Hector Juan AYALA, Petitioner-Appellant, v. Robert K. WONG, Warden, Respondent-Appellee, 730 F.3d 831

OPINION REINHARDT, Circuit Judge: 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 ease 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 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 the error was “harmless.” We conduct our review of Ayala’s appeal under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The state court did not review the merits of Ayala’s federal claim adversely to him. We hold that on de novo review Ayala prevails on the merits of his claim and that, under Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), the violation of Ayala’s Batson rights was prejudicial.

We therefore remand with instructions to grant the writ. I. On April 26, 1985, Jose Luis Rositas, Marcos Antonio Zamora, and Ernesto Dominguez Mendez were shot and killed in the garage of an automobile repair shop in San Diego, California. A fourth victim, Pedro Castillo, was shot in the back but managed to escape alive. Castillo identified Ayala, his brother Ronaldo Ayala, and Jose Moreno as the shooters. He claimed that these men had intended to rob the deceased, who ran a heroin distribution business out of the repair shop.

Ayala was subsequently charged with three counts of murder, one count of attempted murder, one count of robbery and three counts of attempted robbery. The information further alleged that the special circumstances of multiple murder and murder in the attempted commission of robberies were applicable in his case. A finding that one of these special circumstances was true was required in order for Ayala to be eligible for the death penalty. Jury selection began in San Diego in January 1989.

Each of the more than 200 potential jurors who responded to the summons and survived hardship screening was directed to fill out a 77-question, 17-page questionnaire. Over the next three months, the court and the parties interviewed each of the prospective jurors regarding his or her ability to follow the law, utilizing the questionnaires as starting points for their inquiry. Those jurors who had not been dismissed for cause were called back for general voir dire, at which smaller groups of jurors were questioned by both the prosecution and the defense.

The parties winnowed the remaining group down to twelve seated jurors and six alternates through the use of peremptory challenges. Each side was allotted twenty peremptory challenges which could be used upon any of the twelve jurors then positioned to serve on the jury. After twelve seated jurors were finally selected, both parties were allotted an additional six peremptory challenges to be used in the selection of alternates.

The prosecution employed seven of the 18 peremptory challenges it used in the selection of the seated jurors to dismiss each black or Hispanic prospective juror who was available for challenge, resulting in a jury that was devoid of any members of these ethnic groups. In response, Ayala, who is Hispanic, brought three separate motions pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), claiming that the prosecution was systematically excluding minority jurors on the basis of race. The defense made its first Batson motion after the prosecution challenged two black jurors.

The trial court found that the defense had not yet established a pri-ma facie case of racial discrimination, but nevertheless determined that it would require the prosecution to state its reasons for challenging the jurors in question. At the prosecutor’s insistence, and despite the defense’s objections, the court refused to let the defendant or his counsel be present at the hearing in which the prosecution set forth these reasons and the court determined whether they were legitimate.

The trial judge continued to employ this ex parte, in camera procedure to hear and consider the prosecutor’s purported reasons for challenging minority jurors following the defense’s second and third Batson motions. He did so despite his determination, by the third motion, that the defense had established a prima facie showing of racial discrimination. Ultimately, the trial judge concluded that the prosecutor had proffered plausible race-neutral reasons for the exclusion of each of the seven minority jurors, and denied the defense’s Batson motions.

Although the ex parte Batson proceedings were transcribed, this transcript—and thus, the prosecution’s proffered race-neutral reasons for striking the seven black and Hispanic jurors—were not made available to Ayala and his counsel until after the conclusion of the trial. The jury convicted Ayala of all counts save a single attempted robbery count, and found true the special circumstance allegations. At the penalty phase, it returned a verdict of death.

Early in the process of jury selection, the trial judge had instructed the parties to return to the court all the questionnaires the prospective jurors had completed, and advised them that he would be “keeping the originals.” At some point during or following the trial, however, all questionnaires, save those of the twelve sitting jurors and five alternates, were lost. The questionnaires of four additional jurors—including the sixth alternate— were located in the defense counsel’s files, but the remaining 193 questionnaires have never been located.

On direct appeal from his conviction, Ayala challenged the trial court’s use of ex parte Batson proceedings. He also claimed that the loss of the jury questionnaires deprived him of his right to a meaningful appeal of the denial of his Batson motion. A divided California Supreme Court upheld his conviction on the basis of harmless error and also upheld the sentence. People v. Ayala, 24 Cal.4th 243, 99 Cal.Rptr.2d 532, 6 P.3d 193 (2000). The court unanimously held that under state law the trial judge had erred in conducting the Batson proceedings ex parte.

Id. 99 Cal.Rptr.2d 532, 6 P.3d at 204 (majority opinion); id. 99 Cal.Rptr.2d 532, 6 P.3d at 221 (George, C.J., dissenting). A majority went on to hold, however, that any error was harmless beyond a reasonable doubt. Id. 99 Cal.Rptr.2d 532, 6 P.3d at 204. It also concluded that the loss of the questionnaires was harmless beyond a reasonable doubt. Id. 99 Cal.Rptr.2d 532, 6 P.3d at 208.

In dissent, Chief Justice George, joined by Justice Kennard, expressed his disagreement with the majority’s “unprecedented conclusion that the erroneous exclusion of the defense from a crucial portion of jury selection proceedings may be deemed harmless.” Id. 99 Cal.Rptr.2d 532, 6 P.3d at 221 (George, C.J., dissenting). Ayala’s petition for certiorari was denied by the United States Supreme Court on May 14, 2001. Ayala v. California, 532 U.S. 1029, 121 S.Ct. 1978, 149 L.Ed.2d 770 (2001). Ayala timely filed his federal habeas petition.

The district court denied relief, but issued a Certificate of Appealability as to Ayala’s Raison-related claims and his claim that the state had violated his Vienna Convention right to consular notification. Ayala now appeals. II. In order for this court to grant Ayala habeas relief, we must find that he suffered a violation of his federal constitutional rights. To do so, Ayala must demonstrate both that (1) the state court committed federal constitutional error and (2) that he was prejudiced as a result. We discuss the issue of error in

Part III and the issue of prejudice in

Part IV. Here, Ayala alleges two federal constitutional violations, the first of which is the principal focus of this opinion. Ayala’s primary claim relates to his exclusion and his counsel’s from the Batson proceedings. Ayala’s secondary claim, which exacerbates the overall error in this case, relates to the state court’s loss of the juror questionnaires prior to Ayala’s appeal. We discuss these errors separately, in Sections III.A and III.B respectively, devoting much greater attention to the first, although the second would strongly bolster the first.

The state, in defending against the grant of habeas relief to Ayala, makes two principal arguments. First, it contends that Ayala was not prejudiced by his exclusion or his counsel’s from the Batson proceedings, or by the loss of the juror questionnaires. This was the state court’s basis for denying Ayala relief. Second, the state raises a procedural objection that Ayala’s claim regarding his exclusion during the Batson proceedings is barred by Teague v.

Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). “[I]n addition to performing any analysis required by AEDPA, a federal court considering a habeas petition must conduct a threshold Teague analysis when the issue is properly raised by the state.” Horn v. Banks, 536 U.S. 266, 272, 122 S.Ct. 2147, 153 L.Ed.2d 301 (2002). We conduct the requisite Teague analysis in

Part V of this opinion. In

Part VI of this opinion, we respond to arguments made by the dissent, and in

Part VII we set forth our conclusion and remand to the district court with instructions to grant Ayala the writ of habeas corpus. III. As stated above, Ayala alleges that the state court committed two distinct federal constitutional errors. The first alleged error relates to the state court’s exclusion of Ayala and his counsel from the Batson proceedings (referred to sometimes in this opinion as the “ex parte Batson proceedings”). The second error relates to the state court’s loss of the juror questionnaires.

