Constantino Carrera v. Robert Ayers, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CONSTANTINO CARRERA , No. 08-99007

Petitioner-Appellant,

D.C. No.

v. 1:90-CV-00478-AWI

ROBERT L. AYERS, JR., OPINION

Warden of the California

State Prison at San Quentin,

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 En Banc

June 20, 2012—Pasadena, California

Filed November 6, 2012

Before: Alex Kozinski, Chief Judge, Harry Pregerson,

William A. Fletcher, Raymond C. Fisher,

Marsha S. Berzon, Richard C. Tallman, Richard R. Clifton,

Susan S. Ikuta, N. Randy Smith, Mary H. Murguia, and

Morgan Christen, Circuit Judges.

Opinion by Judge William A. Fletcher;

Dissent by Judge Pregerson

2 CARRERA V . AYERS

SUMMARY*

Habeas Corpus/Death Penalty

The en banc court affirmed the district court’s denial of a

28 U.S.C. § 2254 habeas corpus petition in a pre-AEDPA

case, raising a challenge under Batson v. Kentucky, 476 U.S.

79 (1986), for lack of prejudice. The panel held that Carrera

could not establish prejudice at trial because he could not

make a strong likelihood that prospective Hispanic jurors

were challenged because of any specific bias. See People v.

Wheeler, 583 P.2d 748 (Cal. 1978). The panel also held that

Carrera could not establish prejudice by showing that a

Wheeler objection would have succeeded on direct appeal,

based on the law as it existed when his conviction became

final on direct appeal. The panel explained that, despite

significant changes in the law while Carrera’s case was

pending on appeal, the California Supreme Court would have

applied the Wheeler standard instead of the Batson standard.

Judge Pregerson dissented. He disagreed with the

majority which, although it did not dispute that Carrera’s

attorney erred, found that the ineffective assistance claim

would not have had a “reasonable probability” of succeeding.

Under his view, the majority reached its conclusion by

misreading the record and the law. Judge Pregerson would

hold that Carrera did not receive a fair trial because the

prosecutor purposefully excluded Hispanic jurors and

Carrera’s attorney did nothing to challenge him.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

CARRERA V . AYERS 3

COUNSEL

Stephen B. Bedrick, Oakland, CA for the Petitioner-

Appellant.

Clifford Edward Zall, Office of the California Attorney

General, Sacramento, CA for the Respondent-Appellee.

OPINION

W. FLETCHER, Circuit Judge:

Petitioner-Appellant Constantino Carrera was found guilty

in 1983 of first-degree murder of two people during a robbery.

Carrera is Hispanic. The victims were white. During voir

dire, the prosecutor peremptorily challenged 75 percent of the

Hispanic-surnamed venirepersons. By contrast, he

peremptorily challenged only 26 percent of the white, non-

Hispanic-surnamed venirepersons. At the time of Carrera’s

trial, People v. Wheeler, 22 Cal. 3d 258 (Cal. 1978), which

held the use of peremptory challenges to strike venirepersons

based solely on race to be a violation of the California

Constitution, had been the law in California for five years.

Batson v. Kentucky, 476 U.S. 79 (1986), had not yet been

decided. Carrera’s counsel did not object under Wheeler to

the prosecutor’s peremptory challenges.

Carrera contends on habeas that his counsel’s failure to

make a Wheeler objection was ineffective assistance of

counsel under Strickland v. Washington, 466 U.S. 668 (1984).

4 CARRERA V . AYERS

We affirm the district court’s denial of relief, holding that

Carrera has not satisfied the prejudice prong of Strickland.1

I. Background

Carrera and another person were convicted in separate

trials in Kern County Superior Court in California for killing

a white couple during a robbery. See Carrera v. Ayers, No.

1:90-CV-00478-AWI, 2008 WL 681842, at *1 (E.D. Cal.

Mar. 11, 2008). The other person, then seventeen years old,

was statutorily ineligible for the death penalty and was

sentenced to fifty years to life. Id. at *2 n.3. Carrera, twenty

years old at the time of the crime, was convicted of first-

degree murder with special circumstances and was sentenced

to death.

The California Supreme Court affirmed Carrera’s

conviction and death sentence on direct appeal. People v.

Carrera, 49 Cal. 3d 291 (1989). The court held that there had

been multiple errors at trial, including an instructional error

relating to Carrera’s intent to kill, but that the errors were all

harmless. See id. at 309–11. Carrera filed his federal habeas

petition in 1990, before the effective date of the Anti-

Terrorism and Effective Death Penalty Act (“AEDPA”). See

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

The federal district court set aside Carrera’s death

sentence. The court found repeated instances of prosecutorial

misconduct during trial: The prosecutor failed to correct

1

W e address in this opinion only Carrera’s Wheeler-based Strickland

claim. W e address his other claims in an unpublished memorandum filed

simultaneously with this opinion.

