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Argument preview: A Ninth Circuit capital habeas case with a complicated doctrinal twist

Whether deservedly or not, an opinion by Ninth Circuit Judge Stephen Reinhardt granting habeas relief to a state prisoner notwithstanding the deferential approach mandated by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) is often fodder for terse – if not summary – reversals by the Supreme Court. But Davis v. Ayala, which is scheduled for oral argument before the Justices next Tuesday, comes to the Court with a twist of the Justices’ own making: Rather than simply granting the single, AEDPA-based question presented by California’s petition for certiorari, the Justices added a second question to the case – one that, properly understood, may well signal the Supreme Court’s inclination to dig into some of the merits of respondent Hector Ayala’s habeas claim, and not just provide another reprimand to the Ninth Circuit for a lack of fealty to AEDPA. And although California may well prevail on those merits, the potential significance of the Justices even reaching the substance of Ayala’s claims could yield the most significant habeas decision of the current Term.


In 1989, respondent Hector Ayala was tried, convicted, and sentenced to death by a California state court for the murders of three men and a host of other serious felonies arising out of a 1985 armed robbery. During jury selection, the prosecution used its peremptory challenges to strike all of the black and Hispanic jurors available for challenge. Although the trial judge concluded that Ayala had established a prima facie case for racial discrimination under Batson v. Kentucky, he then permitted the prosecution to provide justifications for the challenges of these jurors in an in camera, ex parte hearing – and accepted those justifications without providing them to Ayala or his counsel or permitting them an opportunity to respond. On direct appeal, the California Supreme Court unanimously held that the trial court erred as a matter of state law (and perhaps federal law – but more on that below) in denying Ayala or his counsel an opportunity to contest the state’s justifications. At the same time, and critically, a divided majority held that any such error was harmless as a matter of both state and federal law – which then-Chief Justice Ronald George’s dissent characterized as an “unprecedented conclusion that the erroneous exclusion of the defense from a crucial portion of jury selection proceedings may be deemed harmless.” The Supreme Court denied Ayala’s petition for certiorari.

Ayala then filed for federal post-conviction habeas relief. Although the district court denied Ayala’s petition, it issued a certificate of appealability as to both Ayala’s Batson-related claims and his claim that California violated his rights under the Vienna Convention on Consular Relations. On appeal, a divided panel of the Ninth Circuit reversed the district court, holding that Ayala was entitled to habeas relief on his Batson-related claims. In particular, Judge Reinhardt held that AEDPA deference did not apply to the merits of Ayala’s Sixth Amendment claim because the California Supreme Court opinion, although unclear, could only fairly be read (1) as holding that the trial court had violated Ayala’s Sixth Amendment rights by excluding him and his counsel from key parts of the Batson proceedings; or (2) as not reaching the federal constitutional error at all. Either way, Judge Reinhardt concluded, Ayala was entitled to de novo review of the merits of his habeas petition – review which easily yielded the conclusion that the trial court had indeed violated the Sixth Amendment by excluding Ayala and his counsel from two stages of the Batson proceedings.

Finally, the Ninth Circuit held that Ayala was entitled to habeas relief because the state court’s conclusion that Ayala had not been prejudiced by the Batson errors was inconsistent with the Supreme Court’s decision in Brecht v. Abrahamson. Specifically, as Judge Reinhardt explained, “Given the strength of Ayala’s prima facie case, the evidence that the prosecution’s proffered reasons were false or discriminatory, and the inferences that can be drawn from the available comparative juror analysis, it is ‘impossible to conclude that [Ayala’s] substantial rights were not affected’ by the exclusion of defense counsel from the Batson proceedings.” In other words, “it is not our task here to show that Ayala should have prevailed on his Batson claim, but only that he was prejudiced in his ability to prevail on that claim by the fact that his counsel was not present at the Batson hearing.”

Judge Consuelo Callahan dissented. In her view, there were two independent obstacles to the majority’s decision to grant habeas relief to Ayala. First, at the time of Ayala’s trial, it was not clear that the exclusion of the defendant and his counsel from parts of the Batson proceedings violated the Sixth Amendment, and so his claim was barred by the non-retroactivity rule of Teague v. Lane. Second, and in any event, the Supreme Court’s recent decisions in Harrington v. Richter and Johnson v. (Tara) Williams, both of which came in reversals of contrary Ninth Circuit holdings, had made clear that the California Supreme Court’s silence as to the federal constitutional issue ought to have been treated as a rejection of Ayala’s federal claim on the merits that was entitled to AEDPA deference – and not, as Judge Reinhardt concluded, as either an adjudication of the federal claim in Ayala’s favor, or as no adjudication at all.

After seeking rehearing en banc, which was denied over an eight-judge dissent penned by Judge Sandra Ikuta, California petitioned for certiorari, asking whether “a state court’s rejection of a claim of federal constitutional error on the ground that any error, if one occurred, was harmless beyond a reasonable doubt is an ‘adjudicat[ion] on the merits,’” and therefore subject to AEDPA deference. In granting certiorari, however, the Justices added a question of their own – “Whether the court of appeals properly applied the standard articulated in Brecht” – the answer to which would presumably be irrelevant if the Court was inclined to answer California’s proffered question in the affirmative.

