                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


HECTOR JUAN AYALA,                   No. 09-99005
      Petitioner-Appellant,
                                       D.C. No.
            v.                  3:01-CV-01322-IEG-PLC

ROBERT K. WONG, Warden,
     Respondent-Appellee.              OPINION


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

                Argued and Submitted
        February 9, 2012—Pasadena, California

                 Filed September 13, 2013

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

             Opinion by Judge Reinhardt;
             Dissent by Judge Callahan
2                        AYALA V. WONG

                           SUMMARY*


                Habeas Corpus/Death Penalty

    The panel withdrew its opinion filed on August 29, 2012,
and reported at 693 F.3d 945, denied a petition for rehearing
and rehearing en banc as moot, and filed a new opinion
reversing the district court’s denial of a 28 U.S.C. § 2254
habeas corpus petition challenging a conviction and capital
sentence for murder and robbery, based on a violation of
Batson v. Kentucky, 476 U.S. 79 (1986), with instructions to
grant the writ and order that petitioner be released from
custody unless the state elects to retry him within a
reasonable amount of time.

    After each of three Batson challenges, the trial court
conducted an ex parte, in camera procedure to hear and
consider the prosecutor’s purported reasons for using
peremptory challenges to excuse each black or Hispanic
prospective juror who was available for challenge. Petitioner
did not have access to the transcript of these proceedings until
after trial. All juror questionnaires, except those of the
twelve sitting jurors, five alternates, and four other
questionnaires later found in defense counsel’s files, were
lost.

    Reviewing de novo after concluding that the state court
could not be presumed to have considered and denied the
federal claim after determining that the exclusion of
petitioner and counsel violated state law, the panel held that
the trial court’s exclusion of petitioner and his counsel during

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

Batson steps two and three, coupled with the loss of juror
questionnaires, constituted prejudicial error that likely
prevented petitioner from showing that the prosecution
utilized its peremptory challenges in a racially discriminatory
manner.

    Judge Callahan dissented. She disagreed with the
majority’s holding because it inappropriately deconstructed
the California Supreme Court’s opinion to justify its evasion
of the Anti-Terrorism and Effective Death Penalty Act to
review the state court’s decisions de novo, and because
petitioner’s federal claim is barred by Teague v. Lane, 489
U.S. 288 (1989).


                         COUNSEL

Robin L. Phillips and Anthony J. Dain, Procopio, Cory,
Hargreaves & Savitch LLP, San Diego, California, for
Petitioner-Appellant.

Robin H. Urbanski, Deputy Attorney General of California,
San Diego, California, for Respondent-Appellee.


                         OPINION

REINHARDT, Circuit Judge:

    State prisoner Hector Juan Ayala (“Ayala”) appeals the
denial of his petition for a writ of habeas corpus. During the
selection of the jury that convicted Ayala and sentenced him
to death, the prosecution used its peremptory challenges to
strike all of the black and Hispanic jurors available for
4                     AYALA V. WONG

challenge. The trial judge concluded that Ayala had
established a prima facie case of racial discrimination under
Batson v. Kentucky, 476 U.S. 79 (1986), but permitted the
prosecution to give its justifications for the challenges of
these jurors in an in camera hearing from which Ayala and
his counsel were excluded. The trial judge then accepted the
prosecution’s justifications for its strikes without disclosing
them to the defense or permitting it to respond. The
California Supreme Court held that the trial court erred as a
matter of state law, relying on a number of federal cases, but
found that the error was “harmless.” We conduct our review
of Ayala’s appeal under the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA). The state court did not
review the merits of Ayala’s federal claim adversely to him.
We hold that on de novo review Ayala prevails on the merits
of his claim and that, under Brecht v. Abrahamson, 507 U.S.
619, 623 (1993), the violation of Ayala’s Batson rights was
prejudicial. We therefore remand with instructions to grant
the writ.

                              I.

    On April 26, 1985, Jose Luis Rositas, Marcos Antonio
Zamora, and Ernesto Dominguez Mendez were shot and
killed in the garage of an automobile repair shop in San
Diego, California. A fourth victim, Pedro Castillo, was shot
in the back but managed to escape alive. Castillo identified
Ayala, his brother Ronaldo Ayala, and Jose Moreno as the
shooters. He claimed that these men had intended to rob the
deceased, who ran a heroin distribution business out of the
repair shop.

   Ayala was subsequently charged with three counts of
murder, one count of attempted murder, one count of robbery
                      AYALA V. WONG                          5

and three counts of attempted robbery. The information
further alleged that the special circumstances of multiple
murder and murder in the attempted commission of robberies
were applicable in his case. A finding that one of these
special circumstances was true was required in order for
Ayala to be eligible for the death penalty.

    Jury selection began in San Diego in January 1989. Each
of the more than 200 potential jurors who responded to the
summons and survived hardship screening was directed to fill
out a 77-question, 17-page questionnaire. Over the next three
months, the court and the parties interviewed each of the
prospective jurors regarding his or her ability to follow the
law, utilizing the questionnaires as starting points for their
inquiry. Those jurors who had not been dismissed for cause
were called back for general voir dire, at which smaller
groups of jurors were questioned by both the prosecution and
the defense. The parties winnowed the remaining group
down to twelve seated jurors and six alternates through the
use of peremptory challenges. Each side was allotted twenty
peremptory challenges which could be used upon any of the
twelve jurors then positioned to serve on the jury. After
twelve seated jurors were finally selected, both parties were
allotted an additional six peremptory challenges to be used in
the selection of alternates.

   The prosecution employed seven of the 18 peremptory
challenges it used in the selection of the seated jurors to
dismiss each black or Hispanic prospective juror who was
available for challenge, resulting in a jury that was devoid of
any members of these ethnic groups. In response, Ayala, who
is Hispanic, brought three separate motions pursuant to
Batson v. Kentucky, 476 U.S. 79 (1986), claiming that the
6                        AYALA V. WONG

prosecution was systematically excluding minority jurors on
the basis of race.1

    The defense made its first Batson motion after the
prosecution challenged two black jurors. The trial court
found that the defense had not yet established a prima facie
case of racial discrimination, but nevertheless determined that
it would require the prosecution to state its reasons for
challenging the jurors in question. At the prosecutor’s
insistence, and despite the defense’s objections, the court
refused to let the defendant or his counsel be present at the
hearing in which the prosecution set forth these reasons and
the court determined whether they were legitimate.

    The trial judge continued to employ this ex parte, in
camera procedure to hear and consider the prosecutor’s
purported reasons for challenging minority jurors following
the defense’s second and third Batson motions. He did so
despite his determination, by the third motion, that the
defense had established a prima facie showing of racial
discrimination.

    Ultimately, the trial judge concluded that the prosecutor
had proffered plausible race-neutral reasons for the exclusion
of each of the seven minority jurors, and denied the defense’s
Batson motions. Although the ex parte Batson proceedings
were transcribed, this transcript — and thus, the prosecution’s
proffered race-neutral reasons for striking the seven black and


    1
     The motions were technically made under People v. Wheeler,
22 Cal.3d 258 (1978), the California analogue to Batson. Because “a
Wheeler motion serves as an implicit Batson objection,” we characterize
Ayala’s motions, and the proceedings that followed, as being pursuant to
Batson. Crittenden v. Ayers, 624 F.3d 943, 951 (9th Cir. 2010).
                      AYALA V. WONG                           7

Hispanic jurors — were not made available to Ayala and his
counsel until after the conclusion of the trial.

    The jury convicted Ayala of all counts save a single
attempted robbery count, and found true the special
circumstance allegations. At the penalty phase, it returned a
verdict of death.

    Early in the process of jury selection, the trial judge had
instructed the parties to return to the court all the
questionnaires the prospective jurors had completed, and
advised them that he would be “keeping the originals.” At
some point during or following the trial, however, all
questionnaires, save those of the twelve sitting jurors and five
alternates, were lost. The questionnaires of four additional
jurors — including the sixth alternate — were located in the
defense counsel’s files, but the remaining 193 questionnaires
have never been located.

    On direct appeal from his conviction, Ayala challenged
the trial court’s use of ex parte Batson proceedings. He also
claimed that the loss of the jury questionnaires deprived him
of his right to a meaningful appeal of the denial of his Batson
motion. A divided California Supreme Court upheld his
conviction on the basis of harmless error and also upheld the
sentence. People v. Ayala, 6 P.3d 193 (Cal. 2000). The court
unanimously held that under state law the trial judge had
erred in conducting the Batson proceedings ex parte. Id. at
204 (majority opinion); id. at 291 (George, C.J., dissenting).
A majority went on to hold, however, that any error was
harmless beyond a reasonable doubt. Id. at 204. It also
concluded that the loss of the questionnaires was harmless
beyond a reasonable doubt. Id. at 208. In dissent, Chief
Justice George, joined by Justice Kennard, expressed his
8                        AYALA V. WONG

disagreement with the majority’s “unprecedented conclusion
that the erroneous exclusion of the defense from a crucial
portion of jury selection proceedings may be deemed
harmless.” Id. at 221 (George, C.J., dissenting). Ayala’s
petition for certiorari was denied by the United States
Supreme Court on May 14, 2001. Ayala v. California,
532 U.S. 1029 (2001).

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

                                 II.

    In order for this court to grant Ayala habeas relief, we
must find that he suffered a violation of his federal
constitutional rights. To do so, Ayala must demonstrate both
that (1) the state court committed federal constitutional error
and (2) that he was prejudiced as a result. We discuss the
issue of error in Part III and the issue of prejudice in Part IV.

    Here, Ayala alleges two federal constitutional violations,
the first of which is the principal focus of this opinion.
Ayala’s primary claim relates to his exclusion and his
counsel’s from the Batson proceedings. Ayala’s secondary
claim, which exacerbates the overall error in this case, relates
to the state court’s loss of the juror questionnaires prior to
Ayala’s appeal. We discuss these errors separately, in


    2
    Because we conclude that Ayala is entitled to relief on his Batson-
related claims, we need not decide whether the district court erred in
rejecting his Vienna Convention claim.
                      AYALA V. WONG                          9

Sections III.A and III.B respectively, devoting much greater
attention to the first, although the second would strongly
bolster the first.

    The state, in defending against the grant of habeas relief
to Ayala, makes two principal arguments. First, it contends
that Ayala was not prejudiced by his exclusion or his
counsel’s from the Batson proceedings, or by the loss of the
juror questionnaires. This was the state court’s basis for
denying Ayala relief.

   Second, the state raises a procedural objection that
Ayala’s claim regarding his exclusion during the Batson
proceedings is barred by Teague v. Lane, 489 U.S. 288
(1989). “[I]n addition to performing any analysis required by
AEDPA, a federal court considering a habeas petition must
conduct a threshold Teague analysis when the issue is
properly raised by the state.” Horn v. Banks, 536 U.S. 266,
272 (2002). We conduct the requisite Teague analysis in Part
V of this opinion.

    In Part VI of this opinion, we respond to arguments made
by the dissent, and in Part VII we set forth our conclusion and
remand to the district court with instructions to grant Ayala
the writ of habeas corpus.

                             III.

    As stated above, Ayala alleges that the state court
committed two distinct federal constitutional errors. The first
alleged error relates to the state court’s exclusion of Ayala
and his counsel from the Batson proceedings (referred to
sometimes in this opinion as the “ex parte Batson
proceedings”). The second error relates to the state court’s
10                    AYALA V. WONG

loss of the juror questionnaires. We address each error in
turn, concluding that Ayala is correct and that the state court
committed both federal constitutional errors, although we
hold that the first error is sufficient in itself to warrant the
issuance of the writ, and the second simply bolsters the first.

                              A.

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

    Ayala contends that the exclusion of the defense from the
proceedings in which the prosecution justified its strikes of
the seven black and Hispanic jurors, and the trial court
accepted those justifications, violated his right to the
assistance of counsel and his right to be personally present
and to assist in his defense. He further contends that these
                      AYALA V. WONG                         11

errors prevented him from ensuring that the prosecution did
not violate his fundamental right to a jury chosen free from
racial discrimination.

    Before we may evaluate the merits of Ayala’s contention,
we must first determine the appropriate standard of review to
apply. Specifically, because Ayala’s habeas petition is
subject to the requirements of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), see Kennedy v.
Lockyer, 379 F.3d 1041, 1046 (9th Cir. 2004), we must
determine whether Ayala’s claim was adjudicated on the
merits, and if so what the nature of that adjudication was. We
do so in Section III.A.1, concluding that the California
Supreme Court did not find against Ayala on the merits, and
therefore § 2254(d) does not require deference to such a
determination. We then conclude in Section III.A.2 that,
under de novo review, Ayala’s constitutional rights were
violated when he and his counsel were excluded from stages
two and three of the Batson proceedings.

                              1.

    “By its terms § 2254(d) bars relitigation of any claim
‘adjudicated on the merits’ in state court, subject only to the
exceptions in §§ 2254(d)(1) and (d)(2).” Harrington v.
Richter, 131 S. Ct. 770, 784 (2011). Accordingly, if the
California Supreme Court made an “adjudication on the
merits” that the exclusion of Ayala and his counsel from his
Batson proceedings was not erroneous under federal
constitutional law, then Ayala would not be entitled to relief
on his claim unless that state court adjudication

       (1) resulted in a decision that was contrary to,
       or involved an unreasonable application of,
12                    AYALA V. WONG

       clearly established Federal law, as determined
       by the Supreme Court of the United States; or

       (2) resulted in a decision that was based on an
       unreasonable determination of the facts in
       light of the evidence presented in the State
       court proceeding.

28 U.S.C. § 2254(d). Thus, the threshold question is whether
Ayala’s claim was “adjudicated on the merits in State court,”
and if so whether it was adjudicated adversely to him. We
therefore look to the state court opinion to determine whether
it made an “adjudication on the merits” regarding the
exclusion of Ayala and his counsel from his Batson
proceedings and if so what was the nature of that
adjudication. In short, did the state court hold that the
exclusion was not erroneous under federal constitutional law?

    Answering that question is significantly more difficult in
this case than in most federal habeas appeals. We are
confronted with an especially unclear state court decision that
requires us to delve more deeply than is typical into the
question of what the state court did or did not “adjudicate on
the merits.” The California Supreme Court, when confronted
with Ayala’s claim, concluded that the exclusion of the
defense from these proceedings was, in fact, erroneous as a
matter of state law. The state court began its analysis by
stating the legal framework for Ayala’s challenge. It
identified the three-step process for a Batson challenge and
noted that, under Batson, no particular procedures were
required. Ayala, 6 P.3d at 202. It then made three distinct
legal determinations. First, it found that “no matters of trial
strategy were revealed” during the Batson proceedings in
Ayala’s case. Id. at 202–03. Second, it held “as a matter of
                      AYALA V. WONG                          13

state law” that it was “error to exclude defendant from
participating in the hearings on his [Batson] motions.” Id. at
203. The California Supreme Court observed that “it seems
to be almost universally recognized that ex parte proceedings
following a [Batson] motion . . . should not be conducted
unless compelling reasons justify them.” Id. at 203. Because
no matters of trial strategy were revealed here and thus no
such “compelling reasons” existed, the state court “concluded
that error occurred under state law.” Id. at 204. Third, turning
to the question of prejudice (a subject we discuss in Part IV),
the state court

       conclude[d] that the error was harmless under
       state law (People v. Watson (1956) 46 Cal.2d
       818, 836, 299 P.2d 243), and that, if federal
       error occurred, it, too, was harmless beyond a
       reasonable doubt (Chapman v. California
       (1967) 386 U.S. 18, 24, 87 S. Ct. 824, 17
       L.Ed.2d 705) as a matter of federal law.

Id; see also id. at 204–08 (analyzing prejudice further).
Having found error but having also deemed it harmless, the
state court denied Ayala relief.

    There is no doubt that the California Supreme Court
found that the exclusion of Ayala and his counsel from the
Batson proceedings was erroneous under state law. The state
court made no express finding with respect to whether the
exclusion of Ayala and his counsel from the Batson
proceedings was also error under federal constitutional law.
Although it is not easy to interpret a state court’s silence,
there are only three possible determinations it could have
made in this case. The California Supreme Court either
14                         AYALA V. WONG

         (1) held that there was error under federal
         constitutional law;

         (2) did not decide whether there was error
         under federal constitutional law; or

         (3) held that there was no error under federal
         constitutional law.

         [hereinafter discussed as Options 1, 2, and 3
         respectively]

Of these three possibilities, only under Option 3 — in which
the state court made an unfavorable determination on the
merits of Ayala’s federal constitutional claim — would
§ 2254(d) require deference to a determination against
Ayala.3 Thus, we need determine only whether the California



  3
    Under Option 1, i.e., if the California Supreme Court found error under
federal constitutional law, as well as under state law, an argument can be
made that we would be required to accord AEDPA deference to that
determination. That is, we could be required to give AEDPA deference in
favor of the petitioner. An argument can also be made that § 2254(d), by
its text and purpose, is inapplicable to a claim on which the petitioner
prevailed in state court, and therefore the claim should be reviewed de
novo. Finally, because habeas review is intended to provide relief to a
prisoner and not to the state, an argument can be made that a state court’s
determination in favor of petitioner cannot be relitigated on habeas review.
The question whether to accord AEDPA deference to a state court
determination favorable to a petitioner, review that determination de novo
or not review it at all is a question of first impression that we need not
decide in this case. In all three situations — de novo review, AEDPA
deference in favor of the petitioner, or no review — we would conclude
that there was federal constitutional error in Ayala’s trial. See discussion
infra Part III(A)(2).
                           AYALA V. WONG                                15

Supreme Court’s silence is best interpreted as Option 3 —
i.e., as holding that the exclusion of Ayala and his counsel
from the Batson proceedings was not erroneous under federal
constitutional law.

    In determining how to interpret state court silence on the
merits of a federal constitutional claim, we consider, inter
alia, two recent Supreme Court decisions: Richter, 131 S. Ct.
770, and Johnson v. Williams, 133 S. Ct. 1088 (2013). In both
Richter and Williams, the Supreme Court applied a rebuttable
presumption that, even though the state court was silent with
respect to a fairly presented federal claim, the claim was
adjudicated on the merits. The Court’s rationale was that,
because the state court denied relief overall, it necessarily
adjudicated (and rejected) the federal claim. For example, in
the context of a summary denial, as in Richter, the state court
could not have denied relief overall without having rejected,
and thus adjudicated, every fairly presented federal claim.
Accordingly, the Supreme Court held, “[w]hen a federal
claim has been presented to a state court and the state court
has denied relief, it may be presumed that the state court
adjudicated the claim on the merits in the absence of any
indication or state-law procedural principles to the contrary.”
Richter, 131 S. Ct. at 784. The same was true when, in


     Under Option 2, i.e., if the California Supreme Court found error with
respect to the Batson issue as a matter of state law only and did not decide
the federal constitutional issue on the merits, our review would be de
novo. See Cone v. Bell, 556 U.S. 449, 472 (2009) (reviewing de novo
because the “[state] courts did not reach the merits of [the petitioner’s
constitutional] claim”); Lott v. Trammel, 705 F.3d 1167, 1218 (10th Cir.
2013); Harris v. Thompson, 698 F.3d 609, 624 (7th Cir. 2012). A decision
“as a matter of state law only” perforce does not constitute an
“adjudication on the merits” of a federal claim, and therefore § 2254(d)
would not apply.
16                     AYALA V. WONG

Williams, the state court rejected a state law claim, was silent
with respect to a fairly presented federal claim, and denied
relief overall. See Williams, 133 S. Ct. at 1091. There too, the
state court could not have denied relief overall without having
rejected, and thus adjudicated, the federal claim presented by
the petitioner. Thus, the Supreme Court held, “[w]hen a state
court rejects a federal claim without expressly addressing that
claim, a federal habeas court must presume that the federal
claim was adjudicated on the merits — but that presumption
can in some limited circumstances be rebutted.” Id. at 1096
(discussing Richter). Here, the presumption is inapplicable
for several reasons. We need mention only a couple. First,
it was not necessary for the state court to reject the federal
constitutional claim on the merits in order for it to deny relief
to the petitioner. To the contrary, the state court denied
Ayala relief on his federal constitutional claim only because
it concluded that the error (if any) was harmless. Second, the
facts of this case dictate the conclusion that the California
Supreme Court believed that the error under state law also
constituted federal constitutional error.

