Ayala

Opinion by Judge REINHARDT; Dissent by Judge CALLAHAN; Order; Dissent to Order by Judge IKUTA.

OPINION

State prisoner Hector Juan Ayala (“Ayala”) appeals the denial of his petition for a writ of habeas corpus. During the selection of the jury that convicted Ayala and sentenced him to death, the prosecution used its peremptory challenges to strike all of the black and Hispanic jurors available for challenge. The trial judge concluded that Ayala had established a prima facie case of racial discrimination under Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), but permitted the prosecution to give its justifications for the challenges of these jurors in an in camera hearing from which Ayala and his *660 counsel were excluded. The trial judge then accepted the prosecution’s justifications for its strikes without disclosing them to the defense or permitting it to respond. The California Supreme Court held that the trial court erred as a matter of state law, relying on a number of federal cases, but found that any error — state or federal — was “harmless.”

We conduct our review of Ayala’s appeal under the Antiterrorism and Effective Death Penalty Act of 1996…

joined by O’SCANNLAIN, TALLMAN, BYBEE, CALLAHAN, BEA, M. SMITH, and N.R. SMITH, Circuit Judges, dissenting from the denial of rehearing en banc:

The Supreme Court has twice before rejected the approach to habeas review that the panel majority adopts here. In two prior habeas opinions, Richter v. Hickman, 578 F.3d 944 (9th Cir.2009) (en banc), and Williams v. Cavazos, 646 F.3d 626 (9th Cir.2011), we brushed aside the deference we owe a state court’s adjudication of a petitioner’s claim under the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254 (d), and reviewed a petitioner’s claim de novo. The Supreme Court unanimously reversed both of these opinions. It held that we must defer to a state court denial of a federal claim even if the state court issued only a summary denial, Harrington v. Richter, 562 U.S. 86 , 131 S.Ct. 770, 784-85 , 178 L.Ed.2d 624 (2011), and even if the state court issued a reasoned opinion that did not expressly reject the federal claim, *717 Johnson v. Williams, — U.S. —, 133 S.Ct. 1088, 1094-96 , 185 L.Ed.2d 105 (2013).

Undeterred, the panel majority now tries yet another route to de novo review. It reasons that the Supreme…