FOR PUBLICATION



### UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

M ARIA D EL R OSIO A LFARO
, Petitioner

- Appellee

,

v.

D EBORAH K. J OHNSON
, Respondent

- Appellant. No. 15

- 55337

D.C. No.
2:07

- cv

- 07072

- CJC

OPINION

Appeal from the United States District Court
For the Central District of California Cormac J. Carney, District Judge, Presiding

Argued and Submitted June 14, 2017 Seattle, Washington

Filed July 14, 2017

Before: JAY S. BYBEE, MILAN D. SMITH, JR., and MORGAN CHRISTEN, Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.2 A LFARO V

. J OHNSON

SUMMARY *

Habeas Corpus

The panel reversed the district court’s grant of Maria Alfaro’s habeas corpus relief on her claim, based on Jones v. Chappell , 31 F. Supp. 3d (C.D. Cal. 2014), rev’d sub nom.

, Jones v. Davis , 806 F.3d 538, 541 (9th Cir. 2015), that California’s post

- conviction system for administering the death penalty violates the Eighth Amendment’s prohibition against cruel and unusual punishment.

The panel held that Alfaro’ s claim is barred by her failure to exhaust available state court remedies, and is untimely under Fed. R. Crim. P. 15(c).

The panel held that Alfaro is not excused from her failure to exhaust the claim. The panel wrote that even assuming futility persist s as a potential exception to AEDPA’s exhaustion requirement, it does not excuse Alfaro’s failure
to exhaust her state court remedies in this instance in which the California Supreme Court has not definitively rejected
the claim she now raises in her habea s petition. The panel rejected Alfaro’s argument that her failure to exhaust should be excused because requiring her to return to state court would compound the delay she has already suffered. The panel explained that Alfaro will not be prejudiced by

app lication of the exhaustion requirement because so long as her petition is pending in state court, the constitutional

* This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.A LFARO V

. J OHNSON 3

violation of which she complains (unconstitutional imposition of the death penalty) will not take place.

The panel held that neither rel ation back under Rule 15 nor the emergence of new facts renders Alfaro’s claim, which was filed as part of her Third Amended Petition more than a year after her conviction became final, timely. Because Alfaro has not previously alleged facts regarding

sys temic delay in California’s post

- conviction death penalty process, the panel held that her claim does not relate back to earlier, timely

- filed claims. The panel concluded that the effort required to aggregate the publicly available information upon which her instant claim relies rendered that information discoverable through the exercise of due diligence.

COUNSEL

Robin Helene Urbanski (argued), Deputy Attorney General; James William Bilderback II, Supervising Deputy Attorney General; Michael J. Mongan , Deputy Solicitor General; Julie L. Garland, Senior Assistant Attorney General; Gerald A. Engler, Chief Assistant Attorney General; Edward C. DuMont, Solicitor General; United States Attorney’s Office, San Diego, California ; for Respondent

- Appellant.

Mic hael David Weinstein (argued) and Celeste Bacchi

, Deputy Federal Public Defenders; Hilary Potashner, Federal Public Defender, Office of the Federal Public Defender, Los Angeles, California ; for Petitioner

- Appellee.4 A LFARO V

. J OHNSON

OPINION

M. SMITH, Circuit Judge:

Deborah Johnson, Warden of the Central California Women’s Facility, appeals the district court’s grant of
Petitioner

- Appellee Maria Alfaro’s petition for habeas corpus relief. We hold that Alfaro’s claim is barred by her
failure to exhaust available state court remedies, and is untimely under Federal Rule of Civil Procedure 15(c). We therefore reverse the district court’s grant of Alfaro’s petition.

FACTUAL AND PROCEDURAL BACKGROUND

In 1992, a jury convicted Alfaro of first degree murder, burglary, and ro bbery, and also found true the special
circumstance that she committed the murder in the course of a first degree burglary and robbery. People v. Alfaro , 41 Cal. 4th 1277, 1283, 1288 (2007). After an initial penalty

- phase jury failed to reach a verdict, a second penalty

- phase jury
sentenced Alfaro to death. Id. at 1292, 1294

.

On November 4, 1999, Alfaro filed a direct appeal of her conviction and sentence, asserting 15 separate grounds for relief. The California Supreme Court affirmed Alfaro’s
convictio n and sentence on August 6, 2007. See id. at 1282.