    We believe that there are only two plausible
interpretations of the California Supreme Court’s decision —
either Option 1 or Option 2. The most likely interpretation is
Option 1, i.e., that the California Supreme Court held
implicitly that there was error under state law and under
federal constitutional law alike. Notably, the California
Supreme Court based its determination that the trial court’s
exclusion of Ayala and his counsel was impermissible “as a
matter of state law,” Ayala, 6 P.3d at 203, on the fact that it
was “almost universally recognized” that ex parte Batson
proceedings are erroneous absent a compelling reason,
expressly relying for this conclusion on multiple federal cases
that themselves relied on federal constitutional law. Id. (citing
                       AYALA V. WONG                          17

United States v. Roan Eagle, 867 F.2d 436, 441 (8th Cir.
1989); United States v. Garrison, 849 F.2d 103, 106 (4th Cir.
1988); United States v. Gordon, 817 F.2d 1538, 1541 (11th
Cir. 1987)). The court then quoted extensively from United
States v. Thompson, 827 F.2d 1254 (9th Cir. 1987), in which
we held that the ex parte proceedings in that case violated
federal constitutional law. Ayala, 6 P.3d at 203–04. In
summarizing its discussion of error (before moving to
prejudice), the California Supreme Court stated: “We have
concluded that error occurred under state law, and we have
noted Thompson’s suggestion that excluding the defense from
a [Batson]-type hearing may amount to a denial of due
process.” Id. at 204. The obvious message here is that the
California Supreme Court believed that the federal
constitutional issue should be decided the same way as the
state law issue. This is consistent with the fact that California
courts interpret a violation of Wheeler — California’s state
equivalent of Batson — as proof of a violation of Batson. See
People v. Yeoman, 72 P.3d 1166, 1187 (Cal. 2003); see also
Johnson v. California, 545 U.S. 162 (2005) (holding that
Wheeler is more demanding than Batson). Thus, if we were
required to determine whether the California Supreme Court
adjudicated Ayala’s federal claim on its merits in favor of the
petitioner or the state, we would hold without question that
the California Supreme Court found error in petitioner’s favor
under both state law and federal constitutional law — i.e.,
Option 1.

    In support of this conclusion, we find instructive — and
likely dispositive — the Supreme Court’s discussion in Part
III of Williams. In that case, the petitioner challenged the
dismissal of a holdout juror under both California state law
and under the Sixth Amendment right to a fair jury. The
California Court of Appeal found that there was no error
18                     AYALA V. WONG

under state law. It did not expressly decide petitioner’s
federal constitutional claim but, in the course of deciding the
state law claim, cited a California Supreme Court case,
People v. Cleveland, 21 P.3d 1225 (Cal. 2001). Cleveland in
turn discussed three federal appellate cases in depth, each of
which was based on the Sixth Amendment. In Williams, the
Supreme Court explained Cleveland as follows:

        Cleveland did not expressly purport to decide
        a federal constitutional question, but its
        discussion of [the federal cases] shows that
        the California Supreme Court understood
        itself to be deciding a question with federal
        constitutional dimensions. See 25 Cal.4th, at
        487, 106 Cal. Rptr. 2d 313, 21 P.3d, at 1239
        (Werdegar, J., concurring) (emphasizing
        importance of careful appellate review in
        juror discharge cases in light of the
        “constitutional dimension to the problem”).

Williams, 133 S. Ct. at 1098. A unanimous Supreme Court
then concluded that because the state court found no error
under state law on the basis in part of federal cases relying on
federal constitutional law, it likewise found no error using
that same analysis to decide the question under federal
constitutional law. Id. at 1098–99. The obverse is necessarily
true with respect to the state court’s analysis in this case. The
California Supreme Court, in finding that the exclusion of
Ayala and his counsel from the Batson proceedings was
erroneous under state law, cited to multiple federal cases
relying on federal law. It did not expressly purport to decide
the federal constitutional question, but it too must have
understood itself to be deciding a question with federal
constitutional dimensions and to be deciding it in petitioner’s
                       AYALA V. WONG                          19

favor by its reliance on cases that held analogous conduct to
be erroneous under the federal Constitution. Thus, if we were
compelled to determine whether the California Supreme
Court adjudicated Ayala’s federal claim on its merits in favor
of the petitioner or the state, we would hold without the
slightest hesitation that it found that the error occurred under
federal constitutional law — i.e., Option 1. Accordingly, if
we apply § 2254(d) at all, we defer to a holding that there was
federal constitutional error, deference that favors Ayala. See
discussion supra at 14 n.3.

     Alternatively, we are willing to assume another, albeit
weaker, interpretation of the California Supreme Court’s
decision that leads to the same result. Under that
interpretation, the state court did not, deliberately or
otherwise, decide whether there was error under federal law,
i.e., Option 2 above. In short, it failed to decide the merits of
the federal constitutional question because it thought there
was nothing to be gained by doing so. It had already decided
that the state court had erred on state law grounds and nothing
further was to be gained by holding that it was also a federal
constitutional error. Richter and Williams instruct us to
afford a rebuttable presumption that a fairly presented claim
was “adjudicated on the merits” for purposes of § 2254(d),
but this presumption is rebuttable if there is “any indication
or state-law procedural principles” supporting the conclusion
that the state court did not adjudicate the federal claim on the
merits. Richter, 131 S. Ct. at 784–85. Here, the California
Supreme Court denied Ayala relief overall but did so by (1)
finding that the trial court committed error on state law
grounds, (2) failing to make any express determination of
error on federal constitutional grounds, and (3) finding any
error harmless under both the state and federal standards for
harmless error. In the context of these holdings, the rebuttable
20                     AYALA V. WONG

presumption that Richter and Williams instruct us to afford is,
in fact, rebutted. The California Supreme Court, by finding
any alleged error harmless under both the state and federal
standards for harmless error, had no reason to reach the
question of whether federal constitutional error occurred. This
is not an unusual practice; courts often choose not to decide
the question whether an error occurred by deciding that any
error was harmless. Indeed, we have found no published
opinion in which, after a state court has denied relief based on
harmless error, a federal court has presumed that the state
court adjudicated the merits of the question of error.

    In fact, the California Supreme Court would have had
good reason not to decide the merits of the federal
constitutional issue here. “If there is one doctrine more
deeply rooted than any other in the process of constitutional
adjudication, it is that [courts] ought not to pass on questions
of constitutionality . . . unless such adjudication is
unavoidable.” Clinton v. Jones, 520 U.S. 681, 690 n.11
(1997) (quoting Spector Motor Serv. v. McLaughlin, 323 U.S.
101, 105 (1944)). Moreover, where the intersection of state
law and federal constitutional law is complex, a state court
may very well prefer to decide only the state law claim and
not reach the federal constitutional claim. The California
Supreme Court, by finding error under state law, determined
the question of error conclusively. This served the purpose of
providing guidance to the lower state courts. Finding that the
state law error also constituted federal constitutional error (or
did not) would, however, have served no purpose, once the
state court determined that any error was harmless. (The state
court was free to decide the issues presented in whatever
order it chose.) Indeed, respect for state judges requires
recognizing that a state court’s silence with respect to a fairly
presented federal claim may be intentional and prudent.
                       AYALA V. WONG                          21

    Our reasoning finds support in a different line of Supreme
Court cases, in which the Court has interpreted state court
silence with regard to a particular issue or claim as not
constituting an “adjudication on the merits.” Many of these
cases involved claims of ineffective assistance of counsel
brought under Strickland v. Washington, 466 U.S. 668
(1984). Strickland claims have two prongs, deficiency of
counsel’s performance and prejudice to the defendant; failure
on either prong is dispositive. Id. at 680. Accordingly, state
courts frequently decide Strickland claims by rejecting either
deficiency or prejudice and remain silent with respect to the
other prong. When these claims are raised in federal habeas
proceedings, the Supreme Court has repeatedly interpreted
that silence as a failure to reach the issue and therefore not an
“adjudication on the merits.” See Wiggins v. Smith, 539 U.S.
510, 534 (2003) (“Our review is not circumscribed by a state
court conclusion with respect to prejudice, as neither of the
state courts below reached this prong of the Strickland
analysis.” (emphasis added)); Rompilla v. Beard, 545 U.S.
374, 390 (2005) (“Because the state courts found the
representation adequate, they never reached the issue of
prejudice, and so we examine this element of the Strickland
claim de novo.” (emphasis added) (internal citations
omitted)); Porter v. McCollum, 130 S. Ct. 447, 452 (2009)
(“Because the state court did not decide whether Porter’s
counsel was deficient, we review this element of Porter’s
Strickland claim de novo.” (emphasis added)). Nor has the
Supreme Court limited this reasoning to Strickland claims. In
Cone v. Bell, 556 U.S. 449 (2009), the petitioner raised a
claim under Brady v. Maryland, 373 U.S. 83 (1963) in his
federal habeas petition. The state habeas court dismissed the
claim based on a factual determination that the Supreme
Court held was erroneous. Id. at 466–69. Turning to the
merits of the claim, the Supreme Court stated:
22                    AYALA V. WONG

       Because the Tennessee courts did not reach
       the merits of Cone’s Brady claim, federal
       habeas review is not subject to the deferential
       standard that applies under AEDPA to “any
       claim that was adjudicated on the merits in
       State court proceedings.” 28 U.S.C.
       § 2254(d). Instead, the claim is reviewed de
       novo. See, e.g., Rompilla v. Beard, 545 U.S.
       374, 390, 125 S. Ct. 2456, 162 L.Ed.2d 360
       (2005) (de novo review where state courts did
       not reach prejudice prong under Strickland v.
       Washington, 466 U.S. 668, 104 S. Ct. 2052,
       80 L.Ed.2d 674 (1984)); Wiggins v. Smith,
       539 U.S. 510, 534, 123 S. Ct. 2527, 156
       L.Ed.2d 471 (2003) (same).

Id. at 472 (emphasis added). Again, even though the state
court was silent with respect to the merits of Cone’s Brady
claim, the Supreme Court did not presume that the claim was
adjudicated on the merits. Thus, as Wiggins, Rompilla,
Porter, and Cone demonstrate, and as both Richter and
Williams have recognized, in some instances, a state court’s
silence with respect to an issue or claim should not be
interpreted as an “adjudication on the merits” for purposes of
§ 2254(d).

    We summarize the law as set forth by the Supreme Court
as follows. There are circumstances in which, even if a state
court has denied relief overall, a state court’s silence with
respect to a fairly presented federal claim cannot be
interpreted as an “adjudication on the merits” for purposes of
§ 2254(d), because the rebuttable presumption cited in
Richter and Williams is rebutted by the legal principles
involved (including the principle of constitutional avoidance)
                           AYALA V. WONG                                  23

and factual context applicable to a particular case. See
Wiggins v. Smith, 539 U.S. at 534; Rompilla v. Beard,
545 U.S. at 390; Porter v. McCollum, 130 S. Ct. 447, 452
(2009); Cone v. Bell, 556 U.S. at 472.

    This is such a case. As explained earlier, the California
Supreme Court had no reason to reach Ayala’s federal
constitutional claim once it had decided that (1) the alleged
error occurred as a matter of state law, (2) the error was
harmless under the state and federal standards for harmless
error, and (3) whether or not that occurrence also violated
federal constitutional law was of no consequence.
Furthermore, under long established legal principles, the
California Supreme Court had every reason not to decide
unnecessarily a question of federal constitutional law. Thus,
we find merit in Option 2, i.e., that the California Supreme
Court did not decide whether there was error under federal
constitutional law.

    We recognize that it remains unclear whether the
California Supreme Court decision is better read as Option 1
or Option 2.4 What is clear is that Option 3 — i.e., that the

  4
    The dissent therefore misstates our holding when it claims we have
“decide[d] that the California Supreme Court did not determine whether
there was error under federal law.” Dissent at 81. That is only one of two
holdings we find possible; the other is that the Supreme Court decided that
there was federal constitutional error for the same reasons that there was
state constitutional error. It follows that it is also not true that we have
concluded, as the dissent claims, that there is “no reason” to give the
California Supreme Court decision § 2254(d) deference. As explained
supra at 14 n.3, if the California Supreme Court held that there was
federal constitutional error — Option 1 — we might give this holding
§ 2254(d) deference, although the question of what level of deference to
afford a finding in favor of petitioner is a question of first impression that
we need not decide here.
24                         AYALA V. WONG

California Supreme Court held that, although there was error
under state law, there was none under federal constitutional
law — is not the best, or even a plausible reading of the state
court opinion.5 In this case, because the California Supreme
Court found error under state law by citing to federal cases
relying on federal law and because it “noted” that there might
have been a violation of federal law, Ayala, 6 P.3d at 202–04,
Option 3 is a wholly implausible reading of the California
Supreme Court decision.6 Accordingly, we have no reason to


      5
     In other words, because Wheeler is Batson-plus, and because its
Wheeler holding relied on Batson case law, it is impossible that the
California Supreme Court found no Batson error on the merits while
finding Wheeler error on the merits. It either found Batson error or did not
reach the federal claim. Therefore, there is either no merits decision
demanding deference or a merits decision favoring Ayala. The latter
possibility is unchartered territory, but, regardless, we review under a
standard no less favorable to Ayala than de novo.
  6
     Even the dissent struggles to argue that Option 3 is the best reading.
First, it states that the California Supreme Court “rejected” Ayala’s federal
claim. Dissent at 80. Then, suddenly less confident, the dissent argues
only that “[t]here may be some question as to whether the California
Supreme Court actually found that there was federal error.” Dissent at 80.
Finally, backing away from its original claim even more, the dissent seems
to endorse Option 1, suggesting that the Supreme Court found that there
was federal constitutional error: “The California Supreme Court’s
evaluation of the Batson/Wheeler issue was clear and concise. It held that
‘it was error to exclude defendant from participating in the hearings on the
Wheeler motions.’” Dissent at 82 (citing Ayala, 6 P.3d at 203). The dissent
accuses us of “admitting” that the California Supreme Court cited both
Batson and Thompson in making this “clear” finding of Wheeler error.
Dissent at 82 (citing Ayala, P.3d at 203). Of course we admit this; our
argument is that because the California Supreme Court cited Batson and
Thompson in finding state constitutional error, the court likely found
federal constitutional error as well. It is the dissent’s position that is
perplexing: while acknowledging that the California Supreme Court cited
federal cases in holding for Ayala on his claim of state constitutional error,
                           AYALA V. WONG                                25

give § 2254(d) deference to such a holding in evaluating
Ayala’s claim. (As noted supra in Part II, we will discuss in
Part IV the question whether the California Supreme Court’s
determination that any error was harmless was erroneous.)

                                    2.

    Having determined that only Options 1 and 2 are
plausible readings of the California Supreme Court decision,
we proceed to review Ayala’s claim regarding his exclusion
from stages two and three of the Batson proceedings de
novo.7

    Under de novo review, it is clear that it was federal
constitutional error to exclude both Ayala and his counsel
from stages two and three of the Batson proceedings. As the
California Supreme Court recognized, our circuit had already
held in United States v. Thompson, 827 F.2d 1254 (9th Cir.
1987) that, in the absence of a “compelling justification”
(e.g., the disclosure of trial strategy) for conducting ex parte


it concludes that the court “implicitly reject[ed]” Ayala’s federal
constitutional error claim. Dissent at 83. Given Williams’s instruction that
a state court’s citation to federal cases in deciding a state claim “shows
that [it] underst[ands] itself to be deciding a question with federal
constitutional dimensions,” and given that the federal cases the California
Supreme Court cited deemed analogous conduct to constitute federal
constitutional error, the dissent’s reading that these same cases compel the
conclusion that the conduct here is not federal constitutional error makes
little sense. See Williams, 133 S. Ct. at 1098.
  7
    As discussed supra at 14 n.3, there are three possible standards of
review that could apply to the California Supreme Court’s decision on
federal constitutional error. Because, under the circumstances of this case,
de novo review is the most searching of the three, we need not review the
decision under the other two standards.
26                         AYALA V. WONG

Batson proceedings, such exclusions violate federal
constitutional law. Id. at 1258–59. Here, the California
Supreme Court concluded — and neither party to this appeal
disputes — that there was no such compelling justification for
conducting ex parte Batson proceedings, as “no matters of
trial strategy were revealed” by the prosecutor. Ayala, 6 P.3d
at 261–62. As such, Ayala’s claim is controlled by Thompson,
and we conclude that federal constitutional error occurred
when Ayala and his lawyer were excluded from stages two
and three of the Batson proceedings.8

                                    B.

    Ayala also claims that the state’s loss of an overwhelming
majority of the jury questionnaires deprived him of a record
adequate for appeal and thus violated his federal due process
rights. Although less clear than with Ayala’s first federal
constitutional claim, the California Supreme Court also
decided this claim on the basis of harmless error only. Ayala,
6 P.3d at 270 (“Thus, even if there was federal error, it was
harmless beyond a reasonable doubt.”). Accordingly, for the
reasons explained supra Section III.A.1, we proceed with de
novo review.

    As the California Supreme Court recognized, Ayala has
a due process right to a record sufficient to allow him a fair
and full appeal of his conviction. Id. at 208 (citing People v.
Alvarez, 14 Cal. 4th 155, 196 n.8 (1996)). If a state provides


 8
    Part of our reason for brevity in our analysis of Ayala’s claim under de
novo review is that his case is clearly controlled by Thompson. Another
reason is that our analysis in Part V, in which we reject the state’s Teague
argument, explains further why Ayala suffered a constitutional violation
in this case.
                           AYALA V. WONG                                27

for a direct appeal as of right from a criminal conviction, it
must also provide “certain minimum safeguards necessary to
make that appeal ‘adequate and effective.’” Evitts v. Lucey,
469 U.S. 387, 392 (1985) (quoting Griffin v. Illinois, 351 U.S.
12, 20 (1956)); see also Coe v. Thurman, 922 F.2d 528, 530
(9th Cir. 1990) (“Where a state guarantees the right to a direct
appeal, as California does, the state is required to make that
appeal satisfy the Due Process Clause.”).

    In Boyd v. Newland, we applied these principles in
granting the habeas petition of an indigent defendant who had
been denied a copy of his voir dire transcript because the state
court had, in violation of clearly established federal law,
determined that the transcript was not necessary to his Batson
appeal. 467 F.3d 1139 (9th Cir. 2006). We held that “all
defendants . . . have a right to have access to the tools which
would enable them to develop their plausible Batson claims
through comparative juror analysis.” Id. at 1150. It follows
that if the state’s loss of the questionnaires deprived Ayala of
the ability to meaningfully appeal the denial of his
Batson claim, he was deprived of due process.9

    This conclusion is not called into question by Briggs v.
Grounds, 682 F.3d 1165 (9th Cir. 2012), cited in the dissent.
Dissent at 102. In Briggs, the petitioner had complete access
to the juror questionnaires during the course of his state

 9
    The dissent ignores the holding of Boyd and instead plucks the words
“voir dire transcript” out of the opinion to argue that only a voir dire
transcript is necessary for comparative juror analysis. Dissent at 100–02.
If our dissenting colleague believes that jury questionnaires are not tools
for comparative juror analysis, we point her to Miller-El v. Dretke (Miller-
El II), 545 U.S. 231, 256–57 (2005) and Kesser v. Cambra, 465 F.3d 351,
360 (9th Cir. 2006) (en banc), both of which utilized juror questionnaires
in comparative juror analysis.
28                     AYALA V. WONG

appeal. In fact, he relied heavily on them in presenting a
comparative juror analysis to support his Batson claim.
682 F.3d at 1171. Thus Briggs’s due process rights were not
implicated. The language cited by the dissent is lifted from
a section of the opinion discussing whether, because those
questionnaires were not included in the federal court record,
we should credit the petitioner’s characterization of those
questionnaires over the state court’s characterization. Briggs
is irrelevant for our purposes, i.e., whether Ayala’s due
process rights were implicated when California lost the juror
questionnaires, thus rendering them unavailable for his state
court appeal.

    Ayala is entitled to relief on this claim only if the loss of
the questionnaires was prejudicial in se or if it in conjunction
with the Batson error discussed supra served to deprive him
of a meaningful appeal. Id.; see also Brecht v. Abrahamson,
507 U.S. 619, 623 (1993). “[I]n analyzing prejudice . . . , this
court has recognized the importance of considering the
cumulative effect of multiple errors and not simply
conducting a balkanized, issue-by-issue harmless error
review.” Daniels v. Woodford, 428 F.3d 1181, 1214 (9th Cir.
2005) (quoting Thomas v. Hubbard, 273 F.3d 1164, 1178 (9th
Cir. 2001)). Here, the loss of the questionnaires increased the
prejudice that Ayala suffered as a result of the exclusion of
defense counsel from Batson steps two and three, as it further
undermined his ability to show that Batson had been violated.
Accordingly, in determining whether Ayala is entitled to
relief, we evaluate the prejudice caused by the loss of the
questionnaires in conjunction with the harm caused by
excluding defense counsel from the Batson proceedings. As
we will explain immediately below, the analysis under Brecht
regarding the Batson error demonstrates that the exclusion of
Ayala and his counsel from the second and third stages of the
                          AYALA V. WONG                              29

Batson inquiry is sufficiently prejudicial to require reversal
for that reason alone.10

                                  IV.

