Argued and Submitted, Pasadena, California February 9, 2012.
[Copyrighted Material Omitted]
Appeal from the United States District Court for the Southern District of California. D.C. No. 3:01-CV-01322-IEG-PLC. Irma E. Gonzalez, Chief District Judge, Presiding.
Habeas Corpus/Death Penalty
The panel replaced its opinion and dissent, filed on September 13, 2013 and published at 730 F.3d 831, with an amended opinion and amended dissent, denied a petition for panel rehearing, denied a petition for rehearing en banc on behalf of the court, and ordered that no further petitions shall be entertained in a case in which the panel reversed the district court's denial of a 28 U.S.C. § 2254 habeas corpus petition challenging a conviction and capital sentence for murder and robbery, based on a violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
Judge Ikuta, joined by Judges O'Scannlain, Tallman, Bybee, Callahan, Bea, M. Smith, and N.R. Smith, dissented from the denial of rehearing en banc. Judge Ikuta disagreed with the panel's de novo review of petitioner's Batson claim based on a novel theory for rebutting the presumption that the state court adjudicated the federal claim on the merits. Judge Ikuta wrote that the majority's reasoning ignores recent Supreme Court jurisprudence and conflicts with this court's sister circuits.
In the amended opinion, the panel reversed and remanded with instructions to grant the writ and order that petitioner be released from custody unless the state elects to retry him within a reasonable amount of time. The panel first explained that, as to whether the exclusion of petitioner and his counsel from the ex parte Batson proceedings was federal constitutional error, the California Supreme Court either resolved the issue in petitioner's favor or did not reach it. Reviewing de novo, the panel held that the exclusion of petitioner and his counsel constituted prejudicial error that likely prevented petitioner from showing that the prosecution utilized its peremptory challenges in a racially discriminatory manner. The panel then held that the state court's harmless error finding had a prejudicial effect on the verdict.
In the amended dissent, Judge Callahan disagreed with the majority's holding because it inappropriately deconstructed the California Supreme Court's opinion to justify its evasion of the Anti-Terrorism and Effective Death Penalty Act to review the state court's decisions de novo, and because petitioner's federal claim is barred by Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).
Robin L. Phillips and Anthony J. Dain, Procopio, Cory, Hargreaves & Savitch LLP, San Diego, California, for Petitioner-Appellant.
Robin H. Urbanski, Deputy Attorney General of California, San Diego, California, for Respondent-Appellee.
Before: Stephen Reinhardt, Kim McLane Wardlaw, and Consuelo M. Callahan, Circuit Judges. Opinion by Judge Reinhardt; Dissent by Judge Callahan.
REINHARDT, Circuit Judge:
State prisoner Hector Juan Ayala (" Ayala" ) appeals the denial of his petition for a writ of habeas corpus. During the selection of the jury that convicted Ayala and sentenced him to death, the prosecution used its peremptory challenges to strike all of the black and Hispanic jurors available for challenge. The trial judge concluded that Ayala had established a prima facie case of racial discrimination under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), but permitted the prosecution to give its justifications for the challenges of these jurors in an in camera hearing from which Ayala and his
counsel were excluded. The trial judge then accepted the prosecution's justifications for its strikes without disclosing them to the defense or permitting it to respond. The California Supreme Court held that the trial court erred as a matter of state law, relying on a number of federal cases, but found that any error--state or federal--was " harmless."
We conduct our review of Ayala's appeal under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). In reviewing Ayala's federal claim, the state court faced two questions: first, whether the exclusion of Ayala and his counsel from the ex parte Batson proceedings was federal constitutional error, and, second, whether any such error was harmless. We conclude that the state court either resolved the first question in Ayala's favor or did not reach it. We therefore apply de novo review, and conclude that there was federal constitutional error. Turning to the second question, harmlessness, we conclude that the state court found that any federal constitutional error was harmless. We review that determination under Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), and conclude that the violation of Ayala's Batson rights was prejudicial. We therefore remand with instructions to grant the writ.
On April 26, 1985, Jose Luis Rositas, Marcos Antonio Zamora, and Ernesto Dominguez Mendez were shot and killed in the garage of an automobile repair shop in San Diego, California. A fourth victim, Pedro Castillo, was shot in the back but managed to escape alive. Castillo identified Ayala, his brother Ronaldo Ayala, and Jose Moreno as the shooters. He claimed that these men had intended to rob the deceased, who ran a heroin distribution business out of the repair shop.
Ayala was subsequently charged with three counts of murder, one count of attempted murder, one count of robbery and three counts of attempted robbery. The information further alleged that the special circumstances of multiple murder and murder in the attempted commission of robberies were applicable in his case. A finding that one of these special circumstances was true was required in order for Ayala to be eligible for the death penalty.
Jury selection began in San Diego in January 1989. Each of the more than 200 potential jurors who responded to the summons and survived hardship screening was directed to fill out a 77-question, 17-page questionnaire. Over the next three months, the court and the parties interviewed each of the prospective jurors regarding his or her ability to follow the law, utilizing the questionnaires as starting points for their inquiry. Those jurors who had not been dismissed for cause were called back for general voir dire, at which smaller groups of jurors were questioned by both the prosecution and the defense. The parties winnowed the remaining group down to twelve seated jurors and six alternates through the use of peremptory challenges. Each side was allotted twenty peremptory challenges which could be used upon any of the twelve jurors then positioned to serve on the jury. After twelve seated jurors were finally selected, both parties were allotted an additional six peremptory challenges to be used in the selection of alternates.
The prosecution employed seven of the 18 peremptory challenges it used in the selection of the seated jurors to dismiss each black or Hispanic prospective juror who was available for challenge, resulting in a jury that was devoid of any members of these ethnic groups. In response, Ayala, who is Hispanic, brought three separate motions pursuant to Batson v. Kentucky,
476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), claiming that the prosecution was systematically excluding minority jurors on the basis of race.
