Ayala v. Wong, No. 09-99005

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtREINHARDT
PartiesHECTOR JUAN AYALA, Petitioner-Appellant, v. ROBERT K. WONG, Warden, Respondent-Appellee.
Docket NumberNo. 09-99005,D.C. No. 3:01-CV-01322-IEG-PLC
Decision Date13 September 2013

HECTOR JUAN AYALA, Petitioner-Appellant,
ROBERT K. WONG, Warden, Respondent-Appellee.

No. 09-99005
D.C. No. 3:01-CV-01322-IEG-PLC


Filed September 13, 2013



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

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

Opinion by Judge Reinhardt;
Dissent by Judge Callahan

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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

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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).


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.


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

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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.


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

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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

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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

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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

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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...

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