FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DONNA KAY LEE,

Petitioner-Appellant,

v.

DEBRA JACQUEZ,

Respondent-Appellee.

No. 12-56258

D.C. No.

2:01-cv-10751-PA-PLA

OPINION

Appeal from the United States District Court

for the Central District of California

Percy Anderson, District Judge, Presiding

Argued and Submitted

November 17, 2014—Pasadena, California

Filed June 9, 2015

Before: Mary M. Schroeder, Harry Pregerson,

and Jacqueline H. Nguyen, Circuit Judges.

Opinion by Judge Nguyen
2 LEE V. JACQUEZ

SUMMARY*

Habeas Corpus

The panel reversed the district court’s denial of California

state prisoner Donna Kay Lee’s habeas corpus petition

challenging her first-degree murder convictions and

remanding for the district court to consider Lee’s claims on

the merits.

The district court found that Ex parte Dixon, 264 P.2d 513

(Cal. 1953), which prohibits California state courts from

considering habeas claims that should have been raised on

direct appeal but were omitted, is an adequate and

independent state law procedural rule that bars federal review

of Lee’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 Dixon bar’s adequacy at the

time of Lee’s procedural default. The panel wrote that where

the state endorsed a statistical analysis to demonstrate a rule’s

adequacy, and the panel is left only with evidence that the

Dixon bar was applied to between seven and twenty-one

percent of all habeas cases filed in the months surrounding

Lee’s default, the state failed to meet its burden of proving

that the Dixon bar was adequate.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
LEE V. JACQUEZ 3

COUNSEL

Marta VanLandingham (argued), Deputy Federal Public

Defender; and Sean Kennedy, Federal Public Defender, Los

Angeles, California, for Petitioner-Appellant.

Robert M. Snider (argued), Deputy Attorney General; Dane

R. Gillette, Chief Assistant Attorney General; Lance E.

Winters, Senior Assistant Attorney General; Kenneth C.

Byrne, Supervising Deputy Attorney General; and Kamala D.

Harris, Attorney General of California, Los Angeles,

California, for Respondent-Appellee.

OPINION

NGUYEN, Circuit Judge:

Donna Kay Lee is serving two life sentences without the

possibility of parole in a California state prison for first

degree murder. After the California Court of Appeal affirmed

her conviction on direct appeal, Lee filed various habeas

petitions in state courts. All of her claims were denied, some

on the merits and others as procedurally barred. This appeal

concerns eleven claims that the California Supreme Court

found to be procedurally barred under the Dixon rule, which

prohibits California state courts from considering habeas

claims that should have been raised on direct appeal but were

omitted. Ex parte Dixon, 264 P.2d 513 (Cal. 1953). On

federal habeas review, the district court found that Dixon is

an adequate and independent state law procedural rule that

bars federal review of Lee’s claims. However, even

assuming, without deciding, that Dixon is an independent

state law rule, the state has failed to meet its burden of
4 LEE V. JACQUEZ

demonstrating the Dixon bar’s adequacy at the time of Lee’s

procedural default. Thus, we reverse and remand for the

district court to consider her claims on the merits.

BACKGROUND

On March 23, 1998, Lee was convicted of two counts of

first degree murder in Los Angeles County Superior Court. 

She was sentenced to two life sentences without the

possibility of parole, plus an additional two years for the use

of a knife. Lee appealed her conviction on June 10, 1999,

raising four claims.1 Her appeal was denied on the merits on

August 28, 2000. The California Supreme Court affirmed on

December 13, 2000.

Proceeding pro se, Lee filed a habeas petition in federal

court, raising fourteen claims. After the government moved

to dismiss the petition as largely unexhausted, Lee moved to

withdraw her petition without prejudice to allow her to

exhaust her claims in state court. The district court held her

motion in abeyance, and ordered Lee to either submit a First

Amended Petition, limited to her exhausted claims, or move

for voluntary dismissal to pursue her claims in state court. In

response, Lee submitted a First Amended Petition, and also

moved to stay the proceedings while she exhausted her other

claims in state court. The district court granted a stay, and

Lee returned to state court to seek habeas relief, raising

eleven claims.