The defense made its first Batson motion after the prosecution challenged two black jurors. The trial court found that the defense had not yet established a prima facie case of racial discrimination, but nevertheless determined that it would require the prosecution to state its reasons for challenging the jurors in question. At the prosecutor's insistence, and despite the defense's objections, the court refused to let the defendant or his counsel be present at the hearing in which the prosecution set forth these reasons and the court determined whether they were legitimate.
The trial judge continued to employ this ex parte, in camera procedure to hear and consider the prosecutor's purported reasons for challenging minority jurors following the defense's second and third Batson motions. He did so despite his determination, by the third motion, that the defense had established a prima facie showing of racial discrimination.
Ultimately, the trial judge concluded that the prosecutor had proffered plausible race-neutral reasons for the exclusion of each of the seven minority jurors, and denied the defense's Batson motions. Although the ex parte Batson proceedings were transcribed, this transcript--and thus, the prosecution's proffered race-neutral reasons for striking the seven black and Hispanic jurors -- were not made available to Ayala and his counsel until after the conclusion of the trial.
The jury convicted Ayala of all counts save a single attempted robbery count, and found true the special circumstance allegations. At the penalty phase, it returned a verdict of death.
Early in the process of jury selection, the trial judge had instructed the parties to return to the court all the questionnaires the prospective jurors had completed, and advised them that he would be " keeping the originals." At some point during or following the trial, however, all questionnaires, save those of the twelve sitting jurors and five alternates, were lost. The questionnaires of four additional jurors -- including the sixth alternate -- were located in the defense counsel's files, but the remaining 193 questionnaires have never been located.
On direct appeal from his conviction, Ayala challenged the trial court's use of ex parte Batson proceedings. He also claimed that the loss of the jury questionnaires deprived him of his right to a meaningful appeal of the denial of his Batson motion. A divided California Supreme Court upheld his conviction on the basis of harmless error and also upheld the sentence. People v. Ayala, 24 Cal.4th 243, 99 Cal.Rptr.2d 532, 6 P.3d 193 (Cal. 2000). The court unanimously held that under state law the trial judge had erred in conducting the Batson proceedings ex parte. Id. at 204 (majority opinion); id. at 291 (George, C.J., dissenting). A majority went on to hold, however, that any error was harmless beyond a reasonable doubt. Id. at 204. It also concluded that the loss of the questionnaires was harmless beyond a reasonable doubt. Id. at 208. In dissent, Chief Justice George, joined by Justice Kennard, expressed his disagreement with the majority's " unprecedented conclusion
that the erroneous exclusion of the defense from a crucial portion of jury selection proceedings may be deemed harmless." Id. at 221 (George, C.J., dissenting). Ayala's petition for certiorari was denied by the United States Supreme Court on May 14, 2001. Ayala v. California, 532 U.S. 1029, 121 S.Ct. 1978, 149 L.Ed.2d 770(2001).
Ayala timely filed his federal habeas petition. The district court denied relief, but issued a Certificate of Appealability as to Ayala's Batson -related claims and his claim that the state had violated his Vienna Convention right to consular notification. Ayala now appeals.
In order for this court to grant Ayala habeas relief, we must find that he suffered a violation of his federal constitutional rights. To do so, Ayala must demonstrate both that (1) the state court committed federal constitutional error and (2) that he was prejudiced as a result. We discuss the issue of error in Part III and the issue of prejudice in Part IV.
Here, Ayala alleges two federal constitutional violations, the first of which is the principal focus of this opinion. Ayala's primary claim relates to his exclusion and his counsel's from the Batson proceedings. Ayala's secondary claim, which exacerbates the overall error in this case, relates to the state court's loss of the juror questionnaires prior to Ayala's appeal. We discuss these errors separately, in Sections III.A and III.B respectively, devoting much greater attention to the first, although the second would strongly bolster the first.
The state, in defending against the grant of habeas relief to Ayala, makes two principal arguments. First, it contends that Ayala was not prejudiced by his exclusion or his counsel's from the Batson proceedings, or by the loss of the juror questionnaires. This was the state court's basis for denying Ayala relief.
Second, the state raises a procedural objection that Ayala's claim regarding his exclusion during the Batson proceedings is barred by Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). " [I]n addition to performing any analysis required by AEDPA, a federal court considering a habeas petition must conduct a threshold Teague analysis when the issue is properly raised by the state." Horn v. Banks, 536 U.S. 266, 272, 122 S.Ct. 2147, 153 L.Ed.2d 301 (2002). We conduct the requisite Teague analysis in Part V of this opinion.
In Part VI of this opinion, we respond to arguments made by the dissent, and in Part VII we set forth our conclusion and remand to the district court with instructions to grant Ayala the writ of habeas corpus.
As stated above, Ayala alleges that the state court committed two distinct federal constitutional errors. The first alleged error relates to the state court's exclusion of Ayala and his counsel from the Batson proceedings (referred to sometimes in this opinion as the " ex parte Batson proceedings" ). The second error relates to the state court's loss of the juror questionnaires. We address each error in turn, concluding that Ayala is correct and that the state court committed both federal constitutional errors, although we hold that the first error is sufficient in itself to warrant the issuance of the writ, and the second simply bolsters the first.
