                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

CONSTANTINO CARRERA,                   
               Petitioner-Appellant,        No. 08-99007
                 v.                           D.C. No.
ROBERT L. AYERS, JR., Warden of           1:90-CV-00478-
the California State Prison at San              AWI
Quentin,                                      OPINION
              Respondent-Appellee.
                                       
      Appeal from the United States District Court
          for the Eastern District of California
     Anthony W. Ishii, Chief District Judge, Presiding

                  Argued and Submitted
         June 14, 2010—San Francisco, California

                   Filed October 4, 2011

Before: Diarmuid F. O’Scannlain, A. Wallace Tashima, and
             Carlos T. Bea, Circuit Judges.

                  Opinion by Judge Bea;
                 Dissent by Judge Tashima




                            18709
                      CARRERA v. AYERS                18713




                        COUNSEL

Stephen B. Bedrick, Law Office of Stephen B. Bedrick, Oak-
land, California, for the petitioner-appellant.

Edmund G. Brown, Attorney General of California, Michael
P. Farrell, Senior Assistant Attorney General, Harry Joseph
Colombo, Supervising Deputy Attorney General, and Clifford
E. Zall (argued), Deputy Attorney General, Sacramento, Cali-
fornia, for the respondent-appellee.


                        OPINION

BEA, Circuit Judge:

   We must today decide whether defense counsel’s failure in
1983 to object to a California prosecutor’s allegedly group
bias-based peremptory challenges constituted ineffective
assistance of counsel, which ineffectiveness now requires a
grant of federal habeas relief under the Sixth Amendment to
the U.S. Constitution.

  During the murder trial of Constantino Carrera, defense
18714                      CARRERA v. AYERS
counsel failed to object to the prosecutor’s use of peremptory
challenges to strike six Hispanic1 venirepersons. Carrera
appeals the district court’s denial of his petition for a writ of
habeas corpus based on defense counsel’s claimed ineffective
assistance of counsel.

  We affirm the district court’s denial of Carrera’s ineffective
assistance of counsel claim.2 Petitioner failed to present evi-
dence sufficient to overcome the strong presumption that
counsel’s performance was reasonable, as set out in Strick-
land v. Washington, 466 U.S. 668 (1984).3

                                     I

  Carrera, a Hispanic, was tried and convicted in 1983 for the
robbery and first degree murder of Jack and Carol Hayes,
managers of the Imperial 400 Motel in Mojave, California.
Carrera was sentenced to death. The death sentence has since
been invalidated.
  1
     The term “Hispanic” is used to mean persons whose birth surnames
derive from Spain, Portugal, or lands colonized by either. No particular
racial characteristics are implied by the term.
   2
     In a memorandum disposition filed concurrently with this opinion, we
affirm the denial of the remainder of Carrera’s claims.
   3
     The district court erred when it concluded Carrera failed to show there
was a “strong likelihood of discriminatory purpose,” citing two California
Court of Appeal cases which held that a Wheeler motion could not be suc-
cessful if the prosecutor left two or three members of the cognizable group
on the jury. See Carrera v. Ayers, 2008 WL 681842, at *26 (E.D. Cal.
2008) (citing People v. Davis, 234 Cal. Rptr. 859 (Ct. App. 1987); People
v. Boyd, 212 Cal. Rptr. 873 (Ct. App. 1985)). These cases were not
decided until two and four years after Carrera’s trial in 1983; the district
court should not have relied upon them. We must assess Carrera’s trial
counsel’s performance “as of the time of counsel’s conduct.” Strickland,
466 U.S. at 690. Nonetheless, “[w]e may affirm [the district court] on any
basis supported by the record even if the district court did not rely on that
basis.” United States v. Washington, 969 F.2d 752, 755 (9th Cir. 1992)
(internal quotation marks omitted). As shown below, we affirm on
grounds the proof submitted does not demonstrate Carrera’s defense coun-
sel rendered deficient performance.
                           CARRERA v. AYERS                         18715
   During jury selection, the prosecutor used peremptory chal-
lenges to strike six qualified4 Hispanic prospective jurors.
Two Hispanic jurors did sit on Carrera’s jury; an additional
Hispanic person served as an alternate juror. The prosecutor
struck eleven out of forty-one similarly qualified white, non-
Hispanic prospective jurors. The victims—the Hayes—were
White, non-Hispanics. Defense counsel did not object. The
Supreme Court of California affirmed Carrera’s conviction.
Carrera’s state habeas petitions were denied by the Supreme
Court of California without opinion.

   Carrera filed an initial petition for habeas corpus in federal
district court on July 31, 1990. The district court denied Carr-
era’s ineffective assistance of counsel claim in an order on
March 11, 2008.5

                                    II

   We have jurisdiction over this appeal pursuant to 28 U.S.C.
§§ 1291, 2253. This court reviews de novo a district court’s
decision to deny a petition for a writ of habeas corpus and
reviews for clear error a district court’s findings of fact. Rob-
inson v. Schriro, 595 F.3d 1086, 1099 (9th Cir. 2010).

  [1] The Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”) does not apply because Carrera filed his
federal habeas petition before AEDPA’s effective date; thus,
pre-AEDPA law applies. See id. Under pre-AEDPA law, this
court owes no deference to the state court’s resolution of
questions of law or mixed questions of law and fact. Id.
Whether counsel rendered ineffective assistance of counsel is
  4
   “Qualified” jurors are those jurors passed for cause.
  5
   The long delay was due, in part, to Carrera exhausting some habeas
corpus claims in state court. In 2004, the district court granted Carrera’s
motion for summary judgment on his claim that the jury’s special circum-
stance findings resulted in a violation of his due process rights—as a
result, Carrera became ineligible for the death penalty.
18716                     CARRERA v. AYERS
a mixed question of law and fact which we review de novo.
Id. However, a state court’s findings of fact are “entitled to a
presumption of correctness unless they are not fairly sup-
ported by the record.” Clark v. Brown, 450 F.3d 898, 904 (9th
Cir. 2006) (internal quotation marks and citation omitted).