1 Though her original appeal lists five claims, see People v. Lee, No.

B126544, slip op. at 14 (Cal. Ct. App. Aug. 28, 2000), her first and second

claims were later consolidated on habeas review.
LEE V. JACQUEZ 5

After Lee’s habeas petitions in both the California

Superior Court and the Court of Appeal were denied,2she

filed a habeas petition with the California Supreme Court,

raising eleven claims from her original federal petition and a

new claim regarding an alleged improper exclusion of female

jurors. The Court denied her petition with citations to In re

Waltreus, 397 P.2d 1001 (Cal. 1965), In re Seaton, 95 P.3d

896 (Cal. 2004), and Dixon.

Lee then returned to federal court to proceed with her

federal habeas petition. In a Second Amended Petition, she

included the four claims she had initially raised on direct

appeal to the California courts, seven newly-exhausted

claims, and four supplemental claims (which corresponded to

the first four claims raised in her state habeas petition). The

district court dismissed her petition, rejecting four claims on

the merits and finding the rest to be procedurally defaulted

under Dixon. On appeal, we affirmed the dismissal of two of

Lee’s claims on the merits3and reversed as to the procedural

default issue, finding that the district court had “erroneously

concluded that the Ninth Circuit had found the Dixon rule to

be an independent and adequate state law ground.” Lee v.

2 Because all California courts have original jurisdiction in habeas

corpus proceedings, Cal. Const. Art. VI, § 10, “no appeal lies from the

denial of a petition for writ of habeas corpus.” In re Clark, 855 P.2d 729,

767 n.7 (Cal. 1993). Thus, a petitioner may seek relief by filing new

petitions in each court, though subsequent claims are limited to those

raised in the first petition. See In re Martinez, 209 P.3d 908, 915 (Cal.

2009).

3 We affirmed the denial of Lee’s claims regarding severance and

battered women’s syndrome, both of which were raised on direct appeal. 

Lee v. Jacquez, 406 F. App’x 148, 149 (9th Cir. 2010). Lee did not appeal

the district court’s denial on the merits of her two remaining claims, and

thus we did not consider them. See id.
6 LEE V. JACQUEZ

Jacquez, 406 F. App’x 148, 150 (9th Cir. 2010). We

remanded to give the state an opportunity to present evidence

of the Dixon rule’s independence and adequacy. Id. On

remand, the district court again concluded that the Dixon bar

was an independent and adequate state law rule at the time of

Lee’s procedural default. This timely appeal followed.

DISCUSSION

Lee argues that the state failed to meet its burden of

proving that Dixon is an independent and adequate state law

ground barring federal review of her habeas claims. We have

jurisdiction to review her claim under 28 U.S.C. §§ 1291 and

2253, and we review the district court’s denial of her habeas

petition de novo. Ybarra v. McDaniel, 656 F.3d 984, 989 (9th

Cir. 2011).

We now hold that the state failed to meet its burden of

proving the Dixon bar’s adequacy at the time of Lee’s

procedural default. Because a state procedural rule must be

both independent and adequate to prevent federal habeas

review, we need not decide whether Dixon is an independent

state law ground.

The Adequacy Requirement

“A federal habeas court will not review a claim rejected

by a state court ‘if the decision of [the state] court rests on a

state law ground that is independent of the federal question

and adequate to support the judgment.’” Beard v. Kindler,

558 U.S. 53, 55 (2009) (alteration in original) (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 advisory opinions.” Id. at 63 (Kennedy,
LEE V. JACQUEZ 7

J., concurring). Conversely, an inadequate state law ground

will not bar federal review of a claim’s merits. “We have not

allowed state courts to bar review of federal claims by

invoking new procedural rules without adequate notice to

litigants who . . . have in good faith complied with existing

state procedural law.” Id. at 63–64.

