FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIA DEL ROSIO ALFARO,

Petitioner-Appellee,

v.

DEBORAH K. JOHNSON,

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 ALFARO V. JOHNSON

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 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 in which 

the California Supreme Court has not definitively rejected 

the claim she now raises in her habeas 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 

application 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.
ALFARO V. JOHNSON 3

violation of which she complains (unconstitutional 

imposition of the death penalty) will not take place. 

The panel held that neither relation 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 

systemic 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.

Michael 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 ALFARO V. JOHNSON

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 robbery, 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 

conviction 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 petition 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.
ALFARO V. JOHNSON 5

Alfaro 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, 2013.

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 court’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 Supreme Court’s decision in Teague v. Lane, 489 U.S. 

288 (1989), and (3) her amendment was untimely under 

Federal Rule of 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 ALFARO V. JOHNSON

filed claims because she “set forth the common core of 

operative facts in her 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-conviction 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 relation-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.
ALFARO V. JOHNSON 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. 1214,

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’Sullivan 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 contained 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 as 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 failure to 

exhaust state remedies “if the highest state court has recently 
8 ALFARO V. JOHNSON

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 

indication 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 permitted 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 

intrusion,” 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 bypass 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) (describing how Engle called into question the “shortlived ‘futility doctrine’ to avoid procedural default”).2 We 

 2 We note, however, that we have yet to expressly overrule Sweet. 

On the contrary, we have cited to it favorably post-Engle. See, e.g.,
ALFARO V. JOHNSON 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 petitioner’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 rejected 

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, 436 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 dealt 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 considering excuses to exhaustion, it is not precisely on point.
10 ALFARO V. JOHNSON

punishment from its legitimate penological purposes, 

California courts have not previously 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 

hypothetically 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 the 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), 

reiterating 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 foreclosure 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.
ALFARO V. JOHNSON 11

The California Supreme Court admittedly “sent 

conflicting signals” regarding future delay-based claims, 

Jones, 806 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 exhaust 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 violation, 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. Callahan, 788 F.2d 631, 633 

(9th Cir. 1986) (per curiam). This principle does not, 

however, justify 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 meritorious claim will continue to go unaddressed 
12 ALFARO V. JOHNSON

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 therefore 

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 before 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 corrective 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.
ALFARO V. JOHNSON 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 prior 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 Claim 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 petitioner 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 conduct, 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 systemic delay claim shares “a 

common core of operative facts” with one of her timely-filed 

claims. Id. at 664.
14 ALFARO V. JOHNSON

Claim 29 asserts that “inordinate and unpredictable delay 

in California’s death penalty system leads to the arbitrary 

imposition of the death penalty.” 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 could 

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 becomes 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 necessary 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 administration 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 

plagues 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 filings. 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 

creates arbitrariness in executions. As explained above, no 
ALFARO V. JOHNSON 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 factual 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. 2013) 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 point 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 became 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 

the one-year limitation period, the parties agree that Claim 27 properly 

relates back to Alfaro’s timely-filed petition.
16 ALFARO V. JOHNSON

claim in Jones. Alfaro points to data collected and filed by 

the Habeas Corpus Resource Center (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 time 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 

the 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 died 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 the 
ALFARO V. JOHNSON 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—could 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 the 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 fact 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 exercise 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 Supreme 

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” rather than a 

“substantive” rule.

In Jones, we justified our classification of the claim 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 intrinsic 
18 ALFARO V. JOHNSON

 quality, such as insanity or intellectual disability,” and that “[u]nder 

[Jones’] view, almost 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.” Id. at 552–53. 

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 defined by some intrinsic quality.

Furthermore, the Court’s discussions in both Welch and the recentlydecided 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 possibility 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 retroactive 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 administering 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 grounds, we do not now decide the continued 

vitality of our holding to the contrary in Jones.
ALFARO V. JOHNSON 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, we 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 news release, 

(2) a court statistics report produced by the Judicial Council of 

California, (3) two news releases 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 Condemned 

Inmates 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 claim. Because we do not reach Alfaro’s 

claim on the merits, we deny her motion as moot.