                   FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

CONSTANTINO CARRERA ,                  No. 08-99007
       Petitioner-Appellant,
                                        D.C. No.
              v.                   1:90-CV-00478-AWI

ROBERT L. AYERS, JR.,                   OPINION
Warden of the California
State Prison at San Quentin,
         Respondent-Appellee.

     Appeal from the United States District Court
         for the Eastern District of California
    Anthony W. Ishii, Chief District Judge, Presiding

            Argued and Submitted En Banc
          June 20, 2012—Pasadena, California

                   Filed November 6, 2012

 Before: Alex Kozinski, Chief Judge, Harry Pregerson,
       William A. Fletcher, Raymond C. Fisher,
Marsha S. Berzon, Richard C. Tallman, Richard R. Clifton,
 Susan S. Ikuta, N. Randy Smith, Mary H. Murguia, and
            Morgan Christen, Circuit Judges.

         Opinion by Judge William A. Fletcher;
              Dissent by Judge Pregerson
2                      CARRERA V . AYERS

                           SUMMARY*

                Habeas Corpus/Death Penalty

    The en banc court affirmed the district court’s denial of a
28 U.S.C. § 2254 habeas corpus petition in a pre-AEDPA
case, raising a challenge under Batson v. Kentucky, 476 U.S.
79 (1986), for lack of prejudice. The panel held that Carrera
could not establish prejudice at trial because he could not
make a strong likelihood that prospective Hispanic jurors
were challenged because of any specific bias. See People v.
Wheeler, 583 P.2d 748 (Cal. 1978). The panel also held that
Carrera could not establish prejudice by showing that a
Wheeler objection would have succeeded on direct appeal,
based on the law as it existed when his conviction became
final on direct appeal. The panel explained that, despite
significant changes in the law while Carrera’s case was
pending on appeal, the California Supreme Court would have
applied the Wheeler standard instead of the Batson standard.

    Judge Pregerson dissented. He disagreed with the
majority which, although it did not dispute that Carrera’s
attorney erred, found that the ineffective assistance claim
would not have had a “reasonable probability” of succeeding.
Under his view, the majority reached its conclusion by
misreading the record and the law. Judge Pregerson would
hold that Carrera did not receive a fair trial because the
prosecutor purposefully excluded Hispanic jurors and
Carrera’s attorney did nothing to challenge him.


    *
   This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                    CARRERA V . AYERS                       3

                        COUNSEL

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

Clifford Edward Zall, Office of the California Attorney
General, Sacramento, CA for the Respondent-Appellee.

                         OPINION

W. FLETCHER, Circuit Judge:

     Petitioner-Appellant Constantino Carrera was found guilty
in 1983 of first-degree murder of two people during a robbery.
Carrera is Hispanic. The victims were white. During voir
dire, the prosecutor peremptorily challenged 75 percent of the
Hispanic-surnamed venirepersons.           By contrast, he
peremptorily challenged only 26 percent of the white, non-
Hispanic-surnamed venirepersons. At the time of Carrera’s
trial, People v. Wheeler, 22 Cal. 3d 258 (Cal. 1978), which
held the use of peremptory challenges to strike venirepersons
based solely on race to be a violation of the California
Constitution, had been the law in California for five years.
Batson v. Kentucky, 476 U.S. 79 (1986), had not yet been
decided. Carrera’s counsel did not object under Wheeler to
the prosecutor’s peremptory challenges.

   Carrera contends on habeas that his counsel’s failure to
make a Wheeler objection was ineffective assistance of
counsel under Strickland v. Washington, 466 U.S. 668 (1984).
4                      CARRERA V . AYERS

We affirm the district court’s denial of relief, holding that
Carrera has not satisfied the prejudice prong of Strickland.1

                          I. Background

     Carrera and another person were convicted in separate
trials in Kern County Superior Court in California for killing
a white couple during a robbery. See Carrera v. Ayers, No.
1:90-CV-00478-AWI, 2008 WL 681842, at *1 (E.D. Cal.
Mar. 11, 2008). The other person, then seventeen years old,
was statutorily ineligible for the death penalty and was
sentenced to fifty years to life. Id. at *2 n.3. Carrera, twenty
years old at the time of the crime, was convicted of first-
degree murder with special circumstances and was sentenced
to death.

    The California Supreme Court affirmed Carrera’s
conviction and death sentence on direct appeal. People v.
Carrera, 49 Cal. 3d 291 (1989). The court held that there had
been multiple errors at trial, including an instructional error
relating to Carrera’s intent to kill, but that the errors were all
harmless. See id. at 309–11. Carrera filed his federal habeas
petition in 1990, before the effective date of the Anti-
Terrorism and Effective Death Penalty Act (“AEDPA”). See
Robinson v. Schriro, 595 F.3d 1086, 1099 (9th Cir. 2010).

