F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

D O N N A K A Y L E E , Petitioner-Appellant
,

v.

D E B R A J A C Q U E Z , Respondent-Appellee

. No. 12-56258

D.C. No. 2:01-cv-10751-PA-PL A

OPI NI ON

A ppeal from the United States District Court for the Central District of California Percy Anderson, District J udg e, Presiding

Arg ued and Submitted N ovember 17, 2014—Pasadena, California

F iled J une 9, 2015

B efore: Mary M. Schroeder, Harry Preg erson, and J acqueline H. Ng

uy en, Circuit J u d g es.
Opinion by J udg e Ng uy enL E E V

. J A C Q U E Z

2

SUMMARY *

Habeas Corpus

The panel reversed the district court’s denial of California
state prisoner Donna Kay L ee’s habeas corpus petition challeng ing her first-deg ree murder conv i c tions a nd remanding f

or the district court to consider L e e ’s claims on the merits.

The district court found that Ex parte Dixon
, 264 P.2d 513 (Cal. 1953), w hich prohibits California s t a te courts from considering habeas claims that should have been raised on direct appeal but w ere omitted, is an adequate a nd independent state law procedural rule that bars federal r eview of L ee’s claims.

Assuming without deciding that Dixon is an independent
state law rule, the panel held that the state has failed to meet its burden of demonstrating the D ixon bar’s a d e q u a cy a t the time of L ee’s procedural default. The p anel wrote that where the state e ndorsed a statistical analy sis to demonstrate a rule’s adequacy
, and the panel is left on ly w ith evidence that the Dixon bar was a

pplied to b etween seven and twenty -one percent of all habeas cases f i l ed in the months surrounding L ee’s default, the state failed to meet its burden of proving that the Dixon bar was adequate.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.L E E V

. J A C Q U E Z 3

COUNSEL

Marta VanL anding ham ( arg u ed), Deputy F ederal Public Defender; and Sean K ennedy
, F ederal Public Defende r , L os Ang eles, California, for Petitioner-Appellant.

Robert M. Snider (arg

ued), Deputy Attorney General; Dane R. Gillette, Chief Assistant Attorney Gene ral; L ance E. W inters, Senior Assistant Attor n e y General; Kenneth C. B y rne, Supervising Deputy Attorney General; and Kamala D

. Harris, Attorney General of C a lifornia, L os Ang eles, California, for Respondent-Appellee.

OP INION

NGUYEN, Circuit J u dg e:

Donna Kay L ee is serving two life sentences without the possibility of parole in a California state priso n for first deg ree murder. After the California Court of Appeal affirmed her c onviction on direct appeal, L ee filed various h abeas petitions in state courts. All of her claims were denied, some

on the merits and others as procedurally barred. This appeal

concerns e l e v e n claims that the California Supreme Court found to be procedurally barred u nder the Dixon rule, which prohibits California state courts from considering h abeas claims that should have been raised on direct appeal but were omitted. E

x parte Dixon
, 264 P.2d 513 (Cal. 1 9 5 3 )

. On federal h abeas review, the district court fou n d t h at Dixon is

an adequate and independent state l a w p rocedural rule that bars federal review o f L ee’s claims. H owever, even assuming
, w ithout deciding
, that Dixon is an independent
state law rule, the state has fa i l e d to meet its burden o fL E E V

. J A C Q U E Z

4

demonstrating the Dixon bar’s adequacy at the time of L ee’s procedural default. Thus, we r everse and re m a nd for the district court to consider her claims on the merits.

BACK G ROUND

On March 23, 1998, L ee was convicted of two counts of first deg ree murder in L os An ge l es County Superior Court. She w as sentenced to two life sentences withou t the possibility of p arole, plus a n additional two y ears for the use of a knife. L ee appealed her conviction on J un e 1 0
, 1999, raising four claims. 1 Her appeal was denied on the merits on Aug ust 28, 2000. The California Supreme Court affirmed on December 13, 2000.

Proceeding pro se , L ee filed a habe a s p e t ition in federal court, raising fourteen claims. After the g overnment moved
to dismiss the petition as larg ely unex h austed, L ee moved to withdraw her petition without prejudice to allow her to

ex h aust her claims in state court. The district court held her motion in abey ance, and ordered L ee to either submit a F irst Amended Petition, limited to her ex hausted claims, or move for voluntary dismissal to pursue her claims in state court. I n response, L ee submitted a F irst A m e n ded Petition, and also moved to stay the proceeding s while she ex hausted her other claims in state court. The district c ourt g ranted a stay , a nd L ee returned to state court to seek habeas relief, r aising eleven claims.

