Argued and Submitted, Pasadena, California April 8,
[Copyrighted Material Omitted]
Appeal from the United States District Court for the Central District of California. D.C. No. 8:11-cv-01767-MWF-FFM. Michael W. Fitzgerald, District Judge, Presiding.
Charles M. Sevilla (argued), Law Office of Charles Sevilla, San Diego, California, for Petitioner-Appellant.
Kamala D. Harris, Julie L. Garland, Kevin Vienna (argued), and David Delgado-Rucci, Office of the Attorney General of California, San Diego, California, for Respondent-Appellee.
Before: Sidney R. Thomas, Milan D. Smith, Jr., and Morgan Christen, Circuit Judges. Dissent to Order by Judge Bea.
The opinion filed on September 29, 2014, is amended and the amended majority and dissenting opinions are filed concurrently with this order. With these amendments, a majority of the panel has voted to deny the petition for panel rehearing. The full court has been advised of the petition for rehearing and rehearing en banc. A judge of the court requested a vote on whether to rehear the matter en banc. A majority
of the nonrecused active judges did not vote in favor of rehearing en banc. Fed. R. App. P. 35(f). The petition for panel rehearing and the petition for rehearing en banc are DENIED. A dissent from denial of rehearing en banc is filed concurrrently with this order. No further petitions for rehearing or rehearing en banc may be filed.
BEA, Circuit Judge, with whom O'SCANNLAIN, TALLMAN, BYBEE, CALLAHAN, M. SMITH, IKUTA, and N.R. SMITH, Circuit Judges, join, dissenting from the denial of rehearing en banc:
The ink is hardly dry on the Supreme Court's latest reversal of another of our judgments where we disregarded the deference the Antiterrorism and Effective Death Penalty Act (" AEDPA" ) requires we give state court decisions that any trial court errors were harmless, thus precluding any entitlement to habeas relief. Yet here we have gone and done it again. The panel majority (the " Majority" ) today rejects a California appellate court's reasoned and supported conclusion that prosecutorial misstatements made during Defendant Deck's trial constituted harmless errors, in favor of its own determination that such statements were actually prejudicial. As explained below, I find four major missteps in the Majority's opinion.
First, the Majority reads Davis v. Ayala to hold that a federal habeas court's finding that a state trial court error was prejudicial under Brecht  dispenses with AEDPA's requirement that the federal habeas court must also find that the state court applied " well-established" Supreme Court precedent in an " unreasonable" manner when it found the same error harmless (a " Chapman /AEDPA" analysis). See Slip Op. at 63-64.
This conclusion is illogical because Brecht requires only a finding by a federal court that (in its view) an error was not harmless--without any deference to, or evaluation of, the reasonableness of a prior state court determination. Under Chapman /AEDPA, conversely, we must accept a state court's prior harmless error determination unless it involved such an " unreasonable" application of Supreme Court precedent that " no fairminded jurist" could agree with it. See Davis v. Ayala, 135 S.Ct. 2187, 2199, 192 L.Ed.2d 323 (2015). Thus, though a Chapman /AEDPA finding would necessarily mean that a trial error was harmful (and thus also satisfy Brecht ) the contrary is not necessarily true. Indeed, the panel Majority's test got it precisely backwards.
The Majority did so by committing its second error: It read Justice Alito's statement that " the Brecht test subsumes the limitations imposed by AEDPA," id. at 2199, to mean that Brecht eliminated, rather than incorporated, AEDPA deference. But it is hard to see how that can be correct when the Brecht standard was developed in 1993--three years before AEDPA was enacted. And of course, were the Majority's understanding the correct reading of the phrase, Ayala would necessarily have come out the other way. As a result of its misreading, the panel Majority's decision is directly contradictory to the Court's opinion in Ayala. In fact, it is consistent with Justice Sotomayor's dissent in Ayala.
Third, applying its faulty test, the panel Majority's analysis fails to afford proper AEDPA deference to the state court's harmless error determination. In the portions of the Majority's opinion dedicated to finding the state court's determination of harmless error unreasonable, the Majority considers only the evidence and arguments pointing to a prejudicial effect of the prosecutor's misconduct, rather than (as AEDPA requires) whether any of the evidence and arguments put forth by the state court provided a reasonable basis for that court's determination that any error was harmless.
Fourth, the legal basis for the Majority's conclusion that " no fairminded jurist" could agree with the state court's finding of harmless error under Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986), in fact supports the opposite conclusion. That is, every Supreme Court precedent regarding prosecutorial misconduct cited by the Majority found not prejudicial error, but harmless error.
As highlighted in Judge M. Smith's dissent in Deck v. Jenkins, 768 F.3d 1015, 1031 & n.1 (9th Cir. 2014), the Majority's approach to federal habeas review has been rejected by the Supreme Court not once, not twice, but upwards of a dozen times. See, e.g., Ayala, supra, 135 S.Ct. at 2196-99, 2208; see also Richter v. Hickman, 578 F.3d 944 (9th Cir. 2009) (en banc), rev'd and remanded by Harrington v. Richter, 562 U.S. 86, 101-02, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (rejecting our conclusion that because we found a prejudicial Strickland violation under Brecht, the " state court's decision to the contrary constituted an unreasonable application of Strickland," and explaining that " AEDPA demands more" than the traditional Brecht test); Smith v. Mitchell, 624 F.3d 1235 (9th Cir. 2010), rev'd and remanded sub nom. Cavazos v. Smith, 132 S.Ct. 2, 6-8, 181 L.Ed.2d 311 (2011) (per
curiam) (reversing our grant of habeas relief and stating: " This Court vacated and remanded this judgment twice before, calling the panel's attention to this Court's opinions highlighting the necessity of deference to state courts in § 2254(d) habeas cases. Each time the panel persisted in its course, reinstating its judgment without seriously confronting the significance of the cases called to its attention . . . . Its refusal to do so necessitates this Court's action today." (emphasis added)).
In sum, the Deck Majority's application of Brecht without § 2254(d)(1) deference flouts the Supreme Court's recent mintage in Davis v. Ayala by immediately reinstating the framework the Court had just rejected. Moreover, because the Ayala Court reversed and remanded that case back to the Ninth Circuit for proceedings consistent with its opinion, see Ayala, 135 S.Ct. at 2208, the Deck Majority's issuance of a directly contradictory opinion will immediately create not only an intra-Circuit split, but also divergence between our own precedent and that of our sister Circuits. See Fed. R. App. P. 35(a)(1). This is why I called this case en banc. Unfortunately, the call failed.
In Davis v. Ayala, the Supreme Court squarely addressed the proper interaction between Brecht's " actual prejudice" standard, see n.3, supra, and AEDPA's mandated deference (which post-dates Brecht ), where the state court has previously decided a federal constitutional issue on its merits. Ayala, 135 S.Ct. at 2187-98 (2015). In Ayala, the petitioner sought federal habeas relief after the California Supreme Court affirmed his murder conviction and death sentence. See id. at 2194-95. During jury selection, Ayala (who is Hispanic) had objected to seven of the prosecutor's eighteen preemptory challenges, which seven challenges had eliminated all potential black and Hispanic jurors on the panel. Ayala's objection was that the challenges were impermissibly race-based under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). See Ayala, 135 S.Ct. at 2193-94. The trial judge had permitted the prosecutor to offer race-neutral reasons for each strike, but only in an ex parte hearing, because the prosecutor had claimed he did not want to reveal his trial strategy. Id. at 2193. On direct appeal, the California Supreme Court held that the exclusion of Ayala's counsel from the hearing on preemptory strikes was federal constitutional error, but ...