Michael Edward VANSICKEL, Petitioner-Appellant, v. Theo WHITE, Warden, Respondent-Appellee

REINHARDT, Circuit Judge,

dissenting:

The majority acknowledges that the trial court’s erroneous denial of half of Vansickel’s *960statutorily authorized peremptory challenges — ten out of twenty — violated his right to due process. The majority further acknowledges that our cases hold that, because it is impossible to determine whether an error that affects the composition of a jury had an actual effect on a jury’s verdict, the erroneous denial of even one peremptory challenge requires a presumption of prejudice and automatic reversal of a criminal conviction. Finally, the majority appears to agree that the rule requiring the presumption of prejudice applies in habeas cases as well as on direct appeal. However, the majority then holds that because Vansickel’s counsel failed to object during the empanelment of the jury, Vansickel procedurally defaulted his claim and therefore must, unlike the ordinary habeas petitioner, demonstrate actual prejudice as to the outcome of his case. Without explaining how Vansickel or any other litigant could possibly make such a showing, the majority simply overrides our well established rule that prejudice as to the result need not, indeed cannot, be shown in jury composition cases. By doing so, it renders it virtually impossible for any defendant to vindicate his right to due process if his attorney has committed a procedural default in such a case. In rejecting our common sense rule, the majority commits a serious error. Its imposition of an insurmountable barrier to the vindication of a right to due process is incompatible with the Constitution. See Penson v. Ohio, 488 U.S. 75, 86, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988) (prejudice must be presumed because otherwise right to appellate counsel would be eviscerated); Michel v. Louisiana, 350 U.S. 91, 94-95, 76 S.Ct. 158, 100 L.Ed. 83 (1955) (court will not apply procedural bar rule that “raises an insuperable barrier” to vindication of a constitutional right).

Because the majority glosses over the reasons courts have adopted the automatic reversal rule in jury composition eases, I briefly outline them here. This circuit has held that the remedy for improper denial of peremptory challenges is automatic reversal, because “it would be virtually impossible to determine whether the denial of a peremptory challenge was harmless.” United States v. Annigoni, 96 F.3d 1132, 1144 (9th Cir.1996) (en banc).1 Annigoni reasoned that because the very purpose of peremptory challenges is to allow dismissal of potential jurors for subjective, unidentifiable reasons, and because the effect of a change in jury composition on jury deliberations cannot be determined, evaluation of the effect of this type of error is impractical and impossible. Id. at 1144-45. Therefore, impairment of the right to exercise statutorily authorized peremptory challenges requires no case-specific demonstration of actual prejudice. Id. at 1144-45, 1147. In Martinez-Salazar, we took this analysis one step further, holding that the improper denial of even one peremptory challenge violates due process and requires automatic reversal, whether or not an objectionable juror actually served on the jury. See United States v. Martinez-Salazar, 146 F.3d 653, 658-59 (9th Cir.1998).

Instead of being required to demonstrate an effect on his verdict, Vansickel should, under our precedent, be required to establish only “that his state counsel would have challenged another juror or jurors had he been aware of the remaining challenges.” Hines v. Enomoto, 658 F.2d 667, 674 (9th Cir.1981). This showing would establish that his right was actually impaired by demonstrating that he would have used additional peremptory challenges if provided the opportunity.2 *961In this case, as the majority acknowledges, Vansickel’s lawyer met that standard; he demonstrated to the trial court’s satisfaction that he would have used additional perempto-ries had they been provided.

Here, although Vansickel did not receive the jury he was entitled to and was thereby deprived of his right to a fair trial, the majority nonetheless holds that in view of his counsel’s procedural default our rules do not apply and that in order to establish prejudice Vansickel must prove that his counsel’s error actually affected the outcome of the proceeding.3 However, application of such an actual prejudice standard constitutes an impossibility for defendants. Moreover, it is not permissible to require application of that standard when the error is one that we have clearly stated is not susceptible of actual prejudice analysis. Because we have held that there is no way to ascertain the impact on the result of a trial, denial of due process must be presumed prejudicial. See Riggins v. Nevada, 504 U.S. 127, 137, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992) (presuming prejudice when “[ejfforts to prove or disprove actual prejudice from the record before us would be futile, and guesses whether the outcome of the trial might have been different ... would be purely speculative”).

