NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the
Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal
errors, in order that corrections may be made before the
preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–1428
_________________
RON DAVIS, ACTING WARDEN, PETITIONER
v.
HECTOR AYALA
on writ of certiorari to the united states
court of appeals for the ninth circuit
[June 18, 2015]
Justice Alito delivered the opinion of the
Court.
A quarter-century after a California jury
convicted Hector Ayala of triple murder and sentenced him to death,
the Court of Appeals for the Ninth Circuit granted Ayala’s
application for a writ of habeas corpus and ordered the State to
retry or release him. The Ninth Circuit’s decision was based
on the procedure used by the trial judge in ruling on Ayala’s
objections under
Batson v.
Kentucky, 476 U. S.
79 (1986) , to some of the prosecution’s peremptory
challenges of prospective jurors. The trial judge allowed the
prosecutor to explain the basis for those strikes outside the
presence of the defense so as not to disclose trial strategy. On
direct appeal, the California Supreme Court found that if this
procedure violated any federal constitutional right, the error was
harmless beyond a reasonable doubt. The Ninth Circuit, however,
held that the error was harmful.
The Ninth Circuit’s decision was based on
the misapplication of basic rules regarding harmless error.
Assuming without deciding that a federal constitutional error
occurred, the error was harmless under
Brecht v.
Abrahamson, 507 U. S. 619 (1993) , and the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28
U. S. C. §2254(d).
I
A
Ayala’s conviction resulted from the
attempted robbery of an automobile body shop in San Diego,
California, in April 1985. The prosecution charged Ayala with three
counts of murder, one count of attempted murder, one count of
robbery, and three counts of attempted robbery. The prosecution
also announced that it would seek the death penalty on the murder
counts.
Jury selection lasted more than three months,
and during this time the court and the parties interviewed the
prospective jurors and then called back a subset for general
voir dire. As part of the jury selection process, more
than 200 potential jurors completed a 77-question, 17-page
questionnaire. Potential jurors were then questioned in court
regarding their ability to follow the law. Jurors who were not
dismissed for cause were called back in groups for
voir dire, and the parties exercised their peremptory
challenges.
Each side was allowed 20 peremptories, and the
prosecution used 18 of its allotment. It used seven peremptories to
strike all of the African-Americans and Hispanics who were
available for service. Ayala, who is Hispanic, raised
Batson
objections to those challenges.
Ayala first objected after the prosecution
peremptorily challenged two African-Americans, Olanders D. and
Galileo S. The trial judge stated that these two strikes failed to
establish a prima facie case of racial discrimination, but he
nevertheless required the prosecution to reveal the reasons for the
strikes. The prosecutor asked to do this outside the presence of
the defense so as not to disclose trial strategy, and over
Ayala’s objection, the judgegranted the request. The
prosecution then offered several reasons for striking Olanders D.,
including uncertainty about his willingness to impose the death
penalty. The prosecution stated that it dismissed Galileo S.
primarily because he had been arrested numerous times and had not
informed the court about all his prior arrests. After hearing and
evaluating these explanations, the judge concluded that the
prosecution had valid, race-neutral reasons for these strikes.
Ayala again raised
Batson objections when
the prosecution used peremptory challenges to dismiss two
Hispanics, Gerardo O. and Luis M. As before, the judge found that
the defense had not made out a prima facie case, but ordered the
prosecution to reveal the reasons for the strikes. This was again
done
ex parte, but this time the defense did not
expressly object. The prosecution explained that it had challenged
Gerardo O. and Luis M. in part because it was unsure that they
could impose the death penalty. The prosecution also emphasized
that Gerardo O.’s English proficiency was limited and that
Luis M. had independently investigated the case. The trial court
concluded a second time that the prosecution had legitimate
race-neutral reasons for the strikes.
Ayala raised
Batson objections for a
third and final time when the prosecution challenged Robert M., who
was Hispanic; George S., whose ethnicity was disputed; and Barbara
S., who was African-American. At this point, the trial court agreed
that Ayala had made a prima facie
Batson showing.
Ayala’s counsel argued that the strikes were in fact based on
race. Ayala’s counsel contended that the challenged jurors
were “not significantly different from the white jurors that
the prosecution ha[d] chosen to leave on the jury both in terms of
their attitudes on the death penalty, their attitudes on the
criminal justice system, and their attitudes on the presumption of
innocence.” App. 306. Ayala’s counsel then reviewed the
questionnaire answers and
voir dire testimony of
Barbara S. and Robert M., as well as the statements made by three
of the prospective jurors who had been the subject of the prior
Batson objections, Galileo S., Gerardo O., and Luis M.
Counsel argued that their answers showed that they could impose the
death penalty. The trial court stated that it would hear the
prosecution’s response outside the presence of the jury, and
Ayala once more did not object to that ruling. The prosecution then
explained that it had dismissed the prospective jurors in question
for several race-neutral reasons, including uncertainty that Robert
M., George S., or Barbara S. would be open to imposing the death
penalty. The prosecution also emphasized (among other points) that
Robert M. had followed a controversial trial, that George S. had
been a holdout on a prior jury, and that Barbara S. had given the
impression during
voir dire that she was under the
influence of drugs. The trial court concluded, for a third time,
that the prosecution’s peremptory challenges were based on
race-neutral criteria.
In August 1989, the jury convicted Ayala of all
the charges except one of the three attempted robberies. With
respect to the three murder convictions, the jury found two special
circumstances: Ayala committed multiple murders, and he killed
during the course of an attempted robbery. The jury returned a
verdict of death on all three murder counts, and the trial court
entered judgment consistent with that verdict.
