Ayala v. Wong

IKUTA, Circuit Judge,

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

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

Undeterred, the panel majority now tries yet another route to de novo review. It reasons that the Supreme Court has not yet directly told us that we must defer to a state court decision holding that any potential federal constitutional error was harmless. Therefore, the panel majority concludes, we can review such a claim de novo, free of AEDPA deference. In reaching this conclusion, the panel majority ignores the clear command of AEDPA and the Supreme Court, and creates a circuit split. Because we should interpret AEDPA in accordance with the statutory language and the direction provided by the Supreme Court, I respectfully dissent from the court’s failure to rehear this case en banc.

I

The length and complexity of the panel majority’s opinion cannot disguise the fact that it circumvents the Supreme Court’s ruling in Richter and Williams that “a federal habeas court must presume that the federal claim was adjudicated on the merits.” Williams, 133 S.Ct. at 1096. Here, Juan Ayala presented his claim— that the Constitution required defense counsel to be present when the prosecutor presented his reasons for striking certain jurors — to the California Supreme Court, and the court rejected that claim. Twice.

The facts underlying Ayala’s claim are straightforward. Ayala was charged with multiple murders. During jury selection, he argued that the prosecutor was striking jury panelists on the basis of their race or ethnicity in violation of People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978),1 and its federal analogue, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). See People v. Ayala (Ayala I), 24 Cal.4th 243, 259-60, 99 Cal.Rptr.2d 532, 6 P.3d 193 (2000). The trial court asked the prosecutor to explain his reasons for those challenges, but the prosecutor expressed concern about doing so in open court for fear of revealing his trial strategy. Id. at 260, 99 Cal.Rptr.2d 532, 6 P.3d 193. To alleviate this concern, the trial court held three ex parte hearings to consider the prosecutor’s reasons for his challenges, and each time found that the prosecutor was not challenging jury panelists because of race or ethnicity. Id.

On direct appeal to the California Supreme Court, Ayala challenged his exclusion from the ex parte Batson hearings. The court addressed the issue at length. See id. at 259-69, 99 Cal.Rptr.2d 532, 6 P.3d 193. It began by reciting the Bat-son/Wheeler procedure for determining whether a prosecutor’s peremptory challenges were discriminatory. Id. at 260-61, 99 Cal.Rptr.2d 532, 6 P.3d 193. First, the defendant must make a prima facie case that the prosecutor used his peremptory challenges to exclude “members of a cognizable group” because of their group association. Id. at 260, 99 Cal.Rptr.2d 532, 6 P.3d 193. Second, the burden shifts to the prosecutor “to provide a race-neutral ex*718planation for the exercise of peremptory challenges.” Id. Third, the trial court must determine “whether those stated reasons are untrue and pretextual.” Id. at 261, 99 Cal.Rptr.2d 532, 6 P.3d 193.

After explaining the necessary steps in a court’s adjudication of a Batson/Wheeler claim, the California Supreme Court held that, so long as “the inquiry proceeds within the general framework just articulated, no particular procedures are constitutionally required.” Id. The court’s conclusion rested on Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), which stated, with respect to Batson hearings, that “ ‘[i]t remains for the trial courts to develop rules, without unnecessary disruption of the jury selection process, to permit legitimate and well-founded objections to the use of peremptory challenges as a mask for race prejudice.’ ” Ayala I, 24 Cal.4th at 261, 99 Cal.Rptr.2d 532, 6 P.3d 193 (quoting Powers, 499 U.S. at 416, 111 S.Ct. 1364). This conclusion resolved Ayala’s federal constitutional claim that Batson required the trial court to include the defendant or defense counsel in the hearings on the prosecutor’s reasons for striking jury panelists.