    The California Supreme Court held that Ayala was not
prejudiced by the trial court’s exclusion of the defense from
stages two and three of the Batson proceedings, by the state’s
loss of the vast majority of the jury questionnaires, or by the
two errors considered together. The Court declared itself
“confident that the challenged jurors were excluded for
proper, race-neutral reasons,” Ayala, 6 P.3d at 204, concluded
that the exclusion of defense counsel was “harmless beyond
a reasonable doubt,” id. (citing Chapman v. California,
386 U.S. 18, 24 (1967)), and held that despite the loss of the
questionnaires the record was “sufficiently complete for [it]
to be able to conclude that [the struck jurors] were not
challenged and excused on the basis of forbidden group bias.”
Id. at 208.

    We now address these same questions, and hold that
Brecht v. Abrahamson, 507 U.S. 619 (1993), requires us to
reach a different conclusion.

                                   A.

    Ayala claims, first, that exclusion of defense counsel from
the Batson proceedings necessarily represented structural
error, and that he is entitled to relief without further inquiry


 10
    Ayala also asserts that there is an Eighth Amendment right to appeal
— and to a record adequate for appeal — in a capital case. See Whitmore
v. Arkansas, 495 U.S. 149, 168 (1990) (Marshall, J., dissenting). We need
not decide this question here.
30                        AYALA V. WONG

into whether he was prejudiced. The state court’s conclusion
that the error here was not structural — a conclusion implicit
in its application of the Chapman harmless error standard to
evaluate whether Ayala had suffered prejudice — is subject
to review under the deferential standard of § 2254(d). See
Byrd v. Lewis, 566 F.3d 855, 862 (9th Cir. 2009).

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

    Ayala contends that the state court’s decision represents
an unreasonable application of the Supreme Court’s clearly
established rule that “no showing of prejudice need be made
‘where assistance of counsel has been denied entirely or
during a critical stage of the proceedings.’” Brief of Appellant
at 22 (quoting Mickens v. Taylor, 535 U.S. 162, 166 (2002));
see also United States v. Cronic, 466 U.S. 648, 659 n.25
(1984).11 The use of the phrase “critical stage” in this excerpt
can be somewhat deceptive: although the Batson proceedings


  11
     As the state observes, although Mickens postdates the California
Supreme Court’s decision, the opinion simply restates the rule set forth 18
years earlier in Cronic.
                      AYALA V. WONG                          31

represented a “critical stage” in the sense that Ayala had the
right to counsel during those proceedings, they were not
necessarily the sort of “critical stage” at which the
deprivation of that right constituted structural error. See
United States v. Owen, 407 F.3d 222, 227 (4th Cir. 2005). As
the Fourth Circuit has explained, the statements in Mickens
and Cronic

       rely on the Supreme Court’s earlier usage of
       the phrase “critical stage,” in cases such as
       Hamilton v. [Alabama, 368 U.S. 52 (1961)]
       and White [v. Maryland, 373 U.S. 59 (1963)
       (per curiam)] to refer narrowly to those
       proceedings both at which the Sixth
       Amendment right to counsel attaches and at
       which denial of counsel necessarily
       undermines the reliability of the entire
       criminal proceeding. . . . [T]he Supreme Court
       has subsequently used the phrase “critical
       stage,” in cases such as [United States v.]
       Wade [, 388 U.S. 218 (1967)] and Coleman
       [v. Alabama, 399 U.S. 1 (1970)], in a broader
       sense, to refer to all proceedings at which the
       Sixth Amendment right to counsel attaches --
       including those at which the denial of such is
       admittedly subject to harmless-error analysis.

Id. at 228 (emphasis omitted).

    In Musladin v. Lamarque, we held that the “clearly
established” rule of Cronic is that a “critical stage” where the
deprivation of counsel constitutes structural error is one that
holds “significant consequences for the accused.” 555 F.3d
830, 839 (9th Cir. 2009) (quoting Bell v. Cone, 535 U.S. 685,
32                    AYALA V. WONG

695–96 (2002)). We identified as providing guidance in this
inquiry Supreme Court decisions holding an overnight trial
recess and closing arguments to be two such critical stages.
Id. at 839–40 (citing Geders v. United States, 425 U.S. 80
(1976) and Herring v. New York, 422 U.S. 853 (1975)).

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

                              B.

    Ayala claims next that, even if the trial court’s exclusion
of the defense was not the sort of constitutional error in se
that requires that we presume that in every exclusion case
prejudice ensues, it was prejudicial in his case, both in solo
                          AYALA V. WONG                              33

and when considered in conjunction with the loss of the
questionnaires. In evaluating whether a trial error prejudiced
a state habeas petitioner, we must apply the standard set forth
in Brecht v. Abrahamson, determining whether the error had
a “substantial and injurious effect or influence in determining
the jury’s verdict.” 507 U.S. 619, 623 (1993) (quoting
Kotteakos v. United States, 328 U.S. 750, 776 (1946)). We
“apply the Brecht test without regard for the state court’s
harmlessness determination.” Pulido v. Chrones, 629 F.3d
1007, 1012 (9th Cir. 2010) (citing Fry v. Pliler, 551 U.S. 112,
121–22 (2007)).12

       The Brecht standard has been described as follows:

          [I]f one cannot say, with fair assurance, after
          pondering all that happened without stripping
          the erroneous action from the whole, that the


  12
      If this appeal had come before us prior to the Supreme Court’s
decision in Fry, we would have instead asked whether the state court’s
determination that any error was harmless under Chapman was contrary
to, or an unreasonable application, of federal law. See Inthavong v.
Lamarque, 420 F.3d 1055, 1059 (9th Cir. 2005). Fry clarified, however,
that Brecht is the harmless error standard to be applied in such
circumstances because the Brecht standard “subsumes” the “more liberal”
§ 2254(d)/Chapman standard. See Fry, 551 U.S. at 120; Merolillo v.
Yates, 663 F.3d 444, 454 (9th Cir. 2011). In other words, if a federal
habeas court determines that the Brecht standard has been met, it also
necessarily determines to be an unreasonable application of Chapman a
state court’s conclusion that the error was harmless beyond a reasonable
doubt. In holding that Ayala has demonstrated his entitlement to relief
under Brecht, we therefore also hold to be an unreasonable application of
Chapman the California Supreme Court’s conclusion that Ayala was not
prejudiced by the exclusion of the defense during Batson steps two and
three or by the loss of the questionnaires. See Merolillo, 663 F.3d at
458–59.
34                        AYALA V. WONG

          judgment was not substantially swayed by the
          error, it is impossible to conclude that
          substantial rights were not affected. The
          inquiry cannot be merely whether there was
          enough to support the result, apart from the
          phase affected by the error. It is rather, even
          so, whether the error itself had substantial
          influence.

Merolillo v. Yates, 663 F.3d 444, 454 (9th Cir. 2011) (quoting
Kotteakos, 328 U.S. at 765). “Where the record is so evenly
balanced that a judge ‘feels himself in virtual equipoise as to
the harmlessness of the error’ and has ‘grave doubt about
whether an error affected a jury [substantially and
injuriously], the judge must treat the error as if it did so.’” Id.
(quoting O’Neal v. McAninch, 513 U.S. 432, 435, 437–38
(1995)) (alteration in original) (internal quotations omitted).13

     13
      The dissent contends that Brecht no longer provides the proper
standard of review for assessing prejudice, arguing instead that a writ may
issue only if we determine that “no fairminded jurist could find that the
exclusion of defense counsel and the loss of questionnaires did not prevent
Ayala from prevailing on his Batson claim.” Dissent at 98–99. The
dissent’s only authority for its conclusion is Harrington v. Richter,
131 S. Ct. 770, 786 (2011), which the dissent suggests refined the Brecht
test. Dissent at 98–99.

     The dissent clearly errs in applying Richter to prejudice analysis
under AEDPA. In Fry, 551 U.S. 112, the Supreme Court held that Brecht
is the proper test for prejudice analysis under AEDPA. In Richter, handed
down just four years later, the Supreme Court did not once mention Fry
or Brecht. Furthermore, the Court’s reference to “fairminded jurist” was
not in the context of reviewing a state court’s prejudice determination but
rather in the context of whether a state court’s determination regarding
constitutional error was unreasonable. 131 S. Ct. at 785. (Here, as
explained supra, the state court was silent on the question of error, and
thus only prejudice is at issue.) The dissent thus seems willing to
                          AYALA V. WONG                                35

    We conclude that Ayala has met the Brecht standard. The
prejudice he suffered was the deprivation of the opportunity



conclude that the Supreme Court radically changed Brecht, a nearly two-
decade old precedent — a case with central import in virtually all federal
habeas adjudication, reaffirmed just five years ago in Fry — without even
a mention of that oft-cited case. There is no legal basis for the dissent’s
conclusion that a case cited almost 10,000 times to determine prejudice in
habeas cases was sub silentio drastically overhauled in a discussion
unrelated to prejudice. The dissent’s reference to Pinholster is equally
unpersuasive. In that case, as in Richter, the Court did not use the
language “fairminded jurist” in reviewing a state court’s prejudice
determination. Cullen v. Pinholster, 131 S. Ct. 1388, 1408 (2011).

     Furthermore, because Richter and Pinholster were ineffective
assistance of counsel cases, the Court had no reason to apply Brecht.
Strickland, not Brecht, provides the proper prejudice standard for
ineffective assistance of counsel claims. See Musladin v. Lamarque,
555 F.3d 830, 834 (9th Cir. 2009) (“[W]here a habeas petition governed
by AEDPA alleges ineffective assistance of counsel under [Strickland],
we apply Strickland’s prejudice standard and do not engage in a separate
analysis applying the Brecht standard.”).

    Additionally, in the thirty months since Richter was handed down, we
have repeatedly applied the traditional Brecht test to assess prejudice in
habeas cases. E.g., Merolillo, 663 F.3d at 454; Ybarra v. McDaniel,
656 F.3d 984, 995 (9th Cir. 2011); United States v. Rodrigues, 678 F.3d
693, 695 (9th Cir. 2012). In some cases, we have cited Richter in
analyzing constitutional error but then, properly, applied the traditional
Brecht test when determining prejudice. E.g., Ocampo v. Vail, 649 F.3d
1098, 1106 (9th Cir. 2011); Schneider v. McDaniel, 674 F.3d 1144,
1149–50 (9th Cir. 2012). Thus, even if we believed that the dissent were
correct that Richter rewrote the test for prejudice (a conclusion that is
wholly without support and that we unequivocally reject), this three-judge
court, like all others, is nevertheless required to apply Brecht as it was
(and is), because such is the law of the circuit. Lacking support in both
Supreme Court and Ninth Circuit case law, the dissent’s pronouncement
simply amounts to a preference that the prejudice standard under AEDPA
should be far more onerous than current law provides.
36                    AYALA V. WONG

to develop, present, and likely prevail on his Batson claim.
Had he prevailed on that claim, and shown that the
prosecution acted upon impermissible considerations of race
in striking even one of the seven black or Hispanic jurors it
struck, then, as the state acknowledged in oral argument
before this court, we would be compelled to reverse Ayala’s
conviction because his entire trial would have been infected
by this violation of the Constitution. See Vasquez v. Hillery,
474 U.S. 254, 263–64 (1986); Boyd, 467 F.3d at 1150. The
question, then, is whether Ayala could have made this
showing but for the state’s constitutional errors. If we cannot
say that the exclusion of defense counsel with or without the
loss of the questionnaires likely did not prevent Ayala from
prevailing on his Batson claim, then we must grant the writ.

    Here, it is probable that the state’s errors precluded Ayala
from turning what is a very plausible Batson claim — the
challenge to the prosecution’s strikes of all minority jurors —
into a winning one by preventing defense counsel from
performing the two “crucial functions” we identified in
Thompson. First, Ayala’s counsel could have pointed out
where the prosecution’s purported justifications might be
pretextual or indicate bad faith. Although the trial judge may
have been able to “detect some of these deficiencies by
himself, . . . there might be arguments [he] would overlook”
because he was “unassisted by an advocate.” Thompson,
827 F.2d at 1260–61. The jury selection process took over
three months and comprises more than six thousand pages of
the record. The trial judge, attempting to evaluate the
prosecution’s reasons for striking the jurors in light of this
massive amount of information, was almost certain to forget
or overlook key facts, but could have been substantially aided
by the presence of participants in the process adverse to the
prosecution. In particular, Ayala’s lawyers could have
                      AYALA V. WONG                        37

pointed out when the prosecutor’s proffered reason for
striking a black or Hispanic juror applied “just as well to an
otherwise-similar nonblack [or non-Hispanic] who [was]
permitted to serve.” Miller-El v. Dretke, 545 U.S. 231, 241
(2005). The Supreme Court has emphasized the importance
of this sort of “comparative juror analysis” to determining
whether a prosecutor’s reasons for challenging a minority
juror were pretextual. Id.; see also Snyder v. Louisiana,
552 U.S. 472, 483–85 (2008). Although Ayala can — and
does — still raise some of these arguments on appeal, he was
deprived of the crucial opportunity to present them to the
institutional actor best positioned to evaluate them. As the
Supreme Court has observed, appellate courts must accord
deference to “trial court findings on the issue of
discriminatory intent” because “the finding largely will turn
on evaluation of credibility.” Miller-El v. Cockrell, 537 U.S.
322, 339 (2003) (quoting Hernandez v. New York, 500 U.S.
352, 366 (1991) (plurality opinion)) (internal quotation marks
and citations omitted). Because, after finding a prima facie
case of a Batson violation, the trial court was not made aware
of key facts that could have influenced its credibility
determination, there is substantial reason to doubt that
Ayala’s Batson challenge was properly denied.

    Second, Ayala’s counsel could have “preserve[d] for the
record, and possible appeal, crucial facts bearing on the
judge’s decision.” Thompson, 827 F.2d at 1261. We cannot
know many of the facts material to whether the prosecution’s
stated reasons were false, discriminatory, or pretextual
because defense counsel was not able to preserve relevant
facts regarding prospective jurors’ physical appearances,
behavior, or other characteristics. Although the trial judge
could have been aware of these facts, an appellate court “can
only serve [its] function when the record is clear as to the
38                        AYALA V. WONG

relevant facts, or when defense counsel fails to point out any
such facts after learning of the prosecutor’s reasons.” Id.; see
also United States v. Alcantar, 897 F.2d 436, 438 (9th Cir.
1990) (reversing a defendant’s conviction where the Batson
proceedings conducted below left the defense unable “to
adequately challenge the prosecution’s reasons as pretextual”
and left the reviewing court uncertain as to whether the
prosecution had, in fact, violated Batson).

    This second deficiency is greatly augmented by the loss
of the jury questionnaires. The only questionnaires that have
been preserved are those of the seated and alternate jurors.14
We are unable to evaluate the legitimacy of some of the
prosecution’s proffered reasons for striking the black and
Hispanic jurors because they referred to questionnaires that
are now lost. The loss of the questionnaires also leaves us
lacking potentially crucial information about certain
individuals who were neither the subject of Ayala’s Batson
challenge nor ultimately served as jurors.15 Thus, we cannot


 14
    There are also three other questionnaires out of more than 200 which
were somehow located, but have no particular significance with respect to
a comparative juror analysis.
 15
    The state and the dissent both appear to presume that the only relevant
comparisons in a comparative juror analysis are between the struck jurors
and the jurors who are ultimately seated, but Miller-El made clear that the
otherwise-similar jurors to whom the struck jurors can be compared
include those “permitted to serve” by the prosecution but ultimately struck
by the defense. See, e.g., Miller-El v. Dretke, 545 U.S. at 244–45
(comparing a struck juror to a juror not challenged by the prosecution who
was later challenged by the defense). This, of course, makes perfect
sense: some of these jurors were not struck by the defense until after the
prosecution had passed them for several rounds, and the “underlying
question is not what the defense thought about these jurors,” but what the
prosecution did. Id. at 245 n.4.
                           AYALA V. WONG                                39

perform a fair comparative juror analysis as required by
Batson. See Miller-El v. Dretke, 545 U.S. at 241.

    Even so, we have substantial reason to question the
motivation of the prosecution in engaging in its peremptory
challenges of the black and Hispanic jurors. In conducting
our inquiry, we must keep in mind the strength of Ayala’s
prima facie case. “[T]he statistical evidence alone raises
some debate as to whether the prosecution acted with a
race-based reason when striking prospective jurors.”
Miller-El v. Cockrell, 537 U.S. at 342. That the prosecution
struck each of the seven black or Hispanic jurors available for
challenge establishes a basis for significant doubt of its
motives: “[h]appenstance is unlikely to produce this
disparity.” Id.

    Perhaps more important, the analysis of the prosecution’s
motives that is possible on the partial record before us
demonstrates that many of its stated reasons for striking the
seven black and Hispanic jurors were or may have been false,
discriminatory, or pretextual. There are good reasons to think
that race motivated the prosecution’s strikes of at least three,
if not more, jurors: Olanders D., Gerardo O. and Robert M.16


 16
    Although the record provides somewhat less reason to conclude that
the prosecution’s justifications for the strikes of the four other black and
Hispanic jurors were pretextual, race may also have played a substantial
role in these challenges. For example, Ayala might have been able to
show that the prosecution violated Batson when it struck Hispanic juror
George S. in the final round of peremptory challenges. The prosecution
gave five reasons for striking George S. The first reason — that his
application to be a police officer some twenty years earlier had been
rejected — applied equally to seated white juror Charles C. The second
reason — that he had indicated some discomfort with the death penalty —
did not significantly distinguish him from a number of seated white jurors.
40                        AYALA V. WONG

We “cannot say, with fair assurance, after pondering all that
happened without stripping the erroneous action from the
whole,” Kotteakos, 328 U.S. at 765, that Ayala was not
prevented from showing that the prosecution struck at least
one of these jurors because of his race.

     1. Olanders D.

    Olanders D. was one of two black jurors whom the
prosecution struck in the first round of peremptory
challenges. During the in camera hearing that followed the
defense’s Batson motion, the prosecutor explained that he
struck Olanders D. because: (1) he might not be able to vote
for the death penalty, as he had written in his questionnaire
that he did not believe in it, and he had indicated in
questioning that his view had recently changed; (2) his
answers to voir dire questions often were not fully
responsive; (3) his questionnaire responses had been “poor”;
and (4) he might lack the “ability to fit in with a cohesive
group of 12 people.” The trial judge rejected one of the four
proffered reasons — his purported inability “to fit in with a
cohesive group of 12 people.” The presence of defense


See infra Section V.B.2. The third reason — that he had been a “holdout”
on a prior jury — could have been called into question had defense
counsel been able to point out that the jury on which George S. had been
a “holdout” was a civil one, that the issue in dispute had been the
assessment of damages, and that unanimity was not required. The fourth
reason — that he had written in his questionnaire that the parties probably
would not want him to serve as a juror — overlapped entirely with the
third reason, as George S. had explained that he wrote that the parties
might not want him as a juror because he had been a civil jury “holdout.”
The fifth and final reason — that he placed excessive emphasis on the
Bible in his questionnaire — cannot be evaluated at all because the
questionnaire has been lost, along with those of others whom the
prosecutor might have passed.
                         AYALA V. WONG                              41

counsel, and the preservation of the questionnaires, could
have permitted Ayala to call into question all three of the
reasons that the court accepted as legitimate.

    First, in response to the prosecution’s claim that it was
concerned that Olanders D. would hesitate to impose the
death penalty, defense counsel could have pointed to seated
white jurors who had expressed similar or greater hesitancy.
One seated juror in particular was indistinguishable from
Olanders D. in this regard. Olanders D. had (apparently)
written in his questionnaire that he did not believe in the
death penalty. Ana L., a seated white juror, made almost
precisely the same statement in her questionnaire, writing that
she “probably would not be able to vote for the death
penalty.” Also, Olanders D. later said during voir dire that he
had reconsidered his views, and affirmed that he could be
“personally responsible for being on a jury and actually
voting for the death penalty.” Once again, Ana L. said almost
precisely the same thing: she stated that she had since
rethought her position, and affirmed that she could “actually
vote” for the death penalty.17

    Second, in answer to the prosecution’s purported concern
that Olanders D.’s answers on voir dire were not always fully
responsive, defense counsel could have questioned the
validity of this assessment, suggested that his answers were
in fact fully responsive, and pointed to seated white jurors
whose answers were less responsive than Olanders D.’s. Our


 17
   Other seated white jurors to whom defense counsel could have pointed
in order to show to be pretextual the prosecution’s stated concern that
Olanders D. would not be willing to impose the death penalty include
Dorothy C., Dorothea L., Dorothy H. and Leona B. See infra Section
V.B.2.
42                    AYALA V. WONG

review of the voir dire transcript reveals nothing that supports
the prosecution’s claim: Olanders D.’s answers were
responsive and complete. In order to make this fact clear to
the trial judge, defense counsel could once again have
compared Olanders D. to seated juror Ana L. Ana L. had, for
example, responded “That is correct” to a question asking
“why” she would prefer not to sit as a juror, stared blankly at
defense counsel in response to a question on the presumption
of innocence, and failed, at various points, to respond directly
to yes or no questions.