1 T h o u g h h er o rig in al ap p eal lists f iv e claim s, see Peo

p l e v. Lee
, No

. B 1 26 54 4
, slip o p

. at 1 4 (Cal. Ct. A p p

. A u g

. 2 8
, 2 00 0 ), h er f

irst an d seco n d claim s w ere later co n so lid ated o n h ab eas rev iew

.L E E V

. J A C Q U E Z 5

After L ee’s habeas petitions in both the Cal i fornia Superior Court and the Court of Appeal were denied, 2 s he filed a h abeas petition with the California Supreme Cou r t , raising eleven claims from her orig inal federal petition and a

new claim reg a

rding an alleg ed improper ex clusion of f emale jurors. The Court denied her p etition with citations to In re W altreus
, 397 P.2d 1001 ( Cal. 1 965), In re Seaton
, 9 5 P

. 3d 896 (Cal. 2004), and Dixon

.

L ee then r eturned to federal court to proceed with her federal habeas petition. I n a Second Amended Petition, she incl u d e d the four claims she had initially raised on direct
appea l t o the California courts, seven newly -ex hausted claims, and four supplemental c laims (which c orresponded to the first four claims raised in her state habeas petition). The district court dismissed her petition, rejecting four claims on t h e merits and finding the rest to be p rocedurally defaul t e d under Dixon

. On appeal, we affirmed the dismissal of two o f L ee’s claims on the merits 3 and r eversed as to the procedural default issue, f

inding that the district court had “erroneously concluded that the Ninth Circuit had found the Dixon rule to be an independent and a dequate state law gr o u nd.” Lee v

.

2 B ecau se all Calif

o rn ia c o u r t s h av e o rig in al j u risd ictio n i n h ab eas

co rp u s p ro ceed in g s, Cal. Co n st. A rt. VI, § 1 0, “ n o a p p e a l lies f ro m th e d en ial o f a p etitio n f

o r w rit of h ab eas co rp u s.” In re Cla rk
, 8 5 5 P .2 d 7 2 9
, 7 6 7 n .7 (Cal. 1 99 3 )

. T h u s , a p etitio n er m ay seek relief b y f ilin g n ew p etitio n s in each co u rt, th ou g h su b seq u en t c l a i m s a re lim ited t o th ose raised i n th e f

irst p etitio n

. S

ee In re Ma r tin ez , 2 0 9 P .3 d 9 0 8
, 9 1 5 (Cal. 2 0 0 9 ).

3 W e af fi r m e d t h e d en ial o f L ee’ s claim s reg ard in g sev eran ce an d b attered w o m en ’ s sy

n d ro m e, b o th o f w

h ich w ere raised o n d i rect ap p eal. Lee v. Ja cq u ez , 4 0 6 F. A

p p ’ x 14 8
, 14 9 (9 t

h Cir. 2 0 1 0 ). L ee d id n ot ap p eal th e d istrict co u rt’ s d en ial o n th e m erits o f h er tw o rem ain in g claim s, an d th u s w e d id n o t co n sid er th em

. S ee id

.L E E V

. J A C Q U E Z

6

Jacquez
, 406 F

. App’x 1 48, 150 (9th Cir. 201 0 ). W e remanded to g ive the state an opportunity to present evidence of the Dixon rule ’ s independence a nd adequacy

. Id. On remand, the district court ag a in concluded that the Dixon bar

was a n independent and adequate state law rule at the time o f L ee’s procedural default. This timely appeal followed.

D ISCUSSION

L ee arg ues that the state failed to me e t i ts burden o f proving that Dixon is an independent and adequate state law g round barring federal review of her h abeas c laims. We have jurisdiction to review her c laim under 28 U.S.C. §§ 1291 a nd 2253, and we review the district court’s denial of her habeas petition de novo

. Y

barra v. McDaniel
, 656 F .3d 9 84, 989 (9th Cir. 2011).

W e now hold that the state failed to meet its burden o f p roving the Dixon bar’s adequacy at the time of L ee’s procedural default. B ecause a state proce dural rule must be b o th independent and adequate to p r event federal hab e a s review, we need not decide whether Dixon is an independent state law g round.

The Adequacy Requirem ent

“A fede r a l habeas court will not review a claim rejected by a state court ‘if the decision of [the state] court rests on a

s t ate law g round that is independent of the federal quest i o n and adequate to support the judg ment.’” Beard v. Kindler
, 558 U.S. 53, 55 (20 0 9 ) (alteration in orig inal) (quoting Coleman v. Thompson
, 501 U.S. 722, 729 (1991)). This rule arises from the need to “show proper respect for state courts and avoid rendering a dvisory opinions.” Id. at 63 (Kennedy
,L E E V

. J A C Q U E Z 7

J
., concurring ). Conversely
, an inadequate state law g r ound will n ot bar federal review of a claim’s merits. “W e h ave not allowed state cou r t s to bar r eview of federal claims b y invoking new procedural rules without adequate not i c e to litig ants who

. . . h ave in g o o d f a i t h c omplied with ex isting state procedural law.” Id. at 63–64.