While rejecting Ayala’s constitutional claim, the court went on to consider “whether it was error to exclude defendant from participating in the hearings on his Wheeler motions” as a matter of California law. Id. at 262, 99 Cal.Rptr.2d 532, 6 P.3d 193. Because “[t]he question whether ex parte communications are proper in ruling on a Wheeler motion ha[d] not arisen in California decisional law,” the court surveyed the legal landscape, citing cases from the Fourth, Sixth, Seventh, Eighth, Ninth, and Eleventh Circuits, as well as cases from New York, Maryland, and Texas that had considered analogous procedural issues. Id. It noted that “[wjhile some decisions have tolerated an ex parte Batson hearing procedure on the ground that the United States Constitution permits it,” id. (citing United States v. Tucker, 836 F.2d 334, 340 (7th Cir.1988), and United States v. Davis, 809 F.2d 1194, 1202 (6th Cir.1987)), most courts to have considered the issue determined that ex parte proceedings were “poor procedure and should not be conducted unless compelling reasons justify them,” id. at 262-63, 99 Cal.Rptr.2d 532, 6 P.3d 193. Aligning itself with the majority, the court held that, as a matter of state procedure, trial courts should not hold ex parte Bat-son/Wheeler hearings, and therefore “that error occurred under state law” in Ayala’s case. Id. at 263-64, 99 Cal.Rptr.2d 532, 6 P.3d 193. Nevertheless, after a careful review of the record pertaining to the seven challenged jurors, including the transcripts of the exchanges between the prosecutor and the judge, the court concluded that the prosecutor’s peremptory challenges did not exclude a cognizable group from the jury on a discriminatory basis. Id. at 264-68, 99 Cal.Rptr.2d 532, 6 P.3d 193. Consequently, although the trial court erred in light of the newly adopted state procedure, “the error was harmless.” Id. at 268, 99 Cal.Rptr.2d 532, 6 P.3d 193. And any potential federal error “was harmless beyond a reasonable doubt,” according to the California Supreme Court. Id. at 269, 99 Cal.Rptr.2d 532, 6 P.3d 193 (citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)).

In short, the California Supreme Court considered Ayala’s Batson claim, rejected it on the merits, and followed that up by holding that any potential error was harmless. Given that Richter, 131 S.Ct. at 784-85, and Williams, 133 S.Ct. at 1094-96, require us to presume that the state court adjudicated a claim on the merits when the claim was presented to the state court and the state court denied relief, there is no *719doubt the court adjudicated Ayala’s claim on the merits here. Therefore, the only question is whether the state court’s adjudication of Ayala’s Batson claim was an unreasonable application of Supreme Court precedent.

As the California Supreme Court pointed out, “no particular procedures are constitutionally required.” Ayala I, 24 Cal.4th at 261, 99 Cal.Rptr.2d 532, 6 P.3d 193. Batson itself “decline[d] ... to formulate particular procedures to be followed upon a defendant’s timely objection to a prosecutor’s challenges,” 476 U.S. at 99, 106 S.Ct. 1712, and the Supreme Court has left it to the lower courts to “develop [the] rules,” Powers, 499 U.S. at 416, 111 S.Ct. 1364. No subsequent Supreme Court case has given further instruction on Batson procedures, and certainly no Supreme Court case has foreclosed the use of ex parte proceedings. Therefore, the California Supreme Court’s rejection of Ayala’s Batson claim in this case was not contrary to, or an unreasonable application of, clearly established Supreme Court caselaw, and we should have affirmed the district court.

II

Contrary to Supreme Court precedent, the plain language of AEDPA, and the decisions of our sister circuits, the panel majority here reasons that no AEDPA deference is owed to the state court’s opinion. Am. Maj. Op. at 660, 663. Notwithstanding the presumption established by Richter and Williams, the panel majority concludes that the state court did not adjudicate Ayala’s claim on the merits because the state court never analyzed the merits of Ayala’s Batson claim and held only that any federal error would have been harmless. As a threshold matter, this misreads the state court’s opinion. The California Supreme Court addressed and rejected Ayala’s Batson claim on the ground that no particular procedures are constitutionally required, and only later reinforced its rejection of the Batson claim by holding that any potential error was harmless. But even if the state court had limited itself to holding that any federal error was harmless, the panel majority’s analysis of whether the state court adjudicated Ayala’s claim on the merits is wrong.