Here, the California Supreme Court declined to review

the merits of Lee’s claims by invoking Dixon’s procedural

bar, which prevents state courts from considering habeas

claims that should have been raised on direct appeal but were

not. Dixon, 264 P.2d at 514. The parties do not contest that

the Dixon rule, if independent and adequate, would bar all of

Lee’s remaining habeas claims except two (Ground 6 and

Supplemental Ground 4), because Lee 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 date when the

petitioner could have raised the claims on direct appeal. 

Fields v. Calderon, 125 F.3d 757, 760–61 (9th Cir. 1997). In

order to be adequate, a procedural bar must be “clear,

consistently applied, and well-established at the time of the

petitioner’s purported default.’” Collier v. Bayer, 408 F.3d

4 A federal court may review the merits of a claim that was procedurally

defaulted on an independent and adequate state procedural ground if the

petitioner “can demonstrate cause for the procedural default and actual

prejudice, or demonstrate that the failure to consider the claims will result

in a fundamental miscarriage of justice.” Noltie v. Peterson, 9 F.3d 802,

804–05 (9th Cir. 1993). Here, Lee has not asserted good cause for her

default, nor has she claimed that a fundamental miscarriage of justice

would occur absent consideration of her claim. See Lee v. Mitchell, No.

01-10751-PA, slip op. at 20 (C.D. Cal. June 19, 2007). Thus, we do not

reach these issues.
8 LEE V. JACQUEZ

1279, 1284 (9th Cir. 2005) (quoting Calderon v. United

States District Court (Bean), 96 F.3d 1126, 1129 (9th Cir.

1996)). The Supreme Court has described this requirement

as asking whether a state procedural rule was “firmly

established and regularly followed” at the time of the

petitioner’s default. Walker v. Martin, 131 S. Ct. 1120,

1127–28 (2011) (quoting Kindler, 558 U.S. at 60–61). The

adequacy requirement exists to prevent state courts from

discriminating against “disfavored claims,” and to “ensure

that habeas petitioners have fair notice of what they must do

to avoid default.” Kindler v. Horn, 642 F.3d 398, 401 (3d

Cir. 2011).

We have established a burden-shifting regime to guide

our evaluation of a state procedural bar’s adequacy. See

Bennett v. Mueller, 322 F.3d 573 (9th Cir. 2003). First, the

state must plead the existence of an independent and adequate

state procedural bar as an affirmative defense. Id. at 586. 

Next, the burden shifts to the petitioner, who must “assert[]

specific factual allegations that demonstrate the inadequacy

of the state procedure, including citation to authority

demonstrating inconsistent application of the rule.” Id. The

petitioner’s burden at this stage is “modest,” Dennis v.

Brown, 361 F. Supp. 2d 1124, 1130 (N.D. Cal. 2005), and the

use of unpublished decisions to show the state’s “actual

practice” is encouraged, Powell v. Lambert, 357 F.3d 871,

879 (9th Cir. 2004). If the petitioner successfully puts

adequacy at issue, then the burden shifts back to the state,

which must carry “the ultimate burden of proving the

adequacy of [a] . . . state [procedural] bar” as an affirmative

defense. Bennett, 322 F.3d at 585–86.

Applying Bennett’s burden-shifting framework to this

case, we conclude that the state has satisfied its initial burden
LEE V. JACQUEZ 9

by adequately pleading the independence and adequacy of

Dixon as an affirmative defense. At the second step, our

previous remand in this case suggests that Lee has met her

burden of putting the adequacy of the Dixon rule at issue. See

Lee, 406 F. App’x at 150 (noting that Lee “presented

evidence challenging the independence and adequacy of” the

Dixon rule and remanding to the district court for an

evaluation of the state’s “evidence to the contrary”). Thus,

we are left at the final stage of Bennett’s framework, where

the state must prove the Dixon bar’s adequacy.