B
Ayala appealed his conviction and sentence,
and counsel was appointed to represent him in January 1993. Between
1993 and 1999, Ayala filed 20 applications for an extension of
time, 11 of which requested additional time to file his opening
brief. After the California Supreme Court eventually ruled that no
further extensions would be granted, Ayala filed his opening brief
in April 1998, nine years after he was convicted. The State filed
its brief in September 1998, and Ayala then asked for four
extensions of time to file his reply brief. After the court
declared that it would grant him no further extensions, he filed
his reply brief in May 1999.
In August 2000, the California Supreme Court
affirmed Ayala’s conviction and death sentence.
People
v.
Ayala, 24 Cal. 4th 243, 6 P. 3d 193. In an opinion
joined by five justices, the State Supreme Court rejected
Ayala’s contention that the trial court committed reversible
error by excluding the defense from part of the
Batson
hearing. The court understood Ayala to challenge the peremptory
strikes under both
Batson and its state-law analogue,
People v.
Wheeler, 22 Cal. 3d 258, 583 P. 2d 748
(1978). The court first concluded that the prosecution had not
offered matters of trial strategy at the
ex parte hearing
and that, “as a matter of state law, it was [error]” to
bar Ayala’s attorney from the hearing. 24 Cal. 4th, at 262, 6
P. 3d, at 203.
Turning to the question of prejudice, the court
stated:
“We have concluded that error
occurred under state law, and we have noted [the suggestion in
United States v.
Thompson, 827 F. 2d 1254 (CA9
1987),] that excluding the defense from a
Wheeler-type
hearing may amount to a denial of due process. We nonetheless
conclude that the error was harmless under state law (
People
v.
Watson (1956) 46 Cal.2d 818, 836), and that, if federal
error occurred, it, too, was harmless beyond a reasonable doubt
(
Chapman v.
California (1967) 386 U. S. 18 ) as
a matter of federal law. On the record before us, we are confident
that the challenged jurors were excluded for proper, race-neutral
reasons.”
Id., at 264, 6 P. 3d, at 204.
The court then reviewed the prosecution’s
reasons for striking the seven prospective jurors and found that
“[o]n this well-developed record, . . . we are
confident that defense counsel could not have argued anything
substantial that would have changed the court’s rulings.
Accordingly, the error was harmless.”
Id., at 268, 6
P. 3d, at 207. The court concluded that the record supported
the trial judge’s implicit determination that the
prosecution’s justifications were not fabricated and were
instead “grounded in fact.”
Id., at 267, 6
P. 3d, at 206. And the court emphasized that the “trial
court’s rulings in the ex parte hearing indisputably
reflect both its familiarity with the record of voir dire of
the challenged prospective jurors and its critical assessment of
the prosecutor’s proffered justifications.”
Id.,
at 266–267, 6 P. 3d, at 206.
The California Supreme Court also rejected
Ayala’s argument that his conviction should be vacated
because most of the questionnaires filled out by prospective jurors
who did not serve had been lost at some point during the decade
that had passed since the end of the trial. The court wrote that
“the record is sufficiently complete for us to be able to
conclude that [the prospective jurors who were the subject of the
contested peremptories] were not challenged and excused on the
basis of forbidden group bias.”
Id., at 270, 6
P. 3d, at 208. And even if the loss of the questionnaires was
error under federal or state law, the court held, the error was
harmless under
Chapman and its state-law analogue. Two
justices of the State Supreme Court dissented. We then denied
certiorari. 532 U. S. 1029 (2001) .
C
After the California Supreme Court summarily
denied a habeas petition, Ayala turned to federal court. He filed
his initial federal habeas petition in 2002, but then went back to
state court to exhaust several claims. In December 2004, he filed
the operative federal petition and argued, among other things, that
the
ex parte hearings and loss of the questionnaires
violated his rights under the Sixth, Eighth, and Fourteenth
Amendments.
In 2006, the District Court denied Ayala relief
on those claims. The District Court read the decision of the
California Supreme Court to mean that the state court had not
decided whether the
ex parte proceedings violated
federal law, and the District Court expressed doubt “whether
the trial court’s procedure was constitutionally defective as
a matter of clearly established Federal law.” App. to Pet.
for Cert. 145a. But even if such a violation occurred, the District
Court held, the state court’s finding of harmlessness was not
contrary to or an unreasonable application of clearly established
law and thus could not be overturned under AEDPA. The District
Court also rejected Ayala’s argument about the lost
questionnaires, concluding that, even without them, the record was
sufficient to resolve Ayala’s other claims.
In 2013, a divided panel of the Ninth Circuit
granted Ayala federal habeas corpus relief and required California
either to release or retry him.
Ayala v.
Wong, 756
F. 3d 656 (2014). Because Ayala’s federal petition is
subject to the requirements of AEDPA, the panel majority began its
analysis by inquiring whether the state court had adjudicated
Ayala’s claims on the merits. Applying
de novo
review,[
1] the panel held that
the
ex parte proceedings violated the Federal
Constitution, and that the loss of the questionnaires violated
Ayala’s federal due process rights if that loss deprived him
of “the ability to meaningfully appeal the denial of his
Batson claim.”
Id., at 671. The
panel folded this inquiry into its analysis of
the question whether the error regarding the
ex parte
proceedings was harmless.
Turning to the question of harmlessness, the
panel identified the applicable standard of review as that set out
in
Brecht and added: “We apply the
Brecht test
without regard for the state court’s harmlessness
determination.” 756 F. 3d, at 674 (internal quotation
marks omitted).[
2] The panel
used the following complicated formulation to express its
understanding of
Brecht’s application to Ayala’s
claims: “If we cannot say that the exclusion of defense
counsel with or without the loss of the questionnaires likely did
not prevent Ayala from prevailing on his
Batson claim, then
we must grant the writ.” 756 F. 3d, at 676. Applying
this test, the panel majority found that the error was not
harmless, at least with respect to three of the seven prospective
jurors. The panel asserted that the absence of Ayala and his
counsel had interfered with the trial court’s ability to
evaluate the prosecution’s proffered justifications for those
strikes and had impeded appellate review, and that the loss of the
questionnaires had compounded this impairment.