                                   III

   The Sixth Amendment entitles criminal defendants to the
“effective assistance of counsel.” Strickland, 466 U.S. at 686
(internal quotation marks omitted). The Sixth Amendment’s
right to counsel has been incorporated into the Fourteenth
Amendment, so as to apply to the states. Gideon v. Wain-
wright, 372 U.S. 335, 342 (1963). To establish ineffective
assistance of counsel, a defendant must prove: (1) deficient
performance—that is, his counsel’s performance “fell below
an objective standard of reasonableness,” Strickland, 466 U.S.
at 687-88; and (2) prejudice—that is, “a reasonable probabil-
ity that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different,” id. at 694. “If we
conclude that the petitioner fails to satisfy one of the Strick-
land prongs, we need not address the other.” Stanley v.
Schriro, 598 F.3d 612, 619 (9th Cir. 2010) (citing Strickland,
466 U.S. at 697). Because Carrera failed to carry his burden
in proving his defense counsel’s performance was deficient,
we need not and do not address the prejudice prong.6

   [2] “Surmounting Strickland’s high bar is never an easy
task.” Padilla v. Kentucky, 130 S. Ct. 1473, 1485 (2010). To
prove deficient performance, a defendant must prove that his
counsel’s performance “fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 687-88. In evaluating
whether counsel’s performance was deficient, “[j]udicial scru-
tiny of counsel’s performance must be highly deferential.” Id.
at 689. The Court further stated:
  6
   Similarly, we need not and do not address the dissent’s contention that
prejudice must be presumed under Strickland when counsel’s alleged
errors result in a structural error.
                       CARRERA v. AYERS                   18717
    A fair assessment of attorney performance requires
    that every effort be made to eliminate the distorting
    effects of hindsight, to reconstruct the circumstances
    of counsel’s challenged conduct, and to evaluate the
    conduct from counsel’s perspective at the time.
    Because of the difficulties inherent in making the
    evaluation, a court must indulge a strong presump-
    tion that counsel’s conduct falls within the wide
    range of reasonable professional assistance; that is,
    the defendant must overcome the presumption that,
    under the circumstances, the challenged action
    “might be considered sound trial strategy.” See
    Michel v. Louisiana, [350 U.S. 91, 101 (1955)].
    There are countless ways to provide effective assis-
    tance in any given case. Even the best criminal
    defense attorneys would not defend a particular cli-
    ent in the same way.

Id. Thus, Strickland places the burden on the defendant to
overcome the “strong presumption” that counsel’s perfor-
mance was within the “wide range of reasonable professional
assistance” and might be considered “sound trial strategy.”

   [3] Carrera’s defense counsel’s performance must be
judged based on the law and prevailing legal standards as they
existed at his trial in 1983. Id. at 690 (“[A] court deciding an
actual ineffectiveness claim must judge the reasonableness of
counsel’s challenged conduct on the facts of the particular
case, viewed as of the time of counsel’s conduct.”). Batson v.
Kentucky, 476 U.S. 79 (1986), which held that the use of
peremptory challenges to exclude jurors based solely on their
race is a violation of the Equal Protection Clause of the Four-
teenth Amendment, was not decided until three years after
Carrera’s trial. Although Batson applies retroactively to cases
on direct review, Griffith v. Kentucky, 479 U.S. 314, 328
(1987), it does not apply retroactively on federal habeas
review, Allen v. Hardy, 478 U.S. 255, 260 (1986). Thus, Bat-
son is inapplicable for the purpose of determining whether
18718                     CARRERA v. AYERS
trial counsel’s performance in 1983 was deficient. Rather, the
relevant question here is whether in California7 in 1983 “[de-
fense] counsel’s representation fell below an objective stan-
dard of reasonableness” when she failed to make a Wheeler8
motion to discharge the venire because of the prosecutor’s
claimed group-based peremptory challenges. See Strickland,
466 U.S. at 688.

   [4] In People v. Wheeler, the Supreme Court of California
held that “the use of peremptory challenges to remove pro-
spective jurors on the sole ground of group bias violates the
right to trial by a jury drawn from a representative cross-
section of the community under . . . the California Constitu-
tion.” 583 P.2d 748, 761-62 (Cal. 1978). Under Wheeler,
courts begin with the presumption that “a party exercising a
peremptory challenge is doing so on a constitutionally permis-
sible ground.” Id. at 762. A party who believes “his opponent
is using his peremptory challenges to strike jurors on the
ground of group bias alone” must first “make a prima facie
case of such discrimination to the satisfaction of the court.”
Id. at 764. The challenging party “must establish that the per-
sons excluded are members of a cognizable group” and “show
a strong likelihood that such persons are being challenged
because of their group association rather than because of any
specific bias.” Id. “[T]he party may show that his opponent
has struck most or all of the members of the identified group
from the venire, or has used a disproportionate number of his
peremptories against the group.” Id. Also relevant are (1)
whether the defendant is a member of the excluded group, and
(2) whether the victim is a member of the group to which the
majority of the remaining jurors belong. Id. “If the court finds
  7
     The deficiency requirement as to counsel’s assistance, under Strick-
land, may be based on state law. See Valdovinos v. McGrath, 598 F.3d
568, 580 (9th Cir. 2010) (“Trial counsel’s failure to object to evidence
inadmissible under state law can constitute deficient performance under
Strickland.”).
   8
     People v. Wheeler, 583 P.2d 748 (Cal. 1978).
                          CARRERA v. AYERS                         18719
that a prima facie case has been made, the burden shifts to the
other party to show if he can that the peremptory challenges
in question were not predicated on group bias alone.” Id. at
764-65. “[T]he allegedly offending party must satisfy the
court that he exercised such peremptories on grounds that
were reasonably relevant to the particular case on trial or its
parties or witnesses . . . .” Id. at 765. “If the court finds that
the burden of justification is not sustained as to any of the
questioned peremptory challenges, the presumption of their
validity is rebutted.” Id. Thus, a different venire is drawn and
the jury selection process begins anew. Id.

                                   IV

   [5] Carrera contends his defense counsel was ineffective in
failing to make a Wheeler motion in response to the prosecu-
tor’s peremptory challenges against six potential Hispanic
jurors. Carrera must overcome the “strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged
action ‘might be considered sound trial strategy.’ ” Strickland,
466 U.S. at 689. We emphasize that the initial question is not
whether defense counsel would have succeeded had a Whee-
ler motion been made9—a reasonable attorney is not required
to make every potentially meritorious motion. Instead, the
question is whether reasonable counsel might10 have declined
to make a Wheeler motion under these circumstances. To this
question, we answer in the affirmative.

   Carrera has not carried his burden to prove defense coun-
sel’s performance was deficient. During state habeas proceed-
  9
   We need not, and therefore do not, decide whether a Wheeler motion
would have been successful.
  10
     Put another way, whether failure to make the Wheeler motion “might
be considered sound trial strategy,” Strickland, 466 U.S. at 689 (emphasis
added).
18720                      CARRERA v. AYERS
ings, defense counsel was asked: “Was there any strategic
reason why a Wheeler motion was not made as to any or all
of these seven prospective jurors [with Spanish surnames]?”11
In response, defense counsel’s declaration—executed over
four years after jury selection took place in Carrera’s trial—
stated: “I don’t know why at this time.”12 But, a review of the
voir dire transcript demonstrates that, as to five of the six
stricken Hispanic jurors, Carrera’s counsel had good reason
not to bring a Wheeler motion. Further, although the transcript
does not reveal a specific justification for striking the sixth
juror, it implies one; further, Carrera has failed to provide suf-
ficient evidence to overcome the strong presumption in favor
of counsel’s conduct being reasonable.13 Accordingly, Carrera
has not overcome the presumption that his counsel performed
competently.

