Ayala v. Wong, No. 09–99005.

CourtU.S. Court of Appeals — Ninth Circuit
Writing for the CourtREINHARDT
Citation693 F.3d 945
PartiesHector Juan AYALA, Petitioner–Appellant, v. Robert K. WONG, Warden, Respondent–Appellee.
Decision Date29 August 2012
Docket NumberNo. 09–99005.

693 F.3d 945

2012 Daily Journal D.A.R. 12,096

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 Aug. 29, 2012.


[693 F.3d 948]


Robin L. Phillips and Anthony J. Dain of Procopio, Cory, Hargreaves & Savitch LLP, San Diego, CA, for petitioner-appellant Hector Juan Ayala.

Robin H. Derman, Deputy Attorney General of California, San Diego, CA, for defendant-appellee Robert K. Wong, Warden.


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.

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 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. We hold that this procedure violated the Constitution and, together with the state's later loss of a large portion of the record, adversely affected Ayala's substantial rights. We therefore reverse the district court's denial of Ayala's petition and 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

[693 F.3d 949]

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, 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, and claimed

[693 F.3d 950]

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 and sentence. People v. Ayala, 24 Cal.4th 243, 99 Cal.Rptr.2d 532, 6 P.3d 193 (2000). The majority held that the trial judge had erred in conducting the Batson proceedings ex parte. Id., 99 Cal.Rptr.2d 532, 6 P.3d at 204. It went on to hold, however, that any error was harmless beyond a reasonable doubt. Id. It also concluded that the loss of the questionnaires was harmless beyond a reasonable doubt. Id., 99 Cal.Rptr.2d 532, 6 P.3d at 208. In dissent, Chief Justice George, joined by Justice Kennard, expressed his 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., 99 Cal.Rptr.2d 532, 6 P.3d 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.

Ayala's 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 may grant relief only if the last state court decision on the merits of Ayala's claim was (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;” or (2) “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).

III.

“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, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992). Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), 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. Id. at 96, 106 S.Ct. 1712. Such a showing can 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, 106 S.Ct. 1712. 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, 106 S.Ct. 1712.

Ayala contends that the exclusion of the defense from the proceedings in which the...

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8 practice notes
  • Lacey v. Maricopa Cnty., No. 09-15806
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 29, 2012
    ...that there was a stronger case that The New Times's publishers knowingly posed a threat to Arpaio's personal safety, and therefore that it[693 F.3d 945]was reasonable to investigate only The New Times, rather than the other publishers. Regardless whether The New Times publishers turned out ......
  • Ayala v. Wong, No. 09-99005
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 13, 2013
    ...by Judge CallahanPage 2SUMMARY*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. § 225......
  • Ayala v. Wong, No. 09–99005.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 13, 2013
    ...L.Ed.2d 353 (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 con......
  • Ayala v. Wong, No. 09–99005.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 25, 2014
    ...L.Ed.2d 353 (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 con......
  • Request a trial to view additional results
8 cases
  • Lacey v. Maricopa Cnty., No. 09-15806
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 29, 2012
    ...that there was a stronger case that The New Times's publishers knowingly posed a threat to Arpaio's personal safety, and therefore that it[693 F.3d 945]was reasonable to investigate only The New Times, rather than the other publishers. Regardless whether The New Times publishers turned out ......
  • Ayala v. Wong, No. 09-99005
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 13, 2013
    ...by Judge CallahanPage 2SUMMARY*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. § 225......
  • Ayala v. Wong, No. 09–99005.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 13, 2013
    ...L.Ed.2d 353 (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 con......
  • Ayala v. Wong, No. 09–99005.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 25, 2014
    ...L.Ed.2d 353 (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 con......
  • Request a trial to view additional results

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