CARRERA V . AYERS 5

testimony he knew was perjurious; he concealed inducements

to two testifying jailhouse snitches; and he presented flatly

inconsistent factual narratives at the separate trials of Carrera

and his co-perpetrator. The court concluded that an intent-to-

kill instructional error was not harmless because its

application was tainted by prosecutorial misconduct.

The district court subsequently denied Carrera’s guilt-

phase claims. One of those was a claim that his trial counsel

had provided ineffective assistance in failing to make a

Wheeler objection. Carrera appealed.

II. Jurisdiction and Standard of Review

We have appellate jurisdiction under 28 U.S.C. §§ 1291

and 2253. “We review the district court’s denial of

[Carrera’s] habeas petition de novo, and the district court’s

findings of fact for clear error.” Robinson, 595 F.3d at 1099.

Because Carrera filed his federal habeas petition before the

effective date of the AEDPA, we consider it under the pre-

AEDPA standard of review. Id. Ineffective assistance of

counsel claims present mixed questions of law and fact. Id.

“Under pre-AEDPA law, we owe no deference to the state

court’s resolution of questions of law or mixed questions of

law and fact.” Id. “We review the district court’s findings of

fact for clear error.” Id.

III. Discussion

A. Voir Dire

Prior to voir dire, when the racial and ethnic composition

of the venire panel was still unknown, Carrera’s counsel

6 CARRERA V . AYERS

moved to quash the venire on the ground that there were

insufficient procedures in place to ensure a panel that

reflected the ethnic and racial diversity of Kern County. See

People v. Buford, 182 Cal. Rptr. 904, 905 (Cal. Ct. App.

1982) (addressing a jury challenge “on the ground that blacks

were underrepresented on that jury and on other juries in [the]

County as a result of systematic exclusion in the jury-

selection process” (footnote omitted)). When the venire panel

was chosen, it turned out that between eleven and fourteen

members of the panel had Hispanic surnames, and at least

four members were black. Carrera’s counsel withdrew her

motion to quash.

During voir dire, the prosecutor and Carrera’s defense

counsel both asked questions directed to ethnicity. The

prosecutor asked Hispanic-surnamed venirepersons if the fact

that the defendant was of “Spanish descent” would affect their

decision-making. Carrera’s counsel also asked questions

directed to ethnicity. For example, she asked venireperson

Martinez:

If you were chosen as a juror in this case and you were

the only one that had a Spanish surname sitting on the

panel, would you feel that you would be under an

undue hardship, so to speak, for want of a better word,

feeling you would have to vote just as everyone else

did simply because they might claim because you

have got a Spanish surname maybe you were being

more lenient or that sort of thing?

The prosecutor exercised peremptory challenges to 75

percent of the venirepersons with Hispanic surnames. Of

eight prospective jurors with Hispanic surnames, the State

CARRERA V . AYERS 7

exercised peremptory challenges to six; the other two were

seated on the jury. An additional person with a Hispanic

surname was seated as an alternate. By contrast, the

prosecutor exercised peremptory challenges against 26

percent (eleven of forty-one) white, non-Hispanic-surnamed

prospective jurors. Five years earlier, the California Supreme

Court had held that “the use of peremptory challenges to

remove prospective 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 article I, section 16, of

the California Constitution.” Wheeler, 22 Cal. 3d at 276–77.

Carrera’s counsel made no objection under Wheeler to the

prosecutor’s use of peremptory challenges to Hispanic-

surnamed venirepersons.

B. Ineffective Assistance of Counsel Claim

Carrera contends that his trial counsel’s failure to make a

Wheeler objection was ineffective assistance of counsel in

violation of his Sixth Amendment right to counsel. To

establish ineffective assistance of counsel under Strickland,

a defendant must show both deficient performance and

prejudice. Because we conclude that Carrera has not carried

his burden of proof to show prejudice, we need not decide

whether he has shown deficient performance.

“[A]ny deficiencies in counsel’s performance must be

prejudicial to the defense in order to constitute ineffective

assistance under the Constitution.” Strickland, 466 U.S. at

692. “The defendant must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine

8 CARRERA V . AYERS

confidence in the outcome.” Id. at 694 (emphasis added).

The petitioner has “the burden of showing that the decision

reached would reasonably likely have been different absent

the errors.” Id. at 696.

The first step in a Wheeler objection was to show a prima

facie case of unlawful discrimination. “If a party believes his

opponent is using his peremptory challenges to strike jurors

on the ground of group bias alone, he must raise the point in

timely fashion and make a prima facie case of such

discrimination to the satisfaction of the court.” Wheeler,

22 Cal. 3d at 280. A prima facie case under Wheeler had

three elements:

First . . . [the party] should make as complete a record

of the circumstances as is feasible. Second, he must

establish that the persons excluded are members of a

cognizable group within the meaning of the

representative cross-section rule. Third, from all the

circumstances of the case he must show a strong

likelihood that such persons are being challenged

because of their group association rather than because

of any specific bias.

