Carrera v. Ayers

An appellant fails Strickland (which requires "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance") when defense counsel does not bring a Wheeler objection to challenge a prosecutor's preemptory challenge.

While on trial for murder, Carrera's defense counsel failed to raise objections after the prosecutor used six peremmptory challenges to strike six qualified potential Hispanic jurors. Two Hispanics were ultimately jurors and one was an alternate.  Carrera was convicted of murder and sentenced to death. Carrera appeals the district court's "denial of his petition for a writ of habeas corpus for ineffective assistance of counsel." The Ninth Circuit applied the Strickland test, and in regards to the first prong, finds that Carrera "failed to carry his burden in proving his defense counsel's performance was deficient, we need not and do not address the [second] prejudice prong." The Ninth Circuit reasoned since Batson, which held that "the use of peremptory challenges to exclude jurors based solely on their race is a violation of the Equal Protection Clause of the Fourteenth Amendment, was not decided until three years after the trial... it does not apply retroactively on federal habeas review."  Appellant's counsel's performance must be judged based on the law and "prevailing legal standards" that were in place during his trial in 1983. Therefore, the  Ninth Circuit holds that in California in 1983, the defense counsel's representation did not fall below an "objective standard or reasonableness" when she failed to make a "Wheeler motion to discharge the venire because of the prosecutor's claimed group-based preemptory challenges." The Ninth Circuit reasoned that "reasonable counsel might have declined to make a Wheeler motion" under the circumstances because a review of the voir dire transcript demonstrated that counsel "had good reason not to being a Wheeler motion."