1.        Juror Estrada

   Juror Estrada was defense counsel’s residential letter car-
rier. This personal acquaintance provided the prosecution with
a valid reason to challenge Estrada, and a Wheeler motion by
Carrera’s counsel would have been pointless. Defense coun-
sel’s second declaration on state habeas so establishes.
     11
      This question erroneously refers to seven, rather than six, prospective
Hispanic jurors. During voir dire, Juror Torres explained that she was
“white,” and that her surname was her husband’s last name. Thus, there
were only six Hispanics stricken by the prosecution.
   12
      During Carrera’s state habeas proceedings, nearly five years after jury
selection, the prosecutor submitted a declaration in which he stated he
could not remember the reasons for his peremptory challenges, but that he
was certain that he did not exercise the peremptory challenges based on
racial grounds.
   13
      Indeed, the district court reviewed the voir dire of each juror with a
Hispanic surname and concluded that reasons independent of group bias
supported each peremptory challenge. Carrera v. Ayers, No. 1:90-CV-
00478-AWI, 2008 WL 681842, at *11-19, *27-29 (E.D. Cal. March 11,
2008).
                           CARRERA v. AYERS                         18721
2.        Juror Garcia

   Garcia initially told the trial judge she could not vote for
the death penalty. This response provided the prosecution
with a valid reason to remove this juror in a possible death
penalty case; in California, the jury, not the judge, then and
now decides whether to impose the death penalty. A Wheeler
motion by defense counsel as to Garcia would have been
futile.

   In his comparative analysis,14 Carrera contends that Gar-
cia’s equivocal answer as to whether she could vote for the
death penalty was a pretext, as other non-Hispanic jurors gave
similarly equivocal answers but were not stricken. Thomas
Yale, Juror #9, was asked: “Could you consider the imposi-
tion of the death penalty?” Yale responded, “I believe I could,
sir, yes.” To the question “And do you believe in the death
penalty, sir?” he answered “I don’t like to take another life,
but I guess under certain circumstances it is probably justi-
fied.” Vincent Colaustro, an alternate juror, stated he was not
opposed to the death penalty philosophically. To the question
“Could you vote for [the death penalty]?” he responded, “That
is a tough question, a very tough question,” and a “tough deci-
sion.” When asked “Some murderers may warrant the death
penalty, don’t you think?” Colaustro answered “It is hard for
me to judge.” The prosecutor accepted both Yale and
Colaustro.

   Carrera contends the answers from Yale and Colaustro are
no less equivocal than Garcia’s, and thus any contention that
the prosecutor struck Garcia based on her equivocal answer
     14
    In his brief, Carrera performs a comparative analysis as to four of the
six stricken Hispanics in an effort to show the prosecution’s peremptory
challenges were based on group bias. A comparative analysis compares
the questions to, and answers from, similarly situated jurors in an effort
to uncover the actual motivations behind a peremptory challenge. See gen-
erally Miller-El v. Dretke, 545 U.S. 231 (2005).
18722                     CARRERA v. AYERS
was a pretext for group bias. This contention fails on the mer-
its. Garcia was asked whether she could vote for the death
penalty if she was “convinced that the death penalty should be
imposed,” and Garcia answered “No.” When asked whether
she could vote for the death penalty under any circumstances,
she answered “No, I don’t think so.” When the judge asked
whether Garcia could “think of a case where the crime for
instance is so vicious that the death penalty should be
imposed,” Garcia finally answered “Well, yeah, in that case,
yeah.”

   Garcia’s answers were more unfavorable to the prosecution
than either Yale’s or Colaustro’s answers. The prosecution
would want to remove any juror who was unsure as to the
death penalty; thus it was reasonable for defense counsel to
decline to make a futile Wheeler motion.

3.        Juror Celedon

   Celedon, like Garcia, expressed doubt about being able to
vote for the death penalty. To the question “[I]f after you have
heard everything you feel the death penalty is the proper pen-
alty, could you vote that way?” Celedon responded “I don’t
know.” Moreover, as noted by the district court, Celedon
seemed “bitter” about her presence on the venire, stating she
had her mind on her work with her special education students.
Doubt as to the use of the death penalty alone is sufficient to
support a peremptory challenge; an attitude resentful of jury
service also supports a peremptory challenge. Defense coun-
sel could reasonably have believed that a Wheeler motion
would fail.15
     15
     Celedon gave equivocal answers as to whether she could vote for the
death penalty, similar to the answers given by Colaustro—who was not
stricken by the prosecutor. Carrera performs no comparative analysis as to
Celedon. Moreover, Celedon’s answers during voir dire made it clear she
did not want to serve on Carrera’s jury. This is a significant distinction
which could cause the prosecutor to challenge Celedon over Colaustro.
                       CARRERA v. AYERS                    18723
4.   Juror Hernandez

   Hernandez expressed a strong view towards the death pen-
alty, responding explicitly and unequivocally that she
believed in the death penalty. Also, Hernandez worked for the
probation department. Thus, even if defense counsel subjec-
tively believed the prosecution’s peremptory challenge
against Hernandez was based on group bias, defense counsel
had good reason to allow a pro-death penalty juror to be
removed from the jury.

   In his comparative analysis as to Juror Hernandez, Carrera
does not actually compare Hernandez’s questions and answers
to any other juror. Instead, Carrera contends that Hernandez’s
role as a “group counselor housekeeper” in the Kern County
probation department was a pretext for striking Hernandez
based on her Hispanic surname. Even accepting this conten-
tion as true, and assuming defense counsel reasonably
believed Hernandez was stricken for discriminatory reasons,
this does not prove defense counsel performed deficiently in
not bringing a Wheeler motion. As Carrera himself recog-
nizes, Hernandez affirmatively declared her support for the
death penalty—defense counsel would be happy to see Her-
nandez go. Thus, Carrera has not carried his burden in prov-
ing that any reasonable criminal defense attorney would have
made a Wheeler motion under these circumstances.

5.   Juror Carrillo

   Carrillo, like Hernandez, expressed strong views in favor of
the use of the death penalty. Defense counsel would not be
sad to see Carrillo go, and thus was reasonable in not advanc-
ing a Wheeler motion.

   In his comparative juror analysis, Carrera notes that the dis-
trict court stated there were two potential group bias-neutral
reasons for challenging Carrillo: (1) the arrest of Carrillo’s
son at age 13-14, or (2) the prosecutor’s alleged doubts about
18724                  CARRERA v. AYERS
Carrillo’s ability to vote for the death penalty. Carrera con-
tends neither of these reasons could support a group bias-
neutral peremptory challenge.