Id. (emphasis added) (footnote omitted). “If the court finds

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

281 (footnote omitted).

Because we are evaluating the likelihood of success of

Carrera’s hypothetical Wheeler objection in the context of an

ineffective assistance claim, he has the burden to show under

CARRERA V . AYERS 9

Strickland a reasonable probability he would have prevailed

on a Wheeler claim. For the reasons that follow, we conclude

that he has not carried his burden under Strickland.

1. Prejudice at Trial

The record shows that the prosecutor exercised

peremptory strikes against six venirepersons with Hispanic

surnames. Carrera concedes that one of the six — his

counsel’s mail carrier — was properly struck. The record

suggests obvious non-discriminatory reasons for four of the

five remaining strikes. One prospective juror, Petra Celedon,

appeared bitter about being called to jury service. A second

prospective juror, Alice Hernandez, worked at the juvenile

detention facility where Carrera’s co-defendant was held. A

third prospective juror, Maria Carrillo, had a son who had a

criminal record. A fourth prospective juror, Mary Garcia, told

the court at the beginning of her voir dire that she could not

impose the death penalty, though she later said that she could

do so.

Only one of the prosecutor’s peremptory challenges was

problematic. Prospective juror Lawrence Martinez

unequivocally expressed his ability to impose the death

penalty if, in his judgment, the circumstances warranted it.

When asked if he had “family . . . involved in any type of

charges or a trial,” Martinez responded that a friend had had

a drunk driving charge but mentioned no family members.

He had no connection to the victims, defendants, or witnesses.

The record reveals no obvious non-discriminatory reason

to challenge Martinez. But Wheeler required a stronger

showing to establish a prima facie case. Not only were five

10 CARRERA V . AYERS

of the six challenges to Hispanic-surnamed venirepersons

relatively unproblematic; further, two Hispanic-surnamed

persons were seated on the jury, and one Hispanic-surnamed

person was seated as an alternate. Two California Court of

Appeal cases, decided shortly after Carrera’s trial, highlight

how difficult it would have been for Carrera to establish a

prima facie case in these circumstances.

In People v. Boyd, 212 Cal. Rptr. 873, 880–82 (Cal. Ct.

App. 1985), a Court of Appeal held that, despite the

prosecutor’s peremptory challenges to three black

venirepersons, no prima facie case had been established under

Wheeler because two black jurors were seated on the jury. In

People v. Davis, 234 Cal. Rptr. 859, 866 (Cal. Ct. App. 1987),

the prosecutor peremptorily challenged six black

venirepersons, but allowed three black jurors to be seated.

The court wrote:

[T]he presence of two and then three members of the

cognizable group in the jury box at all times afforded

the defendant a representative cross-section of the

community and afforded equal protection to all, the

defendant, the prospective jurors excused and the

community at large. There was no prima facie case of

exclusion for group bias demonstrated at any time.

Id. at 869. The California Supreme Court overruled Boyd and

Davis, but not until four years after Carrera’s trial. See

People v. Snow, 44 Cal. 3d 216, 225–26 (1987).

CARRERA V . AYERS 11

2. Prejudice on Appeal

Carrera can also demonstrate prejudice by showing that a

Wheeler objection would have succeeded on direct appeal.

His counsel’s failure to make a Wheeler objection at trial was

a procedural default under state law that prevented him from

making a Wheeler challenge on appeal. See Carrera, 49 Cal.

3d at 331 n.29 (Cal. 1989) (noting “[t]he requirement that a

contemporaneous motion be made to object to a prosecutor’s

use of peremptory challenges to exclude prospective jurors of

one racial group”); Wheeler, 22 Cal. 3d at 284 n.32

(“[P]eremptories [were] not ‘open to examination’ unless and

until on a timely motion the trial court is satisfied there is a

prima facie showing that jurors are being challenged on the

sole ground of group bias.”).

If Carrera’s counsel had made a Wheeler objection at trial,

that objection would have been preserved for appellate

review. In some circumstances, the failure to make an

objection results in an undeveloped record, such that it is

difficult or impossible to know what rulings would have

resulted on appeal had a proper record been developed. Here,

however, there is no such difficulty, for the record at trial was

sufficiently developed to permit a meaningful evaluation of a

prima facie case under Wheeler.

We must determine whether Carrera was prejudiced on

appeal based on the law as it existed when his conviction

became final on direct appeal. His conviction became final

on April 23, 1990, when the United States Supreme Court

denied certiorari. See Carrera v. California, 495 U.S. 911

(1990).