Alfaro filed her first state petition for habeas corpus relief on July 31, 2001, approximately two months after the close of briefing in her direct appeal. The California Supreme Court denied Alfaro’s pe tition in a summary order on November 28, 2007. Alfaro then filed a second state habeas petition on March 2, 2009, asserting 32 additional claims. The California Supreme Court again denied Alfaro’s petition in a summary order, issued on June 12, 2013.A LFARO V

. J OHNSON 5

Al faro filed her initial federal habeas petition in the U.S.
District Court for the Central District of California on August 1, 2008. She subsequently filed her First Amended Petition on March 2, 2009, and her Second Amended Petition on August 12, 20 13.

On July 16, 2014, the district court issued an opinion in an unrelated case, granting relief for a habeas petitioner on the ground that “systemic delay” in the administration of California’s death penalty renders any ensuing executions arbitrary, and thus in violation of the Eighth Amendment. Jones v. Chappell , 31 F. Supp. 3d 1050, 1053 (C.D. Cal. 2014), rev’d sub nom.

, Jones v. Davis , 806 F.3d 538, 541 (9th Cir. 2015). Alfaro sought leave to amend her habeas petition to add a claim (Claim 29) based on the c ourt’s findings and holding in Jones . The State opposed Alfaro’s motion to amend on the grounds that (1) Alfaro failed to exhaust Claim 29 in state court, (2) Claim 29 asserted a “new rule,” the application of which is barred on collateral review by the S upreme Court’s decision in Teague v. Lane , 489 U.S. 288 (1989), and (3) her amendment was untimely under
Federal Rule o f Civil Procedure 15(c)(1)(B).

On September 12, 2014, the district court granted Alfaro leave to amend her petition. The district court acknowledged that Alfaro had failed to exhaust Claim 29 in state court, but
cited its order in Jones stating that “[r]equiring [the petitioner] to return to the California State Court to exhaust [her] claim would only compound the delay that has already plagued [her] post

- conviction review process,” and held that Alfaro therefore need not exhaust her claim. In regard to Teague

, the district court again cited to its order in Jones to hold that Alfaro’s claim did not present a “new rule,” and therefore was not barred by Teague . Finally, the district court found that Claim 29 related back to Alfaro’s timely

-6 A LFARO V

. J OHNSON

filed claims because she “set forth the common core of operative facts in h er original federal Petition.”

Alfaro filed her Third Amended Petition (TAP) on August 8, 2014. On February 5, 2015, the district court granted Alfaro relief on Claim 29: It held that California’s
post

- co nviction system for administering the death penalty violates the Eighth Amendment’s prohibition against cruel and unusual punishment, and it therefore vacated Alfaro’s capital sentence. Pursuant to Federal Rule of Civil Procedure 54(b), the district court determined that there was no just reason for delay in the entry of final judgment, and entered final judgment as to Claim 29 on February 10, 2015. The State timely filed its appeal of the district court’s judgment.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction over this appeal pursuant to

28 U.S.C. §§ 1291 and 2253(a). We review de novo the
district court’s exhaustion determination. Wooten v.
Kirkland , 540 F.3d 1019, 1023 (9th Cir. 2008). We similarly
review de novo the district court’s rela tion

- back
determination. Williams v. Boeing Co. , 517 F.3d 1120, 1132 (9th Cir. 2008). 1

1 Alfaro’s answering brief suggests that the relevant standard of
review for relation

- back determinations is abuse of discretion. Alfaro conflates the review standard applied to a district court’ s ruling on a motion to amend with the standard for reviewing whether a claim actually relates back once leave to amend has been granted. In the latter scenario, with which we deal here, we exercise de novo review.
Williams , 517 F.3d at 1132 n.8.A LFARO V

. J OHNSON 7

ANALYSIS

Alfaro Is Not Excused from Her Failure to Exhaust
Claim 29

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104

- 132, 110 Stat. 12 14, requires a plaintiff to “exhaust[] the remedies available in the courts of the State” before she may obtain federal habeas
relief. 28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement is rooted in the principle of comity, and “reduces friction between the state and federal court systems by avoiding the unseem[liness] of a federal district court’s overturning a state court conviction without the state courts having had an opportunity to correct the constitutional
violation in the first instance.” O’S ullivan v. Boerckel

, 526 U.S. 838, 845 (1999) (alteration in original) (internal quotation marks omitted). Nevertheless, a habeas petitioner may be excused from exhausting a given claim where (1) “there is an absence of available State corrective

process, ” or (2) “circumstances exist that render such process ineffective to protect the rights of the applicant.”