" For more than a century, [the Supreme] Court consistently and repeatedly has reaffirmed that racial discrimination by the State injury selection offends the Equal Protection Clause." Georgia v. McCollum, 505 U.S. 42, 44, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992). Batson established the three-step inquiry used to determine whether this basic constitutional guarantee has been violated. First, the defendant must make a prima facie showing that the prosecution has exercised peremptory challenges in a racially discriminatory manner. Batson, 476 U.S. at 96. Such a showing may be made, as the trial judge concluded it was in Ayala's case, where the prosecution has engaged in a pattern of strikes against jurors of a particular race. Id. at 97. Second, once the defendant has made a prima facie showing, " the burden shifts to the State to come forward with a neutral explanation for challenging" the jurors. Id. Third, the trial court must then determine whether, taking into consideration the prosecutor's explanations for his conduct, " the defendant has established purposeful discrimination." Id. at 98.
Ayala contends that the exclusion of the defense from the proceedings in which the prosecution justified its strikes of the seven black and Hispanic jurors, and the trial court accepted those justifications, violated his right to the assistance of counsel and his right to be personally present and to assist in his defense. He further contends that these errors prevented him from ensuring that the prosecution did not violate his fundamental right to a jury chosen free from racial discrimination.
Before we may evaluate the merits of Ayala's contention, we must first determine the appropriate standard of review to apply. Specifically, because Ayala's habeas petition is subject to the requirements of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), see Kennedy v. Lockyer, 379 F.3d 1041, 1046 (9th Cir. 2004), we must determine whether Ayala's claim of federal constitutional error was adjudicated on the merits, and if so what the nature of that adjudication was. We do so in Section III.A.1, concluding that the California Supreme Court did not find against Ayala on the merits of his claim of federal constitutional error, and therefore § 2254(d) does not require deference to such a determination. We then conclude in Section III.A.2 that, under de novo review, Ayala's constitutional rights were violated when he and his counsel were excluded from stages two and three of the Batson proceedings.
The first question is whether the state court made an adjudication on the
merits as to whether the exclusion of Ayala and his counsel from the Batson proceedings was federal constitutional error. Answering that question is significantly more difficult in this case than in most federal habeas appeals. We are confronted with an especially unclear state court decision that requires us to delve more deeply than is typical into the question of what the state court did or did not " adjudicate on the merits" the question of constitutional error. The California Supreme Court, when confronted with Ayala's claim, concluded that the exclusion of the defense from these proceedings was, in fact, erroneous as a matter of state law. The state court began its analysis by stating the legal framework for Ayala's challenge. It identified the three-step process for a Batson challenge and noted that, under Batson, no particular procedures were required. Ayala, 6 P.3d at 202. It then made three distinct legal determinations. First, it found that " no matters of trial strategy were revealed" during the Batson proceedings in Ayala's case. Id. at 202-03. Second, it held " as a matter of state law" that it was " error to exclude defendant from participating in the hearings on his [Batson] motions." Id. at 203. The California Supreme Court observed that " it seems to be almost universally recognized that ex parte proceedings following a [ Batson ] motion . . . should not be conducted unless compelling reasons justify them." Id. at 203. Because no matters of trial strategy were revealed here and thus no such " compelling reasons" existed, the state court " concluded that error occurred under state law." Id. at 204. Third, turning to the question of prejudice (a subject we discuss in Part IV), the state court
conclude[d] that the error was harmless under state law ( People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243), and that, if federal error occurred, it, too, was harmless beyond a reasonable doubt ( Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705) as a matter of federal law.
Id ; see also id. at 204-08 (analyzing prejudice further). Having found error but having also deemed it harmless, the state court denied Ayala relief.
There is no doubt that the California Supreme Court found that the exclusion of Ayala and his counsel from the Batson proceedings was erroneous under state law. The state court made no express finding with respect to whether the exclusion of Ayala and his counsel from the Batson proceedings was also error under federal constitutional law. Although it is not easy to interpret a state court's silence, there are only three possible determinations it could have made in this case. The California Supreme Court either
(1) held that there was error under federal constitutional law;
(2) did not decide whether there was error under federal constitutional law; or
(3) held that there was no error under federal constitutional law.
[hereinafter discussed as Options 1, 2, and 3 respectively]
Of these three possibilities, only under Option 3 -- in which the state court made an unfavorable determination on the merits of Ayala's claim of federal constitutional error--would § 2254(d) require deference to a determination against Ayala. Thus, we
need determine only whether the California Supreme Court's silence is best interpreted as Option 3--i.e., as holding that the exclusion of Ayala and his counsel from the Batson proceedings was not erroneous under federal constitutional law.
In determining how to interpret state court silence on the question of federal constitutional error, we consider, inter alia, two recent Supreme Court decisions: Richter, 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624, and Johnson v. Williams, 133 S.Ct. 1088, 185 L.Ed.2d 105 (2013). In both Richter and Williams, the Supreme Court applied a rebuttable presumption that, even though the state court was silent with respect to a fairly presented federal claim, the claim was adjudicated on the merits. The Court's rationale was that, because the state court denied relief overall, it necessarily adjudicated (and rejected) the federal claim. For example, in the context of a summary denial, as in Richter, the state court could not have denied relief overall without having rejected, and thus adjudicated, every fairly presented federal claim. Accordingly, the Supreme Court held, " [w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Richter, 131 S.Ct. at 784. The same was true when, in Williams, the state court rejected a state law claim, was silent with respect to a fairly presented federal claim, and denied relief overall. See Williams, 133 S.Ct. at 1091. There too, the state court could not have denied relief overall without having rejected, and thus adjudicated, the federal claim presented by the petitioner. Thus, the Supreme Court held, " [w]hen a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits--but that presumption can in some limited circumstances be rebutted." Id. at 1096 (discussing Richter ). Here, the presumption is inapplicable for several reasons. We need mention only a couple. First, it was not necessary for the state court to reject the claim of federal constitutional error on the merits in order for it to deny relief to the petitioner. To the contrary, the state court denied Ayala relief on his federal constitutional claim only because it
concluded that the error (if any) was harmless. Second, the facts of this case dictate the conclusion that the California Supreme Court believed that the error under state law also constituted federal constitutional error.