Judge Callahan dissented. She explained that the
California Supreme Court’s decision that any federal error
was harmless constituted a merits adjudication of Ayala’s
federal claims. She then reviewed the prosecution’s
explanations for its contested peremptory challenges and concluded
that federal habeas relief was barred because “fairminded
jurists can concur in the California Supreme Court’s
determination of harmless error.”
Id., at 706.
The Ninth Circuit denied rehearing en banc, but
Judge Ikuta wrote a dissent from denial that was joined by seven
other judges. Like Judge Callahan, Judge Ikuta concluded that the
California Supreme Court adjudicated the merits of Ayala’s
federal claims. Instead of the panel’s “de novo
review of the record that piles speculation upon
speculation,” she would have found that the state
court’s harmlessness determination was not an unreasonable
application of
Chapman. 756 F. 3d, at 723.
We granted certiorari. 574 U. S. ___
(2014).
II
Ayala contends that his federal constitutional
rights were violated when the trial court heard the
prosecution’s justifications for its strikes outside the
presence of the defense, but we find it unnecessary to decide that
question. We assume for the sake of argument that Ayala’s
federal rights were violated, but that does not necessarily mean
that he is entitled to habeas relief. In the absence of “the
rare type of error” that requires automatic reversal, relief
is appropriate only if the prosecution cannot demonstrate
harmlessness.
Glebe v.
Frost, 574 U. S. ___, ___
(2014) (
per curiam) (slip op., at 3). The Ninth Circuit did
not hold—and Ayala does not now contend—that the error
here falls into that narrow category, and therefore Ayala is
entitled to relief only if the error was not harmless.
The test for whether a federal constitutional
error was harmless depends on the procedural posture of the case.
On direct appeal, the harmlessness standard is the one prescribed
in
Chapman, 386 U. S. 18 : “[B]efore a federal
constitutional error can be held harmless, the court must be able
to declare a belief that it was harmless beyond a reasonable
doubt.”
Id., at 24.
In a collateral proceeding, the test is
different. For reasons of finality, comity, and federalism, habeas
petitioners “are not entitled to habeas relief based on trial
error unless they can establish that it resulted in ‘actual
prejudice.’ ”
Brecht, 507 U. S., at
637 (quoting
United States v.
Lane, 474 U. S.
438, 449 (1986) ). Under this test, relief is proper only if the
federal court has “grave doubt about whether a trial error of
federal law had ‘substantial and injurious effect or
influence in determining the jury’s
verdict.’ ”
O’Neal v.
McAninch, 513 U. S. 432, 436 (1995) . There must be
more than a “reasonable possibility” that the error was
harmful.
Brecht,
supra, at 637 (internal quotation
marks omitted). The
Brecht standard reflects the view that a
“State is not to be put to th[e] arduous task [of retrying a
defendant] based on mere speculation that the defendant was
prejudiced by trial error; the court must find that the defendant
was actually prejudiced by the error.”
Calderon v.
Coleman, 525 U. S. 141, 146 (1998) (
per
curiam).
Because Ayala seeks federal habeas corpus
relief, he must meet the
Brecht standard, but that does not
mean, as the Ninth Circuit thought, that a state court’s
harmlessness determination has no significance under
Brecht.
In
Fry v.
Pliler, 551 U. S. 112, 120 (2007) , we
held that the
Brecht standard “subsumes” the
requirements that §2254(d) imposes when a federal habeas
petitioner contests a state court’s determination that a
constitutional error was harmless under
Chapman. The
Fry Court did not hold—and would have had no possible
basis for holding—that
Brecht somehow abrogates the
limitation on federal habeas relief that §2254(d) plainly sets
out. While a federal habeas court need not “formal[ly]”
apply both
Brecht and “AEDPA/
Chapman,”
AEDPA nevertheless “sets forth a precondition to the grant of
habeas relief.”
Fry,
supra, at
119–120.
Under AEDPA, 28 U. S. C.
§2254(d):
“An application for a writ of habeas
corpus on behalf of a person in custody pursuant to the judgment of
a State court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings unless the
adjudication of the claim—
“(1) resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States; or
“(2) resulted in a decision that was
based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.”
Section 2254(d) thus demands an inquiry into
whether a prisoner’s “claim” has been
“adjudicated on the merits” in state court; if it has,
AEDPA’s highly deferential standards kick in.
Harrington v.
Richter, 562 U. S. 86, 103 (2011)
.
At issue here is Ayala’s claim that the
ex parte portion of the
Batson hearings violated
the Federal Constitution. There is no dispute that the California
Supreme Court held that any federal error was harmless beyond a
reasonable doubt under
Chapman, and this decision
undoubtedly constitutes an adjudication of Ayala’s
constitutional claim “on the merits.” See,
e.g.,
Mitchell v.
Esparza, 540 U. S. 12 –18 (2003)
(
per curiam). Accordingly, a federal habeas court cannot
grant Ayala relief unless the state court’s rejection of his
claim (1) was contrary to or involved an unreasonable application
of clearly established federal law, or (2) was based on an
unreasonable determination of the facts. Because the highly
deferential AEDPA standard applies, we may not overturn the
California Supreme Court’s decision unless that court applied
Chapman “in an ‘objectively unreasonable’
manner.”
Id., at 18 (quoting
Lockyer v.
Andrade, 538 U. S. 63, 75 (2003) ). When a
Chapman decision is reviewed under AEDPA, “a federal
court may not award habeas relief under §2254 unless
the
harmlessness determination itself was unreasonable.”