    The federal district court set aside Carrera’s death
sentence. The court found repeated instances of prosecutorial
misconduct during trial: The prosecutor failed to correct


  1
    W e address in this opinion only Carrera’s Wheeler-based Strickland
claim. W e address his other claims in an unpublished memorandum filed
simultaneously with this opinion.
                     CARRERA V . AYERS                         5

testimony he knew was perjurious; he concealed inducements
to two testifying jailhouse snitches; and he presented flatly
inconsistent factual narratives at the separate trials of Carrera
and his co-perpetrator. The court concluded that an intent-to-
kill instructional error was not harmless because its
application was tainted by prosecutorial misconduct.

   The district court subsequently denied Carrera’s guilt-
phase claims. One of those was a claim that his trial counsel
had provided ineffective assistance in failing to make a
Wheeler objection. Carrera appealed.

         II. Jurisdiction and Standard of Review

    We have appellate jurisdiction under 28 U.S.C. §§ 1291
and 2253. “We review the district court’s denial of
[Carrera’s] habeas petition de novo, and the district court’s
findings of fact for clear error.” Robinson, 595 F.3d at 1099.
Because Carrera filed his federal habeas petition before the
effective date of the AEDPA, we consider it under the pre-
AEDPA standard of review. Id. Ineffective assistance of
counsel claims present mixed questions of law and fact. Id.
“Under pre-AEDPA law, we owe no deference to the state
court’s resolution of questions of law or mixed questions of
law and fact.” Id. “We review the district court’s findings of
fact for clear error.” Id.

                       III. Discussion

                        A. Voir Dire

    Prior to voir dire, when the racial and ethnic composition
of the venire panel was still unknown, Carrera’s counsel
6                    CARRERA V . AYERS

moved to quash the venire on the ground that there were
insufficient procedures in place to ensure a panel that
reflected the ethnic and racial diversity of Kern County. See
People v. Buford, 182 Cal. Rptr. 904, 905 (Cal. Ct. App.
1982) (addressing a jury challenge “on the ground that blacks
were underrepresented on that jury and on other juries in [the]
County as a result of systematic exclusion in the jury-
selection process” (footnote omitted)). When the venire panel
was chosen, it turned out that between eleven and fourteen
members of the panel had Hispanic surnames, and at least
four members were black. Carrera’s counsel withdrew her
motion to quash.

    During voir dire, the prosecutor and Carrera’s defense
counsel both asked questions directed to ethnicity. The
prosecutor asked Hispanic-surnamed venirepersons if the fact
that the defendant was of “Spanish descent” would affect their
decision-making. Carrera’s counsel also asked questions
directed to ethnicity. For example, she asked venireperson
Martinez:

    If you were chosen as a juror in this case and you were
    the only one that had a Spanish surname sitting on the
    panel, would you feel that you would be under an
    undue hardship, so to speak, for want of a better word,
    feeling you would have to vote just as everyone else
    did simply because they might claim because you
    have got a Spanish surname maybe you were being
    more lenient or that sort of thing?

    The prosecutor exercised peremptory challenges to 75
percent of the venirepersons with Hispanic surnames. Of
eight prospective jurors with Hispanic surnames, the State
                     CARRERA V . AYERS                         7

exercised peremptory challenges to six; the other two were
seated on the jury. An additional person with a Hispanic
surname was seated as an alternate. By contrast, the
prosecutor exercised peremptory challenges against 26
percent (eleven of forty-one) white, non-Hispanic-surnamed
prospective jurors. Five years earlier, the California Supreme
Court had held that “the use of peremptory challenges to
remove prospective jurors on the sole ground of group bias
violates the right to trial by a jury drawn from a representative
cross-section of the community under article I, section 16, of
the California Constitution.” Wheeler, 22 Cal. 3d at 276–77.
 Carrera’s counsel made no objection under Wheeler to the
prosecutor’s use of peremptory challenges to Hispanic-
surnamed venirepersons.

       B. Ineffective Assistance of Counsel Claim

    Carrera contends that his trial counsel’s failure to make a
Wheeler objection was ineffective assistance of counsel in
violation of his Sixth Amendment right to counsel. To
establish ineffective assistance of counsel under Strickland,
a defendant must show both deficient performance and
prejudice. Because we conclude that Carrera has not carried
his burden of proof to show prejudice, we need not decide
whether he has shown deficient performance.

    “[A]ny deficiencies in counsel’s performance must be
prejudicial to the defense in order to constitute ineffective
assistance under the Constitution.” Strickland, 466 U.S. at
692. “The defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
8                    CARRERA V . AYERS

confidence in the outcome.” Id. at 694 (emphasis added).
The petitioner has “the burden of showing that the decision
reached would reasonably likely have been different absent
the errors.” Id. at 696.