A. Walker v. Martin and Discretionary State Procedural

Bars

The state argues that the Supreme Court’s decision in

Walker v. Martin, 131 S. Ct. 1120 (2011), means that the

Dixon bar may be adequate even if the rule was applied

inconsistently during the time period surrounding Lee’s

default. This argument misreads Martin’s holding and scope.

In Walker v. Martin, the Supreme Court found

California’s timeliness procedural bar to be an independent

and adequate state procedural ground that bars later federal

habeas review of a claim on the merits. Id. at 1131. 

“California does not employ fixed statutory deadlines to

determine the timeliness of a state prisoner’s petition for

habeas corpus. Instead, California directs petitioners to file

known claims ‘as promptly as the circumstances allow.’” Id.

at 1124 (quoting In re Clark, 855 P.2d 729, 738 n. 5 (Cal.

1993)). This rule has also been described as setting a general

“reasonableness” standard, where a habeas petition is deemed

timely if it was filed within a reasonable period of time. See

Carey v. Saffold, 536 U.S. 214, 221 (2002). California courts

will generally deny untimely petitions by citing to the
10 LEE V. JACQUEZ

California Supreme Court decisions of In re Clark, 855 P.2d

729 (Cal. 1993) and In re Robbins, 959 P.2d 311 (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 reasonableness of a filing

based on the particular circumstances of each petition. 

Nevertheless, relying on its previous opinion in Beard v.

Kindler, which first held that “a discretionarystate procedural

rule can serve as an adequate ground to bar federal habeas

review,” 558 U.S. at 60, the Martin Court found California’s

discretionary timeliness rule to be both firmly established and

regularly followed. 131 S. Ct. at 1128–29. The rule had

developed through case law, putting habeas petitioners on

notice that they must “alleg[e] with specificity” why their

petition was not substantially delayed or explain their

eligibility for an exception to the time bar. Id. at 1128

(alteration in original) (quoting In re Gallego, 959 P.2d 290,

299 (Cal. 1998)). Thus, even though the rule’s language is

“indeterminate” and does not set strict filing deadlines, its

“[a]pplication . . . in particular circumstances . . . supplie[s]

the requisite clarity” for the purposes of establishing

adequacy. Id. The Martin Court noted that the California

courts “regularly follow[]” and “regularly invoke” the

timeliness rule, and did so around the time the petitioner had

filed for habeas relief. Id. at 1229.

Relying on Martin, the state argues that, like California’s

timeliness rule, Dixon is a discretionary procedural bar, and

any inconsistency in Dixon’s application reflects only the

state’s exercise of discretion rather than the rule’s

inadequacy. We find this argument unpersuasive. 

California’s timeliness rule is inherently discretionary in its

initial application, while the Dixon rule is mandatory in the
LEE V. JACQUEZ 11

first instance. Evaluating whether a habeas petition has been

“filed as promptly as the circumstances allow” requires a

case-specific evaluation in every instance, leading inevitably

to varied outcomes. Id. at 1125 (quoting Clark, 855 P.2d at

738 n.5). The Dixon bar, in contrast, is meant to apply to all

habeas claims that could have been raised on direct appeal but

were not. Robbins, 959 P.3d at 340 n.34 (noting that

California courts apply the Dixon bar “whenever . . .

applicable”). Deciding whether a claim is barred by Dixon

involves not a malleable, circumstance-specific question of

“reasonableness,” but a straightforward review of the record:

A claim is either record-based, or it is not, and the petitioner

either raised or omitted a claim on direct appeal. Thus,

California state courts should be able to apply the Dixon bar

mechanically and consistently, and a failure to cite Dixon

where Dixon applies does not reflect the exercise of

discretion so much as it reflects the irregular application of

the rule.

The state attempts to get around Dixon’s mandatory

applicability by focusing on the rule’s four Harris exceptions. 

