Carrera v. Ayers

• Decision Date: 06 November 2012
• Docket Number: No. 08–99007.,08–99007.
• Parties: Constantino CARRERA, Petitioner–Appellant, v. Robert L. AYERS, Jr., Warden, Warden of the California State Prison at San Quentin, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

699 F.3d 1104

2012 Daily Journal D.A.R. 15,256

Constantino CARRERA, Petitioner–Appellant,

v.Robert L. AYERS, Jr., Warden, Warden of the California State Prison at San Quentin, Respondent–Appellee.

No. 08–99007.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 20, 2012.

Filed Nov. 6, 2012.

Stephen B. Bedrick, Oakland, CA, for the petitioner-appellant.

Clifford Edward Zall, Office of the California Attorney General, Sacramento, CA, for the respondent-appellee.

Appeal from the United States District Court for the Eastern District of California, Anthony W. Ishii, Chief District Judge, Presiding. D.C. No. 1:90–CV–00478–AWI.

Before: ALEX KOZINSKI, Chief Judge, HARRY PREGERSON, WILLIAM A. FLETCHER, RAYMOND C. FISHER, MARSHA S. BERZON, RICHARD C. TALLMAN, RICHARD R. CLIFTON, SANDRA S. IKUTA, N. RANDY SMITH, MARY H. MURGUIA, and MORGAN CHRISTEN, Circuit Judges.

Opinion by Judge WILLIAM A. FLETCHER; Dissent by Judge PREGERSON.

OPINION

W. FLETCHER, Circuit Judge:

Petitioner–Appellant Constantino Carrera was found guilty in 1983 of first-degree murder of two people during a robbery. Carrera is Hispanic. The victims were white. During voir dire, the prosecutor peremptorily challenged 75 percent of the Hispanic-surnamed venirepersons. By contrast, he peremptorily challenged only 26 percent of the white, non-Hispanic-surnamed venirepersons. At the time of Carrera's trial, People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (Cal.1978), which held the use of peremptory challenges to strike venirepersons based solely on race to be a violation of the California Constitution, had been the law in California for five years. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), had not yet been decided. Carrera's counsel did not object under Wheeler to the prosecutor's peremptory challenges.

Carrera contends on habeas that his counsel's failure to make a Wheeler objection was ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We affirm the district court's denial of relief, holding that Carrera has not satisfied the prejudice prong of Strickland.¹

I. Background

Carrera and another person were convicted in separate trials in Kern County Superior Court in California for killing a white couple during a robbery. See Carrera v. Ayers, No. 1:90–CV–00478–AWI, 2008 WL 681842, at *1 (E.D.Cal. Mar. 11, 2008). The other person, then seventeen years old, was statutorily ineligible for the death penalty and was sentenced to fifty years to life. Id. at *2 n. 3. Carrera, twenty years old at the time of the crime, was convicted of first-degree murder with special circumstances and was sentenced to death.

The California Supreme Court affirmed Carrera's conviction and death sentence on direct appeal. People v. Carrera, 49 Cal.3d 291, 261 Cal.Rptr. 348, 777 P.2d 121 (1989). The court held that there had been multiple errors at trial, including an instructional error relating to Carrera's intent to kill, but that the errors were all harmless. See id. at 309–11, 261 Cal.Rptr. 348, 777 P.2d 121. Carrera filed his federal habeas petition in 1990, before the effective date of the Anti–Terrorism and Effective Death Penalty Act (“AEDPA”). See Robinson v. Schriro, 595 F.3d 1086, 1099 (9th Cir.2010).

The federal district court set aside Carrera's death sentence. The court found repeated instances of prosecutorial misconduct during trial: The prosecutor failed to correct testimony he knew was perjurious; he concealed inducements to two testifying jailhouse snitches; and he presented flatly inconsistent factual narratives at the separate trials of Carrera and his co-perpetrator. The court concluded that an intent-to-kill instructional error was not harmless because its application was tainted by prosecutorial misconduct.

The district court subsequently denied Carrera's guilt-phase claims. One of those was a claim that his trial counsel had provided ineffective assistance in failing to make a Wheeler objection. Carrera appealed.