We address each error in turn, concluding that Ayala is correct and that the state court committed both federal constitutional errors, although we hold that the first error is sufficient in itself to warrant the issuance of the writ, and the second simply bolsters the first. A. “For more than a century, [the Supreme] Court consistently and repeatedly has reaffirmed that racial discrimination by the State in jury selection offends the Equal Protection Clause.” Georgia v. McCollum, 505 U.S. 42, 44, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992).

Batson established the three-step inquiry used to determine whether this basic constitutional guarantee has been violated. First, the defendant must make a prima facie showing that the prosecution has exercised peremptory challenges in a racially discriminatory manner. Batson, 476 U.S. at 96, 106 S.Ct. 1712. Such a showing may be made, as the trial judge concluded it was in Ayala’s case, where the prosecution has engaged in a pattern of strikes against jurors of a particular race. Id. at 97, 106 S.Ct. 1712.

Second, once the defendant has made a prima facie showing, “the burden shifts to the State to come forward with a neutral explanation for challenging” the jurors. Id. Third, the trial court must then determine whether, taking into consideration the prosecutor’s explanations for his conduct, “the defendant has established purposeful discrimination.” Id. at 98, 106 S.Ct. 1712.

Ayala contends that the exclusion of the defense from the proceedings in which the prosecution justified its strikes of the seven black and Hispanic jurors, and the trial court accepted those justifications, violated his right to the assistance of counsel and his right to be personally present and to assist in his defense. He further contends that these errors prevented him from ensuring that the prosecution did not violate his fundamental right to a jury chosen free from racial discrimination.

Before we may evaluate the merits of Ayala’s contention, we must first determine the appropriate standard of review to apply. Specifically, because Ayala’s habe-as petition is subject to the requirements of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), see Kennedy v. Lockyer, 379 F.3d 1041, 1046 (9th Cir.2004), we must determine whether Ayala’s claim was adjudicated on the merits, and if so what the nature of that adjudication was. We do so in

Section III.A.1, concluding that the California Supreme Court did not find against Ayala on the merits, and therefore § 2254(

d) does not require deference to such a determination. We then conclude in

Section III.A.2 that, under de novo review, Ayala’s constitutional rights were violated when he and his counsel were excluded from stages two and three of the Batson proceedings. 1. “By its terms § 2254(

d) bars relitigation of any claim ‘adjudicated on the merits’ in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2).” Harrington v. Richter, — U.S. -, 131 S.Ct. 770, 784, 178 L.Ed.2d 624 (2011).

Accordingly, if the California Supreme Court made an “adjudication on the merits” that the exclusion of Ayala and his counsel from his Batson proceedings was not erroneous under federal constitutional law, then Ayala would not be entitled to relief on his claim unless that state court adjudication (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. 28 U.S.C. § 2254(d).

Thus, the threshold question is whether Ayala’s claim was “adjudicated on the merits in State court,” and if so whether it was adjudicated adversely to him. We therefore look to the state court opinion to determine whether it made an “adjudication on the merits” regarding the exclusion of Ayala and his counsel from his Batson proceedings and if so what was the nature of that adjudication. In short, did the state court hold that the exclusion was not erroneous under federal constitutional law? Answering that question is significantly more difficult in this case than in most federal habeas appeals.

We are confronted with an especially unclear state court decision that requires us to delve more deeply than is typical into the question of what the state court did or did not “adjudicate on the merits.” The California Supreme Court, when confronted with Ayala’s claim, concluded that the exclusion of the defense from these proceedings was, in fact, erroneous as a matter of state law. The state court began its analysis by stating the legal framework for Ayala’s challenge. It identified the three-step process for a Batson challenge and noted that, under Batson, no particular procedures were required.

Ayala, 99 Cal.Rptr.2d 532, 6 P.3d at 202. It then made three distinct legal determinations. First, it found that “no matters of trial strategy were revealed” during the Batson proceedings in Ayala’s case. Id. 99 Cal.Rptr.2d 532, 6 P.3d at 202-03. Second, it held “as a matter of state law” that it was “error to exclude defendant from participating in the hearings on his [Raison] motions.” Id. 99 Cal.Rptr.2d 532, 6 P.3d at 203.

The California Supreme Court observed that “it seems to be almost universally recognized that ex parte proceedings following a [Batson ] motion ... should not be conducted unless compelling reasons justify them.” Id. 99 Cal.Rptr.2d 532, 6 P.3d at 203. Because no matters of trial strategy were revealed here and thus no such “compelling reasons” existed, the state court “concluded that error occurred under state law.” Id. 99 Cal.Rptr.2d 532, 6 P.3d at 204. Third, turning to the question of prejudice (a subject we discuss in

Part IV), the state court conclude[d] that the error was harmless under state law (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243), and that, if federal error occurred, it, too, was harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705) as a matter of federal law. Id; see also id. 99 Cal.Rptr.2d 532, 6 P.3d at 204-08 (analyzing prejudice further). Having found error but having also deemed it harmless, the state court denied Ayala relief.

There is no doubt that the California Supreme Court found that the exclusion of Ayala and his counsel from the Batson proceedings was erroneous under state law. The state court made no express finding with respect to whether the exclusion of Ayala and his counsel from the Batson proceedings was also error under federal constitutional law. Although it is not easy to interpret a state court’s silence, there are only three possible determinations it could have made in this case.

The California Supreme Court either (1) held that there was error under federal constitutional law; (2) did not decide whether there was error under federal constitutional law; or (3) held that there was no error under federal constitutional law. [hereinafter discussed as Options 1, 2, and 3 respectively] Of these three possibilities, only under Option 3—in which the state court made an unfavorable determination on the merits of Ayala’s federal constitutional claim—would § 2254(

d) require deference to a determination against Ayala. Thus, we need determine only whether the California Supreme Court’s silence is best interpreted as Option 3—i.e., as holding that the exclusion of Ayala and his counsel from the Batson proceedings was not erroneous under federal constitutional law. In determining how to interpret state court silence on the merits of a federal constitutional claim, we consider, inter alia, two recent Supreme Court decisions: Richter, 131 S.Ct. 770, and Johnson v. Williams, — U.S. -, 133 S.Ct. 1088, 185 L.Ed.2d 105 (2013).

In both Richter and Williams, the Supreme Court applied a rebuttable presumption that, even though the state court was silent with respect to a fairly presented federal claim, the claim was adjudicated on the merits. The Court’s rationale was that, because the state court denied relief overall, it necessarily adjudicated (and rejected) the federal claim. For example, in the context of a

summary denial, as in Richter, the state court could not have denied relief overall without having rejected, and thus adjudicated, every fairly presented federal claim. Accordingly, the Supreme Court held, “[w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Richter, 131 S.Ct. at 784.

The same was true when, in Williams, the state court rejected a state law claim, was silent with respect to a fairly presented federal claim, and denied relief overall. See Williams, 133 S.Ct. at 1091. There too, the state court could not have denied relief overall without having rejected, and thus adjudicated, the federal claim presented by the petitioner.

Thus, the Supreme Court held, “[w]hen a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits— but that presumption can in some limited circumstances be rebutted.” Id. at 1096 (discussing Richter). Here, the presumption is inapplicable for several reasons. We need mention only a couple. First, it was not necessary for the state court to reject the federal constitutional claim on the merits in order for it to deny relief to the petitioner.

To the contrary, the state court denied Ayala relief on his federal constitutional claim only because it concluded that the error (if any) was harmless. Second, the facts of this case dictate the conclusion that the California Supreme Court believed that the error under state law also constituted federal constitutional error. We believe that there are only two plausible

interpretations of the California Supreme Court’s decision—either Option 1 or Option 2. The most likely

interpretation is Option 1, i.e., that the California Supreme Court held implicitly that there was error under state law and under federal constitutional law alike.