   As to her son’s legal problems, Carrera accurately points to
two other non-Hispanic jurors whose children had a criminal
history, both of whom the prosecutor accepted. As to Carril-
lo’s supposed inability to vote for the death penalty, Carrera
contends “there was no evidence in the record to support”
Carrillo’s alleged opposition to the death penalty. But this
actually proves that defense counsel was not ineffective in
failing to raise a Wheeler motion. Even if defense counsel
believed the prosecutor’s peremptory challenge was based on
Carrillo being Hispanic, Carrera cannot show that counsel
acted incompetently by failing to raise a Wheeler motion in
response to a peremptory challenge of an unfavorable, pro-
death penalty juror.

6.   Juror Martinez

  The sixth stricken Hispanic juror, Martinez, did not say
anything particularly favorable to either the prosecution or the
defense. The district court found that Martinez’s disability,
and the 30-mile drive from his home to the courthouse, “could
give rise to concern over daily punctuality.”

   In his comparative analysis, Carrera contends these pur-
ported group bias-neutral reasons could not have formed the
basis of the prosecutor’s peremptory challenge. Although
Martinez was never questioned about the type of disability to
which he was subject, or how it would affect his potential ser-
vice as a juror, he did state that he had been a truck driver,
but had been disabled from that work since 1976—for 7 years
by the time of trial. Martinez’s commute from Delano to court
in Fresno was 30 miles. Another potential juror (Juror Allen)
had a longer commute than Martinez and said the commute
would “cause a problem,” whereas Martinez said his com-
mute would not be difficult. There was nothing to show Allen
                       CARRERA v. AYERS                   18725
was in any way disabled. Allen became a juror in Carrera’s
trial.

   Carrera contends that had a Wheeler motion been made,
this evidence would tend to suggest the prosecutor’s peremp-
tory was based on group bias. However, the question we face
is one step removed: Was defense counsel deficient to either
(1) believe a Wheeler motion would fail because the prosecu-
tor could come up with a race-neutral reason to challenge
Martinez, or (2) decide she was happy the prosecutor struck
Juror Martinez?

   Martinez presented with a combination of facts which
imply a race-neutral reason for the prosecutor to have excused
him. First, Martinez had a long-standing disability, of seven
years’ duration. Second, this disability had invalidated him
from his work—truck driving. Third, his commute from Del-
ano to the Fresno courthouse was 30 miles long. The descrip-
tion of this disability may have been obvious in the
courtroom, but was left undescribed in the record. One expla-
nation that comes to mind for the prosecutor’s decision to
excuse Martinez: the prosecutor wanted to ingratiate himself
with the remaining jurors by relieving the disabled Martinez
from sitting on a long jury trial.

   However, this does not end the inquiry. There are reasons
for striking a potential juror that would not show up in a trial
transcript. See, e.g., Rice v. Collins, 546 U.S. 333, 341 (2006)
(holding that “eye rolling” and “youthfulness” were permissi-
ble grounds for exercising a peremptory challenge). Any
number of reasons for striking Juror Martinez may have been
apparent to every person in the courtroom, yet unavailable to
one reading the transcript of voir dire. But it is Carrera who
has the burden of showing defense counsel was deficient in
failing to bring a Wheeler motion in response to the prosecu-
tor’s peremptories. On this record, Carrera has failed to carry
his burden.
18726                  CARRERA v. AYERS
   [6] Indeed, during state habeas proceedings, the prosecutor
declared there were race bias-neutral reasons for striking each
Hispanic juror. The prosecutor declared that, although, under-
standably, he could not remember nearly five years later his
reason for striking each juror he had “specific reasons justify-
ing each of [his] challenges not based on race.” The prosecu-
tor further declared:

    I believed the crimes Constantino Carrera committed
    were so brutal and senseless that any responsible
    juror would hold Carrera responsible if I proved my
    case. I thought responsible Hispanic jurors would be
    very good jurors, as they would not tolerate such
    lawless, senseless, brutal and vicious conduct and
    would be particularly interested in holding Carrera
    responsible for his actions.

Specifically, the prosecutor declared: “I know I didn’t kick off
any jurors just because they were Hispanic. Race was never
a cause for me to excuse any juror.” This declaration provides
some evidence of the fact that—although five years later he
could not detail them—the prosecutor had group bias-neutral
reasons for his exercising peremptory challenges against each
of the six Hispanic jurors, and therefore that defense counsel
was reasonable in not making a Wheeler motion.

   Further, this court’s jurisprudence demonstrates the high
level of deference given to counsel’s decisions during jury
selection. In United States v. Quintero-Barraza, 78 F.3d 1344
(9th Cir. 1995), Quintero-Barraza contended, on direct appeal,
that counsel was ineffective for failing to strike a potentially
biased juror. Id. at 1349. During voir dire in Quintero-
Barraza’s criminal trial, prospective juror David Miller, a
criminal justice student, stated his belief that one is guilty
until proven innocent. Id. He also stated that it would be “dif-
ficult” for him to be impartial. Id. Counsel did not strike Mil-
ler; instead, he expressed his admiration for Miller’s
                       CARRERA v. AYERS                    18727
truthfulness: “I was impressed with him. I thought he gave a
very candid answer.” Id. at 1349 & n.4. This court held:

    Counsel’s actions in this regard pose a more difficult
    question for this Court. It is manifest, however, that
    he was making a tactical decision in declining to
    strike Miller. Counsel appears to have concluded that
    because Miller was honest about his pretrial views,
    he would also honestly apply the law as outlined in
    the judge’s instructions. Under Strickland, our
    review of this tactical decision “must be highly def-
    erential,” and we must accord the decision “a strong
    presumption” of validity, regardless of whether we
    agree with it. We are not persuaded that appellant
    has overcome that strong presumption.

Id. (citation to Strickland omitted).

   In Fields v. Woodford, 309 F.3d 1095 (9th Cir. 2002),
Fields appealed the district court’s summary judgment of his
habeas petition. Id. at 1097-98. Fields contended “his counsel
rendered ineffective assistance by failing to conduct meaning-
ful voir dire, specifically, by failing to question at all [beyond
the questions asked by the court] six of the jurors who were
ultimately empaneled.” Id. at 1107. Fields further contended
that competent counsel, given potential juror Hillard’s equivo-
cal answer as to impartiality due to an assault against Hil-
lard’s wife, “would have questioned him further about the
incident, challenged him for cause, and if that challenge were
denied, exercised a peremptory challenge to remove him from
the jury.” Id. This court stated:

    Whether counsel was deficient is a close call. On the
    one hand, it is tough to imagine why he did not pur-
    sue what kind of assault Hilliard’s wife suffered,
    given that the non-capital charges against Fields
    included rape. On the other hand, it may be that he
    decided not to emphasize Fields’s behavior through
18728                  CARRERA v. AYERS
    additional questioning, or that counsel believed Hil-
    liard’s statement that he could base his decision
    strictly on the evidence despite his wife’s experi-
    ence. At oral argument the state suggested another
    possibility: that counsel may have wanted to keep
    Hilliard on the jury because he was African-
    American.

