Metropolitan News-Enterprise


Wednesday, November 7, 2012


Page 1


Panel Upholds Death Sentence in Mojave Motel Murders


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday upheld the death sentence imposed on a man convicted in the 1982 murders of a couple who managed a motel in the Kern County town of Mojave.

In a 10-1 en banc ruling, the court held that Chief U.S. District Judge Anthony W. Ishii of the Eastern District of California did not err in denying Constantino Carrera’s habeas corpus petition, which was based on claimed ineffective assistance of counsel.

Even if Carrera’s trial lawyer was deficient in failing to raise a claim of racial bias in jury selection under People v. Wheeler, 22 Cal. 3d 258 (Cal. 1978), Judge William A. Fletcher wrote for the appeals court, there was no prejudice. Carrera could not, based on the state of the law in 1990 when his conviction was affirmed on direct appeal, show a “reasonable probability” that a Wheeler claim would have succeeded.

Carrera was tried in 1983 for the murders of Carol and Jack Hayes, whose bodies were found in their living quarters next to the motel office. Carrera’s accomplice, a juvenile, was tried separately and sentenced to 50 years to life in prison.

Carrera, 20 years old at the time of the murders, was tried for first degree murder with special circumstances of robbery and multiple murders.

No Motion

During voir dire, the prosecutor used peremptory challenges to strike six of eight  Spanish-surnamed venire members, while striking only 11 of 41 non-Spanish-surnamed whites. Carrera’s attorney did not move to quash the venire under Wheeler.

Batson v. Kentucky, the federal analogue to Wheeler, was not decided until 1986.

Carrera was found guilty of both murders and sentenced to death. His conviction was affirmed by the state Supreme Court in 1990, the justices unanimously concluding that errors by the trial judge were harmless.

His habeas corpus petition was denied by Ishii in 2008. A three-judge Ninth Circuit panel ruled last year, 2-1, that the standard of practice in Kern County in 1983 would not have required counsel to make a Wheeler motion under the circumstances of Carrera’s trial.

The Ninth Circuit granted en banc rehearing, and none of the three judges who heard the case last year were on the panel that decided the case yesterday.

Fletcher focused on the prejudice prong of the ineffective assistance framework of Strickland v. Washington, 466 U.S. 668 (1984), rather than the deficient-performance prong.

The judge reasoned that of the six challenges to Spanish-surnamed jurors, five were clearly supported by race-neutral reasons—one was the defense attorney’s mail carrier, one “appeared bitter about being called to jury service,” one worked at the same detention facility where the co-defendant was detained, one had a son with a criminal record, and one expressed reservations about the death penalty.

‘Problematic’ Challenge

One of the challenges, Fletcher acknowledged was “problematic”—the stricken venire member had a friend who had been charged with drunk driving, but did not otherwise give answers that would distinguish his responses from those of unstricken white venire members.

“But Wheeler required a stronger showing to establish a prima facie case,” the jurist wrote. “Not only were five of the six challenges to Hispanic-surnamed venirepersons relatively unproblematic; further, two Hispanic-surnamed persons were seated on the jury, and one Hispanic-surnamed person was seated as an alternate.”

To establish a prima facie case of discrimination on direct appeal, Fletcher explained, Carrera would have had to show a “strong likelihood” that a potential juror was stricken for racial reasons, because Johnson v. California, 545 U.S.162 (2005), which imposes a less-demanding standard, had not yet been decided.

Chief Judge Alex Kozinski and Judges Raymond C. Fisher, Marsha S. Berzon, Richard C. Tallman, Richard R. Clifton, Sandra Ikuta, N. Randy Smith, Mary H. Murguia, and Morgan Christen concurred in the opinion.

Judge Harry Pregerson dissented. Failure to raise the Wheeler issue, he argued, was both deficient and prejudicial.

Clear Violation

The striking of prospective juror Lawrence Martinez was not only “problematic,” Pregerson said, it was a clear Wheeler violation. A single such violation is sufficient for reversal, the judge said.

He also argued that other excusals did not appear to be race-neutral. The woman described by Fletcher as bitter, Pregerson argued, was merely sorry that she would be missing a special event at the school where she taught special education.

The woman who worked at the detention facility was a housekeeper who did not know Carrera’s co-defendant and was unfamiliar with the case, Pregerson said. One potential juror did have a son with a criminal record, the dissenting jurist acknowledged, but that may have been a pretext to strike her, given that he was only arrested once, and it was 15 years earlier.

And as for the woman who expressed reservations about the death penalty, Pregerson said, those reservations were not stronger than those of a white juror who was seated.

The case is Carrera v. Ayers, 08-99007.


Copyright 2012, Metropolitan News Company