28 U.S.C. § 2254(b)(1)(B)(i)‒(ii). Neither of these exceptions to AEDPA’s exhaustion requirement applies in
Alfaro’s case.

Under the exception con tained in § 2254(b)(1)(B)(ii), which applies when “circumstances exist that render such process ineffective to protect the rights of the applicant,” a petitioner may seek redress in federal court “if the [state] corrective process is so clearly deficient a s to render futile any effort to obtain relief.” Duckworth v. Serrano , 454 U.S. 1, 3 (1981) (emphasis added). In Sweet v. Cupp , 640 F.2d 233 (9th Cir. 1981), we expressly adopted a formulation of the “futility doctrine” that excuses a petitioner’s failur e to exhaust state remedies “if the highest state court has recently8 A LFARO V

. J OHNSON

addressed the issue raised in the petition and resolved it adversely to the petitioner, in the absence of intervening United States Supreme Court decisions on point or any other
indicatio n that the state court intends to depart from its prior
decisions.” Id . at 236. We reasoned that under such circumstances, requiring exhaustion would not further the purpose of comity, but rather “would only create an unnecessary impediment to the prompt determination of individuals’ rights.” Id

.

The Supreme Court’s decision in Engle v. Isaac

, 456 U.S. 107 (1982) arguably called Sweet ’s reasoning into
doubt. Engle considered whether a state’s procedural bar on appellate consideration of a claim permitte d a petitioner to raise that claim on federal habeas review, despite the petitioner’s failure to raise it below. Id. at 125. The Engle Court observed that “[t]he state appellate courts have not had
a chance to mend their own fences and avoid federal
intr usion,” and “reaffirm[ed], therefore, that any prisoner bringing a constitutional claim to the federal courthouse after a state procedural default must demonstrate cause and actual prejudice before obtaining relief.” Id . at 129. A petitioner “may not byp ass the state courts simply because [s]he thinks they will be unsympathetic to the claim.” Id . at 130.

The State argues that Engle effectively overruled Sweet ’s endorsement of the futility doctrine such that the California Supreme Court’s potentially adverse view of Alfaro’s claim does not excuse her from exhausting available state court
remedies. See Noltie v. Peterson , 9 F.3d 802, 805 (9th Cir. 1993) (descri bing how Engle called into question the “short

lived ‘futility doctrine’ to avoid procedural default”). 2 We

2 W e no te, however, that we have yet to expressly overrule Sweet

. On the contrary, we have cited to it favorably post

- Engle

. See, e.g.

,A LFARO V

. J OHNSON 9

need not, however, rule on the continued viability of the rule
from Sweet : Even assuming that a state supreme court’s prior rejection of a petition er’s claim excuses that petitioner’s failure to exhaust, the circumstances of Alfaro’s case do not support application of this exception. Alfaro argues that the California Supreme Court rejected a claim identical to hers
in People v. Seumanu , 61 Cal. 4th 1293 (2015). There the California Supreme Court considered a defendant’s direct appeal asserting the claim, based upon the district court’s opinion in Jones , that “systemic delay in resolving postconviction challenges to death penalty judgments has
led to a constitutionally intolerable level of arbitrariness in the implementation of the penalty.” Id . at 1368. The California Supreme Court held that, “assuming such a claim exists,” the petitioner had failed to provide sufficient evidence to prevail. Id

. The court acknowledged that a

“

Jones claim” differs from a typical delay

- based “ Lackey ”
claim. Id . at 1372; see also Lackey v. Texas , 514 U.S. 1045 (1995) (Stevens, J., mem. op. respecting denial of cert.). While the California courts have consistently r ejected Lackey claims, which assert that “delay in deciding postconviction challenges in capital cases constitutes cruel and unusual punishment” because it unmoors the

Gardner v. Pitchess , 731 F.2d 637, 640 (9th Cir. 1984). Furthermore, the Supreme Court has at least suggested that futility might still present a viable excuse to a petitioner’s failure to exhaust post