Id. at 1108. This court concluded it could “not say that failure
to inquire beyond the court’s voir dire was outside the range
of reasonable strategic choice.” Id.

   In Hovey v. Ayers, 458 F.3d 892 (9th Cir. 2006), Hovey
appealed the district court’s denial of his petition for a writ of
habeas corpus. Id. at 897. One of Hovey’s claims was that
counsel’s voir dire was so perfunctory that counsel failed to
protect Hovey’s rights to an impartial jury. Id. at 909. Specifi-
cally, Hovey contended that “counsel should have questioned
potential jurors on both the widespread pretrial publicity and
Hovey’s decision not to testify.” Id. at 910. This court
rejected the claim. Id. This court stated that “[t]he conduct of
voir dire ‘will in most instances involve the exercise of a
judgment which should be left to competent defense coun-
sel.’ ” Id. (quoting Gustave v. United States, 627 F.2d 901,
906 (9th Cir. 1980)). Counsel testified that he believed the
least voir dire to be the best tactic, explaining that he pre-
ferred to rely on “nonverbal communication.” Id. Thus, this
court held counsel’s performance was not deficient under Str-
ickland. Id.

   [7] Similarly here, Carrera has not overcome the strong
presumption that defense counsel’s decision not to challenge
the prosecutor’s peremptory challenges was strategic. There
are many reasons why an attorney may strike a juror. See,
e.g., Felkner v. Jackson, 562 U.S. ___ (2011) (per curiam)
(holding that perceived racial harassment by police and edu-
cational background were permissible grounds for exercising
peremptory challenges); Rice, 546 U.S. at 341 (holding that
                       CARRERA v. AYERS                   18729
“eye rolling” and “youthfulness” were permissible grounds
for exercising a peremptory challenge). Further, there are
many reasons why defense counsel may have supported the
removal of the Hispanics struck by the prosecutor. Indeed,
defense counsel may have been pleased with the resulting
jury, despite the fact that the prosecutor had removed several
Hispanic venirepersons. Moreover, when the prosecutor
peremptorily challenged each Hispanic, defense counsel may
have made a split-second decision that the challenge was on
a permissible, bias-neutral ground, and that a Wheeler motion
would therefore be futile. Carrera does not address these pos-
sibilities. The only evidence Carrera has proffered in support
of the assertion that defense counsel was ineffective in not
making a Wheeler motion is the declaration of an expert, who
was not present at voir dire to observe the demeanor or
appearance of the prospective jurors and did not even review
any part of the voir dire transcript. This court has previously
rejected similar (and stronger) evidence as unpersuasive. See
Paradis v. Arave, 954 F.2d 1483, 1491 (9th Cir. 1992) (reject-
ing an attorney’s testimony in support of habeas petitioner’s
ineffective assistance of counsel claim because the attorney
was not present to observe the demeanor of jurors and
reviewed voir dire of only the jurors ultimately empaneled),
rev’d on other grounds, 507 U.S. 1026 (1993).

   Judge Tashima, in dissent, contends that defense counsel’s
failure to make a Wheeler motion was deficient performance.
Respectfully, the dissent errs in three significant ways. First,
the dissent focuses on whether defense counsel could estab-
lish a prima facie case under Wheeler, while largely ignoring
Wheeler’s second step—the prosecutor’s opportunity to
respond with a group bias-neutral reason for exercising the
peremptory challenge. Even if we were to assume a prima
facie case could have been made, a group bias-neutral reason
for exercising a peremptory challenge would defeat a Wheeler
motion, and the presence of such a reason could cause a rea-
sonable defense attorney under the circumstances to decline
18730                       CARRERA v. AYERS
to make a Wheeler motion.16 The group bias-neutral reasons
defense counsel could have anticipated would be forthcoming
are set forth above as to each venireperson struck.

   Second, the dissent employs the “smell test” summarily to
conclude that “a reasonable attorney in the same circum-
stances would have objected.” Dissent at 18738. However, it
is not clear why this is so. To the extent the dissent concludes
a reasonable attorney should have made a Wheeler motion
based solely on the percentage of each race that was chal-
lenged by the prosecutor, this ironically reinforces the very
racial stereotypes that Wheeler and Batson were meant to pre-
vent. See Batson, 476 U.S. at 89 (“[T]he Equal Protection
Clause forbids the prosecutor to challenge potential jurors
solely on account of their race or on the assumption that black
jurors as a group will be unable impartially to consider the
State’s case against a black defendant.”); see also Powers v.
Ohio, 499 U.S. 400, 410 (1991) (“A person’s race simply is
unrelated to his fitness as a juror. We may not accept as a
defense to racial discrimination the very stereotype the law
condemns.” (internal quotation marks and citation omitted)).

   [8] Further, the dissent brushes aside as irrelevant the pos-
sibility that defense counsel was pleased with the resulting
jury.17 It also mistakes the role of defense counsel. Defense
  16
      The dissent points out that the prosecutor failed—almost five years
after jury selection—to remember the reasons he struck the Hispanic
jurors in this case. Dissent at 18734 n.2. Contrary to the dissent’s conten-
tion, however, the prosecutor’s failure to remember does not mean that no
group bias-neutral reasons existed. Indeed, the prosecutor declared under
penalty of perjury that he had group bias-neutral reasons at the time, and
could have explained them had a Wheeler motion been made. See supra
page 18726.
   17
      The dissent ignores the record to conclude that “trial counsel’s failure
to make a Wheeler motion was not based on trial strategy.” Dissent at
18737. During state habeas proceedings, defense counsel testified she did
not know why she failed to make a Wheeler motion “at this time”—that
is, at the time of her declaration over four years after jury selection. This
implies that there was a reason defense counsel did not make a Wheeler
motion, but that she could not remember it due to the passage of time.
                       CARRERA v. AYERS                    18731
counsel’s duty is to represent her client with zeal and vigor in
an effort to acquit her client of the charged counts. It is not
deficient performance to decline to move to strike a jury that
defense counsel believes gives her client the best chances of
being acquitted—even if defense counsel is convinced the
prosecutor exercised his peremptory challenges in an imper-
missible manner. As discussed in depth above, a potential
juror who is in favor of the death penalty is a bad juror for a
death-penalty-eligible defendant, even if the defendant and
that juror happen both to be Hispanic. Thus, defense counsel
would be reasonable in failing to make a Wheeler motion, and
to require counsel to object to the jury under these circum-
stances would be to require counsel to put the interests of her
client second. This we cannot hold.

