What is the test for establishing that the failure of a state counsel to submit additional peremptory challenges affected the outcome of a jury trial?

Instead of being required to demonstrate an effect on his verdict, Vansickel should, under our precedent, be required to establish only "that his state counsel would have challenged another juror or jurors had he been aware of the remaining challenges." Hines v. Enomoto, 658 F.2d 667, 674 (9th Cir.1981). This showing would establish that his right was actually impaired by demonstrating that he would have used additional peremptory challenges if provided the opportunity. ²

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Here, although Vansickel did not receive the jury he was entitled to and was thereby deprived of his right to a fair trial, the majority nonetheless holds that in view of his counsel's procedural default our rules do not apply and that in order to establish prejudice Vansickel must prove that his counsel's error actually affected the outcome of the proceeding. ³ However, application of such an actual prejudice standard constitutes an impossibility for defendants. Moreover, it is not permissible to require application of that standard when the error is one that we have clearly stated is not susceptible of actual prejudice analysis. Because we have held that there is no way to ascertain the impact on the result of a trial, denial of due process must be presumed prejudicial. See Riggins v. Nevada, 504 U.S. 127, 137, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992) (presuming prejudice when "[e]fforts to prove or disprove actual prejudice from the record before us would be futile, and guesses whether the outcome of the trial might have been different ... would be purely speculative").