Williams held that we must presume that a state court adjudicated a federal claim on the merits, and that this presumption is rebutted only “[w]hen the evidence leads very clearly to the conclusion that a federal claim was inadvertently overlooked in state court.” 133 S.Ct. at 1097.2 Here, “the evidence leads very clearly to the conclusion” that the Califor*720nia Supreme Court did not inadvertently overlook Ayala’s Batson claim: it discussed the claim, found no error, ruled that any potential error would be harmless, and denied relief overall. Under Williams, therefore, we must presume that the state court adjudicated Ayala’s claim on the merits, and the only question left is whether that adjudication was an unreasonable application of Supreme Court precedent. See 28 U.S.C. § 2254(d).

The panel majority attempts to evade this conclusion by insisting that the rebut-table presumption discussed in Richter and Williams is rebutted in this case by the “principle of constitutional avoidance.” Am. Maj. Op. at 667, 669. The panel majority reasons that “the California Supreme Court had no reason to reach Ayala’s federal constitutional claim” because it could resolve the claim as a matter of state law, and “under long established legal principles, the California Supreme Court had every reason not to decide unnecessarily a question of federal constitutional law.” Id. at 669. Because there was no compelling reason for the California Supreme Court to have evaluated the claim of constitutional error, the panel majority concludes that the California Supreme Court did not adjudicate Ayala’s Batson claim on the merits. Id. at 23-25.3 It is obvious that this conclusion directly reverses the presumption in Williams. Where Williams would hold that we presume a state court reached the federal issue, the panel majority holds that we presume the state court did everything in its power to avoid reaching that federal issue.

The panel majority supports its reverse presumption by reference to Supreme Court cases granting relief to habeas petitioners raising ineffective assistance of counsel claims. Id. at 668-69 (citing Porter v. McCollum, 558 U.S. 30, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009); Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005); Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)). But these cases offer no support for the panel majority’s novel theory. In those cases, a state court rejected a petitioner’s ineffective assistance claim on either the deficiency or prejudice prong, and did not reach the other prong. Applying § 2254(d), the Supreme Court concluded in each case that the state court’s adjudication of one of the Strickland prongs was contrary to, or an unreasonable application of, Strickland. Because the state court did not reach the other prong, the Supreme Court addressed it de novo. Porter, 558 U.S. at 39, 130 S.Ct. 447; Rompilla, 545 U.S. at 390, 125 S.Ct. 2456; *721Wiggins, 539 U.S. at 534, 123 S.Ct. 2527. These cases are consistent with Williams, because the state court’s express refusal to reach one of the Strickland prongs rebuts the presumption that the state court adjudicated that prong on the merits. Moreover, because the Supreme Court determined that the state court’s analysis of one prong was an unreasonable application of Strickland, it was freed from AEDPA deference, and could review the other prong of the Strickland claim de novo. Porter, 558 U.S. at 39, 130 S.Ct. 447; Rompilla, 545 U.S. at 390, 125 S.Ct. 2456; Wiggins, 539 U.S. at 534, 123 S.Ct. 2527.4

Moreover, the Supreme Court has never suggested that when a state court rejects a petitioner’s claim because any potential error was harmless, we can review the claim de novo because that claim was not fully adjudicated on the merits. Such a conclusion contravenes Richter and Williams, which instruct us to presume that a state court has adjudicated a claim on the merits and to apply AEDPA deference when a state court has denied relief overall, regardless of the grounds for denying relief. The panel majority’s interpretation also contradicts the commonsense interpretation of “adjudicated on merits.” We have held that the term “adjudicated on the merits” as used in § 2254(d) means that “the petition ... was either granted or denied, [and] ... that the grant or denial rest[s] on substantive, rather than procedural, grounds.” Lambert v. Blodgett, 393 F.3d 943, 966 (9th Cir.2004); see also Barker v. Fleming, 423 F.3d 1085, 1092 (9th Cir.2005). A determination that any error was harmless is a denial of relief on “substantive ... grounds.” Accordingly, a decision that any error was harmless is an adjudication on the merits, and we should apply § 2254(d) to that adjudication. The majority’s failure to do so is contrary to the command of § 2254(d) and our precedents interpreting it.