    The first step in a Wheeler objection was to show a prima
facie case of unlawful discrimination. “If a party believes his
opponent is using his peremptory challenges to strike jurors
on the ground of group bias alone, he must raise the point in
timely fashion and make a prima facie case of such
discrimination to the satisfaction of the court.” Wheeler,
22 Cal. 3d at 280. A prima facie case under Wheeler had
three elements:

    First . . . [the party] should make as complete a record
    of the circumstances as is feasible. Second, he must
    establish that the persons excluded are members of a
    cognizable group within the meaning of the
    representative cross-section rule. Third, from all the
    circumstances of the case he must show a strong
    likelihood that such persons are being challenged
    because of their group association rather than because
    of any specific bias.

Id. (emphasis added) (footnote omitted). “If the court finds
that a prima facie case has been made, the burden shifts to the
other party to show if he can that the peremptory challenges
in question were not predicated on group bias alone.” Id. at
281 (footnote omitted).

    Because we are evaluating the likelihood of success of
Carrera’s hypothetical Wheeler objection in the context of an
ineffective assistance claim, he has the burden to show under
                    CARRERA V . AYERS                       9

Strickland a reasonable probability he would have prevailed
on a Wheeler claim. For the reasons that follow, we conclude
that he has not carried his burden under Strickland.

                   1. Prejudice at Trial

    The record shows that the prosecutor exercised
peremptory strikes against six venirepersons with Hispanic
surnames. Carrera concedes that one of the six — his
counsel’s mail carrier — was properly struck. The record
suggests obvious non-discriminatory reasons for four of the
five remaining strikes. One prospective juror, Petra Celedon,
appeared bitter about being called to jury service. A second
prospective juror, Alice Hernandez, worked at the juvenile
detention facility where Carrera’s co-defendant was held. A
third prospective juror, Maria Carrillo, had a son who had a
criminal record. A fourth prospective juror, Mary Garcia, told
the court at the beginning of her voir dire that she could not
impose the death penalty, though she later said that she could
do so.

    Only one of the prosecutor’s peremptory challenges was
problematic.       Prospective juror Lawrence Martinez
unequivocally expressed his ability to impose the death
penalty if, in his judgment, the circumstances warranted it.
When asked if he had “family . . . involved in any type of
charges or a trial,” Martinez responded that a friend had had
a drunk driving charge but mentioned no family members.
He had no connection to the victims, defendants, or witnesses.

    The record reveals no obvious non-discriminatory reason
to challenge Martinez. But Wheeler required a stronger
showing to establish a prima facie case. Not only were five
10                   CARRERA V . AYERS

of the six challenges to Hispanic-surnamed venirepersons
relatively unproblematic; further, two Hispanic-surnamed
persons were seated on the jury, and one Hispanic-surnamed
person was seated as an alternate. Two California Court of
Appeal cases, decided shortly after Carrera’s trial, highlight
how difficult it would have been for Carrera to establish a
prima facie case in these circumstances.

   In People v. Boyd, 212 Cal. Rptr. 873, 880–82 (Cal. Ct.
App. 1985), a Court of Appeal held that, despite the
prosecutor’s peremptory challenges to three black
venirepersons, no prima facie case had been established under
Wheeler because two black jurors were seated on the jury. In
People v. Davis, 234 Cal. Rptr. 859, 866 (Cal. Ct. App. 1987),
the prosecutor peremptorily challenged six black
venirepersons, but allowed three black jurors to be seated.
The court wrote:

     [T]he presence of two and then three members of the
     cognizable group in the jury box at all times afforded
     the defendant a representative cross-section of the
     community and afforded equal protection to all, the
     defendant, the prospective jurors excused and the
     community at large. There was no prima facie case of
     exclusion for group bias demonstrated at any time.

Id. at 869. The California Supreme Court overruled Boyd and
Davis, but not until four years after Carrera’s trial. See
People v. Snow, 44 Cal. 3d 216, 225–26 (1987).
                     CARRERA V . AYERS                        11

                   2. Prejudice on Appeal

    Carrera can also demonstrate prejudice by showing that a
Wheeler objection would have succeeded on direct appeal.
His counsel’s failure to make a Wheeler objection at trial was
a procedural default under state law that prevented him from
making a Wheeler challenge on appeal. See Carrera, 49 Cal.
3d at 331 n.29 (Cal. 1989) (noting “[t]he requirement that a
contemporaneous motion be made to object to a prosecutor’s
use of peremptory challenges to exclude prospective jurors of
one racial group”); Wheeler, 22 Cal. 3d at 284 n.32
(“[P]eremptories [were] not ‘open to examination’ unless and
until on a timely motion the trial court is satisfied there is a
prima facie showing that jurors are being challenged on the
sole ground of group bias.”).

    If Carrera’s counsel had made a Wheeler objection at trial,
that objection would have been preserved for appellate
review. In some circumstances, the failure to make an
objection results in an undeveloped record, such that it is
difficult or impossible to know what rulings would have
resulted on appeal had a proper record been developed. Here,
however, there is no such difficulty, for the record at trial was
sufficiently developed to permit a meaningful evaluation of a
prima facie case under Wheeler.

