Ayala v. Wong, No. 09–99005.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtREINHARDT
Citation756 F.3d 656
PartiesHector Juan AYALA, Petitioner–Appellant, v. Robert K. WONG, Warden, Respondent–Appellee.
Decision Date25 February 2014
Docket NumberNo. 09–99005.

756 F.3d 656

Hector Juan AYALA, Petitioner–Appellant,
v.
Robert K. WONG, Warden, Respondent–Appellee.

No. 09–99005.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted Feb. 9, 2012.
Filed Sept. 13, 2013.

Amended Feb. 25, 2014.


[756 F.3d 659]


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

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


Appeal from the United States District Court for the Southern District of California, Irma E. Gonzalez, Chief District Judge, Presiding. D.C. No. 3:01–CV–01322–IEG–PLC.
Before: STEPHEN REINHARDT, KIM McLANE WARDLAW, and CONSUELO M. CALLAHAN, Circuit Judges.

Opinion by Judge REINHARDT; Dissent by Judge CALLAHAN; Order; Dissent to Order by Judge IKUTA.

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 challenge. The trial judge concluded that Ayala had established a prima facie case of racial discrimination under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), but permitted the prosecution to give its justifications for the challenges of these jurors in an in camera hearing from which Ayala and his

[756 F.3d 660]

counsel were excluded. The trial judge then accepted the prosecution's justifications for its strikes without disclosing them to the defense or permitting it to respond. The California Supreme Court held that the trial court erred as a matter of state law, relying on a number of federal cases, but found that any error—state or federal—was “harmless.”

We conduct our review of Ayala's appeal under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). In reviewing Ayala's federal claim, the state court faced two questions: first, whether the exclusion of Ayala and his counsel from the ex parte Batson proceedings was federal constitutional error, and, second, whether any such error was harmless. We conclude that the state court either resolved the first question in Ayala's favor or did not reach it. We therefore apply de novo review, and conclude that there was federal constitutional error. Turning to the second question, harmlessness, we conclude that the state court found that any federal constitutional error was harmless. We review that determination under Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), and conclude that the violation of Ayala's Batson rights was prejudicial. We therefore remand with instructions to grant the writ.

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 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

[756 F.3d 661]

Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), claiming that the prosecution was systematically excluding minority jurors on the basis of race. 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 Hispanic jurors—were not made available to Ayala and his counsel until after the conclusion of the trial.

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

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

On direct appeal from his conviction, Ayala challenged the trial court's use of ex parte Batson proceedings. He also claimed that the loss of the jury questionnaires deprived him of his right to a meaningful appeal of the denial of his Batson motion. A divided California Supreme Court upheld his conviction on the basis of harmless error and also upheld the sentence. People v. Ayala, 24 Cal.4th 243, 99 Cal.Rptr.2d 532, 6 P.3d 193 (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 201 (George, C.J., dissenting). A majority went on to hold, however, that any error was harmless beyond a reasonable doubt. Id. at 204. It also concluded that the loss of the questionnaires was harmless beyond a reasonable doubt. Id. at 208. In dissent, Chief Justice George, joined by Justice Kennard, expressed his disagreement with the majority's “unprecedented conclusion

[756 F.3d 662]

that the erroneous exclusion of the defense from a crucial portion of jury selection proceedings may be deemed harmless.” Id. at 221 (George, C.J., dissenting). Ayala's petition for certiorari was denied by the United States Supreme Court on May 14, 2001. Ayala v. California, 532 U.S. 1029, 121 S.Ct. 1978, 149 L.Ed.2d 770 (2001).

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

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24 practice notes
  • Vieira v. Chappell, Case No. 1:05-CV-01492-AWI-SAB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • February 5, 2015
    ...federal court considering a habeas petition must conduct an analysis under Teague when the state properly raises the issue. Ayala v. Wong, 756 F.3d 656, 685 (9th Cir. 2014), citing Horn v. Banks, 536 U.S. 266, 272 (2002). Therefore, "[b]efore a state prisoner may upset his state conviction ......
  • Brown v. Davenport, 20-826
    • United States
    • United States Supreme Court
    • April 21, 2022
    ...the Ninth Circuit applied Brecht, found prejudice, and granted relief without pausing to consider AEDPA directly. Ayala v. Wong, 756 F.3d 656, 674 (CA9 2014). Instead, it asserted, much as Mr. Davenport does, that a favorable finding for a petitioner under Brecht necessarily answers AEDPA's......
  • Quintana v. Gate, No. CV 12–6372–MWF AS.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • February 13, 2015
    ...law and what [the majority] believes to be an incorrect or erroneous application of federal law.”) (quotations omitted); Ayala v. Wong, 756 F.3d 656, 717 (9th Cir.2014) (Ikuta, J., dissenting from denial of rehearing en banc) (“In reaching [the conclusion that the court may review a state c......
  • Deck v. Jenkins, No. 13–55130.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 29, 2014
    ...U.S. ––––, 135 S.Ct. 2187, 2199, 192 L.Ed.2d 323 (2015) (internal quotation marks omitted) (alteration in original).2 See Ayala v. Wong,756 F.3d 656 (9th Cir.2013), rev'd and remanded sub nom. Davis v. Ayala,––– U.S. ––––, 135 S.Ct. 2187, 2198, 192 L.Ed.2d 323 (2015). Ayalaheld that a petit......
  • Request a trial to view additional results
24 cases
  • Vieira v. Chappell, Case No. 1:05-CV-01492-AWI-SAB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • February 5, 2015
    ...federal court considering a habeas petition must conduct an analysis under Teague when the state properly raises the issue. Ayala v. Wong, 756 F.3d 656, 685 (9th Cir. 2014), citing Horn v. Banks, 536 U.S. 266, 272 (2002). Therefore, "[b]efore a state prisoner may upset his state conviction ......
  • Brown v. Davenport, 20-826
    • United States
    • United States Supreme Court
    • April 21, 2022
    ...the Ninth Circuit applied Brecht, found prejudice, and granted relief without pausing to consider AEDPA directly. Ayala v. Wong, 756 F.3d 656, 674 (CA9 2014). Instead, it asserted, much as Mr. Davenport does, that a favorable finding for a petitioner under Brecht necessarily answers AEDPA's......
  • Quintana v. Gate, No. CV 12–6372–MWF AS.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • February 13, 2015
    ...law and what [the majority] believes to be an incorrect or erroneous application of federal law.”) (quotations omitted); Ayala v. Wong, 756 F.3d 656, 717 (9th Cir.2014) (Ikuta, J., dissenting from denial of rehearing en banc) (“In reaching [the conclusion that the court may review a state c......
  • Deck v. Jenkins, No. 13–55130.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 29, 2014
    ...U.S. ––––, 135 S.Ct. 2187, 2199, 192 L.Ed.2d 323 (2015) (internal quotation marks omitted) (alteration in original).2 See Ayala v. Wong,756 F.3d 656 (9th Cir.2013), rev'd and remanded sub nom. Davis v. Ayala,––– U.S. ––––, 135 S.Ct. 2187, 2198, 192 L.Ed.2d 323 (2015). Ayalaheld that a petit......
  • Request a trial to view additional results

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