Not only does the panel majority’s approach contradict AEDPA and our precedent, it also conflicts with the conclusion reached by our sister circuits. As the Tenth Circuit recently explained, “[w]here a state court assumes a constitutional violation in order to address whether the defendant was actually harmed by the violation, as here, the state court takes the claim on the merits; it just disposes of it on alternative merits-based reasoning.” Littlejohn v. Trammell, 704 F.3d 817, 850 n. 17 (10th Cir.2013). The Tenth Circuit concluded that because the state court rejected petitioner’s constitutional claim on the ground that any error was harmless, it “render[ed] a decision that is on the merits for purposes of AEDPA.” Id. at 850 n. 17. Accordingly, the Tenth Circuit proceeded to consider whether the adjudication of the constitutional claim was an unreasonable application of Supreme Court precedent. Id. The Seventh and Eighth Circuits have adopted a similar interpretation of “adjudicated on the merits.” See Anderson v. Cowan, 227 F.3d 893, 898 (7th Cir.2000) (considering a state court’s rejection of a Bruton error on the ground that any such error was harmless beyond a reasonable doubt, and concluding that this rejection of the Bruton cl^im was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent); *722Whitmore v. Kemna, 213 F.3d 431, 433 (8th Cir.2000) (“[Wjhere the state court [ ] has conducted a Chapman harmless error analysis, ... the claim has been ‘adjudicated on the merits’ in state court.”). The panel majority’s conclusion that claims rejected on harmless error grounds are not “adjudicated on the merits” thus conflicts with all other circuits to have considered the question.

This is not a case-specific error that will be confined to the facts of this opinion. The panel majority’s approach sets the groundwork for authorizing federal courts to review a habeas petition de novo whenever a state appellate court rejects a petitioner’s federal claim on harmlessness grounds, contrary to the Supreme Court’s admonition to defer to the state court’s decisions, and the general rule that § 2254(d) barely “stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings,” Richter, 131 S.Ct. at 786. The consequences of the panel majority’s approach will reverberate throughout this circuit. The state courts within our circuit routinely resolve claims of federal error on the basis that any potential error was harmless. See, e.g., People v. Thomas, 54 Cal.4th 908, 936-37, 144 Cal.Rptr.3d 366, 281 P.3d 361 (2012); People v. Loy, 52 Cal.4th 46, 69-71, 127 Cal.Rptr.3d 679, 254 P.3d 980 (2011); Smith v. State, 111 Nev. 499, 505-06, 894 P.2d 974 (1995); State v. Walton, 311 Or. 223, 229-31, 809 P.2d 81 (1991); State v. Whelchel, 115 Wash.2d 708, 728-30, 801 P.2d 948 (1990); Braham v. State, 571 P.2d 631, 645-48 (Alaska 1977). Under the panel majority’s rationale, we would give AEDPA deference to none of these determinations.

Ill

Not only does the panel majority commit serious errors in its AEDPA analysis, it lands yet another blow to our AEDPA jurisprudence by concluding that we review a state court’s harmless error analysis under an exceptionally nondeferential standard. After erroneously concluding that the California Supreme Court did not adjudicate Ayala’s Batson claim on the merits, Am. Maj. Op. at 669-70, and determining under de novo review that the state trial court committed a Batson error in holding an ex parte hearing with the prosecutor, id. at 670, the panel majority purports to apply the prejudice standard set forth in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), to review the California Supreme Court’s conclusion that any federal error was harmless, Am. Maj. Op. at 674-84.

But the panel majority’s application of the Brecht prejudice standard contradicts the Supreme Court’s direction in Fry v. Pliler, 551 U.S. 112, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007). Under Brecht, a federal habeas court that determines there is constitutional error cannot grant relief unless the error “had substantial and injurious effect or influence in determining the jury’s verdict.” 507 U.S. at 638, 113 S.Ct. 1710 (internal quotation marks omitted). Before Pliler, a federal court faced a conundrum in considering a state court’s decision that a constitutional error was harmless beyond a reasonable doubt under Chapman. The federal habeas court had to determine whether to: (1) apply § 2254(d), and ask whether the state court’s rejection of the petitioner’s claim on harmlessness grounds was based on an unreasonable application of Chapman, (2) apply the general harmless error standard for habeas cases in Brecht, or (3) do both.