    Third, we cannot know exactly what arguments defense
counsel could have made to undermine the prosecution’s final
reason for striking Olanders D. — that his questionnaire
responses were “poor,” and demonstrated his inability to
express himself. Because Olanders D.’s questionnaire has
been lost, we may only speculate as to its contents. If the
reason his answers were “poor” was that they were not
particularly detailed, the defense could have compared his
questionnaire to that of Ana L., whose answers were brief and
often incomplete, or to that of Charles G., a seated white juror
whose responses to the 77 questions were rarely longer than
two or three words apiece. If the reason his answers were
poor was that they reflected an inability to think clearly or
express complex thoughts, the defense could have compared
his questionnaire to that of Thomas B., a seated white juror
who, for example, opined of street gangs, “I feel the only
media coverage they get is bad, however, those whom do
constructive events usually seek out positive media
coverage.” Further, this is an obvious instance in which the
defense is prejudiced by being unable to compare Olanders
D.’s answers to those of prospective white jurors who were
accepted by the prosecution but struck by the defense, and
                          AYALA V. WONG                                43

whose questionnaires have been lost.18 It is also, of course,
possible that Olanders D.’s answers were not poor at all. We
have no way of knowing.

    Thus, one of the four reasons given by the prosecution for
striking this prospective juror was determined to be without
merit by the trial judge; two failed to distinguish the juror

  18
     For example, Elizabeth S., who was in all likelihood white, was seated
as an alternate on a panel accepted by the prosecution — which never used
its sixth and final peremptory challenge in the selection of the alternate
jurors — but was later struck by the defense. Her questionnaire, which
was lost, might have been particularly valuable to Ayala for comparative
juror analysis if her written responses were anything like those she
delivered during voir dire. Consider the following exchange between the
trial court and Elizabeth S.:

         Q: Did you have an opportunity to review the summary
         of legal issues and preliminary questions? This was a
         packet of material in the juror’s lounge.

         A: No.

         Q: You didn’t read it?

         A. Not today. I read the papers that they gave me in
         the office.

         Q. Today?

         A. Yeah.

         Q. Okay. That was the summary of legal issues and
         preliminary questions?

         A. Yeah, Yeah.

Perhaps because of this and similar exchanges, she was later asked if she
had a hearing problem, which she did not.
44                    AYALA V. WONG

whatsoever from at least one seated white juror; and the
fourth and final reason the prosecution gave for striking the
juror cannot be evaluated because his questionnaire was lost,
as were those of the prospective white jurors struck by the
defense. Given the objective reasons that we have even on
this record to question the validity of the prosecution’s
explanations for striking Olanders D., we simply cannot
conclude that it is likely that, if the defense had been present
during the Batson proceedings and if the lost questionnaires
had been preserved, Ayala would not have been able to show
that the prosecution’s stated reasons for striking Olanders D.
were pretextual, and that the actual reasons were racial.

     2. Gerardo O.

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

     Once again, had the defense not been excluded from the
Batson proceedings, it likely could have called into question
all of the prosecution’s stated reasons for striking Gerardo O.
Defense counsel could have first argued that one reason given
                       AYALA V. WONG                           45

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

    An inference of racial bias might also have been drawn
from the prosecutor’s claim that Gerardo O. was challenged
because he did not dress or act like other jurors, and did not
mix or socialize with them. It is likely that Gerardo O.’s
dress and mannerisms were distinctly Hispanic. Perhaps in
the late 1980s Hispanic males in San Diego County were
more likely than members of other racial or ethnic groups in
the area to wear a particular style or color of shirt, and
Gerardo O. was wearing such a shirt (and for this reason did
46                      AYALA V. WONG

not “fit in,” in the prosecutor’s mind, with the other jurors).
If so, and if defense counsel were able to bring this fact to the
trial court’s attention, the prosecution’s explanation that it
struck Gerardo O. because of his dress and mannerisms
would provide compelling support for Ayala’s claim that the
strike was actually racially-motivated. See id. (“[A]n
invidious discriminatory purpose may often be inferred from
the totality of the relevant facts, including the fact, if it is true,
that the [classification] bears more heavily on one race than
another.”) (quoting Washington v. Davis, 426 U.S. 229, 242
(1976)). If present at the hearing, defense counsel could have
made a record that would have strongly supported these
claims.

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

     We can only speculate as to whether or how Ayala could
have shown this explanation for striking Gerardo O. to be
facially discriminatory, false or pretextual because we know
nothing about his dress or mannerisms, or that of the other
prospective jurors. These are exactly the sort of physical and
behavioral observations that the defense could have preserved
for the record had it been permitted to hear and respond to the
                      AYALA V. WONG                         47

prosecution’s explanations for challenging Gerardo O.
Although we might hope that the trial judge would have
noticed if Gerard O. had been wearing a shirt worn only by
members of the Hispanic community, or had been dressed
identically to other prospective jurors whom the prosecution
had not challenged, or had in fact been socializing with other
jurors, “we cannot affirm simply because we are confident he
must have known what he was doing.” Thompson, 827 F.2d
at 1261.

    Finally, in response to the prosecution’s third reason for
the strike — that Gerardo O. seemed reluctant to impose the
death penalty — defense counsel could have demonstrated
this reason to be pretextual through comparisons to jurors the
prosecution did not strike. Gerardo O. had stated during voir
dire that “I’m not sure if I can take someone’s life in my hand
and say . . . you know, ‘death,’ or something,” but he soon
thereafter affirmed that he “could vote for the death penalty.”
This statement was indistinguishable from those made by a
number of seated white jurors. Dorothy C. said in voir dire
that serving as a juror in a capital case would cause her to
“worry a lot” because it was “a lot of responsibility,” gasped
when defense counsel told her that as a juror she would
“decide the sentence,” and stated, “I’ve never had to vote on
a death penalty. That might be a little bit difficult when it
came right down to it, but I’d say I’m for it.” Likewise,
Dorothy H., when asked in voir dire if she could return a
verdict of death, stated, “I don’t think it would be an easy
thing for anyone, but I don’t — I think I could do it if I felt
it was the thing to do.” Dorothea L. was even more hesitant,
saying, when asked the same question, “I think so, but I don’t
know until I have to do it.” Finally, Leona B., when asked by
the prosecutor if having the responsibility for imposing the
death penalty would “bother” her, responded, “Yes, I think
48                    AYALA V. WONG

so. I think — I think one should be affected . . . by that. I
don’t think it’s anything to be taken lightly.” Certainly,
Gerardo O. expressed less hesitancy than Ana L., who had
flatly stated on her questionnaire that she “probably would
not be able to vote for the death penalty” before subsequently
changing her mind. Further, prospective white jurors
accepted by the prosecution but struck by the defense might
have expressed similar sentiments in their jury
questionnaires. We cannot tell, because these questionnaires
have been lost.

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

     3. Robert M.

    The prosecution struck Hispanic juror Robert M. in the
final round of peremptory challenges. In camera, the
prosecutor explained that he had been concerned, given
Robert M.’s response to voir dire questioning, that he might
not be willing to impose the death penalty. This concern had
been heightened by Robert M.’s mentioning the Sagon Penn
                      AYALA V. WONG                          49

case — a case in which the defendant was found not guilty in
a second trial and the police and the district attorney’s office
were accused of misconduct. The trial judge accepted the
prosecution’s explanation, stating that, although Martinez’s
“questionnaire would tend to indicate a person that is
certainly pro the death penalty[,] . . . his answers varied
somewhat to the extent that individually, there may well be
a legitimate concern as to whether or not he could impose it.”

    Defense counsel’s presence in the Batson proceedings
was necessary to call into question the prosecution’s claim
that it struck Robert M. because of his reluctance to impose
the death penalty. Even without comparing Robert M. to
other jurors permitted to serve, this explanation is highly
suspect: Robert M. repeatedly stated during voir dire that he
believed in the death penalty and could personally vote to
impose it, and his questionnaire (which has, of course, been
lost) manifested a similar enthusiasm according to the trial
judge. Defense counsel could have brought to the trial
court’s attention that the only statement potentially raising
any question whatsoever — that voting for a death sentence
might “weigh on his conscience,” and would be a “heavy”
decision — was indistinguishable from a practical standpoint
from statements by Dorothy C., who said that serving as juror
in a capital case was “a lot of responsibility” and would cause
her to “worry a lot,” Dorothy H., who stated that imposing the
death penalty would not “be an easy thing for anyone,”
Dorothea L., who said she would not know if she could
impose the death penalty until she had to do it, and Leona B.,
who affirmed that this responsibility would “bother” her.
Other prospective jurors who were struck by the defense, but
had been accepted by the prosecution, may have made
comparable statements in their questionnaires (which, again,
have been lost). Counsel could have argued that most jurors
50                     AYALA V. WONG

who believed in imposing the death penalty would consider
a decision to do so a “heavy” decision that would weigh on
one’s conscience. Following counsel’s argument, the judge
might well have recognized that there is indeed rarely a
“heavier” decision a citizen is ever asked to undertake.
Certainly, like Gerardo O., Robert M. was no more hesitant
than Ana L., who had actually at one point stated that she
would be unable to impose the death penalty.

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

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

        Robert M.: Well, I followed the Saigon [sic]
        Penn case.

        Prosecutor: All right.

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

     Second, although none of the seated jurors had been asked
a similar question, one seated white juror had on his own
initiative referred to a far more controversial capital case.
When asked to describe his feelings about the death penalty,
Douglas S. mentioned the “Harris” case, saying: “The Harris
case, which goes back . . . . I believe he’s on death row . . . I
                       AYALA V. WONG                          51

can’t even recall the exact crimes, but I remember them to be
quite bizarre, and — and here he was, facing execution, and
I don’t know.” Douglas S. was presumably referring to
Robert Alton Harris, who at the time of Ayala’s trial was on
California’s death row, and had, in a case that was
extensively covered by the press, been tried, convicted and
sentenced to death in San Diego. People v. Harris, 623 P.2d
240, 246 (Cal. 1981). As Harris’s case wound its way
through the state and federal courts, it generated substantial
controversy, some of which, as in the Sagon Penn case, was
related to allegations of official misconduct. See, e.g., id. at
267 (Bird, C.J., dissenting) (arguing that Harris had been
denied his right to a fair trial due to extensive and prejudicial
pretrial publicity, partially the product of the “sorry spectacle
of prosecutorial offices publicly vying with each other to
have ‘first crack’ at convicting the accused”); see also
Stephen R. Reinhardt, The Supreme Court, The Death
Penalty, and The Harris Case, 102 Yale L.J. 205, 205 & n.1
(1992) (for further description of controversy generated by
case). Douglas S.’s statement about the case — “here he was,
facing execution, and I don’t know” — suggests that this
controversy had created some doubt in his mind as to the
propriety of Harris’s conviction and sentence. Certainly,
Douglas S.’s unelicited discussion of the Harris case should
have troubled the prosecutor far more than Robert M.’s brief
direct response regarding the Sagon Penn case.

    Finally, if there was any inference to draw from Robert
M.’s fleeting reference to the Sagon Penn case, it was that
Robert M. would not return a guilty verdict based on a blind
trust of the police and the prosecution who had arrested and
charged the defendant with the crime. Numerous seated
white jurors expressed similar sentiments. Douglas S., for
example, stated that the last person who had lied to his face
52                    AYALA V. WONG

was a California policeman. Similarly, Charles C. said, “You
don’t change your stripes . . . when you put on a badge; and
you have to judge everybody’s testimony in a court case on
its face.”

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

                         *     *    *

    Although each of the reasons offered by the prosecution
for challenging the black and Hispanic jurors discussed above
could have been shown to be pretextual had defense counsel
been allowed to participate at steps two and three of the
Batson proceedings, it is not necessary that all of the reasons
advanced by the prosecution be pretextual or be shown to be
pretextual. Notwithstanding the existence of some apparently
appropriate reasons, “if a review of the record undermines . . .
many of the proffered reasons, the reasons may be deemed a
pretext for racial discrimination.” Kesser v. Cambra,
465 F.3d 351, 360 (9th Cir. 2006) (en banc) (quoting Lewis
v. Lewis, 321 F.3d 824, 830 (9th Cir. 2003)) (emphasis
added). In short, “[a] court need not find all nonracial
reasons pretextual in order to find racial discrimination” with
                       AYALA V. WONG                          53

respect to any particular juror, and the exclusion of any one
juror in violation of Batson requires reversal of the verdict.
Id.

                               C.

    Because the defense was excluded from the Batson
proceedings, it could not bring necessary facts and arguments
to the attention of the trial judge, the institutional actor best
positioned to evaluate the prosecution’s credibility and to
determine if its proffered reasons for striking the minority
jurors were its actual and legitimate reasons. Furthermore,
because the defense was excluded from the Batson
proceedings, the appellate courts reviewing this case cannot
engage in a proper comparative juror analysis, or know what
other facts and arguments might be employed to demonstrate
that the proffered reasons were false, facially discriminatory,
and pretextual. The latter form of prejudice was exacerbated
when the vast majority of the juror questionnaires were lost.

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

of the juror questionnaires, the case for prejudice under
Brecht is even more clear.

                              V.

     Although our conclusions in Parts III and IV — that the
state court committed federal constitutional error that
prejudiced Ayala under the Brecht standard — would dictate
that he be granted habeas relief, we may not grant such relief
if, as the state asserts, and the district court agreed, Ayala’s
claim (specifically his exclusion from stages two and three of
the Batson proceedings) is barred by Teague v. Lane,
489 U.S. 288 (1989). “[I]n addition to performing any
analysis required by AEDPA, a federal court considering a
habeas petition must conduct a threshold Teague analysis
when the issue is properly raised by the state.” Horn v.
Banks, 536 U.S. 266, 272 (2002).

    Under Teague, a “new constitutional rule[] of criminal
procedure” cannot be applied retroactively to cases on
collateral review. 489 U.S. at 310 (plurality opinion). Thus,
“[b]efore a state prisoner may upset his state conviction or
sentence on federal collateral review, he must demonstrate as
a threshold matter that the court-made rule of which he seeks
the benefit is not ‘new,’” but had been established at the time
his conviction became final. O’Dell v. Netherland, 521 U.S.
151, 156 (1997). “A holding constitutes a ‘new rule’ within
the meaning of Teague if it ‘breaks new ground,’ ‘imposes a
new obligation on the States or the Federal Government,’ or
was not ‘dictated by precedent existing at the time the
defendant’s conviction became final.’” Graham v. Collins,
                           AYALA V. WONG                                  55

506 U.S. 461, 467 (1993) (quoting Teague, 489 U.S. at
301).19

    We hold that Ayala’s claim does not require the
retroactive application of a new constitutional rule of criminal
procedure, and thus is not Teague-barred. At the time
Ayala’s conviction became final on May 14, 2001, it was
established that defense counsel must be permitted to be
present and offer argument during Batson steps two and three
when, as in Ayala’s case, the proceedings do not require the
prosecution to reveal confidential information or trial
strategy.

                                     A.

    In this Circuit, this rule was unequivocally “dictated by
precedent,” Teague, 489 U.S. at 301 (emphasis omitted), long
before Ayala’s conviction became final, having been
established in United States v. Thompson, 827 F.2d 1254 (9th
Cir. 1987). In Thompson, we held that a district court had
made a constitutional error when, after the defendant had
established a prima facie case under Batson, the court
permitted the prosecution to state the reasons for its
peremptory strikes ex parte. Observing that Batson step two
might sometimes require the prosecutor to “reveal
confidential matters of tactics and strategy,” we recognized
that in some circumstances there might be “compelling”

  19
     Teague is subject to two exceptions. See Saffle v. Parks, 494 U.S.
484, 494–95 (1990) (a “new rule” can be applied retroactively on
collateral review if “the rule places a class of private conduct beyond the
power of the State to proscribe,” or if it constitutes a “‘watershed rule[] of
criminal procedure’ implicating the fundamental fairness and accuracy of
the criminal proceeding”) (quoting Teague, 489 U.S. at 311). Neither party
contends that either exception is applicable in this case.
56                        AYALA V. WONG

reasons to conduct the proceedings ex parte. Id. at 1258–59.
We therefore declined to adopt an absolute rule holding that
the defense must always be permitted to participate at Batson
steps two and three. We held, however, that defense counsel
must be permitted to be present and offer argument during
Batson steps two and three if the prosecution’s proffered
race-neutral reasons do not involve confidential or strategic
information. Id. at 1258–59.20

     Our decision in Thompson represented the straightforward
application of two lines of Supreme Court precedent. The
first line of precedent finds its source in the Sixth
Amendment’s guarantee of the right to counsel. Because “the
plain wording of” the Amendment “encompasses counsel’s
assistance whenever necessary to assure a meaningful
‘defence,’” the Court has long held that the right applies at all
“critical” stages of criminal proceedings. United States v.
Wade, 388 U.S. 218, 224–25 (1967); see also, e.g., White v.
Maryland, 373 U.S. 59, 60 (1963); Gideon v. Wainwright,
372 U.S. 335, 345 (1963). Ultimately, the right to counsel
“has been accorded . . . ‘not for its own sake, but because of
the effect it has on the ability of the accused to receive a fair
trial.’” Mickens, 535 U.S. at 166 (quoting Cronic, 466 U.S.
at 658). Foremost among the attributes of a fair trial is the
requirement that it be adversarial in nature: “[t]he very
premise of our adversary system of criminal justice is that

 20
    The dissent suggests that, because Thompson recognized the need for
“occasional departures” from the rule regarding the exclusion of defense
counsel from Batson steps two and three, Thompson, 827 F.2d at 1258, its
conclusion was “not [] a clear rule of constitutional law.” Dissent at 78.
We are puzzled by this, as many constitutional rules recognize exceptions
— e.g., the exigency exception to the Fourth Amendment prohibition on
warrantless searches, and the public safety exception to Miranda — but
that does not make the rules any less clear.
                      AYALA V. WONG                         57

partisan advocacy on both sides of a case will best promote
the ultimate objective that the guilty be convicted and the
innocent go free.” Herring v. New York, 422 U.S. 853, 862
(1975). “The right to the effective assistance of counsel is
thus the right of the accused to require the prosecution’s case
to survive the crucible of meaningful adversarial testing.”
Cronic, 466 U.S. at 656. As we observed in Thompson,
“[t]he right of a criminal defendant to an adversary
proceeding is fundamental to our system of justice,” and thus
ex parte proceedings are justifiable only as “uneasy
compromises with some overriding necessity.” 827 F.2d at
1258.

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

    In Thompson, we recognized that the Batson framework
leaves defense counsel with “two crucial functions” that it
must be permitted to perform. 827 F.2d at 1260. The first
function is “to point out to the district judge where the
58                    AYALA V. WONG

government’s stated reason may indicate bad faith.” Id. As
we explained:

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

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

       All we have before us concerning this issue is
       the prosecutor’s explanation of her reasons
       and the district judge’s ruling. . . . [I]f we are
       to review the district judge’s decision, we
       cannot affirm simply because we are
       confident he must have known what he was
       doing. We can only serve our function when
       the record is clear as to the relevant facts, or
       when defense counsel fails to point out any
                          AYALA V. WONG                                59

         such facts after learning of the prosecutor’s
         reasons. . . . Here, the record’s silence cannot
         be reassuring.

Id. Thus, we held, only with the presence and assistance of
defense counsel can the trial judge and subsequent appellate
judges properly evaluate whether the defense has met its
burden of persuasion under Batson. Excluding the defense
from the Batson proceedings without some compelling
justification therefore violates the Constitution. Id. at
1259–61.21

    Thompson compels us to conclude that the rule Ayala
seeks is not, under Teague, a “new” one. “[C]ircuit court
holdings suffice to create a ‘clearly established’ rule of law
under Teague.” Belmontes v. Woodford, 350 F.3d 861, 884
(9th Cir. 2003) (reversed on other grounds by Brown v.