We believe that there are only two plausible interpretations of the California Supreme Court's decision--either Option 1 or Option 2. The most likely interpretation is Option 1, i.e., that the California Supreme Court held implicitly that there was error under state law and under federal constitutional law alike. Notably, the California Supreme Court based its determination that the trial court's exclusion of Ayala and his counsel was impermissible " as a matter of state law," Ayala, 6 P.3d at 203, on the fact that it was " almost universally recognized" that ex parte Batson proceedings are erroneous absent a compelling reason, expressly relying for this conclusion on multiple federal cases that themselves relied on federal constitutional law. Id. (citing United States v. Roan Eagle, 867 F.2d 436, 441 (8th Cir. 1989); United States v. Garrison, 849 F.2d 103, 106 (4th Cir. 1988); United States v. Gordon, 817 F.2d 1538, 1541 (11th Cir. 1987)). The court then quoted extensively from United States v. Thompson, 827 F.2d 1254 (9th Cir. 1987), in which we held that the ex parte proceedings in that case violated federal constitutional law. Ayala, 6 P.3d at 203-04. In summarizing its discussion of error (before moving to prejudice), the California Supreme Court stated: " We have concluded that error occurred under state law, and we have noted Thompson 's suggestion that excluding the defense from a [ Balson ]-type hearing may amount to a denial of due process." Id. at 204. The obvious message here is that the California Supreme Court believed that the federal constitutional issue should be decided the same way as the state law issue. This is consistent with the fact that California courts interpret a violation of Wheeler -- California's state equivalent of Batson -- as proof of a violation of Batson. See People v. Yeoman, 31 Cal.4th 93, 2 Cal.Rptr.3d 186, 72 P.3d 1166, 1187 (Cal. 2003); see also Johnson v. California, 545 U.S. 162, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005) (holding that Wheeler is more demanding than Batson ). Thus, if we were required to determine whether the California Supreme Court adjudicated Ayala's claim of federal constitutional error on its merits in favor of the petitioner or the state, we would hold without question that the California Supreme Court found error in petitioner's favor under both state law and federal constitutional law--i.e., Option 1.
In support of this conclusion, we find instructive--and likely dispositive--the Supreme Court's discussion in Part III of Williams. In that case, the petitioner challenged the dismissal of a holdout juror under both California state law and under the Sixth Amendment right to a fair jury. The California Court of Appeal found that there was no error under state law. It did not expressly decide petitioner's federal constitutional claim but, in the course of deciding the state law claim, cited a California Supreme Court case, People v. Cleveland, 25 Cal.4th 466, 106 Cal.Rptr.2d 313, 21 P.3d 1225 (Cal. 2001). Cleveland in turn discussed three federal appellate cases in depth, each of which was based on the Sixth Amendment. In Williams, the Supreme Court explained Cleveland as follows:
Cleveland did not expressly purport to decide a federal constitutional question, but its discussion of [the federal cases] shows that the California Supreme Court understood itself to be deciding a question with federal constitutional dimensions. See 25 Cal.4th, at 487, 106
Cal.Rptr.2d 313, 21 P.3d, at 1239 (Werdegar, J., concurring) (emphasizing importance of careful appellate review in juror discharge cases in light of the " constitutional dimension to the problem" ).
Williams, 133 S.Ct. at 1098. A unanimous Supreme Court then concluded that because the state court found no error under state law on the basis in part of federal cases relying on federal constitutional law, it likewise found no error using that same analysis to decide the question under federal constitutional law. Id. at 1098-99. The obverse is necessarily true with respect to the state court's analysis in this case. The California Supreme Court, in finding that the exclusion of Ayala and his counsel from the Batson proceedings was erroneous under state law, cited to multiple federal cases relying on federal law. It did not expressly purport to decide the federal constitutional question, but it too must have understood itself to be deciding a question with federal constitutional dimensions and to be deciding it in petitioner's favor by its reliance on cases that held analogous conduct to be erroneous under the federal Constitution. Thus, if we were compelled to determine whether the California Supreme Court adjudicated Ayala's claim of federal constitutional error on its merits in favor of the petitioner or the state, we would hold without the slightest hesitation that it found that the error occurred under federal constitutional law--i.e., Option 1. Accordingly, if we apply § 2254(d) at all, we defer to a holding that there was federal constitutional error, deference that favors Ayala. See discussion supra at 31 n. 4.
Alternatively, we are willing to assume another, albeit weaker, interpretation of the California Supreme Court's decision that leads to the same result. Under that interpretation, the state court did not, deliberately or otherwise, decide whether there was error under federal law, i.e., Option 2 above. In short, it failed to decide the merits of the question of federal constitutional error because it thought there was nothing to be gained by doing so. It had already decided that the state court had erred on state law grounds and nothing further was to be gained by holding that it was also a federal constitutional error. Richter and Williams instruct us to afford a rebuttable presumption that a fairly presented claim was " adjudicated on the merits" for purposes of § 2254(d), but this presumption is rebuttable if there is " any indication or state-law procedural principles" supporting the conclusion that the state court did not adjudicate the federal claim on the merits. Richter, 131 S.Ct. at 784-85. Here, the California Supreme Court denied Ayala relief overall but did so by (1) finding that the trial court committed error on state law grounds, (2) failing to make any express determination of error on federal constitutional grounds, and (3) finding any error harmless under both the state and federal standards for harmless error. In the context of these holdings, the rebuttable presumption that Richter and Williams instruct us to afford is, in fact, rebutted. The California Supreme Court, by finding any alleged error harmless under both the state and federal standards for harmless error, had no reason to reach the question of whether federal constitutional error occurred. This is not an unusual practice; courts often choose not to decide the question whether an error occurred by deciding that any error was harmless. Indeed, we have found no published opinion in which, after a state court has denied relief based on harmless error, a federal court has presumed that the state court adjudicated the merits of the question of error.