Here, th e C alifornia Supreme Court declined to r eview the merits of L ee’s claims b y i n v o king Dixon ’s procedural bar, which p revents state courts from considering h abeas claims that should have been raised on direct appeal but were not. Dixon
, 264 P.2d at 514. The parties do not c ontest that the Dixon rule, if independent and adequate, would bar all o f L ee’s remain i n g h a

beas claims ex cept two (Ground 6 a nd Supplemental Ground 4), because L e e failed to first raise these claims on direct appeal of her conviction. 4

Adequacy is evaluated at the time of the petitioner’s purported default, which for Dixon is the d a t e w h e n the petitioner could have raised the claims o n d irect appeal. Fields v

. Calderon
, 125 F .3d 757, 760–61 (9th Cir. 1997). I n order to be ad e q u a te, a procedural bar must be “clear, consistently applied, and w e l l-established at the time of the petitioner’s purported d efault.’” Collier v. Bayer
, 4 08 F .3d

4 A f ed eral co u rt m ay rev iew th e m erits o f a claim th at w as pro ced u rally d ef au lted o n an in d ep en d en t an d ad eq u ate state p ro ced u ral g ro u n d if th e p etitio n er “c a n d em o n s trate cau se f or t h e p ro ced u ral d ef

au lt an d actu al
p rej u d ice, o r d em o n s trate th at th e f ailu re t o co n sid er th e claim s w ill resu l t in a f u n d am en t al m iscarriag e o f j u s t ice.” No ltie v. Peterso n , 9 F.3 d 8 0 2
, 8 0 4

– 0 5 (9 th Cir. 1 9 9 3 ). Here, L ee h as n o t asserted g o o d cau s e f o r h er d ef au lt, n o r h as sh e claim ed th at a f u n dam en t al m iscarriag e o f j u stice

w o u ld o ccu r ab sen t co n sid eratio n o f h er claim

. S

ee Lee v. Mitch ell , No

. 0 1

- 1 0 75 1

- P A , slip o p

. at 2 0 (C.D. Cal. J u n e 1 9 , 2 0 0 7 ). T h u s, w e d o n o t reach th ese issu es.L E E V

. J A C Q U E Z

8

1279, 1284 ( 9th Cir. 2005) (q u o ting Calderon v

. United States District Court (

Bean)
, 96 F .3d 1 126, 1129 (9th Ci r. 1996)). The Supreme C o u r t has described this r equirement

as asking whether a state procedural rule was “firmly established and reg ularly followed” a t the time of the petitioner’s default. W

a l ke r v. Martin
, 131 S. Ct. 1120, 1127–28 (2011) (quoting Kindler
, 558 U.S. at 60–61). The adequa c y requirement ex ists to prevent state courts from discriminating ag ainst “disfavored claims,” and t o “ ensure that habeas p etitioners have f air n otice of what they must do
to avoid default.” Kindler v. Horn
, 642 F

. 3d 3 9 8
, 401 (3d Cir. 2011).

W e have established a burden-shifting reg ime to g u ide

our evaluation of a state procedur a l bar’s adequacy

. See Bennett v

. Mue l l e r , 3 22 F

. 3d 573 (9th Cir. 2003). F irst, the
state must plead the ex istence of an independent and adequate
state procedural bar as an affirmative defense. Id. at 586. Nex t, the burden shifts to the petitioner, who must “ a s s e r t [ ] specific f a ctual alleg ations that demonstr a te the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the r ule.” Id. The petitioner’s burden at this stag e is “modest,” D enn i s v

. Brown
, 361 F

. Supp. 2d 1124, 1130 ( N.D. Cal. 2005), and the

u s e o f unpublished decisions to show the state’s “actual practice” is encourag ed, Powell v. Lambert
, 3 5 7 F .3d 871, 879 (9th Cir. 2004). I f the petitioner succes s f u l l y puts ad eq u a c y a t issue, then the b urden shifts back to the state, which must c arry “ the u ltimate burden of proving the adequacy of [ a]

. . . state [ procedural] bar” as an affirmative defense. B ennett , 322 F

. 3d at 585–86.