- Engle

. See Lynce
v. Mathis , 519 U.S. 433, 43 6 n.4 (1997) (noting the petitioner’s failure to exhaust, but stating that the Court was “satisfied

. . . that exhaustion
would have been futile” because the Florida Supreme Court had recently rejected the same claim being raised by the petitioner and “Respondents [had] not suggested any reason why the Florida courts would have decided petitioner’s case differently”). Finally, Engle de alt with a petitioner’s attempt to evade a state procedural bar, rather than failure to exhaust. While these obstacles to federal habeas relief are related, they are nevertheless distinct concepts. Thus, while the reasoning of Engle is
relevant to consid ering excuses to exhaustion, it is not precisely on point.10 A LFARO V

. J OHNSON

punishment from its legitimate penological purposes, California courts have not previous ly considered whether the
arbitrariness purportedly created by systemic delay might independently support an Eighth Amendment claim.

Seumanu , 61 Cal. 4th at 1369

– 71. The California Supreme Court held, however, that even if a Jones claim could hypothetica lly succeed, the “defendant ha[d] not, on [that] record, demonstrated that systemic delays have produced arbitrariness that is violative of the Eighth Amendment.” Id

. at 1374. It therefore rejected the defendant’s claim, and stated that “[a]ny such claim is more appropriately presented in a petition for habeas corpus, where a defendant can present necessary evidence outside the appellate record.” Id

. at 1375.

Thus, the Seumanu court did not foreclose the possibility
of a Jones

- type claim succeeding on th e merits. On the contrary, the court appears to invite future habeas petitioners to raise such a claim via a state habeas petition. See id

. Alfaro cites to the California Supreme Court’s brief
statement in People v. Clark , 63 Cal. 4th 522 (2016),
reiter ating its rejection of Lackey claims and noting that it has “also recently rejected a variant of this constitutional argument as raised in Jones v. Chappell ,” id . at 645 (citing

Seumanu , 61 Cal. 4th 1293), as indicating the California Supreme Court’s forec losure of Jones claims. However, the
Clark court offered no analysis of Seumanu or Jones beyond
its accurate

— albeit somewhat incomplete

— observation that

Seumanu rejected a Jones claim. The Clark court did not amend or expand upon the express statement in Seumanu that, while the claim in that case could not succeed, a similar
type of claim could potentially be considered on state habeas
review.A LFARO V

. J OHNSON 11

The California Supreme Court admittedly “sent conflicting signals” regarding future delay

- based claims,

Jones , 80 6 F.3d at 555 (Watford, J., concurring), insofar as it stated that even assuming the facts presented to the district
court in Jones were true, it would not grant relief. Seumanu

, 61 Cal. 4th at 1375. Nevertheless, in light of the Seumanu court’s consistent emphasis on the insufficiency of the record and its apparent willingness to consider a Jones

- type claim on habeas review, the California Supreme Court has not definitively rejected the claim Alfaro now raises in her petition for habeas relief. Therefore, even assuming that futility persists as a potential exception to AEDPA’s exhaustion requirement, it does not excuse Alfaro’s failure
to exhaust her state court remedies in this instance.

Alfaro alternatively argues that her failure to e xhaust the
available state remedies should be excused because “requiring Alfaro to return to state court would compound the delay she has already suffered.” We have held that “since excessive delay in obtaining an appeal may constitute a due process viola tion, a prisoner need not fully exhaust [her] state remedies if the root of [her] complaint is [her] inability to do so.” Coe v. Thurman , 922 F.2d 528, 530

– 31 (9th Cir. 1990); see also Phillips v. Vasquez , 56 F.3d 1030, 1035 (9th Cir. 1995); Okot v. Calla han , 788 F.2d 631, 633 (9th Cir. 1986) (per curiam). This principle does not, however, justif y Alfaro’s failure to exhaust.