   We must determine whether Carrera was prejudiced on
appeal based on the law as it existed when his conviction
became final on direct appeal. His conviction became final
on April 23, 1990, when the United States Supreme Court
denied certiorari. See Carrera v. California, 495 U.S. 911
(1990).
12                   CARRERA V . AYERS

    While Carrera’s case was pending on appeal, there were
two significant changes in the law. First, in 1987 the
California Supreme Court overruled Boyd and Davis. The
court held in Snow that the presence of group members on a
jury does not, by itself, prevent a defendant from making a
prima facie case under Wheeler. It wrote, “[W]e disapprove
language in People v. Davis suggesting that the presence of
two or three Blacks in the jury box following voir dire
precludes the trial court from finding a prima facie case of
exclusion.” Snow, 44 Cal. 3d at 225–26 (citation omitted).
After Snow, California courts were required to review all the
circumstances surrounding voir dire to determine whether an
objecting party had established a prima facie case of
discrimination under Wheeler.

     In People v. Allen, 260 Cal. Rptr. 463, 469 (Cal. Ct. App.
1989), a Court of Appeal noted that “the exclusion of
disproportionate numbers of minority jurors per se” does not
automatically establish a prima facie case of discrimination
under Wheeler. “[T]he law is clear that a prima facie case of
group bias requiring prosecutorial explanation arises only if
from all the circumstances of the case the trial court finds a
strong likelihood that the persons were being challenged
because of their group association rather than specific bias.”
Id. (emphasis in original). Relevant circumstances included
the extent the prosecutor questioned the jurors struck on
peremptory challenges. People v. Trevino, 39 Cal. 3d 667,
688 (1985) (“The district attorney exercised peremptory
challenges to remove six Hispanics from the jury after asking
them few if any questions on voir dire.”), disapproved on
other grounds by People v. Johnson, 47 Cal. 3d 1194,
1219–20 (1989); People v. Allen, 23 Cal. 3d 286, 294 (1979)
(noting as one of four factors of defendant’s prima facie case
                     CARRERA V . AYERS                       13

“that the district attorney had excluded many black persons
after engaging in no more than desultory voir dire” (internal
quotation marks and citation omitted)); People v. Moss,
233 Cal. Rptr. 153, 157–58 (Cal. Ct. App. 1986) (“Although
the prosecutor questioned [one of the two black jurors]
extensively on voir dire . . . , he asked no questions at all of
[the other black juror].”). Other relevant circumstances
included the common characteristics other than race among
the venirepersons, see People v. Turner, 42 Cal. 3d 711, 719
(1986); Trevino, 39 Cal. 3d at 688; Allen, 23 Cal. 3d at
34–35; Moss, 233 Cal. Rptr. at 157–58, as well as indications
of specific bias apparent in the record, see, e.g., Turner,
42 Cal. 3d at 719–20; Allen, 152 Cal. Rptr. at 468–69.

    Second, in 1986 the United States Supreme Court held in
Batson v. Kentucky that racially discriminatory peremptory
challenges violate the Equal Protection Clause of the
Fourteenth Amendment. Batson applied retroactively to all
cases then pending on direct review. See Griffith v. Kentucky,
479 U.S. 314, 322–23 (1987). A prima facie case under
Wheeler required the objecting party to “show a strong
likelihood that such persons are being challenged because of
their group association rather than because of any specific
bias.” Wheeler, 22 Cal. 3d at 280 (emphasis added). A prima
facie case under Batson requires only that the objecting party
show “that the totality of the relevant facts gives rise to an
inference of discriminatory purpose.” Batson, 476 U.S. at
93–94 (emphasis added).

    In 2003, the California Supreme Court concluded that the
Wheeler and Batson standards for making out a prima facie
case were the same, and that Wheeler’s “strong likelihood of
discrimination” continued to be the governing standard. See
14                   CARRERA V . AYERS

People v. Johnson, 30 Cal. 4th 1302, 1313–14 (2003). Two
years later, the United States Supreme Court disagreed with
the California Supreme Court, holding that the Wheeler and
Batson standards are different, and that the less demanding
Batson standard controls. Johnson v. California, 545 U.S.
162 (2005).

    We must evaluate Carrera’s ineffective assistance claim
under the law the California Supreme Court would have
applied on direct appeal in 1990. When Carrera’s appeal was
decided, the United States Supreme Court’s decision in
Johnson was still fifteen years in the future. We therefore
apply Wheeler’s “strong likelihood” standard, rather than
Batson’s “raise an inference” standard, in determining
whether Carrera would have been able to establish a prima
facie case in the California Supreme Court on appeal.