12 CARRERA V . AYERS

While Carrera’s case was pending on appeal, there were

two significant changes in the law. First, in 1987 the

California Supreme Court overruled Boyd and Davis. The

court held in Snow that the presence of group members on a

jury does not, by itself, prevent a defendant from making a

prima facie case under Wheeler. It wrote, “[W]e disapprove

language in People v. Davis suggesting that the presence of

two or three Blacks in the jury box following voir dire

precludes the trial court from finding a prima facie case of

exclusion.” Snow, 44 Cal. 3d at 225–26 (citation omitted).

After Snow, California courts were required to review all the

circumstances surrounding voir dire to determine whether an

objecting party had established a prima facie case of

discrimination under Wheeler.

In People v. Allen, 260 Cal. Rptr. 463, 469 (Cal. Ct. App.

1989), a Court of Appeal noted that “the exclusion of

disproportionate numbers of minority jurors per se” does not

automatically establish a prima facie case of discrimination

under Wheeler. “[T]he law is clear that a prima facie case of

group bias requiring prosecutorial explanation arises only if

from all the circumstances of the case the trial court finds a

strong likelihood that the persons were being challenged

because of their group association rather than specific bias.”

Id. (emphasis in original). Relevant circumstances included

the extent the prosecutor questioned the jurors struck on

peremptory challenges. People v. Trevino, 39 Cal. 3d 667,

688 (1985) (“The district attorney exercised peremptory

challenges to remove six Hispanics from the jury after asking

them few if any questions on voir dire.”), disapproved on

other grounds by People v. Johnson, 47 Cal. 3d 1194,

1219–20 (1989); People v. Allen, 23 Cal. 3d 286, 294 (1979)

(noting as one of four factors of defendant’s prima facie case

CARRERA V . AYERS 13

“that the district attorney had excluded many black persons

after engaging in no more than desultory voir dire” (internal

quotation marks and citation omitted)); People v. Moss,

233 Cal. Rptr. 153, 157–58 (Cal. Ct. App. 1986) (“Although

the prosecutor questioned [one of the two black jurors]

extensively on voir dire . . . , he asked no questions at all of

[the other black juror].”). Other relevant circumstances

included the common characteristics other than race among

the venirepersons, see People v. Turner, 42 Cal. 3d 711, 719

(1986); Trevino, 39 Cal. 3d at 688; Allen, 23 Cal. 3d at

34–35; Moss, 233 Cal. Rptr. at 157–58, as well as indications

of specific bias apparent in the record, see, e.g., Turner,

42 Cal. 3d at 719–20; Allen, 152 Cal. Rptr. at 468–69.

Second, in 1986 the United States Supreme Court held in

Batson v. Kentucky that racially discriminatory peremptory

challenges violate the Equal Protection Clause of the

Fourteenth Amendment. Batson applied retroactively to all

cases then pending on direct review. See Griffith v. Kentucky,

479 U.S. 314, 322–23 (1987). A prima facie case under

Wheeler required the objecting party to “show a strong

likelihood that such persons are being challenged because of

their group association rather than because of any specific

bias.” Wheeler, 22 Cal. 3d at 280 (emphasis added). A prima

facie case under Batson requires only that the objecting party

show “that the totality of the relevant facts gives rise to an

inference of discriminatory purpose.” Batson, 476 U.S. at

93–94 (emphasis added).

In 2003, the California Supreme Court concluded that the

Wheeler and Batson standards for making out a prima facie

case were the same, and that Wheeler’s “strong likelihood of

discrimination” continued to be the governing standard. See

14 CARRERA V . AYERS

People v. Johnson, 30 Cal. 4th 1302, 1313–14 (2003). Two

years later, the United States Supreme Court disagreed with

the California Supreme Court, holding that the Wheeler and

Batson standards are different, and that the less demanding

Batson standard controls. Johnson v. California, 545 U.S.

162 (2005).

We must evaluate Carrera’s ineffective assistance claim

under the law the California Supreme Court would have

applied on direct appeal in 1990. When Carrera’s appeal was

decided, the United States Supreme Court’s decision in

Johnson was still fifteen years in the future. We therefore

apply Wheeler’s “strong likelihood” standard, rather than

Batson’s “raise an inference” standard, in determining

whether Carrera would have been able to establish a prima

facie case in the California Supreme Court on appeal.

A California appellate court deciding a Wheeler objection

in 1990 would have examined the record not merely for

evidence of group bias but also for evidence of specific bias

against individual venirepersons. See, e.g., Turner, 42 Cal. 3d

at 719; Allen, 260 Cal. Rptr. at 468–69. Carrera argues that

the prosecutor’s six peremptory strikes of Hispanic-surnamed

venirepersons would have been enough to establish a prima

facie case of specific bias under Wheeler. We have already

summarized the evidence with respect to those strikes. We

conclude that the absence of an obvious non-discriminatory

reason with respect to one prospective juror out of six would

not have been enough to enable Carrera to establish a prima

facie case. Not only was the evidence of specific bias against

venireperson Martinez relatively weak; further two Hispanic-

surnamed venirepersons were seated on the jury and one was

seated as an alternate. In Snow, the California Supreme Court

CARRERA V . AYERS 15

had held that the presence of group members on the jury was

not, by itself, sufficient to defeat a prima facie case of

discrimination under Wheeler, but their presence continued to

be relevant to a determination whether, under all the

circumstances, a prima facie case had been established.