The majority reaches its untenable position by arguing that the procedural default at issue here involves Strickland error and that Strickland precludes the use of the presumed prejudice rule. The majority is wrong. It misconceives the nature of the Strickland error rule. Contrary to the majority’s assumption, the prejudice inquiry as articulated in Strickland is not limited solely to ascertaining the error’s effect on the result of a trial — rather, “the ultimate focus, of the inquiry must be on the fundamental fairness of the proceeding whose result is being challenged.” Strickland, 466 U.S. at 696, 104 S.Ct. 2052. Requiring a showing of prejudice that we know to be impossible certainly cannot help the courts evaluate whether a trial was fundamentally unfair.

*962In fact, Strickland itself acknowledges that “[i]n certain Sixth Amendment contexts, prejudice is presumed.” Strickland, 466 U.S. at 692, 104 S.Ct. 2052. When the performance of counsel has been so egregious as to amount to a constructive denial of counsel, we presume prejudice. See United States v. Cronic, 466 U.S. 648, 659-60 & n. 25, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) (when counsel “fails to subject prosecution’s case to meaningful adversarial testing,” or counsel has been absent at critical stage, prejudice is presumed); Lozada v. Deeds, 498 U.S. 430, 432, 111 S.Ct. 860, 112 L.Ed.2d 956 (1991) (presuming prejudice when counsel failed to file notice of appeal); United States v. Swanson, 943 F.2d 1070, 1074 (9th Cir.1991) (presuming prejudice when counsel conceded that there was no reasonable doubt as to elements of crime). Similarly, when counsel is burdened by an actual conflict of interest, a defendant need only demonstrate that this conflict had an adverse effect on counsel’s performance, not on the outcome of the trial, since “it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests.” Strickland, 466 U.S. at 692, 104 S.Ct. 2052. See Cuyler v. Sullivan, 446 U.S. 335, 349-50, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) (“[A] defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief.”). Finally, when employing Strickland’s prejudice standard would effectively eviscerate the right, the Court presumes prejudice. See Penson, 488 U.S. at 86, 109 S.Ct. 346 (presuming prejudice when defendant was not represented on appeal because “[fjinding harmless error or a lack of Strickland prejudice in cases such as this ... would leave indigent criminal appellants without any of the protections afforded by Anders.”).

When it is not possible or practical to analyze prejudice on a case-by-case basis and a presumption of prejudice is required in order to protect an important substantive right, the Strickland prejudice inquiry necessitates application of the presumed prejudice rule. The Eighth Circuit recently held that when a counsel’s performance has led to an error that is “not amenable to harmless error analysis, but require[s] automatic reversal,” prejudice must also be presumed for purposes of the Strickland analysis. See McGurk v. Stenberg, 1998 WL 850128 at *3-4 (8th Cir.1998). Other courts have reached similar conclusions when counsel’s error has affected the jury trial mechanism. See, e.g., Government of Virgin Islands v. Weatherwax, 20 F.3d 572, 579-80 (3d Cir.1994) (“Prejudice should not be presumed; but when juror misconduct is coupled with the trial court’s failure to hold a voir dire to determine the outcome of the misconduct on the jury function, proof of actual prejudice is excused and a new trial is warranted.”); Hollis v. Davis, 941 F.2d 1471, 1483 (11th Cir.1991) (presumption of Strickland prejudice is warranted when attorney’s error resulted in all-white jury, race was at issue in case, and trial transcript was not available for review); Smith v. Gearinger, 888 F.2d 1334, 1338-39 (11th Cir.1989) (presuming partiality of juror in accord with state law for purposes of Strickland inquiry).4

The impracticability of attempting to analyze the effect of jury composition error *963while excluding the rule of presumed prejudice is well-illustrated by the majority’s approach in this case. The majority does not argue that the presence of the particular jurors that Vansickel would have dismissed had no effect on the jury’s deliberations— because, of course, there is no way for the majority to know what role these jurors played. Instead, the majority solely emphasizes the “overwhelming” nature of the evidence of Vansickel’s guilt. However, as the Supreme Court has made clear, analysis of the effect of an error on a particular trial cannot properly focus exclusively on the strength of the evidence against the defendant:

[T]he question is, not were [the jurors] right in their judgment, regardless of the error or its effect upon the verdict. It is rather what effect the error had or reasonably may be taken to have had upon the jury’s decision.... 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.

Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946) (citations omitted). See also Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (“The inquiry ... is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. That must be so, because to hypothesize a guilty verdict that was never in fact rendered — no matter how inescapable the findings to support that verdict might be — would violate the jury-trial guarantee.”); Brecht v. Abrahamson, 507 U.S. 619, 642-43, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (Stevens, J., concurring) (“The habeas court cannot ask only whether it thinks the petitioner would have been convicted even if the constitutional error had not taken place. Kotteakos is full of warnings to avoid that result.”). The majority’s disposition of Vansickel’s claim rests exclusively on its assessment of the verdict that a constitutionally composed jury would have reached, in direct conflict with the Supreme Court’s admonitions to avoid such a hypothetical exercise.

The majority also suggests, without so holding, that Vansickel probably could not demonstrate cause for his default because his lawyer was not constitutionally ineffective. This is clearly wrong: defense counsel missed the most elementary statutory protection provided to defendants. He unknowingly forfeited half of Vansickel’s guaranteed allotment of peremptory challenges, “one of the most important of the rights secured to the accused,” Pointer v. United States, 151 U.S. 396, 408, 14 S.Ct. 410, 38 L.Ed. 208 (1894), due to his ignorance of this basic statutory protection. This error would not have been difficult for counsel to avoid. A mere reading of the basic peremptory challenge statute would have revealed that capital defendants were guaranteed twenty peremptory challenges. See Cal.Code Civ. Pr. § 231(a) (defendant charged with offense punishable by death or life imprisonment is entitled to twenty peremptory challenges). Counsel’s failure to make even this minimal effort to protect such an important right constitutes deficient performance. See, Morris v. California, 966 F.2d 448, 454-55 (9th Cir.1991) (ignorance of law and failure to research legality of methamphetamine use was ineffective assistance); Green v. United States, 972 F.Supp. 917, 920 (E.D.Pa.1997) (failure to appeal improper denial of statutorily authorized peremptory challenge was ineffective).

By requiring Vansickel to demonstrate that the erroneous denial of half of his rightful allotment of peremptory challenges substantially influenced the outcome of his case, the majority has demanded an impossible showing and therefore erected an insurmountable barrier to vindication of an important constitutional right. Because rendering a constitutional right unenforceable is an unacceptable result, the presumption of prejudice that normally applies in a case in which a criminal defendant has been denied statutorily guaranteed peremptory challenges applies equally in the case of Strickland error. In jury composition cases, whatever the context, the impossibility of proof of prejudice is identical. By concluding otherwise, and *964abandoning Bines, the majority erred. I therefore dissent.

. Our court’s application of a rule of automatic reversal is in accord with the conclusion of other circuits to consider this question. See United States v. Underwood, 122 F.3d 389, 392 (7th Cir.1997), cert. denied, -U.S. -, 118 S.Ct. 2341, 141 L.Ed.2d 713 (1998) (automatic reversal appropriate when due process violated by impairment of intelligent exercise of peremptory challenges); United States v. Taylor, 92 F.3d 1313, 1325 (2d Cir.1996), cert. denied, 117 S.Ct. 771 (1997) (impairment of right to exercise peremptory challenges requires reversal); Kirk v. Raymark Indus., Inc., 61 F.3d 147, 162 (3d Cir.1995) (automatic reversal proper remedy in civil case); Knox v. Collins, 928 F.2d 657, 661 (5th Cir.1991) (impairment of right to exercise peremptory challenges requires automatic reversal of state conviction); United States v. Cambara, 902 F.2d 144, 147-48 (1st Cir.1990) (denial of pex'emptory challenge to which statute entitles requires reversal).

. A defendant may make such a showing by demonstrating that he used all of the peremptory challenges that were provided to him. See Martinez-Salazar, 146 F.3d at 658-59.

