                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

HECTOR JUAN AYALA,                        No. 09-99005
             Petitioner-Appellant,           D.C. No.
               v.                        3:01-CV-01322-
ROBERT K. WONG, Warden,                      IEG-PLC
            Respondent-Appellee.
                                            OPINION

       Appeal from the United States District Court
          for the Southern District of California
     Irma E. Gonzalez, Chief District Judge, Presiding

                  Argued and Submitted
          February 9, 2012—Pasadena, California

                  Filed August 29, 2012

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

               Opinion by Judge Reinhardt;
                Dissent by Judge Callahan




                          10085
                     AYALA v. WONG                10089




                      COUNSEL

Robin L. Phillips and Anthony J. Dain of Procopio, Cory,
Hargreaves & Savitch LLP, San Diego, California, for
petitioner-appellant Hector Juan Ayala.

Robin H. Derman, Deputy Attorney General of California,
San Diego, California, for defendant-appellee Robert K.
Wong, Warden.
10090                   AYALA v. WONG
                          OPINION

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 chal-
lenge. The trial judge concluded that Ayala had established a
prima facie case of racial discrimination under Batson v. Ken-
tucky, 476 U.S. 79 (1986), but permitted the prosecution to
give its justifications for the challenges of these jurors in an
in camera hearing from which Ayala and his counsel were
excluded. The trial judge then accepted the prosecution’s jus-
tifications for its strikes without disclosing them to the
defense or permitting it to respond. We hold that this proce-
dure violated the Constitution and, together with the state’s
later loss of a large portion of the record, adversely affected
Ayala’s substantial rights. We therefore reverse the district
court’s denial of Ayala’s petition and remand with instruc-
tions to grant the writ.

                               I.

   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, Cali-
fornia. 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 mur-
der, 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
                           AYALA v. WONG                         10091
murder in the attempted commission of robberies were appli-
cable in his case. A finding that one of these special circum-
stances 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 pro-
spective 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 cal-
led back for general voir dire, at which smaller groups of
jurors were questioned by both the prosecution and the
defense. The parties winnowed the remaining group down to
twelve seated jurors and six alternates through the use of
peremptory challenges. Each side was allotted twenty
peremptory challenges which could be used upon any of the
twelve jurors then positioned to serve on the jury. After
twelve seated jurors were finally selected, both parties were
allotted an additional six peremptory challenges to be used in
the selection of alternates. The prosecution employed seven of
the 18 peremptory challenges it used in the selection of the
seated jurors to dismiss each black or Hispanic prospective
juror who was available for challenge, resulting in a jury that
was devoid of any members of these ethnic groups. In
response, Ayala, who is Hispanic, brought three separate
motions pursuant to Batson v. Kentucky, 476 U.S. 79 (1986),
claiming that the prosecution was systematically excluding
minority jurors on the basis of race.1
  1
   The motions were technically made under People v. Wheeler, 22
Cal.3d 258 (1978), the California analogue to Batson. Because “a Wheeler
motion serves as an implicit Batson objection,” we characterize Ayala’s
motions, and the proceedings that followed, as being pursuant to Batson.
Crittenden v. Ayers, 624 F.3d 943, 951 (9th Cir. 2010).
10092                   AYALA v. WONG
   The defense made its first Batson motion after the prosecu-
tion 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 prosecu-
tion 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 rea-
sons for challenging minority jurors following the defense’s
second and third Batson motions. He did so despite his deter-
mination, 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 circum-
stance 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 question-
naires the prospective jurors had completed, and advised them
that he would be “keeping the originals.” At some point dur-
ing or following the trial, however, all questionnaires, save
those of the twelve sitting jurors and five alternates, were lost.
                          AYALA v. WONG                         10093
The questionnaires of four additional jurors — including the
sixth alternate — were located in the defense counsel’s files,
but the remaining 193 questionnaires have never been located.

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

   Ayala timely filed his federal habeas petition. The district
court denied relief, but issued a Certificate of Appealability as
to Ayala’s Batson-related claims and his claim that the state
had violated his Vienna Convention right to consular notifica-
tion.2 Ayala now appeals.

                                  II.

  Ayala’s petition is subject to the requirements of the
Antiterrorism and Effective Death Penalty Act of 1996
  2
    Because we conclude that Ayala is entitled to relief on his Batson-
related claims, we need not decide whether the district court erred in
rejecting his Vienna Convention claim.
10094                   AYALA v. WONG
(AEDPA). See Kennedy v. Lockyer, 379 F.3d 1041, 1046 (9th
Cir. 2004). We may grant relief only if the last state court
decision on the merits of Ayala’s claim was (1) “contrary to,
or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States;” or (2) “based on an unreasonable determina-
tion of the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d).

                              III.

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

   Ayala contends that the exclusion of the defense from the
proceedings in which the prosecution justified its strikes of
the seven black or Hispanic jurors, and the trial court accepted
those justifications, violated his right to the assistance of
counsel and his right to be personally present and to assist in
his defense, and prevented him from ensuring that the prose-
cution did not violate his fundamental right to a jury chosen
                           AYALA v. WONG                          10095
free from racial discrimination. Here, we need hold only that,
in these circumstances, the exclusion of defense counsel dur-
ing Batson steps two and three violated the Constitution.

                                   A.

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

   Because the California Supreme Court acknowledged that
the trial court might have violated Ayala’s federal constitu-
tional rights, we do not apply § 2254(d)’s deferential standard
to this aspect of the state court’s decision. See Porter v.
McCollum, 130 S.Ct. 447, 452 (2009) (reviewing de novo
whether petitioner’s counsel had been constitutionally defi-
cient because state court had decided only that petitioner was
not prejudiced by any deficiency); Panetti v. Quarterman, 551
U.S. 930, 953 (2007).3 Section 2254(d) is, however, far from
  3
    We do, however, accord AEDPA deference to the state court’s reason
for ultimately denying Ayala’s appeal: that he had not been prejudiced by
the trial court’s error. We also agree with the state’s contention that
AEDPA bars Ayala’s argument that the exclusion of defense counsel from
steps two and three of the Batson proceedings was structural error. See
infra Part V.
10096                         AYALA v. WONG
the only obstacle a habeas petitioner must overcome in order
for a federal court to consider on the merits his claim that he
was deprived of his constitutional rights. Here, the state
asserts, and the district court agreed, that Ayala’s claim is
barred by Teague v. Lane, 489 U.S. 288 (1989). “[I]n addition
to performing any analysis required by AEDPA, a federal
court considering a habeas petition must conduct a threshold
Teague analysis when the issue is properly raised by the
state.” Horn v. Banks, 536 U.S. 266, 272 (2002).

   Under Teague, a “new constitutional rule[ ] of criminal pro-
cedure” cannot be applied retroactively to cases on collateral
review. 489 U.S. at 310 (plurality opinion). Thus, “[b]efore a
state prisoner may upset his state conviction or sentence on
federal collateral review, he must demonstrate as a threshold
matter that the court-made rule of which he seeks the benefit
is not ‘new,’ ” but had been established at the time his convic-
tion became final. O’Dell v. Netherland, 521 U.S. 151, 156
(1997). “A holding constitutes a ‘new rule’ within the mean-
ing of Teague if it ‘breaks new ground,’ ‘imposes a new obli-
gation on the States or the Federal Government,’ or was not
‘dictated by precedent existing at the time the defendant’s
conviction became final.’ ” Graham v. Collins, 506 U.S. 461,
467 (1993) (quoting Teague, 489 U.S. at 301).4

                                      B.

  [2] We hold that Ayala’s claim does not require the retro-
active application of a new constitutional rule of criminal pro-
cedure, and thus is not Teague-barred. At the time Ayala’s
conviction became final on May 14, 2001, it was established
  4
   Teague is subject to two exceptions. See Saffle v. Parks, 494 U.S. 484,
494-95 (1990) (a “new rule” can be applied retroactively on collateral
review if “the rule places a class of private conduct beyond the power of
the State to proscribe,” or if it constitutes a “ ‘watershed rule[ ] of criminal
procedure’ implicating the fundamental fairness and accuracy of the crimi-
nal proceeding”) (quoting Teague, 489 U.S. at 311). Neither party con-
tends that either exception is applicable in this case.
                            AYALA v. WONG                          10097
that defense counsel must be permitted to be present and offer
argument during Batson steps two and three when, as in
Ayala’s case, the proceedings do not require the prosecution
to reveal confidential information or trial strategy.

   In this Circuit, this rule was unequivocally “dictated by pre-
cedent,” Teague, 489 U.S. at 301, long before Ayala’s convic-
tion became final, having been established in United States v.
Thompson, 827 F.2d 1254 (9th Cir. 1987). In Thompson, we
held that a district court had constitutionally erred when, after
the defendant had established a prima facie case under Bat-
son, the court permitted the prosecution to state the reasons
for its peremptory strikes ex parte. Observing that Batson step
two might sometimes require the prosecutor to “reveal confi-
dential matters of tactics and strategy,” we recognized that in
some circumstances there might be “compelling” reasons to
conduct the proceedings ex parte. Id. at 1258-59. We there-
fore declined to adopt an absolute rule holding that the
defense must always be permitted to participate at Batson
steps two and three. We held, however, that defense counsel
must be permitted to be present and offer argument during
Batson steps two and three if the prosecution’s proffered race-
neutral reason do not involve confidential or strategic infor-
mation. Id. at 1258-59.5

   Our decision in Thompson represented the straightforward
application of two lines of Supreme Court precedent. The first
line of precedent finds its source in the Sixth Amendment’s
guarantee of the right to counsel. Because “the plain wording
  5
    The dissent suggests that, because Thompson declined to adopt an
absolute rule regarding the exclusion of defense counsel from Batson steps
two and three, its conclusion was “not . . . a binding rule” and “clearly
advisory.” Dissent at 10139. We are puzzled by this, almost as much as
we are by the dissent’s suggestion that because Thompson was not unani-
mous it does not have binding effect and we should follow Judge Sneed’s
dissent. In any event, many constitutional rules recognize exceptions —
e.g., the exigency exception to the Fourth Amendment prohibition on war-
rantless searches — but that does not make the rules any less binding.
10098                   AYALA v. WONG
of” the Amendment “encompasses counsel’s assistance when-
ever necessary to assure a meaningful ‘defence,’ ” the Court
has long held that the right applies at all “critical” stages of
criminal proceedings. United States v. Wade, 388 U.S. 218,
224-25 (1967); see also, e.g., White v. Maryland, 373 U.S. 59,
60 (1963); Gideon v. Wainwright, 372 U.S. 335, 345 (1963).
Ultimately, the right to counsel “has been accorded . . . ‘not
for its own sake, but because of the effect it has on the ability
of the accused to receive a fair trial.’ ” Mickens v. Taylor, 535
U.S. 162, 166 (2002) (quoting United States v. Cronic, 466
U.S. 648, 658 (1984)). Foremost among the attributes of a fair
trial is the requirement that it be adversarial in nature: “[t]he
very premise of our adversary system of criminal justice is
that partisan advocacy on both sides of a case will best pro-
mote the ultimate objective that the guilty be convicted and
the innocent go free.” Herring v. New York, 422 U.S. 853,
862 (1975). “The right to the effective assistance of counsel
is thus the right of the accused to require the prosecution’s
case to survive the crucible of meaningful adversarial test-
ing.” Cronic, 466 U.S. at 656. As we observed in Thompson,
“[t]he right of a criminal defendant to an adversary proceed-
ing is fundamental to our system of justice,” and thus ex parte
proceedings are justifiable only as “uneasy compromises with
some overriding necessity.” 827 F.2d at 1258.

   Batson is the seminal case in the second line of precedent.
After setting out the three-stage framework used to determine
whether the prosecution has engaged in purposeful racial dis-
crimination in the selection of a jury, the Batson Court
declined “to formulate particular procedures to be followed
upon a defendant’s timely objection to a prosecutor’s chal-
lenges.” 476 U.S. at 99. Batson made clear, however, that the
defendant bears the ultimate burden of persuasion. Id. at 98.
Batson also made clear that a court must consider “all relevant
circumstances” in deciding whether a defendant has met his
burden of persuasion — an inquiry that requires determining
whether a prosecutor’s stated reasons for striking a particular
juror are race-neutral, and, if race-neutral, whether they are
                        AYALA v. WONG                       10099
his actual reasons. Id. at 96-99; see Miller-El v. Dretke, 545
U.S. 231, 240 (2005).

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

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

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

    All we have before us concerning this issue is the
    prosecutor’s explanation of her reasons and the dis-
    trict judge’s ruling. . . . [I]f we are to review the dis-
    trict judge’s decision, we cannot affirm simply
    because we are confident he must have known what
    he was doing. We can only serve our function when
    the record is clear as to the relevant facts, or when
    defense counsel fails to point out any such facts after
10100                        AYALA v. WONG
      learning of the prosecutor’s reasons. . . . Here, the
      record’s silence cannot be reassuring.

Id. Thus, we held, only with the presence and assistance of
defense counsel can the trial judge and subsequent appellate
judges properly evaluate whether the defense has met its bur-
den of persuasion under Batson. Excluding the defense from
the Batson proceedings without some compelling justification
therefore violates the Constitution. Id. at 1259-61.6

   [3] Thompson compels us to conclude that the rule Ayala
seeks is not, under Teague, a “new” one. “[C]ircuit court
holdings suffice to create a ‘clearly established’ rule of law
under Teague.” Belmontes v. Woodford, 350 F.3d 861, 884
(9th Cir. 2003) (reversed on other grounds by Brown v. Bel-
montes, 544 U.S. 945 (2005)); see Williams v. Taylor, 529
U.S. 362, 412 (2000) (O’Connor, J., for the Court) (“With one
caveat, whatever would qualify as an old rule under our
Teague jurisprudence will constitute ‘clearly established Fed-
eral law, as determined by the Supreme Court of the United
States’ under § 2254(d)(1). . . . The one caveat, as the statu-
  6
    The state and the dissent, in arguing that Ayala’s claim is barred by
Teague, cite Lewis v. Lewis, 321 F.3d 824 (9th Cir. 2003), a case in which
we granted a habeas petitioner’s Batson claim. In the course of some
extended musings regarding the “ideal procedures under Batson,” id. at
830, the Lewis panel observed, in a footnote, that the argument that “a
court must allow defense counsel to argue” at Batson step three was not
“clearly established law,” as it “appears not to have been addressed by
courts.” Id. at 831 n.27. This passage is dicta, as the question of whether
defense counsel must be permitted to argue at Batson step three was not
“presented for review” in Lewis. Barapind v. Enomoto, 400 F.3d 744, 750-
51 (9th Cir. 2005) (en banc) (per curiam). Indeed, this passage could not
represent anything but dicta, as the Lewis panel could not overrule our
prior decision in Thompson, of which it was apparently unaware. See Mil-
ler v. Gammie, 335 F.3d 889, 899-900 (9th Cir. 2003) (en banc) (holding
that a prior panel’s decision may only be overruled by a subsequent panel
if the decision is “clearly irreconcilable” with a higher court’s intervening
ruling). Thompson’s holding thus unquestionably remains binding Circuit
law.
                       AYALA v. WONG                     10101
tory language makes clear, is that § 2254(d)(1) restricts the
source of clearly established law to this Court’s jurispru-
dence.”). We have held that, as long as a rule derived from
Supreme Court precedent was established in this Circuit when
a petitioner’s conviction became final, it is not a “new rule”
under Teague. See Belmontes, 350 F.3d at 884; Bell v. Hill,
190 F.3d 1089, 1092-93 (9th Cir. 1999). “This is true even [if]
other federal courts and state courts have rejected our hold-
ing.” Bell, 190 F.3d at 1093. Because Thompson itself relied
on the Supreme Court’s right to counsel and equal protection
jurisprudence, “we cannot now say that a state court would
not have felt compelled by the Constitution and Supreme
Court precedent” to conclude that the rule Ayala contends
must be applied was not established at the time his conviction
became final. Id.