  21
     The state and the dissent, in arguing that Ayala’s claim is barred by
Teague, cite Lewis v. Lewis, 321 F.3d 824 (9th Cir. 2003), a case in which
we granted a habeas petitioner’s Batson claim. In the course of some
extended musings regarding the “ideal procedures under Batson,” id. at
830, the Lewis panel observed, in a footnote, that the argument that “a
court must allow defense counsel to argue” at Batson step three was not
“clearly established law,” as it “appears not to have been addressed by
courts.” Id. at 831 n.27. This passage is dicta, as the question of whether
defense counsel must be permitted to argue at Batson step three was not
“presented for review” in Lewis. Barapind v. Enomoto, 400 F.3d 744,
750–51 (9th Cir. 2005) (en banc) (per curiam). Indeed, this passage could
not represent anything but dicta, as the Lewis panel could not overrule our
prior decision in Thompson, of which it was apparently unaware. See
Miller v. Gammie, 335 F.3d 889, 899–900 (9th Cir. 2003) (en banc)
(holding that a prior panel’s decision may only be overruled by a
subsequent panel if the decision is “clearly irreconcilable” with a higher
court’s intervening ruling). Thompson’s holding thus unquestionably
remains binding Circuit law.
60                    AYALA V. WONG

Belmontes, 544 U.S. 945 (2005)); see Williams v. Taylor,
529 U.S. 362, 412 (2000) (O’Connor, J., for the Court)
(“With one caveat, whatever would qualify as an old rule
under our Teague jurisprudence will constitute ‘clearly
established Federal law, as determined by the Supreme Court
of the United States’ under § 2254(d)(1). . . . The one caveat,
as the statutory language makes clear, is that § 2254(d)(1)
restricts the source of clearly established law to this Court’s
jurisprudence.”). We have held that, as long as a rule derived
from Supreme Court precedent was established in this Circuit
when a petitioner’s conviction became final, it is not a “new
rule” under Teague. See Belmontes, 350 F.3d at 884; Bell v.
Hill, 190 F.3d 1089, 1092–93 (9th Cir. 1999). “This is true
even [if] other federal courts and state courts have rejected
our holding.” Bell, 190 F.3d at 1093. Because Thompson
itself relied on the Supreme Court’s right to counsel and equal
protection jurisprudence, “we cannot now say that a state
court would not have felt compelled by the Constitution and
Supreme Court precedent” to conclude that the rule Ayala
contends must be applied was not established at the time his
conviction became final. Id.

                              B.

    We would hold that Ayala’s claim is not Teague-barred
even if we were free to conclude that, contrary to Bell and
Belmontes, Thompson did not in and of itself establish that
the rule Ayala seeks is not “new.” Nearly every court to
consider the question by the time Ayala’s conviction became
final had adopted the rule that we set forth in Thompson,
concluding that defense counsel must be allowed to
participate at Batson steps two and three except when
confidential or strategic reasons justify the challenge. The
Fourth, Eighth and Eleventh Circuits had all so held. See
                      AYALA V. WONG                          61

United States v. Garrison, 849 F.2d 103, 106 (4th Cir. 1988)
(“We . . . agree with the Ninth Circuit that the important
rights guaranteed by Batson deserve the full protection of the
adversarial process except where compelling reasons
requiring secrecy are shown.”); United States v. Roan Eagle,
867 F.2d 436, 441 (8th Cir. 1989) (“[O]nce the prosecutor has
advanced his racially neutral explanation, the defendant
should have the opportunity to rebut with his own
interpretation.”); United States v. Gordon, 817 F.2d 1538,
1541 (11th Cir. 1987) (remanding for an evidentiary hearing
where the district court had denied the defendant’s request for
a hearing to rebut the government’s proffered race-neutral
reasons). The state courts that confronted the issue had all
reached similar conclusions. See Ayala, 6 P.3d at 203; Goode
v. Shoukfeh, 943 S.W.2d 441, 452 (Tex. 1997); People v.
Hameed, 88 N.Y.2d 232, 238 (1996); State v. Hood, 245 Kan.
367, 378 (1989); Gray v. State, 317 Md. 250, 257–58 (1989);
Commonwealth v. Jackson, 386 Pa. Super. 29, 51 (1989);
Commonwealth v. Futch, 38 Mass. App. Ct. 174, 178 (1995);
see also Caspari v. Bohlen, 510 U.S. 383, 395 (1994) (“[I]n
the Teague analysis the reasonable views of state courts are
entitled to consideration along with those of federal courts.”).

    These courts adopted the Thompson rule with good
reason. The Sixth Amendment provides that the defendant
must be permitted to have the assistance of a trained advocate
at all critical stages of the proceedings in order to test and
challenge all aspects of the prosecution’s case. See Cronic,
466 U.S. at 656. Batson did not suggest that there should be
an exception to this overarching rule when a defendant has
established a prima facie case that the prosecutor has struck
jurors on the basis of race. To the contrary, it makes no sense
to put the burden of persuasion on the defense, as Batson
does, and then refuse defense counsel the opportunity to hear
62                         AYALA V. WONG

and respond to the prosecution’s explanations. The rule
Ayala seeks is not in any sense new, but rather one which, as
almost all courts to have considered the question have
concluded, follows directly from the more general rule that
the defendant has the right “to require the prosecution’s case
to survive the crucible of meaningful adversarial testing.” Id.;
see also Wright v. West, 505 U.S. 277, 308–09 (1992)
(Kennedy, J., concurring in the judgment) (“Where the
beginning point is a rule of . . . general application, a rule
designed for the specific purpose of evaluating a myriad of
factual contexts, it will be the infrequent case that yields a
result so novel that it forges a new rule, one not dictated by
precedent.”).

    The state and the dissent call our attention to two
decisions that reached a contrary conclusion, both of which
were decided soon after the Court issued Batson. In United
States v. Davis, the Sixth Circuit rejected a defendant’s
argument that his right to be present had been violated when
the trial court allowed the prosecution to explain its
peremptory strikes in camera, holding that “the district court
was entitled to hear from the Government under whatever
circumstances the district court felt appropriate.” 809 F.2d
1194, 1202 (6th Cir. 1987). Similarly, in United States v.
Tucker, the Seventh Circuit held that the Sixth Circuit was
correct to conclude that “Batson neither requires rebuttal of
the government’s reasons by the defense, nor does it forbid a
district court to hold an adversarial hearing.” 836 F.2d 334,
340 (7th Cir. 1988).22


  22
    The state and the dissent also cite a third decision that they contend
demonstrates that there is a Circuit split that precludes our finding that the
rule Ayala seeks was “dictated by precedent.” In Majid v. Portuondo,
where the issue was whether the defense had the right to cross-examine
                           AYALA V. WONG                                63

    These decisions do not render Ayala’s claim Teague-
barred. “[T]he standard for determining when a case
establishes a new rule is ‘objective,’ and the mere existence
of conflicting authority does not necessarily mean a rule is
new.” Williams, 529 U.S. at 410 (quoting Wright, 505 U.S.
at 304 (1992) (O’Connor, J., concurring in the judgment)).
To the extent that these decisions deny that there is any right
to participate in Batson proceedings, they simply cannot be
reconciled with the basic Sixth Amendment requirement that,
at all critical stages of criminal proceedings, the defendant
must have the assistance of counsel in order to subject the
prosecution’s case to adversarial testing. That the courts in
Davis and Tucker failed to fully appreciate the relevance of
this principle is understandable, as in neither case did the
defendants invoke the right to counsel to support their claim:
in Davis, the defendants asserted that the in camera hearings
had violated their right to be present at trial, a right derived
principally from the Sixth Amendment’s Confrontation
Clause, see Davis, 809 F.2d at 1200; in Tucker, the defendant
claimed that the ex parte proceedings violated his rights to
due process and to an impartial jury, see Tucker, 836 F.2d at
338, 340. Perhaps for this reason, the Davis court failed to
recognize the important functions counsel serves during
Batson steps two and three, instead concluding that once the
defense had established a prima facie case of racial


witnesses at a Batson hearing, the Second Circuit remarked gratuitously
that “[i]t remains at least arguable that courts holding Batson hearings may
. . . hear the [prosecution’s] explanations in camera and outside the
presence of the defendants.” 428 F.3d 112, 128 (2d. Cir. 2005). The
question of whether a challenge to the type of in camera hearing
conducted in Ayala’s case is Teague-barred was not, however, before the
court. Moreover, this passage in Majid can be understood as observing
only that there is no absolute right to an adversarial proceeding, which is
consistent with the rule that Ayala seeks here.
64                         AYALA V. WONG

discrimination, its “participation was no longer necessary for
the district court to make its determination.” 809 F.2d at
1202. As we explained in Thompson, this statement is simply
not true: defense counsel continues to serve the two crucial
functions of bringing facts and arguments to the attention of
the trial court and preserving them for the record. Thompson,
827 F.2d at 1260–61. Likewise, the court in Tucker rejected
the rule we adopted in Thompson because it concluded that
Batson itself did not require the defense to be present during
Batson steps two and three, and because our exception
permitting ex parte proceedings in some circumstances
threatened to “swallow the rule.” See Tucker, 836 F.2d at
338, 340. Our rule is not, however, derived directly from
Batson, but rather from the confluence of Batson and the
Court’s Sixth Amendment jurisprudence. Moreover, the fact
that a rule is subject to an exception — perhaps even a
relatively broad exception — is not a justification for
rejecting the rule altogether when the result, in those cases in
which the exception does not apply, is to deprive a defendant
of his constitutional rights.23

    Even assuming some doubt may have existed as to
whether the rule Ayala seeks was “dictated by precedent” in
the immediate aftermath of the Sixth and Seventh Circuits’
decisions in 1987 and 1988, by the time Ayala’s conviction


   23
      Tucker itself may be read to recognize this point, as it did not
explicitly reject our conclusion that an adversarial hearing at Batson steps
two and three was sometimes constitutionally compelled. Id. at 340. It
observed that, in general, “adversarial hearings are the most appropriate
method for handling most Batson-type challenges.” Id. Thus, although
the Tucker court purported to reject Thompson in favor of Davis, the
decision did not necessarily foreclose defendants from claiming that their
rights had been violated by the trial court’s employment of a
nonadverserial Batson proceeding.
                          AYALA V. WONG                                65

became final in 2001, 13 years later, every court to have
considered the issue in the interim — state and federal — had
rejected, either explicitly or implicitly, the Sixth and Seventh
Circuits’ view, and had adopted the Thompson rule. See
Garrison, 849 F.2d at 106; Roan Eagle, 867 F.2d at 441;
Ayala, 6 P.3d at 203; Goode, 943 S.W.2d at 452; Hameed,
88 N.Y.2d at 238; Hood, 245 Kan. at 378; Gray, 317 Md. at
257–58; Jackson, 386 Pa. Super. at 51; Futch, 38 Mass. App.
Ct. at 178. The Supreme Court had also, in the interim,
acknowledged a version of our rule when it observed (in
dicta) that, when a prosecutor challenges a defendant’s use of
peremptory challenges, “[i]n the rare case in which the
explanation for a challenge would entail confidential
communications or reveal trial strategy, an in camera
discussion can be arranged.” Georgia v. McCollum, 505 U.S.
42, 58 (1992). Thus, the California Supreme Court
characterized the rule Ayala sought — the Thompson rule —
as one that had been “almost universally recognized.” Ayala,
6 P.3d at 203. Given that the California Supreme Court’s
description is correct, the rule that Ayala would have us apply
is not Teague-barred.24

  24
    We also note that where, as here, the state court applied the rule in
question on direct appeal, and determined it to be “almost universally
recognized,” the application of Teague to bar the petitioner’s claims would
do little to further the doctrine’s purpose. Teague is motivated by
considerations of comity and finality. See Teague, 489 U.S. at 308. Its
purpose is to afford repose to the states by ensuring that criminal
convictions that were valid at the time they became final will not be upset
by subsequently discovered constitutional rules. As Justice O’Connor
explained, applying new rules on collateral review

         continually forces the States to marshal resources in
         order to keep in prison defendants whose trials and
         appeals conformed to then existing constitutional
         standards. Furthermore, as we recognized in Engle v.
66                         AYALA V. WONG

    Accordingly, we conclude that, at the time Ayala’s
conviction became final, it was established for purposes of
Teague that defense counsel cannot be excluded from Batson
steps two and three absent some “compelling justification”
for doing so. Thompson, 827 F.2d at 1259–60. The
California Supreme Court held that this rule was violated in
Ayala’s case. It found, and the state does not dispute, that
“no matters of trial strategy were revealed” in the hearings at
which the prosecution explained its reasons for its peremptory
challenges of all the potential black and Hispanic jurors.




         Isaac, “[s]tate courts are understandably frustrated
         when they faithfully apply existing constitutional law
         only to have a federal court discover, during a [habeas]
         proceeding, new constitutional commands.” [456 U.S.
         107, 128 n.33 (1982).]

Id. at 310. Although Teague may still bar the application in federal habeas
proceedings of rules that the state courts have themselves recognized, cf.
Beard v. Banks, 542 U.S. 406, 413 (2004), Horn, 536 U.S. at 272, the
interests of comity and finality are obviously far less weighty when a state
court has accepted a rule than when it has rejected or ignored a rule. Here,
the state is not being forced to marshal resources to defend against a new
and novel claim that was not recognized at the time the conviction became
final; nor did it faithfully apply existing constitutional law only to have a
federal court subsequently apply new constitutional commands. To the
contrary, the state is challenging a rule that the California Supreme Court
found to be well established and controlling at the time it affirmed Ayala’s
conviction on direct appeal, as well as at the time the trial court conducted
its proceedings. Certainly the state court could not be “frustrated” to find
that a federal court determined that it was error to exclude the defense
from the Batson proceedings when the state court itself had held that this
very same rule was “almost universally recognized” and reached the same
determination itself.
                           AYALA V. WONG                                  67

Ayala, 6 P.3d at 203.25 Thus, the exclusion of defense
counsel was in violation of the Constitution, and the only
remaining question as to that aspect of the case is whether the
constitutional error was prejudicial.

                                    VI.

    Our dissenting colleague makes three assertions that are
fundamental to her disagreement with our opinion. All are
plainly erroneous and illustrate her misunderstanding of the
nature of our holding. First, the dissent suggests that, because
the trial court accepted the prosecutor’s rationale for striking
these jurors, deference to its ruling is required under AEDPA,
citing Rice v. Collins, 546 U.S. 333, 338–39 (2006). Dissent
at 109–10. Second, and along similar lines, the dissent


   25
      The dissent attempts to reframe the Teague analysis as follows:
Thompson merely articulated the rule that defense counsel could not be
excluded without “compelling” justification; it was not until after Ayala’s
conviction became final that courts recognized that the prosecutor’s
explanation in this case (i.e., not revealing his strategy to the defense) was
“not a valid reason not to follow the norm of an adversarial proceeding.”
Dissent at 79.

     To the contrary, Thompson directly addressed the government’s
argument that “an adversary hearing is inappropriate because the
government lawyer is required to reveal confidential matters of tactics and
strategy.” Thompson, 827 F.2d at 1259. In that case, we rejected this
claim as a general proposition and held that the determination of whether
revealing case strategy could be a compelling justification in a particular
case must be determined by examining whether the facts in that case
warranted an exception to the general rule. Id. Rules applied on a case-by-
case basis do not raise Teague issues. See Wright v. West, 505 U.S. 277,
308 (1992) (Kennedy, J., concurring) (“If the rule in question is one which
of necessity requires a case-by-case examination of the evidence, then we
can tolerate a number of specific applications without saying that those
applications themselves create a new rule.”).
68                     AYALA V. WONG

accuses us of failing to give the state court decision the
“benefit of the doubt,” citing Felkner v. Jackson, ___ U.S.
___, 131 S. Ct. 1305, 1307 (2011). Dissent at 119. Third, the
dissent assumes that Ayala must demonstrate that the
individual jurors were struck for racial reasons by “clear and
convincing evidence,” citing 28 U.S.C. § 2254(e)(1). Dissent
at 105, 109.

    Each of these assertions assumes, incorrectly, that we are
confronting an ordinary Batson challenge on habeas review
— a challenge to the holding in a case in which defense
counsel was able to present arguments to the trial court
regarding racial bias, appeal that claim to the state appellate
court, and subsequently seek reversal in federal court of the
judgment that none of the jurors was struck by the
prosecution for impermissible racially motivated reasons.
Rice and Felkner are precisely such cases. The Supreme
Court has emphasized, in such cases, that deference is
required, that the petitioner must demonstrate his factual
claims of prosecutorial bias by clear and convincing
evidence, and that we may not give the petitioner the benefit-
of-the-doubt with regard to the existence of racial prejudice.
However, this case is not an ordinary Batson challenge, and
for the reasons we have explained supra the dissent’s
approach is both inapplicable and wholly inappropriate. This,
as the dissent consistently ignores, is a case in which the
challenge is to the procedure employed by the trial court in
conducting the Batson inquiry — a procedure that resulted in
the denial of a fair Batson hearing to the defendant. Thus, it
is not our task here to show that Ayala should have prevailed
on his Batson claim, but only that he was prejudiced in his
ability to prevail on that claim by the fact that his counsel was
not present at the Batson hearing.
                      AYALA V. WONG                        69

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

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

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

28 U.S.C. § 2254(e)(1). We have previously held, in
interpreting § 2254(e)(1), that “the presumption of
correctness and the clear-and-convincing standard of proof
70                        AYALA V. WONG

only come into play once the state court’s fact-findings
survive any intrinsic challenge.” Taylor v. Maddox, 366 F.3d
992, 1000 (9th Cir. 2004) (emphasis added) (cited by but
expressly not overruled in Wood v. Allen, 588 U.S. 290,
299–301 & n.1 (2010)). In Taylor, we explained that a state
court factual finding is intrinsically flawed if “the process
employed by the state court is defective,” Id. at 999 (citing
Nunes v. Mueller, 350 F.3d 1045, 1055–56 (9th Cir. 2003)).
Here, the state court admitted that precluding Ayala’s counsel
from establishing a Batson violation at stages two and three
of the state’s trial court proceeding constituted procedural
error. Under Taylor, because the state court proceeding was
flawed, it is not entitled to a presumption of correctness, and
Ayala is not required to demonstrate his Batson claim by
clear and convincing evidence. The dissent’s assertion is
contrary to AEDPA and to Taylor and would simply erect an
insurmountable barrier that would protect the conceded error
against any effective federal review.26

                                  VII.

    We hold that the exclusion of Ayala and his counsel
during Batson steps two and three constitutes prejudicial
error. In the language of Brecht: we cannot say that had
counsel been permitted to participate in the Batson
proceedings, Ayala would have been unable to show that the
prosecution violated Batson. To the contrary, constitutional


 26
   There is one additional error our dissenting colleague makes that is not
limited to the Batson context but would rewrite the law of prejudice in all
habeas cases. For that reason, it deserves mention here. As we have
explained supra, the well-established Brecht standard governing prejudice
has not been revised or modified, and the dissent’s suggestion to the
contrary is without merit. See discussion supra at 32–35 & nn.12–13.
                         AYALA V. WONG                             71

error on the part of the state likely prevented Ayala from
showing that the prosecution utilized its peremptory
challenges in a racially discriminatory manner, and thus
permitted him to be tried, convicted, and sentenced to death
by a jury selected in a manner repugnant to the Constitution.
Accordingly, we reverse the judgment of the district court,
and remand with instructions to grant the writ and order that
Ayala be released from custody unless the state elects to retry
him within a reasonable amount of time to be determined by
the district court.

    REVERSED and REMANDED.



CALLAHAN, Circuit Judge, dissenting:

    In 1985, Hector Juan Ayala shot and killed three men. In
1989, he was convicted of three counts of murder, and the
jury returned a death sentence. On direct appeal his
conviction and sentence were affirmed by the California
Supreme Court in 2000. People v. Ayala, 6 P.3d 193 (Cal.
2000). The Supreme Court of the United States denied his
petition for certiorari in 2001. Ayala v. California, 532 U.S.
908 (2001). Ayala filed his initial petition for a writ of
habeas corpus in the United States District Court for the
Southern District of California in 2002. This appeal is from
the district court’s February 17, 2009, final order denying the
petition.1




  1
    There does not appear to be any question that there was sufficient
evidence to convict Ayala of murder. See Ayala, 6 P.3d at 199–201.
72                        AYALA V. WONG

    The majority holds, based primarily on law developed
after Ayala’s trial, that Ayala must be released or retried
because it suspects the prosecutor might have had a racial
motive in recusing seven jurors. It does so by inappropriately
deconstructing the California Supreme Court’s opinion to
justify its evasion of the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) so that it may review the
state trial court’s 1989 decisions de novo. Because Ayala’s
federal claim is Teague-barred, and because the majority’s
approach and conclusion are contrary to AEDPA and recent
Supreme Court opinions, I dissent.