II. Jurisdiction and Standard of Review

We have appellate jurisdiction under 28 U.S.C. §§ 1291 and 2253. “We review the district court's denial of [Carrera's] habeas petition de novo, and the district court's findings of fact for clear error.” Robinson, 595 F.3d at 1099. Because Carrera filed his federal habeas petition before the effective date of the AEDPA, we consider it under the pre-AEDPA standard of review. Id. Ineffective assistance of counsel claims present mixed questions of law and fact. Id. “Under pre-AEDPA law, we owe no deference to the state court's resolution of questions of law or mixed questions of law and fact.” Id. “We review the district court's findings of fact for clear error.” Id.

III. Discussion

A. Voir Dire

Prior to voir dire, when the racial and ethnic composition of the venire panel was still unknown, Carrera's counsel moved to quash the venire on the ground that there were insufficient procedures in place to ensure a panel that reflected the ethnic and racial diversity of Kern County. See People v. Buford, 132 Cal.App.3d 288, 182 Cal.Rptr. 904, 905 (1982) (addressing a jury challenge “on the ground that blacks were underrepresented on that jury and on other juries in [the] County as a result of systematic exclusion in the jury-selection process” (footnote omitted)). When the venire panel was chosen, it turned out that between eleven and fourteen members of the panel had Hispanic surnames, and at least four members were black. Carrera's counsel withdrew her motion to quash.

During voir dire, the prosecutor and Carrera's defense counsel both asked questions directed to ethnicity. The prosecutorasked Hispanic-surnamed venirepersons if the fact that the defendant was of “Spanish descent” would affect their decision-making. Carrera's counsel also asked questions directed to ethnicity. For example, she asked venireperson Martinez:

If you were chosen as a juror in this case and you were the only one that had a Spanish surname sitting on the panel, would you feel that you would be under an undue hardship, so to speak, for want of a better word, feeling you would have to vote just as everyone else did simply because they might claim because you have got a Spanish surname maybe you were being more lenient or that sort of thing?

The prosecutor exercised peremptory challenges to 75 percent of the venirepersons with Hispanic surnames. Of eight prospective jurors with Hispanic surnames, the State exercised peremptory challenges to six; the other two were seated on the jury. An additional person with a Hispanic surname was seated as an alternate. By contrast, the prosecutor exercised peremptory challenges against 26 percent (eleven of forty-one) white, non-Hispanic-surnamed prospective jurors. Five years earlier, the California Supreme Court had held that “the use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16, of the California Constitution.” Wheeler, 22 Cal.3d at 276–77, 148 Cal.Rptr. 890, 583 P.2d 748. Carrera's counsel made no objection under Wheeler to the prosecutor's use of peremptory challenges to Hispanic-surnamed venirepersons.

B. Ineffective Assistance of Counsel Claim

Carrera contends that his trial counsel's failure to make a Wheeler objection was ineffective assistance of counsel in violation of his Sixth Amendment right to counsel. To establish ineffective assistance of counsel under Strickland, a defendant must show both deficient performance and prejudice. Because we conclude that Carrera has not carried his burden of proof to show prejudice, we need not decide whether he has shown deficient performance.

“[A]ny deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.” Strickland, 466 U.S. at 692, 104 S.Ct. 2052. “The defendant must show that there is 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.” Id. at 694, 104 S.Ct. 2052 (emphasis added). The petitioner has “the burden of showing that the decision reached would reasonably likely have been different absent the errors.” Id. at 696, 104 S.Ct. 2052.

The first step in a Wheeler objection was to show a prima facie case of unlawful discrimination. “If a party believes his opponent is using his peremptory challenges to strike jurors on the ground of group bias alone, he must raise the point in timely fashion and make a prima facie case of such discrimination to the satisfaction of the court.” Wheeler, 22 Cal.3d at 280, 148 Cal.Rptr. 890, 583 P.2d 748. A prima facie case under Wheeler had three elements:

First ... [the party] should make as complete a record of the circumstances as is feasible. Second, he must establish that the persons excluded are members of a cognizable group within the meaning of the representative cross-section rule. Third, from all the circumstances of the case he must show a strong likelihood that such persons are being challenged because of their group association rather than because of any specific bias.

Id. (emphasis added) (footnote omitted). “If the court finds that a prima facie case has been made, the burden shifts to the other party to show if he can that the peremptory challenges in question were not predicated on group bias alone.” Id. at 281, 148 Cal.Rptr. 890, 583 P.2d 748 (footnote omitted).

Because we are evaluating the likelihood of success of Carrera's hypothetical Wheeler objection in the context of an ineffective assistance claim, he has the burden to show under Strickland a reasonable probability he would have prevailed on a Wheeler claim. For the reasons that follow, we...