Notably, the California Supreme Court based its determination that the trial court’s exclusion of Ayala and his counsel was impermissible “as a matter of state law,” Ayala, 99 Cal.Rptr.2d 532, 6 P.3d at 203, on the fact that it was “almost universally recognized” that ex parte Bat-son proceedings are erroneous absent a compelling reason, expressly relying for this conclusion on multiple federal cases that themselves relied on federal constitutional law. Id. (citing United States v. Roan Eagle, 867 F.2d 436, 441 (8th Cir.1989); United States v. Garrison, 849 F.2d 103, 106 (4th Cir.1988); United States v.

Gordon, 817 F.2d 1538, 1541 (11th Cir.1987)). The court then quoted extensively from United States v. Thompson, 827 F.2d 1254 (9th Cir.1987), in which we held that the ex parte proceedings in that case violated federal constitutional law. Ayala, 99 Cal.Rptr.2d 532, 6 P.3d at 203-04. In summarizing its discussion of error (before moving to prejudice), the California Supreme Court stated: “We have concluded that error occurred under state law, and we have noted Thompson’s suggestion that excluding the defense from a [Batson]-type hearing may amount to a denial of due process.” Id. 99 Cal.Rptr.2d 532, 6 P.3d at 204.

The obvious message here is that the California Supreme Court believed that the federal constitutional issue should be decided the same way as the state law issue. This is consistent with the fact that California courts interpret a violation of Wheeler—California’s state equivalent of Batson—as proof of a violation of Batson. See People v. Yeoman, 31 Cal.4th 93, 2 Cal.Rptr.3d 186, 72 P.3d 1166, 1187 (2003); see also Johnson v. California, 545 U.S. 162, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005) (holding that Wheeler is more demanding than Batson).

Thus, if we were required to determine whether the California Supreme Court adjudicated Ayala’s federal claim on its merits in favor of the petitioner or the state, we would hold without question that the California Supreme Court found error in petitioner’s favor under both state law and federal constitutional law—i.e., Option 1. In support of this conclusion, we find instructive—and likely dispositive—the Supreme Court’s discussion in

Part III of Williams. In that case, the petitioner challenged the dismissal of a holdout juror under both California state law and under the Sixth Amendment right to a fair jury. The California Court of Appeal found that there was no error under state law. It did not expressly decide petitioner’s federal constitutional claim but, in the course of deciding the state law claim, cited a California Supreme Court case, People v. Cleveland, 25 Cal.4th 466, 106 Cal.Rptr.2d 313, 21 P.3d 1225 (2001). Cleveland in turn discussed three federal appellate cases in depth, each of which was based on the Sixth Amendment.

In Williams, the Supreme Court explained Cleveland as follows: Cleveland did not expressly purport to decide a federal constitutional question, but its discussion of [the federal cases] shows that the California Supreme Court understood itself to be deciding a question with federal constitutional dimensions. See 25 Cal.4th, at 487, 106 Cal.Rptr.2d 313, 21 P.3d, at 1239 (Werdegar, J., concurring) (emphasizing importance of careful appellate review in juror discharge cases in light of the “constitutional dimension to the problem”). Williams, 133 S.Ct. at 1098.

A unanimous Supreme Court then concluded that because the state court found no error under state law on the basis in part of federal cases relying on federal constitutional law, it likewise found no error using that same analysis to decide the question under federal constitutional law. Id. at 1098-99. The obverse is necessarily true with respect to the state court’s analysis in this case. The California Supreme Court, in finding that the exclusion of Ayala and his counsel from the Batson proceedings was erroneous under state law, cited to multiple federal cases relying on federal law.

It did not expressly purport to decide the federal constitutional question, but it too must have understood itself to be deciding a question with federal constitutional dimensions and to be deciding it in petitioner’s favor by its reliance on cases that held analogous conduct to be erroneous under the federal Constitution.

Thus, if we were compelled to determine whether the California Supreme Court adjudicated Ayala’s federal claim on its merits in favor of the petitioner or the state, we would hold without the slightest hesitation that it found that the error occurred under federal constitutional law—i.e., Option 1. Accordingly, if we apply § 2254(

d) at all, we defer to a holding that there was federal constitutional error, deference that favors Ayala. See discussion supra at 840 n. 3. Alternatively, we are willing to assume another, albeit weaker,

interpretation of the California Supreme Court’s decision that leads to the same result. Under that

interpretation, the state court did not, deliberately or otherwise, decide whether there was error under federal law, i.e., Option 2 above. In short, it failed to decide the merits of the federal constitutional question because it thought there was nothing to be gained by doing so. It had already decided that the state court had erred on state law grounds and nothing further was to be gained by holding that it was also a federal constitutional error.

Richter and Williams instruct us to afford a rebuttable presumption that a fairly presented claim was “adjudicated on the merits” for purposes of § 2254(d), but this presumption is rebuttable if there is “any indication or state-law procedural principles” supporting the conclusion that the state court did not adjudicate the federal claim on the merits. Richter, 131 S.Ct. at 784-85.

Here, the California Supreme Court denied Ayala relief overall but did so by (1) finding that the trial court committed error on state law grounds, (2) failing to make any express determination of error on federal constitutional grounds, and (3) finding any error harmless under both the state and federal standards for harmless error. In the context of these holdings, the rebuttable presumption that Richter and Williams instruct us to afford is, in fact, rebutted.

The California Supreme Court, by finding any alleged error harmless under both the state and federal standards for harmless error, had no reason to reach the question of whether federal constitutional error occurred. This is not an unusual practice; courts often choose not to decide the question whether an error occurred by deciding that any error was harmless. Indeed, we have found no published opinion in which, after a state court has denied relief based on harmless error, a federal court has presumed that the state court adjudicated the merits of the question of error.

In fact, the California Supreme Court would have had good reason not to decide the merits of the federal constitutional issue here. “If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that [courts] ought not to pass on questions of constitutionality ... unless such adjudication is unavoidable.” Clinton v. Jones, 520 U.S. 681, 690 n. 11, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997) (quoting Spector Motor Serv. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 89 L.Ed. 101 (1944)).

Moreover, where the intersection of state law and federal constitutional law is complex, a state court may very well prefer to decide only the state law claim and not reach the federal constitutional claim. The California Supreme Court, by finding error under state law, determined the question of error conclusively. This served the purpose of providing guidance to the lower state courts.

Finding that the state law error also constituted federal constitutional error (or did not) would, however, have served no purpose, once the state court determined that any error was harmless. (The state court was free to decide the issues presented in whatever order it chose.) Indeed, respect for state judges requires recognizing that a state court’s silence with respect to a fairly presented federal claim may be intentional and prudent.

Our reasoning finds support in a different line of Supreme Court cases, in which the Court has interpreted state court silence with regard to a particular issue or claim as not constituting an “adjudication on the merits.” Many of these cases involved claims of ineffective assistance of counsel brought under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland claims have two prongs, deficiency of counsel’s performance and prejudice to the defendant; failure on either prong is dispositive. Id. at 680, 104 S.Ct. 2052.

Accordingly, state courts frequently decide Strickland claims by rejecting either deficiency or prejudice and remain silent with respect to the other prong. When these claims are raised in federal habeas proceedings, the Supreme Court has repeatedly interpreted that silence as a failure to reach the issue and therefore not an “adjudication on the merits.” See Wiggins v.

Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (“Our review is not circumscribed by a state court conclusion with respect to prejudice, as neither of the state courts below reached this prong of the Strickland analysis.” (emphasis added)); Rompilla v. Beard, 545 U.S. 374, 390, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (“Because the state courts found the representation adequate, they never reached the issue of prejudice, and so we examine this element of the Strickland claim de novo.” (emphasis added) (internal citations omitted)); Porter v.

McCollum, 558 U.S. 30, 130 S.Ct. 447, 452, 175 L.Ed.2d 398 (2009) (“Because the state court did not decide whether Porter’s counsel was deficient, we review this element of Porter’s Strickland claim de novo.” (emphasis added)). Nor has the Supreme Court limited this reasoning to Strickland claims. In Cone v. Bell, 556 U.S. 449, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009), the petitioner raised a claim under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) in his federal habeas petition.