                                   I

    I agree with the district court and the State that Ayala’s
claim that he was deprived of his constitutional rights when
his attorney was not present when the prosecutor offered his
reasons for the challenged recusals, is barred under Teague v.
Lane, 489 U.S. 288 (1989).2

      A. The standard for determining whether a claim is
         barred under Teague.

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

         “[A] case announces a new rule if the result
         was not dictated by precedent existing at the


  2
     Because it is clear that Ayala’s claims would be Teague-barred if
reviewed de novo, the majority should have begun and ended with this
Teague analysis, rather than reach the more difficult questions regarding
the standard of review under 28 U.S.C. § 2254(d).
                            AYALA V. WONG                           73

           time the defendant’s conviction became
           final.” Teague v. Lane, supra, 489 U.S. at
           301. In determining whether a state prisoner
           is entitled to habeas relief, a federal court
           should apply Teague by proceeding in three
           steps. First, the court must ascertain the date
           on which the defendant’s conviction and
           sentence became final for Teague purposes.
           Second, the court must “[s]urve[y] the legal
           landscape as it then existed,” Graham v.
           Collins, supra, 506 U.S., at 468, and
           “determine whether a state court considering
           [the defendant’s] claim at the time his
           conviction became final would have felt
           compelled by existing precedent to conclude
           that the rule [he] seeks was required by the
           Constitution,” Saffle v. Parks, 494 U.S. 484,
           488 (1990). Finally, even if the court
           determines that the defendant seeks the
           benefit of a new rule, the court must decide
           whether that rule falls within one of the two
           narrow exceptions to the nonretroactivity
           principle. See Gilmore v. Taylor, 508 U.S.
           333, 345 (1993).

Id. at 390 (emphasis as quoted in Caspari).3

    There is no dispute that Ayala’s conviction became final
in May 2001, when the Supreme Court denied certiorari, and
Ayala does not assert that he comes within either of the two
narrow exceptions. The remaining question is whether, in


 3
     In all quotations, the parallel citations have been omitted.
74                    AYALA V. WONG

May 2001, the unconstitutionality of ex parte procedure used
by the trial court in 1986 was “dictated” by precedent.

     B. The evolution of Batson as of May 2001.

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

    In setting forth this three-step standard, the Supreme
Court specifically declined “to formulate particular
procedures to be followed upon a defendant’s timely
objection to a prosecutor’s challenges.” Id. at 99. The Court
reiterated that “[i]n light of the variety of jury selection
practices followed in our state and federal trial courts, we
make no attempt to instruct these courts how best to
implement our holding today.” Id. at 99 n.24. As a result,
                      AYALA V. WONG                          75

during the quarter of a century that has passed since Batson,
courts have considered numerous ways of applying Batson’s
three-step standard.

    Ayala’s primary argument is that the trial court’s
exclusion of him and his counsel from the proceedings in
which the prosecution justified its recusal of seven jurors
violated his constitutional rights to assistance of counsel at
critical stages of the proceedings, to be personally present,
and to assist his counsel in his defense. In response, the State
argued and the district court held that in 2001, when Ayala’s
conviction became final, the exclusion of Ayala and his
counsel from the proceedings was not a constitutional
violation, and hence, Ayala’s claim was barred by Teague,
489 U.S. 288.

    The California Supreme Court, in reviewing Ayala’s
direct appeal, concluded that it was “almost universally
recognized that ex parte proceedings following a motion
regarding peremptory challenges allegedly made on the basis
of improper group bias are poor procedure and should not be
conducted unless compelling reasons justify them.” Ayala,
6 P.3d at 203.

    The majority claims that in May 2001 this rule had been
“unequivocally ‘dictated by precedent’” as a result of our
opinion in United States v. Thompson, 827 F.2d 1254 (9th
Cir. 1987). Majority at p. 75. Thompson concerned a 1985
criminal trial in a federal district court. The judge alone
conducted voir dire and “the government used four of its
peremptory challenges to exclude all four blacks in the
venire.” Id. at 1256. When Thompson’s lawyer moved for
a mistrial, the district court “allowed the government to put
its reasons for the disputed peremptory challenges on the
76                        AYALA V. WONG

record, albeit in camera and out of the presence of the
defendant and his lawyer.” Id. Thompson appealed, arguing
that this procedure violated his Fifth Amendment right to due
process and his Sixth Amendment right to a fair and impartial
jury. Id. A divided panel concluded that the “district court
erred in refusing to allow defense counsel in this case to hear
the government’s reasons for excluding the black potential
jurors and to present argument thereon.” Id. at 1261. We
explained that “situations where the court acts with the
benefit of only one side’s presentation are uneasy
compromises with some overriding necessity, such as the
need to act quickly or to keep sensitive information from the
opposing party. Absent such compelling justification, ex
parte proceedings are anathema in our system of justice and,
in the context of a criminal trial, may amount to a denial of
due process.”4 Id. at 1258–59.

         C. Ayala’s Sixth Amendment claim was not dictated
            by precedent in 2001.

    In Horn v. Banks, 536 U.S. 266, 272 (2002), the Supreme
Court held that “a federal court considering a habeas petition
must conduct a threshold Teague analysis when the issue is
properly raised by the state,” even if the state supreme court
did not consider the issue. Thus, we are required to
determine as a threshold matter whether Ayala’s claim is
Teague-barred. I would hold that Ayala’s claim is Teague-
barred because it was not “dictated” by Supreme Court case
law, and the case Ayala relies upon, Thompson, did not


     4
     The dissent argued that the majority’s choice of an adversarial
proceeding over an in camera proceeding was contrary to the Supreme
Court’s decision in Batson not to formulate particular procedures. Id. at
1262 (Sneed, J., dissenting).
                      AYALA V. WONG                          77

announce a clear constitutional rule. The majority confuses
the wisdom of Thompson with whether that wisdom had been
embraced by 2001.

    Thompson is not a Supreme Court opinion and concerned
a federal court trial, not a state court trial. Accordingly, it
could not dictate the result in Ayala’s case when his
conviction became final. In Massachusetts Delivery Ass’n v.
Coakley, 671 F.3d 33, 47 (1st Cir. 2012), the First Circuit
reiterated that “[s]tate courts are not bound by the dictates of
the lower federal courts, although they are free to rely on the
opinions of such courts when adjudicating federal claims.”
(internal citations omitted.). Similarly, in Bromley v. Crisp,
561 F.2d 1351, 1354 (10th Cir. 1977), the Tenth Circuit noted
that “the Oklahoma Courts may express their differing views
on the retroactivity problem or similar federal questions until
we are all guided by a binding decision of the Supreme
Court.” Also, in U.S. ex rel. Lawrence v. Woods, 432 F.2d
1072, 1076 (7th Cir. 1970), the Seventh Circuit agreed that
“because lower federal courts exercise no appellate
jurisdiction over state tribunals, decisions of lower federal
courts are not conclusive on state courts.” Consistent with
our sister circuits’ decisions, our prior opinion in Thompson,
which was an appeal from a federal criminal action, was not
binding on the California Supreme Court.

    Furthermore, even though the logic behind the opinion in
Thompson may be compelling, the opinion does not set forth
a clear rule of constitutional law. The opinion recognized
that there were “occasional departures from” the norm of
holding adversarial proceedings, noted a number of instances
in which in camera proceedings were appropriate, and
concluded that departure from the norm “may amount to a
denial of due process.” Id. at 1258–59 (emphasis added).
78                    AYALA V. WONG

The language in Thompson is vague compared, for example,
to our statement in Menefield v. Borg, 881 F.2d 696, 699 (9th
Cir. 1989), that “we hold that the right to counsel attaches to
the motion for a new trial stage.”

    The fact that Thompson did not lay down a clear rule of
constitutional law is confirmed by a review of other Ninth
Circuit cases as well as decisions by our sister circuits. In
Lewis v. Lewis, 321 F.3d 824, 831 n.27 (9th Cir. 2003), we
observed that “[c]ertainly, requiring a court to allow defense
counsel to argue [during the three-step Batson process] is not
clearly established law.” Thus, fifteen years after Thompson
issued, we did not think that Thompson established a clear
rule of constitutional law. In Majid v. Portuondo, 428 F.3d
112 (2d Cir. 2005), the Second Circuit commented that “[i]t
remains at least arguable that courts holding Batson hearings
may, to the contrary, hear the explanations in camera and
outside the presence of the defendants.” Id. at 128 (citations
omitted). In United States v. Tucker, 836 F.2d 334, 340 (7th
Cir. 1988), the Seventh Circuit noted that the Supreme Court
in Batson expressly declined to formulate procedures and
disagreed with the Ninth Circuit’s opinion in Thompson
insofar as it required “adversarial hearings once a defendant
establishes a prima facie case of purposeful discrimination.”
Similarly, in United States v. Davis, 809 F.2d 1194, 1202 (6th
Cir. 1987), the Sixth Circuit commented that Batson does not
“require the participation of defense counsel while the
Government’s explanations are being proffered.”

    The majority strives mightily to distinguish these cases on
the grounds that they are not well-reasoned, in some instances
are dicta, and have been rejected by other circuits and most
state courts. But the standard established by the Supreme
Court for determining whether an issue is Teague-barred is
                           AYALA V. WONG                                79

not the merits of the old rule, or even recognition of the
wisdom of the new rule, but whether the new rule was
“dictated by precedent.” Caspari, 510 U.S. at 390. These
conflicting cases confirm that Thompson did not dictate the
result in Ayala’s case.

    Moreover, as noted, the rule that the majority claims was
established in Thompson is not a bright-line rule. Rather, at
most, Thompson states that defense counsel could not be
excluded absent some “compelling justification.” See
Majority at p. 66. Here, the prosecutor offered an explanation
for seeking to present his reasons in camera: he did not want
to reveal his strategy to the defense. Following Thompson
and the other cases cited by the majority, it is now clear that
this is not a valid reason not to follow the norm of an
adversarial proceeding.5 However, this was not firmly
established in 2001 when Ayala’s conviction became final.

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




   5
     The California Supreme Court carefully considered the prosecutor’s
claim that his reasons for the recusals would disclose matters of strategy.
It concluded that the prosecutor had “simply [given] the reasons for his
challenges, reasons that defendant was entitled to hear and that disclosed
no secrets of trial strategy.” Ayala, 6 P.3d at 202–03. Accordingly, it
concluded that “[i]t was unreasonable to exclude defendant from the
hearings.” Id. at 203. The California Supreme Court was right. However,
for purposes of the application of Teague, the point is that this conclusion
was neither dictated nor compelled when Ayala’s conviction became final.
80                    AYALA V. WONG

                              II

    Assuming the issue is not Teague-barred, we must next
turn to the question of what exactly the California Supreme
Court held and what deference it is owed. The court first
acknowledged that “no particular procedures are
constitutionally required” to conduct a Batson hearing,
thereby rejecting Ayala’s federal claim. Ayala, 6 P.3d at 202.
“The next question,” it said, was “whether it was error to
exclude defendant from participating in the hearings on his
Wheeler motions.” It concluded that “as a matter of state
law, it was.” Id. at 203 (emphasis added). After conducting
a thorough review of relevant state and federal precedents, it
reiterated that it had “concluded that error had occurred under
state law” and “noted” Thompson’s suggestion that the error
may amount to a denial of due process. Id. at 204.
Nonetheless, it concluded that the error was “harmless under
state law, and that, if federal error occurred, it, too, was
harmless beyond a reasonable doubt as a matter of federal
law.” Id. (internal citations omitted). Thus, although there
may be some question as to whether the California Supreme
Court actually found that there was federal error, it clearly
addressed Ayala’s federal claim in determining that whatever
federal error occurred, it was harmless as a matter of federal
law.

    The majority and I part ways as to how to review this
holding. Because the state court adjudicated Ayala’s federal
claim on the merits and rejected it, we must accord that
decision deference underAEDPA. See Johnson v. Williams,
133 S. Ct. 1088, 1094 (2013) (“[W]hen a federal claim has
been presented to a state court and the state court has denied
relief, it may be presumed that the state court adjudicated the
claim on the merits in the absence of any indication or
                          AYALA V. WONG                              81

state-law procedural principles to the contrary. (internal
citations omitted)”).

     However, the majority’s dislike for AEDPA drives it to
try to avoid its provisions. In its initial opinion, the majority
interpreted the Supreme Court’s opinion in Brecht v.
Abrahamson, 507 U.S. 619 (1993), in such a manner as to
allow it to grant relief without deferring to the California
Supreme Court. See Ayala v. Wong, 693 F.3d 945, 961–63
(9th Cir. 2012). The majority now takes a different tack in an
effort to circumnavigate AEDPA and review Ayala’s 1989
state court conviction de novo. Contrary to the Supreme
Court’s recent opinions, the majority deconstructs the
California Supreme Court’s opinion. In doing so, the
majority: (1) separates the California Supreme Court’s
finding of error under state law from its adjudication of the
federal claim; (2) decides that the California Supreme Court
did not determine whether there was error under federal law;
and then (3) concludes that it has “no reason to give
§ 2254(d) deference” to the California Supreme Court’s
decision. Majority at pp. 24–25.

    The majority’s approach is fundamentally flawed for at
least two reasons. First, it is contrary to the Supreme Court’s
opinions directing that any question as to whether a state
court considered a constitutional issue is to be resolved in
favor of finding that it did. Richter v. Harrington, 131 S. Ct.
770, 784–85 (2011); Johnson v. Williams, 133 S. Ct. 1088,
1094–96 (2013). Second, by separating the California
Supreme Court’s determination of Batson/Wheeler6 error


 6
   As the majority notes, People v. Wheeler, 22 Cal.3d 258 (1978), is the
California analogue to Batson. See Majority at p. 6 n.1. Accordingly, in
cases arising out of California, claims that minority jurists were
82                       AYALA V. WONG

from its adjudication of the federal claim, the majority evades
giving the opinion the deference demanded by AEDPA and
the United States Supreme Court.

     A. Supreme Court precedent compels the conclusion
        that the California Supreme Court decided
        Ayala’s federal claims on their merits.

     1. The California Supreme Court’s opinion.

    The California Supreme Court’s evaluation of the
Batson/Wheeler issue was clear and concise. It held that “it
was error to exclude defendant from participating in the
hearings on the Wheeler motions.” Ayala, 6 P.3d at 203.
Indeed, the California Supreme Court recognized that the
error enhanced “the risk that defendant’s inability to rebut the
prosecution’s stated reasons will leave the record
incomplete.” Id. at 204. As the majority admits, the
California Supreme Court cited both Batson and our opinion
in Thompson in concluding that “it seems to be almost
universally recognized that ex parte proceedings following a
motion regarding peremptory challenges allegedly made on
the basis of improper group bias are poor procedure and
should not be conducted unless compelling reasons justify
them.” Ayala, 6 P.3d at 203.

    The California Supreme Court then turned to the question
of prejudice and held:

           We have concluded that error occurred
        under state law, and we have noted
        Thompson’s suggestion that excluding the


improperly excluded are sometimes referred to as Batson/Wheeler claims.
                      AYALA V. WONG                          83

       defense from a Wheeler-type hearing may
       amount to a denial of due process. We
       nonetheless conclude that the error was
       harmless under state law (People v. Watson
       (1956) 46 Cal.2d 818, 836, 299 P.2d 243), and
       that, if federal error occurred, it, too, was
       harmless beyond a reasonable doubt
       (Chapman v. California (1967) 386 U.S. 18,
       24) as a matter of federal law.

6 P.3d at 204. There can be no doubt that the California
Supreme Court adjudicated the federal claim, first by
implicitly rejecting it, and then, as an alternative holding,
finding that any error was harmless.

   2. The majority’s deconstruction of the California
      Supreme Court’s opinion.

     The majority acknowledges this portion of the California
Supreme Court’s opinion. Majority at p. 13–14. However,
it then proceeds to mull over whether the state court (a) held
there was error under federal constitutional law, (b) held there
was no error under federal constitutional law, or (3) did not
decide whether there was error under federal constitutional
law. Id. These are idle musings, for the “only question that
matters under § 2254(d)(1)” is whether the petitioner’s claim
was adjudicated on the merits, and whether that adjudication
was contrary to or an unreasonable application of clearly
established Supreme Court precedent. Lockyer v. Andrade,
538 U.S. 63, 71 (2003). Whether one agrees with the
California Supreme Court’s decision or not, the federal claim
was clearly adjudicated.
84                        AYALA V. WONG

    The majority, although purporting to accept that the
California Supreme Court found constitutional error,
proceeds to argue that “alternatively” the exception to
deference set forth in Richter applies.7 Majority at pp. 19–20.
Exactly how the majority reaches this conclusion is not clear.
Here is its explanation:

         Richter and Williams instruct us to afford a
         rebuttable presumption that a fairly presented
         claim was “adjudicated on the merits” for
         purposes of § 2254(d), but this presumption is
         rebuttable if there is “any indication or
         state-law procedural principles” supporting
         the conclusion that the state court did not
         adjudicate the federal claim on the merits.
         Richter, 131 S. Ct. at 784–85. Here, the
         California Supreme Court denied Ayala relief
         overall but did so by (1) finding that the trial
         court committed error on state law grounds,
         (2) failing to make any express determination


  7
    This “alternate” approach, in addition to being incorrect, serves to
obscure the majority’s separation of the California Supreme Court’s
determination that there was federal constitutional error from that court’s
determination that any error “was harmless beyond a reasonable doubt as
a matter of federal law.” Ayala, 6 P.3d at 204 (internal citation omitted,
emphasis added). Without its alternate approach, the majority would be
hard pressed not to give the California Supreme Court’s determination of
harmless error the deference it is entitled to under AEDPA. This,
obviously, is our primary area of disagreement. I would, applying
AEDPA, defer to the California Supreme Court’s opinion. The majority,
instead, concocts an approach that circumvents AEDPA in order that it
may review Ayala’s 1989 conviction de novo. See Majority at pp. 36 (“If
we cannot say that the exclusion of defense counsel with or without the
loss of the questionnaires likely did not prevent Ayala from prevailing on
his Batson claim, then we must grant the writ.”).
                        AYALA V. WONG                          85

        of error on federal constitutional grounds, and
        (3) finding any error harmless under both the
        state and federal standards for harmless error.
        In the context of these holdings, the rebuttable
        presumption that Richter and Williams
        instruct us to afford is, in fact, rebutted. The
        California Supreme Court, by finding any
        alleged error harmless under both the state
        and federal standards for harmless error, had
        no reason to reach the question of whether
        federal constitutional error occurred.

Majority at p. 19–20.

    The majority then argues that the California Supreme
Court “would have had good reason not to decide the merits
of the federal constitutional issue” because courts generally
do not pass on questions of constitutionality unless
adjudication is unavoidable. Majority at p. 20. Also, by
analogy it draws on cases involving claims of ineffective
assistance of counsel under Strickland v. Washington,
466 U.S. 668 (1984), where the Supreme Court has
interpreted a state court’s silence as a failure to reach an issue
and thus not an adjudication on the merits. Majority at p. 21.

    The majority then proffers its vision of the law: “There
are circumstances in which, even if a state court has denied
relief overall, a state court’s silence with respect to a fairly
presented federal claim cannot be interpreted as an
‘adjudication on the merits’ for purposes of § 2254(d),
because the rebuttable presumption cited in Richter and
Williams is rebutted by the legal principles involved
(including the principle of constitutional avoidance) and
factual context applicable to a particular case.” Majority at
86                      AYALA V. WONG

p. 22–23. This novel approach allows the majority to assert
that the “California Supreme Court had no reason to reach
Ayala’s federal constitutional claim,” and to conclude that it
has “no reason to give § 2254 deference” to the California
Supreme Court’s decision. Majority at pp. 23–25.

     3. The majority’s approach is contrary to recent
        Supreme Court opinions.

    The majority’s deconstruction of the California Supreme
Court’s opinion, besides being unnecessary dicta and
unpersuasive, is contrary to recent Supreme Court opinions
that were directed at the Ninth Circuit. In both Richter,
131 S. Ct. 770, and Johnson, 133 S. Ct. 1088, the Supreme
Court reversed us for failing to give proper deference to the
state courts’ opinions.8 Moreover, the Supreme Court set
forth a clear standard that leaves no doubt that here the
California Supreme Court considered Ayala’s federal claims
on their merits.