Carrera argues further that a prima facie case of group

bias can be shown “because the prosecutor questioned

minority jurors differently than white jurors . . . .” The

prosecutor engaged in far more than a “desultory voir dire”

with the struck jurors. Cf. Allen, 23 Cal. 3d at 294. It is true

that the prosecutor asked Hispanic-surnamed venirepersons

whether the fact that the defendant was “of Spanish descent”

would affect their deliberations, and that he did not ask

potential white jurors similar ethnicity-based questions.

However, asking questions about potential bias is the purpose

of voir dire. Indeed, as we noted above, Carrera’s counsel

also asked ethnicity-based questions of the Hispanic-

surnamed venirepersons.

Were we reviewing the prosecutor’s actions in a different

procedural posture or under current law, we might well reach

a different conclusion. But evaluating an ineffective

assistance of counsel claim on the record before us, under

Wheeler as it was interpreted in 1990, we cannot say Carrera

has carried his burden of proof to show that he was prejudiced

by his counsel’s failure to object to the prosecutor’s

peremptory strikes. Carrera has not shown a “reasonable

probability” that on direct review, he would have succeeded

under Wheeler in showing “a strong likelihood” that

challenges to Hispanic-surnamed venirepersons were made

“because of their group association.”

16 CARRERA V . AYERS

Conclusion

Because Carrera is unable to establish that his trial

counsel’s failure to make a Wheeler motion was prejudicial,

he has not established an ineffective assistance of counsel

claim under Strickland. We therefore affirm the district court.

AFFIRMED.

PREGERSON, Circuit Judge, dissenting:

A fair trial requires the selection of a fair jury. That didn’t

happen in Constantino Carrera’s case because his defense

counsel was incompetent.

Michael Vedrasco, the prosecutor in defendant Carrera’s

case, struck seventy-five percent of potential Hispanic jurors,

but only twenty-six percent of potential white jurors.

Carrera’s defense attorney, Donnalee Huffman,1 failed to

object. The majority concludes that attorney Huffman’s

failure to object to the prosecutor’s striking of prospective

Hispanic jurors did not amount to ineffective assistance of

counsel. I disagree.

Both the United States Constitution and the California

Constitution guarantee a defendant in a criminal case a fair

and impartial jury. U.S. Const. amend. VI; Cal. Const., art. I,

§ 16. In People v. Wheeler, the California Supreme Court

established that racial bias in jury selection violates this

constitutional guarantee. People v. Wheeler, 583 P.2d 748,

1

Huffman used her married name, Mendez, during Carrera’s trial.

CARRERA V . AYERS 17

755 (Cal. 1978). To support a Wheeler motion, the defense

attorney must “show a strong likelihood” that the prosecutor

struck prospective jurors because of their “group association.”

Id. at 764. Once the defense attorney presents such evidence,

“the court must determine whether a reasonable inference

arises that peremptory challenges are being used on the

ground of group bias alone.” Id. (emphasis added).

The majority opinion only cites Wheeler’s “strong

likelihood” standard and ignores its “reasonable inference”

standard. See Maj. op. at 13. Under California’s evidence

laws, however, both standards mean a preponderance of the

evidence. Cal. Evid. Code § 115 (“Except as otherwise

provided by law, the burden of proof requires proof by a

preponderance of the evidence.”). While the majority opinion

distinguishes the Wheeler standard from Batson’s “inference”

standard, the California courts at the time of Carrera’s 1983

trial applied Wheeler’s “reasonable inference” standard even

though the Batson decision was years in the future. See

People v. Fuller, 186 Cal. Rptr. 283, 296 (Ct. App. 1982)

(“[A] fair reading of Wheeler requires only that the court find

a reasonable inference of group bias once an appropriate

foundation is laid.”).

Furthermore, the California Supreme Court would have

been required to apply the Batson standard to Carrera’s 1989

appeal. The Supreme Court held in Batson v. Kentucky that

a defendant creates a prima facie case of unconstitutional jury

selection by raising an “inference of purposeful

discrimination.” Batson v. Kentucky, 476 U.S. 79, 94 (1986).

Because Carrera’s case was pending on direct review when

the Supreme Court decided Batson in 1986, Batson governed

Carrera’s case on appeal to the California Supreme Court.