                              C.

   We would hold that Ayala’s claim is not Teague-barred
even if we were free to conclude that, contrary to Bell and
Belmontes, Thompson did not in and of itself establish that the
rule Ayala seeks is not “new.” Nearly every court to consider
the question by the time Ayala’s conviction became final had
adopted the rule that we set forth in Thompson, concluding
that defense counsel must be allowed to participate at Batson
steps two and three except when confidential or strategic rea-
sons justify the challenge. The Fourth, Eight and Eleventh
Circuits had all so held. See United States v. Garrison, 849
F.2d 103, 106 (4th Cir. 1988) (“We . . . agree with the Ninth
Circuit that the important rights guaranteed by Batson deserve
the full protection of the adversarial process except where
compelling reasons requiring secrecy are shown.”); United
States v. Roan Eagle, 867 F.2d 436, 441 (8th Cir. 1989)
(“[O]nce the prosecutor has advanced his racially neutral
explanation, the defendant should have the opportunity to
rebut with his own interpretation.”); United States v. Gordon,
817 F.2d 1538, 1541 (11th Cir. 1987) (remanding for an evi-
dentiary hearing where the district court had denied the defen-
10102                   AYALA v. WONG
dant’s request for a hearing to rebut the government’s
proffered race-neutral reasons). The state courts that con-
fronted the issue had all reached similar conclusions. See
Ayala, 6 P.3d at 203; Goode v. Shoukfeh, 943 S.W.2d 441,
452 (Tex. 1997); People v. Hameed, 88 N.Y.2d 232, 238
(1996); State v. Hood, 245 Kan. 367, 378 (1989); Gray v.
State, 317 Md. 250, 257-58 (1989); Commonwealth v. Jack-
son, 386 Pa. Super. 29, 51 (1989); Commonwealth v. Futch,
38 Mass. App. Ct. 174, 178 (1995); see also Caspari v. Boh-
len, 510 U.S. 383, 395 (1994) (“[I]n the Teague analysis the
reasonable views of state courts are entitled to consideration
along with those of federal courts.”).

   These courts adopted the Thompson rule with good reason.
The Sixth Amendment provides that the defendant must be
permitted to have the assistance of a trained advocate at all
critical stages of the proceedings in order to test and challenge
all aspects of the prosecution’s case. See Cronic, 466 U.S. at
656. Batson did not suggest that there should be an exception
to this overarching rule when a defendant has established a
prima facie case that the prosecutor has struck jurors on the
basis of race. To the contrary, it makes no sense to put the
burden of persuasion on the defense, as Batson does, and then
refuse defense counsel the opportunity to hear and respond to
the prosecution’s explanations. The rule Ayala seeks is not in
any sense new, but rather one which, as almost all courts to
have considered the question have concluded, follows directly
from the more general rule that the defendant has the right “to
require the prosecution’s case to survive the crucible of mean-
ingful adversarial testing.” Id.; see also Wright v. West, 505
U.S. 277, 308-09 (1992) (Kennedy, J., concurring in the judg-
ment) (“Where the beginning point is a rule of . . . general
application, a rule designed for the specific purpose of evalu-
ating a myriad of factual contexts, it will be the infrequent
case that yields a result so novel that it forges a new rule, one
not dictated by precedent.”).
                             AYALA v. WONG                            10103
   The state and the dissent call our attention to two decisions
that reached a contrary conclusion, both of which were
decided soon after the Court issued Batson. In United States
v. Davis, the Sixth Circuit rejected a defendant’s argument
that his right to be present had been violated when the trial
court allowed the prosecution to explain its peremptory strikes
in camera, holding that “the district court was entitled to hear
from the Government under whatever circumstances the dis-
trict court felt appropriate.” 809 F.2d 1194, 1202 (6th Cir.
1987). Similarly, in United States v. Tucker, the Seventh Cir-
cuit held that the Sixth Circuit was correct to conclude that
“Batson neither requires rebuttal of the government’s reasons
by the defense, nor does it forbid a district court to hold an
adversarial hearing.” 836 F.2d 334, 340 (7th Cir. 1988).7

   These decisions do not render Ayala’s claim Teague-
barred. “[T]he standard for determining when a case estab-
lishes a new rule is ‘objective,’ and the mere existence of con-
flicting authority does not necessarily mean a rule is new.”
Williams, 529 U.S. at 410 (quoting Wright, 505 U.S. at 304
(1992) (O’Connor, J., concurring in the judgment)). To the
extent that these decisions deny that there is any right to par-
ticipate in Batson proceedings, they simply cannot be recon-
ciled with the basic Sixth Amendment requirement that, at all
critical stages of criminal proceedings, the defendant must
  7
     The state and the dissent also cite a third decision that they contend
demonstrates that there is a Circuit split that precludes our finding that the
rule Ayala seeks was “dictated by precedent.” In Majid v. Portuondo,
where the issue was whether the defense had the right to cross-examine
witnesses at a Batson hearing, the Second Circuit remarked gratuitously
that “[i]t remains at least arguable that courts holding Batson hearings may
. . . hear the [prosecution’s] explanations in camera and outside the pres-
ence of the defendants.” 428 F.3d 112, 128 (2d. Cir. 2005). The question
of whether a challenge to the type of in camera hearing conducted in
Ayala’s case is Teague-barred was not, however, before the court. More-
over, this passage in Majid can be understood as observing only that there
is no absolute right to an adversarial proceeding, which is consistent with
the rule that Ayala seeks here.
10104                        AYALA v. WONG
have the assistance of counsel in order to subject the prosecu-
tion’s case to adversarial testing. That the courts in Davis and
Tucker failed to fully appreciate the relevance of this principle
is understandable, as in neither case did the defendants invoke
the right to counsel to support their claim: in Davis, the defen-
dants asserted that the in camera hearings had violated their
right to be present at trial, a right derived principally from the
Sixth Amendment’s Confrontation Clause, see Davis, 809
F.2d at 1200; in Tucker, the defendant claimed that the ex
parte proceedings violated his rights to due process and to an
impartial jury, see Tucker, 836 F.2d at 338, 340. Perhaps for
this reason, the Davis court failed to recognize the important
functions counsel serves during Batson steps two and three,
instead concluding that once the defense had established a
prima facie case of racial discrimination, its “participation
was no longer necessary for the district court to make its
determination.” 809 F.2d at 1202. As we explained in Thomp-
son, this statement is simply not true: defense counsel contin-
ues to serve the two crucial functions of bringing facts and
arguments to the attention of the trial court and preserving
them for the record. Thompson, 827 F.2d at 1260-61. Like-
wise, the court in Tucker rejected the rule we adopted in
Thompson because it concluded that Batson itself did not
require the defense to be present during Batson steps two and
three, and because our exception permitting ex parte proceed-
ings in some circumstances threatened to “swallow the rule.”
See Tucker, 836 F.2d at 338, 340. Our rule is not, however,
derived directly from Batson, but rather from the confluence
of Batson and the Court’s Sixth Amendment jurisprudence.
Moreover, simply because a rule is subject to an exception —
perhaps even a relatively broad exception — is not a justifica-
tion for rejecting the rule altogether when the result, in those
cases in which the exception does not apply, is to deprive a
defendant of his constitutional rights.8
  8
    Tucker itself may be read to recognize this point, as it did not explicitly
reject our conclusion that an adversarial hearing at Batson steps two and
three was sometimes constitutionally compelled. Id. at 340. It observed
that, in general, “adversarial hearings are the most appropriate method for
                            AYALA v. WONG                            10105
   Even assuming some doubt may have existed as to whether
the rule Ayala seeks was “dictated by precedent” in the imme-
diate aftermath of the Sixth and Seventh Circuits’ decisions in
1987 and 1988, by the time Ayala’s conviction became final
in 2001, 13 years later, every court to have considered the
issue in the interim — state and federal — had rejected, either
explicitly or implicitly, the Sixth and Seventh Circuits’ view,
and had adopted the Thompson rule. See Garrison, 849 F.2d
at 106; Roan Eagle, 867 F.2d at 441; Ayala, 6 P.3d at 203;
Goode, 943 S.W.2d at 452; Hameed, 88 N.Y.2d at 238; Hood,
245 Kan. at 378; Gray, 317 Md. at 257-58; Jackson, 386 Pa.
Super. at 51; Futch, 38 Mass. App. Ct. at 178. The Supreme
Court had also, in the interim, acknowledged a version of our
rule when it observed (in dicta) that, when a prosecutor chal-
lenges a defendant’s use of peremptory challenges, “[i]n the
rare case in which the explanation for a challenge would
entail confidential communications or reveal trial strategy, an
in camera discussion can be arranged.” Georgia v. McCollum,
505 U.S. 42, 58 (1992). Thus, the California Supreme Court
characterized the rule Ayala sought — the Thompson rule —
as one that had been “almost universally recognized.” Ayala,
6 P.3d at 203. Given that the California Supreme Court’s
description is correct, the rule that Ayala would have us apply
is not Teague-barred.9

handling most Batson-type challenges.” Id. Thus, although the Tucker
court purported to reject Thompson in favor of Davis, the decision did not
necessarily foreclose defendants from claiming their rights had been vio-
lated by the trial court’s employment of a nonadverserial Batson proceed-
ing.
   9
     We also note that where, as here, the state court applied the rule in
question on direct appeal, and determined it to be “almost universally rec-
ognized,” the application of Teague to bar the petitioner’s claims would
do little to further the doctrine’s purpose. Teague is motivated by consid-
erations of comity and finality. See Teague, 489 U.S. at 308. Its purpose
is to afford repose to the states by ensuring that criminal convictions that
were valid at the time they became final will not be upset by subsequently
discovered constitutional rules. As Justice O’Connor explained, applying
new rules on collateral review
10106                        AYALA v. WONG
   [4] Accordingly, we conclude that, at the time Ayala’s
conviction became final, it was established for purposes of
Teague that defense counsel cannot be excluded from Batson
steps two and three absent some “compelling justification” for
doing so. Thompson, 827 F.2d at 1259-60. The California
Supreme Court held that this rule was violated in Ayala’s
case. It found, and the state does not dispute, that “no matters
of trial strategy were revealed” in the hearings at which the
prosecution explained its reasons for its peremptory chal-
lenges of all the potential black and Hispanic jurors. Ayala, 6
P.3d at 203.10 Thus, the exclusion of defense counsel was in

    continually forces the States to marshal resources in order to keep
    in prison defendants whose trials and appeals conformed to then
    existing constitutional standards. Furthermore, as we recognized
    in Engle v. Isaac, “[s]tate courts are understandably frustrated
    when they faithfully apply existing constitutional law only to
    have a federal court discover, during a [habeas] proceeding, new
    constitutional commands.” [456 U.S. 107, 128 n.33 (1982).]
Id. at 310. Although Teague may still bar the application in federal habeas
proceedings of rules that the state courts have themselves recognized, cf.
Beard v. Banks, 542 U.S. 406, 413 (2004), Horn, 536 U.S. at 272, the
interests of comity and finality are obviously far less weighty when a state
court has accepted a rule than when it has rejected or ignored a rule. Here,
the state is not being forced to marshal resources to defend against a new
and novel claim that was not recognized at the time the conviction became
final; nor did it faithfully apply existing constitutional law only to have a
federal court subsequently apply new constitutional commands. To the
contrary, the state is challenging a rule that the California Supreme Court
found to be well established and controlling at the time it affirmed Ayala’s
conviction on direct appeal, as well as at the time the trial court conducted
its proceedings. Certainly the state court could not be “frustrated” to find
that a federal court determined that it was error to exclude the defense
from the Batson proceedings when the state court itself had held that this
very same rule was “almost universally recognized” and reached the same
determination itself.
   10
      The dissent attempts to reframe the Teague analysis as follows:
Thompson merely articulated the rule that defense counsel could not be
excluded without “compelling” justification; it was not until after Ayala’s
                             AYALA v. WONG                            10107
violation of the Constitution, and the only remaining question
as to that aspect of the case is whether the constitutional error
was prejudicial.

                                    IV.

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

conviction became final that courts recognized that the prosecutor’s expla-
nation in this case (i.e., not revealing his strategy to the defense) was “not
a valid reason not to follow the norm of an adversarial proceeding.” Dis-
sent at 10141.
   To the contrary, Thompson directly addressed the government’s argu-
ment that “an adversary hearing is inappropriate because the government
lawyer is required to reveal confidential matters of tactics and strategy.”
Thompson, 827 F.2d at 1259. In that case, we rejected this claim as a gen-
eral proposition and held that the determination of whether revealing case
strategy could be a compelling justification in a particular case must be
determined by examining whether the facts in that case warranted an
exception to the general rule. Id. Rules applied on a case-by-case basis do
not raise Teague issues. See Wright v. West, 505 U.S. 277, 308 (1992)
(Kennedy, J., concurring) (“If the rule in question is one which of neces-
sity requires a case-by-case examination of the evidence, then we can tol-
erate a number of specific applications without saying that those
applications themselves create a new rule.”).
10108                        AYALA v. WONG
   [5] In Boyd v. Newland, we applied these principles in
granting the habeas petition of an indigent defendant who had
been denied a copy of his voir dire transcript because the state
court had, in violation of clearly established federal law,
determined that the transcript was not necessary to his Batson
appeal. 467 F.3d 1139 (9th Cir. 2006). We held that “all
defendants . . . have a right to have access to the tools which
would enable them to develop their plausible Batson claims
through comparative juror analysis.” Id. at 1150. It follows
that if the state’s loss of the questionnaires deprived Ayala of
the ability to meaningfully appeal the denial of his Batson
claim, he was deprived of due process.11

   This conclusion is not called into question by Briggs v.
Grounds, 682 F.3d 1165 (9th Cir. 2012), cited in the dissent.
Dissent at 10151. In Briggs, the petitioner had complete
access to the juror questionnaires during the course of his
state appeal. In fact, he relied heavily on them in presenting
a comparative juror analysis to support his Batson claim. 682
F.3d at 1171. Thus Briggs’s due process rights were not
implicated. The language cited by the dissent is lifted from a
section of the opinion discussing whether, because those
questionnaires were not included in the federal court record,
we should credit the petitioner’s characterization of those
questionnaires over the state court’s characterization. Briggs
is irrelevant for our purposes, i.e., whether Ayala’s due pro-
cess rights were implicated when California lost the juror
questionnaires, thus rendering them unavailable for his state
court appeal.
  11
     The dissent ignores the holding of Boyd and instead plucks the words
“voir dire transcript” out of the opinion to argue that only a voir dire tran-
script is necessary for comparative juror analysis. Dissent at 10150. If our
dissenting colleague believes that jury questionnaires are not tools for
comparative juror analysis, we point her to Miller-El v. Dretke (Miller-El
II), 545 U.S. 231, 256-57 (2005) and Kesser v. Cambra, 465 F.3d 351, 360
(9th Cir. 2006) (en banc), both of which utilized juror questionnaires in
comparative juror analysis.
                           AYALA v. WONG                          10109
   [6] Ayala is entitled to relief on this claim only if the loss
of the questionnaires was prejudicial in se, or if it in conjunc-
tion with the Batson error discussed supra served to deprive
him of a meaningful appeal. Id.; see also Brecht v. Abraham-
son, 507 U.S. 619, 623 (1993). “[I]n analyzing prejudice . . . ,
this court has recognized the importance of considering the
cumulative effect of multiple errors and not simply conduct-
ing a balkanized, issue-by-issue harmless error review.” Dan-
iels 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 prej-
udice 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.12

                                   V.