     In Richter, the Court stressed that AEDPA “bars
relitigation of any claim ‘adjudicated on the merits in state
court,’ subject only to the exceptions in §§ 2254(d)(1) and
(d)(2).” 131 S. Ct. at 784 (internal quotation marks omitted).
The Court noted that there does not need to be “an opinion
from the state court explaining the state court’s reasoning,”
and the state court need not say it was adjudicating the federal
claim on its merits. Id. It further held that, “[w]hen a federal
claim has been presented to a state court and the state court
has denied relief, it may be presumed that the state court
adjudicated the claim on the merits in the absence of any

  8
    See Richter v. Hickman, 578 F.3d 944 (9th Cir. 2009); Williams v.
Cavazos, 646 F.3d 626 (9th Cir. 2011).
                            AYALA V. WONG                               87

indication or state-law procedural principles to the contrary.”
Id. at 784–85.

    Two years later, in Williams, a unanimous Supreme Court
found it necessary to remind us of this standard. Williams
challenged his conviction for first degree murder on the
ground that the trial court improperly dismissed a juror.
133 S. Ct. at 1093. The California state courts denied him
relief and the district court denied Williams’ habeas petition.
Judge Reinhardt, writing for a three-judge panel of the Ninth
Circuit, held that despite the Richter presumption, the state
courts had not adjudicated Williams’ federal claim,9 applied
a de novo standard of review, and granted relief. Williams,
646 F.3d at 641, 653.

    The Supreme Court firmly rejected our opinion. It first
noted that the assumption that a federal claim was overlooked

 9
     The panel had reasoned:

          It is obvious, not “theoretical” or “speculat[ive],” that
          Williams’s constitutional claim was not adjudicated at
          all, and so the Richter presumption is overcome. Id. at
          785. Specifically, the portion of the court’s opinion
          concerning the discharge of Juror No. 6 reveals that the
          court upheld his dismissal on the sole basis that the trial
          court had not abused its discretion in applying section
          1089. That the court engaged in an extended discussion
          of Williams’s statutory claim, but made no mention
          whatsoever of her more fundamental constitutional
          claim, is a compelling “indication” that the court either
          overlooked or disregarded her Sixth Amendment claim
          entirely, rather than that it adjudicated the claim but
          offered no explanation at all for its decision.

Williams v. Cavazos, 646 F.3d 626, 639 (9th Cir. 2011). The majority
appears to follow a similar course in the case at bar.
88                        AYALA V. WONG

by the state court is wrong for a number of reasons, including:
(1) “there are circumstances in which a line of state precedent
is viewed as fully incorporating a related federal
constitutional right,”10 Williams, 133 S. Ct. at 1094; (2) “a
state court may not regard a fleeting reference to a provision
of the Federal Constitution or federal precedent as sufficient
to raise a separate federal claim,” id. at 1095; and (3) “there
are instances in which a state court may simply regard a claim
as too insubstantial to merit discussion.” Id. The Supreme
Court concluded that, “[w]hen a state court rejects a federal
claim without expressly addressing that claim, a federal
habeas court must presume that the federal claim was
adjudicated on the merits.” Id. at 1096.

    If federal courts are to presume that a state court
considers a federal claim even when the court does not
expressly address the claim, it follows that where, as here, the
California Supreme Court’s opinion clearly reflects that the
court was aware of the federal claims, we must accept that the
federal claims were “adjudicated on the merits,” and limit any
relief according to § 2254(d). See Richter, 131 S. Ct. at 784.

    The majority, however, seizes on the Supreme Court’s
statement that the presumption “can in some limited
circumstances be rebutted,” Williams, 133 S. Ct. at 1096, and
adopts a definition of the exception that swallows the
presumption. The majority asserts that the presumption does
not apply because “it was not necessary for the state court to
reject the federal constitutional claim on the merits in order


     10
      The Supreme Court specifically noted that “[i]n California, for
example, the state constitutional right to be present at trial is generally
coextensive with the protections of the Federal Constitution.” 133 S. Ct.
at 1094–95 (internal quotation marks omitted).
                           AYALA V. WONG                                89

for it to deny relief to the petitioner,” and because “the facts
of this case dictate the conclusion that the California Supreme
Court believed that the error under state law also constituted
federal constitutional error.” Majority at p. 16. The first
reason is contrary to Williams because the Supreme Court
held that the presumption applies even where the state court
regards a federal claim “as too insubstantial to merit
discussion.” 133 S. Ct. at 1095. The second proffered reason
is also contrary to Williams because the Court held that the
presumption applies where “state precedent is viewed as fully
incorporating a related federal constitutional right.” Id. at
1094.

    Furthermore, in order to rebut the Richter presumption
there must be “reason to think some other explanation for the
state court’s decision is more likely.” Richter, 131 S. Ct. at
785. But here, there can be no doubt that the California
Supreme Court did consider Ayala’s federal claims, first by
stating that “no particular procedures are constitutionally
required” to hold a Batson hearing, and then, in the
alternative, holding that any federal error was harmless.
Ayala, 6 P.3d at 202–04. Thus, the California Supreme
Court’s opinion is not best read as addressing Ayala’s federal
claims, as the majority admits,11 but can only be so read.

   In sum, a review of the California Supreme Court’s
opinion allows for only one conclusion: that the court
considered Ayala’s federal claims. Moreover, even if this


 11
     The majority states: “if we were compelled to determine whether the
California Supreme Court adjudicated Ayala’s federal claim on its merits
in favor of the petitioner or the state, we would hold without the slightest
hesitation that it found that error occurred under federal constitutional
law.” Majority at p. 19.
90                          AYALA V. WONG

conclusion was not mandated, and the presumption set forth
by the Supreme Court in Richter and Williams came into
play, the presumption would be controlling. Because the
California Supreme Court considered Ayala’s federal claims
(and, in any event, must be presumed to have done so), the
AEDPA standard of review applies.

      B. The majority applies a de novo standard of review
         and fails to give proper deference to the California
         Supreme Court’s opinion.

    The majority’s treatment of the California Supreme
Court’s ruling on the Batson/Wheeler violation is a smoke
screen designed to obscure the fact that the majority reviews
prejudice de novo rather than under the AEDPA deference
standard. This approach cannot be squared with the Supreme
Court’s recent opinions, which require that we ask whether
the California Supreme Court’s determination that the error
was harmless beyond a reasonable doubt was “so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility of fair
minded disagreement.” Richter, 131 S. Ct. at 786–87.

      1. Deference is mandated by the statute and Supreme
         Court precedent.

   The applicable provisions of AEDPA are codified in
28 U.S.C. § 2254.12 The Supreme Court’s opinions hold that


 12
      Section 2254(d) reads in relevant part:

           (d) An application for a writ of habeas corpus on behalf
           of a person in custody pursuant to the judgment of a
           State court shall not be granted with respect to any
                        AYALA V. WONG                              91

the AEDPA standard applies to the California Supreme
Court’s finding of harmless error. In Richter, the Supreme
Court reiterated that federal habeas relief is not available
“unless it is shown that the earlier state court’s decision ‘was
contrary to’ federal law then clearly established in the
holdings of this Court,” or “‘was based on an unreasonable
determination of the facts’ in light of the record before the
state court.” 131 S. Ct. at 785 (internal citations omitted).
Thus, it does not matter whether the California Supreme
Court’s determination of harmless error is a question of fact,
or law, or mixed; it is entitled to deference under AEDPA.

    The Supreme Court further elaborated on the applicable
standard.     In Richter, it held that a “state court’s
determination that a claim lacks merit precludes federal
habeas relief so long as ‘fairminded jurists could disagree’ on


       claim that was adjudicated on the merits in State court
       proceedings unless the adjudication of the claim--

           (1) resulted in a decision that was contrary to, or
           involved an unreasonable application of, clearly
           established Federal law, as determined by the
           Supreme Court of the United States; or

           (2) resulted in a decision that was based on an
           unreasonable determination of the facts in light of
           the evidence presented in the State court
           proceeding.

       (e)(1) In a proceeding instituted by an application for a
       writ of habeas corpus by a person in custody pursuant
       to the judgment of a State court, a determination of a
       factual issue made by a State court shall be presumed to
       be correct. The applicant shall have the burden of
       rebutting the presumption of correctness by clear and
       convincing evidence.
92                       AYALA V. WONG

the correctness of the state court’s decision.” 131 S. Ct. at
786 (citing Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)). In addressing prejudice in a claim of ineffective
assistance of counsel under Strickland, the Supreme Court
held:

        [A] challenger must demonstrate “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 confidence in the
        outcome.”        [Strickland v. Washington,
        466 U.S. 668] at 694 [(1984)]. It is not
        enough “to show that the errors had some
        conceivable effect on the outcome of the
        proceeding.” Id. at 693. Counsel’s errors
        must be “so serious as to deprive the
        defendant of a fair trial, a trial whose result is
        reliable.” Id. at 687.

131 S. Ct. at 787–88. The Supreme Court again emphasized
this deference when it reversed us in Felkner v. Jackson,
131 S. Ct. 1305 (2011).13


  13
     Although the majority here engages in considerably more analysis
than we did in Felkner, the Supreme Court’s admonition remains
instructive. The Court held:

             The Batson issue before us turns largely on an
        “evaluation of credibility.” 476 U.S., at 98, n.21. The
        trial court’s determination is entitled to “great
        deference,” ibid., and “must be sustained unless it is
        clearly erroneous,” Snyder v. Louisiana, 552 U.S. 472,
        477 (2008).
                          AYALA V. WONG                              93

    2. The majority’s alternate standard of review is
       contrary to Supreme Court precedent.

    The majority, however, invokes Brecht, 507 U.S. 619, in
order to justify what is, in essence, a de novo standard of
review. Majority at pp. 32–35. The majority asserts that
relief may be granted if we find that the error had a
“substantial and injurious effect or influence in determining
the jury’s verdict,” Majority at p. 33 (quoting Brecht,
507 U.S. at 623), or “if one cannot say, with fair assurance,
after pondering all that happened without stripping the
erroneous action for the whole, that the judgment was not
substantially swayed by the error,” Majority at p. 34 (quoting
Merolillo v. Yates, 663 F.3d 444, 454 (9th Cir. 2011)), or
even where a “judge feels himself in virtual equipoise as to
the harmlessness of the error.” Majority at p. 34 (quoting
Merolillo, 663 F.3d at 454). That the majority essentially
conceives of this as de novo review is obvious from its
declaration that “[i]f we cannot say that the exclusion of


         That is the standard on direct review. On federal
         habeas review, AEDPA “imposes a highly deferential
         standard for evaluating state-court rulings” and
         “demands that state-court decisions be given the benefit
         of the doubt.” Renico v. Lett, 130 S. Ct. 1855, 1862,
         (2010) (internal quotation marks omitted). Here the
         trial court credited the prosecutor’s race-neutral
         explanations, and the California Court of Appeal
         carefully reviewed the record at some length in
         upholding the trial court’s findings. The state appellate
         court’s decision was plainly not unreasonable. There
         was simply no basis for the Ninth Circuit to reach the
         opposite conclusion, particularly in such a dismissive
         manner.

131 S. Ct. at 1307.
94                    AYALA V. WONG

defense counsel with or without the loss of the questionnaires
likely did not prevent Ayala from prevailing on his Batson
claim, then we must grant the writ.” Majority at p. 36.

    Brecht was decided before the passage of AEDPA. In Fry
v. Pliler, 551 U.S. 112, 121 (2007), the Supreme Court held
that “in § 2254 proceedings a court must assess the
prejudicial impact of constitutional error in a state-court
criminal trial under the ‘substantial and injurious effect’
standard set forth in Brecht.” However, in doing so, the
Supreme Court construed the Brecht standard as including the
AEDPA standard:

       Three years after we decided Brecht,
       Congress passed, and the President signed, the
       [AEDPA], under which a habeas petition may
       not be granted unless the state court’s
       adjudication “resulted in a decision that was
       contrary to, or involved an unreasonable
       application of, clearly established Federal law,
       as determined by the Supreme Court of the
       United States . . . .” 28 U.S.C. § 2254(d)(1).
       In Mitchell v. Esparza, 540 U.S. 12 (2003)
       (per curiam), we held that, when a state court
       determines that a constitutional violation is
       harmless, a federal court may not award
       habeas relief under § 2254 unless the
       harmlessness determination itself was
       unreasonable.       Petitioner contends that
       § 2254(d)(1), as interpreted in Esparza,
       eliminates the requirement that a petitioner
       also satisfy Brecht’s standard. We think not.
       That conclusion is not suggested by Esparza,
       which had no reason to decide the point. Nor
                      AYALA V. WONG                       95

       is it suggested by the text of AEDPA, which
       sets forth a precondition to the grant of habeas
       relief (“a writ of habeas corpus . . . shall not
       be granted” unless the conditions of § 2254(d)
       are met), not an entitlement to it. Given our
       frequent recognition that AEDPA limited
       rather than expanded the availability of habeas
       relief, see, e.g., Williams v. Taylor, 529 U.S.
       362, 412 (2000), it is implausible that, without
       saying so, AEDPA replaced the Brecht
       standard of “‘actual prejudice,’ ” 507 U.S., at
       637 (quoting United States v. Lane, 474 U.S.
       438, 449 (1986)), with the more liberal
       AEDPA/Chapman standard which requires
       only that the state court’s harmless-beyond-
       a-reasonable-doubt determination be
       unreasonable. That said, it certainly makes no
       sense to require formal application of both
       tests (AEDPA/Chapman and Brecht) when
       the latter obviously subsumes the former.

551 U.S. at 119–20.

    Three aspects of the Supreme Court’s explanation are
particularly important. First, the Court endorsed its prior
opinion in Esparza, 540 U.S. 12, that habeas relief was
available only if the state court’s determination of
harmlessness was unreasonable. Fry, 551 U.S. at 119.
Second, the Court reiterated that AEDPA “limited rather than
expanded the availability of habeas relief.” Id. Third, the
Court held that the Brecht “actual prejudice” standard
requires a greater showing than the “the more liberal
AEDPA/Chapman standard which requires only that the state
court’s harmless-beyond-a-reasonable-doubt determination be
96                     AYALA V. WONG

unreasonable.” Id. at 119–20. See also Brecht, 507 U.S. at
637 (holding that habeas petitioners “are not entitled to
habeas relief based on trial error unless they can establish that
it resulted in ‘actual prejudice’”); Pulido v. Chrones, 629 F.3d
1007, 1020 (9th Cir. 2010) (holding that because the
petitioner “did not suffer any actual prejudice, he is not
entitled to habeas relief”).

    The majority attempts to evade the deference inherent in
the AEDPA/Brecht standard by quoting language from
Merolillo, 663 F.3d at 454. The majority asserts that when a
judge is “in virtual equipoise as to the harmlessness of the
error” and has “grave doubt about whether an error affected
a jury [substantially and injuriously], the judge must treat the
error as if it did so.” Majority at p. 34 (citations omitted).

    The majority takes this standard out of context. Merolillo
does not suggest that the state court’s opinion is not entitled
to deference. Our opinion first recognized that we continue
to look to the last reasoned decision of the state court, and
that the state court’s findings “are entitled to a presumption
of correctness unless the petitioner rebuts the presumption
with clear and convincing evidence.” 663 F.3d at 453 (citing
28 U.S.C. § 2254(e)(1)). Although the opinion refers to the
Supreme Court’s prior elucidations on harmless error, we
concluded that Brecht’s “substantial and injurious effect”
standard governs our harmless error review. Merolillo,
663 F.3d at 455. Our opinion also determined that applying
the AEDPA/Chapman standard, the state court’s
determination of harmless error was objectively
unreasonable. Id.
                             AYALA V. WONG                           97

      3. Deference to the state court opinion reconciles Brecht
         and the Supreme Court’s recent opinions.

    The majority fails to appreciate that even when focusing
on harmlessness, a state court’s factual findings are entitled
to deference, see, e.g., Mansfield v. Sec’y, Dep’t of Corr.,
679 F.3d 1301, 1309 (11th Cir. 2012), and that this deference
informs the definition of “grave doubt.” In order to grant
relief, a federal court must have “grave doubt” as to the
harmlessness of the error. Critically, the Supreme Court’s
opinions mandate that this “grave doubt” be objective rather
than subjective. Our personal perspectives as to harmlessness
are not controlling. Rather, we are directed to consider
whether “there is no possibility fairminded jurists could
disagree” with the state court’s decision, and whether there
“was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.”
Richter, 131 S. Ct. at 786–87. Thus, by definition, where
fairminded jurists can disagree, there is no “grave doubt” as
to the harmlessness of the error. In other words, in state
habeas petitions subject to AEDPA, any objective “grave
doubt” as to the harmlessness of an error is dispelled by a
determination that “fairminded jurists” could disagree.

   The reach of this mandate from Richter can be illustrated
by considering the majority’s statement in a footnote. The
majority opines that the California Supreme Court’s
conclusion that Ayala was not prejudiced was “an
unreasonable application of Chapman.14 Chapman, decided


 14
      The majority states:

           In holding that Ayala has demonstrated his entitlement
           to relief under Brecht, we therefore also hold to be an
98                        AYALA V. WONG

some 30 years before the passage of AEDPA, held “that
before a federal constitutional error can be held harmless, the
court must be able to declare a belief that it was harmless
beyond a reasonable doubt.” Id. at 24. AEDPA does not
change the constitutional standard, but it does alter the
standard applied by federal courts when reviewing a state
prisoner’s habeas petition. AEDPA limits relief to instances
where the state court adjudication was “an unreasonable
application of, clearly established Federal law,” or “an
unreasonable determination of the facts in light of the
evidence.” 28 U.S.C. § 2254(d). The Supreme Court’s
opinions in cases such as Richter and Williams provide an
objective measure for what is unreasonable under AEDPA: a
state court’s determination of a federal claim is unreasonable
only if no fairminded jurist could agree with it.

    In this case, consistent with the Supreme Court’s
opinions, a writ may not issue just because “we cannot say
that the exclusion of defense counsel and the loss of
questionnaires likely did not prevent Ayala from prevailing
on his Batson claim.” Majority at p. 36. Rather, a writ may
issue only if we determine (using the majority’s language)
that there is a “grave doubt as to the harmlessness of the
error,” meaning that no fairminded jurist could find that the
exclusion of defense counsel and the loss of questionnaires




         unreasonable application of Chapman the California
         Supreme Court’s conclusion that Ayala was not
         prejudiced by the exclusion of the defense during
         Batson steps two and three or by the loss of the
         questionnaires.

Majority at p. 33 n.12.
                           AYALA V. WONG                                99

did not prevent Ayala from prevailing on his Batson claim.15
See, e.g., Richter, 131 S. Ct. at 786–87. As set forth in the
next section, fairminded jurists can concur in the California
Supreme Court’s determination of harmless error.

                                    III

    A review of the record shows that although the loss of the
questionnaires and the exclusion of defense counsel constitute
error, fairminded jurists can agree with the California
Supreme Court that those facts did not prevent Ayala from
prevailing on his Batson claim.

      A. The loss of             certain       prospective        jurors’
         questionnaires.

    The majority states that it is “unable to evaluate the
legitimacy of some of the prosecution’s proffered reasons for
striking the black and Hispanic jurors because they referred
to questionnaires that are now lost.” Majority at p. 38. Of


 15
    This approach is also consistent with the Supreme Court’s opinion in
Cullen v. Pinholster, 131 S. Ct. 1388 (2011). There the Court held that
“[i]f a claim has been adjudicated on the merits by a state court, a federal
habeas petition must overcome the limitation of § 2254(d)(1) on the record
that was before that state court.” Id. at 1400. The federal court must look
at the record that was before the state court and determine whether
fairminded jurists could disagree with the state court’s decision.
Furthermore, the Court in reviewing the habeas petition in Pinholster
applied a deferential standard of review. It held that “Pinholster has not
shown that the California Supreme Court’s decision that he could not
demonstrate deficient performance by his trial counsel necessarily
involved an unreasonable application of federal law,” and that “Pinholster
also has failed to show that the California Supreme Court must have
unreasonably concluded that Pinholster was not prejudiced.” Id. at
1403–04, 1408.
100                        AYALA V. WONG

course, this statement misses the mark because the real
question is whether the record was sufficient to allow the
California Supreme Court to review Ayala’s claims as he
presented them to that court. A review of the California
Supreme Court’s opinion and Ayala’s filings shows that the
state court fully and fairly considered his claims.
Furthermore, Ayala has not shown that the loss of certain
prospective jurors’ questionnaires violated his constitutional
rights or that the loss prejudiced him.