18 CARRERA V . AYERS

See Griffith v. Kentucky, 479 U.S. 314, 322–23 (1987). The

standard for showing a constitutional violation in Carrera’s

case cannot be stricter than what the Supreme Court mandated

in Batson v. Kentucky. See Cooper v. Aaron, 358 U.S. 1, 18

(1958) (“the federal judiciary is supreme in the exposition of

the law of the Constitution”).

The Sixth Amendment guarantees defendants the effective

assistance of counsel. Strickland v. Washington, 466 U.S.

668, 685-86 (1984). If Carrera had received effective

assistance, there is a “reasonable probability” that he would

have succeeded in his Wheeler claim. See id. at 694. And

even if a Wheeler objection failed to persuade the trial judge,

the objection would have preserved the Wheeler motion so

that Carrera could have raised it on his direct appeal. Thus,

defense counsel’s incompetence deprived Carrera of his

opportunity to raise a Wheeler motion before the state trial

court and, because this was a death penalty case, on direct

appeal to the California Supreme Court. See Cal. R. Ct. 8.600

(“If a judgment imposes a sentence of death, an appeal by the

defendant is automatically taken to the [California] Supreme

Court.”).

As a result of defense counsel’s incompetence and the

prejudice Carrera suffered, I would grant his request for

Habeas relief.

I. Carrera’s Attorney Fell Below an Objective Standard

of Performance in Failing To Present a Wheeler

Motion

There are a number of reasons why defense counsel

Huffman may have failed to present a Wheeler motion. But

CARRERA V . AYERS 19

none of these reasons was strategic and none was excusable.

For example, Huffman was defending Carrera against a

murder charge brought by the District Attorney’s office, while

also working with that same District Attorney’s office to

secure the conviction of her husband, who shot her in the arm

and told her that he “meant to kill” her. Huffman’s divided

loyalties may have dulled her vigorous representation of

Carrera.

Or perhaps Huffman failed to make a Wheeler motion

because she was simply–and woefully–unprepared. Huffman

rushed to trial without an investigator because her investigator

had been her husband–until the time he tried to kill her. She

had no money to hire a new one because she faced bankruptcy

and was saddled with more than $100,000 in debt. So, she

cut corners. Unprepared and distracted, Huffman may not

have been aware that the prosecutor’s disproportionate strikes

of Hispanic jurors warranted an objection.

We will never know why Huffman sat silently at counsel

table while the prosecutor struck six out of the eight

prospective Hispanic jurors, despite the fact that Wheeler had

been on the law books for five years. When asked in a

declaration prepared for Carrera’s direct appeal why she made

no Wheeler motion, Huffman said: “I don’t know why at this

time. No strategic reason.”

But any competent attorney would have objected to the

prosecutor’s highly disproportionate peremptory challenges

of Hispanic jurors. When this case was on appeal to the

California Supreme Court, a defense attorney, Guyton

Jinkerson, who in the past had qualified as an expert on

ineffective assistance said as much in evaluating Huffman’s

20 CARRERA V . AYERS

performance. Jinkerson declared in 1987 that Huffman’s

performance “fell below an objective standard of

reasonableness under the prevailing professional norms.” He

added that but for Huffman’s “unprofessional errors, the

result of the proceeding would have been different.”

Indeed, I suggest that under the performance prong of

Strickland v. Washington, Huffman’s failure to raise a

Wheeler motion clearly “fell below an objective standard of

reasonableness.” Strickland, 466 U.S. at 688. Her silence

during these proceedings was not a “strateg[ic] choice . . .

within the range of professionally reasonable judgments.” Id.

at 699. Rather, it was ineffective performance. The majority

does not contest this point. Maj. op. at 7. Instead, the

majority opinion denies Carrera’s claim based on Strickland’s

prejudice prong, finding that Carrera’s Wheeler motion would

not have succeeded, had Huffman raised it.

II. Carrera Suffered Prejudice as a Result of his

Attorney’s Failure to Make a Wheeler Motion

To demonstrate Strickland prejudice, Carrera must show

that there is a “reasonable probability” that the outcome

would have been different but for his attorney’s error. See

Strickland, 466 U.S. at 694. We’ve interpreted “reasonable

probability” to mean “one sufficient to undermine confidence

in the outcome, but . . . less than the preponderance more-

likely-than-not standard.” Lambright v. Schriro,

490 F.3d 1103, 1121 (9th Cir. 2007) (internal quotations

omitted).

The majority holds that Carrera cannot show a reasonable

probability that he would have succeeded in challenging the

CARRERA V . AYERS 21

striking of six of the eight Hispanic jurors. See Maj. op. at 9.

But Carrera’s evidence of unconstitutional racial bias matched

Wheeler’s examples of evidence that demonstrates prejudicial

jury selection. The prosecutor struck “most” of the Hispanic

jurors. See Wheeler, 583 P.2d at 764. He also “used a

disproportionate number of his peremptories against the

group” by directing thirty-five percent of his strikes against

Hispanics although they comprised only sixteen percent of the

jurors in the box. See id.