Unlike the petitioners in Coe

, Phillips , and Okot , the root of Alfaro’s complaint is not her inability to obtain timely
resolution of a challenge to her conviction. Rather, her claim asserts that system

- wide delays render the few executions that ultimately do occur arbitrary and without penological justification. Put differently, the ultimate harm she asserts is
not that a meritorio us claim will continue to go unaddressed12 A LFARO V

. J OHNSON

because of delay, it is that inordinate delay will render her future execution, if it ever occurs, arbitrary, and therefore
unconstitutional. 3 Thus, while asking the petitioner in Coe
to return to state court would only have compounded the injury complained of, here Alfaro will not be prejudiced by application of the exhaustion requirement: So long as her petition is pending in state court, the constitutional violation of which she complains (arbitrary, and therefor e unconstitutional, imposition of the death penalty) will not take place. See Jones , 806 F.3d at 555 (Watford, J., concurring) (“The only relief Jones seeks on this claim is
invalidation of his death sentence. There is no risk that he
will be executed be fore the California Supreme Court could rule on the merits of his claim. Thus, requiring Jones to pursue the remedies available to him in the California Supreme Court, even if that results in some additional period of delay, does not render the state corr ective process ‘ineffective.’”). The fact that Alfaro’s claim implicates delay in California’s post

- conviction process therefore does not excuse her failure to exhaust her present claim.

Alfaro’s Claim is Barred as Untimely under Federal Rule of Civil Procedure 15(c)

AEDPA imposes a one

- year statute of limitations on claims raised by petitions for habeas relief, which runs from “the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Alfaro’s

3 At oral argument, Alfaro’s counsel noted that Alfaro does have additional claims pertaining to the merits of her conviction that are going unaddressed as a result of delay. However, no such claims are before us on this appeal, nor does any prejudice she might suffer from the delay required to exhaust those claims excuse her failure to exhaust her present Eighth Amendment claim.A LFARO V

. J OHNSON 13

conviction became final on March 3, 2008. See Alfaro v. California , 552 U.S. 1245 (2008) (denial of pet. for cert.). Alfaro filed Claim 29 on August 8, 2014, as part of her TAP. Alfaro nevertheless argues that her claim should not be barred as untimely because it relates back to an earlier, timely

- filed claim, or alternatively because the facts underlying Claim 29 were not reasonably discoverable until within a year p rior to her TAP. The district court found that Alfaro’s claim related back to her initial, timely

- filed petition, and therefore did not address her contention regarding the discoverability of Claim 29’s predicate facts.
We find that neither relation back nor the emergence of new
facts renders Alfaro’s C laim 29 timely.

A habeas petition “may be amended or supplemented as provided in the rules of procedure applicable to civil actions.” 28 U.S.C. § 2242. Under Federal Rule of Civil Procedure 15(c), a petit ioner may add an otherwise untimely claim to her habeas petition if it relates back to a timely

- filed claim. Rule 15(c) provides, in relevant part, that an amendment relates back to a timely

- filed claim when the newly

- asserted claim “arose out of the cond uct, transaction, or occurrence set out” in the previous filing. Fed. R. Civ. P. 15(c)(1)(B). As the Supreme Court explained in Mayle v.
Felix , 545 U.S. 644 (2005), Rule 15(c) permits relation back only when new claims “arise from the same core facts as the timely filed claims, and not when the new claims depend upon events separate in both time and type from the originally raised episodes.” Id . at 657 (internal quotation marks omitted). Accordingly, we must consider whether Alfaro’s Eighth Amendment sy stemic delay claim shares “a common core of operative facts” with one of her timely

- filed
claims. Id . at 66 4.14 A LFARO V

. J OHNSON

Claim 29 asserts that “inordinate and unpredictable delay in California’s death penalty system leads to the arbitrary imposition of the death pen alty.” The alleged “arbitrariness” stems from the fact that, “for most [California capital inmates], systemic delay has made their execution so unlikely that the death sentence

. . . has been quietly transformed into one no rational jury or legislature co uld ever impose: life in prison, with the remote possibility of
death .” As this text demonstrates, the core of Alfaro’s claim is the “unlikeliness” and uncertainty created by “systemic delay.” But the relative likelihood of an inmate’s execution only bec omes apparent when viewing the system as a whole. The probability of a given outcome in any particular instance cannot be determined by considering that particular instance in a vacuum. Rather, context is required. Alfaro’s Claim 29 provides the necessa ry context by citing to the district
court’s order in Jones , which in turn relied on data regarding the overall percentage of death row inmates who have been executed since 1978, as well as additional statistics indicating pervasive delay in California’s a dministration of the death penalty. These core operative facts underlying Claim 29 provide the context necessary for alleging the statistical unlikeliness of any one prisoner facing execution, by illustrating the system

- wide delay that Alfaro alleges plag ues the California death penalty scheme.