Fry,
supra, at 119 (emphasis in original). And a
state-court decision is not unreasonable if
“ ‘fairminded jurists could disagree’ on
[its] correctness.”
Richter,
supra, at 101
(quoting
Yarborough v.
Alvarado, 541 U. S. 652,
664 (2004) ). Ayala therefore must show that the state
court’s decision to reject his claim “was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.” 562 U. S., at 103.
In sum, a prisoner who seeks federal habeas
corpus relief must satisfy
Brecht, and if the state court
adjudi-cated his claim on the merits, the
Brecht test
subsumes the limitations imposed by AEDPA.
Fry,
supra, at 119–120.
III
With this background in mind, we turn to the
question whether Ayala was harmed by the trial court’s
decision to receive the prosecution’s explanation for its
challenged strikes without the defense present. In order for this
argument to succeed, Ayala must show that he was actually
prejudiced by this procedure, a standard that he neces-sarily
cannot satisfy if a fairminded jurist could agree with the
California Supreme Court’s decision that this procedure met
the
Chapman standard of harmlessness. Evaluation of these
questions requires consideration of the trial court’s grounds
for rejecting Ayala’s
Batson challenges.
A
Batson held that the Equal Protection
Clause of the Fourteenth Amendment prohibits prosecutors from
exercising peremptory challenges on the basis of race. 476
U. S., at 89. When adjudicating a
Batson claim, trial
courts follow a three-step process:
“First, a defendant must make a
prima facie showing that a peremptory challenge has been exercised
on the basis of race; second, if that showing has been made, the
prosecution must offer a race-neutral basis for striking the juror
in question; and third, in light of the parties’ submissions,
the trial court must determine whether the defendant has shown
purposeful discrimination.”
Snyder v.
Louisiana, 552 U. S. 472 –477 (2008) (internal
quotation marks and alterations omitted).
The opponent of the strike bears the burden of
persuasion regarding racial motivation,
Purkett v.
Elem, 514 U. S. 765, 768 (1995) (
per curiam),
and a trial court finding regarding the credibility of an
attorney’s explanation of the ground for a peremptory
challenge is “entitled to ‘great
deference,’ ”
Felkner v.
Jackson,
562 U. S. 594, 598 (2011) (
per curiam) (quoting
Batson, 476 U. S., at 98, n. 21). On direct appeal,
those findings may be reversed only if the trial judge is shown to
have committed clear error.
Rice v.
Collins, 546
U. S. 333, 338 (2006) . Under AEDPA, even more must be shown.
A federal habeas court must accept a state-court finding unless it
was based on “an unreasonable determination of the facts in
light of the evidence presented in the State court
proceeding.” §2254(d)(2). “State-court factual
findings, moreover, are presumed correct; the petitioner has the
burden of rebutting the presumption by ‘clear and convincing
evidence.’ ”
Collins,
supra, at
338–339 (quoting §2254(e)(1)).
In this case, Ayala challenged seven of the
prosecution’s peremptory challenges. As explained above, the
Ninth Circuit granted relief based on the dismissal of three
potential jurors. The dissent discusses only one, Olanders D. We
will devote most of our analysis to the three individuals discussed
by the Ninth Circuit, but we hold that any error was harmless with
respect to all seven strikes.
B
1
Ayala first contests the prosecution’s
decision to challenge Olanders D., an African-American man. The
prosecution stated that its “primary” reason for
striking Olanders D. was uncertainty about whether he could impose
the death penalty, and the prosecutor noted that Olanders D. had
written on his questionnaire that he did not “believe in the
death penalty.” 50 Reporter’s Tr. on Appeal 6185
(hereinafter Tr.). Providing additional reasons for this strike,
the prosecutor first stated that Olanders D.’s responses
“did not make a lot of sense,” “were not thought
out,” and “demonstrate[d] a lack of ability to express
himself well.” App. 283. The prosecutor also voiced doubt
that Olanders D. “could actively participate in a meaningful
way in deliberations with other jurors” and might have lacked
the “ability to fit in with a cohesive group of 12
people.”
Ibid.
The trial court concluded that the strike was
race-neutral. The judge stated: “Certainly with reference to
whether or not he would get along with 12 people, it may well be
that he would get along very well with 12 people. I think the other
observations of counsel are accurate and borne out by the
record.” 50 Tr. 6186. The California Supreme Court found that
the evidence of Olanders D.’s views on the death penalty
provided adequate support for the trial judge’s finding that
the strike exercised against him was not based on race, and the
court further found that defense counsel’s presence would not
have affected the outcome of the
Batson hearing. The Ninth
Circuit reversed, but its decision rested on a misapplication of
the applicable harmless-error standards.
2
As the trial court and the State Supreme Court
found, Olanders D.’s
voir dire responses amply
support the prosecution’s concern that he might not have been
willing to impose the death penalty. During
voir dire,
Olanders D. acknowledged that he wrote on his questionnaire,
“ ‘I don’t believe in the death
penalty,’ ” App. 179, and he agreed that he had at
one time “thought that [the death penalty] was completely
wrong,”
id., at 177. Although he stated during the
voir dire that he had reconsidered his views, it was
reasonable for the prosecution and the trial court to find that he
did not clearly or adequately explain the reason or reasons for
this change. When asked about this, Olanders D. gave a vague and
rambling reply: “Well, I think it’s—one thing
would be the—the—I mean, examining it more closely, I
think, and becoming more familiar with the laws and the—and
the behavior, I mean, the change in the people, I think. All of
those things contributed to the changes.”
Id., at
178.
The Ninth Circuit reversed because it speculated
that defense counsel, if present when the prosecution explained the
basis for this strike, “could have pointed to seated white
jurors who had expressed similar or greater hesitancy” in
imposing the death penalty. 756 F. 3d, at 678. The Ninth
Circuit wrote that a seated white juror named Ana L. was
“indistinguishable from Olanders D. in this regard” and
that she had “made almost precisely the same statement in her
questionnaire.”