   The California Supreme Court held that Ayala was not
prejudiced by the trial court’s exclusion of the defense from
the Batson proceedings, by the state’s loss of the vast majority
of the jury questionnaires, or by the two errors considered
together. The Court declared itself “confident that the chal-
lenged jurors were excluded for proper, race-neutral reasons,”
Ayala, 6 P.3d at 204, concluded that the exclusion of defense
counsel was “harmless beyond a reasonable doubt,” id. (citing
Chapman v. California, 386 U.S. 18, 24 (1967)), and held that
despite the loss of the questionnaires the record was “suffi-
ciently complete for [it] to be able to conclude that [the struck
jurors] were not challenged and excused on the basis of for-
bidden group bias.” Id. at 208.
  12
    Ayala also asserts that there is an Eighth Amendment right to appeal
— and to a record adequate for appeal — in a capital case. See Whitmore
v. Arkansas, 495 U.S. 149, 168 (1990) (Marshall, J., dissenting). We need
not decide this question here.
10110                   AYALA v. WONG
   We now address these same questions, and hold that Brecht
v. Abrahamson, 507 U.S. 619 (1993), requires us to reach a
different conclusion.

                               A.

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

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

   Ayala contends, however, that the state court’s decision
represents an unreasonable application of the Supreme
Court’s clearly established rule that “no showing of prejudice
need be made ‘where assistance of counsel has been denied
entirely or during a critical stage of the proceedings.’ ” Brief
of Appellant at 22 (quoting Mickens v. Taylor, 535 U.S. 162,
166 (2002)); see also United States v. Cronic, 466 U.S. 648,
                            AYALA v. WONG                           10111
659 n.25 (1984).13 The use of the phrase “critical stage” in this
excerpt can be somewhat misleading: although the Batson
proceedings represented a “critical stage” in the sense that
Ayala had the right to counsel during those proceedings, they
were not necessarily the sort of “critical stage” at which the
deprivation of that right constituted structural error. See
United States v. Owen, 407 F.3d 222, 227 (4th Cir. 2005). As
the Fourth Circuit has explained, the statements in Mickens
and Cronic

       rely on the Supreme Court’s earlier usage of the
       phrase “critical stage,” in cases such as Hamilton v.
       [Alabama, 368 U.S. 52 (1961)] and White [v. Mary-
       land, 373 U.S. 59 (1963) (per curiam)] to refer nar-
       rowly to those proceedings both at which the Sixth
       Amendment right to counsel attaches and at which
       denial of counsel necessarily undermines the reliabil-
       ity of the entire criminal proceeding. . . . [T]he
       Supreme Court has subsequently used the phrase
       “critical stage,” in cases such as [United States v.]
       Wade [, 388 U.S. 218 (1967)] and Coleman [v. Ala-
       bama, 399 U.S. 1 (1970)], in a broader sense, to
       refer to all proceedings at which the Sixth Amend-
       ment 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 estab-
lished” 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,
  13
    As the state observes, although Mickens postdates the California
Supreme Court’s decision, the opinion simply restates the rule set forth 18
years prior in Cronic.
10112                  AYALA v. WONG
695-96 (2002)). We identified as providing guidance in this
inquiry Supreme Court decisions holding an overnight trial
recess and closing arguments to be two such critical stages.
Id. at 839-40 (citing Geders v. United States, 425 U.S. 80
(1976) and Herring v. New York, 422 U.S. 853 (1975)).

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

                              B.

   [9] Ayala claims next that, even if the trial court’s exclu-
sion of the defense was not the sort of constitutional error in
se that requires that we presume that in every exclusion case
prejudice ensued, it was prejudicial in his case, especially
when considered in conjunction with the loss of the question-
naires. In evaluating whether a trial error prejudiced a state
habeas petitioner, we must apply the standard set forth in
Brecht v. Abrahamson, granting relief only if the error had a
                            AYALA v. WONG                           10113
“substantial and injurious effect or influence in determining
the jury’s verdict.” 507 U.S. 619, 623 (1993) (quoting Kot-
teakos v. United States, 328 U.S. 750, 776 (1946)). We “apply
the Brecht test without regard for the state court’s harmless-
ness determination.” Pulido v. Chrones, 629 F.3d 1007, 1012
(9th Cir. 2010) (citing Fry v. Pliler, 551 U.S. 112, 121-22
(2007)).14

   The Brecht standard has been described as follows:

       [I]f one cannot say, with fair assurance, after ponder-
       ing 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
  14
     If this appeal had come before us prior to the Supreme Court’s deci-
sion in Fry, we would have instead asked whether the state court’s deter-
mination that any error was harmless under Chapman was contrary to, or
an unreasonable application, of federal law. See Inthavong v. Lamarque,
420 F.3d 1055, 1059 (9th Cir. 2005). Fry clarified, however, that Brecht
is the harmless error standard to be applied in such circumstances because
the Brecht standard “subsumes” the “more liberal” § 2254(d)/Chapman
standard. See Fry, 551 U.S. at 120; Merolillo, 663 F.3d at 454. In other
words, if a federal habeas court determines that the Brecht standard has
been met, it also necessarily determines to be an unreasonable application
of Chapman a state court’s conclusion that the error was harmless beyond
a reasonable doubt. In holding that Ayala has demonstrated his entitlement
to relief under Brecht, we therefore also hold to be an unreasonable appli-
cation of Chapman the California Supreme Court’s conclusion that Ayala
was not prejudiced by the exclusion of the defense during Batson steps
two and three or by the loss of the questionnaires. See Merolillo, 663 F.3d
at 458-59.
10114                        AYALA v. WONG
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 injuri-
ously], the judge must treat the error as if it did so.’ ” Id.
(quoting O’Neal v. McAninch, 513 U.S. 432, 435, 437-38
(1995)) (alteration in original) (internal quotations omitted).15
  15
    The dissent contends that Brecht no longer provides the proper stan-
dard of review for assessing prejudice, arguing instead that “a writ may
issue only if we determine that no fairminded jurist could find that the
exclusion of defense counsel and the loss of questionnaires did not prevent
Ayala from prevailing on his Batson claim.” Dissent at 10149. The dis-
sent’s only authority for its conclusion is Harrington v. Richter, 131 S. Ct.
770, 786 (2011), which the dissent claims “refined” the Brecht test. Dis-
sent at 10148.
   At the same time that the dissent accuses us of “extending each support-
ing argument just slightly beyond its limitations,” Dissent at 10135, the
dissent does far worse in applying Harrington to prejudice analysis under
AEDPA. In Fry v. Pliler, 551 U.S. 112, 121-22 (2007), the Supreme Court
held that Brecht is the proper test for prejudice analysis under AEDPA. In
Harrington, handed down just four years later, the Supreme Court did not
once mention Fry or Brecht. Furthermore, the Court’s reference to “fair-
minded jurist” was not in the context of reviewing a state court’s prejudice
determination but rather in the context of whether a state court’s determi-
nation regarding constitutional error was unreasonable. 131 S. Ct. at 785.
(Here, of course, error is conceded and only prejudice is at issue.) The dis-
sent thus seems willing to conclude that the Supreme Court radically “re-
fined” Brecht, a nearly two-decade old precedent — a case with central
import in virtually all federal habeas adjudication, reaffirmed just five
years ago in Fry — without even a mention of that oft-cited case. As if
recognizing the futility of its argument, the dissent characterizes its
authority as “the essence of the Supreme Court’s holdings.” Dissent at
10149. We do not know what this “essence” is, but there is no legal basis
for the dissent’s conclusion that a case cited almost 10,000 times to deter-
mine prejudice in habeas cases was sub silentio drastically overhauled in
a discussion unrelated to prejudice.
  Additionally, in the eighteen months since Harrington was handed
down, we have repeatedly applied the “unrefined” Brecht test to assess
prejudice in habeas cases. E.g., Merolillo v. Yates, 663 F.3d 444, 454 (9th
Cir. 2011); Ybarra v. McDaniel, 656 F.3d 984, 995 (9th Cir. 2011); United
States v. Rodrigues, 678 F.3d 693, 695 (9th Cir. 2012). In some cases, we
have cited Harrington in analyzing constitutional error but then, properly,
applied the traditional Brecht test when determining prejudice. E.g.,
                             AYALA v. WONG                             10115
   [10] We conclude that Ayala has met the Brecht standard.
The prejudice he suffered was the deprivation of the opportu-
nity to develop, present, and likely prevail on his Batson
claim. Had he prevailed on his Batson 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 (1986); Boyd, 467 F.3d at 1150. The
question, then, is whether Ayala could have made this show-
ing but for the state’s constitutional errors. If we cannot say
that the exclusion of defense counsel and the loss of the ques-
tionnaires likely did not prevent Ayala from prevailing on his
Batson claim, then we must grant the writ.

   [11] 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 pre-
textual or indicate bad faith. Although the trial judge may
have been able to “detect some of these deficiencies by him-
self, . . . there might be arguments [he] would overlook”

Ocampo v. Vail, 649 F.3d 1098, 1106 (9th Cir. 2011); Schneider v.
McDaniel, 674 F.3d 1144, 1149-50 (9th Cir. 2012). Thus, even if we
believed that the dissent were correct that Harrington rewrote the test for
prejudice (a conclusion that is wholly without support and that we
unequivocally reject), this three-judge panel, like all others, is nevertheless
required to apply Brecht as it was (and is), because such is the law of the
circuit. Lacking support in both Supreme Court and Ninth Circuit case
law, the dissent’s pronouncement simply amounts to a preference that the
prejudice standard under AEDPA should be far more onerous than current
law provides.
10116                   AYALA v. WONG
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 prosecu-
tion’s reasons for striking the jurors in light of this massive
amount of information, was almost certain to forget or over-
look key facts, but could have been substantially aided by the
presence of participants in the process adverse to the prosecu-
tion. 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 (2005). The Supreme
Court has emphasized the importance of this sort of “compar-
ative 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 (2008).
Although Ayala can — and does — still raise some of these
arguments on appeal, he was deprived of the crucial opportu-
nity to present them to the institutional actor best positioned
to evaluate them. As the Supreme Court has observed, appel-
late 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 (2003) (quoting Hernandez v.
New York, 500 U.S. 352, 366 (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 influ-
enced his credibility determination, there is substantial reason
to doubt that Ayala’s Batson challenge was properly denied.

   [12] 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
                             AYALA v. WONG                           10117
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) (revers-
ing a defendant’s conviction where the Batson proceedings
conducted below left the defense unable “to adequately chal-
lenge the prosecution’s reasons as pretextual” and left the
reviewing court uncertain as to whether the prosecution had,
in fact, violated Batson).

   [13] 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.16
We are unable to evaluate the legitimacy of some of the pros-
ecution’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 ulti-
mately served as jurors.17 Thus, we cannot perform a fair com-
  16
      There are also three other questionnaires out of more than 200 which
were somehow located, but have no particular significance with respect to
a comparative juror analysis.
   17
      The state and the dissent both appear to presume that the only relevant
comparisons in a comparative juror analysis are between the struck jurors
and the jurors who are ultimately seated, but Miller-El made clear that the
otherwise-similar jurors to whom the struck jurors can be compared
include those “permitted to serve” by the prosecution but ultimately struck
by the defense. See, e.g., Miller-El v. Dretke, 545 U.S. at 244-45 (compar-
ing a struck juror to a juror not challenged by the prosecution who was
later challenged by the defense). This, of course, makes perfect sense:
some of these jurors were not struck by the defense until after the prosecu-
tion had passed them for several rounds, and the “underlying question is
not what the defense thought about these jurors,” but what the prosecution
did. Id. at 245 n.4.
10118                       AYALA v. WONG
parative 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 motiva-
tion of the prosecution in engaging in its peremptory chal-
lenges 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. Cock-
rell, 537 U.S. at 342. That the prosecution struck each of the
seven black or Hispanic jurors available for challenge estab-
lishes a basis for significant doubt of its motives:
“[h]appenstance is unlikely to produce this disparity.” Id.

   [14] Perhaps more important, the analysis of the prosecu-
tion’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.18
  18
     Although the record provides somewhat less reason to conclude that
the prosecution’s justifications for the strikes of the four other black and
Hispanic jurors were pretextual, race may also have played a substantial
role in these challenges. For example, Ayala might have been able to show
that the prosecution violated Batson when it struck Hispanic juror George
S. in the final round of peremptory challenges. The prosecution gave five
reasons for striking George S. The first reason — that his application to
be a police officer some twenty years prior had been rejected — applied
equally to seated white juror Charles C. The second reason — that he had
indicated some discomfort with the death penalty — did not significantly
distinguish him from a number of seated white jurors. See infra Section
V.B.2. The third reason — that he had been a “holdout” on a prior jury
— could have been called into question had defense counsel been able to
point out that the jury on which George S. had been a “holdout” was a
civil one, that the issue in dispute had been the assessment of damages,
and that unanimity was not required. The fourth reason — that he had
written in his questionnaire that the parties probably would not want him
                            AYALA v. WONG                            10119
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 pre-
vented 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 prose-
cution struck in the first round of peremptory challenges. Dur-
ing 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 pen-
alty, 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 ques-
tionnaires, 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 con-
cerned 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

to serve as a juror — overlapped entirely with the third reason, as George
S. had explained that he wrote that the parties might not want him as a
juror because he had been a civil jury “holdout.” The fifth and final reason
— that he placed excessive emphasis on the Bible in his questionnaire —
cannot be evaluated at all because the questionnaire has been lost, along
with those of others whom the prosecutor might have passed.
10120                      AYALA v. WONG
questionnaire that he did not believe in the death penalty. Ana
L., a seated white juror, made almost precisely the same state-
ment 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 for the death penalty.”
Once again, Ana L. said almost precisely the same thing: she
stated that she had since rethought her position, and affirmed
that she could “actually vote” for the death penalty.19

   Second, in answer to the prosecution’s purported concern
that Olanders D.’s answers on voir dire were not always fully
responsive, defense counsel could have questioned the valid-
ity of this assessment, suggested that his answers were in fact
fully responsive, and pointed to seated white jurors whose
answers were less responsive than Olanders D.’s. Our review
of the voir dire transcript reveals nothing that supports the
prosecution’s claim: Olanders D.’s answers were responsive
and complete. In order to make this fact clear to the trial
judge, defense counsel could once again have compared
Olanders D. to seated juror Ana L. Ana L. had, for example,
responded “That is correct” to a question asking “why” she
would prefer not to sit as a juror, stared blankly at defense
counsel in response to a question on the presumption of inno-
cence, and failed, at various points, to respond directly to yes
or no questions.