    A California appellate court deciding a Wheeler objection
in 1990 would have examined the record not merely for
evidence of group bias but also for evidence of specific bias
against individual venirepersons. See, e.g., Turner, 42 Cal. 3d
at 719; Allen, 260 Cal. Rptr. at 468–69. Carrera argues that
the prosecutor’s six peremptory strikes of Hispanic-surnamed
venirepersons would have been enough to establish a prima
facie case of specific bias under Wheeler. We have already
summarized the evidence with respect to those strikes. We
conclude that the absence of an obvious non-discriminatory
reason with respect to one prospective juror out of six would
not have been enough to enable Carrera to establish a prima
facie case. Not only was the evidence of specific bias against
venireperson Martinez relatively weak; further two Hispanic-
surnamed venirepersons were seated on the jury and one was
seated as an alternate. In Snow, the California Supreme Court
                     CARRERA V . AYERS                       15

had held that the presence of group members on the jury was
not, by itself, sufficient to defeat a prima facie case of
discrimination under Wheeler, but their presence continued to
be relevant to a determination whether, under all the
circumstances, a prima facie case had been established.

    Carrera argues further that a prima facie case of group
bias can be shown “because the prosecutor questioned
minority jurors differently than white jurors . . . .” The
prosecutor engaged in far more than a “desultory voir dire”
with the struck jurors. Cf. Allen, 23 Cal. 3d at 294. It is true
that the prosecutor asked Hispanic-surnamed venirepersons
whether the fact that the defendant was “of Spanish descent”
would affect their deliberations, and that he did not ask
potential white jurors similar ethnicity-based questions.
However, asking questions about potential bias is the purpose
of voir dire. Indeed, as we noted above, Carrera’s counsel
also asked ethnicity-based questions of the Hispanic-
surnamed venirepersons.

    Were we reviewing the prosecutor’s actions in a different
procedural posture or under current law, we might well reach
a different conclusion. But evaluating an ineffective
assistance of counsel claim on the record before us, under
Wheeler as it was interpreted in 1990, we cannot say Carrera
has carried his burden of proof to show that he was prejudiced
by his counsel’s failure to object to the prosecutor’s
peremptory strikes. Carrera has not shown a “reasonable
probability” that on direct review, he would have succeeded
under Wheeler in showing “a strong likelihood” that
challenges to Hispanic-surnamed venirepersons were made
“because of their group association.”
16                       CARRERA V . AYERS

                             Conclusion

    Because Carrera is unable to establish that his trial
counsel’s failure to make a Wheeler motion was prejudicial,
he has not established an ineffective assistance of counsel
claim under Strickland. We therefore affirm the district court.

      AFFIRMED.

PREGERSON, Circuit Judge, dissenting:

   A fair trial requires the selection of a fair jury. That didn’t
happen in Constantino Carrera’s case because his defense
counsel was incompetent.

    Michael Vedrasco, the prosecutor in defendant Carrera’s
case, struck seventy-five percent of potential Hispanic jurors,
but only twenty-six percent of potential white jurors.
Carrera’s defense attorney, Donnalee Huffman,1 failed to
object. The majority concludes that attorney Huffman’s
failure to object to the prosecutor’s striking of prospective
Hispanic jurors did not amount to ineffective assistance of
counsel. I disagree.

    Both the United States Constitution and the California
Constitution guarantee a defendant in a criminal case a fair
and impartial jury. U.S. Const. amend. VI; Cal. Const., art. I,
§ 16. In People v. Wheeler, the California Supreme Court
established that racial bias in jury selection violates this
constitutional guarantee. People v. Wheeler, 583 P.2d 748,


 1
     Huffman used her married name, Mendez, during Carrera’s trial.
                     CARRERA V . AYERS                      17

755 (Cal. 1978). To support a Wheeler motion, the defense
attorney must “show a strong likelihood” that the prosecutor
struck prospective jurors because of their “group association.”
Id. at 764. Once the defense attorney presents such evidence,
“the court must determine whether a reasonable inference
arises that peremptory challenges are being used on the
ground of group bias alone.” Id. (emphasis added).

     The majority opinion only cites Wheeler’s “strong
likelihood” standard and ignores its “reasonable inference”
standard. See Maj. op. at 13. Under California’s evidence
laws, however, both standards mean a preponderance of the
evidence. Cal. Evid. Code § 115 (“Except as otherwise
provided by law, the burden of proof requires proof by a
preponderance of the evidence.”). While the majority opinion
distinguishes the Wheeler standard from Batson’s “inference”
standard, the California courts at the time of Carrera’s 1983
trial applied Wheeler’s “reasonable inference” standard even
though the Batson decision was years in the future. See
People v. Fuller, 186 Cal. Rptr. 283, 296 (Ct. App. 1982)
(“[A] fair reading of Wheeler requires only that the court find
a reasonable inference of group bias once an appropriate
foundation is laid.”).

