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In the Supreme Court of the United States No. In the Supreme Court of the United States KEVIN CHAPPELL, WARDEN, Petitioner, v. HECTOR AYALA, Respondent. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit PETITION FOR A WRIT OF CERTIORARI KAMALA D. HARRIS Attorney General of California EDWARD C. DUMONT Solicitor General DANE R. GILLETTE Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General HOLLY D. WILKENS Supervising Deputy Attorney General ROBIN URBANSKI* Deputy Attorney General STATE OF CALIFORNIA DEPARTMENT OF JUSTICE 110 West A Street, Suite 1100 San Diego, CA 92101 Telephone: (619) 645-2230 [email protected] *Counsel of Record i CAPITAL CASE QUESTION PRESENTED Whether a state court’s rejection of a claim of federal constitutional error on the ground that any error, if one occurred, was harmless beyond a reasonable doubt is an “adjudicat[ion] on the merits” within the meaning of 28 U.S.C. § 2254(d), so that a federal court may set aside the resulting final state conviction only if the defendant can satisfy the restrictive standards imposed by that provision. ii TABLE OF CONTENTS Page Petition for a Writ of Certiorari ............................... 1 Opinions Below ......................................................... 1 Jurisdiction ............................................................... 1 Statutory Provision Involved ................................... 2 Statement ................................................................. 2 Reasons for Granting Certiorari ............................ 13 Conclusion ............................................................... 27 iii TABLE OF AUTHORITIES Page CASES Batson v. Kentucky 476 U.S. 79 (1986) .............................. 2 et passim Brecht v. Abrahamson 507 U.S. 619 (1993) .......................... 24 et passim Carey v. Musladin 549 U.S. 70 (2006) ............................................. 19 Caspari v. Bohlen 510 U.S. 383 (1994) ........................................... 10 Chapman v. California 386 U.S. 18 (1967) .............................. 4 et passim Cudjo v. Ayers 698 F.3d 752 (9th Cir. 2012) .............................. 25 Dixon v. Williams No. 10-17145, slip op. 15, 2014 WL 1687819 (9th Cir. Apr. 30, 2014) ...................................... 23 Early v. Packer 537 U.S. 3 (2002) ............................................... 18 Felkner v. Jackson 131 S. Ct. 1305 (2011) ........................................ 12 Fry v. Pliler 551 U.S. 112 (2007) ......................... 13, 24, 25, 26 Georgia v. McCollum 505 U.S. 42 (1992) ............................................... 8 Gonzalez v. Crosby 545 U.S. 524 (2005) ........................................... 16 Gray v. State 317 Md. 250 (1989) ............................................ 19 Harrington v. Richter 131 S. Ct. 770 (2011) ........................... 8 et passim iv TABLE OF AUTHORITIES (continued) Page Johnson v. Acevedo 572 F.3d 398 (7th Cir. 2009) .............................. 25 Johnson v. Williams 133 S. Ct. 1088 (2013) ......................... 9 et passim Jones v. Basinger 635 F.3d 1030 (7th Cir. 2011) ............................ 25 Kamlager v. Pollard 715 F.3d 1010 (7th Cir. 2013) ............................ 25 Knowles v. Mirzayance 556 U.S. 111 (2009) ........................................... 19 Littlejohn v. State 85 P.3d 287 (Ok. Ct. Crim. App. 2004) .............. 21 Littlejohn v. Trammell 704 F.3d 817 (10th Cir. 2013) ................ 20, 21, 22 Lockyer v. Andrade 538 U.S. 63 (2003) ............................................. 19 Merolillo v. Yates 663 F.3d 444 (9th Cir. 2011), cert. denied, 133 S. Ct. 102 (2012) .......................................... 24 Mitchell v. Esparza 540 U.S. 12 (2003) ............................................. 24 People v. Watson 46 Cal. 2d 818, 299 P.2d 243 (1956) .................... 4 People v. Wheeler 22 Cal. 3d 258 (1978) ............................. 2, 3, 7, 16 Powers v. Ohio 499 U.S. 400 (1991) ................................. 3, 12, 19 Teague v. Lane 489 U.S. 288 (1989) ................................. 7, 10, 19 v TABLE OF AUTHORITIES (continued) Page United States v. Davis 809 F.2d 1194 (6th Cir. 1987) ............................. 8 United States v. Thompson 827 F.2d 1254 (9th Cir. 1987) ............................ 10 United States v. Tucker 836 F.2d 334 (7th Cir. 1988) ................................ 8 White v. Woodall 134 S. Ct. 1697 (2014) ........................................ 