   Third, we cannot know exactly what arguments defense
counsel could have made to undermine the prosecution’s final
reason for striking Olanders D. — that his questionnaire
responses were “poor,” and demonstrated his inability to
express himself. Because Olanders D.’s questionnaire has
  19
    Other seated white jurors to whom defense counsel could have pointed
in order to show to be pretextual the prosecution’s stated concern that
Olanders D. would not be willing to impose the death penalty include Dor-
othy C., Dorothea L., Dorothy H. and Leona B. See infra Section V.B.2.
                             AYALA v. WONG                           10121
been lost, we may only speculate as to its contents. If the rea-
son his answers were “poor” was that they were not particu-
larly detailed, the defense could have compared his
questionnaire to that of Ana L., whose answers were brief and
often incomplete, or to that of Charles G., a seated white juror
whose responses to the 77 questions were rarely longer than
two or three words apiece. If the reason his answers were poor
was that they reflected an inability to think clearly or express
complex thoughts, the defense could have compared his ques-
tionnaire to that of Thomas B., a seated white juror who, for
example, opined of street gangs, “I feel the only media cover-
age they get is bad, however, those whom do constructive
events usually seek out positive media coverage.” Further,
this is an obvious instance in which the defense is prejudiced
by being unable to compare Olanders D.’s answers to those
of prospective white jurors who were accepted by the prose-
cution but struck by the defense, and whose questionnaires
have been lost.20 It is also, of course, possible that Olanders
   20
      For example, Elizabeth S., who was in all likelihood white, was seated
as an alternate on a panel accepted by the prosecution — which never used
its sixth and final peremptory challenge in the selection of the alternate
jurors — but was later struck by the defense. Her questionnaire, which
was lost, might have been particularly valuable to Ayala for comparative
juror analysis if her written responses were anything like those she deliv-
ered during voir dire. Consider the following exchange between the trial
court and Elizabeth S.:
    Q: Did you have an opportunity to review the summary of legal
    issues and preliminary questions? This was a packet of material
    in the juror’s lounge.
    A: No.
    Q: You didn’t read it?
    A. Not today. I read the papers that they gave me in the office.
    Q. Today?
    A. Yeah.
    Q. Okay. That was the summary of legal issues and preliminary
    questions?
    A. Yeah, Yeah.
Perhaps because of this and similar exchanges, she was later asked if she
had a hearing problem, which she did not.
10122                   AYALA v. WONG
D.’s answers were not poor at all. We have no way of know-
ing.

   Thus, one of the four reasons given by the prosecution for
striking this prospective juror was determined to be without
merit by the trial judge; two failed to distinguish the juror
whatsoever from at least one seated white juror; and the
fourth and final reason the prosecution gave for striking the
juror cannot be evaluated because his questionnaire was lost,
as were those of the prospective white jurors struck by the
defense. Given the objective reasons that we have even on
this record to question the validity of the prosecution’s expla-
nations for striking Olanders D., we simply cannot conclude
that it is likely that, if the defense had been present during the
Batson proceedings and if the lost questionnaires had been
preserved, Ayala would not have been able to show that the
prosecution’s stated reasons for striking Olanders D. were
pretextual, and that the actual reasons were racial.

2.   Gerardo O.

   Gerardo O. was one of two Hispanic jurors the prosecution
challenged during the second round of peremptories. He was
struck, the prosecutor explained in the subsequent ex parte
proceeding, because: (1) he was “illiterate,” and had needed
the questionnaire to be translated for him; (2) he “appeared
not to fit in with anyone else,” was “standoffish,” with “dress
and mannerisms . . . not in keeping with the other jurors,” and
“did not appear to be socializing or mixing with any of the
other jurors”; and (3) his voir dire responses suggested that he
was not sure “if he could take someone’s life,” and that he
“felt a little shaky as far as his responsibilities in this case.”
The trial judge concluded that the “record document[ed] the
factors that were indicated” by the prosecutor and accepted
his explanation.

  Once again, had the defense not been excluded from the
Batson proceedings, it likely could have called into question
                         AYALA v. WONG                      10123
all of the prosecution’s stated reasons for striking Gerardo O.
Defense counsel could have first argued that one reason given
— that Gerardo O. was illiterate — was itself indicative of the
prosecution’s discriminatory intent. Although Gerardo O. did
need someone to fill out the questionnaire for him, the record
reveals that he was not, in fact, illiterate, but simply had diffi-
culty writing in English. Gerardo O. had been born in Mexico
and was not a native English speaker, but he had graduated
from high school and attended college in the United States,
and was perfectly capable of reading the summary of legal
issues that was given to prospective jurors before voir dire
questioning. As he explained at voir dire, he did not fill out
the questionnaire himself because he was concerned about his
English spelling. The prosecution’s purported reason for strik-
ing Gerardo O., then, was directly related to his status as
someone who spoke Spanish as his first language. Thus, as
the Supreme Court observed in a similar circumstance, “the
prosecutor’s frank admission that his ground for excusing
th[is] juror[ ] related to [his] ability to speak and understand
Spanish raised a plausible, though not a necessary, inference
that language might be a pretext for what in fact [was a] race-
based peremptory challenge[ ].” Hernandez, 500 U.S. at 363
(plurality opinion). Defense counsel’s presence was necessary
to point out the potential inferences to the trial judge and urge
the judge to adopt the one most appropriate here.

   An inference of racial bias might also have been drawn
from the prosecutor’s claim that Gerardo O. was challenged
because he did not dress or act like other jurors, and did not
mix or socialize with them. It is likely that Gerardo O.’s dress
and mannerisms were distinctly Hispanic. Perhaps in the late
1980s Hispanic males in San Diego County were more likely
than members of other racial or ethnic groups in the area to
wear a particular style or color of shirt, and Gerardo O. was
wearing such a shirt (and for this reason did not “fit in,” in the
prosecutor’s mind, with the other jurors). If so, and if defense
counsel were able to bring this fact to the trial court’s atten-
tion, the prosecution’s explanation that it struck Gerardo O.
10124                    AYALA v. WONG
because of his dress and mannerisms would provide compel-
ling support for Ayala’s claim that the strike was actually
racially-motivated. See id. (“[A]n invidious discriminatory
purpose may often be inferred from the totality of the relevant
facts, including the fact, if it is true, that the [classification]
bears more heavily on one race than another.”) (quoting
Washington v. Davis, 426 U.S. 229, 242 (1976)). If present at
the hearing, defense counsel could have made a record that
would have strongly supported these claims.

   Even if Gerardo O.’s clothes and behavior were in no way
correlated with his race, defense counsel might have been able
to show the prosecution’s explanation to be pretextual.
Defense counsel might have pointed to other jurors the prose-
cution had not struck who had similar characteristics — per-
haps, for example, a seated white juror had actually worn an
outfit identical to Gerardo O.’s. Defense counsel might also
have been able to challenge the factual basis for the prosecu-
tion’s claim — perhaps, unbeknownst to the trial judge,
Gerardo O. did “socializ[e] or mix[ ]” with a number of other
jurors, and had even organized a dinner for some of them at
his favorite Mexican restaurant.

   We can only speculate as to whether or how Ayala could
have shown this explanation for striking Gerardo O. to be
facially discriminatory, false or pretextual because we know
nothing about his dress or mannerisms, or that of the other
prospective jurors. These are exactly the sort of physical and
behavioral observations that the defense could have preserved
for the record had it been permitted to hear and respond to the
prosecution’s explanations for challenging Gerardo O.
Although we might hope that the trial judge would have
noticed if Gerard O. had been wearing a shirt worn only by
members of the Hispanic community, or had been dressed
identically to other prospective jurors whom the prosecution
had not challenged, or had in fact been socializing with other
jurors, “we cannot affirm simply because we are confident he
                        AYALA v. WONG                      10125
must have known what he was doing.” Thompson, 827 F.2d
at 1261.

   Finally, in response to the prosecution’s third reason for the
strike — that Gerardo O. seemed reluctant to impose the
death penalty — defense counsel could have demonstrated
this reason to be pretextual through comparisons to jurors the
prosecution did not strike. Gerardo O. had stated during voir
dire that “I’m not sure if I can take someone’s life in my hand
and say . . . you know, ‘death,’ or something,” but he soon
thereafter affirmed that he “could vote for the death penalty.”
This statement was indistinguishable from those made by a
number of seated white jurors. Dorothy C. said in voir dire
that serving as a juror in a capital case would cause her to
“worry a lot” because it was “a lot of responsibility,” gasped
when defense counsel told her that as a juror she would “de-
cide the sentence,” and stated, “I’ve never had to vote on a
death penalty. That might be a little bit difficult when it came
right down to it, but I’d say I’m for it.” Likewise, Dorothy H.,
when asked in voir dire if she could return a verdict of death,
stated, “I don’t think it would be an easy thing for anyone, but
I don’t — I think I could do it if I felt it was the thing to do.”
Dorothea L. was even more hesitant, saying, when asked the
same question, “I think so, but I don’t know until I have to do
it.” Finally, Leona B., when asked by the prosecutor if having
the responsibility for imposing the death penalty would “both-
er” her, responded, “Yes, I think so. I think — I think one
should be affected . . . by that. I don’t think it’s anything to
be taken lightly.” Certainly, Gerardo O. expressed less hesi-
tancy than Ana L., who had flatly stated on her questionnaire
that she “probably would not be able to vote for the death
penalty” before subsequently changing her mind. Further,
prospective white jurors accepted by the prosecution but
struck by the defense might have expressed similar sentiments
in their jury questionnaires. We cannot tell, because these
questionnaires have been lost.

  Thus, one of the reasons given by the prosecution for strik-
ing this prospective juror could have itself given rise to an
10126                   AYALA v. WONG
inference of discriminatory intent. A second reason cannot be
evaluated because defense counsel was excluded from the
Batson proceedings and could not preserve for the record cer-
tain crucial facts. The third reason given failed to distinguish
Gerardo O. from seated white jurors the prosecutor chose not
to strike, as well as, possibly, from other prospective white
jurors struck not by the prosecution but by the defense. Given
the cause we have to question the validity of the prosecution’s
reasons that can be evaluated on this record, we cannot say
that Ayala would not have shown that the trial court would or
should have determined that the prosecution’s strike of
Gerardo O. violated Batson.

3.   Robert M.

   The prosecution struck Hispanic juror Robert M. in the
final round of peremptory challenges. In camera, the prosecu-
tor explained that he had been concerned, given Robert M’s
response to voir dire questioning, that he might not be willing
to impose the death penalty. This concern had been height-
ened by Robert M.’s mentioning the Sagon Penn case — a
case in which the defendant was found not guilty in a second
trial and the police and the district attorney’s office were
accused of misconduct. The trial judge accepted the prosecu-
tion’s explanation, stating that, although Martinez’s “ques-
tionnaire would tend to indicate a person that is certainly pro
the death penalty[,] . . . his answers varied somewhat to the
extent that individually, there may well be a legitimate con-
cern as to whether or not he could impose it.”

   Defense counsel’s presence in the Batson proceedings was
necessary to call into question the prosecution’s claim that it
struck Robert M. because of his reluctance to impose the
death penalty. Even without comparing Robert M. to other
jurors permitted to serve, this explanation is highly suspect:
Robert M. repeatedly stated during voir dire that he believed
in the death penalty and could personally vote to impose it,
and his questionnaire (which has, of course, been lost) mani-
                        AYALA v. WONG                     10127
fested a similar enthusiasm according to the trial judge.
Defense counsel could have brought to the trial court’s atten-
tion that the only statement potentially raising any question
whatsoever — that voting for a death sentence might “weigh
on his conscience,” and would be a “heavy” decision — was
indistinguishable from a practical standpoint from statements
by Dorothy C, who said that serving as juror in a capital case
was “a lot of responsibility” and would cause her to “worry
a lot,” Dorothy H., who stated that imposing the death penalty
would not “be an easy thing for anyone,” Dorothea L., who
said she would not know if she could impose the death pen-
alty until she had to do it, and Leona B., who affirmed that
this responsibility would “bother” her. Other prospective
jurors who were struck by the defense, but had been accepted
by the prosecution, may have made comparable statements in
their questionnaires (which, again, have been lost). Counsel
could have argued that most jurors who believed in imposing
the death penalty would consider a decision to do so a
“heavy” decision that would weigh on one’s conscience. Fol-
lowing counsel’s argument, the judge might well have recog-
nized that there is indeed rarely a “heavier” decision a citizen
is ever asked to undertake. Certainly, like Gerardo O., Robert
M. was no more hesitant than Ana L., who had actually at one
point stated that she would be unable to impose the death pen-
alty.

   To the extent that the prosecution gave Robert M’s refer-
ence to the Sagon Penn case as a separate reason for its chal-
lenge, defense counsel could likely have demonstrated that
this reason was pretextual. First, the entirety of the Sagon
Penn exchange was as follows:

    Prosecutor: Have you followed any kind of — any
    court cases in the news or come downtown to watch
    any trials?

    Robert M.: Well, I followed the Saigon [sic] Penn
    case.
10128                   AYALA v. WONG
    Prosecutor: All right.

Robert M. briefly mentioned the case in response to the prose-
cution’s question, and he said nothing about any accusations
of police or prosecutorial misconduct.

   Second, although none of the seated jurors had been asked
a similar question, one seated white juror had on his own ini-
tiative referred to a far more controversial capital case. When
asked to describe his feelings about the death penalty, Doug-
las S. mentioned the “Harris” case, saying: “The Harris case,
which goes back . . . . I believe he’s on death row . . . I can’t
even recall the exact crimes, but I remember them to be quite
bizarre, and — and here he was, facing execution, and I don’t
know.” Douglas S. was presumably referring to Robert Alton
Harris, who at the time of Ayala’s trial was on California’s
death row, and had, in a case that was extensively covered by
the press, been tried, convicted and sentenced to death in San
Diego. People v. Harris, 623 P.2d 240, 246 (Cal. 1981). As
Harris’s case wound its way through the state and federal
courts, it generated substantial controversy, some of which, as
in the Sagon Penn case, was related to allegations of official
misconduct. See, e.g., id. at 267 (Bird, C.J., dissenting) (argu-
ing that Harris had been denied his right to a fair trial due to
extensive and prejudicial pretrial publicity, partially the prod-
uct of the “sorry spectacle of prosecutorial offices publicly
vying with each other to have ‘first crack’ at convicting the
accused”); see also Stephen R. Reinhardt, The Supreme
Court, The Death Penalty, and The Harris Case, 102 Yale L.J.
205, 205 & n.1 (1992) (for further description of controversy
generated by case). Douglas S.’s statement about the case —
“here he was, facing execution, and I don’t know” — suggests
that this controversy had created some doubt in his mind as
to the propriety of Harris’s conviction and sentence. Cer-
tainly, Douglas S.’s unelicited discussion of the Harris case
should have troubled the prosecutor far more than Robert
M.’s brief direct response regarding the Sagon Penn case.
                        AYALA v. WONG                      10129
   Finally, if there was any inference to draw from Robert M’s
fleeting reference to the Sagon Penn case, it was that Robert
M. would not return a guilty verdict based on a blind trust of
the police and the prosecution who had arrested and charged
the defendant with the crime. Numerous seated white jurors
expressed similar sentiments. Douglas S., for example, stated
that the last person who had lied to his face was a California
policeman. Similarly, Charles C. said, “You don’t change
your stripes . . . when you put on a badge; and you have to
judge everybody’s testimony in a court case on its face.”

   Even if the trial judge had not been willing to completely
reject the prosecution’s implausible explanation that it struck
Robert M. because he mentioned the Sagon Penn case, there
is a strong likelihood that, had defense counsel been present
and been able to persuade the court that the prosecution’s
principal reason for challenging this juror — his reluctance to
impose the death penalty — was pretextual, the court would
have concluded that the strike violated Batson. We thus can-
not conclude that the exclusion of defense counsel from the
Batson proceedings did not prevent Ayala from showing that
the prosecution’s strike of Robert M. was based on its imper-
missible consideration of race.

                             ***

   Although each of the reasons offered by the prosecution for
challenging the black and Hispanic jurors discussed above
could have been shown to be pretextual had defense counsel
been allowed to participate at steps two and three of the Bat-
son proceedings and had the questionnaires of the vast major-
ity of jurors been preserved, it is not necessary that all of the
reasons advanced by the prosecution be pretextual or be
shown to be pretextual. Notwithstanding the existence of
some apparently appropriate reasons, “if a review of the
record undermines . . . many of the proffered reasons, the rea-
sons may be deemed a pretext for racial discrimination.”
Kesser v. Cambra, 465 F.3d 351, 360 (9th Cir. 2006) (en
10130                    AYALA v. WONG
banc) (quoting Lewis v. Lewis, 321 F.3d 824, 830 (9th Cir.
2003)) (emphasis added). In short, “[a] court need not find all
nonracial reasons pretextual in order to find racial discrimina-
tion” with respect to any particular juror, and the exclusion of
any one juror in violation of Batson requires reversal of the
verdict. Id.