Ibid.
The responses of Olanders D. and Ana L.,
however, were by no means “indistinguishable.” Olanders
D. initially voiced unequivocal opposition to the death penalty,
stating flatly: “I don’t believe in the death
penalty.” He also revealed that he had once thought it was
“completely wrong.” Ana L., by contrast, wrote on the
questionnaire that she “
probably would not be able to
vote for the death penalty,” App. 109 (emphasis added), and
she then later said at
voir dire that she could vote
for a verdict of death.
In a capital case, it is not surprising for
prospective jurors to express varying degrees of hesitancy about
voting for a death verdict. Few are likely to have experienced a
need to make a comparable decision at any prior time in their
lives. As a result, both the prosecution and the defense may be
required to make fine judgment calls about which jurors are more or
less willing to vote for the ultimate punishment. These judgment
calls may involve a comparison of responses that differ in only
nuanced respects, as well as a sensitive assessment of
jurors’ demeanor. We have previously recognized that
peremptory challenges “are often the subjects of
instinct,”
Miller-El v.
Dretke, 545 U. S.
231, 252 (2005) (citing
Batson, 476 U. S., at 106
(Marshall, J., concurring)), and that “race-neutral reasons
for peremptory challenges often invoke a juror’s
demeanor,”
Snyder, 552 U. S., at 477. A trial
court is best situated to evaluate both the words and the demeanor
of jurors who are peremptorily challenged, as well as the
credibility of the prosecutor who exercised those strikes. As we
have said, “these determinations of credibility and demeanor
lie peculiarly within a trial judge’s province,” and
“in the absence of exceptional circumstances, we [will] defer
to the trial court.”
Ibid. (alterations and internal
quotation marks omitted). “Appellate judges cannot on the
basis of a cold record easily second-guess a trial judge’s
decision about likely motivation.”
Collins, 546
U. S., at 343 (Breyer, J., concurring).
The upshot is that even if “[r]easonable
minds reviewing the record might disagree about the
prosecutor’s credibility, . . . on habeas review
that does not suffice to supersede the trial court’s
credibility determination.”
Id., at 341–342
(majority opinion). Here, any similarity between the responses of
Olanders D. and Ana L. is insufficient to compel an inference of
racial discrimination under
Brecht or AEDPA.
Ayala contends that the presence of defense
counsel might have made a difference because defense counsel might
have been able to identify white jurors who were not stricken by
the prosecution even though they had “expressed similar or
greater hesitancy” about the death penalty. We see no basis
for this argument. The questionnaires of all the jurors who sat and
all the alternates are in the record, and Ana L., whom we just
discussed, is apparently the white juror whose answers come the
closest to those of Olanders D. Since neither Ayala nor the Ninth
Circuit identified a white juror whose statements better support
their argument, there is no reason to think that defense counsel
could have pointed to a superior comparator at the
ex parte proceeding.
3
In rejecting the argument that the prosecutor
peremptorily challenged Olanders D. because of his race, the
California Supreme Court appears to have interpreted the
prosecutor’s explanation of this strike to mean that Olanders
D.’s views on the death penalty were alone sufficient to
convince him to exercise a strike, see 24 Cal. 4th, at 266, 6
P. 3d, at 206, and this was certainly an interpretation of the
record that must be sustained under 28 U. S. C.
§2254(d)(2). As a result, it is not necessary for us to
consider the prosecutor’s supplementary reason for this
strike—the poor quality of Olanders D.’s
responses—but in any event, the Ninth Circuit’s
evaluation of this reason is also flawed.
The Ninth Circuit wrote that its independent
“review of the voir dire transcript reveal[ed] nothing
that supports the prosecution’s claim: Olanders D.’s
answers were responsive and complete.” 756 F. 3d, at
679. The record, however, provides sufficient support for the trial
court’s determination. Olanders D.’s incoherent
explanation during
voir dire of the reasons for his
change of opinion about the death penalty was quoted above. He also
provided a chronology of the evolution of his views on the subject
that did not hold together. He stated that he had been
“completely against the death sentence” 10 years
earlier but seemed to suggest that his views had changed over the
course of the intervening decade. See App. 176–177. However,
on the questionnaire, which he had completed just a month before
the
voir dire, he wrote unequivocally: “I
don’t believe in the death penalty.”
Id., at
179. And then, at the time of the
voir dire, he said
that he would be willing to impose the death penalty in some cases.
Id., at 180. He explained his answer on the questionnaire as
follows: “I answered that kind of fast[.] [N]ormally, I
wouldn’t answer that question that way, but I mean, I really
went through that kind of fast. I should have done better than
that.”
Id., at 179–180. These answers during
voir dire provide more than sufficient support for the
prosecutor’s observation, which the trial court implicitly
credited, that Olanders D.’s statements “did not make a
lot of sense,” “were not thought out,” and
“demonstrate[d] a lack of ability to express himself
well.”
In ordering federal habeas relief based on their
assessment of the responsiveness and completeness of Olanders
D.’s answers, the members of the panel majority misunderstood
the role of a federal court in a habeas case. The role of a federal
habeas court is to “ ‘guard against extreme
malfunctions in the state criminal justice
systems,’ ”
Richter, 562 U. S., at
102–103 (quoting
Jackson v.
Virginia, 443
U. S. 307 , n. 5 (1979) (Stevens, J., concurring in
judgment)), not to apply
de novo review of factual
findings and to substitute its own opinions for the determination
made on the scene by the trial judge.
C
Ayala next challenges the prosecution’s
use of a peremptory challenge to strike Gerardo O., a Hispanic man.