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

    In Boyd v. Newland, 467 F.3d 1139 (9th Cir. 2006), we
recognized that the Supreme Court’s opinion in Miller-El v.
Dretke, 545 U.S. 231 (2005), holds that “comparative juror
analysis is an important tool that courts should utilize in
assessing Batson claims.”16 Boyd, 467 F.3d at 1145. We
commented that “comparative juror analysis” referred “to an
examination of a prosecutor’s questions to prospective jurors
and the jurors’ responses, to see whether the prosecutor



 16
    We further held that the right to a comparative juror analysis explicitly
set forth in Miller-El was not Teague-barred as it “simply illustrates the
means by which a petitioner can establish, and should be allowed to
establish, a Batson error.” Boyd, 467 F.3d at 1146 (internal citation
omitted).
                      AYALA V. WONG                        101

treated otherwise similar jurors differently because of their
membership in a particular group.” Id. Boyd concluded:

       A reviewing court cannot examine the
       “totality of the relevant facts” and “all
       relevant circumstances,” Batson, 476 U.S. at
       94, surrounding a prosecutor’s peremptory
       strike of a minority potential juror without an
       entire voir dire transcript. A transcript of the
       complete voir dire, as distinct from a partial
       transcript up to the time of the Batson motion,
       is proper because comparative juror analysis
       is appropriate both at the time of the Batson
       motion and in light of all subsequent voir dire
       testimony.

467 F.3d at 1151. Here, we have the entire voir dire
transcript. Moreover, there is nothing in Boyd to suggest that
in addition to the voir dire transcript, juror questionnaires
from jurors who are not selected are essential to a
determination of the totality of the relevant facts.

    Indeed, the opposite conclusion can be drawn from our
treatment in Boyd of a California rule requiring an indigent
defendant to show some cause in order to receive a free
transcript of voir dire. We held, citing United States v.
MacCollum, 426 U.S. 317, 322–23 (1976), that the California
rule did not violate the Constitution, but that the state court
erred in failing to recognize that the defendant had raised a
plausible Batson claim entitling him to a transcript of voir
dire. Boyd, 467 F.3d at 1151. If a defendant can be required
to show some cause in order to receive a transcript of voir
dire, it follows that a defendant has no per se right to the
102                   AYALA V. WONG

preservation of all questionnaires filled out by prospective
jurors who were not seated.

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

    In addition, we recently commented on the lack of
questionnaires of excused jurors in Briggs v. Grounds,
682 F.3d 1165 (9th Cir. 2012). Briggs concerned a Batson
challenge to a state court conviction where the federal record
did not contain the questionnaires of excused jurors. Id. at
1170. In affirming the district court’s denial of relief, the
majority noted:

       The dissent seems to conclude that because
       we cannot independently verify the answers
       from the questionnaires as they are not in the
       record, the defense’s characterization is
       equally, if not more, plausible despite the state
       court determinations to the contrary.
       However, “AEDPA imposes a highly
       deferential standard for evaluating state-court
                     AYALA V. WONG                       103

       rulings and demands that state-court decisions
       be given the benefit of the doubt,” Felkner v.
       Jackson, [sic] 131 S. Ct. 1305, 1307 (2011)
       (per curiam) (internal quotation marks
       omitted) (overturning the Ninth Circuit). The
       dissent’s readiness to doubt the state court
       determination based on the defendant’s
       characterization of the record does not apply
       the appropriate level of deference Congress
       and the United States Supreme Court have
       required of us.

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

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

Id.
104                   AYALA V. WONG

    It follows that the lack of prospective jurors’
questionnaires does not relieve Ayala of his burden to show
by clear and convincing evidence that the California Supreme
Court was wrong in determining that the prosecutor was not
biased. Accordingly, we must determine whether Ayala has
shown that the lack of these questionnaires in his case renders
the record insufficient for a determination of his federal
claim. He fails in this task for several reasons.

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

       The deficiency of which he complains is the
       absence of certain questionnaires, which were
       completed by prospective jurors, then lodged
       with the superior court, subsequently lost by
       its clerk’s office, and finally determined by
       the superior court to be beyond
       reconstruction. A criminal defendant is
       indeed entitled to a record on appeal that is
       adequate to permit meaningful review. That
       is true under California law. [Citation.] It is
       true as well under the United States
       Constitution — under the Fourteenth
       Amendment generally, and under the Eighth
       Amendment specifically when a sentence of
       death is involved. [Citation.] The record on
       appeal is inadequate, however, only if the
       complained-of deficiency is prejudicial to the
       defendant’s ability to prosecute his appeal.
       ([People v. Alvarez, 14 Cal.4th 155,] at p. 196,
       fn.8 [1996]).
                      AYALA V. WONG                        105

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

     Second, the determination is reasonable because the
missing juror questionnaires are not critical to Ayala’s federal
claims. The questionnaires of the 70 or so jurors who were
never called are not relevant because Ayala does not allege,
let alone show, that the potential jurors were excused due to
constitutionally forbidden reasons.

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

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

   B. Challenges to the Individual Jurors

   The remaining issue is whether Ayala has shown by clear
and convincing evidence that no reasonable jurist could have
106                   AYALA V. WONG

credited the prosecutor’s non-discriminatory reasons for
excusing the seven jurors in issue. In other words, whether
at least one fairminded jurist could agree with the California
Supreme Court’s opinion. The majority discusses only three
of the jurors in its opinion, but a review of the prosecutor’s
reasons for excusing each of the seven jurors shows that the
California Supreme Court’s determination that “the
challenged jurors were excluded for proper, race-neutral
reasons” was reasonable. See Ayala, 6 P.3d at 204.

   1. Olanders D.

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

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

       My observations in reading his questionnaire
       and before even making note of his racial
                      AYALA V. WONG                        107

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

The trial judge responded:

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

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

       [T]he prosecutor stated he had exercised the
       challenge in part because his questionnaire
       indicated he opposed the death penalty. The
       prosecutor acknowledged Olanders D.’s oral
       statements that his views had changed, but
       commented that his answers were “not totally
       responsive to the questions of either counsel
108                   AYALA V. WONG

       for the defense or myself.” He further stated,
       in essence, that Olanders D.’s difficulties in
       communicating led him to question whether
       he would “fit in” on the jury. The court
       disagreed with the latter point, noting, “it may
       well be that he would get along very well with
       12 people,” but added: “I think the other
       observations of counsel are accurate and
       borne out by the record.”

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

    The majority claims that the prosecutor’s motives for
excusing Olanders D. is suspect for several reasons. First,
Ayala “could have pointed to seated white jurors” who
similarly expressed hesitancy to impose the death penalty.
Majority at p. 41. Second, the majority asserts that its review
of the voir dire transcript shows that “Olanders D.’s answers
were responsive and complete.” Majority at p. 42. Third, it
claims that the responses of a seated white juror were just as
unresponsive. Majority at p. 42. The majority concludes that
none of the reasons proffered by the prosecutor should be
sustained because one was rejected by the trial judge, “two
failed to distinguish the juror whatsoever from at least one
seated white juror,” and the fourth cannot be evaluated
because his questionnaire was lost. Majority at p. 43–44.

    Were we reviewing the trial judge’s decision de novo, the
majority’s approach might be persuasive. But the applicable
standard is whether no fairminded judge could agree with the
California Supreme Court’s determination that the juror was
excluded for proper, race-neutral reasons. See Richter,
                      AYALA V. WONG                        109

131 S. Ct. at 786. Ayala does not come close to meeting this
standard.

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

    The majority’s expressed concerns about Olanders D.’s
recusal are far from compelling. It is hardly surprising that a
number of potential jurors expressed ambivalence about the
death penalty. The fact that a prosecutor is more concerned
with one potential juror’s ambivalence than another is not
necessarily a sign of racial prejudice. Similarly, the fact that
the majority in reviewing the voir dire transcripts thinks that
a seated juror’s responses were no more responsive than
Olanders D.’s is really of little moment. As noted, the trial
judge — who heard Olanders D.’s voir dire — agreed with
the prosecutor that he “demonstrated a lack of ability to
express himself well.” The majority’s supposition that
Olanders D.’s questionnaire responses may not have been
“poor” is not clear or convincing evidence of anything. At
110                   AYALA V. WONG

most, the majority’s arguments and assumptions may suggest
that the prosecutor’s evaluation of Olanders D. was not
compelled, but none of them really question the sincerity of
the prosecutor’s reasons or suggest a likelihood of some
unstated improper motive. The majority fails to show that a
fairminded jurist could not have agreed with the California
Supreme Court.

     The only indicia of possible racial bias was the fact that
seven of the eighteen peremptory challenges exercised by the
prosecutor excused African-American and Hispanic jurors.
If this were enough to compel a finding of racial bias, there
would be no reason for the second and third steps in the
Batson standard or for deference to the trial court’s
determinations. The lack of any compelling evidence of
racial bias is clear when the record in this case is compared to
the prosecutor’s statements in Kesser, 465 F.3d 351. There,
in overcoming the deference due to the state court’s
determinations, we commented: “The racial animus behind
the prosecutor’s strike is clear. When he was asked to explain
why he used a peremptory challenge to eliminate [a juror], he
answered using blatant racial and cultural stereotypes.” Id. at
357. Here, in contrast, all the majority can do is suggest that
other jurors, like Olanders D., were uncomfortable with the
death penalty, failed to offer thoughtful answers, and did not
communicate well. But even if the prosecutor’s perceptions
about Olanders D. were incorrect or not unique, that fact
would not be such compelling evidence of pretext as to justify
a failure to defer to the California Supreme Court’s reasoned
determination that the jurors were excused for proper, race-
neutral reasons.
                     AYALA V. WONG                        111

   2. Gerardo O.

   Gerardo O. was one of the recusals that Ayala challenged
in his second objection. The prosecutor explained his
challenge to Gerardo O. as follows:

       I made an observation of [Gerardo] when he
       first entered the courtroom on the first day
       that the jurors were called into the area.

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

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

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

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

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

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

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

    The majority does not deny that Gerardo O. stated that he
was illiterate, or that he needed someone to fill out his
questionnaire, or that he dressed differently, or that he did not
mix with the other jurors. See Majority at pp. 44–48.
Instead, the majority speculates that Ayala’s lawyer might
have shown that despite his own comments, Gerardo O. was
not illiterate, and that Geraldo O.’s “dress and mannerisms
were distinctly Hispanic.”17 Majority at p. 46. It further


 17
    The majority’s cited quote from Hernandez v. New York, 500 U.S. 352
(1991), demonstrates that Hernandez is not applicable to this case. The
Supreme Court noted “the prosecutor’s frank admission that his ground for
excusing these jurors related to their ability to speak and understand
Spanish raised a plausible, though not a necessary, inference that language
might be a pretext for what in fact were race-based peremptory
challenges.” Id. at 363. Here, the prosecutor did not mention any concern
with Gerardo O.’s ability to speak Spanish and there does not appear to be
any indication that any juror’s ability to speak Spanish was an issue.
                          AYALA V. WONG                               113

muses that the prosecutor’s comments concerning Gerardo
O.’s manner and aloofness and his ambivalence toward the
death penalty could have been pretexts for an underlying
racial bias.18 Majority at pp. 47–48. Of course, it is
impossible to negate such possibilities, but there is nothing
but the majority’s imagination to fuel its assertions.19 Here,
the trial judge agreed with the prosecutor’s observations of
Gerardo O. and the California Supreme Court affirmed. The
majority has not presented the type of clear evidence that the
United States Supreme Court has held is necessary to
overcome our deference to state court findings. See Rice,
546 U.S. at 338–39.



Instead, the majority, having poured over the record to determine that
Gerardo O., despite his own admission of illiteracy, had “attended college
in the United States,” opines that he “was perfectly capable of reading the
summary of legal issues that was given to prospective jurors.” Majority
at p. 45. It then leaps to the unsupported conclusion that the prosecutor’s
purported reason for striking Gerardo O. was directly related to his status
as someone who spoke Spanish as his first language. Majority at p. 45.
The majority’s speculation may not be illogical, but it is far from
compelling.
 18
    The majority also suggests that Gerardo O.’s ambivalence to the death
penalty was no more pronounced than some seated white jurors. Majority
at pp. 47–48. As previously noted, the potential jurors’ attitudes toward
the death penalty was an important consideration for both the defense and
the prosecution. The fact that the prosecutor distinguished between levels
of ambivalence that the majority over twenty years later argues are
indistinguishable is hardly a sign of pretext. Moreover, there is no doubt
that Gerardo O.’s qualifications — professed illiteracy, distinctive dress
and aloofness, and ambivalence to the death penalty — were unique.
 19
     The majority goes so far as to fantasize that “perhaps” unbeknownst
to the trial judge, Gerardo O. “had even organized a dinner for some of
them at his favorite Mexican restaurant.” Majority at p. 46.
114                  AYALA V. WONG

   3. Robert M.

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

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

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

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

       I’m concerned about that case because the fact
       that Mr. Penn, in a very notorious trial here,
       was found not guilty in a second trial, and
       allegations of misconduct with regard to the
               AYALA V. WONG                        115

District Attorney’s office and the police were
certainly rampant in that case.

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

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

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

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

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

With regard to questions about whether he
would vote for death, he said no, it would be
hard to say, no, I don’t know what the
116                       AYALA V. WONG

         evidence is, and Miss Michael’s reasons,
         which she expressed to me, and I have to
         agree with, is a great degree of concern about
         whether if we get to that point he could
         actually vote for death, and having that kind
         of a question in my mind as I’m trying this
         case would be distracting and worrisome to
         me during the process of the trial.

    The trial judge accepted the prosecutor’s reasons, noting
that although Robert M. “is certainly pro the death penalty,”
his answers varied and “there may well be a legitimate
concern as to whether or not he could impose it.” The court
further noted that “an appropriate use of a peremptory would
be for a person that any party feels either could not vote for
death or could not vote for life.” In affirming Ayala’s
conviction the California Supreme Court observed “that
Robert M. was less than desirable from the prosecution’s
point of view.” Ayala, 6 P.3d at 206.

    Again, the majority does not really question the
prosecutor’s reasons, but speculates that had Ayala’s counsel
been present he might have argued that Robert M.’s
reluctance to impose the death penalty was not different from
other jurors’ reluctance. Majority at pp. 49–50. In addition,
the majority does not deny that Robert M. had stated that he
had followed the Sagon Penn case, but argues that he only
mentioned this briefly.20 Majority at p. 51. Nonetheless,


 20
    The extent of the majority’s speculation is illustrated by its argument
that because another juror who was seated mentioned that he was aware
of the capital case People v. Harris, 623 P.2d 240 (Cal. 1981), the
prosecutor’s concern with Robert M.’s interest in the Sagon Penn case
may have been pretextual. Majority at pp. 50–51. This argument assumes
                          AYALA V. WONG                              117

Robert M.’s interest in a recent notorious criminal case that
involved misconduct by the prosecutor and resulted in a not
guilty verdict is a legitimate non-discriminatory reason for
recusal by the prosecutor.

    4. The Other Jurors

    The only other recused juror that the majority mentions is
George S. See Majority at p. 39–40 n.16. The prosecutor
explained that he had recused George S. because he (a) stated
that he had sat on a prior jury and “was the one hold-out with
regard to whatever issue was being presented at that time”;
(b) was equivocal on the death penalty, (c) had been rejected
as a police officer candidate, and (d) placed undue emphasis
on the Bible. The trial judge commented that the prosecutor’s
observations were accurate. The majority does not deny that
the prosecution offered these individualized grounds for the
recusal. Instead, the majority dismisses the fact that George
S. had been a holdout juror with the comment that it was a
civil action and speculates that George S.’s alleged emphasis
on the Bible “cannot be evaluated at all” because of the loss
of the questionnaires. See Majority at p. 39–40 n.16. Again,
perhaps the majority’s assertions suggest that the prosecutor’s
views were not compelled, but they do not really undermine
their reasonableness or sincerity.




that somehow the Harris case was similar to the Sagon Penn case. This
seems unlikely as the crime in Harris took place in 1978, some eleven
years before the jury selection process in this case. Moreover, unlike the
alleged verdict in the Sagon Penn case, Harris was found guilty and the
California Supreme Court’s opinion, which issued in 1981, did not find
any serious misconduct by the district attorney.
118                   AYALA V. WONG

    There were valid nondiscriminatory grounds for recusing
the remaining three minority jurors. Galileo S. was recused
because he (a) displayed a non-conformist attitude to the
justice system, (b) had more run-ins with the law than he
admitted, and (c) had an attitude that might create alienation
and hostility on the part of other jurors. Luis M. was
challenged because he (a) expressed ambivalence on the
death penalty, (b) had investigated the case on his own, and
(c) left the military with a low rank suggesting some sort of
misconduct or inability to perform. Barbara S. was
challenged because (a) her responses to oral questions were
slow, (b) she had an empty look in her eyes and seemed out
of tune with what was going on, and (c) her written and oral
answers were incomplete and non-responsive.

    As with the other recused jurors, the prosecution team
offered individualized reasons for each of these recusals.
There is no blatant racism, no reference to stereotypes (veiled
or otherwise), and no discernable pattern of discrimination in
the reasons advanced by the prosecution. Nonetheless, these
recusals are susceptible to the type of speculative challenges
that the majority hurls at the recusals of Olanders D., Gerardo
O., and Robert M. In all likelihood, other jurors expressed
ambivalence and equivalence about the death penalty, other
jurors offered slow or incomplete responses, and other jurors
probably had been denied employment or performed poorly
in a job. These might be appropriate avenues to explore at
the time that a recusal is made. But we are reviewing a 1989
state trial pursuant to AEDPA, and the Supreme Court in its
recent opinions has reiterated that (a) Batson issues turn
largely on evaluations of credibility, (b) the trial court’s
determination is entitled to great deference, (c) the
determination must be sustained unless it is clearly erroneous,
                      AYALA V. WONG                        119

and (d) AEDPA demands that state-court decisions be given
the benefit of the doubt. See Felkner, 131 S. Ct. at 1307.

    The California Supreme Court may not have been
compelled to conclude that “the challenged jurors were
excluded for proper, race-neutral reasons.” Ayala, 6 P.3d at
204. But its conclusion was objectively reasonable. That is,
Ayala has not shown that the California Supreme Court’s
ruling “was so lacking in justification that there was an error
well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.” Richter, 131 S.
Ct. at 786–87. As in Harrington, the majority’s opinion
“illustrates a lack of deference to the state court’s
determination and an improper intervention in state criminal
processes, contrary to the purpose and mandate of AEDPA
and to the now well-settled meaning and function of habeas
corpus in the federal system.” Id. at 787.

                              IV

    The Supreme Court decided Batson v. Kentucky in 1986,
a year after Ayala killed three men and three years before his
murder conviction. In Batson, the Supreme Court declined
“to formulate particular procedures to be followed upon a
defendant’s timely objection to a prosecutor’s challenges.”
476 U.S. at 99. I would hold that Ayala’s claim that he had
a constitutional right to have counsel present when the
prosecutor offered its reasons for the challenged recusals was
not dictated by precedent when Ayala’s conviction became
final, and thus is Teague-barred.

    Ultimately, however, this case turns on the reasonableness
of the California Supreme Court’s 2000 opinion that the
absence of defense counsel and the loss of jury questionnaires
120                        AYALA V. WONG

were harmless error beyond a reasonable doubt as a matter of
federal law. Ayala, 6 P.3d at 204. Following the Supreme
Court’s pointed guidance in Richter, 131 S. Ct. 770, and
Williams, 133 S. Ct. 1088, we must conclude that the
California Supreme Court adjudicated Ayala’s federal claims
on their merits and thus apply AEDPA’s deferential standard
of review.21

    This standard of review mandates that we determine
whether fairminded jurists could agree with the California
Supreme Court. In other words, we can grant relief only if no
fairminded jurist could find that the exclusion of defense
counsel and the loss of questionnaires did not prevent Ayala
from prevailing on his Batson claim. Here, the evidence of
valid non-pretextual reasons for the prosecutor’s recusals
renders the state court’s decision objectively reasonable.

    Because the majority fails to appreciate that Ayala’s
federal claim is Teague-barred, and applies a de novo
standard of review, despite the Supreme Court’s contrary
directions, I dissent.




  21
     I do not agree with some of the majority’s characterizations of my
dissent. I have set forth my reasons in this dissent and trust the reader will
be able to discern the respective merits of the majority and dissent without
further assistance. To the extent the majority accuses me of relying
heavily on recent Supreme Court opinions such as Richter, 131 S. Ct. 770,
see Majority at p. 34–35, n.13, the accusation is accurate.