In fact, the California Supreme Court would have had good reason not to
decide the merits of the issue of federal constitutional error here. " If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that [courts] ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable." Clinton v. Jones, 520 U.S. 681, 690 n.11, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997) (quoting Spector Motor Serv. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 89 L.Ed. 101 (1944)). Moreover, where the intersection of state law and federal constitutional law is complex, a state court may very well prefer to decide only the state law claim and not reach a federal constitutional question. The California Supreme Court, by finding error under state law, determined the question of error conclusively. This served the purpose of providing guidance to the lower state courts. Finding that the state law error also constituted federal constitutional error (or did not) would, however, have served no purpose, once the state court determined that any error was harmless. (The state court was free to decide the issues presented in whatever order it chose.) Indeed, respect for state judges requires recognizing that a state court's silence with respect to a fairly presented federal claim may be intentional and prudent.
Our reasoning finds support in a different line of Supreme Court cases, in which the Court has interpreted state court silence with regard to a particular issue as not constituting an " adjudication on the merits." Many of these cases involved claims of ineffective assistance of counsel brought under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland claims have two prongs, deficiency of counsel's performance and prejudice to the defendant; failure on either prong is dispositive. Id. at 680. Accordingly, state courts frequently decide Strickland claims by rejecting either deficiency or prejudice and remain silent with respect to the other prong. When these claims are raised in federal habeas proceedings, the Supreme Court has repeatedly interpreted that silence as a failure to reach the other prong and therefore not an " adjudication on the merits" of it. See Wiggins v. Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (" Our review is not circumscribed by a state court conclusion with respect to prejudice, as neither of the state courts below reached this prong of the Strickland analysis." (emphasis added)); Rompilla v. Beard, 545 U.S. 374, 390, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (" Because the state courts found the representation adequate, they never reached the issue of prejudice, and so we examine this element of the Strickland claim de novo." (emphasis added) (internal citations omitted)); Porter v. McCollum, 558 U.S. 30, 130 S.Ct. 447, 452, 175 L.Ed.2d 398 (2009) (" Because the state court did not decide whether Porter's counsel was deficient, we review this element of Porter's Strickland claim de novo." (emphasis added)). Nor has the Supreme Court limited this reasoning to Strickland claims. In Cone v. Bell, 556 U.S. 449, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009), the petitioner raised a claim under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), in his federal habeas petition. The state habeas court dismissed the claim based on a factual determination that the Supreme Court held was erroneous. Id. at 466-69. Turning to the merits of the claim, the Supreme Court stated:
Because the Tennessee courts did not reach the merits of Cone's Brady claim, federal habeas review is not subject to the deferential standard that applies under AEDPA to " any claim that was adjudicated on the merits in State court proceedings." 28 U.S.C. § 2254(d). Instead,
the claim is reviewed de novo. See, e.g., Rompilla v. Beard, 545 U.S. 374, 390, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (de novo review where state courts did not reach prejudice prong under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)); Wiggins v. Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (same).
Id. at 472 (emphasis added). Again, even though the state court was silent with respect to the merits of Cone's Brady claim, the Supreme Court did not presume that the claim was adjudicated on the merits. Thus, as Wiggins, Rompilla, Porter, and Cone demonstrate, and as both Richter and Williams have recognized, in some instances, a state court's silence with respect to a part of a claim should not be interpreted as an " adjudication on the merits" on that part for purposes of § 2254(d).
We summarize the law as set forth by the Supreme Court as follows. There are circumstances in which, even if a state court has denied relief overall, a state court's silence with respect to a fairly presented federal issue cannot be interpreted as an " adjudication on the merits" of that issue for purposes of § 2254(d), because the rebuttable presumption cited in Richter and Williams is rebutted by the legal principles involved (including the principle of constitutional avoidance) and factual context applicable to a particular case. See Wiggins v. Smith, 539 U.S. at 534; Rompilla v. Beard, 545 U.S. at 390; Porter v. McCollum, 558 U.S. 30, 130 S.Ct. 447, 452, 175 L.Ed.2d 398 (2009); Cone v. Bell, 556 U.S. at 472.
This is such a case. As explained earlier, the California Supreme Court had no reason to reach Ayala's federal constitutional claim once it had decided that (1) the alleged error occurred as a matter of state law, (2) the error was harmless under the state and federal standards for harmless error, and (3) whether or not that occurrence also violated federal constitutional law was of no consequence. Furthermore, under long established legal principles, the California Supreme Court had every reason not to decide unnecessarily a question of federal constitutional law. Thus, we find merit in Option 2, i.e., that the California Supreme Court did not decide whether there was error under federal constitutional law.
We recognize that it remains unclear whether the California Supreme Court decision is better read as Option 1 or Option 2. What is clear is that Option 3--i.e., that the California Supreme Court held that, although there was error under state law, there was none under federal constitutional law--is not the best, or even a plausible reading of the state court opinion. In this
case, because the California Supreme Court found error under state law by citing to federal cases relying on federal law and because it " noted" that there might have been a violation of federal law, Ayala, 6 P.3d at 202-04, Option 3 is a wholly implausible reading of the California Supreme Court decision. Accordingly, we have no reason to give § 2254(d) deference to such a holding in evaluating Ayala's claim. (As noted supra in Part II, we will discuss in Part IV the question whether the California Supreme Court's determination that any error was harmless was erroneous.)
Having determined that only Options 1 and 2 are plausible readings of the California Supreme Court decision, we proceed to review de novo Ayala's claim that his exclusion from stages two and three of the Batson proceedings violated the federal constitution.