   [9] Lastly, the dissent is misguided in concluding that
under these circumstances, a reasonable attorney would have
at least “developed the record.” Dissent at 18738. This phrase,
“develop a record,” is often found in proceedings such as
habeas corpus hearings or civil depositions, where evidence
can be introduced by question and answer. This phrase sounds
as if it is something every reasonably proficient attorney can
and should do, but the dissent overlooks one thing: the only
way to “develop a record” as to group or race bias in jury
selection is to make a Wheeler motion. This forces the prose-
cutor to justify the peremptory challenge, and if the prosecu-
tor fails to provide a reasonable group bias-neutral
justification, the whole jury is replaced. Wheeler, 583 P.2d at
765 (holding that the remedy for a successful Wheeler motion
is that “a different venire shall be drawn and the jury selection
process may begin anew”). Thus, to “develop a record,”
defense counsel would have to risk losing a jury from which
several pro-death penalty jurors had been stricken. If a new
panel resulted in seating more pro-death penalty jurors, would
the dissent be prepared to hold the Wheeler/Batson challenge
was ineffective assistance of counsel? To incur the risk of los-
ing a fairly good jury would not seem to be “reasonable repre-
sentation,” and surely is not required under Strickland.
18732                  CARRERA v. AYERS
                               V

   [10] At the end of the day, this case comes down to Carr-
era’s failure to carry his burden of proof so as to overcome the
presumption this court has cited. Strickland requires that the
panel “indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assis-
tance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’ ” Strickland, 466 U.S. at 689.
Not “must,” not “would,” but “might.” Based on the tactical
nature of jury selection, the presence of some reasons for not
bringing Wheeler motions to challenge the prosecutor’s
peremptory challenges of these specific jurors, and the dearth
of evidence Carrera provided to overcome the strong pre-
sumption in favor of defense counsel’s reasonableness—
Carrera presented only a deposition from an expert who nei-
ther witnessed voir dire to observe the demeanor of the attor-
neys and jurors involved, nor even reviewed any part of the
voir dire transcript—Carrera’s Strickland claim must be
denied.

  AFFIRMED.



TASHIMA, Circuit Judge, dissenting:

   Constantino Carrera, who is Hispanic, was tried and con-
victed in 1983 of the double murder of a white couple in Kern
County, California. In the course of jury selection, the prose-
cutor exercised the State’s peremptory challenges against six
of eight Hispanic venire persons. Although People v. Whee-
ler, 583 P.2d 748 (Cal. 1978), had been the law in California
for five years, defense counsel did not raise a Wheeler chal-
lenge against the prosecution’s highly disproportionate use of
its peremptory challenges to excuse 75 percent of Hispanic
venire persons who were called. Because, in failing to object
                            CARRERA v. AYERS                          18733
and failing to develop the record, Carrera’s trial counsel
ignored an obvious prima facie case that the prosecutor was
using his peremptory challenges disproportionately to strike
Hispanic jurors in violation of Wheeler, I respectfully dissent
from the majority’s denial of the writ.1 Because this deficient
performance resulted in a structural error, prejudice must be
presumed. Accordingly, I would grant Carrera habeas relief.

                                      I

   Carrera has overcome the “strong presumption” that his
trial counsel’s failure to object was “sound trial strategy.”
Strickland v. Washington, 466 U.S. 668, 689 (1984). Trial
counsel could not offer any reason or explanation for her fail-
ure to make a Wheeler challenge. In these circumstances, Car-
rera has established that his trial counsel failed properly to
develop the record and to object where there was an obvious
prima facie case of the biased use of peremptory challenges.
This was not “sound trial strategy” — insofar as the record
shows, it was no strategy at all — nor does it fall within the
“wide range of reasonable professional assistance.” Id.
   1
     Although the district court conducted a careful review of the voir dire
of the eight Hispanic jurors, as the majority recognizes, Maj. Op. at 18714
n.3, the district court erred in its Wheeler analysis. The district court con-
cluded that Carrera failed to show that there was a “strong likelihood of
discriminatory purpose,” citing two California Court of Appeal cases
which held that a Wheeler motion could not be successful if the prosecutor
left two or three members of the cognizable group on the jury. See Carr-
era v. Ayers, 2008 WL 681842, at *26 (E.D. Cal. 2008) (citing People v.
Davis, 234 Cal. Rptr. 859 (Ct. App. 1987); People v. Boyd, 212 Cal. Rptr.
873 (Ct. App. 1985)). But these cases were not decided until two and four
years after Carrera’s trial in 1983, so they could not have been the law in
California at the time of Carrera’s trial. Moreover, these cases were
quickly overruled by the California Supreme Court. See People v. Snow,
746 P.2d 452 (Cal. 1987). Thus, although the district court acknowledged
that, under Strickland, it was required to assess Carrera’s trial counsel’s
“performance in the context of what the applicable law was at the time of
Carrera’s trial,” it nevertheless erred by evaluating counsel’s effectiveness
on the basis of case law that was not the law of California at the time of
Carrera’s trial.
18734                       CARRERA v. AYERS
   Under Wheeler, a party may establish a prima facie case of
the discriminatory use of peremptory challenges by “show-
[ing] that his opponent has struck most or all of the members
of the identified group from the venire, or has used a dispro-
portionate number of his peremptories against the group.” 583
P.2d at 764. This statistical evidence is bolstered if, as is the
case here: (1) the defendant is a member of the excluded
group; and (2) the victim is a member of the group to which
the majority of remaining jurors belong. Id.

   Had she objected, Carrera’s trial counsel clearly could have
made a prima facie case that the prosecutor used his peremp-
tory challenges to eliminate “members of a cognizable
group”: Hispanics. The prosecution used its peremptory chal-
lenges to strike 75 percent of potential Hispanic jurors and
only 27 percent of the potential non-Hispanic white jurors.
Carrera is Hispanic. The victims were white. This is a prima
facie case of bias under Wheeler.

   Was the fairness of Carrera’s trial compromised because
the prosecutor used his peremptory challenges to strike most
of the Hispanic potential jurors on the basis of group bias? Of
course, we will never know the answer. Because Carrera’s
trial counsel failed to object, the prosecutor never had to jus-
tify his peremptory challenges.2 Indeed, Carrera’s counsel
failed even to make a record, so there is little to indicate what
the prosecutor’s “group bias”-neutral reasons may have been,
if any, for striking the potential Hispanic jurors.3 This is not
  2
     Tellingly, when asked in post-trial proceedings, the prosecutor could
not recall his reasons for striking five of the six potential Hispanic jurors,
although he denied that his actions were racially motivated. This gives rise
to a reasonable inference that there was no apparent reason, other than
group bias, to challenge them.
   3
     Trial counsel’s failure even to make a record on the dismissal of the
potential Hispanic jurors, particularly potential juror Martinez, was defi-
cient performance. See Wheeler, 583 P.2d at 764 (explaining that a party
who suspects his opponent is striking potential jurors based on group bias
“should make as complete a record of the circumstances as is feasible”).
                           CARRERA v. AYERS                         18735
the sort of small, inevitable trial error which led the Supreme
Court to observe, “A defendant is entitled to a fair trial but not
a perfect one.” Lutwak v. United States, 344 U.S. 604, 619
(1953). Rather, it is the kind of fundamental error that calls
into question the basic fairness of the trial mechanism itself.
It cannot, and should not, be explained away by speculation
on what possible reasons might have motivated either the
prosecutor or defense counsel.