Apply ing B e n n ett ’ s burden-shifting framework to this
case, w e conclude that the state has satisfied its initial burdenL E E V

. J A C Q U E Z 9

by adeq u ately pleading the independence and adequacy o f Dixon as an affirmati v e d e f e n se. At the second step, our p r e v i o us remand in this case sug g ests that L ee has met h e r burden of putting the adequacy of the Dixon rule at issue. See Lee
, 406 F

. A p p ’ x a t 1 5 0 (noting that L ee “presented evidence challeng ing the independence and adequacy of” the D i x o n rule a

nd remanding to the district court f o r a n evaluation of the state’s “evidence to the contrary ” ). Thus,

we are left a t the final stag e of Ben n et t ’s framework, where the state must prove the Dixon bar’s adequacy

.

A. Walker v. Martin and Discretionary State P r ocedural Bars

The state arg ues t h a t the Supreme Court’s decision in W alker v. Martin
, 131 S. Ct. 1 1 2 0 (2011), means that the Dixon bar may be adequate e ven if t h e r ule was a pplied inconsistently during the time period surrounding L ee’s default. This arg ument misreads Martin ’s holding and scope.

I n W alker v. Martin
, the Supreme Court fo u n d California’s timeliness procedural bar to be an independent and adequate state procedur al g r ound that bars later federal habeas r eview o f a c laim on the merits. Id. a t 1131.

“ C a l i fornia does not employ fix ed statutory deadlines to determine the timelin e s s o f a state prisoner’s petition for habeas c orpus. I nstead, California directs petit i o n e r s to file known claims ‘as promptly as the circumstances allow.’” Id.
at 1124 (quoting In re Clark
, 8 5 5 P

. 2 d 729, 738 n. 5 (Cal. 1993)). T his rule has also been d escribed as setting a g eneral “reasonableness” standard, where a habeas petition is deemed timely if it w as filed w ithin a reasonable period o f time. See Carey v. Saffold
, 536 U.S. 2 14, 221 (2002). California courts will g e nerally deny untimely petitions by citing to theL E E V

. J A C Q U E Z

10

California Supreme Court decisions of In re Clark
, 855 P.2d 729 ( Cal. 1993) a

nd In re Robbins
, 959 P.2d 3 11 (Cal. 1998). Martin , 131 S. Ct. at 1124.

“[ O] utcomes under [ this] rule vary from case to case,” id.
at 1129, as courts must evaluate the r easonableness of a filing based on the particular circumstances of e ach petition. Nevertheless, relying on it s previous opinion in Beard v

. Kindler
, which first held that “a discretionary state procedural rule c an serve as an adequate g round to bar fede r al h abeas review,” 558 U.S. a t 6 0, the M artin Court found California’s discretionary timeliness rule to be both firmly established a nd reg ularly followed. 131 S. Ct. a t 1 128–29. The r ule h ad developed throug h case law, p utti n g h a beas petitioners on notice that they must “alleg [ e] with specificity ” why t heir petition was not substantia l l y d elay e d or ex p lain their elig ibility for an ex c eption to the time b ar

. I d

. at 1128 (alteration in orig inal) ( quoting I n re Gallego
, 959 P.2d 290, 299 (Cal. 1998)). Thus, even thoug h the r u l e ’ s l ang uag e is “indeterminate” and does not set strict filing d e a dlines, its “[ a] ppl i c ation

. . . in particular circumstances

. . . supplie[ s] th e requisite clarity ” f or the purposes of establishing adequacy

. Id. The M

artin Court no t e d that the California
courts “reg

ularly follow[ ] ” a n d “reg ularly invoke” the timeliness rule, and did so around the time the petitioner h ad filed for habeas relief. Id. at 1229.

Rely ing on Martin
, the state a rg u es that, like California’s timeliness rule, D ixon is a discretionary pro c e dural bar, a nd any inconsistency in Dixon ’s a pplication reflects only the state’s e x ercise of discretion rather than the rule’s inadequacy

. W e find this arg u m e n t unpersuasive. California’s timeliness rule is inherently dis c r e t i onary in its initial a p p lication, while the D ixon rule is mandatory in theL E E V

. J A C Q U E Z 11

first instance. Evaluating whether a habeas petition has been “filed as promptly as t h e circumstances allow” requires a case-specific evaluation in every instance, leading inevitably
to v a r ied outcomes. Id. a t 1125 (quoting Clark
, 855 P.2d at 738 n.5). The Dixon bar, in contrast, is meant to a pply to all habeas claims that could h ave been raised on direct appeal but

w e r e not. Robbins
, 9 59 P.3d at 3 40 n.34 (noting tha t Californ i a courts apply the Dixon bar “whenever

. . . applicable”). Deciding whether a claim is barred b y Dixon involves n o t a malleable, circumstance-specific question o f “reasonableness,” but a straig h tforward review of the record: A claim is either record-based, or it is not, and the p etitioner either raised or omitted a claim o n direct appeal. Thus, California state courts should be able to apply the Dixon bar mechanically and c onsistently
, a n d a failur e to cite Dixon where Dixon applies does not r e f l e ct the ex ercise o f discretion so much a s it reflects the irreg ular a pplication o f the rule.