The prosecution offered three reasons for this strike: Gerardo O.
had a poor grasp of English; his answers during
voir dire and on his questionnaire suggested that he
might not be willing to impose the death penalty; and he did not
appear to get along with the other prospective jurors. The trial
judge accepted this explanation, as did the State Supreme
Court.
The Ninth Circuit, however, rejected the state
courts’ determinations based on speculation that defense
counsel, if present at the
in camera hearing, “likely
could have called into question all of the prosecution’s
stated reasons for striking Gerardo O.” 756 F. 3d, at
680. The Ninth Circuit thought that it could grant Ayala relief
simply because it “[could not] say that Ayala would not have
shown that the trial court would or should have determined that the
prosecution’s strike of Gerardo O. violated
Batson.”
Id., at 682. But that is not the test.
The inquiry under
Brecht is not whether the federal habeas
court could definitively say that there were no winning arguments
that the defense could have made. Instead, the evidence in the
record must raise “grave doubt[s]” about whether the
trial judge would have ruled differently.
O’Neal, 513
U. S., at 436. This requires much more than a
“reasonable possibility” that the result of the hearing
would have been different.
Brecht, 507 U. S., at 637
(internal quotation marks omitted). And on the record in this case,
Ayala cannot establish actual prejudice or that no fairminded
jurist could agree with the state court’s application of
Chapman.
We begin with the prosecution’s
explanation that it challenged Gerardo O. because of his limited
English proficiency. During
voir dire, Gerardo O.
acknowledged that someone else had written the answers for him
onhis questionnaire “[b]ecause I couldn’t—I
cannot read—I cannot spell that well.” App. 163. He
added that he “didn’t get” some of the words on
the questionnaire.
Ibid. Gerardo O.’s testimony also
revealed that he might well have been unable to follow what was
said at trial. When asked whether he could understand spoken
English, he responded: “It depends if you make long words. If
you make—if you go—if you say it straight out, then I
might understand. If you beat around the bush, I
won’t.”
Id., at 166. At that point, defense
counsel and Gerardo O. engaged in a colloquy that suggests that
defense counsel recognized that he lacked the ability to understand
words not used in basic everyday speech, “legal words,”
and rapid speech in English:
“Q: I’ll try not to talk—use
any legal words or lawyer talk—
“A: Okay.
“Q: —and talk regular with you. If
you don’t understand anything I say, stop me and tell me,
okay?
“A: Okay.
“Q: If you’re selected as a juror
during the trial, and you know you’re serving as a juror and
listening to witnesses, can we have your promise that if a witness
uses a word you don’t understand, you’ll put your hand
up and let us know?
“A: Yeah.
. . . . .
“Q: There’s one more problem
that you’re going to have with me, and that is that sometimes
. . . I talk real fast . . . .”
Id., at 166–167.
It is understandable for a prosecutor to strike
a potential juror who might have difficulty understanding
English.[
3] The jurors who were
ultimately selected heard many days of testimony, and the
instructions at both the guilt and the penalty phases included
“legal words” and words not common in everyday speech.
The prosecution had an obvious reason to worry that service on this
jury would have strained Gerardo O.’s linguistic
capability.
The Ninth Circuit reached a contrary conclusion
by distorting the record and the applicable law. The Ninth Circuit
first suggested that Gerardo O.’s English-language
deficiencies were limited to reading and writing, 756 F. 3d,
at 680, but as the portions of the
voir dire quoted
above make clear, that was not true; the record shows that his
ability to understand spoken English was also limited. The Ninth
Circuit then suggested that “[t]he prosecution’s
purported reason for striking Gerardo O. . . . was
directly related to his status as someone who spoke Spanish as his
first language,”
ibid., but the prosecutor voiced no
concern about Gerardo O.’s ability to speak Spanish or about
the fact that Spanish was his first language. The
prosecution’s objection concerned Gerardo O.’s limited
proficiency in
English. The Ninth Circuit quoted the
following statement from
Hernandez v.
New York, 500
U. S. 352, 363 (1991) (plurality opinion):
“ ‘[T]he prosecutor’s frank admission that
his ground for excusing th[is] juror[ ] related to [his]
ability to speak and understand Spanish raised a plausible, though
not a necessary, inference that language might be a pretext for
what in fact [was a] race-based peremptory
challenge[ ].’ ” 756 F. 3d, at 680
(alterations in original). This statement, however, did not concern
a peremptory exercised due to a prospective juror’s lack of
English proficiency. Instead, it concerned the dismissal of
Spanish-speaking members of the venire for fear
that, if seated, they might not follow the English translation of
testimony given in Spanish. See 500 U. S., at 360. The Ninth
Circuit’s decision regarding Gerardo O. was thus based on a
misreading of the record and a distortion of our case law. And
neither Ayala nor the Ninth Circuit has identified anything that
defense counsel might have done at the
ex parte hearing
to show that the prosecutor’s concern about Gerardo
O.’s limited English proficiency was pretextual.
The prosecution’s second proffered reason
for striking Gerardo O. was concern about his willingness to impose
the death penalty, and as the trial court found, this observation
was also supported by the record. Indeed, when asked in
voir dire how he felt about imposing the death penalty,
Gerardo O. responded that he was “[k]ind of shaky about
it. . . . I’m not too sure if I can take
someone else’s life in my hands and say that; say, you know,
‘death,’ or something.” App. 168. In response to
another question about his thoughts on the death penalty, he
replied: “I don’t know yet. It’s kind of hard,
you know, to pick it up like that and say how I feel about the
death penalty.” 15 Tr. 1052. Answering a question about
whether his thoughts on the death penalty would affect how he
viewed the evidence presented at trial, he responded, “I
don’t know, sir, to tell you the truth.” App. 165. And
when asked if he had “any feeling that [he] would be unable
to vote for the death penalty if [he] thought it was a case that
called for it,” Gerardo O. responded once again, “I
don’t know.” 15 Tr. 1043. While Gerardo O. did say at
one point that he might be willing to impose the death pen-alty, he
qualified that statement by adding that he would be comforted by
the fact that “there’s eleven more other persons on the
jury.” App. 170.