   In the absence of any record evidence to support its posi-
tion, the majority searches for snippets in the voir dire tran-
script to justify that which, prima facie, appears motivated by
bias. “But it does not matter that the prosecutor might have
had good reasons to strike the prospective jurors. What mat-
ters is the real reason they were stricken.” Paulino v. Castro,
371 F.3d 1083, 1090 (9th Cir. 2004).4 The majority engages
in exactly the kind of “judicial speculation” of which the
Supreme Court expressly disapproves. See Johnson v. Cali-
fornia, 545 U.S. 162, 173 (2005) (criticizing “the imprecision
of relying on judicial speculation to resolve plausible claims
of discrimination”). The majority fails to explain why it is
appropriate, on habeas review, to do exactly what trial courts
have been instructed they absolutely may not do: speculate
about the prosecutor’s reasons for striking potential jurors
who belong to a cognizable group.5

   Critically, Wheeler does not require the removal of a spe-
cific number or percentage of the targeted group in order to
establish a prima facie violation. See 583 P.2d at 764
(explaining that a party can make a prima facie case by
  4
   As the majority notes, Maj. Op. at 18715, this is a pre-AEDPA case.
  5
   This differs from the legitimate use of comparative juror analysis,
which takes place at the third step of a Wheeler or Batson challenge, after
the prosecution proffers bias-neutral reasons for striking members of a
cognizable group. See Lewis v. Lewis, 321 F.3d 824, 830-31 (9th Cir.
2003) (explaining that the court may review the voir dire record to deter-
mine whether the prosecutor’s proffered reasons are credible or pretex-
tual); Wheeler, 583 P.2d at 765.
18736                 CARRERA v. AYERS
“show[ing] that his opponent has struck most or all of the
members of the identified group from the venire”) (emphasis
added). A violation occurs, and a new jury must be drawn, if
even a single peremptory was based on group-bias. See id. at
765. As the California Supreme Court stated:

    If the court finds that the burden of justification is
    not sustained as to any of the questioned peremptory
    challenges, the presumption of their validity is rebut-
    ted. Accordingly, the court must then conclude that
    the jury as constituted fails to comply with the repre-
    sentative cross-section requirement, and it must dis-
    miss the jurors thus far selected. So too it must quash
    any remaining venire, since the complaining party is
    entitled to a random draw from an entire venire —
    not one that has been partially or totally stripped of
    members of a cognizable group by the improper use
    of peremptory challenges. Upon such dismissal a dif-
    ferent venire shall be drawn and the jury selection
    process may begin anew.

Id. (emphases added). Accordingly, the absence of a “group
bias”-neutral reason for striking even one potential juror con-
stitutes a Wheeler violation.

   The record does not support the majority’s conclusion that
there were reasons neutral of “group bias” to strike all six of
the Hispanic potential jurors, and that such reasons were so
obvious or apparent as to excuse trial counsel from making a
Wheeler motion. The majority admits that, even under its
speculative review of the record, there was no obvious reason
for striking potential juror Martinez. When one compares the
voir dire responses of Martinez (who was struck) and Allen
(a non-Hispanic white juror who was not struck), no obvious,
permissible reason emerges for striking one and not the other,
both of whom lived at least thirty miles from the courthouse.
                           CARRERA v. AYERS                          18737
   The majority speculates that Martinez was excused because
he was disabled, even while admitting that the record does not
disclose what his disability was. Maj. Op. at 18725. The
majority so speculates in spite of the fact that Martinez was
qualified to serve.6 See Maj. Op. at 18715 & n.4.

   Indeed, a closer look at the voir dire of Allen reveals the
folly of the majority’s approach of parsing the record to con-
struct hypothetical reasons for dismissing or not dismissing
potential jurors. Asked whether he was familiar with the case,
Allen stated that he “heard it in the newspapers” and he had
co-workers who lived at the Imperial Motel where the mur-
ders took place. If Mr. Allen had instead been “Mr. Allende,”
and subject to a peremptory challenge by the prosecution, the
majority would have concluded that the dismissal was “group
bias”-neutral because the potential juror was familiar with the
case and the scene of the crime.

   Importantly, trial counsel’s failure to make a Wheeler
motion was not based on trial strategy. See Strickland, 466
U.S. at 689. During state habeas proceedings, Carrera’s trial
counsel testified that she did not know why she failed to make
a Wheeler motion during voir dire. Indeed, she has never
articulated a strategic reason for failing to make a Wheeler
motion.

   Of course, trial counsel’s utter failure to present a reason-
able explanation for her failure to object would be of no
moment if it fell “within the range of reasonable representa-
tion.” See Morris v. California, 966 F.2d 448, 456 (9th Cir.
  6
    There is no end to the majority’s speculation. Its own speculation
would have the prosecutor use his peremptory strikes in a manner contrary
to law: “[T]he prosecutor wanted to ingratiate himself with the remaining
jurors by relieving the disabled Martinez from sitting on a long jury trial.”
Maj. Op. at 18725. But it has been well-established for many years that
the law forbids discriminating against the disabled in jury service. See,
e.g., Greater L.A. Council on Deafness, Inc. v. Zolin, 812 F.2d 1103 (9th
Cir. 1985).
18738                      CARRERA v. AYERS
1991) (relying on defense counsel’s explanation that his deci-
sion not to call a certain witness “was a tactical one,” made
to avoid linking the defendant “to prior involvement with
cocaine”). It does not. In spite of the majority’s hypothetical
musings, no professional strategic decision can be discerned
for trial counsel’s failure to object to the disproportionate
striking of Hispanic potential jurors. It is telling that the State
does not even attempt to find “group bias”-neutral reasons in
the record, and the majority’s concluding speculation is only
that Carrera’s “counsel may have been pleased with the
resulting jury.” Maj. Op. at 18729. See also Maj. Op. at 18730
(stating the “possibility that defense counsel was pleased with
the resulting jury”).

