9th Cir.
08-99007
The court of appeals, sitting en banc, affirmed a district court judgment denying a habeas corpus petition. The court held that under the Wheeler standard that applied at the time of a capital defendants conviction, he could not show prejudice at trial from his purportedly ineffective counsels failure to object to the prosecutors use of peremptory challenges to Hispanic-surnamed venirepersons where only one of the challenges reflected no obvious non-discriminatory basis. The court held further that the defendant could not show prejudice on the theory that an objection would have prevailed on direct appeal where the governing standard at the time was Wheeler rather than Batson.