                                C.

   Because the defense was excluded from the Batson pro-
ceedings, it could not bring necessary facts and arguments to
the attention of the trial judge, the institutional actor best posi-
tioned to evaluate the prosecution’s credibility and to deter-
mine if its proffered reasons for striking the minority jurors
were its actual and legitimate reasons. Because the defense
was excluded from the Batson proceedings, and because the
vast majority of the juror questionnaires were lost, the appel-
late courts reviewing this case cannot engage in a proper com-
parative juror analysis, or know what other facts and
arguments might be employed to demonstrate that the prof-
fered reasons were false, facially discriminatory and pretex-
tual.

   [15] Even on this deficient record, Ayala’s Batson claim is
compelling: the prosecution struck all seven of the black and
Hispanic jurors in a position to serve on the jury, and many
of its proffered race-neutral reasons are highly implausible.
Given the strength of Ayala’s prima facia case, the evidence
that the prosecution’s proffered reasons were false or discrim-
inatory, the inferences that can be drawn from the available
comparative juror analysis, and the deficiencies in the record
that are themselves the product of the state’s constitutional
errors, it is “impossible to conclude that [Ayala’s] substantial
rights were not affected” by the exclusion of defense counsel
from the Batson proceedings and the loss of the juror ques-
tionnaires. Kotteakos, 328 U.S. at 765. Ayala has suffered
prejudice under Brecht, and is entitled to relief.
                        AYALA v. WONG                     10131
                              VI.

   Our dissenting colleague makes three assertions that are
fundamental to her disagreement with our opinion. All are
plainly erroneous and illustrate her misunderstanding of the
nature of our holding. First, the dissent suggests that, because
the trial court accepted the prosecutor’s rationale for striking
these jurors, deference to its ruling is required under AEDPA,
citing Rice v. Collins, 546 U.S. 333, 338-39 (2006). Dissent
at 10155-58. Along similar lines, the dissent accuses us of
failing to give the state court decision the “benefit of the
doubt,” citing Felkner v. Jackson, ___ U.S. ___, 131 S. Ct.
1305, 1307 (2011). Dissent at 10164-65. Second, the dissent
assumes that Ayala must demonstrate that the individual
jurors were struck for racial reasons by “clear and convincing
evidence,” citing 28 U.S.C. § 2254(e)(1). Dissent at 10152.
Third, the dissent makes the bizarre prediction that “[u]nder
this approach all Batson challenges in federal habeas petitions
must be granted because no one can disprove a negative.”
Dissent at 10135.

   Each of these assertions assumes, incorrectly, that we are
confronting an ordinary Batson challenge on habeas review
— a challenge to the holding in a case in which defense coun-
sel was able to present arguments to the trial court regarding
racial bias, appeal that claim to the state appellate court, and
subsequently seek reversal in federal court of the judgment
that none of the jurors was struck by the prosecution for
impermissible racially motivated reasons. Rice and Felkner
are precisely such cases. The Supreme Court has emphasized,
in such cases, that deference is required, that the petitioner
must demonstrate his factual claims of prosecutorial bias by
clear and convincing evidence, and that we may not give the
petitioner the benefit-of-the-doubt with regard to the existence
of racial prejudice. However, this case is not an ordinary Bat-
son challenge, and for the reasons we have explained supra
the dissent’s approach is both inapplicable and wholly inap-
propriate. This, as the dissent consistently ignores, is a case
10132                   AYALA v. WONG
in which the challenge is to the procedure employed by the
trial court in conducting the Batson inquiry — a procedure
that resulted in the denial of a fair Batson hearing to the
defendant.

   We cannot defer to the trial court where procedural error
(such as the state supreme court found here) has rendered the
trial court’s determination unreliable. Ayala’s counsel was
excluded from Batson stages two and three, thus depriving
him of the opportunity to persuade the trial judge that the
prosecutor was motivated by racial bias. Even a very capable
trial judge may overlook or fail to understand the arguments
supporting racial motivation “if unassisted by an advocate.”
Thompson, 827 F.2d at 1261. Because the procedures
designed to ensure a fair hearing to the defendant were not
followed, we cannot afford deference to the trial court’s deter-
mination of the merits of the Batson claim. As we concluded
in Thompson, we “cannot rely on . . . such fundamentally
flawed procedures to show that that defendant suffered no
prejudice.” Id. at 1261.

   Next, for similar reasons, the “clear and convincing evi-
dence” standard has no role with regard to Ayala’s challenge.
The dissent’s position is inherently at odds with the statutory
authority on which it relies. That AEDPA provision reads as
follows:

    In a proceeding instituted by an application for a writ
    of habeas corpus by a person in custody pursuant to
    the judgment of a State court, a determination of a
    factual issue made by a State court shall be pre-
    sumed to be correct. The applicant shall have the
    burden of rebutting the presumption of correctness
    by clear and convincing evidence.

28 U.S.C. § 2254(e)(1). We have previously held, in interpret-
ing § 2254(e)(1), that “the presumption of correctness and the
clear-and-convincing standard of proof only come into play
                        AYALA v. WONG                      10133
once the state court’s fact-findings survive any intrinsic chal-
lenge.” Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004)
(emphasis added) (cited by but expressly not overruled in
Wood v. Allen, ___ U.S. ___, 130 S. Ct. 841, 848-49 & n.1
(2010)). In Taylor, we explained that a state court factual
finding is intrinsically flawed if “the process employed by the
state court is defective,” Id. at 999 (citing Nunes v. Mueller,
350 F.3d 1045, 1055-56 (9th Cir. 2003)). Here, the state
admitted that precluding Ayala’s counsel from establishing a
Batson violation at stages two and three of the state’s trial
court proceeding constituted procedural error. Under Taylor,
because the state court proceeding is flawed, it is not entitled
to a presumption of correctness, and Ayala is not required to
demonstrate his Batson claim by clear and convincing evi-
dence. The dissent’s assertion is contrary to AEDPA and to
Taylor and would simply erect an insurmountable barrier that
would protect the conceded error against any effective federal
review.

   Finally, although the dissent accuses us of changing the
approach in “all Batson challenges,” this plainly misstates the
nature of our holding. This is not a Batson challenge in the
usual sense, but rather a procedural challenge to the exclusion
of counsel from Batson stages two and three. Perhaps even
more important, our dissenting colleague apparently fails to
recall that error has been conceded by the state. The only
issue here is prejudice — i.e., the effect of that error upon the
petitioner’s opportunity to show the prosecutor’s bias. This
could not be more different from the traditional Batson chal-
lenge, where prejudice is structural and proof of constitutional
error requires reversal without any showing of prejudice.
Thus, ordinary Batson cases are only about constitutional
error and not at all about prejudice, whereas Ayala’s case is
all about prejudice and not at all about the conceded error.
Accordingly, what we hold here could not possibly require
that “all Batson challenges in federal habeas petitions must be
10134                       AYALA v. WONG
granted.” To put it mildly, that contention is entirely without
any rational basis whatsoever.21

                                  VII.

   [16] We hold that the exclusion of defense counsel during
Batson steps two and three constitutes prejudicial error. We
cannot say that had counsel been permitted to participate in
the Batson proceedings, and had the state not lost the vast
majority of the jury questionnaires, Ayala would have been
unable to show that the prosecution violated Batson. To the
contrary, constitutional error on the part of the state likely
prevented Ayala from showing that the prosecution utilized its
peremptory challenges in a racially discriminatory manner,
and thus permitted him to be tried, convicted, and sentenced
to death by a jury selected in a manner repugnant to the Con-
stitution. Accordingly, we reverse the judgment of the district
court, and remand with instructions to grant the writ and order
that Ayala be released from custody unless the state elects to
retry him within a reasonable amount of time to be deter-
mined by the district court.

  REVERSED and REMANDED.




   21
      There is one additional error our dissenting colleague makes that is
not limited to the Batson context but would rewrite the law of prejudice
in all habeas cases. For that reason, it deserves mention here. As we have
explained supra, the well-established Brecht standard governing prejudice
has not been revised or modified, and the dissent’s suggestion to the con-
trary is without merit. See discussion supra at Pages 10112-15 & n.15.
                        AYALA v. WONG                     10135
CALLAHAN, Circuit Judge, dissenting:

   In 1985, Hector Juan Ayala shot and killed three men. In
1989, he was convicted on three counts of murder, and the
jury returned a verdict of death. On direct appeal his convic-
tion and sentence were affirmed by the California Supreme
Court in 2000. People v. Ayala, 6 P.3d 193 (2000). The
Supreme Court of the United States denied his petition for
certiorari in 2001. Ayala v. California, 532 U.S. 908 (2001).
Ayala filed his initial petition for a writ of habeas corpus in
the United States District Court for the Southern District of
California in 2002. This appeal is from the district court’s
February 17, 2009, final order denying the petition.

   The majority holds, based primarily on law developed after
Ayala’s trial, that Ayala must be released or retried because
it cannot tell whether the prosecutor in recusing seven jurors
might have had a racial motive for doing so. It does so by
extending each supporting argument just slightly beyond its
limitations, in order to reach a conclusion that appears reason-
able but nonetheless does not withstand scrutiny. The major-
ity reaches its goal by ruling that Ayala’s primary argument
is not Teague-barred, creating an unreasonable standard for
reviewing ancient alleged Batson violations, and refusing to
give the California Supreme Court’s findings the deference
that several recent United States Supreme Court opinions
require. In essence, the majority holds that because the record
does not affirmatively negate the existence of a possible racial
bias, the existence of such a bias may be assumed. Under this
approach all Batson challenges in federal habeas petitions
must be granted because no one can disprove a negative. The
Supreme Court has clearly rejected such a standard and
accordingly, I dissent.

                               I

  In Batson v. Kentucky, 476 U.S. 79, 96 (1986), the Supreme
Court held “a defendant may establish a prima facie case of
10136                   AYALA v. WONG
purposeful discrimination in selection of the petit jury solely
on evidence concerning the prosecutor’s exercise of peremp-
tory challenges at the defendant’s trial.” See also Georgia v.
McCollum, 505 U.S. 42, 47 (1992). Batson established a
three-step inquiry. 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. The Supreme Court stated that it had “confidence
that trial judges, experienced in supervising voir dire, will be
able to decide if the circumstances concerning the prosecu-
tor’s use of peremptory challenges creates a prima facie case
of discrimination against black jurors.” Id. at 97. Second,
“[o]nce the defendant makes a prima facie showing, the bur-
den shifts to the State to come forward with a neutral explana-
tion for challenging black jurors.” Id. Third, the trial court
must then “determine if the defendant has established pur-
poseful discrimination.” Id. at 98.

   In setting forth this three-step standard, the Supreme Court
specifically declined “to formulate particular procedures to be
followed upon a defendant’s timely objection to a prosecu-
tor’s challenges.” Id. at 99. The Court reiterated that “[i]n
light of the variety of jury selection practices followed in our
state and federal trial courts, we make no attempt to instruct
these courts how best to implement our holding today.” Id. at
99 n.24. As a result, during the quarter of a century that has
passed since Batson, courts have considered numerous ways
of applying Batson’s three-step standard.

   Ayala’s primary argument is that the exclusion of him and
his counsel from the proceedings in which the prosecution
justified its recusal of seven jurors violated his constitutional
rights to assistance of counsel at critical stages of the proceed-
ings, to be personally present, and to assist his counsel in his
defense. In response, the State argued and the district court
held that in 2001, when Ayala’s conviction became final, the
exclusion of Ayala and his counsel from the proceedings had
                        AYALA v. WONG                     10137
not been established as a constitutional violation, and hence,
was barred by Teague v. Lane, 489 U.S. 288 (1989).

   The California Supreme Court in reviewing Ayala’s direct
appeal concluded that it was “almost universally recognized
that ex parte proceedings following a motion regarding
peremptory challenges allegedly made on the basis of
improper group bias are poor procedure and should not be
conducted unless compelling reasons justify them.” Ayala, 6
P.3d at 203. However, in Horn v. Banks, 536 U.S. 266, 272
(2002), the Supreme Court held that “a federal court consider-
ing a habeas petition must conduct a threshold Teague analy-
sis when the issue is properly raised by the state,” even if the
state supreme court did not consider the issue.

  In Caspari v. Bohlen, 510 U.S. 383 (1994), the Supreme
Court set forth the test for determining whether a claim was
Teague barred:

    “[A] case announces a new rule if the result was not
    dictated by precedent existing at the time the defen-
    dant’s conviction became final.” Teague v. Lane,
    supra, 489 U.S. at 301. In determining whether a
    state prisoner is entitled to habeas relief, a federal
    court should apply Teague by proceeding in three
    steps. First, the court must ascertain the date on
    which the defendant’s conviction and sentence
    became final for Teague purposes. Second, the court
    must “[s]urve[y] the legal landscape as it then exist-
    ed,” Graham v. Collins, supra, 506 U.S., at 468, and
    “determine whether a state court considering [the
    defendant’s] claim at the time his conviction became
    final would have felt compelled by existing prece-
    dent to conclude that the rule [he] seeks was required
    by the Constitution,” Saffle v. Parks, 494 U.S. 484,
    488 (1990). Finally, even if the court determines that
    the defendant seeks the benefit of a new rule, the
    court must decide whether that rule falls within one
10138                  AYALA v. WONG
    of the two narrow exceptions to the nonretroactivity
    principle. See Gilmore v. Taylor, 508 U.S. 333, 345
    (1993).

Id. at 390 (emphasis as quoted in Caspari, parallel cites
removed). There is no dispute that Ayala’s conviction became
final in May 2001, when the Supreme Court denied certiorari,
and Ayala does not assert that he comes within either of the
two narrow exceptions. Thus, the question presented is
whether in May 2001, the unconstitutionality of ex parte pro-
cedure used by the trial court in 1986 was “dictated” by pre-
cedent.

  The majority claims that in May 2001 this rule had been
“unequivocally ‘dictated by precedent’ ” as a result of our
opinion in United States v. Thompson, 827 F.2d 1254 (9th
Cir. 1987). Thompson, however, did not announce a clear
constitutional rule, and furthermore, the majority confuses
what it sees as the wisdom of Thompson with the question of
whether that wisdom had been embraced by 2001.

   Thompson concerned a 1985 criminal trial in a federal dis-
trict court. The judge alone conducted voir dire and “the gov-
ernment used four of its peremptory challenges to exclude all
four blacks in the venire.” Id. at 1256. When “Thompson’s
lawyer moved for a mistrial,” the district court “allowed the
government to put its reasons for the disputed peremptory
challenges on the record, albeit in camera and out of the pres-
ence of the defendant and his lawyer.” Id. Thompson
appealed arguing that this procedure violated his Fifth
Amendment right to due process and his Sixth Amendment
right to a fair and impartial jury. Id. We concluded that the
“district court erred in refusing to allow defense counsel in
this case to hear the government’s reasons for excluding the
black potential jurors and to present argument thereon.” Id. at
1261. We explained that “situations where the court acts with
the benefit of only one side’s presentation are uneasy compro-
mises with some overriding necessity, such as the need to act
                             AYALA v. WONG                           10139
quickly or to keep sensitive information from the opposing
party. Absent such compelling justification, ex parte proceed-
ings are anathema in our system of justice and, in the context
of a criminal trial, may amount to a denial of due process.”
Id. at 1258-59.

