Constantino Carrera v. Robert Ayers, Jr.

dissenting:

Constantino Carrera, who is Hispanic, was tried and convicted in 1983 of the double murder of a white couple in Kern County, California. In the course of jury selection, the prosecutor exercised the State’s peremptory challenges against six of eight Hispanic venire persons. Although People v. Wheeler, 22 Cal.3d 258 , 148 Cal.Rptr. 890 , 583 P.2d 748 (1978), had been the law in California for five years, defense counsel did not raise a Wheeler challenge against the prosecution’s highly *952 disproportionate use of its peremptory-challenges to excuse 75 percent of Hispanic venire persons who were called. Because, in failing to object and failing to develop the record, Carrera’s trial counsel ignored an obvious prima facie ease that the prosecutor was using his peremptory challenges disproportionately to strike Hispanic jurors in violation of Wheeler , I respectfully dissent from the majority’s denial of the writ. 1 Because this deficient performance resulted in a structural error, prejudice must be presumed. Accordingly, I would grant Carrera habeas relief.

I

Carrera has overcome the “strong presumption” that his trial counsel’s failure to object was “sound trial…

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).

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…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CONSTANTINO CARRERA, 

Petitioner-Appellant, No. 08-99007 v. D.C. No. ROBERT L. AYERS, JR., Warden of  1:90-CV-00478- the California State Prison at San AWI Quentin, OPINION Respondent-Appellee.  Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, Chief District Judge, Presiding

Argued and Submitted June 14, 2010—San Francisco, California

Filed October 4, 2011

Before: Diarmuid F. O’Scannlain, A. Wallace Tashima, and Carlos T. Bea, Circuit Judges.

Opinion by Judge Bea; Dissent by Judge Tashima

18709 CARRERA v. AYERS 18713

COUNSEL

Stephen B. Bedrick, Law Office of Stephen B. Bedrick, Oak- land, California, 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, Cali- fornia, for the respondent-appellee.

OPINION

BEA, Circuit…