Since no Wheeler challenge was actually made, it is hard

to know what explanation the prosecutor would have

provided for his strikes of Hispanic jurors. Nonetheless, the

majority offers a few “obvious” explanations from its reading

of the record. See Maj. op. at 9. Upon closer scrutiny,

however, these explanations are neither obvious nor

reasonable.

A. The Record Does Not Show Legitimate, Non-

Prejudicial Reasons for Striking the Hispanic

Jurors

1. Prospective Juror Lawrence Martinez

The majority concedes that the peremptory strike of

Lawrence Martinez “was problematic.” See Maj. op. at 9.

Martinez “unequivocally expressed his ability to impose the

death penalty,” had no family members with any type of

criminal history, and had no connection to any of the parties

or witnesses in Carrera’s case. Maj. op. at 9. Striking

Martinez was improper. As California Justice Stanley Mosk

emphasized two years before he presided over Carrera’s

appeal, “[t]he exercise of one improper challenge is, of

22 CARRERA V . AYERS

course, sufficient to establish a [Wheeler] violation.” People

v. Ledesma, 729 P.2d 839, 881 (Cal. 1987) (Mosk, J.,

concurring). Had defense counsel Huffman objected to

prosecutor Vedrasco’s improper strike of Martinez, that

objection alone could have established a Wheeler violation.

2. Prospective Juror Petra Celedon

The majority finds an “obvious” reason for striking Petra

Celedon. According to the majority, “prospective juror, Petra

Celedon, appeared bitter about being called to jury service.”

Maj. op. at 9. But as Celedon herself clarified, she was not

bitter about jury service. A special education teacher,

Celedon was sorry she was absent from school on the day she

reported for jury duty in particular. As she explained: “this is

a special day for [students] and some of them have been very

anxious because I am not going to be there today.”

Prospective jurors were told that the trial would not start until

the following week, after the end of the school year. Celedon

told the prosecutor that after school finished for the year, she

would have no problem serving as a fair juror. But while

Celedon’s school let out for the summer well before the start

of trial, the prosecutor nonetheless struck her, and the

majority sees no problem.

3. Prospective Juror Alice Hernandez

The majority finds an “obvious non-discriminatory”

reason for the prosecutor’s strike of Alice Hernandez: she

“worked at the juvenile detention facility where Carrera’s co-

defendant was held.” Maj. op. at 9. Under questioning by

Huffman, Hernandez stated that she worked in housekeeping,

did not know the co-defendant, and had never heard of the

CARRERA V . AYERS 23

case. Furthermore, the prosecutor never asked Hernandez any

questions about her employment or whether her employment

had any impact on her ability to serve as an impartial juror.

This lack of follow-up questioning raises a red flag under

Green v. LaMarque, 532 F.3d 1028, 1033 (9th Cir. 2008),

which explained that if a prosecutor challenges a juror for a

factor on which he asked no questions, that lack of further

questioning tends to establish that the factor was pretextual.

Had the prosecutor given the same reason for striking

Hernandez as the majority advances, this court likely would

have found the reason to be pretext. Nevertheless, the

majority is somehow comfortable that Hernandez was struck

because she worked in housekeeping at the juvenile detention

center, not because she was Hispanic.

4. Prospective Juror Maria Carrillo

In the case of Maria Carrillo, the majority speculates that

the prosecutor struck her because she “had a son who had a

criminal record.” Maj. op. at 9. Again, this explanation is

less than satisfying in light of this case’s record. As a

teenager, Carrillo’s son was arrested once for stealing. The

arrest occurred fifteen years before Carrera’s trial. When the

prosecutor asked Carrillo whether she had any bad feelings

toward the court or the police, she answered no. The

majority’s justification is even less convincing because the

prosecutor did not exercise peremptory strikes against two

white jurors even though their sons had more serious criminal

records. Those records involved convictions for theft and

drug possession, and even prison time.

The majority’s speculation, had it been offered by the

prosecutor, would have fallen under the Supreme Court’s

24 CARRERA V . AYERS

definition of pretext. See Miller-El v. Dretke, 545 U.S. 231,

241 (2005) (“If a prosecutor’s proffered reason for striking a

[minority] panelist applies just as well to an otherwise-similar

[non-minority] who is permitted to serve, that is evidence

tending to prove purposeful discrimination”); see also Snyder

v. Louisiana, 552 U.S. 472, 483-84 (2008). This court found

pretext where a prosecutor claimed that he discharged a black

juror because her relative had a criminal history while he

seated white jurors whose relatives had equivalent criminal

histories. Green, 532 F.3d at 1033. The majority seeks to

justify the prosecutor’s exercise of a peremptory strike against

Carrillo stating reasons this court has rejected when offered

by a prosecutor. I cannot go along with that.