The First Question Presented

As its framing of the question it presented in its petition for certiorari suggests, California’s basic argument to the Supreme Court is that the Ninth Circuit owed AEDPA deference to the California Supreme Court’s conclusion that any federal constitutional error was harmless beyond a reasonable doubt – in effect, that the “merits” adjudication was not the California Supreme Court’s vexingly ambiguous treatment of the substance of Ayala’s Batson claim, but rather its conclusion that any Batson error was harmless. Thus, as California explains in its opening brief, “a federal court may not set aside Ayala’s state conviction based on that claim unless the state court’s decision—that is, its denial of relief on the particular claim—was contrary to, or involved an unreasonable application of, a rule of federal law clearly established by this Court.” In other words, whereas the Ninth Circuit held that any adjudication on the merits favored Ayala by at most saying nothing about the apparent federal constitutional error, California views the harmlessness of Ayala’s Batson claim as part and parcel of the claim itself; in its view, AEDPA deference is owed to the underlying state-court judgment, and not the elements thereof.

In response, Ayala’s brief largely reprises the gist of Judge Reinhardt’s opinion for the court of appeals, and the importance of separately analyzing the alleged constitutional error – and whether or not that error was harmless. Analogizing to a series of Supreme Court habeas cases involving ineffective assistance of counsel claims, Ayala argues that AEDPA requires habeas courts to separately analyze the state court’s adjudication of the constitutional claim and its adjudication of what prejudice, if any, the defendant suffered as a result of the error. To treat a state court’s finding of harmless error as an “adjudication on the merits,” Ayala concludes, is to insulate from federal collateral relief even those egregious federal constitutional errors recognized by the state courts.

The Second Question Presented

Given the question the Supreme Court added to the grant of certiorari, it certainly seems likely that much of the focus of Tuesday’s argument will be on the second question presented – whether the Ninth Circuit correctly applied Brecht.

To understand the parties’ arguments – and the stakes of this question – requires a bit of doctrinal parsing. In its 2008 decision in Fry v. Pliler, the Supreme Court clarified that the Brecht standard for proving harmless error in a habeas case applied whether or not the state court specifically found that the error was harmless beyond a reasonable doubt under the Supreme Court’s 1967 decision in Chapman v. California. In the process, though, Pliler left unclear whether a federal habeas court can assess Brecht error independently (as Ayala argues it must), or whether, in cases (such as this one) in which the state court did assess harmlessness under Chapman, the habeas court’s assessment is in any meaningful way bound to consider – and defer to – the state court’s consideration of the same.

Further complicating matters are the Supreme Court’s subsequent and broadly deferential decisions in Richter and (Tara) Williams, which California reads as suggesting that “If a state court’s harmlessness determination could be accepted by fairminded jurists, then a federal court may not set aside the resulting state judgment under Brecht, Fry, or [AEDPA itself].”

Thus, as California argues, “The court of appeals erred both in believing that its own analysis of harm could properly proceed ‘without regard for’ that of the state court, and in the way it performed that analysis—speculating about hypothetically possible harm, rather than reviewing the record for evidence of the sort of ‘actual prejudice’ that could justify setting aside a state conviction.”

In response, Ayala offers two principal arguments: First, insofar as Fry reaffirmed that the Brecht standard applies whether or not the state court specifically considered harmlessness, it necessarily suggested that federal courts are not bound to defer to state court harmlessness findings in cases in which they exist. Second, Richter’s broad framing of deference to state court rulings was specific to the substance of ineffective assistance claims – and, in general, ought not to be applied to harmless error determinations, especially since Richter neither discussed nor even cited Brecht or Fry.


As these arguments suggest, the real dispute in this case almost certainly boils down to the tension between Fry, on the one hand, and the deference-laden approach outlined in cases like Richter, on the other. When federal habeas courts are evaluating the harmlessness of a state trial court’s serious constitutional error, to what extent are they bound to defer to the state appellate court’s own harmlessness finding even in cases in which it appears demonstrably suspect? And if deference is required, how does that square with Fry’s admonition to treat alike cases in which a state court made no harmlessness determination with cases in which it did?

Ultimately, then, although California presents Ayala as a typical habeas case in which the Ninth Circuit overreached, it’s far more subtle than that. If anything, the Ninth Circuit labored, however convincingly, to resolve an unmistakable tension created by the Supreme Court’s own doctrine. And if the Justices end up reaching the question they added to the case – and resolve the appropriate standard for a habeas court assessing harmless error in the face of a harmlessness finding by a state court – that will have implications for all habeas cases in which the state court declined to redress an otherwise meritorious constitutional claim solely because that error was, in the state court’s view, “harmless.”

Plain English: If a state appellate court identifies a serious constitutional violation in a state criminal defendant’s trial, but concludes that such error did not affect the outcome of the trial, does that determination prevent a federal court from granting post-conviction relief to the plaintiff either because it cannot revisit the state court’s identification of the serious constitutional violation or its determination that any error resulting from that violation did not affect the outcome of the trial?

Recommended Citation: Steve Vladeck, Argument preview: A Ninth Circuit capital habeas case with a complicated doctrinal twist, SCOTUSblog (Feb. 27, 2015, 10:11 AM),