The state attempts to g et around Dixon ’s mandatory applicability by focusing on the rule’s f o ur Harris ex ceptions. See In re Harris
, 855 P.2d 391, 3 9 5 n.3, 398–407 (Cal. 1 993) (detailing the four ex ceptions t o t he Dixon rule); see also Robbins
, 9 59 P.2d at 340 n. 34 (clarify ing t h a t the court considers the Harris ex c eptions when imposing the Dixon bar). These e x ceptions allow courts to ex c u s e a Dixon procedural d efault if a “fundam en tal constitutional e rror” occurred, if the orig inal c ourt lacked or acted in ex cess of its jurisdiction, or if there has been “a chang e in the law affecting the petitioner.” Harris
, 855 P.2d at 398–407. Since
courts may decline to apply the Dixon bar when an ex c eption

ex c u ses a p etitioner’s failure to raise a claim on appeal, the
state arg u es that Dixon and the timeliness rule are similarly discretionary

.L E E V

. J A C Q U E Z

12

W h ile t h e s t a te’s arg ument has some superficial appeal,

we do n o t believe that Dixon ’s ex ceptions transform a mandatory rule into a discretionary o ne. F irst, like the Dixon rule, the timeliness b ar also has four ex ceptions. Cl a r k
, 855 P.2d at 797–98. Yet Martin mentioned these ex ceptions only in passing

. See 1 3 1 S

. C t

. a t 1 128. I nstead, the Court focused its analy s i s on the discretion inherent in the timeli n e s s b ar’s initial application, r ather than on the
ap p l i c a t i on of the bar’s ex ceptions. See id. at 1125 (noting that its holding means to ensure that California could maintain the “flex ibility of current practice”), 1 1 3 0 (noting that discretion allows courts to “avoid

. . . harsh r esults,” a nd emphasiz ing the importance of encourag ing states to choose more malleable rules).

Thus, even if courts must ex ercise discret ion when apply ing Dixon ’s ex ceptions, this analy sis occurs o nly af ter Dixon has first been applied. See, e

. g. , In re P reston , 98 Cal. Rptr. 3d 340, 344 (Cal. Ct. A pp. 2009 ) (noting the applicability of the Dixon b ar, and then a p p l y i n g one o f Dixon ’s f our ex ceptions to consider the claim on the merits); In re Crockett
, 71 Cal. Rptr. 3d 632, 6 37 (Cal. Ct. App. 2 008) (same). And the state court will likely invoke an ex ception to t h e Dixon bar whenever it applies, instead o f simply n o t apply ing D ixon without ex planation. Cf. Robbins
, 959 P.3d
at 3 4 0 n

. 3 4 (“W hen, in our orders, we impose the [ Dixon ] bar[ ]

. . . this sig nifies that we have concluded tha t n o n e o f the four [ H

arris ] ex ceptions . . . apply .”).

Second, the Martin opinion carefully focused its holding

on discretionary rules, ex pressly noting that it “leaves unaltered [ the Supreme] Court’s repeated recog nitio n that federal courts must carefully ex amine state procedural requirements t o en sure that they do not o perate toL E E V

. J A C Q U E Z 13

discriminate a g ainst claims o f federal r i gh ts.” 131 S. Ct. at 1130. I n short, Martin does not support the state’s arg ument that th e inconsistent application o f a state procedural rule merely refle c t s the state’s ex e rcise of discretion. 5 To the contrary , w hile Martin n o ted that “[ a ] discretionary rule oug ht not be disreg arded a utomatically upon a showing of seeming inconsistencies,” id. (emphasis added), the Court also stated that “ a s t ate [ procedural] rule must be ‘firmly established and reg ularly followed’” to be deemed adequate, id. at 1127–28 (quoting Kindler
, 558 U.S. at 60).

W e conclude that in order to bar federal review of L ee’s habeas c laims, th e s t a t e must prove the Dixon rule’s reg ular and consiste n t a p p lication around the time of L ee’s default. W e now turn to the state’s attempt to do so.

