

not sustained as to any of the questioned peremptory

challenges, the presumption of their validity is rebut-

ted. Accordingly, the court must then conclude that

the jury as constituted fails to comply with the repre-

sentative cross-section requirement, and it must dis-

miss the jurors thus far selected. So too it must quash

any remaining venire, since the complaining party is

entitled to a random draw from an entire venire —

not one that has been partially or totally stripped of

members of a cognizable group by the improper use

of peremptory challenges. Upon such dismissal a dif-

ferent venire shall be drawn and the jury selection

process may begin anew.

Id. (emphases added). Accordingly, the absence of a “group

bias”-neutral reason for striking even one potential juror con-

stitutes a Wheeler violation.

The record does not support the majority’s conclusion that

there were reasons neutral of “group bias” to strike all six of

the Hispanic potential jurors, and that such reasons were so

obvious or apparent as to excuse trial counsel from making a

Wheeler motion. The majority admits that, even under its

speculative review of the record, there was no obvious reason

for striking potential juror Martinez. When one compares the

voir dire responses of Martinez (who was struck) and Allen

(a non-Hispanic white juror who was not struck), no obvious,

permissible reason emerges for striking one and not the other,

both of whom lived at least thirty miles from the courthouse.

CARRERA v. AYERS 18737

The majority speculates that Martinez was excused because

he was disabled, even while admitting that the record does not

disclose what his disability was. Maj. Op. at 18725. The

majority so speculates in spite of the fact that Martinez was

qualified to serve.6 See Maj. Op. at 18715 & n.4.

Indeed, a closer look at the voir dire of Allen reveals the

folly of the majority’s approach of parsing the record to con-

struct hypothetical reasons for dismissing or not dismissing

potential jurors. Asked whether he was familiar with the case,

Allen stated that he “heard it in the newspapers” and he had

co-workers who lived at the Imperial Motel where the mur-

ders took place. If Mr. Allen had instead been “Mr. Allende,”

and subject to a peremptory challenge by the prosecution, the

majority would have concluded that the dismissal was “group

bias”-neutral because the potential juror was familiar with the

case and the scene of the crime.

Importantly, trial counsel’s failure to make a Wheeler

motion was not based on trial strategy. See Strickland, 466

U.S. at 689. During state habeas proceedings, Carrera’s trial

counsel testified that she did not know why she failed to make

a Wheeler motion during voir dire. Indeed, she has never

articulated a strategic reason for failing to make a Wheeler

motion.

Of course, trial counsel’s utter failure to present a reason-

able explanation for her failure to object would be of no

moment if it fell “within the range of reasonable representa-

tion.” See Morris v. California, 966 F.2d 448, 456 (9th Cir.

6

There is no end to the majority’s speculation. Its own speculation

would have the prosecutor use his peremptory strikes in a manner contrary

to law: “[T]he prosecutor wanted to ingratiate himself with the remaining

jurors by relieving the disabled Martinez from sitting on a long jury trial.”

Maj. Op. at 18725. But it has been well-established for many years that

the law forbids discriminating against the disabled in jury service. See,

e.g., Greater L.A. Council on Deafness, Inc. v. Zolin, 812 F.2d 1103 (9th

Cir. 1985).

18738 CARRERA v. AYERS

1991) (relying on defense counsel’s explanation that his deci-

sion not to call a certain witness “was a tactical one,” made

to avoid linking the defendant “to prior involvement with

cocaine”). It does not. In spite of the majority’s hypothetical

musings, no professional strategic decision can be discerned

for trial counsel’s failure to object to the disproportionate

striking of Hispanic potential jurors. It is telling that the State

does not even attempt to find “group bias”-neutral reasons in

the record, and the majority’s concluding speculation is only

that Carrera’s “counsel may have been pleased with the

resulting jury.” Maj. Op. at 18729. See also Maj. Op. at 18730

(stating the “possibility that defense counsel was pleased with

the resulting jury”).

Given that the defendant was Hispanic and the victims

were white, Carrera’s lawyer should have picked up on the

prosecutor’s apparent attempt to skew the jury. It does not

take an expert to conclude that something is fishy — it simply

does not pass the smell test — when a prosecutor strikes 75

percent of Hispanics on a jury and only 27 percent of non-

Hispanic whites. The majority speculates that “defense coun-

sel may have been pleased with the resulting jury, despite the

fact that the prosecutor had removed several Hispanic

venirepersons.” Maj. Op. at 18729. She may have been

“pleased” (although the majority does not say why she, or any

reasonable attorney, would have been), but that is not the

question. The question is whether a reasonable attorney in the

same circumstances would have objected. Any reasonable

attorney would have done so. At the very least, a reasonable

attorney would have developed the record. Accordingly, the

failure to bring a Wheeler motion constituted deficient perfor-

mance.7

7

The majority cites three completely inapposite cases in an attempt to

bolster its conclusion that Carrera’s trial counsel’s performance was not

deficient. None of these cases deals with a defense attorney’s failure to

monitor the prosecutor’s voir dire for signs of group bias. Rather, each of

the cases cited by the majority deals with ineffective assistance of counsel

CARRERA v. AYERS 18739

II

We have held that the discriminatory use of peremptory

challenges, known in federal law as Batson error,8 is a struc-

tural error, rather than trial error, that requires reversal. E.g.,

Kesser v. Cambra, 465 F.3d 351 (9th Cir. 2006) (en banc).