The state habeas court dismissed the claim based on a factual determination that the Supreme Court held was erroneous. Id. at 466-69, 129 S.Ct. 1769. Turning to the merits of the claim, the Supreme Court stated: Because the Tennessee courts did not reach the merits of Cone’s Brady claim, federal habeas review is not subject to the deferential standard that applies under AEDPA to “any claim that was adjudicated on the merits in State court proceedings.” 28 U.S.C. § 2254(d). Instead, the claim is reviewed de novo. See, e.g., Rompilla v.

Beard, 545 U.S. 374, 390, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (de novo review where state courts did not reach prejudice prong under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)); Wiggins v. Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (same). Id. at 472, 129 S.Ct. 1769 (emphasis added). Again, even though the state court was silent with respect to the merits of Cone’s Brady claim, the Supreme Court did not presume that the claim was adjudicated on the merits.

Thus, as Wiggins, Rompilla, Porter, and Cone demonstrate, and as both Richter and Williams have recognized, in some instances, a state court’s silence with respect to an issue or claim should not be interpreted as an “adjudication on the merits” for purposes of § 2254(d). We summarize the law as set forth by the Supreme Court as follows.

There are circumstances in which, even if a state court has denied relief overall, a state court’s silence with respect to a fairly presented federal claim cannot be interpreted as an “adjudication on the merits” for purposes of § 2254(d), because the rebuttable presumption cited in Richter and Williams is rebutted by the legal principles involved (including the principle of constitutional avoidance) and factual context applicable to a particular case. See Wiggins v. Smith, 539 U.S. at 534, 123 S.Ct. 2527; Rompilla v. Beard, 545 U.S. at 390, 125 S.Ct. 2456; Porter v.

McCollum, 558 U.S. 30, 130 S.Ct. 447, 452, 175 L.Ed.2d 398 (2009); Cone v. Bell, 556 U.S. at 472, 129 S.Ct. 1769. This is such a case. As explained earlier, the California Supreme Court had no reason to reach Ayala’s federal constitutional claim once it had decided that (1) the alleged error occurred as a matter of state law, (2) the error was harmless under the state and federal standards for harmless error, and (3) whether or not that occurrence also violated federal constitutional law was of no consequence.

Furthermore, under long established legal principles, the California Supreme Court had every reason not to decide unnecessarily a question of federal constitutional law. Thus, we find merit in Option 2, i.e., that the California Supreme Court did not decide whether there was error under federal constitutional law. We recognize that it remains unclear whether the California Supreme Court decision is better read as Option 1 or Option 2.

What is clear is that Option 3—i.e., that the California Supreme Court held that, although there was error under state law, there was none under federal constitutional law—is not the best, or even a plausible reading of the state court opinion. In this case, because the California Supreme Court found error' under state law by citing to federal cases relying on federal law and because it “noted” that there might have been a violation of federal law, Ayala, 99 Cal.Rptr.2d 532, 6 P.3d at 202-04, Option 3 is a wholly implausible reading of the California Supreme Court decision.

Accordingly, we have no reason to give § 2254(

d) deference to such a holding in evaluating Ayala’s claim. (As noted supra in

Part II, we will discuss in

Part IV the question whether the California Supreme Court’s determination that any error was harmless was erroneous.) 2. Having determined that only Options 1 and 2 are plausible readings of the California Supreme Court decision, we proceed to review Ayala’s claim regarding his exclusion from stages two and three of the Batson proceedings de novo. Under de novo review, it is clear that it was federal constitutional error to exclude both Ayala and his counsel from stages two and three of the Batson proceedings. As the California Supreme Court recognized, our circuit had already held in United States v.

Thompson, 827 F.2d 1254 (9th Cir.1987) that, in the absence of a “compelling justification” (e.g., the disclosure of trial strategy) for conducting ex parte Batson proceedings, such exclusions violate federal constitutional law. Id. at 1258-59. Here, the California Supreme Court concluded—and neither party to this appeal disputes—that there was no such compelling justification for conducting ex parte Batson proceedings, as “no matters of trial strategy were revealed” by the prosecutor. Ayala, 99 Cal.Rptr.2d 532, 6 P.3d at 203.

As such, Ayala’s claim is controlled by Thompson, and we conclude that federal constitutional error occurred when Ayala and his lawyer were excluded from stages two and three of the Batson proceedings. B. Ayala also claims that the state’s loss of an overwhelming majority of the jury questionnaires deprived him of a record adequate for appeal and thus violated his federal due process rights. Although less clear than with Ayala’s first federal constitutional claim, the California Supreme Court also decided this claim on the basis of harmless error only.

Ayala, 99 Cal.Rptr.2d 532, 6 P.3d at 208 (“Thus, even if there was federal error, it was harmless beyond a reasonable doubt.”). Accordingly, for the reasons explained supra

Section III.A.1, we proceed with de novo review. As the California Supreme Court recognized, Ayala has a due process right to a record sufficient to allow him a fair and full appeal of his conviction. Id. 99 Cal.Rptr.2d 532, 6 P.3d at 208 (citing People v. Alvarez, 14 Cal.4th 155, 196 n. 8, 58 Cal.Rptr.2d 385, 926 P.2d 365 (1996)). If a state provides for a direct appeal as of right from a criminal conviction, it must also provide “certain minimum safeguards necessary to make that appeal ‘adequate and effective.’ ” Evitts v. Lucey, 469 U.S. 387, 392, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985) (quoting Griffin v.

Illinois, 351 U.S. 12, 20, 76 S.Ct. 585, 100 L.Ed. 891 (1956)); see also Coe v. Thurman, 922 F.2d 528, 530 (9th Cir.1990) (“Where a state guarantees the right to a direct appeal, as California does, the state is required to make that appeal satisfy the Due Process Clause.”). In Boyd v. Newland, we applied these principles in granting the habeas petition of an indigent defendant who had been denied a copy of his voir dire transcript because the state court had, in violation of clearly established federal law, determined that the transcript was not necessary to his Batson appeal. 467 F.3d 1139 (9th Cir.2006).

We held that “all defendants ... have a right to have access to the tools which would enable them to develop their plausible Batson claims through comparative juror analysis.” Id. at 1150. It follows that if the state’s loss of the questionnaires deprived Ayala of the ability to meaningfully appeal the denial of his Batson claim, he was deprived of due process. This conclusion is not called into question by Briggs v. Grounds, 682 F.3d 1165 (9th Cir.2012), cited in the dissent. Dissent at 882. In Briggs, the petitioner had complete access to the juror questionnaires during the course of his state appeal.

In fact, he relied heavily on them in presenting a comparative juror analysis to support his Batson claim. 682 F.3d at 1171. Thus Briggs’s due process rights were not implicated. The language cited by the dissent is lifted from a

section of the opinion discussing whether, because those questionnaires were not included in the federal court record, we should credit the petitioner’s characterization of those questionnaires over the state court’s characterization. Briggs is irrelevant for our purposes, i.e., whether Ayala’s due process rights were implicated when California lost the juror questionnaires, thus rendering them unavailable for his state court appeal.

Ayala is entitled to relief on this claim only if the loss of the questionnaires was prejudicial in se or if it in conjunction with the Batson error discussed supra served to deprive him of a meaningful appeal. Id.; see also Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). “[I]n analyzing prejudice ..., this court has recognized the importance of considering the cumulative effect of multiple errors and not simply conducting a balkanized, issue-by-issue harmless error review.” Daniels v. Woodford, 428 F.3d 1181, 1214 (9th Cir.2005) (quoting Thomas v.