B. The State’s Burden

The parties dispute what precisely the state must show in order to meet its burden at the final stag e of Bennett ’s test. As noted, adequacy requires that a rule be “clear, consistently applied, and w ell-established,” Collier
, 408 F .3d at 1284 (quoting Bean
, 96 F

. 3d at 1129), and “ firmly established a nd reg ularly followed,” Martin
, 131 S. Ct. at 1127–28 (quoting Kindler , 558 U.S. at 60–61). Yet we lack “binding case law d e fining what is a statistically insig nificant irreg ularity a n d

5 O u r co n clu sio n is b u ttressed b y th e f act th at o th er circu its h av e

co n tin u ed to ask w

h eth er state p ro ced u ral ru les are reg u larly f o l l o w ed an d

co n sisten tly ap plied af

ter th e Ma r t i n d ecisio n

. S ee, e.g

. , Lee v. C

o rsin i , 7 7 7 F.3 d 4 6 , 5 4 (1 st Cir. 20 1 5 ) (citin g th e “ reg u larly f o llo w ed ” stan d ard f o r ad eq u acy ); La rk v. S

ec’y Pa

. D ep ’ t o

f C o r r. , 6 4 5 F.3 d 5 9 6
, 61 3 (3 d Cir. 2 0 1 1 ) (d istin g u ish in g a “ f acially m an d ato ry state p ro ced ur a l r u le

w h ich w as n o t clearly f

o llo w ed ” f

ro m th e d iscretio n ary ru l es ev alu ated in W a lker an d K in d l er ).L E E V

. J A C Q U E Z

14

inconsistency in t h e application of a state procedural b ar.” Monarrez v. Alameda
, N o. 03-0010 4
, 2005 W L 2333462 (C.D. Cal. Sept. 22, 2005), at *6. Some cases have sug g ested that a rule must be applied in the “vast majority ” of cases in order to be considered adequate. Scott v. Schriro
, 567 F. 3 d 573, 5 8 0 (9th Cir. 2009) (quoting Dugger v. Adams
, 489 U.S. 401, 411 n.6 (1989)); see a l s o Moran v. McDaniel
, 8 0 F .3d 1261, 1270 (9th Cir. 1996). A closer look at thes e c a s e s, however, sug g ests that the court was d escribing a sufficient but unnecessary condition—while a rule applied in the “vast majority ” of cases is most likely adequate, such a showing is
not required for a rule to b e found adequate. S e e D u g g er , 489 U .S. at 410 n

. 6 ( n o t i n g that “[ i] n the v ast majority o f

cases

. . . the F lorida Supr eme Court has faithfully applied” the rule at issue, without seeming t o set out an absolute standard); Scott
, 567 F .3d at 580 (internal quotation marks and citation omitted) (stating th a t a procedural b ar “ is considered consistently applied and well-esta blished if the

s t a t e c o u r ts follow it in the v ast majority of cases”). Thus, while a state’s reliance o n a procedura l g round in the vast majority of cases would likely p rove the rule’s adequacy
, the state need not necessarily reach such a hig h statistical bar in order to prove its affirmative defense.

Be n n e t t does provide some specific g uidance reg arding the state’s u l t i m a te burden, noting that “[ t] he scope of the state’s burden of proof

. . . will b e measured by the s p e c i fi c claims of inadequacy

put forth by

the petitioner.’” 322 F .3d
at 584–85 (quoting Hooks v. W a rd
, 184 F. 3 d 1206, 1217 (10th Cir. 1999)). Bennett also advis e s t h e state to provide “records and authorities [ that] prove whether its courts have reg ularly a

nd consistently applied the procedural ba r , ” 322 F .3d at 585, which sug g ests that the state should do more than just discredit the p etition e r ’ s e vidence from Bennett ’sL E E V

. J A C Q U E Z 15

second step. See also Monarrez
, No. 03-00104, at *6 (finding that the state failed to meet its ultimate burden under Bennett when it merely contested petitioner’s evidence of inadequacy without providing its own affirmative evidence).

Additionally
, we know th at the Dixon bar was a pplied inconsistently until a t least September 30, 1993, w h e n the California Supreme Court decided Harris to “provide needed g uidance” for application of the rule g oing forward. 855 P.2d
at 395 n

. 3
, 398; see also Fields
, 125 F .3d at 763 (noting that Dixon “ had been obscured” b y inconsistent application over the y ears); La Crosse v. Kernan
, 244 F

. 3d 702, 705 (9th Cir. 2001) ( reading Fields to h old Dixon as per se inadequate until
at least 1993). Almost f i v e y e a rs later, the California Supreme Court noted i n Robbins that it needed to ag ain “provide g uidance” o n the D ixon rul e, sug g esting that the rule’s application did not b ecome consistent in the time period immediately following Harris

. 959 P.2d at 340 n.34;

see also P ark v

. California
, 202 F .3d 1146, 1152 n.4 ( 9th Cir. 2 0 0 0 ) ( reading Robbins a s an attempt “to establish the adequacy . . . of . . . future Dixon ” decisions).