17 Woodford v. Visciotti 537 U.S. 19 (2002) ............................................. 23 Wright v. Van Patten 552 U.S. 120 (2008) ........................................... 20 STATUTES 28 U.S.C. § 1254 ........................................................ 1 28 U.S.C. § 2254 ....................................... 2 et passim Antiterrorism and Effective Death Penalty Act (AEDPA) Pub. L. No. 104-132, 110 Stat. 1214 (1996) .......................... 2 et passim COURT RULES Rules of the Supreme Court of the United States Rule 35.3 .............................................................. 1 1 PETITION FOR A WRIT OF CERTIORARI The Attorney General of California, on behalf of Warden Kevin Chappell, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case.1 OPINIONS BELOW The opinion of the court of appeals (App. 1a-121a) is not yet officially reported, but may be found at 2014 U.S. App. LEXIS 3699 and 2014 WL 707162. An earlier version of the court’s opinion, before amendment on denial of rehearing en banc, was reported at 730 F.3d 831. The opinion of the district court (App. 122a-171a) is unpublished. The opinion of the California Supreme Court on direct appeal of the underlying state case (App. 189a-261a) is reported at 24 Cal. 4th 243. JURISDICTION The judgment of the court of appeals was originally entered on September 13, 2013. The court amended its opinion and reentered judgment on February 25, 2014, in conjunction with the entry of an order denying rehearing or rehearing en banc. App. 1a, 172a. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1). 1 Kevin Chappell has succeeded Robert Wong as warden of the state prison in which respondent is incarcerated. Warden Chappell is substituted as the named petitioner in this case in compliance with this Court’s Rule 35.3. 2 STATUTORY PROVISION INVOLVED Section 2254 of Title 28 of the United States Code, as amended by the Antiterrorism and Effective Death Penalty Act (AEDPA), provides in pertinent part: (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-- (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. STATEMENT 1. In 1989, respondent Hector Ayala was tried for the execution-style murders of three men during an attempted robbery in 1985. See App. 2a, 189a-196a. Jury selection took more than three months. Id. at 3a. In three motions pursuant to People v. Wheeler, 22 Cal. 3d 258 (1978)—California’s equivalent to Batson v. Kentucky, 476 U.S. 79 (1986)—defense counsel objected to the prosecutor’s use of seven peremptory challenges to exclude minority jurors. App. 3a-4a & n.1. When the court asked the prosecutor to explain his reasons for the challenges, the prosecutor said he would prefer to provide them ex parte, so as not to divulge matters of trial strategy. Id. at 196a-197a. Over a defense objection to being excluded from any 3 discussion that did not actually involve such matters, the trial court permitted the ex parte proffer of the prosecution’s explanations. Id. at 197a. Based on those proceedings, the court ultimately concluded that the prosecutor had not made his challenges on the basis of race. Id. The jury convicted respondent of three counts of first degree murder, one count of attempted murder, one count of robbery, and three counts of attempted robbery. It also found two special circumstances— multiple murder and murder in the attempted commission of robbery—and returned a verdict of death as to each count of murder. The trial court entered judgment consistent with that verdict on November 30, 1989. App. 190a. 2. The California Supreme Court affirmed. App. 189a-261a. Among other things, respondent challenged the trial court’s use of ex parte hearings to receive the prosecutor’s explanations for his peremptory challenges. See id. at 196a-212a. In describing the legal framework applicable to that claim, the court cited both Batson and Wheeler. E.g., id. at 197a-198a. It observed that, apart from the general framework established by Batson, “no particular procedures are constitutionally required,” and specifically noted this Court’s statement that it “‘remain[ed] for the trial courts to develop rules’” for the appropriate handling of Batson challenges “‘without unnecessary disruption of the jury selection process.’” Id. at 198a (quoting Powers v. Ohio, 499 U.S. 400, 416 (1991)). It then held that, “as a matter of state law,” the trial court erred by excluding the defense from Wheeler/Batson hearings where, in fact, “no matters
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