5. Prospective Juror Mary Garcia

The majority justifies the strike of Mary Garcia because,

the majority insists, Garcia “told the court at the beginning of

her voir dire that she could not impose the death penalty,

though she later said she could do so.” Maj. op. at 9. As the

majority opinion concedes, Garcia said that she could impose

the death penalty and that she would, in appropriate

circumstances. Asked by the court if she could “think of a

case where the crime for instance is so vicious that the death

penalty should be imposed,” Garcia said “yeah.” Asked

whether she could vote for the death penalty in such a case,

she said “yes.” Asked once more by the court whether she

opposed the death penalty, Garcia gave her final answer:

“no.” But, Thomas Yale, a white juror, also expressed

reservations about the death penalty. Nevertheless, the

prosecutor did not exercise a peremptory strike against Yale,

and he served as a juror.

CARRERA V . AYERS 25

In short, the record shows one peremptory strike against

a Hispanic juror that even the majority opinion concedes to be

“problematic” and four strikes of Hispanic jurors where there

is no plausible explanation other than racial prejudice. This

record cried out for Carrera’s counsel, Huffman, to make a

Wheeler objection. When Carrera’s case was on appeal to the

California Supreme Court, prosecutor Vedrasco filed an

affidavit that he “could have come up with specific reasons

justifying each of [his] challenges.” That statement is

unsupported by the record.

Moreover, the prosecutor’s credibility is doubtful, given

his misconduct in prosecuting the case. This misconduct was

so severe that the U.S. District Court vacated Carrera’s death

sentence because the court determined that the prosecutor had

“elicited contradictory evidence,” “argued inconsistently” at

the separate trials of Carrera and the juvenile co-defendant,

and “concealed the fact of inducements to inmate witnesses.”

Carrera v. Ayers, No. 1:90-CV-00478-AWI, 2008 WL

681842, at *2 (E.D. Cal. Mar. 11, 2008). The question is not

whether “the prosecutor might have had good reasons to

strike the prospective jurors. What matters is the real reason

they were stricken.” Paulino v. Castro, 371 F.3d 1083, 1090

(9th Cir. 2004).

B. The Fact that Two Hispanic Jurors Were Seated

Does Not Undermine a Wheeler Claim.

In attempting to demonstrate that Carrera cannot show a

“reasonable probability” of succeeding on his Wheeler claim,

the majority concludes that the Wheeler motion would have

likely failed under the law at the time because two Hispanic

jurors made it onto the jury. Maj. op. at 10. To support this

26 CARRERA V . AYERS

claim, the majority relies on a pair of California appellate

court cases, People v. Boyd, 212 Cal. Rptr. 873, 880-82

(Ct. App. 1985) and People v. Davis, 234 Cal. Rptr. 859, 866

(Ct. App. 1987). But those cases were not on the books at the

time of Carrera’s 1983 trial. And in People v. Snow, the

California Supreme Court overruled both cases before

Carrera’s appeal, so they would never have governed

Carrera’s Wheeler motion. See People v. Snow, 746 P.2d 452,

457 (Cal. 1987) (“we disapprove language in People v. Davis

. . . suggesting that the presence of two or three Blacks in the

jury box following voir dire precludes the trial court from

finding a prima facie case of exclusion.”).

People v. Snow explained that “the fact that the prosecutor

passed or accepted a jury containing two Black persons [does

not] end our [Wheeler] inquiry, for to so hold would provide

an easy means of justifying a pattern of unlawful

discrimination which stops only slightly short of total

exclusion.” Id. at 456-57 (internal quotations omitted). Just

as in Carrera’s case, the prosecutor in Snow struck six out of

eight minority jurors. Id. at 457. The defense attorney in

Snow objected to those disproportionate strikes despite the

prosecutor’s acceptance of two African-American jurors. In

Snow, the California Supreme Court held that the defense

attorney had successfully established a prima facie case for a

Wheeler motion, and thus reversed the conviction. Id. at 457-

58.

Unlike the defense attorney in Snow, Carrera’s defense

counsel did not object to the disproportionate strikes of

minority jurors. Had she done so, the California Supreme

Court would have been guided by the decision it made three

years earlier in Snow, and it likely would have found that the

CARRERA V . AYERS 27

two Hispanic people on Carrera’s jury did not negate the other

discriminatory peremptory juror strikes.

III. Conclusion

The Supreme Court has long held that a “fair trial in a fair

tribunal is a basic requirement of due process.” In re

Murchison, 349 U.S. 133, 136 (1955). Carrera did not receive

a fair trial because the prosecutor purposefully excluded

Hispanic jurors, and Carrera’s attorney did nothing to

challenge him. The majority does not dispute that Carrera’s

attorney erred, but it somehow finds that Carrera’s claim

would not have had a “reasonable probability” of succeeding.

The majority reaches that conclusion by misreading the record

and the law. I respectfully dissent.