Aft e r Robbins was decided, however, Dixon ’s a dequacy remains unclear. Thoug h Harris and Robbins meant to c reate consistent application of the rule g oing forward, “it does not follow that the rule in historical fact has been so applied.” Bennett
, 322 F .3d at 583. I n fact, while no Ninth Circuit case has found D ixon to be inadequate in the p ost- Harris era, Cree

v. Sisto
, No. 2:08-CV-00487, 2011 W L 66253, (E.D. Cal. J an. 7, 2011), at * 2
, i n no case has the state met its burden o f proving Dixon ’s adequacy at Ben n ett’ s third step. S ee, e.g. , Dennis v

. Brown
, 361 F

. Supp. 2 d 1 1 2 4
, 1133 (N.D. Cal. 2005) (concluding that th e s t ate failed to meet its burden because it cited no cases or opinions showing actual practice);L E E V

. J A C Q U E Z

16

A y a l a v. Ayers
, No. 01-CV-0741, 2 0 08 W L 1787317 (S. D

. Cal. Ap r

. 1 6
, 2008) (same); Vaughn v. Adams
, No. CVF

015241, 2006 W L 1439400 (E

. D

. Cal. May 22, 2006), adopted in full by Vaughn v

. Adams
, N o. 1:01-CV-05 2 41, 2006 W L 1774915 ( E.D. Cal. J une 24, 2006) (finding that the
state failed to meet its burden b e c ause it did not overcome the

s p e c ific evidence submitted by the petitioner showin g Dixon ’s inadequacy

). I n every c ase where the state h a s been permitted to use the Dixon bar as an affirmative defense, the petitioner failed to place the adequacy of the b ar at issue a s required by Bennett ’s second step. See, e.g. , Cr ee v. S isto , No. 2:08-00487, 2011 W L 66253 (E.D. Cal. J an. 7, 2 011); Johnson v. G i u r b i n o , No. 1:03-CV-06013, 2007 W L 2481789 (E.D. Cal. Aug

. 29, 2007); Sanchez v

. Ryan
, 392 F

. Supp. 2d 1136, 1138–39 (C.D. Cal. 2005); Flores v. Roe
, No. 05-5296, 2005 W L 1 406086 ( E.D. Cal. J une 14, 2005), aff’d by F lores

v. Roe
, 2 28 F

. A pp’x 6 90 (9th Cir. 2007); Protsman v. Pliler
, 318 F . Supp. 2d 1004, 1014 (S. D. Cal. 2004).

W h ile these lower court evaluations of Dixon ’s a dequacy

are not binding , these decisions inform our analy sis because “[ a] procedural rule is either a d equate o r inadequate during a g iven time period.” King v. LaMarque
, 464 F .3d 963
, 968 (9th Cir. 2006). Thus, the f act that the state h as never shown Dixon ’s adequate applica t i o n at B ennett ’s third step is not i n sig nificant as we evaluate its efforts to meet its burden in this case.

C. The State’s Evidence

W ith this backdro p i n mind, we turn to the state’s evidence. The state analy

zed 4,700 Califo r

nia Supreme Court habeas denials surroundin g the time o f L ee’s J une 10, 1999 default, finding that the Dixon procedural bar w as invoked inL E E V

. J A C Q U E Z 17

approx imately twelve p ercent of all habeas denials. Thoug h the application rate varied b etween seven and twenty -one percent across th e m o n ths survey ed (Aug ust 1998 to J u ne 2000), the state a

rg ue s that this shows a “predictable” application of Dixon such that the rule was an adequate state law g round at the time of L e e’s default.

W e f ind this evidence entirely insufficien t t o meet the state’s burden of showing th e D ixon rule’s adequacy

. The state’s evidence merely shows Dixon ’s a pplication as a percentag e of all habeas denials filed during this time period, and does not purpo r t t o s h o w to how many c ases the Dixon bar should have been applied. L og ic dictates that in o rder to know if invoking Dixon in twelve percent of all cases shows consistent application, w e need to know “the number of times that claims to w hich the D ixon rule c ould apply were instead rejected on the merits.” Lee v. Mitchell
, No. C V

- 0 1-10751- P A, 2 0 1 2 W L 2194471, a t *18 ( C.D. Cal. May 1
, 2012). Thus, w e are missing the denominator that would g ive any meaning to the state’s number. W ithout a b a seline number ag ainst which to measure the twelve percent application rate, this p ercentag e in no w ay indicates t h e c onsistency of the rule’s application.