   Given that the defendant was Hispanic and the victims
were white, Carrera’s lawyer should have picked up on the
prosecutor’s apparent attempt to skew the jury. It does not
take an expert to conclude that something is fishy — it simply
does not pass the smell test — when a prosecutor strikes 75
percent of Hispanics on a jury and only 27 percent of non-
Hispanic whites. The majority speculates that “defense coun-
sel may have been pleased with the resulting jury, despite the
fact that the prosecutor had removed several Hispanic
venirepersons.” Maj. Op. at 18729. She may have been
“pleased” (although the majority does not say why she, or any
reasonable attorney, would have been), but that is not the
question. The question is whether a reasonable attorney in the
same circumstances would have objected. Any reasonable
attorney would have done so. At the very least, a reasonable
attorney would have developed the record. Accordingly, the
failure to bring a Wheeler motion constituted deficient perfor-
mance.7
  7
   The majority cites three completely inapposite cases in an attempt to
bolster its conclusion that Carrera’s trial counsel’s performance was not
deficient. None of these cases deals with a defense attorney’s failure to
monitor the prosecutor’s voir dire for signs of group bias. Rather, each of
the cases cited by the majority deals with ineffective assistance of counsel
                            CARRERA v. AYERS                            18739
                                      II

   We have held that the discriminatory use of peremptory
challenges, known in federal law as Batson error,8 is a struc-
tural error, rather than trial error, that requires reversal. E.g.,
Kesser v. Cambra, 465 F.3d 351 (9th Cir. 2006) (en banc).
The discriminatory use of peremptory challenges is not

claims premised on the defense attorney’s failure to challenge a single,
possibly biased juror or to ask more questions during voir dire. First, the
majority relies on United States v. Quintero-Barraza, 78 F.3d 1344 (9th
Cir. 1995), for the proposition that this court defers to counsel’s decisions
during jury selection. Maj. Op. at 18726-27. In fact, we held that we must
be “highly deferential” where trial counsel makes a tactical decision in
jury selection whether to challenge a potential juror on the ground of bias.
78 F.3d at 1349. We therefore rejected Quintero-Barraza’s ineffective
assistance of counsel claim premised on defense counsel’s failure to strike
a single juror where counsel explained that he considered the juror to be
honest and impressive, notwithstanding the juror’s statement that he would
find it difficult to be impartial. Id. Second, the majority cites Fields v.
Woodford, 309 F.3d 1095 (9th Cir. 2002). Maj. Op. at 18727-28. Fields
was decided on the ground of absence of prejudice. Id. at 1107-08
(remanding for findings on the possible bias of a single juror but declining
to conclude that the defendant’s counsel was ineffective for failing to
question other jurors who did not appear possibly biased on the record,
and so could not have prejudiced the result). Finally, the majority relies
on Hovey v. Ayers, 458 F.3d 892 (9th Cir. 2006), see Maj. Op. at 18728,
in which we held that defense counsel was not deficient where his limited
questioning during voir dire was reasonably explained as a tactical deci-
sion to not remind the jurors of publicity the case had received four years
before the trial. Id. at 910.
   Here, Carrera does not question how his trial counsel exercised her own
peremptory challenges or her questioning of potential jurors. Instead, he
challenges his trial counsel’s utter failure to object to the facially discrimi-
natory manner in which the prosecutor exercised his peremptory chal-
lenges. Most importantly, unlike the cases relied on by the majority, there
is no evidence in the record that Carrera’s trial counsel had any tactical
reason for her failure to act in the face of a prima facie case of group bias.
We cannot be “highly deferential” to a tactical decision that does not exist
in the record and, indeed, one trial counsel herself admits she never made.
   8
     See Batson v. Kentucky, 476 U.S. 79 (1986).
18740                  CARRERA v. AYERS
merely a trial error which can be weighed in the context of
other admitted evidence; it is a defect in the trial mechanism.
Thus, I would hold that Wheeler error, like Batson error, is
structural error, and prejudice must be presumed. See Arizona
v. Fulminante, 499 U.S. 279, 309-10 (1991) (explaining that
unlike a trial error, structural errors require reversal because
they “affect[ ] the framework within which the trial proceeds,
rather than simply an error in the trial process itself”).

   Where ineffective assistance of counsel results in a struc-
tural error, prejudice must be presumed. See Owens v. United
States, 483 F.3d 48, 64 n.14 (1st Cir. 2007) (presuming preju-
dice where ineffective assistance of counsel led to a closed
trial, explaining that “prejudice is presumed in cases of struc-
tural error not because the risk of prejudice is high, but
because it is impossible to determine the extent of the preju-
dice”); see also McGurk v. Stenberg, 163 F.3d 470, 475 (8th
Cir. 1998) (“[W]hen counsel’s deficient performance causes
a structural error, we will presume prejudice under Strick-
land.”); Gov’t of Virgin Islands v. Forte, 865 F.2d 59, 63-64
(3d Cir. 1989). These cases recognize that structural error
exists because, in certain cases, prejudice is impossible to
quantify. It hardly makes sense to require a petitioner “to do
what the Supreme Court has said is impossible.” Owens, 483
F.3d at 65.

   This is particularly true with respect to a Wheeler or Batson
error. See Powers v. Ohio, 499 U.S. 400, 412 (1991) (“Active
discrimination by a prosecutor during [jury selection] con-
dones violations of the United States Constitution within the
very institution entrusted with its enforcement, and so invites
cynicism respecting the jury’s neutrality and its obligation to
adhere to the law.”). The Supreme Court further stated:

    A prosecutor’s wrongful exclusion of a juror by a
    race-based peremptory challenge is a constitutional
    violation committed in open court at the outset of the
    proceedings. The overt wrong, often apparent to the
                       CARRERA v. AYERS                   18741
    entire jury panel, casts doubt over the obligation of
    the parties, the jury, and indeed the court to adhere
    to the law throughout the trial of the cause. The voir
    dire phase of the trial represents the jurors’ first
    introduction to the substantive factual and legal
    issues in a case. The influence of the voir dire pro-
    cess may persist through the whole course of the trial
    proceedings.

Id. (internal quotation marks and citation omitted).

   To show actual prejudice, the petitioner would be required
to put forth evidence as to whether there was a reasonable
probability that a jury with a different racial composition
would have reached a different verdict. See Strickland, 466
U.S. at 694. But the “consequences [of a structural error] . . .
are necessarily unquantifiable and indeterminate,” which
would place an impossible burden on the petitioner. Sullivan
v. Louisiana, 508 U.S. 275, 282 (1993). Requiring a petitioner
to prove prejudice in such a situation would prevent structural
errors, the most serious type of error, from forming the basis
of an ineffective assistance of counsel claim. Thus, I would
hold that prejudice must be presumed from defense counsel’s
failure to make a Wheeler motion in response to the State’s
discriminatory use of peremptory challenges.

                              III

   Because I would grant a conditional writ of habeas corpus
requiring a new trial with a Wheeler (and Batson) compliant
jury, I respectfully dissent.