Under de novo review, it is clear that it was federal constitutional error to exclude both Ayala and his counsel from stages two and three of the Batson proceedings. As the California Supreme Court recognized, our circuit had already held in United States v. Thompson, 827 F.2d 1254 (9th Cir. 1987) that, in the absence of a " compelling justification" (e.g., the disclosure of trial strategy) for conducting ex parte Batson proceedings, such exclusions violate federal constitutional law. Id. at 1258-59. Here, the California Supreme Court concluded -- and neither party to this appeal disputes -- that there was no such compelling justification for
conducting ex parte Batson proceedings, as " no matters of trial strategy were revealed" by the prosecutor. Ayala, 6 P.3d 193, 24 Cal.4th at 261-62. As such, Ayala's claim is controlled by Thompson, and we conclude that federal constitutional error occurred when Ayala and his lawyer were excluded from stages two and three of the Batson proceedings.
Ayala also claims that the state's loss of an overwhelming majority of the jury questionnaires deprived him of a record adequate for appeal and thus violated his federal due process rights. Although less clear than with Ayala's first federal constitutional claim, the California Supreme Court also decided this claim on the basis of harmless error only. Ayala, 6 P.3d 193, 24 Cal.4th at 270 (" Thus, even if there was federal error, it was harmless beyond a reasonable doubt." ). Accordingly, for the reasons explained supra Section III.A.1, we proceed with de novo review.
As the California Supreme Court recognized, Ayala has a due process right to a record sufficient to allow him a fair and full appeal of his conviction. Id. at 208 (citing People v. Alvarez, 14 Cal.4th 155, 196 n.8, 58 Cal.Rptr.2d 385, 926 P.2d 365 (1996)). If a state provides for a direct appeal as of right from a criminal conviction, it must also provide " certain minimum safeguards necessary to make that appeal 'adequate and effective.'" Evitts v. Lucey, 469 U.S. 387, 392, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985) (quoting Griffin v. Illinois, 351 U.S. 12, 20, 76 S.Ct. 585, 100 L.Ed. 891 (1956)); see also Coe v. Thurman, 922 F.2d 528, 530 (9th Cir. 1990) (" Where a state guarantees the right to a direct appeal, as California does, the state is required to make that appeal satisfy the Due Process Clause." ).
In Boyd v. Newland, we applied these principles in granting the habeas petition of an indigent defendant who had been denied a copy of his voir dire transcript because the state court had, in violation of clearly established federal law, determined that the transcript was not necessary to his Batson appeal. 467 F.3d 1139 (9th Cir. 2006). We held that " all defendants . . . have a right to have access to the tools which would enable them to develop their plausible Batson claims through comparative juror analysis." Id. at 1150. It follows that if the state's loss of the questionnaires deprived Ayala of the ability to meaningfully appeal the denial of his Batson claim, he was deprived of due process.
This conclusion is not called into question by Briggs v. Grounds, 682 F.3d 1165 (9th Cir. 2012), cited in the dissent. Dissent at 119. In Briggs, the petitioner had complete access to the juror questionnaires during the course of his state appeal. In fact, he relied heavily on them in presenting a comparative juror analysis to
support his Batson claim. 682 F.3d at 1171. Thus Briggs's due process rights were not implicated. The language cited by the dissent is lifted from a section of the opinion discussing whether, because those questionnaires were not included in the federal court record, we should credit the petitioner's characterization of those questionnaires over the state court's characterization. Briggs is irrelevant for our purposes, i.e., whether Ayala's due process rights were implicated when California lost the juror questionnaires, thus rendering them unavailable for his state court appeal.
Ayala is entitled to relief on this claim only if the loss of the questionnaires was prejudicial in se or if it in conjunction with the Batson error discussed supra served to deprive him of a meaningful appeal. Id.; see also Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). " [I]n analyzing prejudice . . ., this court has recognized the importance of considering the cumulative effect of multiple errors and not simply conducting a balkanized, issue-by-issue harmless error review." Daniels v. Woodford, 428 F.3d 1181, 1214 (9th Cir. 2005) (quoting Thomas v. Hubbard, 273 F.3d 1164, 1178 (9th Cir. 2001)). Here, the loss of the questionnaires increased the prejudice that Ayala suffered as a result of the exclusion of defense counsel from Batson steps two and three, as it further undermined his ability to show that Batson had been violated. Accordingly, in determining whether Ayala is entitled to relief, we evaluate the prejudice caused by the loss of the questionnaires in conjunction with the harm caused by excluding defense counsel from the Batson proceedings. As we will explain immediately below, the analysis under Brecht regarding the Batson error demonstrates that the exclusion of Ayala and his counsel from the second and third stages of the Batson inquiry is sufficiently prejudicial to require reversal for that reason alone.
The California Supreme Court held that Ayala was not prejudiced by the trial court's exclusion of the defense from stages two and three of the Batson proceedings, by the state's loss of the vast majority of the jury questionnaires, or by the two errors considered together. The Court declared itself " confident that the challenged jurors were excluded for proper, race-neutral reasons," Ayala, 6 P.3d at 204, concluded that the exclusion of defense counsel was " harmless beyond a reasonable doubt," id. (citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)), and held that despite the loss of the questionnaires the record was " sufficiently complete for [it] to be able to conclude that [the struck jurors] were not challenged and excused on the basis of forbidden group bias." Id. at 208.
We now address these same questions., and hold that Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), requires us to reach a different conclusion.
Ayala claims, first, that exclusion of defense counsel from the Batson proceedings necessarily represented structural error, and that he is entitled to relief without further inquiry into whether he was prejudiced.
The state court's conclusion that the error here was not structural -- a conclusion implicit in its application of the Chapman harmless error standard to evaluate whether Ayala had suffered prejudice -- is subject to review under the deferential standard of § 2254(d). See Byrd v. Lewis, 566 F.3d 855, 862 (9th Cir. 2009).