The state attempts to cover the g ap in its evidence in two way s. F irst, the state arg

u es that many

of the habeas denials from the survey ed time period w ere actually silently a pply ing procedural b ars that were first invoked by a lower state court. This may b e so. I f the California Supreme Court d e n i e s a habeas petition without ex planation, the federal cou r t s will
presume that a procedural d e f a u l t was imposed if “the last reasoned opinion on the claim ex plicitly impose[ d ] a procedural default.” Y

lst v. Nunnemaker
, 501 U.S. 797, 803 (1991). B ut this arg ument d oes n o t relieve the state of itsL E E V

. J A C Q U E Z

18

burden of proving adequacy
, a nd the s t a te does not identify

cases in which a silent denial r e l i ed on a prior invocation o f Dixon

. As the Supreme C o u rt has noted, “[ t] he essence o f

u n e x plained orders is that they say n othing .” Id. at 8 0 4

. Thus, unless the state points out an underlying Dixon default behind a n ambig uous d enial, w e cannot assume that a s i l e n t adoption of Dixon occurred.

Second, the state challeng es the evidence submitted b y L ee at Bennett’ s second step, which shows that the California Supreme Court f

ailed to invoke Dixon in at least nine cases to which it should have been applied among its December 21, 1999 habeas d enials. Upon close review of these cases, a nd mindful o f the fact that we previously f ound that L ee met her burden of putting the Dixon rule’s adequacy in question, see Lee
, 406 F

. App’x at 150, we reject the st a t e ’ s challeng e

. W h ile five o f the c i ted cases raised ineffective assistance o f counsel claims, which often involve ex tra-record iss u es that would not b e barred by Dixon
, these cas e s also h ad other record-based claims to which D ixon should have a p p l ied. Since California courts reg ularly employ multiple procedural bars to deny petitions with multiple claims (as L ee’s own case ref lects), these five cases provide some evidence o f inconsistent applic at i on of Dixon

. F urther, the state arg ues that several c ase s a

re d isting uishable because they involved
p etitioners who had pled g uilty
, which restricted their rig hts

on direct a

ppeal. See Cal. Penal Code § 1237.5. B u t the state fails to ex plain how these res t r i c t ed rig hts affect h abeas
p e t itions and Dixon ’s applicability —and the state’s claim i s also belied by the ex istence of several habeas cases where Dixon barred the claims of petitioners who had p led g uilty

. See, e.g. , Reyes v

. Cash
, No. CV-13-1248, 2014 W L 37 3 4550, at *1 (C.D. Cal. J uly 28, 2014) (noting that a petitioner w ho had pled g uilty h a d h i s state h a beas petitionL E E V

. J A C Q U E Z 19

denied on procedu r al g rounds, including b y Dixon ); Gustafson v. Long
, No. CV-13-1737, 2014 W L 4187828, at *12 (C.D. Cal. Apr. 16, 2014) (same).

I n sum, we are left only with evidence that the Dixon bar

was a pplied to between seven and twenty -one percent o f a ll habeas cases filed i n t h e months surrounding L ee’s default. B ecause this statistic, without more, is incomplete, the state failed to mee t i t s b urden of proving that the Dixon b ar was “clear, consistently

applied, and well-established at the time of [ L ee’s] p u rported default.” Collier , 408 F

. 3d at 1284. 6

CONCLUSION

W e do not sug g est that the s t a te must alway s use a statistical analy sis to prove a rule’s adequacy
, and n or do we set any precise statistical bar that must be reached if the state does use such an approach. Here, however, the state chose to

u s e just such a statistical f r amework, and arg ues that, if the Dixon bar is mandatory
, statistical analy sis would be the best way to demonstrate the rule’s r eg u lar and consistent application. Endorsing this method, and then providing only

a partial statistical picture, t h e s t a te must now live with the inevitable result: Dixon ’s application to twelve p ercent of all habeas d enials te l l s u s almost nothing about the rule’s consistent application and, therefore, its adequacy

. W hile the
state requested at oral arg ument that we r emand to allow it to compile the missing r ecords, which the state c onceded were

6 L ee al s o a r g u e s t h at tw o o f h er claim s, Gro u n d 6 an d Su p p l em en t al Gro u n d 4 , w ere su f

f icien t ly raised in h er d i rect ap p eal su ch th at th ey are

n o t b arred b y Dixo n

. W e n eed n o t ad d ress th is arg u m en t b ecau se w e f in d th e Dixo n b ar to b e an in ad eq u ate state law g ro u n d

. A ll o f h er rem ain in g claim s sh o u ld b e co n sid ered o n th e m erits o n

rem an d

.L E E V

. J A C Q U E Z

20

likely a vailable, we see no r eason to g ive the state y et another

c h a n c e

. The state had a full opportunity to prove Dixon ’s adequacy and failed to do so. T hus, we rem a nd for the district court to consider L e e ’s claims on the merits.

REVERSED AND VACATED

.