CERT GRANTED 1/13/12 and the Supreme Court reversed on AEDPA deference grounds. 133 S. Ct. 1088 (2013).
Either way, the Ninth Circuit concluded, the state court was not an adjudication against Ayala on the merits of his claim of federal constitutional error, and therefore § 2254(d) does not require deference to the state court’s decision, 756 F.3d at 663-70. Applying de novo review, the Ninth Circuit held the error wasn’t harmless and granted relief.The state’s petition for certiorari (at 8-9, 15-18) insists the Ninth Circuit contravened Harrison v. Richter, 131 S. Ct. 770 (2011), and Johnson v. Williams, 133 S. Ct. 1088 (2013), which applied a rebuttable presumption that, even if the state court is silent with respect to a fairly presented federal claim, the claim was adjudicated on the merits. The state claims this presumption should apply when the state court denies relief on a federal claim based on harmless error, and other federal circuits concur in that approach, e.g., Littlejohn v. Trammell, 704 F.3d 817, 850 n.17 (10th Cir. 2013).