   Although the logic behind the opinion in Thompson may be
compelling, the opinion nonetheless does not dictate a consti-
tutional standard. It concerned a federal court trial, not a state
court trial.1 It was not a unanimous opinion and the dissent
argued that the majority’s choice of an adversarial proceeding
over an in camera proceeding was contrary to the Supreme
Court’s decision in Batson not to formulate particular proce-
dures. Id. at 1262 (Sneed, J., dissenting). Moreover, although
Thompson held that the district court in the case before it had
erred as a matter of constitutional law, it did not set forth a
binding rule. The opinion recognized that there were “occa-
sional departures from” the norm of holding adversarial pro-
ceedings, noted a number of instances in which in camera
proceedings were appropriate, and concluded that departure
from the norm “may amount to a denial of due process.” Id.
at 1258-59 (emphasis added). The language in Thompson is
clearly advisory when compared to our statement in Menefield
v. Borg, 881 F.2d 696, 699 (9th Cir. 1989) that “we hold that
the right to counsel attaches to the motion for a new trial stage.”2
  1
     See Massachusetts Delivery Ass’n v. Coakley, 671 F.3d 33, 48 (1st Cir.
2012)) (reiterating that “[s]tate courts are not bound by the dictates of the
lower federal courts, although they are free to rely on the opinions of such
courts when adjudicating federal claims”) (internal citations omitted);
Bromley v. Crisp, 561 F.2d 1351, 1354 (10th Cir. 1977) (noting that “the
Oklahoma Courts may express their differing views on the retroactivity
problem or similar federal questions until we are all guided by a binding
decision of the Supreme Court”); U.S. ex rel. Lawrence v. Woods, 432
F.2d 1072, 1076 (7th Cir. 1970) (noting that “because federal courts exer-
cise no appellate jurisdiction over state tribunals, decisions of lower fed-
eral courts are not conclusive on state courts”).
   2
     Contrary to the majority’s suggestion, it was the absolute nature of our
holding in Menefield, not the fact that the reasoning in Menefield was
based on Supreme Court cases concerning constitutional rights, that com-
manded our adherence to Menefield’s holding in Bell v. Hill, 190 F.3d
1089, 1092-93 (9th Cir. 1999). See Majority at p. 10101.
10140                   AYALA v. WONG
   The cautionary, rather than binding, nature of Thompson is
confirmed by a review of other Ninth Circuit cases as well as
decisions by our sister circuits. In Lewis v. Lewis, 321 F.3d
824, 831 n.27 (9th Cir. 2003), we observed that “[c]ertainly,
requiring a court to allow defense counsel to argue [during the
three-step Batson process] is not clearly established law.” In
Majid v. Portuondo, 428 F.3d 112 (2d Cir. 2005), the Second
Circuit commented that “[i]t remains at least arguable that
courts holding Batson hearings may, to the contrary, hear the
explanations in camera and outside the presence of the defen-
dants.” Id. at 128 (citations omitted). In United States v.
Tucker, 836 F.2d 334, 340 (7th Cir. 1988), the Seventh Cir-
cuit noted that the Supreme Court in Batson expressly
declined to formulate procedures and disagreed with the Ninth
Circuit’s opinion in Thompson insofar as it required an “ad-
versarial hearing once a defendant establishes a prima facie
case of purposeful discrimination.” Similarly, in United States
v. Davis, 809 F.2d 1194, 1202 (6th Cir. 1987), the Sixth Cir-
cuit commented that Batson does not “require the participa-
tion of defense counsel while the Government’s explanations
are being proffered.”

   The majority strives mightily to distinguish these com-
ments on the grounds that they are not well-reasoned, in some
instances are merely dicta, and have been rejected by other
circuits and most state courts. But the standard established by
the Supreme Court for determining whether an issue is
Teague-barred is not the merits of the old rule or even the rec-
ognition of the wisdom of the new rule, but whether the new
rule was “dictated by precedent.” Caspari, 510 U.S. at 390.
These conflicting cases confirm Thompson’s advisory nature.

   Furthermore, the rule that the majority claims was estab-
lished is not a bright line rule. Rather, at most, Thompson
states that defense counsel could not be excluded absent some
“compelling justification.” See Majority at p. 10106. Here, the
prosecutor offered an explanation for seeking to present his
reasons in camera; he did not want to reveal his strategy to the
                            AYALA v. WONG                            10141
defense. Following Thompson and the other cases cited by the
majority, it is now clear that this is not a valid reason not to
follow the norm of an adversarial proceeding.3 However, this
was not dictated in 2001 when Ayala’s conviction became
final.

   In sum, I agree with the district court that the right to be
present and have counsel present when the prosecution pre-
sented its reasons for its challenged recusals was not “dictated
by precedent” when Ayala’s conviction was final, and there-
fore that the issue is Teague-barred.

                                    II

   Assuming that the issue is not Teague-barred, I agree with
the majority (and the California Supreme Court) that the
exclusion of the defense from the Batson proceedings was
error, and that it was not structural error. See Majority at pp.
10109-10. However, we again part company when determin-
ing the appropriate standard of review. The majority reads our
recent cases to allow it to pose the question as “[if] we cannot
say that the exclusion of defense counsel and the loss of the
questionnaires likely did not prevent Ayala from prevailing on
his Batson claim, then we must grant the writ.” See Majority
at p. 10115. However, pursuant to controlling Supreme Court
opinions, we can grant relief only if, at a minimum, the Cali-
fornia Supreme Court’s harmlessness determination was
objectively unreasonable.

   In Brecht v. Abrahamson, 507 U.S. 619, 633-37 (1993), the
Supreme Court explained that collateral review is different
from direct review. It held:
  3
    The California Supreme Court carefully considered the prosecutor’s
claim that his reasons would disclose matters of strategy. It concluded that
the prosecutor had “simply [given] the reasons for his challenges, reasons
that defendant was entitled to hear and that disclosed no secrets of trial
strategy.” Ayala, 6 P.3d at 202-03. Accordingly, it concluded that “[i]t was
unreasonable to exclude defendant from the hearings.” Id. at 203.
10142                   AYALA v. WONG
    The imbalance of the costs and benefits of applying
    the Chapman harmless-error standard on collateral
    review counsels in favor of applying a less onerous
    standard on habeas review of constitutional error.
    The Kotteakos standard, we believe, fills the bill.
    The test under Kotteakos is whether the error “had
    substantial and injurious effect or influence in deter-
    mining the jury’s verdict.” 328 U.S. at 776. Under
    this standard, habeas petitioners may obtain plenary
    review of their constitutional claims, but they are not
    entitled to habeas relief based on trial error unless
    they can establish that it resulted in “actual preju-
    dice.” See United States v. Lane, 474 U.S. 438, 449
    (1986).

Id. at 637 (parallel citations omitted).

  Three years after the Supreme Court decided Brecht, “Con-
gress passed, and the President signed, the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), under which
a habeas petition may not be granted unless the state court’s
adjudication ‘resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States . . . .’ 28 U.S.C. § 2254(d)(1).” Fry v. Pliler,
551 U.S. 112, 119 (2007).

   Fry challenged his murder conviction on the grounds that
the state trial court exclusion of a person’s testimony deprived
him of constitutional due process. Id. at 115. The state appel-
late court found that the trial court had not abused its discre-
tion in excluding the testimony and noted in passing that there
was no possible prejudice. Id. Fry filed a habeas petition in a
federal district court. Id. The district court determined that the
exclusion of the testimony had been “an unreasonable appli-
cation of clearly established law,” and disagreed with the state
appellate court’s determination that there was “no possible
prejudice,” but nonetheless concluded that “there ha[d] been
                       AYALA v. WONG                     10143
an insufficient showing that the improper exclusion of the tes-
timony of Ms. Maples had a substantial and injurious effect
on the jury’s verdict under the standard set forth in Brecht.”
Id. at 115-16 (internal quotation marks omitted). The Ninth
Circuit affirmed, and the Supreme Court in turn affirmed the
Ninth Circuit. Id. at 116, 122.

  In its opinion in Fry, the Supreme Court reconciled the
Brecht standard with AEDPA. The Court explained:

    In Mitchell v. Esparza, 540 U.S. 12 (2003) (per
    curiam), we held that, when a state court determines
    that a constitutional violation is harmless, a federal
    court may not award habeas relief under § 2254
    unless the harmlessness determination itself was
    unreasonable. Petitioner contends that § 2254(d)(1),
    as interpreted in Esparza, eliminates the requirement
    that a petitioner also satisfy Brecht’s standard. We
    think not. That conclusion is not suggested by
    Esparza, which had no reason to decide the point.
    Nor is it suggested by the text of AEDPA, which sets
    forth a precondition to the grant of habeas relief (“a
    writ of habeas corpus . . . shall not be granted”
    unless the conditions of § 2254(d) are met), not an
    entitlement to it. Given our frequent recognition that
    AEDPA limited rather than expanded the availability
    of habeas relief, see, e.g., Williams v. Taylor, 529
    U.S. 362, 412 (2000), it is implausible that, without
    saying so, AEDPA replaced the Brecht standard of
    “ ‘actual prejudice,’ ” 507 U.S. at 637 (quoting
    United States v. Lane, 474 U.S. 438, 449 (1986)),
    with the more liberal AEDPA/Chapman standard
    which requires only that the state court’s harmless-
    beyond-a-reasonable-doubt determination be unrea-
    sonable. That said, it certainly makes no sense to
    require formal application of both tests
    (AEDPA/Chapman and Brecht) when the latter obvi-
    ously subsumes the former. Accordingly, the Ninth
10144                  AYALA v. WONG
    Circuit was correct to apply the Brecht standard of
    review in assessing the prejudicial impact of federal
    constitutional error in a state-court criminal trial.

Fry, 551 U.S. 119-120 (emphasis in original, parallel citations
omitted).

   Three aspects of the Supreme Court’s explanation are par-
ticularly important. First, the Court endorsed its opinion in
Esparza, 540 U.S. 12, that habeas relief was available only if
the state court’s determination of harmlessness was unreason-
able. Second, the Court reiterated that AEDPA “limited rather
than expanded the availability of habeas relief.” Fry, 551 U.S.
at 119. Third, the Court held that the Brecht “actual preju-
dice” standard requires a greater showing than the “the more
liberal AEDPA/Chapman standard which requires only that
the state court’s harmless-beyond-a-reasonable-doubt deter-
mination be unreasonable.” Id. at 119-20. These concerns led
the Court to hold that:

    in § 2254 proceedings a court must assess the preju-
    dicial impact of constitutional error in a state-court
    criminal trial under the “substantial and injurious
    effect” standard set forth in Brecht, supra, whether
    or not the state appellate court recognized the error
    and reviewed it for harmlessness under the “harm-
    less beyond a reasonable doubt” standard set forth in
    Chapman, 386 U.S. 18.

551 U.S. at 121-22 (parallel citations omitted).

   Despite the relatively clear language in Fry, the majority,
citing our decisions in Pulido v. Chrones, 629 F.3d 1007 (9th
Cir. 2010), and Merolillo v. Yates, 663 F.3d 444 (9th Cir.
2011), revises the Brecht standard to require relief where the
record is evenly balanced and a judge has “grave doubt about
whether an error affected the jury.” See Majority at pp.
                             AYALA v. WONG                           10145
10113-14. How the majority reaches this conclusion is some-
what of a mystery.4

  Our opinion in Pulido does not support the majority’s
approach. The majority cites a single clause out of context:
we “apply the Brecht test without regard for the state court’s
harmlessness determination.” Majority at p. 10113 (quoting
Pulido, 629 F.3d at 1012). However, this clause comes at the
end of a paragraph that explains:

      In Fry v. Pliler, 551 U.S. 112 (2007), the Supreme
      Court clarified that the Antiterrorism and Effective
      Death Penalty Act of 1996 (“AEDPA”) did not
      replace the traditional test for prejudice on collateral
      review — i.e., whether the error “had substantial and
      injurious effect or influence in determining the jury’s
      verdict.” Brecht, 507 U.S. at 623. Moreover, Fry
      explained that we need not conduct an analysis under
      AEDPA of whether the state court’s harmlessness
      determination on direct review — which is governed
      by the “harmless beyond a reasonable doubt” test set
      forth in Chapman v. California, 386 U.S. 18, 24
      (1967) — was contrary to or an unreasonable appli-
      cation of clearly established federal law. Fry, 551
      U.S. at 119-20 (citing 28 U.S.C. § 2254(d)(1)). This
      is because the Brecht test “obviously subsumes” the
  4
    In contrast to the standard set forth in the body of its opinion, the
majority in footnote 11 recognizes that “[i]n holding that Ayala has dem-
onstrated his entitlement to relief under Brecht, we therefore also hold to
be an unreasonable application of Chapman the California Supreme
Court’s conclusion that Ayala was not prejudiced by the exclusion of the
defense during Batson steps two and three or by the loss of the question-
naires.” I agree with this approach but not its conclusion. In order to reach
the conclusion that the California Supreme Court’s determination that the
constitutional violation was harmless, we must follow the Supreme
Court’s opinion in Esparza, as cited in Fry, 551 U.S. at 119, and deter-
mine that “the harmlessness determination itself was unreasonable.”
(emphasis in original). Here, the California Supreme Court’s determina-
tion of harmlessness was not objectively unreasonable.
10146                   AYALA v. WONG
    “more liberal AEDPA/Chapman standard which
    requires only that the state court’s harmless-beyond-
    a-reasonable-doubt determination be unreasonable.”
    Id. at 120. Accordingly, we apply the Brecht test
    without regard for the state court’s harmlessness
    determination.FN3 See id. at 121-22.

    FN3. It follows that we apply Brecht “whether or not
    the state appellate court recognized the error and
    reviewed it for harmlessness” under Chapman. Fry,
    551 U.S. at 121-22.

629 F.3d at 1012 and n.3 (parallel citations omitted). Thus,
Pulido does not suggest that we may disregard the California
Supreme Court’s determination that the constitutional viola-
tion was harmless.

   Merolillo is arguably more ambiguous. The opinion first
recognizes that we look to the last reasoned decision of the
state court and that the state court’s findings “are entitled to
a presumption of correctness unless the petitioner rebuts the
presumption with clear and convincing evidence.” 663 F.3d at
453 (citing 28 U.S.C. § 2254(e)(1)). The opinion quotes from
the Supreme Court’s discussion of harmless error in two opin-
ions, Kotteakos v. United States, 328 U.S. 750, 765 (1946),
and O’Neal v. McAninch, 513 U.S. 432, 435 (1995). In
O’Neal, decided after Brecht, the Supreme Court held “that in
cases of grave doubt as to harmlessness the petitioner must
win.” 513 U.S. at 437. It concluded that “when a habeas court
is in grave doubt as to the harmlessness of an error that affects
substantial rights, it should grant relief.” Id. at 445.

   Merolillo goes on to cite Fry and Pulido, and in light of
these cases held that:

    the Brecht “substantial and injurious effect” standard
    governs our harmless error review in this case. For
    the reasons discussed below, we conclude that under
                        AYALA v. WONG                      10147
    the Brecht standard, Merolillo is entitled to habeas
    relief. We further conclude that even if Merolillo
    were also required to satisfy the AEDPA/Chapman
    standard, he would, as the state court’s determination
    that the error was harmless beyond a reasonable
    doubt was an objectively unreasonable application of
    Chapman.

