Constantino Carrera v. Robert Ayers, Jr.

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 (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. 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…

Petitioner-Appellant Constantino Carr-era 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 Hispanie-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…

dissenting:

A fair trial requires the selection of a fair jury. That didn’t happen in Constantino Carrera’s case because his defense counsel was incompetent.

Michael Vedrasco, the prosecutor in defendant Carrera’s case, struck seventy-five percent of potential Hispanic jurors, but only twenty-six percent of potential white jurors. Carrera’s defense attorney, Donnalee Huffman, 1 failed to object. The majority concludes that attorney Huffman’s failure to object to the prosecutor’s striking of prospective Hispanic jurors did not amount to ineffective assistance of counsel. I disagree.

Both the United States Constitution and the California Constitution guarantee a defendant in a criminal case a fair and impartial jury. U.S. Const. amend. VI; Cal. Const., art. I, § 16. In People v. Wheeler, the California Supreme Court established that racial bias in jury selection violates *1112 this constitutional guarantee. People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890 , 583 P.2d 748, 755 (1978). To support a Wheeler motion, the defense attorney must “show a strong likelihood” that the prosecutor struck prospective jurors because of their “group association.” Id. at 764. Once the defense…