Even though defense counsel was excluded from the portion of a Batson hearing where the prosecutor was allowed to explain peremptory strikes, this alleged error was harmless under Brecht, the U.S. Supreme Court held June 18 in Davis v. Ayala. 

The Court reversed a grant of habeas relief by the Ninth Circuit on grounds that that court misapplied “basic rules regarding harmless error” in federal habeas corpus.


Hector Ayala was convicted of a triple murder and sentenced to death.

At his trial, the prosecution used seven of its peremptory challenges to strike all African-Americans and Hispanics from the jury.  Ayala objected to the strikes under Batson.

The prosecution asked to reveal the reasons for the strikes outside the presence of the defense so as not to disclose “trial strategy.”  The trial court granted the request, and concluded that the prosecutor’s strikes were race-neutral.

On direct appeal, the California Supreme Court held that excluding defense counsel from the Batson hearing violated state law, and may have violated federal due process, as well.  But the court concluded that the error was harmless beyond a reasonable doubt under Chapman.

Ayala then sought federal habeas corpus relief.

The district court held that the state court’s finding of harmlessness was not contrary to or an unreasonable application of clearly established federal law, and could not be overturned under the Antiterrorism and Effective Death Penalty Act (AEDPA).

The Ninth Circuit reversed.  It applied the Brecht test “without regard for the state court’s harmlessness determination,” and applied a “complicated formulation” of the test to Ayala’s claims.


The Supreme Court reversed the Ninth Circuit in a 5-4 opinion.

The Court emphasized that it was not deciding whether Ayala’s federal constitutional rights were violated by the exclusion of his defense counsel from the Batson hearing. 

“We assume for the sake of argument that Ayala’s federal rights were violated, but that does not necessarily mean that he is entitled to habeas relief,” the Court said.  Relief is available in federal habeas “only if the prosecution cannot demonstrate harmlessness.”

Reviewing the law of harmless error, the Court stated that on direct appeal, the test of whether a federal constitutional error is harmless is the Chapman standard of whether an error is harmless beyond a reasonable doubt.  But in collateral habeas proceedings, the test is different for reasons of finality, comity and federalism. 

Federal habeas petitioners are not entitled to relief based on trial court error unless they meet the Brecht standard of “actual prejudice,” the Court said.  “Under this test, relief is proper only if the federal court has grave doubt about whether a trial error of federal law had substantial and injurious effect or influence in determining the jury’s verdict.”

The Court held that the Ninth Circuit was wrong in concluding that the state court’s harmlessness determination had no significance under Brecht.  The Brecht standard “subsumes” the requirements that 28 U.S.C. 2254(d) imposes when a habeas petitioner contests a state court’s determination that a constitutional error was harmless under Chapman, the Court said. 

Under 2254(d), a federal court cannot grant habeas relief unless the state court’s resolution of a claim was contrary to or involved an unreasonable application of clearly established federal law, or was based on an unreasonable determination of the facts.

Ayala’s claim was an adjudication on the merits by the state court.  As such, “AEDPA’s highly deferential standards kick in,” the Court said.  “When a Chapman decision is reviewed under AEDPA, ‘a federal court may not award habeas relief under Sec. 2254 unless the harmlessness determination itself was unreasonable.” 

The Ninth Circuit “misunderstood the role of a federal court in a habeas case,” the Court said.  “The role of a federal habeas court is to ‘guard against extreme malfunctions in the state criminal justice systems,’ … not to apply de novo factual findings and to substitute its own opinions for the determination made on the scene by the trial judge.”

The Court analyzed the reasons for the prosecutor’s strikes and ruled “that any error was harmless with respect to all seven strikes.” 

The majority’s opinion followed a trend of reversing the Ninth Circuit’s grants of habeas relief.