Hector Juan Ayala v. RONALD DAVIS, Warden

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HECTOR JUAN AYALA,
Petitioner-Appellant,
v.
RONALD DAVIS, Warden,
Respondent-Appellee.
No. 09-99005
D.C. No.
3:01-CV-01322-IEG-PLC
OPINION
On Remand From The United States Supreme Court
Filed February 11, 2016
Before: Stephen Reinhardt, Kim McLane Wardlaw,
and Consuelo M. Callahan, Circuit Judges.
Per Curiam Opinion

-- 1 of 4 --

AYALA V. DAVIS 2
SUMMARY*
Habeas Corpus
On remand from the Supreme Court, the panel affirmed
the district court’s denial of a habeas corpus petition in a case
in which the petitioner sought relief based on a violation of
the Vienna Convention.
The panel held that under AEDPA’s deferential review,
the California Supreme Court’s conclusion that the petitioner
did not establish prejudice from the state’s failure to give
consular notice in violation of the Vienna Convention was not
objectively unreasonable.
COUNSEL
Robin L. Phillips and Anthony J. Dain of Procopio, Cory,
Hargreaves & Savitch LLP, San Diego, California, for
Petitioner-Appellant.
Robin H. Urbanski, Deputy Attorney General of California,
San Diego, California, for Respondent-Appellee.
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

-- 2 of 4 --

AYALA V. DAVIS 3
OPINION
PER CURIAM:
We declined to address Ayala’s Vienna Convention claim
in our previous opinion because we granted relief based on
his Batson claims. Ayala v. Wong, 756 F.3d 656, 662 n.2 (9th
Cir. 2014). The Supreme Court reversed our decision
regarding those claims and remanded for further proceedings.
Davis v. Ayala, 135 S. Ct. 2187 (2015). We now affirm the
district court’s denial of Ayala’s Vienna Convention claim
and its denial of the writ of habeas corpus.
A state prisoner such as Ayala faces an array of obstacles
to obtaining federal habeas relief for a state’s failure to give
consular notice in violation of the Vienna Convention. See
Medellin v. Dretke, 544 U.S. 660, 664–66 (2005). The state
court denied Ayala’s Vienna Convention claim because,
among other reasons, he did not establish prejudice. In re
Ayala, S081267, 2000 Cal. LEXIS 6833, at *1 (Aug. 30,
2000) (citing Breard v. Greene, 523 U.S. 371, 377 (1998)).
Ayala does not dispute that prejudice is required. Thus, our
conclusion that the state court’s no prejudice finding was not
“objectively unreasonable” precludes granting relief in this
AEDPA case. Davis, 135 S. Ct. at 2198.
In Breard, the Supreme Court observed that no showing
of prejudice “could even arguably be made” in that case as a
result of the violation of the Vienna Convention. 523 U.S. at
377. Rather, it found that petitioner’s claim that he would
have accepted a guilty plea to avoid the death penalty if he
had been given advice by the consulate was “far more
speculative than the claims of prejudice courts routinely
reject” in ineffective assistance of counsel cases. Id. Ayala

-- 3 of 4 --

AYALA V. DAVIS 4
claims that if he had been afforded consular notice, Mexican
officials would have sought to persuade the district attorney
to reconsider his decision to seek the death penalty and that
these officials have sometimes had success in this regard in
the past. Ayala, however, did not present any evidence
suggesting that the Mexican Consulate would have succeeded
in this case, particularly in light of the facts of the crime at
issue. Ayala also claims that the Consulate could have
secured a “critical guilt-phase witness,” but gives no inkling
of who this witness is or what he would have said. Finally,
Ayala contends that the Consulate would have sent an
observer to his trial and given him legal advice. Ayala was
represented at trial, however, by two attorneys whose
performance has not been called into question.
Although Ayala’s prejudice argument is stronger than
Breard’s, under AEDPA’s deferential review it was not
unreasonable for the California Supreme Court to conclude
that he has not shown sufficient prejudice to prevail on his
Vienna Convention claim.
The district court’s denial of Ayala’s writ of habeas
corpus is affirmed.
AFFIRMED.

-- 4 of 4 --