Hubbard, 273 F.3d 1164, 1178 (9th Cir.2001)). Here, the loss of the questionnaires increased the prejudice that Ayala suffered as a result of the exclusion of defense counsel from Batson steps two and three, as it further undermined his ability to show that Batson had been violated. Accordingly, in determining whether Ayala is entitled to relief, we evaluate the prejudice caused by the loss of the question-nafres in conjunction with the harm caused by excluding defense counsel from the Bat-son proceedings.

As we will explain immediately below, the analysis under Brecht regarding the Batson error demonstrates that the exclusion of Ayala and his counsel from the second and third stages of the Batson inquiry is sufficiently prejudicial to require reversal for that reason alone. IV. The California Supreme Court held that Ayala was not prejudiced by the trial court’s exclusion of the defense from stages two and three of the Batson proceedings, by the state’s loss of the vast majority of the jury questionnaires, or by the two errors considered together.

The Court declared itself “confident that the challenged jurors were excluded for proper, race-neutral reasons,” Ayala, 99 Cal. Rptr.2d 532, 6 P.3d at 204, concluded that the exclusion of defense counsel was “harmless beyond a reasonable doubt,” id. (citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)), and held that despite the loss of the questionnaires the record was “sufficiently complete for [it] to be able to conclude that [the struck jurors] were not challenged and excused on the basis of forbidden group bias.” Id. 99 Cal.Rptr.2d 532, 6 P.3d at 208.

We now address these same questions, and hold that Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), requires us to reach a different conclusion. A. Ayala claims, first, that exclusion of defense counsel from the Batson proceedings necessarily represented structural error, and that he is entitled to relief without further inquiry into whether he was prejudiced.

The state court’s conclusion that the error here was not structural—a conclusion implicit in its application of the Chapman harmless error standard to evaluate whether Ayala had suffered prejudice—is subject to review under the deferential standard of § 2254(d). See Byrd v. Lewis, 566 F.3d 855, 862 (9th Cir.2009). The Supreme Court has defined as “structural” an error that affects “the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Where this line is drawn is not always clear.

Compare, e.g., Waller v. Georgia, 467 U.S. 39, 49 n. 9, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (violation of the right to public trial requires automatic reversal), with, e.g., Rushen v. Spain, 464 U.S. 114, 117-18 & n. 2, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983) (denial of a defendant’s right to be present at trial is subject to harmless error review). While a violation of Batson is itself structural error, there is no Supreme Court decision addressing whether the exclusion of defense counsel from Batson proceedings constitutes structural error.

Ayala contends that the state court’s decision represents an unreasonable application of the Supreme Court’s clearly established rule that “no showing of prejudice need be made 'where assistance of counsel has been denied entirely or during a critical stage of the proceedings.’ ” Brief of Appellant at 22 (quoting Mickens v. Taylor, 535 U.S. 162, 166, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002)); see also United States v. Cronic, 466 U.S. 648, 659 n. 25, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).

The use of the phrase “critical stage” in this excerpt can be somewhat deceptive: although the Batson proceedings represented a “critical stage” in the sense that Ayala had the right to counsel during those proceedings, they were not necessarily the sort of “critical stage” at which the deprivation of that right constituted structural error. See United States v. Owen, 407 F.3d 222, 227 (4th Cir.2005).

As the Fourth Circuit has explained, the statements in Mickens and Cronic rely on the Supreme Court’s earlier usage of the phrase “critical stage,” in cases such as Hamilton v. [Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961) ] and White [v.

Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963) (per curiam) ] to refer narrowly to those proceedings both at which the Sixth Amendment right to counsel attaches and at which denial of counsel necessarily undermines the reliability of the entire criminal proceeding.... [T]he Supreme Court has subsequently used the phrase “critical stage,” in cases such as [United States v.] Wade [, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) ] and Coleman [v.

Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) ], in a broader sense, to refer to all proceedings at which the Sixth Amendment right to counsel attaches— including those at which the denial of such is admittedly subject to harmless-error analysis. Id. at 228 (emphasis omitted). In Musladin v. Lamarque, we held that the “clearly established” rule of Cronic is that a “critical stage” where the deprivation of counsel constitutes structural error is one that holds “significant consequences for the accused.” 555 F.3d 830, 839 (9th Cir.2009) (quoting Bell v.

Cone, 535 U.S. 685, 695-96, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002)). We identified as providing guidance in this inquiry Supreme Court decisions holding an overnight trial recess and closing arguments to be two such critical stages. Id. at 839-40 (citing Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976) and Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975)).

Given this fairly ambiguous standard, it was not an unreasonable application of clearly established federal law for the California Supreme Court to conclude that the exclusion of the defense from Batson steps two and three does not amount to a deprivation of the right to counsel such that the likelihood that the jury was chosen by unconstitutional means is “so high that a case-by-case inquiry is unnecessary.” Mickens, 535 U.S. at 166, 122 S.Ct. 1237.

As the state points out, it would be somewhat incongruous to conclude that the exclusion of counsel during Batson proceedings is a defect in the very structure of the trial if the same exclusion would be permissible were there some reason to keep the prosecution’s justifications confidential. Thus, a “fairminded jurist[ ],” Harrington v. Richter, — U.S. -, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011) (quoting Yarborough v.

Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)), might conclude that Batson steps two and three are not a Cronic type “critical stage.” Even if we would hold the error to be structural were we to consider the issue de novo, we cannot say that as the Supreme Court has construed AEDPA the state court’s contrary conclusion was unreasonable. See Musladin, 555 F.3d at 842-43. B.

Ayala claims next that, even if the trial court’s exclusion of the defense was not the sort of constitutional error in se that requires that we presume that in every exclusion case prejudice ensues, it was prejudicial in his case, both in solo and when considered in conjunction with the loss of the questionnaires. In evaluating whether a trial error prejudiced a state habeas petitioner, we must apply the standard set forth in Brecht v.

Abrahamson, determining whether the error had a “substantial and injurious effect or influence in determining the jury’s verdict.” 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). We “apply the Brecht test without regard for the state court’s harmlessness determination.” Pulido v. Chrones, 629 F.3d 1007, 1012 (9th Cir.2010) (citing Fry v. Pliler, 551 U.S. 112, 121-22, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007)).

The Brecht standard has been described as follows; [I]f one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. Merolillo v.

Yates, 663 F.3d 444, 454 (9th Cir.2011) (quoting Kotteakos, 328 U.S. at 765, 66 S.Ct. 1239). “Where the record is so evenly balanced that a judge ‘feels himself in virtual equipoise as to the harmlessness of the error’ and has ‘grave doubt about whether an error affected a jury [substantially and injuriously], the judge must treat the error as if it did so.’ ” Id. (quoting O’Neal v. McAninch, 513 U.S. 432, 435, 437-38, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995)) (alteration in original) (internal quotations omitted). We conclude that Ayala has met the Brecht standard.

The prejudice he suffered was the deprivation of the opportunity to develop, present, and likely prevail on his Batson claim. Had he prevailed on that claim, and shown that the prosecution acted upon impermissible considerations of race in striking even one of the seven black or Hispanic jurors it struck, then, as the state acknowledged in oral argument before this court, we would be compelled to reverse Ayala’s conviction because his entire trial would have been infected by this violation of the Constitution. See Vasquez v.

Hillery, 474 U.S. 254, 263-64, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986); Boyd, 467 F.3d at 1150. The question, then, is whether Ayala could have made this showing but for the state’s constitutional errors. 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.

Here, it is probable that the state’s errors precluded Ayala from turning what is a very plausible Batson claim—the challenge to the prosecution’s strikes of all minority jurors—into a winning one by preventing defense counsel from performing the two “crucial functions” we identified in Thompson. First, Ayala’s counsel could have pointed out where the prosecution’s purported justifications might be pretextual or indicate bad faith.

Although the trial judge may have been able to “detect some of these deficiencies by himself, ... there might be arguments [he] would overlook” because he was “unassisted by an advocate.” Thompson, 827 F.2d at 1260-61. The jury selection process took over three months and comprises more than six thousand pages of the record.