    Furthermore, the California Supreme Court would have
been required to apply the Batson standard to Carrera’s 1989
appeal. The Supreme Court held in Batson v. Kentucky that
a defendant creates a prima facie case of unconstitutional jury
selection by raising an “inference of purposeful
discrimination.” Batson v. Kentucky, 476 U.S. 79, 94 (1986).
Because Carrera’s case was pending on direct review when
the Supreme Court decided Batson in 1986, Batson governed
Carrera’s case on appeal to the California Supreme Court.
18                   CARRERA V . AYERS

See Griffith v. Kentucky, 479 U.S. 314, 322–23 (1987). The
standard for showing a constitutional violation in Carrera’s
case cannot be stricter than what the Supreme Court mandated
in Batson v. Kentucky. See Cooper v. Aaron, 358 U.S. 1, 18
(1958) (“the federal judiciary is supreme in the exposition of
the law of the Constitution”).

    The Sixth Amendment guarantees defendants the effective
assistance of counsel. Strickland v. Washington, 466 U.S.
668, 685-86 (1984). If Carrera had received effective
assistance, there is a “reasonable probability” that he would
have succeeded in his Wheeler claim. See id. at 694. And
even if a Wheeler objection failed to persuade the trial judge,
the objection would have preserved the Wheeler motion so
that Carrera could have raised it on his direct appeal. Thus,
defense counsel’s incompetence deprived Carrera of his
opportunity to raise a Wheeler motion before the state trial
court and, because this was a death penalty case, on direct
appeal to the California Supreme Court. See Cal. R. Ct. 8.600
(“If a judgment imposes a sentence of death, an appeal by the
defendant is automatically taken to the [California] Supreme
Court.”).

    As a result of defense counsel’s incompetence and the
prejudice Carrera suffered, I would grant his request for
Habeas relief.

I. Carrera’s Attorney Fell Below an Objective Standard
   of Performance in Failing To Present a Wheeler
   Motion

   There are a number of reasons why defense counsel
Huffman may have failed to present a Wheeler motion. But
                     CARRERA V . AYERS                       19

none of these reasons was strategic and none was excusable.
For example, Huffman was defending Carrera against a
murder charge brought by the District Attorney’s office, while
also working with that same District Attorney’s office to
secure the conviction of her husband, who shot her in the arm
and told her that he “meant to kill” her. Huffman’s divided
loyalties may have dulled her vigorous representation of
Carrera.

    Or perhaps Huffman failed to make a Wheeler motion
because she was simply–and woefully–unprepared. Huffman
rushed to trial without an investigator because her investigator
had been her husband–until the time he tried to kill her. She
had no money to hire a new one because she faced bankruptcy
and was saddled with more than $100,000 in debt. So, she
cut corners. Unprepared and distracted, Huffman may not
have been aware that the prosecutor’s disproportionate strikes
of Hispanic jurors warranted an objection.

    We will never know why Huffman sat silently at counsel
table while the prosecutor struck six out of the eight
prospective Hispanic jurors, despite the fact that Wheeler had
been on the law books for five years. When asked in a
declaration prepared for Carrera’s direct appeal why she made
no Wheeler motion, Huffman said: “I don’t know why at this
time. No strategic reason.”

    But any competent attorney would have objected to the
prosecutor’s highly disproportionate peremptory challenges
of Hispanic jurors. When this case was on appeal to the
California Supreme Court, a defense attorney, Guyton
Jinkerson, who in the past had qualified as an expert on
ineffective assistance said as much in evaluating Huffman’s
20                  CARRERA V . AYERS

performance. Jinkerson declared in 1987 that Huffman’s
performance “fell below an objective standard of
reasonableness under the prevailing professional norms.” He
added that but for Huffman’s “unprofessional errors, the
result of the proceeding would have been different.”

    Indeed, I suggest that under the performance prong of
Strickland v. Washington, Huffman’s failure to raise a
Wheeler motion clearly “fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 688. Her silence
during these proceedings was not a “strateg[ic] choice . . .
within the range of professionally reasonable judgments.” Id.
at 699. Rather, it was ineffective performance. The majority
does not contest this point. Maj. op. at 7. Instead, the
majority opinion denies Carrera’s claim based on Strickland’s
prejudice prong, finding that Carrera’s Wheeler motion would
not have succeeded, had Huffman raised it.

II. Carrera Suffered Prejudice as a Result of his
    Attorney’s Failure to Make a Wheeler Motion

    To demonstrate Strickland prejudice, Carrera must show
that there is a “reasonable probability” that the outcome
would have been different but for his attorney’s error. See
Strickland, 466 U.S. at 694. We’ve interpreted “reasonable
probability” to mean “one sufficient to undermine confidence
in the outcome, but . . . less than the preponderance more-
likely-than-not standard.”         Lambright v. Schriro,
490 F.3d 1103, 1121 (9th Cir. 2007) (internal quotations
omitted).

   The majority holds that Carrera cannot show a reasonable
probability that he would have succeeded in challenging the
                     CARRERA V . AYERS                       21

striking of six of the eight Hispanic jurors. See Maj. op. at 9.
But Carrera’s evidence of unconstitutional racial bias matched
Wheeler’s examples of evidence that demonstrates prejudicial
jury selection. The prosecutor struck “most” of the Hispanic
jurors. See Wheeler, 583 P.2d at 764. He also “used a
disproportionate number of his peremptories against the
group” by directing thirty-five percent of his strikes against
Hispanics although they comprised only sixteen percent of the
jurors in the box. See id.