The discriminatory use of peremptory challenges is not

claims premised on the defense attorney’s failure to challenge a single,

possibly biased juror or to ask more questions during voir dire. First, the

majority relies on United States v. Quintero-Barraza, 78 F.3d 1344 (9th

Cir. 1995), for the proposition that this court defers to counsel’s decisions

during jury selection. Maj. Op. at 18726-27. In fact, we held that we must

be “highly deferential” where trial counsel makes a tactical decision in

jury selection whether to challenge a potential juror on the ground of bias.

78 F.3d at 1349. We therefore rejected Quintero-Barraza’s ineffective

assistance of counsel claim premised on defense counsel’s failure to strike

a single juror where counsel explained that he considered the juror to be

honest and impressive, notwithstanding the juror’s statement that he would

find it difficult to be impartial. Id. Second, the majority cites Fields v.

Woodford, 309 F.3d 1095 (9th Cir. 2002). Maj. Op. at 18727-28. Fields

was decided on the ground of absence of prejudice. Id. at 1107-08

(remanding for findings on the possible bias of a single juror but declining

to conclude that the defendant’s counsel was ineffective for failing to

question other jurors who did not appear possibly biased on the record,

and so could not have prejudiced the result). Finally, the majority relies

on Hovey v. Ayers, 458 F.3d 892 (9th Cir. 2006), see Maj. Op. at 18728,

in which we held that defense counsel was not deficient where his limited

questioning during voir dire was reasonably explained as a tactical deci-

sion to not remind the jurors of publicity the case had received four years

before the trial. Id. at 910.

Here, Carrera does not question how his trial counsel exercised her own

peremptory challenges or her questioning of potential jurors. Instead, he

challenges his trial counsel’s utter failure to object to the facially discrimi-

natory manner in which the prosecutor exercised his peremptory chal-

lenges. Most importantly, unlike the cases relied on by the majority, there

is no evidence in the record that Carrera’s trial counsel had any tactical

reason for her failure to act in the face of a prima facie case of group bias.

We cannot be “highly deferential” to a tactical decision that does not exist

in the record and, indeed, one trial counsel herself admits she never made.

8

See Batson v. Kentucky, 476 U.S. 79 (1986).

18740 CARRERA v. AYERS

merely a trial error which can be weighed in the context of

other admitted evidence; it is a defect in the trial mechanism.

Thus, I would hold that Wheeler error, like Batson error, is

structural error, and prejudice must be presumed. See Arizona

v. Fulminante, 499 U.S. 279, 309-10 (1991) (explaining that

unlike a trial error, structural errors require reversal because

they “affect[ ] the framework within which the trial proceeds,

rather than simply an error in the trial process itself”).

Where ineffective assistance of counsel results in a struc-

tural error, prejudice must be presumed. See Owens v. United

States, 483 F.3d 48, 64 n.14 (1st Cir. 2007) (presuming preju-

dice where ineffective assistance of counsel led to a closed

trial, explaining that “prejudice is presumed in cases of struc-

tural error not because the risk of prejudice is high, but

because it is impossible to determine the extent of the preju-

dice”); see also McGurk v. Stenberg, 163 F.3d 470, 475 (8th

Cir. 1998) (“[W]hen counsel’s deficient performance causes

a structural error, we will presume prejudice under Strick-

land.”); Gov’t of Virgin Islands v. Forte, 865 F.2d 59, 63-64

(3d Cir. 1989). These cases recognize that structural error

exists because, in certain cases, prejudice is impossible to

quantify. It hardly makes sense to require a petitioner “to do

what the Supreme Court has said is impossible.” Owens, 483

F.3d at 65.

This is particularly true with respect to a Wheeler or Batson

error. See Powers v. Ohio, 499 U.S. 400, 412 (1991) (“Active

discrimination by a prosecutor during [jury selection] con-

dones violations of the United States Constitution within the

very institution entrusted with its enforcement, and so invites

cynicism respecting the jury’s neutrality and its obligation to

adhere to the law.”). The Supreme Court further stated:

A prosecutor’s wrongful exclusion of a juror by a

race-based peremptory challenge is a constitutional

violation committed in open court at the outset of the

proceedings. The overt wrong, often apparent to the

CARRERA v. AYERS 18741

entire jury panel, casts doubt over the obligation of

the parties, the jury, and indeed the court to adhere

to the law throughout the trial of the cause. The voir

dire phase of the trial represents the jurors’ first

introduction to the substantive factual and legal

issues in a case. The influence of the voir dire pro-

cess may persist through the whole course of the trial

proceedings.

Id. (internal quotation marks and citation omitted).

To show actual prejudice, the petitioner would be required

to put forth evidence as to whether there was a reasonable

probability that a jury with a different racial composition

would have reached a different verdict. See Strickland, 466

U.S. at 694. But the “consequences [of a structural error] . . .

are necessarily unquantifiable and indeterminate,” which

would place an impossible burden on the petitioner. Sullivan

v. Louisiana, 508 U.S. 275, 282 (1993). Requiring a petitioner

to prove prejudice in such a situation would prevent structural

errors, the most serious type of error, from forming the basis

of an ineffective assistance of counsel claim. Thus, I would

hold that prejudice must be presumed from defense counsel’s

failure to make a Wheeler motion in response to the State’s

discriminatory use of peremptory challenges.

III

Because I would grant a conditional writ of habeas corpus

requiring a new trial with a Wheeler (and Batson) compliant

jury, I respectfully dissent.