Alfaro points to facts alleged in her earlier

- filed complaints regarding the procedural history of her own case, and the delay she has personally experienced, to argue that
Claim 29 relates back to those earlier fil ings. Such facts might perhaps support a delay

- based Lackey claim. They do not, however, suffice to support the Jones claim she now raises. The key distinguishing factor between Lackey and

Jones claims is that the latter concern systemic delay that

crea tes arbitrariness in executions. As explained above, noA LFARO V

. J OHNSON 15

one petitioner’s case can support such a claim on its own. System

- wide data is needed. Because Alfaro has not previously alleged facts regarding systemic delay in California’s post

- conviction death penalty process, her claim
does not relate back to her timely

- filed petition.

Alternatively, Alfaro argues that Claim 29 relates back
to Claim 27 of her Second Amended Petition. 4 Once again, however, Claim 27 and Claim 29 do not allege share a
common fac tual basis. Whereas Claim 29 concerns systemic delay in the administration of California’s death penalty, Claim 27 addresses systemic failures in the State’s conviction and sentencing process. Alfaro points to Nguyen v. Curry , 736 F.3d 1287 (9th Cir. 201 3) to argue that the difference in timing of claims (here, pre

- sentencing versus
post

- sentencing) does not preclude relation back. Her argument misses the point: The barrier to relation back in her case is not the differing times at which her claims arose , or the different legal grounds upon which they rest. Rather, it is the difference between their respective factual predicates.
The facts relevant to Claim 27 concern California’s death penalty statute and sentencing procedures. Nowhere does Claim 27 p oint to systemic data regarding the fate of
California inmates after they are sentenced to death.

Alfaro contends that, if Claim 29 does not relate back, it was nevertheless timely filed because the specific factual predicate upon which it rests “first bec ame discoverable through the ‘exercise of due diligence’ on June 1, 2014,” when exhibits were filed in support of the petitioner’s similar

4 Although Claim 27 is contained within a petition filed well past
th e one

- year limitation period, the parties agree that Claim 27 properly relates back to Alfaro’s timely

- filed petition.16 A LFARO V

. J OHNSON

claim in Jones . Alfaro points to data collected and filed by the Habeas Corpus Resource Ce nter (HCRC), including

the number of inmates without habeas corpus counsel as of June 2014, the annual number of habeas counsel appointments from 2008 to the present, the rate at which the California Supreme Court issues orders to show cause in habeas cases, the average length of t ime it takes for respondents to file responses to orders to show cause, and the number of fully briefed habeas cases awaiting decision,

as evidence that could not have been discovered through the exercise of due diligence prior to its having been filed in

Jones . While we acknowledge that Jones aggregated in an accessible manner the statistical information necessary to bring Alfaro’s Claim 29, we do not find that the underlying information’s previously diffuse format rendered it beyond

t he reach of diligent discovery.

As the Jones court’s opinion states, the appendix filed in Jones v. Chappell containing the status of individuals
sentenced to death in California since 1978

— including the number of inmates who have been executed, had their cases stayed, or die d in custody from causes other than execution, and the number who currently have habeas petitions pending
before either the federal or California courts

— “was compiled using publicly available information from the court dockets of the four federal judicial districts in California, the public docket of the California Supreme Court, and the [California Department of Corrections and Rehabilitation’s] Condemned Inmate List (July 2014) and List of Inmates Who Have Died Since 1978 (2014).” 31 F. Supp. 3d at 1069 n.4. In other words, HCRC compiled theA LFARO V

. J OHNSON 17

relevant facts into comprehensive charts to support Jones’ claim of systemic delay, but they did so using publicly available facts. The only sense in which the data relied upon by Jones

— and consequently by Alfaro

— co uld not have been discovered earlier through the “exercise of due diligence” is that statistics from 2014 would of course not have been available prior to that year. But the cited statistics appear to be updated regularly, and Alfaro does not argue
that t he nature of the data changed between the running of
the one

- year period following final judgment in her case and the filing of her TAP (on the contrary, her claim alleges
system

- wide delay that goes back decades).