What we said above regarding jurors who express
doubts about their openness to a death verdict applies as well
here. The prosecution’s reluctance to take a chance that
Gerardo O. would ultimately be willing to consider the death
penalty in accordance with state law did not compel the trial judge
to find that the strike of Gerardo O. was based on race.
Nor is there a basis for finding that the
absence of defense counsel affected the trial judge’s
evaluation of the sincerity of this proffered ground for the
strike. Defense counsel had a full opportunity during
voir dire to create a record regarding Gerardo
O.’s openness to the death penalty. And defense counsel had
the opportunity prior to the
ex parte proceeding on the
Gerardo O. strike to compare the minority jurors dismissed by the
prosecution with white jurors who were seated. Counsel argued that
the answers on the death penalty given by the minority jurors were
“not significantly different from [those of] the white jurors
that the prosecution ha[d] chosen to leave on the jury.”
Id., at 306. The trial judge asked counsel for
“particulars,” and counsel discussed Gerardo O., albeit
briefly.
Id., at 307–308. Thus, there is no reason to
believe that counsel could have made a more persuasive argumentat
the
ex parte proceeding than he made during
thisexchange.
The prosecution’s final reason for
striking Gerardo O. was that he appeared to be “a standoffish
type of individ-ual” whose “dress
and . . . mannerisms . . . were
not in keeping with the other jurors” and who “did not
appear to be socializing or mixing with any of the other
jurors.”
Id., at 298. The trial judge did not dispute
that the prosecution’s reflections were borne out by the
record. The California Supreme Court affirmed and also emphasized
that “the trial court’s rulings in the ex parte
hearing indisput-ably reflect both its familiarity with the record
of voir dire of the challenged prospective jurors and its
critical assessment of the prosecutor’s proffered
justifications.” 24 Cal. 4th, at 266–267, 6
P. 3d, at 206.
In light of the strength of the
prosecution’s first two reasons for striking Gerardo O., it
is not at all clear that the prosecution proffered this final
reason as an essential factor in its decision to strike, but in any
event, there is no support for the suggestion that Ayala’s
attorney, if allowed to attend the
ex parte hearing, would
have been able to convince the judge that this reason was
pretextual. The Ninth Circuit, however, was content to speculate
about what might have been. Mixing guesswork with armchair
sociology, the Ninth Circuit mused that “[i]t is likely that
Gerardo O.’s dress and mannerisms were distinctly Hispanic.
Perhaps in the late 1980’s Hispanic males in San Diego County
were more likely than members of other racial or ethnic groups in
the area to wear a particular style or color of shirt, and Gerardo
O. was wearing such a shirt.” 756 F. 3d, at
680–681. As for the prosecution’s observation that
Gerardo O. did not socialize with other jurors, the Ninth Circuit
posited that, “perhaps, unbeknownst to the trial judge,
Gerardo O. did ‘socializ[e] or mix[ ]’ with a
number of other jurors, and had even organized a dinner for some of
them at his favorite Mexican restaurant.”
Id., at
681.
This is not how habeas review is supposed to
work. The record provides no basis for the Ninth Circuit’s
flight of fancy.
Brecht requires more than speculation about
what extrarecord information defense counsel might have mentioned.
And speculation of that type is not enough to show that a State
Supreme Court’s rejection of the argument regarding Gerardo
O. was unreasonable.
D
The final prospective juror specifically
discussed in the Ninth Circuit’s decision was Robert M., who
is Hispanic. The prosecution’s primary proffered reason for
striking Robert M. was concern that he would not impose the death
penalty, though the prosecution added that it was troubled that he
had followed the Sagon Penn case, a high-profile prosecution in San
Diego in which an alleged murderer was acquitted amid allegations
of misconduct by police and prosecutors. In addition, the
prosecution also explained to the trial court that Robert M. scored
poorly on its 10-point scale for evaluating prospective jurors. The
trial court accepted the prosecutor’s explanation of the
strike.
With respect to the prosecution’s concern
that Robert M. might not be willing to impose the death penalty,
the Ninth Circuit found that defense counsel, if permitted to
attend the
in camera proceeding, could have compared Robert
M.’s statements about the death penalty to those of other
jurors and could have reminded the judge that Robert M. had
“repeatedly stated during voir dire that he believed in
the death penalty and could personally vote to impose it.”
756 F. 3d, at 682. But as with Olanders D. and Gerardo O., we
cannot say that the prosecution had no basis for doubting Robert
M.’s willingness to impose the death penalty. For example,
when asked at one point whether he could vote for death, Robert M.
responded: “Well, I’ve though[t] about that, but
it’s a difficult question, and yeah, it is difficult for me
to say, you know, one way or the other. I believe in it, but for me
to be involved in it is—is hard. It’s hard to accept
that aspect of it, do you know what I mean?” App.
149–150. In response to another question, he said: “It
would be hard, but I think I could, yes.
It’s—it’s hard to say, you know—and I
don’t care who the person is—to say that they have to
put somebody away, you know. It’s very hard.”
Id., at 154. These are hardly answers that would inspire
confidence in the minds of prosecutors in a capital case.
While the Ninth Circuit argued that defense
counsel’s absence at the
in camera hearing prejudiced
the trial judge’s ability to assess this reason for the
strike of Robert M., the Ninth Circuit failed to mention that
defense counsel specifically addressed this issue during
voir dire. At that time, he pointedly reminded the
judge that Robert M. had made several statements during
voir dire that were favorable to the death penalty.