    Since no Wheeler challenge was actually made, it is hard
to know what explanation the prosecutor would have
provided for his strikes of Hispanic jurors. Nonetheless, the
majority offers a few “obvious” explanations from its reading
of the record. See Maj. op. at 9. Upon closer scrutiny,
however, these explanations are neither obvious nor
reasonable.

   A. The Record Does Not Show Legitimate, Non-
      Prejudicial Reasons for Striking the Hispanic
      Jurors

       1. Prospective Juror Lawrence Martinez

    The majority concedes that the peremptory strike of
Lawrence Martinez “was problematic.” See Maj. op. at 9.
Martinez “unequivocally expressed his ability to impose the
death penalty,” had no family members with any type of
criminal history, and had no connection to any of the parties
or witnesses in Carrera’s case. Maj. op. at 9. Striking
Martinez was improper. As California Justice Stanley Mosk
emphasized two years before he presided over Carrera’s
appeal, “[t]he exercise of one improper challenge is, of
22                   CARRERA V . AYERS

course, sufficient to establish a [Wheeler] violation.” People
v. Ledesma, 729 P.2d 839, 881 (Cal. 1987) (Mosk, J.,
concurring). Had defense counsel Huffman objected to
prosecutor Vedrasco’s improper strike of Martinez, that
objection alone could have established a Wheeler violation.

        2. Prospective Juror Petra Celedon

    The majority finds an “obvious” reason for striking Petra
Celedon. According to the majority, “prospective juror, Petra
Celedon, appeared bitter about being called to jury service.”
Maj. op. at 9. But as Celedon herself clarified, she was not
bitter about jury service. A special education teacher,
Celedon was sorry she was absent from school on the day she
reported for jury duty in particular. As she explained: “this is
a special day for [students] and some of them have been very
anxious because I am not going to be there today.”
Prospective jurors were told that the trial would not start until
the following week, after the end of the school year. Celedon
told the prosecutor that after school finished for the year, she
would have no problem serving as a fair juror. But while
Celedon’s school let out for the summer well before the start
of trial, the prosecutor nonetheless struck her, and the
majority sees no problem.

        3. Prospective Juror Alice Hernandez

    The majority finds an “obvious non-discriminatory”
reason for the prosecutor’s strike of Alice Hernandez: she
“worked at the juvenile detention facility where Carrera’s co-
defendant was held.” Maj. op. at 9. Under questioning by
Huffman, Hernandez stated that she worked in housekeeping,
did not know the co-defendant, and had never heard of the
                     CARRERA V . AYERS                      23

case. Furthermore, the prosecutor never asked Hernandez any
questions about her employment or whether her employment
had any impact on her ability to serve as an impartial juror.
This lack of follow-up questioning raises a red flag under
Green v. LaMarque, 532 F.3d 1028, 1033 (9th Cir. 2008),
which explained that if a prosecutor challenges a juror for a
factor on which he asked no questions, that lack of further
questioning tends to establish that the factor was pretextual.
Had the prosecutor given the same reason for striking
Hernandez as the majority advances, this court likely would
have found the reason to be pretext. Nevertheless, the
majority is somehow comfortable that Hernandez was struck
because she worked in housekeeping at the juvenile detention
center, not because she was Hispanic.

       4. Prospective Juror Maria Carrillo

    In the case of Maria Carrillo, the majority speculates that
the prosecutor struck her because she “had a son who had a
criminal record.” Maj. op. at 9. Again, this explanation is
less than satisfying in light of this case’s record. As a
teenager, Carrillo’s son was arrested once for stealing. The
arrest occurred fifteen years before Carrera’s trial. When the
prosecutor asked Carrillo whether she had any bad feelings
toward the court or the police, she answered no. The
majority’s justification is even less convincing because the
prosecutor did not exercise peremptory strikes against two
white jurors even though their sons had more serious criminal
records. Those records involved convictions for theft and
drug possession, and even prison time.

   The majority’s speculation, had it been offered by the
prosecutor, would have fallen under the Supreme Court’s
24                   CARRERA V . AYERS

definition of pretext. See Miller-El v. Dretke, 545 U.S. 231,
241 (2005) (“If a prosecutor’s proffered reason for striking a
[minority] panelist applies just as well to an otherwise-similar
[non-minority] who is permitted to serve, that is evidence
tending to prove purposeful discrimination”); see also Snyder
v. Louisiana, 552 U.S. 472, 483-84 (2008). This court found
pretext where a prosecutor claimed that he discharged a black
juror because her relative had a criminal history while he
seated white jurors whose relatives had equivalent criminal
histories. Green, 532 F.3d at 1033. The majority seeks to
justify the prosecutor’s exercise of a peremptory strike against
Carrillo stating reasons this court has rejected when offered
by a prosecutor. I cannot go along with that.