In Pliler, the Supreme Court sought to simplify the harmlessness assessment for federal courts and ensure that state courts received proper deference. It held that *723federal courts should apply the Brecht standard in every case because it is more deferential to state courts. 551 U.S. at 119-20, 127 S.Ct. 2821. Pliler explained that before AEDPA, the Supreme Court applied the Brecht standard of review to consider habeas claims of state trial errors, because Brecht provided a “more forgiving standard of review” than Chapman. Id. at 116,127 S.Ct. 2321. The Court then rejected the argument that the passage of AEDPA replaced Brecht with a more petitioner-friendly standard: “Given our frequent recognition that AEDPA limited rather than expanded the availability of habeas relief, it is implausible that, without saying so, AEDPA replaced the Brecht standard of actual prejudice [] with the more liberal AEBPA/Chapman standard which requires only that the state court’s harmless-beyond-a-reasonable-doubt determination be unreasonable.” Id. at 119— 20, 127 S.Ct. 2321 (internal quotation marks and citations omitted). Thus, it made sense to use the stricter Brecht standard in all habeas cases.

Nevertheless, given Pliler’s determination that the Brecht standard is more deferential to state courts than an AED-PA/Chapman analysis, it logically follows that if the state court’s determination that an error is harmless beyond a reasonable doubt is not an unreasonable application of Chapman, then there is no prejudice under Brecht. See Pliler, 551 U.S. at 120, 127 S.Ct. 2321 (Brecht “obviously subsumes” AEEPAJChapman review). Anything else would be inconsistent with Pli-ler ’s reasoning. It would also be contrary to § 2254(d), which provides that a federal court cannot grant the writ unless the state court’s adjudication of a claim resulted in a decision that was contrary to, or an unreasonable application of, clearly established Supreme Court precedent. See Cudjo v. Ayers, 698 F.3d 752, 768 (9th Cir.2012) (stating that “if the California Supreme Court had appropriately applied the Chapman analysis in analyzing this Constitutional error, this court would be required to defer to that analysis under AEDPA unless it was unreasonable”).

Applying this reasoning here, the California Supreme Court’s determination that the procedure adopted by the trial court in holding an ex parte hearing was harmless beyond a reasonable doubt was not an unreasonable application of Chapman. The California Supreme Court devoted several pages to a meticulous review of the trial court’s decision regarding the seven jurors who were excluded and gave well-reasoned and supported explanations for why “the challenged jurors were excluded for proper, race-neutral reasons.” Ayala I, 24 Cal.4th at 264, 99 Cal.Rptr.2d 532, 6 P.3d 193.

Because we would be compelled to defer to the state court under an AEEPA/Chap-man framework, we necessarily should find no Brecht prejudice. See Pliler, 551 U.S. at 120, 127 S.Ct. 2321. In contrast, the panel majority engages in not just de novo legal analysis, but de novo review of the record that piles speculation upon speculation instead of giving due deference to the finder of fact.5 See Batson, 476 *724U.S. at 98 n. 21, 106 S.Ct. 17Í2. The panel majority’s erroneous application of Brecht contradicts Pliler and dangerously muddles our caselaw.

IV

In sum, the panel majority’s path to de novo review is contrary to the plain language of AEDPA, which precludes granting the writ unless the state court’s adjudication of a claim “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.” 28 U.S.C. § 2254(d)(1). The panel majority hops over AEDPA’s “bar on federal court relitigation of claims already rejected in state proceedings,” Richter, 131 S.Ct. at 786, with a novel theory that ignores recent Supreme Court jurisprudence and conflicts with our sister circuits. In fact, the panel majority’s opinion raises every red flag that should have prompted us to rehear a case en banc. The approach to AEDPA embodied in the panel majority’s opinion has already struck out twice at the Supreme Court. I fear that with this case, we are looking at a hat trick. Because we should have corrected these errors ourselves, rather than asking the Supreme Court to weigh in a third time, I respectfully dissent from the denial of rehearing en banc.