The Supreme Court has defined as " structural" an error that affects " the framework within which the trial proceeds, rather than simply an error in the trial process itself." Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Where this line is drawn is not always clear. Compare, e.g., Waller v. Georgia, 467 U.S. 39, 49 n.9, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (violation of the right to public trial requires automatic reversal), with, e.g., Rushen v. Spain, 464 U.S. 114, 117-18, 104 S.Ct. 453, 78 L.Ed.2d 267 & n.2 (1983) (denial of a defendant's right to be present at trial is subject to harmless error review). While a violation of Batson is itself structural error, there is no Supreme Court decision addressing whether the exclusion of defense counsel from Batson proceedings constitutes structural error.
Ayala contends that the state court's decision represents an unreasonable application of the Supreme Court's clearly established rule that " no showing of prejudice need be made 'where assistance of counsel has been denied entirely or during a critical stage of the proceedings.'" Brief of Appellant at 22 (quoting Mickens v. Taylor, 535 U.S. 162, 166, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002)); see also United States v. Cronic, 466 U.S. 648, 659 n.25, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). The use of the phrase " critical stage" in this excerpt can be somewhat deceptive: although the Batson proceedings represented a " critical stage" in the sense that Ayala had the right to counsel during those proceedings, they were not necessarily the sort of " critical stage" at which the deprivation of that right constituted structural error. See United States v. Owen, 407 F.3d 222, 227 (4th Cir. 2005). As the Fourth Circuit has explained, the statements in Mickens and Cronic
rely on the Supreme Court's earlier usage of the phrase " critical stage," in cases such as Hamilton v. [ Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961)] and White [ v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963) (per curiam)] to refer narrowly to those proceedings both at which the Sixth Amendment right to counsel attaches and at which denial of counsel necessarily undermines the reliability of the entire criminal proceeding.... [T]he Supreme Court has subsequently used the phrase " critical stage," in cases such as [ United States v.] Wade [, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)] and Coleman [ v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970)], in a broader sense, to refer to all proceedings at which the Sixth Amendment right to counsel attaches -- including those at which the denial of such is admittedly subject to harmless-error analysis.
Id. at 228 (emphasis omitted).
In Musladin v. Lamarque, we held that the " clearly established" rule of Cronic is that a " critical stage" where the deprivation of counsel constitutes structural error is one that holds " significant consequences for the accused." 555 F.3d 830, 839 (9th Cir. 2009) (quoting Bell v. Cone, 535 U.S. 685, 695-96, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002)). We identified as providing guidance in this inquiry Supreme Court
decisions holding an overnight trial recess and closing arguments to be two such critical stages. Id. at 839-40 (citing Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976) and Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975)).
Given this fairly ambiguous standard, it was not an unreasonable application of clearly established federal law for the California Supreme Court to conclude that the exclusion of the defense from Batson steps two and three does not amount to a deprivation of the right to counsel such that the likelihood that the jury was chosen by unconstitutional means is " so high that a case-by-case inquiry is unnecessary." Mickens, 535 U.S. at 166. As the state points out, it would be somewhat incongruous to conclude that the exclusion of counsel during Batson proceedings is a defect in the very structure of the trial if the same exclusion would be permissible were there some reason to keep the prosecution's justifications confidential. Thus, a " fairminded jurist," Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)), might conclude that Batson steps two and three are not a Cronic -type " critical stage." Even if we would hold the error to be structural were we to consider the issue de novo, we cannot say that as the Supreme Court has construed AEDPA the state court's contrary conclusion was unreasonable. See Musladin, 555 F.3d at 842-43.
Ayala claims next that, even if the trial court's exclusion of the defense was not the sort of constitutional error in se that requires that we presume that in every exclusion case prejudice ensues, it was prejudicial in his case, both in solo and when considered in conjunction with the loss of the questionnaires. In evaluating whether a trial error prejudiced a state habeas petitioner, we must apply the standard set forth in Brecht v. Abrahamson, determining whether the error had a " substantial and injurious effect or influence in determining the jury's verdict." 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). We " apply the Brecht test without regard for the state court's harmlessness determination." Pulido v. Chrones, 629 F.3d 1007, 1012 (9th Cir. 2010) (citing Fry v. Pliler, 551 U.S. 112, 121-22, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007)).
The Brecht standard has been described as follows:
[I]f one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from
the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence.
Merolillo v. Yates, 663 F.3d 444, 454 (9th Cir. 2011) (quoting Kotteakos, 328 U.S. at 765). " Where the record is so evenly balanced that a judge 'feels himself in virtual equipoise as to the harmlessness of the error' and has 'grave doubt about whether an error affected a jury [substantially and injuriously], the judge must treat the error as if it did so.'" Id. (quoting O'Neal v. McAninch, 513 U.S. 432, 435, 437-38, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995)) (alteration in original) (internal quotations omitted).
We conclude that Ayala has met the Brecht standard. The prejudice he
suffered was the deprivation of the opportunity to develop, present, and likely prevail on his Batson claim. Had he prevailed on that claim, and shown that the prosecution acted upon impermissible considerations of race in striking even one of the seven black or Hispanic jurors it struck, then, as the state acknowledged in oral argument before this court, we would be compelled to reverse Ayala's conviction because his entire trial would have been infected by this violation of the Constitution. See Vasquez v. Hillery, 474 U.S. 254, 263-64, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986); Boyd, 467 F.3d at 1150. The question, then, is whether Ayala could have made this showing but for the state's constitutional errors. If we cannot say that the exclusion of defense counsel with or without the loss of the questionnaires likely did not prevent Ayala from prevailing on his Batson claim, then we must grant the writ.