The trial judge, attempting to evaluate the prosecution’s reasons for striking the jurors in light of this massive amount of information, was almost certain to forget or overlook key facts, but could have been substantially aided by the presence of participants in the process adverse to the prosecution. In particular, Ayala’s lawyers could have pointed out when the prosecutor’s proffered reason for striking a black or Hispanic juror applied “just as well to an otherwise-similar non-black [or non-Hispanic] who [was] permitted to serve.” Miller-El v.

Dretke, 545 U.S. 231, 241, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005). The Supreme Court has emphasized the importance of this sort of “comparative juror analysis” to determining whether a prosecutor’s reasons for challenging a minority juror were pretextual. Id.; see also Snyder v. Louisiana, 552 U.S. 472, 483-85, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008). Although Ayala can— and does—still raise some of these arguments on appeal, he was deprived of the crucial opportunity to present them to the institutional actor best positioned to evaluate them.

As the Supreme Court has observed, appellate courts must accord deference to “trial court findings on the issue of discriminatory intent” because “the finding largely will turn on evaluation of credibility.” Miller-El v. Cockrell, 537 U.S. 322, 339, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (quoting Hernandez v. New York, 500 U.S. 352, 366, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality opinion)) (internal quotation marks and citations omitted).

Because, after finding a prima facie case of a Batson violation, the trial court was not made aware of key facts that could have influenced its credibility determination, there is substantial reason to doubt that Ayala’s Batson challenge was properly denied. Second, Ayala’s counsel could have “preserve[d] for the record, and possible appeal, crucial facts bearing on the judge’s decision.” Thompson, 827 F.2d at 1261.

We cannot know many of the facts material to whether the prosecution’s stated reasons were false, discriminatory, or pretextual because defense counsel was not able to preserve relevant facts regarding prospective jurors’ physical appearances, behavior, or other characteristics. Although the trial judge could have been aware of these facts, an appellate court “can only serve [its] function when the record is clear as to the relevant facts, or when defense counsel fails to point out any such facts after learning of the prosecutor’s reasons.” Id.; see also United States v.

Alcantar, 897 F.2d 436, 438 (9th Cir.1990) (reversing a defendant’s conviction where the Batson proceedings conducted below left the defense unable “to adequately challenge the prosecution’s reasons as pretextual” and left the reviewing court uncertain as to whether the prosecution had, in fact, violated Batson). This second deficiency is greatly augmented by the loss of the jury questionnaires. The only questionnaires that have been preserved are those of the seated and alternate jurors.

We are unable to evaluate the legitimacy of some of the prosecution’s proffered reasons for striking the black and Hispanic jurors because they referred to questionnaires that are now lost. The loss of the questionnaires also leaves us lacking potentially crucial information about certain individuals who were neither the subject of Ayala’s Batson challenge nor ultimately served as jurors. Thus, we cannot perform a fair comparative juror analysis as required by Batson. See Miller-El v. Dretke, 545 U.S. at 241, 125 S.Ct. 2317.

Even so, we have substantial reason to question the motivation of the prosecution in engaging in its peremptory challenges of the black and Hispanic jurors. In conducting our inquiry, we must keep in mind the strength of Ayala’s prima facie case. “[T]he statistical evidence alone raises some debate as to whether the prosecution acted with a race-based reason when striking prospective jurors.” Miller-El v. Cockrell, 537 U.S. at 342, 123 S.Ct. 1029.

That the prosecution struck each of the seven black or Hispanic jurors available for challenge establishes a basis for significant doubt of its motives: “[h]appenstance is unlikely to produce this disparity.” Id. Perhaps more important, the analysis of the prosecution’s motives that is possible on the partial record before us demonstrates that many of its stated reasons for striking the seven black and Hispanic jurors were or may have been false, discriminatory, or pretextual.

There are good reasons to think that race motivated the prosecution’s strikes of at least three, if not more, jurors: danders D., Gerardo 0. and Robert M. We “cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole,” Kotteakos, 328 U.S. at 765, 66 S.Ct. 1239, that Ayala was not prevented from showing that the prosecution struck at least one of these jurors because of his race. 1. Olanders D. Olanders D. was one of two black jurors whom the prosecution struck in the first round of peremptory challenges.

During the in camera hearing that followed the defense’s Batson motion, the prosecutor explained that he struck Olanders D. because: (1) he might not be able to vote for the death penalty, as he had written in his questionnaire that he did not believe in it, and he had indicated in questioning that his view had recently changed; (2) his answers to voir dire questions often were not fully responsive; (3) his questionnaire responses had been “poor”; and (4) he might lack the “ability to fit in with a cohesive group of 12 people.” The trial judge rejected one of the four proffered reasons—his purported inability “to fit in with a cohesive group of 12 people.” The presence of defense counsel, and the preservation of the questionnaires, could have permitted Ayala to call into question all three of the reasons that the court accepted as legitimate.

First, in response to the prosecution’s claim that it was concerned that Olanders D. would hesitate to impose the death penalty, defense counsel could have pointed to seated white jurors who had expressed similar or greater hesitancy. One seated juror in particular was indistinguishable from Olanders D. in this regard. Olanders D. had (apparently) written in his questionnaire that he did not believe in the death penalty.

Ana L., a seated white juror, made almost precisely the same statement in her questionnaire, writing that she “probably would not be able to vote for the death penalty.” Also, Olan-ders D. later said during voir dire that he had reconsidéred his views, and affirmed that he could be “personally responsible for being on a jury and actually voting for the death penalty.” Once again, Ana L. said almost precisely the same thing: she stated that she had since rethought her position, and affirmed that she could “actually vote” for the death penalty.

Second, in answer to the prosecution’s purported concern that Olanders D.’s answers on voir dire were not always fully responsive, defense counsel could have questioned the validity of this assessment, suggested that his answers were in fact fully responsive, and pointed to seated white jurors whose answers were less responsive than Olanders D.’s. Our review of the voir dire transcript reveals nothing that supports the prosecution’s claim: Olanders D.’s answers were responsive and complete.

In order to make this fact clear to the trial judge, defense counsel could once again have compared Olanders D. to seated juror Ana L. Ana L. had, for example, responded “That is correct” to a question asking “why” she would prefer not to sit as a juror, stared blankly at defense counsel in response to a question on the presumption of innocence, and failed, at various points, to respond directly to yes or no questions.

Third, we cannot know exactly what arguments defense counsel could have made to undermine the prosecution’s final reason for striking Olanders D.—that his questionnaire responses were “poor,” and demonstrated his inability to express himself. Because Olanders D.’s questionnaire has been lost, we may only speculate as to its contents.

If the reason his answers were “poor” was that they were not particularly detailed, the defense could have compared his questionnaire to that of Ana L., whose answers were brief and often incomplete, or to that of Charles G., a seated white juror whose responses to the 77 questions were rarely longer than two or three words apiece.

If the reason his answers were poor was that they reflected an inability to think clearly or express complex thoughts, the defense could have compared his questionnaire to that of Thomas B., a seated white juror who, for example, opined of street gangs, “I feel the only media coverage they get is bad, however, those whom do constructive events usually seek out positive media coverage.” Further, this is an obvious instance in which the defense is prejudiced by being unable to compare Olanders D.’s answers to those of prospective white jurors who were accepted by the prosecution but struck by the defense, and whose questionnaires have been lost.

It is also, of course, possible that Olanders D.’s answers were not poor at all. We have no way of knowing. Thus, one of the four reasons given by the prosecution for striking this prospective juror was determined to be without merit by the trial judge; two failed to distinguish the juror whatsoever from at least one seated white juror; and the fourth and final reason the prosecution gave for striking the juror cannot be evaluated because his questionnaire was lost, as were those of the prospective white jurors struck by the defense.