We acknowledge and sympathize with the fa ct that habeas petitioners have limited resources to dedicate to discovery. However, we cannot say that the effort required to aggregate the publicly available information upon which
Claim 29 relies rendered that information undiscoverable through the exe rcise of due diligence. We therefore find Claim 29 barred as untimely. 5

5 The State has argued, both in its briefing and at oral argument, that this case should be disposed of through application of the Suprem e Court’s prohibition against a petitioner’s assertion of “new rules” for the
first time on collateral review. See Teague v. Lane , 489 U.S. 288 (1989). We acknowledge that we have previously found that the claim now asserted by Alfaro constitutes a “new rule” that does not fall under the exception to the Teague bar for “substantive” new rules. See Jones v.

Davis , 806 F.3d 538, 551

– 53 (9th Cir. 2015). However, subsequent Supreme Court precedent has cast some doubt on our conclusion in Jones that the claim now before us constitutes a “procedural” rat her than a
“substantive” rule.

In Jones , we justified our classification of the clai m as procedural on the basis that Jones “[did] not assert that he fit[] into one of the traditionally recognized classes of persons whose ‘status’ is an intrinsic18 A LFARO V

. J OHNSON

quality, such as insanity or intellectual disability,” and that “[u]nder [Jones’] view, almos t any procedural rule could be characterized as substantive merely by defining the petitioner as belonging to a class of persons with the ‘status’ of those whose convictions or sentences were obtained through an unconstitutional procedural rule.” I d . at 5 52

– 53. Following our issuance of the Jones opinion, the Supreme Court decided
Welch v. United States , 136 S. Ct. 1257 (2016), holding that its prior decision striking the residual clause of the Armed Career Criminals Act as void for vagueness set forth a substantive rule that applies retroactively on collateral appeal. Id. at 1265. This undercuts the argument that a rule is procedural merely because the rule does not address a group def ined by some intrinsic quality.

Furthermore, the Court’s discussions in both Welch and the recently

decided case Montgomery v. Louisiana , 136 S. Ct. 718 (2016), call into question the notion that if the claim asserted here presents a substantive rule, the substantive/procedural distinction loses any meaning. Both
Welch and Montgomery develop Teague by clarifying the relevant distinction between substantive and procedural rules: The failure to apply a procedural rule does not necessarily invalidate every result, whereas failure to apply a substantive rule leaves no possibili ty of a legitimate outcome. See , e.g. , Welch , 136 S. Ct. at 1265

– 67; Montgomery , 136 S. Ct. at 729

– 32. This is why, upon collateral review, the balance between comity and finality on the one hand, and constitutional rights on the other, tips against retr oactive application when a rule is procedural, and in favor when it is substantive. See Welch

, 136 S. Ct. at 1266; Montgomery , 136 S. Ct. at 732.

Should Alfaro’s claim ultimately be found meritorious, it would invalidate California’s present system for ad ministering the death penalty. This suggests that, under the Supreme Court’s evolving interpretation of Teague , the rule she seeks to advance may present a substantive rule. However, because Alfaro’s petition can be resolved on alternative procedural gro unds, we do not now decide the continued vitality of our holding to the contrary in Jones

.A LFARO V

. J OHNSON 19

CONCLUSION

Alfaro failed to exhaust the available state remedies for Claim 29, and that claim was also untimely filed. Because Alfaro’s claim is barred on these procedural grounds, w e do not address the merits of her Eighth Amendment argument. 6

REVERSED

.

6 Alfaro has filed a motion for judicial notice of a variety of materials, consisting of (1) a California Supreme Court n ews r elease, (2) a c ourt s tatistics r eport produced by the Judicial Council of California, (3) two n ews r eleases from the Judicial Council of California, (4 ) state

- court dockets from Alfaro’ s state proceedings, (5 ) the status of certain docketed California capital cases, ( 6 ) the CDCR Condemne d

I nmates list, ( 7 ) articles from the National Institute of Justice and Death Penalty Information Center, and ( 8 ) a Gallup poll on the death penalty. As Alfaro indicates in her motion, these materials all pertain to the merits of her Eighth Amendment clai m. Because we do not reach Alfaro’s claim on the merits, we deny her motion as moot.