663 F.3d at 455.

   The arguable tension between the “grave doubt as to the
harmlessness of an error” and AEDPA was relieved by the
Supreme Court in Harrington v. Richter, 131 S. Ct. 770
(2011). There, the Court reiterated that “[a] state court’s
determination that a claim lacks merit precludes federal
habeas relief so long as ‘fairminded jurists could disagree’ on
the correctness of the state court’s decision. Yarborough v.
Alvarado, 541 U.S. 652, 654 . . . (2004).” Id. at 786. Justice
Kennedy, writing for the Court, explained:

    The Court of Appeals appears to have treated the
    unreasonableness question as a test of its confidence
    in the result it would reach under de novo review:
    Because the Court of Appeals had little doubt that
    Richter’s Strickland claim had merit, the Court of
    Appeals concluded the state court must have been
    unreasonable in rejecting it. This analysis overlooks
    arguments that would otherwise justify the state
    court’s result and ignores further limitations of
    § 2254(d), including its requirement that the state
    court’s decision be evaluated according to the prece-
    dents of this Court. See Renico v. Lett, 559 U.S. ___
    (2010). It bears repeating that even a strong case for
    relief does not mean the state court’s contrary con-
    clusion was unreasonable. See Lockyer [v. Andrade],
    [538 U.S. 63] at 75 [(2003)].

    If this standard is difficult to meet, that is because it
    was meant to be. As amended by AEDPA, § 2254(d)
10148                   AYALA v. WONG
    stops short of imposing a complete bar on federal
    court relitigation of claims already rejected in state
    proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664
    (1996) (discussing AEDPA’s “modified res judicata
    rule” under § 2244). It preserves authority to issue
    the writ in cases where there is no possibility fair-
    minded jurists could disagree that the state court’s
    decision conflicts with this Court’s precedents. It
    goes no farther. Section 2254(d) reflects the view
    that habeas corpus is a “guard against extreme mal-
    functions in the state criminal justice systems,” not
    a substitute for ordinary error correction through
    appeal. Jackson v. Virginia, 443 U.S. 307, 332, n.5
    (1979) (Stevens, J., concurring in judgment). As a
    condition for obtaining habeas corpus from a federal
    court, a state prisoner must show that the state
    court’s ruling on the claim being presented in federal
    court was so lacking in justification that there was an
    error well understood and comprehended in existing
    law beyond any possibility for fairminded disagree-
    ment.

131 S. Ct. 786-87 (parallel citations omitted).

   In reiterating that a writ may issue only where there is no
possibility that fairminded jurists could agree with the state
court’s decision, the Supreme Court refined the “grave doubt”
standard set forth in Brecht. A federal court cannot have
“grave doubt” as to harmlessness if a fairminded jurist could
agree on the correctness of the state court’s decision. See Har-
rington, 131 S. Ct. at 786. The Court explained that “[u]nder
§ 2254(d), a habeas court must determine what arguments or
theories supported or, as here, could have supported, the state
court’s decision; and then it must ask whether it is possible
fairminded jurists could disagree that those arguments or the-
ories are inconsistent with the holding in a prior decision of
this Court.” Id.
                        AYALA v. WONG                      10149
   Accordingly, pursuant to Supreme Court precedent, a writ
may not issue just because “we cannot say that the exclusion
of defense counsel and the loss of questionnaires likely did
not prevent Ayala from prevailing on his Batson claim.”
Majority at p. 10115. Rather, a writ may issue only if we
determine that no fairminded jurist could find that the exclu-
sion of defense counsel and the loss of questionnaires did not
prevent Ayala from prevailing on his Batson claim. This is the
essence of the Supreme Court’s holdings and we should
accept it as such. See, e.g., Harrington, 131 S. Ct. at 786-87
(“As a condition for obtaining habeas corpus from a federal
court, a state prisoner must show that the state court’s ruling
on the claim being presented in federal court was so lacking
in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fair-
minded disagreement.”).

                               III

  The application of the fairminded jurist standard requires
deference to the California Supreme Court’s opinion.

  A.   The Loss of Certain Prospective Jurors’ Question-
       naires.

   The majority stresses the “loss of an overwhelming major-
ity of the jury questionnaires” in concluding that this “in-
creased the prejudice that Ayala suffered as a result of the
exclusion of defense counsel.” Majority at pp. 10107, 10109.
However, Ayala has not shown either that the loss of certain
prospective jurors’ questionnaires violated his constitutional
rights or that the loss prejudiced him.

   First, it is critical to note what was in the record before the
California Supreme Court. The record contained the voir dire
of all prospective jurors, the transcript of the in camera hear-
ings on the prosecutor’s reasons for the recusals, the question-
naires of all the seated jurors, and the questionnaires of the
10150                        AYALA v. WONG
alternate jurors. What was missing were the 77-question, 17-
page questionnaires that the 200 or so other potential jurors
had filled out.

   In Boyd v. Newland, 467 F.3d 1139 (9th Cir. 2006), we rec-
ognized that the Supreme Court’s opinion in Miller-El v.
Dretke, 545 U.S. 231 (2005), holds that “comparative juror
analysis is an important tool that courts should utilize in
assessing Batson claims.”5 Boyd, 467 F.3d at 1145. We com-
mented that “comparative juror analysis” referred “to an
examination of a prosecutor’s questions to prospective jurors
and the jurors’ responses, to see whether the prosecutor
treated otherwise similar jurors differently because of their
membership in a particular group.” Id. Boyd concluded:

      A reviewing court cannot examine the “totality of
      the relevant facts” and “all relevant circumstances,”
      Batson, 476 U.S. at 94, surrounding a prosecutor’s
      peremptory strike of a minority potential juror with-
      out an entire voir dire transcript. A transcript of the
      complete voir dire, as distinct from a partial tran-
      script up to the time of the Batson motion, is proper
      because comparative juror analysis is appropriate
      both at the time of the Batson motion and in light of
      all subsequent voir dire testimony.

467 F.3d at 1151 (internal citation and parallel citations omit-
ted). Here, we have the entire voir dire transcript. Moreover,
there is nothing in Boyd to suggest that in addition to voir
dire, juror questionnaires from jurors who are not selected are
critical to a determination of the totality of the relevant facts.

   Indeed, the opposite conclusion can be drawn from the
  5
    We further held that the right to a comparative juror analysis explicitly
set forth in Miller-El was not Teague-barred as it “simply illustrates the
means by which a petitioner can establish, and should be allowed to estab-
lish, a Batson error.” Boyd, 467 F.3d at 1146 (internal citation omitted).
                        AYALA v. WONG                      10151
panel’s treatment of a state rule requiring an indigent defen-
dant to show some cause in order to receive a free transcript
of voir dire. We held, citing United States v. MacCollum, 426
U.S. 317, 322-23 (1976), that the local rule did not violate the
constitution, but that the state court erred in failing to recog-
nize that the defendant had raised a plausible Batson claim
entitling him to a transcript of voir dire. Boyd, 467 F.3d at
1151. If a defendant can be required to show some cause in
order to receive a transcript of voir dire, it follows that a
defendant has no per se right to the preservation of all ques-
tionnaires filled out by prospective jurors who were not
seated.

   To be fair, there is language in our en banc opinion in
Kesser v. Cambra, 465 F.3d 351 (9th Cir. 2006) (en banc),
that might be read to infer a right to juror questionnaires. We
concluded that: “In this case, an evaluation of the voir dire
transcript and juror questionnaires clearly and convincingly
refutes each of the prosecutor’s nonracial grounds, compelling
the conclusion that his actual and only reason for striking Rin-
dels was her race.” Id. at 360. It appears that in Kesser, the
juror questionnaires were available and thus we could con-
sider them, but we did not indicate that they were necessary.
Instead, we commented that a comparative juror analysis was
appropriate because “[w]e too have a transcript of voir dire
and a Batson claim fairly presented, and that is all Miller-El
requires.” Id. at 361.

   Recently, in Briggs v. Grounds, 682 F.3d 1165 (9th Cir.,
2012), we considered Batson challenges to a state court con-
viction where the federal record did not contain the question-
naires of excused jurors. Id. at 1170. In affirming the district
court’s denial of relief, the majority noted:

    The dissent seems to conclude that because we can-
    not independently verify the answers from the ques-
    tionnaires as they are not in the record, the defense’s
    characterization is equally, if not more, plausible
10152                   AYALA v. WONG
    despite the state court determinations to the contrary.
    However, “AEDPA imposes a highly deferential
    standard for evaluating state-court rulings and
    demands that state-court decisions be given the ben-
    efit of the doubt,” Jackson v. Felkner, [sic] ___ U.S.
    ___, ___, 131 S. Ct. 1305, 1307 (2011) (per curiam)
    (internal quotation marks omitted) (overturning the
    Ninth Circuit). The dissent’s readiness to doubt the
    state court determination based on the defendant’s
    characterization of the record does not apply the
    appropriate level of deference Congress and the
    United States Supreme Court have required of us.

Id. at 1170-71 (parallel citation omitted). The majority further
noted that “it is widely acknowledged that the trial judge is in
the best position to evaluate the credibility of the prosecutor’s
proffered justifications.” Id. at 1171 (internal citations omit-
ted). Citing the Supreme Court’s statements in Rice v. Collins,
546 U.S. 333, 338-39 (2006), that a “federal habeas court can
only grant Collins’ petition if it was unreasonable to credit the
prosecutor’s race-neutral explanations for the Batson chal-
lenge,” the majority stated:

    it would be anathema to AEDPA if we were to
    assume that the petitioner’s contentions about the
    questionnaires are true simply because the record
    before us does not contain the excused jurors’ ques-
    tionnaires. The burden to disprove the factual find-
    ings rests with Briggs. 28 U.S.C. § 2254(e)(1)
    (requiring “clear and convincing evidence” to rebut
    “a determination of a factual issue made by a State
    court”).

Id. Thus, under controlling Supreme Court and Ninth Circuit
case law, the lack of prospective jurors’ questionnaires does
not relieve Ayala of his burden to show by clear and convinc-
ing evidence that the California Supreme Court was wrong in
determining that the prosecutor was not biased.
                        AYALA v. WONG                      10153
   In the absence of any authority holding that the lost jurors’
questionnaires inherently deprives a reviewing court of a suf-
ficient record to evaluate a Batson claim, the issue becomes
whether Ayala has shown that the lack of the questionnaires
in his case renders the record insufficient. He fails in this task
for several reasons.

   First, the California Supreme Court reasonably rejected
Ayala’s claim that his constitutional rights were infringed by
the loss of the bulk of prospective juror questionnaires. It
explained:

    The deficiency of which he complains is the absence
    of certain questionnaires, which were completed by
    prospective jurors, then lodged with the superior
    court, subsequently lost by its clerk’s office, and
    finally determined by the superior court to be beyond
    reconstruction. A criminal defendant is indeed enti-
    tled to a record on appeal that is adequate to permit
    meaningful review. That is true under California
    law. [Citation.] It is true as well under the United
    States Constitution — under the Fourteenth Amend-
    ment generally, and under the Eighth Amendment
    specifically when a sentence of death is involved.
    [Citation.] The record on appeal is inadequate, how-
    ever, only if the complained-of deficiency is prejudi-
    cial to the defendant’s ability to prosecute his
    appeal.” ( [People v. Alvarez, 14 Cal. 4th 155] at p.
    196 fn. 8 [1996]).

Ayala, 6 P.3d at 208. The California Supreme Court con-
cluded that if the loss of the questionnaires was error under
either federal or state law, “it was harmless beyond a reason-
able doubt.” Id. This determination is entitled to deference.
Rice, 546 U.S. at 338-39.

   Second, the importance of the missing juror questionnaires
is questionable. The questionnaires of the 70 or so jurors who
10154                   AYALA v. WONG
were never called have little relevance. The questionnaires of
those jurors who were called and then excused would be rele-
vant only if there was some showing that the jurors were
excused due to constitutionally forbidden reasons. However,
Ayala has not offered any specific allegations concerning the
missing questionnaires.

   Third, none of the prosecutor’s stated reasons for recusing
the questioned jurors relied solely on the jurors’ question-
naires. Rather, in each instance the prosecutor mentioned the
juror’s specific answers to questions posed on voir dire. In a
couple of instances the prosecutor referenced a person’s ques-
tionnaire, but this was primarily to explain why he found the
individual’s oral responses troubling.

  Finally, Ayala has been able to present his specific Batson
challenges based on the voir dire transcript and the extant
questionnaires of the seated jurors and alternates. Although
Ayala argues that the lost questionnaires might support his
arguments, such a contention can be made about any lost doc-
ument. If such speculation constituted prejudice the standard
would be reduced to a per se rule.

  B.    Challenges to the Individual Jurors.

   It follows that the next question is whether Ayala has
shown by clear and convincing evidence that no reasonable
jurist could have credited the prosecutor’s non-discriminatory
reasons for excusing the seven jurors in issue. The majority
only discusses three of the jurors in its opinion, but a review
of the prosecutor’s reasons for excusing each of the seven
jurors shows that the California Supreme Court’s determina-
tion that “the challenged jurors were excluded for proper,
race-neutral reasons,” was reasonable. See Ayala, 6 P.3d at
204.

  1.    Olanders D.

  Olanders D.’s recusal was one of the first challenged by
Ayala. The trial court held that Ayala had not met the first
                        AYALA v. WONG                     10155
prong of the Batson test (a prima facie showing that the chal-
lenge was based on race, see Kesser, 465 F.3d at 359), but
nonetheless indicated that it would hear the prosecutor’s rea-
sons for the recusal in order to have a complete record. The
prosecutor stated in the ex parte proceeding:

    My primary concern with regard to [Olanders D.] is
    his ability to vote for the death [sentence] during the
    penalty phrase. On his questionnaire he indicated
    that he does not believe in the death penalty. He did
    indicate that his view had changed over the last sev-
    eral years. He told us that he did want to serve. Dur-
    ing the time that he was questioned, I felt that his
    responses were not totally responsive to the ques-
    tions of either counsel for the defense or myself.

    My observations in reading his questionnaire and
    before even making note of his racial orientation was
    that his responses on the questionnaire were poor.
    They were not thought out. He demonstrated a lack
    of ability to express himself well. And his answers
    did not make a lot of sense. As a result, I felt that he
    is not a person who could actively participate in a
    meaningful way in deliberations with other jurors,
    and his ability to fit in with a cohesive group of 12
    people I sincerely question, and it was for that reason
    plus his stand on the death penalty that led me to
    believe that I did not want him on this jury.

The trial judge responded:

    Okay. Certainly with reference to whether or not he
    would get along with 12 people, it may well be that
    he would get along very well with 12 people. I think
    the other observations of counsel are accurate and
    borne out by the record.

   The California Supreme Court held that the record showed
that the challenged jurors were excluded for proper, race-
10156                   AYALA v. WONG
neutral causes. Ayala, 6 P.3d at 204. Addressing Olanders D.,
the court commented:

    [T]he prosecutor stated he had exercised the chal-
    lenge in part because his questionnaire indicated he
    opposed the death penalty. The prosecutor acknowl-
    edged Olanders D.’s oral statements that his views
    had changed, but commented that his answers were
    “not totally responsive to the questions of either
    counsel for the defense or myself.” He further stated,
    in essence, that Olanders D.’s difficulties in commu-
    nicating led him to question whether he would “fit
    in” on the jury. The court disagreed with the latter
    point, noting, “it may well be that he would get
    along very well with 12 people,” but added: “I think
    the other observations of counsel are accurate and
    borne out by the record.”

6 P.3d at 204. The California Supreme Court further noted
that the trial court “credited the prosecutor’s opinion[ ] that
Olanders D. opposed the death penalty.” 6 P.3d at 206.