Given the objective reasons that we have even on this record to question the validity of the prosecution’s explanations for striking Olanders D., we simply cannot conclude that it is likely that, if the defense had been present during the Batson proceedings and if the lost questionnaires had been preserved, Ayala would not have been able to show that the prosecution’s stated reasons for striking Olanders D. were pretextual, and that the actual reasons were racial. 2. Gerardo 0. Gerardo 0. was one of two Hispanic jurors the prosecution challenged during the second round of peremptories.

He was struck, the prosecutor explained in the subsequent ex parte proceeding, because: (1) he was “illiterate,” and had needed the questionnaire to be translated for him; (2) he “appeared not to fit in with anyone else,” was “standoffish,” with “dress and mannerisms ... not in keeping with the other jurors,” and “did not appear to be socializing or mixing with any of the other jurors”; and (3) his voir dire responses suggested that he was not sure “if he could take someone’s life,” and that he “felt a little shaky as far as his responsibilities in this case.” The trial judge concluded that the “record documented] the factors that were indicated” by the prosecutor and accepted his explanation.

Once again, had the defense not been excluded from the Batson proceedings, it likely could have called into question all of the prosecution’s stated reasons for striking Gerardo 0. Defense counsel could have first argued that one reason given—that Gerardo 0. was illiterate—was itself indicative of the prosecution’s discriminatory intent. Athough Gerardo 0. did need someone to fill out the questionnaire for him, the record reveals that he was not, in fact, illiterate, but simply had difficulty writing in English.

Gerardo 0. had been born in Mexico and was not a native English speaker, but he had graduated from high school and attended college in the United States, and was perfectly capable of reading the

summary of legal issues that was given to prospective jurors before voir dire questioning. As he explained at voir dire, he did not fill out the questionnaire himself because he was concerned about his English spelling. The prosecution’s purported reason for striking Gerardo 0., then, was directly related to his status as someone who spoke Spanish as his first language.

Thus, as the Supreme Court observed in a similar circumstance, “the 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[ ].” Hernandez, 500 U.S. at 363, 111 S.Ct. 1859 (plurality opinion). Defense counsel’s presence was necessary to point out the potential inferences to the trial judge and urge the judge to adopt the one most appropriate here.

An inference of racial bias might also have been drawn from the prosecutor’s claim that Gerardo 0. was challenged because he did not dress or act like other jurors, and did not mix or socialize with them. It is likely that Gerardo O.’s dress and mannerisms were distinctly Hispanic. Perhaps in the late 1980s 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 0. was wearing such a shirt (and for this reason did not “fit in,” in the prosecutor’s mind, with the other jurors).

If so, and if defense counsel were able to bring this fact to the trial court’s attention, the prosecution’s explanation that it struck Gerardo 0. because of his dress and mannerisms would provide compelling support for Ayala’s claim that the strike was actually racially-motivated. See id. (“[A]n invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the [classification] bears more heavily on one race than another.”) (quoting Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976)).

If present at the hearing, defense counsel could have made a record that would have strongly supported these claims. Even if Gerardo O.’s clothes and behavior were in no way correlated with his race, defense counsel might have been able to show the prosecution’s explanation to be pretextual. Defense counsel might have pointed to other jurors the prosecution had not struck who had similar characteristics—perhaps, for example, a seated white juror had actually worn an outfit identical to Gerardo O.’s.

Defense counsel might also have been able to challenge the factual basis for the prosecution’s claim—perhaps, unbeknownst to the trial judge, Gerardo 0. 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. We can only speculate as to whether or how Ayala could have shown this explanation for striking Gerardo 0. to be facially discriminatory, false or pretextual because we know nothing about his dress or mannerisms, or that of the other prospective jurors.

These are exactly the sort of physical and behavioral observations that the defense could have preserved for the record had it been permitted to hear and respond to the prosecution’s explanations for challenging Gerardo 0.

Although we might hope that the trial judge would have noticed if Gerard 0. had been wearing a shirt worn only by members of the Hispanic community, or had been dressed identically to other prospective jurors whom the prosecution had not challenged, or had in fact been socializing with other jurors, “we cannot affirm simply because we are confident he must have known what he was doing.” Thompson, 827 F.2d at 1261.

Finally, in response to the prosecution’s third reason for the strike—that Gerardo 0. seemed reluctant to impose the death penalty—defense counsel could have demonstrated this reason to be pretextual through comparisons to jurors the prosecution did not strike. Gerardo 0. had stated during voir dire that “I’m not sure if I can take someone’s life in my hand and say ... you know, ‘death,’ or something,” but he soon thereafter affirmed that he “could vote for the death penalty.” This statement was indistinguishable from those made by a number of seated white jurors.

Dorothy C. said in voir dire that serving as a juror in a capital case would cause her to “worry a lot” because it was “a lot of responsibility,” gasped when defense counsel told her that as a juror she would “decide the sentence,” and stated, “I’ve never had to vote on a death penalty.

That might be a little bit difficult when it came right down to it, but I’d say I’m for it.” Likewise, Dorothy H., when asked in voir dire if she could return a verdict of death, stated, “I don’t think it would be an easy thing for anyone, but I don’t—I think I could do it if I felt it was the thing to do.” Dorothea L. was even more hesitant, saying, when asked the same question, “I think so, but I don’t know until I have to do it.” Finally, Leona B., when asked by the prosecutor if having the responsibility for imposing the death penalty would “bother” her, responded, “Yes, I think so.

I think—I think one should be affected ... by that. I don’t think it’s anything to be taken lightly.” Certainly, Gerardo 0. expressed less hesitancy than Ana L., who had flatly stated on her questionnaire that she “probably would not be able to vote for the death penalty” before subsequently changing her mind. Further, prospective white jurors accepted by the prosecution but struck by the defense might have expressed similar sentiments in their jury questionnaires. We cannot tell, because these questionnaires have been lost.

Thus, one of the reasons given by the prosecution for striking this prospective juror could have itself given rise to an inference of discriminatory intent. A second reason cannot be evaluated because defense counsel was excluded from the Batson proceedings and could not preserve for the record certain crucial facts. The third reason given failed to distinguish Gerardo 0. from seated white jurors the prosecutor chose not to strike, as well as, possibly, from other prospective white jurors struck not by the prosecution but by the defense.

Given the cause we have to question the validity of the prosecution’s reasons that can be evaluated on this record, we cannot say that Ayala would not have shown that the trial court would or should have determined that the prosecution’s strike of Gerardo 0. violated Batson. 3. Robert M. The prosecution struck Hispanic juror Robert M. in the final round of peremptory challenges. In camera, the prosecutor explained that he had been concerned, given Robert M.’s response to voir dire questioning, that he might not be willing to impose the death penalty.

This concern had been heightened by Robert M.’s mentioning the Sagon Penn case—a case in which the defendant was found not guilty in a second trial and the police and the district attorney’s office were accused of misconduct.

The trial judge accepted the prosecution’s explanation, stating that, although Martinez’s “questionnaire would tend to indicate a person that is certainly pro the death penalty[,] ... his answers varied somewhat to the extent that individually, there may well be a legitimate concern as to whether or not he could impose it.” Defense counsel’s presence in the Bat-son proceedings was necessary to call into question the prosecution’s claim that it struck Robert M. because of his reluctance to impose the death penalty.

Even without comparing Robert M. to other jurors permitted to serve, this explanation is highly suspect: Robert M. repeatedly stated during voir dire that he believed in the death penalty and could personally vote to impose it, and his questionnaire (which has, of course, been lost) manifested a similar enthusiasm according to the trial judge.

Defense counsel could have brought to the trial court’s attention that the only statement potentially raising any question whatsoever—that voting for a death sentence might “weigh on his conscience,” and would be a “heavy” decision—was indistinguishable from a practical standpoint from statements by Dorothy C., who said that serving as juror in a capital case was “a lot of responsibility” and would cause her to “worry a lot,” Dorothy H., who stated that imposing the death penalty would not “be an easy thing for anyone,” Dorothea L., who said she would not know if she could impose the death penalty until she had to do it, and Leona B., who affirmed that this responsibility would “bother” her.