. Wheeler presaged Batson by interpreting the California Constitution to prohibit race-based peremptory challenges. See Wade v. Terhune, 202 F.3d 1190, 1192 (9th Cir.2000). The California Supreme Court has stated that "[s]ubstantially the same principles apply under Batson " as under Wheeler. People v. Alvarez, 14 Cal.4th 155, 193, 58 Cal.Rptr.2d 385, 926 P.2d 365 (1996). Although there are some differences between the Wheeler and Batson standards, see Wade, 202 F.3d at 1196-97, those differences are not applicable here. Accordingly, “because we are reviewing [Ayala's] petition for a writ of habeas corpus under 28 U.S.C. § 2254, we generally refer to Batson in analyzing his claims.” Mitleider v. Hall, 391 F.3d 1039, 1042 n. 2 (9th Cir.2004).

. As Williams demonstrated, this presumption is quite robust. In Williams, the California Court of Appeal had rejected a petitioner’s claim regarding the dismissal of a juror, citing only a California Supreme Court opinion, People v. Cleveland, 25 Cal.4th 466, 106 Cal.Rptr.2d 313, 21 P.3d 1225 (2001), and other principles of state law. People v. Taylor, No. B 137365, 2002 WL 66140, at *8 (Cal.Ct.App. Jan. 18, 2002). Cleveland, in turn, had discussed but rejected two federal circuit court opinions that themselves addressed the Sixth Amendment. 25 Cal.4th at 480-84, 106 Cal.Rptr.2d 313, 21 P.3d 1225. Williams concluded that the state court’s mere mention of Cleveland was enough to show that the state court understood it was resolving a question of federal constitutional law. 133 S.Ct. at 1098-99. Accordingly, Williams held that the state court had adjudicated the petitioner’s Sixth Amendment claim on the merits, and rejected the Ninth Circuit's conclusion to the contrary. Id. at 1099. Given the Supreme Court’s determination that the state court adjudicated a petitioner's federal claim because it referenced an earlier state opinion that itself mentioned federal circuit court opinions, the California Supreme Court’s direct discussion and rejection of Ayala’s Batson claim in this case was a clear adjudication of that claim on the merits.

. A confusing aspect of the panel majority’s opinion is its observation that “if we were required to determine whether the California Supreme Court adjudicated Ayala’s claim of federal constitutional error 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.” Am. Maj. Op. at 666 (emphases altered). The panel majority refers to this scenario as "Option 1.” Id. at 664. "Option 1” would present a very different case: Had the California Supreme Court held that the trial court committed a Batson error, and had Ayala challenged only the court's determina-lion under Chapman that such error was harmless, we would have to decide the open question of how AEDPA would apply to that type of adjudication on the merits. But the panel majority does not resolve this question, and instead makes the fatal error of holding that the California Supreme Court did not adjudicate Ayala’s federal claim on the merits, whether in favor of Ayala, see id. at 663 n. 3, 664-65 n. 4, or against him. Thus, while the panel majority discusses the "Option 1” scenario at great length, it elects instead to presume (contrary to Richter and Williams) that the state court avoided an "Option 1” scenario by deciding Ayala’s claims on state law grounds.

. Another case cited by the panel majority, Cone v. Bell, 556 U.S. 449, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009), is equally inapplicable. Am. Maj. Op. at 668-69. In Cone, the Supreme Court held that when a state court erroneously finds a procedural default and therefore has not reached the merits of a claim, a federal court can do so. 556 U.S. at 469-72, 129 S.Ct. 1769. No one suggests that Ayala procedurally defaulted his Batson claim.

. One particularly striking example of the panel majority’s highly speculative approach is worth mentioning here. The panel majority offers the following hypothesis regarding how Ayala’s input might have changed the trial court’s conclusion that the prosecutor's reason for challenging one of the potential jurors was a legitimate nondiscriminatoiy reason (the panel majority discusses only three of the seven):

An inference of racial bias might [] have been drawn from the prosecutor's claim that Gerardo O. 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 manner*724isms 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 O. 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 O. because of his dress and mannerisms would provide compelling support for Ayala's claim that the strike was actually racially-motivated.

Am. Maj. Op. at 680. This sort of conjecture in the face of a contrary determination by the trier of fact has no place in analyzing prejudice.