Id., at 307. The trial judge thus heard defense
counsel’s arguments but nevertheless concluded that the
record supplied a basis for a legitimate concern about whether
Robert M. could impose the death penalty. That Ayala’s
attorney did not have the opportunity to repeat this same argument
once more at the
in camera proceeding does not create grave
doubt about whether the trial court would have decided the issue
differently.
As for the prosecution’s second proffered
reason for striking Robert M.—that he had followed the Sagon
Penn case[
4]—the Ninth
Circuit placed great emphasis on the fact that a seated white juror
had followed a different murder trial, that of Robert Alton
Harris.[
5] But the Penn and
Harris cases were quite different. Harris was convicted while Penn
was acquitted; and since the Harris case was much older, the
experience of following it was less likely to have an effect at the
time of the trial in this case.
E
Ayala raised a
Batson objection about
the prosecution’s use of peremptory challenges on four
additional jurors, George S., Barbara S., Galileo S., and Luis M.
The Ninth Circuit did not address these prospective jurors at
length, and we need not dwell long on them. With respect to all
four of these prospective jurors, we conclude that any
constitutional error was harmless.
Of these four additional jurors, Ayala’s
brief in this Court develops an argument with respect to only
two,
George S. and Barbara S. And while Ayala’s
attorney claimed that George S. was Hispanic, the prosecutor said
that he thought that George S. was Greek. In any event, the
prosecution offered several reasons for striking George S. The
prosecutor noted that one of his responses “was essentially,
‘you probably don’t want me to be a juror on this
case.’ ”
Id., at 312. The prosecutor was
also concerned about whether he would vote for death or even a life
sentence and whether he would follow the law as opposed to his
personal religious beliefs. In addition, the prosecutor noted that
George S. had previously been the sole holdout on a jury and that
his prior application to be a police officer had been rejected, for
reasons that were not clear. The trial court accepted these
explanations.
Ayala contests only two of these justifications.
He quibbles that George S. had not been a
“ ‘holdout,’ ” but instead had
been the dissenting juror in a civil case on which unanimity was
not required. This observation does not render the
prosecution’s proffered justification “false or
pretextual.” Brief for Respondent 46. The fact that George S.
had been willing to dissent from a jury verdict could reasonably
give a prosecutor pause in a capital case since a single holdout
juror could prevent a guilty verdict or death sentence. The most
that Ayala can establish is that reasonable minds can disagree
about whether the prosecution’s fears were well founded, but
this does not come close to establishing “actual
prejudice” under
Brecht. Nor does it meet the AEDPA
standard. Ayala also points out that a seated white juror, Charles
C., had been re-jected by a police force, but George S. admitted
that he had applied to law enforcement because he was “trying
to get out of the Army,” App. 222, and the reasons for his
rejection were not clear. Charles C., by contrast, had received a
qualifying score on a law enforcement exam but was not hired
because a position was not available.
As for Barbara S., the prosecution struck her
because, during
voir dire, she appeared to be
“under the influence of drugs” and disconnected from
the proceedings.
Id., at 314. The prosecution emphasized
that she had “an empty look in her eyes, slow responses, a
lack of really being totally in tune with what was going on.”
Ibid. It added that she appeared “somewhat
angry,” “manifest[ed] a great deal of
nervousness,” and seemed like someone who would be unlikely
to closely follow the trial.
Ibid. The trial judge thought
that Barbara S. appeared nervous rather than hostile, but he agreed
that she gave incomplete answers that were sometimes “non
sequiturs.”
Id., at 315. He concluded, “I
certainly cannot quarrel . . . with your subjective
impression, and the use of your peremp-tory challenge based upon
her individual manifestation, as opposed to her ethnicity.”
Ibid. Ayala points to the trial court’s disagreement
with the prosecutor’s impression that Barbara S. was hostile,
but this ruling illustrates the trial judge’s recollection of
the demeanor of the prospective jurors and his careful evaluation
of each of the prosecutor’s proffered reasons for strikes.
And the fact that the trial judge’s impression of Barbara
S.’s demeanor was somewhat different from the
prosecutor’s hardly shows that the prosecutor’s reasons
were pretextual. It is not at all unusual for individuals to come
to different conclusions in attempting to read another
person’s attitude or mood.
IV
The pattern of peremptory challenges in this
case was sufficient to raise suspicions about the
prosecution’s motives and to call for the prosecution to
explain its strikes. As we have held, the Fourteenth Amendment
prohibits a prosecutor from striking potential jurors based on
race. Discrimination in the jury selection process undermines our
criminal justice system and poisons public confidence in the
evenhanded administration of justice.
In
Batson, this Court adopted a procedure
for ferreting out discrimination in the exercise of peremptory
challenges, and this procedure places great responsibility in
thehands of the trial judge, who is in the best position to
determine whether a peremptory challenge is based on an
impermissible factor. This is a difficult determination because of
the nature of peremptory challenges: They are often based on subtle
impressions and intangible factors. In this case, the conscientious
trial judge determined that the strikes at issue were not based on
race, and his judgment was entitled to great weight. On appeal,
five justices of the California Supreme Court carefully evaluated
the record and found no basis to reverse. A Federal District Judge
denied federal habeas relief, but a divided panel of the Ninth
Circuit reversed the District Court and found that the California
Supreme Court had rendered a decision with which no fairminded
jurist could agree.
For the reasons explained above, it was the
Ninth Circuit that erred. The exclusion of Ayala’s attorney
from part of the
Batson hearing was harmless error. There is
no basis for finding that Ayala suffered actual prejudice, and the
decision of the California Supreme Court represented an entirely
reasonable application of controlling precedent.
* * *
The judgment of the Court of Appeals for the
Ninth Circuit is reversed, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.