Other prospective jurors who were struck by the defense, but had been accepted by the prosecution, may have made comparable statements in their questionnaires (which, again, have been lost). Counsel could have argued that most jurors who believed in imposing the death penalty would consider a decision to do so a “heavy” decision that would weigh on one’s conscience. Following counsel’s argument, the judge might well have recognized that there is indeed rarely a “heavier” decision a citizen is ever asked to undertake.

Certainly, like Gerardo 0., Robert M. was no more hesitant than Ana L., who had actually at one point stated that she would be unable to impose the death penalty. To the extent that the prosecution gave Robert M.’s reference to the Sagon Penn case as a separate reason for its challenge, defense counsel could likely have demonstrated that this reason was pretextual. First, the entirety of the Sagon Penn exchange was as follows: Prosecutor: Have you followed any kind of—any court cases in the news or come downtown to watch any trials? Robert M.: Well, I followed the Saigon [sic] Penn case. Prosecutor: All right.

Robert M. briefly mentioned the case in response to the prosecution’s question, and he said nothing about any accusations of police or prosecutorial misconduct. Second, although none of the seated jurors had been asked a similar question, one seated white juror had on his own initiative referred to a far more controversial capital case. When asked to describe his feelings about the death penalty, Douglas S. mentioned the “Harris” case, saying: “The Harris case, which goes back.... I believe he’s on death row ...

I can’t even recall the exact crimes, but I remember them to be quite bizarre, and—and here he was, facing execution, and I don’t know.” Douglas S. was presumably referring to Robert Alton Harris, who at the time of Ayala’s trial was on California’s death row, and had, in a case that was extensively covered by the press, been tried, convicted and sentenced to death in San Diego. People v. Harris, 28 Cal.3d 935, 171 Cal.Rptr. 679, 623 P.2d 240, 246 (1981).

As Harris’s case wound its way through the state and federal courts, it generated substantial controversy, some of which, as in the Sagon Penn case, was related to allegations of official misconduct. See, e.g., id. 28 Cal.3d 935, 623 P.2d at 267 (Bird, C.J., dissenting) (arguing that Harris had been denied his right to a fair trial due to extensive and prejudicial pretrial publicity, partially the product of the “sorry spectacle of prosecutorial offices publicly vying with each other to have ‘first crack’ at convicting the accused”); see also Stephen R.

Reinhardt, The Supreme Court, The Death Penalty, and The Harris Case, 102 Yale L.J. 205, 205 & n. 1 (1992) (for further description of controversy generated by case). Douglas S.’s statement about the case—“here he was, facing execution, and I don’t know”—suggests that this controversy had created some doubt in his mind as to the propriety of Harris’s conviction and sentence. Certainly, Douglas S.’s unelicited discussion of the Harris case should have troubled the prosecutor far more than Robert M.’s brief direct response regarding the Sagon Penn case.

Finally, if there was any inference to draw from Robert M.’s fleeting reference to the Sagon Penn case, it was that Robert M. would not return a guilty verdict based on a blind trust of the police and the prosecution who had arrested and charged the defendant with the crime. Numerous seated white jurors expressed similar sentiments. Douglas S., for example, stated that the last person who had lied to his face was a California policeman.

Similarly, Charles C. said, “You don’t change your stripes ... when you put on a badge; and you have to judge everybody’s testimony in a court case on its face.” Even if the trial judge had not been willing to completely reject the prosecution’s implausible explanation that it struck Robert M. because he mentioned the Sa-gon Penn case, there is a strong likelihood that, had defense counsel been present and been able to persuade the court that the prosecution’s principal reason for challenging this juror—his reluctance to impose the death penalty—was pretextual, the court would have concluded that the strike violated Batson.

We thus cannot conclude that the exclusion of defense counsel from the Batson proceedings did not prevent Ayala from showing that the prosecution’s strike of Robert M. was based on its impermissible consideration of race. * * * Although each of the reasons offered by the prosecution for challenging the black and Hispanic jurors discussed above could have been shown to be pretextual had defense counsel been allowed to participate at steps two and three of the Batson proceedings, it is not necessary that all of the reasons advanced by the prosecution be pretextual or be shown to be pretextual.

Notwithstanding the existence of some apparently appropriate reasons, “if a review of the record undermines ... many of the proffered reasons, the reasons may be deemed a pretext for racial discrimination.” Kesser v. Cambra, 465 F.3d 351, 360 (9th Cir.2006) (en banc) (quoting Lewis v. Lewis, 321 F.3d 824, 830 (9th Cir.2003)) (emphasis added). In short, “[a] court need not find all nonracial reasons pretextual in order to find racial discrimination” with respect to any particular juror, and the exclusion of any one juror in violation of Batson requires reversal of the verdict. Id. C.

Because the defense was excluded from the Batson proceedings, it could not bring necessary facts and arguments to the attention of the trial judge, the institutional actor best positioned to evaluate the prosecution’s credibility and to determine if its proffered reasons for striking the minority jurors were its actual and legitimate reasons.

Furthermore, because the defense was excluded from the Batson proceedings, the appellate courts reviewing this case cannot engage in a proper comparative juror analysis, or know what other facts and arguments might be employed to demonstrate that the proffered reasons were false, facially discriminatory, and pretextual. The latter form of prejudice was exacerbated when the vast majority of the juror questionnaires were lost.

Even on this deficient record, Ayala’s Batson claim is compelling: the prosecution struck all seven of the black and Hispanic jurors in a position to serve on the jury, and many of its proffered race-neutral reasons are highly implausible. 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.

Kotteakos, 328 U.S. at 765, 66 S.Ct. 1239. Ayala has suffered prejudice under Brecht, and is entitled to relief. When that demonstration of prejudice is supplemented by the state’s loss of the juror questionnaires, the case for prejudice under Brecht is even more clear. V.

Although our conclusions in Parts III and IV—that the state court committed federal constitutional error that prejudiced Ayala under the Brecht standard— would dictate that he be granted habeas relief, we may not grant such relief if, as the state asserts, and the district court agreed, Ayala’s claim (specifically his exclusion from stages two and three of the Batson proceedings) is barred by Teague v.

Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). “[I]n addition to performing any analysis required by AEDPA, a federal court considering a habeas petition must conduct a threshold Teague analysis when the issue is properly raised by the state.” Horn v. Banks, 536 U.S. 266, 272, 122 S.Ct. 2147, 153 L.Ed.2d 301 (2002). Under Teague, a “new constitutional rule[ ] of criminal procedure” cannot be applied retroactively to cases on collateral review. 489 U.S. at 310, 109 S.Ct. 1060 (plurality opinion).

Thus, “[b]efore a state prisoner may upset his state conviction or sentence on federal collateral review, he must demonstrate as a threshold matter that the court-made rule of which he seeks the benefit is not ‘new,’ ” but had been established at the time his conviction became final. O’Dell v.

Netherlands 521 U.S. 151, 156, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997). “A holding constitutes a ‘new rule’ within the meaning of Teague if it ‘breaks new ground,’ ‘imposes a new obligation on the States or the Federal Government,’ or was not ‘dictated by precedent existing at the time the defendant’s conviction became final.’ ” Graham v. Collins, 506 U.S. 461, 467, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993) (quoting Teague, 489 U.S. at 301, 109 S.Ct. 1060). We hold that Ayala’s claim does not require the retroactive application of a new constitutional rule of criminal procedure, and thus is not Teague-barred.

At the time Ayala’s conviction became final on May 14, 2001, it was established that defense counsel must be permitted to be present and offer argument during Batson steps two and three when, as in Ayala’s case, the proceedings do not require the prosecution to reveal confidential information or trial strategy. A. In this Circuit, this rule was unequivocally “dictated by precedent,” Teague, 489 U.S. at 301, 109 S.Ct. 106

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