   The majority claims that the prosecutor’s motives for
excusing Olanders D. is suspect for several reasons. First,
Ayala “could have pointed to seated white jurors” who simi-
larly expressed hesitancy to impose the death penalty. Second,
the majority asserts that its review of the voir dire transcript
shows that “Olanders D.’s answers were responsive and com-
plete.” It further asserts that the responses of a seated white
juror, Ana L., were just as unresponsive. Third, the majority
argues that because Olanders D.’s questionnaire was lost, they
“cannot know exactly what arguments defense counsel could
have made to undermine” the prosecutor’s claim that
Olanders D.’s questionnaire responses were poor. See Major-
ity at p. 10156. The majority concludes that none of the rea-
sons proffered by the prosecutor should be sustained because
one was rejected by the trial judge, “two failed to distinguish
the juror whatsoever from at least one seated white juror,” and
                        AYALA v. WONG                     10157
the fourth cannot be evaluated because his questionnaire was
lost. Majority at pp. 10156-57.

   Were we reviewing the trial judge’s decision de novo, the
majority’s approach might be persuasive. But the applicable
standard is whether no fairminded judge could agree with the
California Supreme Court’s determination that the juror was
excluded for proper, race-neutral reasons. See Harrington,
131 S. Ct. at 786. Ayala does not come close to meeting this
standard.

   There is no suggestion that any seated juror raised a similar
set of concerns as Olanders D. The trial judge, who had the
opportunity to observe Olanders D., agreed with the prosecu-
tor that Olanders D. was ambivalent about the death penalty,
had not been responsive on his questionnaire, and lacked the
ability to express himself clearly. Moreover, the trial judge
did not necessarily reject the prosecutor’s concern that
Olanders D. could not participate in a meaningful way in jury
deliberations, but rather only commented that he “may well be
that he would get along very well with 12 people [on the
jury].” The trial court’s determinations as affirmed by the Cal-
ifornia Supreme Court are presumed correct. Rice, 546 U.S.
at 338-39 (“State-court factual findings, moreover, are pre-
sumed correct; the petitioner has the burden of rebutting the
presumption by ‘clear and convincing evidence.’
§ 2254(e)(1).”).

   The majority’s expressed concerns about Olanders D.’s
recusal are far from compelling. It is hardly surprising that a
number of potential jurors expressed ambivalence about the
death penalty. The fact that a prosecutor is more concerned
with one potential juror’s ambivalence than another is not
necessarily a sign of racial prejudice. Similarly, the fact that
the majority in reviewing the voir dire transcripts thinks that
a seated juror’s responses were no more responsive than
Olanders D.’s is really of little moment. As noted, the trial
judge — who heard Olanders D.’s voir dire — agreed with
10158                        AYALA v. WONG
the prosecutor that he “demonstrated a lack of ability to
express himself well.” The majority’s supposition that
Olanders D.’s questionnaire responses may not have been
“poor” is not clear or convincing evidence of anything. At
most, the majority’s arguments and assumptions may suggest
that the prosecutor’s evaluation of Olanders D. was not com-
pelled, but none of them really question the sincerity of the
prosecutor’s reasons or suggest a likelihood of some unstated
improper motive.6 The majority fails to show that a fair-
minded jurist could not have agreed with the California
Supreme Court.

  2.    Gerardo O.

   Gerardo O. was one of the recusals that Ayala challenged
in his second objection. The prosecutor explained his chal-
lenge to Gerardo O. as follows:
   6
     The only indicia of possible racial bias was the fact that seven of the
eighteen peremptory challenges exercised by the prosecutor excused
African-American and Hispanic jurors. If this were enough to compel a
finding of racial bias, there would be no reason for the second and third
steps in the Batson standard or for deference to the trial court’s determina-
tions. The lack of any compelling evidence of racial bias is clear when the
record in this case is compared to the prosecutor’s statements in Kesser,
465 F.3d 351. There, in overcoming the deference due to the state court’s
determinations, we commented:
    The racial animus behind the prosecutor’s strike is clear. When
    he was asked to explain why he used a peremptory challenge to
    eliminate Rindels, he answered using blatant racial and cultural
    stereotypes.
Id. at 357. Here, in contrast, all the majority can do is suggest that other
jurors, like Olanders D., were uncomfortable with the death penalty, failed
to offer thoughtful answers, and did not communicate well. But even if the
prosecutor’s perceptions about Olanders D. were incorrect or not unique,
that fact would not be such compelling evidence of pretext as to justify a
failure to defer to the California Supreme Court’s reasoned determination
that the jurors were excused for proper, race-neutral reasons. Ayala, 6 P.3d
at 204.
                       AYALA v. WONG                     10159
    I made an observation of [Gerardo] when he first
    entered the courtroom on the first day that the jurors
    were called into the area.

    At that time, he appeared to not fit in with anyone
    else. He was a standoffish type of individual. His
    dress and his mannerisms I felt were not in keeping
    with the other jurors.

    He indicated to us at the beginning that he was illit-
    erate. Actually, his words were that he was illiterate,
    and that he therefore had the questionnaire translated
    to him, so that he could make responses.

    I observed him on subsequent occasions when he
    came to the court, and observed that he did not
    appear to be socializing or mixing with any of the
    other jurors, and I also take into account his
    responses on the questionnaire and in the Hovey
    questioning process, at which time he expressed that
    he had no feeling with regard to the death penalty in
    writing.

    When being questioned, he said that he was not sure
    if he could take someone’s life, or if he could take
    someone’s life into his hands.

    He further responded in the Hovey process that there
    would be eleven other people, that he felt a little
    shaky as far as his responsibilities in this case.

    For those reasons, I felt that he would be an inappro-
    priate juror, and for that reason, I exercised the
    peremptory challenge.

   The trial court accepted the prosecutor’s reasons. It noted
that the record supported the prosecutor’s observations and
commented that the recusal was based on Gerardo O.’s indi-
10160                        AYALA v. WONG
vidual traits. The California Supreme Court in rejecting
Ayala’s Wheeler/Batson claim noted that “Gerardo O. strug-
gled with English and did not understand the proceedings.”
Ayala, 6 P.3d at 206.

   The majority does not deny that Gerardo O. stated that he
was illiterate, or that he needed someone to fill out his ques-
tionnaire, or that he dressed differently, or that he did not mix
with the other jurors. See Majority at pp. 10122-24. Instead,
the majority speculates that Ayala’s lawyer might have shown
that (1) despite his own comments, Gerardo O. was not illiter-
ate, or that (2) Geraldo O.’s “dress and mannerisms were dis-
tinctly Hispanic.”7 Majority at p. 10123. It further muses that
the prosecutor’s comments concerning Gerardo O.’s manner
and aloofness and his ambivalence toward the death penalty
could have been pretexts for an underlying racial bias.8 Major-
  7
     The majority’s cited quote from Hernandez v. New York, 500 U.S. 352
(1991), demonstrates that Hernandez is not applicable to this case. The
Supreme Court noted “the prosecutor’s frank admission that his ground for
excusing these jurors related to their ability to speak and understand Span-
ish raised a plausible, though not a necessary, inference that language
might be a pretext for what in fact were race-based peremptory chal-
lenges.” Id. at 363. Here, the prosecutor did not mention any concern with
Gerardo O.’s ability to speak Spanish and there does not appear to be any
indication that any juror’s ability to speak Spanish was an issue. Instead,
the majority having poured over the record to determine that Gerardo O.,
despite his own admission of illiteracy, had “attended college in the
United States,” opines that he “was perfectly capable of reading the sum-
mary of legal issues that was given to prospective jurors.” Majority at p.
10123. It then leaps to the unsupported conclusion that the “prosecutor’s
purported reason for striking Gerardo O., then, was directly related to his
status as someone who spoke Spanish as his first language.” Majority at
p. 10123. The majority’s speculation may not be illogical, but it is far from
compelling.
   8
     The majority also suggests that Gerardo O.’s ambivalence to the death
penalty was no more pronounced than some seated white jurors. Majority
at pp. 10125. As previously noted, the potential jurors’ attitudes toward
the death penalty was an important consideration for both the defense and
the prosecution. The fact that the prosecutor distinguished between levels
of ambivalence that the majority over twenty years later argues are indis-
tinguishable is hardly a sign of pretext. Moreover, there is no doubt that
Gerardo O.’s qualifications — professed illiteracy, distinctive dress and
aloofness, and ambivalence to the death penalty — were unique.
                          AYALA v. WONG                    10161
ity at p. 10123-24. Of course, it is impossible to negate such
possibilities, but there is nothing but the majority’s imagina-
tion to fuel its assertions. Here, the trial judge agreed with the
prosecutor’s observations of Gerardo O. and the California
Supreme Court affirmed. The majority has not presented the
type of clear evidence that the United States Supreme Court
has held is necessary to overcome our deference to state court
findings. See Rice, 546 U.S. at 338-39.

  3.     Robert M.

  Robert M. was one of the last persons whose recusal was
challenged. The prosecutor explained his reasons as follows:

       As far as [Robert M.] is concerned, Miss Michaels
       and I had discussions during the selection process
       here in court, even as late as immediately before the
       exercise of the last challenge.

       The court would note that I had passed at one point,
       leaving [Robert M.] on.

       I have always felt some degree of reluctance with
       regard to [Robert M.], and my concern primarily is
       in the area of whether, after conviction, [Robert M.]
       would actually vote for the death penalty, and it was
       my view that taking all of his responses in Hovey
       into account, and the — some of his responses even
       as late as yesterday — for example, the following of
       the Sagon Penn case. It was Miss Michaels doing the
       questioning at that time, and I did not actually — it
       would have been possibly a disadvantage or a dis-
       service to inquire further as to his impressions about
       the Sagon Penn case.

       I’m concerned about that case because the fact that
       Mr. Penn, in a very notorious trial here, was found
       not guilty in a second trial, and allegations of mis-
10162                 AYALA v. WONG
    conduct with regard to the District Attorney’s office
    and the police were certainly rampant in that case.

    There’s really no way for me to inquire as to where
    [Robert M.] actually stood.

    As far as [Robert M.] is concerned, our scores, a
    combination of all the factors — Mr. Cameron
    graded [Robert M.] as a four, Miss Michaels had
    rated [Robert M.] as a five, and my score on him was
    four to a five, somewhere in that area.

    I had before doing any of the selection process,
    resolved that at the very best, we would not wish to
    have any jurors on this case whose combined score
    was five or less.

    In spite of that, I passed once on him, but it is my
    view, basically, that because of his attitudes with
    regard to the death penalty, such as in his first
    response to whether he would always vote for —
    well, in the question number one about whether he
    would always vote for guilt, he indicated that it was
    a difficult question.

    He said that he believed in the death penalty, but it
    was hard for him to be involved in the death penalty.

    With regard to questions about whether he would
    vote for death, he said no, it would be hard to say,
    no, I don’t know what the evidence is, and Miss
    Michael’s reasons, which she expressed to me, and
    I have to agree with, is a great degree of concern
    about whether if we get to that point he could actu-
    ally vote for death, and having that kind of a ques-
    tion in my mind as I’m trying this case would be
    distracting and worrisome to me during the process
    of the trial.
                            AYALA v. WONG                            10163
   The trial judge accepted the prosecutor’s reasons noting
that although Robert M. “is certainly pro the death penalty,”
his answers varied and “there may well be a legitimate con-
cern as to whether or not he could impose it.” The court fur-
ther noted that “an appropriate use of a peremptory would be
for a person that any party feels either could not vote for death
or could not vote for life.” In affirming Ayala’s conviction the
California Supreme Court observed “that Robert M. was less
than desirable from the prosecution’s point of view.” Ayala,
6 P.3d at 206.

   Again, the majority does not really question the prosecu-
tor’s reasons, but speculates that had Ayala’s counsel been
present he might have argued that Robert M.’s reluctance to
impose the death penalty was not different from other jurors’
reluctance. Majority at p. 10126-27. In addition, the majority
does not deny that Robert M. had stated that he had followed
the Sagon Penn case, but argues that he only mentioned this
briefly.9 Majority at p. 10127-28. Nonetheless, Robert M.’s
interest in a recent notorious criminal case that involved mis-
conduct by the prosecutor and resulted in a not guilty verdict
is a legitimate non-discriminatory reason for recusal by the
prosecutor.

  4.    The Other Jurors

   The majority does not mention the other four minority
   9
     The extent of the majority’s speculation is illustrated by its argument
that because another juror who was seated mentioned that he was aware
of the capital case People v. Harris, 623 P.2d 240 (Cal. 1981), the prose-
cutor’s concern with Robert M.’s interest in the Sagon Penn case may
have been pretextual. Majority at p. 10128. This argument assumes that
somehow the Harris case was similar to the Sagon Penn case. This seems
unlikely as the crime in Harris took place in 1978, some eleven years
before the jury selection process in this case. Moreover, unlike the alleged
verdict in the Sagon Penn case, Harris was found guilty and the California
Supreme Court’s opinion, which issued in 1981, did not find any serious
misconduct by the district attorney.
10164                   AYALA v. WONG
jurors who were excused. Galileo S. was recused because he
(a) displayed a non-conformist attitude to the justice system,
(b) had more run-ins with the law than he admitted, and (c)
had an attitude that might create alienation and hostility on the
part of other jurors. Luis M. was challenged because he (a)
expressed ambivalence on the death penalty, (b) had investi-
gated the case on his own, and (c) left the military with a low
rank suggesting some sort of misconduct or inability to per-
form. The prosecutor noted that George S. (a) had been a
holdout juror on a prior jury, (b) was equivocal on the death
penalty, (c) had been rejected as a police officer candidate,
and (d) placed undue emphasis on the Bible. Barbara S. was
challenged because (a) her responses to oral questions were
slow, (b) she had an empty look in her eyes and seemed out
of tune with what was going on, and (c) her written and oral
answers were incomplete and non-responsive.

   A review of the prosecutor’s reasons for excusing these
jurors shows that, as with the three jurors mentioned by the
majority, the prosecution team offered individualized reasons
for each recusal. There is no blatant racism, no reference to
stereotypes — veiled or otherwise, and no discernable pattern
of discrimination.

   Nonetheless, the four recusals are susceptible to the type of
speculative challenges that the majority hurls at the recusals
of Olanders D., Gerardo O., and Robert M. Other jurors
expressed ambivalence and equivalence about the death pen-
alty. Other jurors offered slow or incomplete responses. Other
jurors probably had been denied employment or performed
poorly in a job. These might be appropriate avenues to
explore at the time that a recusal is made. But we are review-
ing a 1989 state trial pursuant to AEDPA, and the Supreme
Court, in reversing the Ninth Circuit, recently reiterated that
(a) Batson issues turn largely on evaluations of credibility, (b)
the trial court’s determination is entitled to great deference,
(c) the determination must be sustained unless it is clearly
erroneous, and (d) AEDPA demands that state-court decisions
                             AYALA v. WONG                             10165
be given the benefit of the doubt. Felkner v. Jackson, ___
U.S. ___, 131 S. Ct. 1305, 1307 (2011).

   Perhaps the California Supreme Court was not compelled
to conclude that “the challenged jurors were excluded for
proper, race-neutral reasons.” Ayala, 6 P.3d at 204. But its
conclusion was certainly objectively reasonable.10 Ayala has
not shown that the California Supreme Court’s ruling “was so
lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington, 131 S. Ct. at 786-87.
Indeed, it appears that, as in Harrington, the majority’s opin-
ion “illustrates a lack of deference to the state court’s determi-
nation and an improper intervention in state criminal
processes, contrary to the purpose and mandate of AEDPA
and to the now well-settled meaning and function of habeas
corpus in the federal system.” Id. at 787. I agree with the dis-
trict court’s denial of relief and accordingly, dissent from the
majority’s opinion.




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