Carrera v. Ayers

• Decision Date: 04 October 2011
• Docket Number: No. 08–99007.,08–99007.
• Citation: 11 Cal. Daily Op. Serv. 12589,2011 Daily Journal D.A.R. 14982,670 F.3d 938
• Parties: Constantino CARRERA, Petitioner–Appellant, v. Robert L. AYERS, Jr., Warden of the California State Prison at San Quentin, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

11 Cal. Daily Op. Serv. 12,589

2011 Daily Journal D.A.R. 14,982

670 F.3d 938

Constantino CARRERA, Petitioner–Appellant,

v.Robert L. AYERS, Jr., 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 14, 2010.Filed Oct. 4, 2011.

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

Edmund G. Brown, Attorney General of California, Michael P. Farrell, Senior Assistant Attorney General, Harry Joseph Colombo, Supervising Deputy Attorney General, and Clifford E. Zall (argued), Deputy 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: DIARMUID F. O'SCANNLAIN, A. WALLACE TASHIMA, and CARLOS T. BEA, Circuit Judges.

Opinion by Judge BEA; Dissent by Judge TASHIMA.

OPINION

BEA, Circuit Judge:

We must today decide whether defense counsel's failure in 1983 to object to a California prosecutor's allegedly group bias-based peremptory challenges constituted ineffective assistance of counsel, which ineffectiveness now requires a grant of federal habeas relief under the Sixth Amendment to the U.S. Constitution.

During the murder trial of Constantino Carrera, defense counsel failed to object to the prosecutor's use of peremptory challenges to strike six Hispanic ¹ venirepersons. Carrera appeals the district court's denial of his petition for a writ of habeas corpus based on defense counsel's claimed ineffective assistance of counsel.

We affirm the district court's denial of Carrera's ineffective assistance of counsel claim.² Petitioner failed to present evidence sufficient to overcome the strong presumption that counsel's performance was reasonable, as set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).³

I

Carrera, a Hispanic, was tried and convicted in 1983 for the robbery and first degree murder of Jack and Carol Hayes, managers of the Imperial 400 Motel in Mojave, California. Carrera was sentenced to death. The death sentence has since been invalidated.

During jury selection, the prosecutor used peremptory challenges to strike six qualified ⁴ Hispanic prospective jurors. Two Hispanic jurors did sit on Carrera's jury; an additional Hispanic person served as an alternate juror. The prosecutor struck eleven out of forty-one similarly qualified white, non-Hispanic prospective jurors. The victims—the Hayes—were White, non-Hispanics. Defense counsel did not object. The Supreme Court of California affirmed Carrera's conviction. Carrera's state habeas petitions were denied by the Supreme Court of California without opinion.

Carrera filed an initial petition for habeas corpus in federal district court on July 31, 1990. The district court denied Carrera's ineffective assistance of counsel claim in an order on March 11, 2008.⁵

II

We have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291, 2253. This court reviews de novo a district court's decision to deny a petition for a writ of habeas corpus and reviews for clear error a district court's findings of fact. Robinson v. Schriro, 595 F.3d 1086, 1099 (9th Cir.2010).

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) does not apply because Carrera filed his federal habeas petition before AEDPA's effective date; thus, pre-AEDPA law applies. See id. Under pre-AEDPA law, this court owes no deference to the state court's resolution of questions of law or mixed questions of law and fact. Id. Whether counsel rendered ineffective assistance of counsel is a mixed question of law and fact which we review de novo. Id. However, a state court's findings of fact are “entitled to a presumption of correctness unless they are not fairly supported by the record.” Clark v. Brown, 450 F.3d 898, 904 (9th Cir.2006) (internal quotation marks and citation omitted).

III

The Sixth Amendment entitles criminal defendants to the “effective assistance of counsel.” Strickland, 466 U.S. at 686, 104 S.Ct. 2052 (internal quotation marks omitted). The Sixth Amendment's right to counsel has been incorporated into the Fourteenth Amendment, so as to apply to the states. Gideon v. Wainwright, 372 U.S. 335, 342, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). To establish ineffective assistance of counsel, a defendant must prove: (1) deficient performance—that is, his counsel's performance “fell below an objective standard of reasonableness,” Strickland, 466 U.S. at 687–88, 104 S.Ct. 2052; and (2) prejudice—that is, “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different,” id. at 694, 104 S.Ct. 2052. “If we conclude that the petitioner fails to satisfy one of the Strickland prongs, we need not address the other.” Stanley v. Schriro, 598 F.3d 612, 619 (9th Cir.2010) (citing Strickland, 466 U.S. at 697, 104 S.Ct. 2052). Because Carrera failed to carry his burden in proving his defense counsel's performance was deficient, we need not and do not address the prejudice prong.⁶

“Surmounting Strickland 's high bar is never an easy task.” Padilla v. Kentucky, ––– U.S. ––––, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (2010). To prove deficient performance, a defendant must prove that his counsel's performance “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 687–88, 104 S.Ct. 2052. In evaluating whether counsel's performance was deficient, “[j]udicial scrutiny of counsel's performance must be highly deferential.” Id. at 689, 104 S.Ct. 2052. The Court further stated:

A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” See Michel v. Louisiana, [350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955) ]. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.

Id. Thus, Strickland places the burden on the defendant to overcome the “strong presumption” that counsel's performance was within the “wide range of reasonable professional assistance” and might be considered “sound trial strategy.”

Carrera's defense counsel's performance must be judged based on the law and prevailing legal standards as they existed at his trial in 1983. Id. at 690, 104 S.Ct. 2052 (“[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.”). Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), which held that the use of peremptory challenges to exclude jurors based solely on their race is a violation of the Equal Protection Clause of the Fourteenth Amendment, was not decided until three years after Carrera's trial. Although Batson applies retroactively to cases on direct review, Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), it does not apply retroactively on federal habeas review, Allen v. Hardy, 478 U.S. 255, 260, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986). Thus, Batson is inapplicable for the purpose of determining whether trial counsel's performance in 1983 was deficient. Rather, the relevant question here is whether in California ⁷ in 1983 “[defense] counsel's representation fell below an objective standard of reasonableness” when she failed to make a Wheeler⁸ motion to discharge the venire because of the prosecutor's claimed group-based peremptory challenges. See Strickland, 466 U.S. at 688, 104 S.Ct. 2052.

In People v. Wheeler, the Supreme Court of California 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 ... the California Constitution.” 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748, 761–62 (1978). Under Wheeler, courts begin with the presumption that “a party exercising a peremptory challenge is doing so on a constitutionally permissible ground.” Id., 148 Cal.Rptr. 890, 583 P.2d at 762. A party who believes “his opponent is using his peremptory challenges to strike jurors on the ground of group bias alone” must first “make a prima facie case of such discrimination to the satisfaction of the court.” Id., 148 Cal.Rptr. 890, 583 P.2d at 764. The challenging party “must establish that the persons excluded are members of a cognizable group” and “show a strong likelihood that such persons are being challenged because of their group association rather than because of any specific bias.” Id. “[T]he party may show that his opponent has struck most or all of the members of the identified group from the venire, or has used a disproportionate number of his peremptories against the group.” Id. Also relevant are (1) whether the defendant is a member of the excluded group, and (2) whether the victim is a member of the group to which the majority of the remaining jurors belong. Id. “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., 148 Cal.Rptr. 890, 583 P.2d at 764–65. “[T]he allegedly offending party must satisfy the court that he exercised...