- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Habeas Corpus
- Date Filed: 11-06-2012
- Case #: 08-99007
- Judge(s)/Court Below: En banc; Circuit Judge W. Fletcher for the Court; Chief Judge Kozinski and Circuit Judges Fisher, Berzon, Tallman, Clifton, Ikuta, N. R. Smith, Murguia, and Christen; Dissent by Circuit Judge Pregerson
- Full Text Opinion
Constantino Carrera was convicted of first degree murder and was sentenced to death for killing a white couple during a robbery. The California Supreme Court affirmed the conviction, and Carrera filed his habeas corpus petition in 1990. The federal district court set aside Carrera’s death sentence because the court found several instances of prosecutorial misconduct. The district court denied Carrera’s ineffective assistance of counsel claim for not making a Wheeler objection. Carrera appealed arguing that the failure to make the objection was ineffective assistance of counsel and a violation of his Sixth Amendment right to counsel. The Ninth Circuit evaluated the ineffective assistance of counsel claim under the Strickland standard and concluded that Carrera did not carry his burden of showing prejudice because his counsel failed to make a Wheeler objection. In 1990, the Wheeler objection required a showing of a prima facie case for unlawful discrimination. The record suggested that there was only one problematic peremptory challenge made by the prosecution where there was no obvious non-discriminatory reason. However the other five challenges of Hispanic-surnamed venirepersons were not problematic, two other Hispanic-surnamed persons were selected on the jury, and one Hispanic-surnamed person was seated as an alternate. The Ninth Circuit said that the Wheeler objection required a stronger showing to establish a prima facie case for unlawful discrimination. The Ninth Circuit said that Carrera failed to show that his counsel’s failure to object to the prosecutor’s peremptory strikes was prejudicial. Therefore, the Ninth Circuit concluded that Carrera did not show a “reasonable probability” that he would have succeeded under Wheeler and did not establish under Strickland a claim for ineffective assistance of counsel. AFFIRMED.