. Vansickel makes a strong argument that the state's rule should not be treated as a procedural bar. California case law entitles a defendant who has objected to an improper denial of a jury challenge to automatic reversal, but otherwise requires a demonstration of prejudice. See People v. Caro, 46 Cal.3d 1035, 251 Cal.Rptr. 757, 761 P.2d 680, 686-87 (Cal.1988). Although the district court characterized this "prejudice” requirement as a procedural bar, the rule actually operates to reverse the presumption of prejudice, not to waive review of the merits of the claim. In fact, the California courts have not termed this additional prejudice requirement a "procedural bar” or a "procedural default” rule. It appears that a defendant who fails to make a contemporaneous objection may still raise the statutory or constitutional claim, and the California courts will still consider the merits, as long as the defendant can demonstrate that he wanted to use additional challenges and was dissatisfied with the jury composition — in other words, that the error had some prejudicial effect on the rights of the defendant. See Caro, 46 Cal.3d at 1047, 251 Cal.Rptr. 757, 761 P.2d 680 (defendant cannot show prejudice when he made no objection and gave no indication of dissatisfaction with the jury); People v. Crowe, 8 Cal.3d 815, 106 Cal.Rptr. 369, 506 P.2d 193, 204-05 (1973) (no prejudice when defense attorney indicated satisfaction with jury). However, in Vansickel's case, the California court applied a different prejudice standard, one that required that the petitioner demonstrate that the denial of peremptory challenges affected the outcome of his trial. Cf. People v. Johnson, 6 Cal.4th 1, 23 Cal.Rptr.2d 593, 859 P.2d 673, 682 (1993) (barring any claim based on improper denial of peremptory challenge when defendant failed to object); Buckley v. Chadwick, 45 Cal.2d 183, 288 P.2d 12, 23 (1955) (applying miscarriage of justice standard when plaintiff improperly denied peremptory challenge). Unless a procedural bar rule is "strictly or regularly followed” by the state courts, a federal court should not apply it to foreclose review of a petitioner's claim. Hathorn v. Lovorn, 457 U.S. 255, 263, 102 S.Ct. 2421, 72 L.Ed.2d 824 (1982) (quoting Barr v. City of Columbia, 378 U.S. 146, 149, 84 S.Ct. 1734, 12 L.Ed.2d 766 (1964)). Moreover, in this case, the state court considered the merits of Vansickel’s claim, finding that his right to peremptory challenges was violated but that he could not demonstrate an effect on the jury’s verdict. State court consideration of the merits of a defendant’s claim means that there has been no procedural bar applied. See Ylst v. Nunnemaker, 501 U.S. 797, 801, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991) (if the last state court reaches the merits of a federal claim, there is no procedural bar). In this case, the state court considered Vansickel's claim and rejected it on the merits, concluding that he could not demonstrate prejudice. This weighs heavily against a finding of procedural default. See McKenna v. McDaniel, 65 F.3d 1483, 1488-89 (9th Cir.1995) (state court consideration of merits in applying rule allowing consideration of certain constitutional issues negates “independence” of state rule); Brecheen v. Reynolds, 41 F.3d 1343, 1354 (10th Cir.1994) (review of claim for fundamental error renders stale rule not independent).

. However, courts are not in agreement on this issue. In a case decided almost simultaneously with its decision in McGurk, indeed only six days earlier, the Eighth Circuit reached a contrary result. In Young v. Bowersox, 161 F.3d 1159, 1998 WL 834365 (8th Cir. Dec.4, 1998), the court held that a defendant whose lawyer failed to object to racially discriminatory peremptory challenges was required to demonstrate a reasonable probability that the result of his trial would have been different if counsel had raised the objection. Id. at *2. Neither the Young court nor the opinion on which it relied, Wright v. Nix, 928 F.2d 270, 273 (8th Cir.1991) (in dicta, stating that defendant must demonstrate actual effect on result when counsel failed to object to discriminatory use of peremptory challenges), addressed or even acknowledged the practical question posed by its holding: how could a petitioner possibly make such a showing in a case involving jury composition error? The Eleventh Circuit has also required a defendant to demonstrate a reasonable probability that the result of the proceeding would have been different if counsel had been competent, even in cases in which counsel's error affected the composition of the jury itself. Jackson v. Herring, 42 F.3d 1350, 1360-62 (11th Cir.1995) (attorney failed to raise Swain objection). It, too, failed to consider the critical question of how a defendant can make a showing of prejudice in such a case.