Here, it is probable that the state's errors precluded Ayala from turning what is a very plausible Batson claim -- the challenge to the prosecution's strikes of all minority jurors -- into a winning one by preventing defense counsel from performing the two " crucial functions" we identified in Thompson. First, Ayala's counsel could have pointed out where the prosecution's purported justifications might be pretextual or indicate bad faith. Although the trial judge may have been able to " detect some of these deficiencies by himself,. . . there might be arguments [he] would overlook" because he was " unassisted by an advocate." Thompson, 827 F.2d at 1260-61. The jury selection process took over three months and comprises more than six thousand pages of the record. The trial judge, attempting to evaluate the prosecution's reasons for striking the jurors in light of this massive amount of information, was almost certain to forget or overlook key facts, but could have been substantially aided by the presence of participants in the process adverse to the prosecution. In particular, Ayala's lawyers could have pointed out when the prosecutor's proffered reason for striking a black or Hispanic juror applied " just as well to an otherwise-similar nonblack [or non-Hispanic] who [was] permitted to serve." Miller-El v. Dretke, 545 U.S. 231, 241, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005). The Supreme Court has emphasized the importance of this sort of " comparative juror analysis" to determining whether a prosecutor's reasons for challenging a minority juror were pretextual. Id.; see also Snyder v. Louisiana, 552 U.S. 472, 483-85, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008). Although Ayala can -- and does -- still raise some of these arguments on appeal, he was deprived of the crucial opportunity to present them to the institutional actor best positioned to evaluate them. As the Supreme Court has observed, appellate courts must accord deference to " trial court findings on the issue of discriminatory intent" because " the finding largely will turn on evaluation of credibility." Miller-El v. Cockrell, 537 U.S. 322, 339, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (quoting Hernandez v. New York, 500 U.S. 352, 366, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality opinion)) (internal quotation marks and citations omitted). Because, after finding a prima facie case of a Batson violation, the trial court was not made aware of key facts that could have influenced its credibility determination, there is substantial reason to doubt
that Ayala's Batson challenge was properly denied.
Second, Ayala's counsel could have " preserve[d] for the record, and possible appeal, crucial facts bearing on the judge's decision." Thompson, 827 F.2d at 1261. We cannot know many of the facts material to whether the prosecution's stated reasons were false, discriminatory, or pretextual because defense counsel was not able to preserve relevant facts regarding prospective jurors' physical appearances, behavior, or other characteristics. Although the trial judge could have been aware of these facts, an appellate court " can only serve [its] function when the record is clear as to the relevant facts, or when defense counsel fails to point out any such facts after learning of the prosecutor's reasons." Id.; see also United States v. Alcantar, 897 F.2d 436, 438 (9th Cir. 1990) (reversing a defendant's conviction where the Batson proceedings conducted below left the defense unable " to adequately challenge the prosecution's reasons as pretextual" and left the reviewing court uncertain as to whether the prosecution had, in fact, violated Batson ).
This second deficiency is greatly augmented by the loss of the jury questionnaires. The only questionnaires that have been preserved are those of the seated and alternate jurors. We are unable to evaluate the legitimacy of some of the prosecution's proffered reasons for striking the black and Hispanic jurors because they referred to questionnaires that are now lost. The loss of the questionnaires also leaves us lacking potentially crucial information about certain individuals who were neither the subject of Ayala's Batson challenge nor ultimately served as jurors. Thus, we cannot perform a fair comparative juror analysis as required by Batson. See Miller-El v. Dretke, 545 U.S. at 241.
Even so, we have substantial reason to question the motivation of the prosecution in engaging in its peremptory challenges of the black and Hispanic jurors. In conducting our inquiry, we must keep in mind the strength of Ayala's prima facie case. " [T]he statistical evidence alone raises some debate as to whether the prosecution acted with a race-based reason when striking prospective jurors." Miller-El v. Cockrell, 537 U.S. at 342. That the prosecution struck each of the seven black or Hispanic jurors available for challenge establishes a basis for significant doubt of its motives: " [h]appenstance is unlikely to produce this disparity." Id.
Perhaps more important, the analysis of the prosecution's motives that is possible on the partial record before us demonstrates that many of its stated reasons for striking the seven black and Hispanic jurors were or may have been false, discriminatory, or pretextual. There are good reasons to think that race motivated the
prosecution's strikes of at least three, if not more, jurors: Olanders D., Gerardo O. and Robert M. We " cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole," Kotteakos, 328 U.S. at 765, that Ayala was not prevented from showing that the prosecution struck at least one of these jurors because of his race.
1. Olanders D.
Olanders D. was one of two black jurors whom the prosecution struck in the first round of peremptory challenges. During the in camera hearing that followed the defense's Batson motion, the prosecutor explained that he struck Olanders D. because: (1) he might not be able to vote for the death penalty, as he had written in his questionnaire that he did not believe in it, and he had indicated in questioning that his view had recently changed; (2) his answers to voir dire questions often were not fully responsive; (3) his questionnaire responses had been " poor" ; and (4) he might lack the " ability to fit in with a cohesive group of 12 people." The trial judge rejected one of the four proffered reasons -- his purported inability " to fit in with a cohesive group of 12 people." The presence of defense counsel, and the preservation of the questionnaires, could have permitted Ayala to call into question all three of the reasons that the court accepted as legitimate.
First, in response to the prosecution's claim that it was concerned that Olanders D. would hesitate to impose the death penalty, defense counsel could have pointed to seated white jurors who had expressed similar or greater hesitancy. One seated juror in particular was indistinguishable from Olanders D. in this regard. Olanders D. had (apparently) written in his questionnaire that he did not believe in the death penalty. Ana L., a seated white juror, made almost precisely the same statement in her questionnaire, writing that she " probably would not be able to vote for the death penalty." Also, Olanders D. later said during voir dire that he had reconsidered his views, and affirmed that he could be " personally responsible for being on a jury and actually voting ...