       5. Prospective Juror Mary Garcia

    The majority justifies the strike of Mary Garcia because,
the majority insists, Garcia “told the court at the beginning of
her voir dire that she could not impose the death penalty,
though she later said she could do so.” Maj. op. at 9. As the
majority opinion concedes, Garcia said that she could impose
the death penalty and that she would, in appropriate
circumstances. Asked by the court if she could “think of a
case where the crime for instance is so vicious that the death
penalty should be imposed,” Garcia said “yeah.” Asked
whether she could vote for the death penalty in such a case,
she said “yes.” Asked once more by the court whether she
opposed the death penalty, Garcia gave her final answer:
“no.” But, Thomas Yale, a white juror, also expressed
reservations about the death penalty. Nevertheless, the
prosecutor did not exercise a peremptory strike against Yale,
and he served as a juror.
                    CARRERA V . AYERS                      25

    In short, the record shows one peremptory strike against
a Hispanic juror that even the majority opinion concedes to be
“problematic” and four strikes of Hispanic jurors where there
is no plausible explanation other than racial prejudice. This
record cried out for Carrera’s counsel, Huffman, to make a
Wheeler objection. When Carrera’s case was on appeal to the
California Supreme Court, prosecutor Vedrasco filed an
affidavit that he “could have come up with specific reasons
justifying each of [his] challenges.” That statement is
unsupported by the record.

    Moreover, the prosecutor’s credibility is doubtful, given
his misconduct in prosecuting the case. This misconduct was
so severe that the U.S. District Court vacated Carrera’s death
sentence because the court determined that the prosecutor had
“elicited contradictory evidence,” “argued inconsistently” at
the separate trials of Carrera and the juvenile co-defendant,
and “concealed the fact of inducements to inmate witnesses.”
Carrera v. Ayers, No. 1:90-CV-00478-AWI, 2008 WL
681842, at *2 (E.D. Cal. Mar. 11, 2008). The question is not
whether “the prosecutor might have had good reasons to
strike the prospective jurors. What matters is the real reason
they were stricken.” Paulino v. Castro, 371 F.3d 1083, 1090
(9th Cir. 2004).

   B. The Fact that Two Hispanic Jurors Were Seated
      Does Not Undermine a Wheeler Claim.

    In attempting to demonstrate that Carrera cannot show a
“reasonable probability” of succeeding on his Wheeler claim,
the majority concludes that the Wheeler motion would have
likely failed under the law at the time because two Hispanic
jurors made it onto the jury. Maj. op. at 10. To support this
26                   CARRERA V . AYERS

claim, the majority relies on a pair of California appellate
court cases, People v. Boyd, 212 Cal. Rptr. 873, 880-82
(Ct. App. 1985) and People v. Davis, 234 Cal. Rptr. 859, 866
(Ct. App. 1987). But those cases were not on the books at the
time of Carrera’s 1983 trial. And in People v. Snow, the
California Supreme Court overruled both cases before
Carrera’s appeal, so they would never have governed
Carrera’s Wheeler motion. See People v. Snow, 746 P.2d 452,
457 (Cal. 1987) (“we disapprove language in People v. Davis
. . . suggesting that the presence of two or three Blacks in the
jury box following voir dire precludes the trial court from
finding a prima facie case of exclusion.”).

    People v. Snow explained that “the fact that the prosecutor
passed or accepted a jury containing two Black persons [does
not] end our [Wheeler] inquiry, for to so hold would provide
an easy means of justifying a pattern of unlawful
discrimination which stops only slightly short of total
exclusion.” Id. at 456-57 (internal quotations omitted). Just
as in Carrera’s case, the prosecutor in Snow struck six out of
eight minority jurors. Id. at 457. The defense attorney in
Snow objected to those disproportionate strikes despite the
prosecutor’s acceptance of two African-American jurors. In
Snow, the California Supreme Court held that the defense
attorney had successfully established a prima facie case for a
Wheeler motion, and thus reversed the conviction. Id. at 457-
58.

   Unlike the defense attorney in Snow, Carrera’s defense
counsel did not object to the disproportionate strikes of
minority jurors. Had she done so, the California Supreme
Court would have been guided by the decision it made three
years earlier in Snow, and it likely would have found that the
                     CARRERA V . AYERS                       27

two Hispanic people on Carrera’s jury did not negate the other
discriminatory peremptory juror strikes.

III.   Conclusion

    The Supreme Court has long held that a “fair trial in a fair
tribunal is a basic requirement of due process.” In re
Murchison, 349 U.S. 133, 136 (1955). Carrera did not receive
a fair trial because the prosecutor purposefully excluded
Hispanic jurors, and Carrera’s attorney did nothing to
challenge him. The majority does not dispute that Carrera’s
attorney erred, but it somehow finds that Carrera’s claim
would not have had a “reasonable probability” of succeeding.
The majority reaches that conclusion by misreading the record
and the law. I respectfully dissent.