See In re Harris, 855 P.2d 391, 395 n.3, 398–407 (Cal. 1993)

(detailing the four exceptions to the Dixon rule); see also

Robbins, 959 P.2d at 340 n. 34 (clarifying that the court

considers the Harris exceptions when imposing the Dixon

bar). These exceptions allow courts to excuse a Dixon

procedural default if a “fundamental constitutional error”

occurred, if the original court lacked or acted in excess of its

jurisdiction, or if there has been “a change in the law

affecting the petitioner.” Harris, 855 P.2d at 398–407. Since

courts may decline to apply the Dixon bar when an exception

excuses a petitioner’s failure to raise a claim on appeal, the

state argues that Dixon and the timeliness rule are similarly

discretionary.
12 LEE V. JACQUEZ

While the state’s argument has some superficial appeal,

we do not believe that Dixon’s exceptions transform a

mandatory rule into a discretionary one. First, like the Dixon

rule, the timeliness bar also has four exceptions. Clark,

855 P.2d at 797–98. Yet Martin mentioned these exceptions

only in passing. See 131 S. Ct. at 1128. Instead, the Court

focused its analysis on the discretion inherent in the

timeliness bar’s initial application, rather than on the

application of the bar’s exceptions. See id. at 1125 (noting

that its holding means to ensure that California could

maintain the “flexibility of current practice”), 1130 (noting

that discretion allows courts to “avoid . . . harsh results,” and

emphasizing the importance of encouraging states to choose

more malleable rules).

Thus, even if courts must exercise discretion when

applying Dixon’s exceptions, this analysis occurs only after

Dixon has first been applied. See, e.g., In re Preston, 98 Cal.

Rptr. 3d 340, 344 (Cal. Ct. App. 2009) (noting the

applicability of the Dixon bar, and then applying one of

Dixon’s four exceptions to consider the claim on the merits);

In re Crockett, 71 Cal. Rptr. 3d 632, 637 (Cal. Ct. App. 2008)

(same). And the state court will likely invoke an exception to

the Dixon bar whenever it applies, instead of simply not

applying Dixon without explanation. Cf. Robbins, 959 P.3d

at 340 n.34 (“When, in our orders, we impose the [Dixon]

bar[] . . . this signifies that we have concluded that none of

the four [Harris] exceptions . . . apply.”).

Second, the Martin opinion carefully focused its holding

on discretionary rules, expressly noting that it “leaves

unaltered [the Supreme] Court’s repeated recognition that

federal courts must carefully examine state procedural

requirements to ensure that they do not operate to
LEE V. JACQUEZ 13

discriminate against claims of federal rights.” 131 S. Ct. at

1130. In short, Martin does not support the state’s argument

that the inconsistent application of a state procedural rule

merely reflects the state’s exercise of discretion.5 To the

contrary, while Martin noted that “[a] discretionary rule

ought not be disregarded automatically upon a showing of

seeming inconsistencies,” id. (emphasis added), the Court

also stated that “a state [procedural] rule must be ‘firmly

established and regularly followed’” to be deemed adequate,

id. at 1127–28 (quoting Kindler, 558 U.S. at 60).

We conclude that in order to bar federal review of Lee’s

habeas claims, the state must prove the Dixon rule’s regular

and consistent application around the time of Lee’s default. 

We 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 stage of Bennett’s test. 

As noted, adequacy requires that a rule be “clear, consistently

applied, and well-established,” Collier, 408 F.3d at 1284

(quoting Bean, 96 F.3d at 1129), and “firmly established and

regularly followed,” Martin, 131 S. Ct. at 1127–28 (quoting

Kindler, 558 U.S. at 60–61). Yet we lack “binding case law

defining what is a statistically insignificant irregularity and

5 Our conclusion is buttressed by the fact that other circuits have

continued to ask whether state procedural rules are regularly followed and

consistently applied after the Martin decision. See, e.g., Lee v. Corsini,

777 F.3d 46, 54 (1st Cir. 2015) (citing the “regularly followed” standard

for adequacy); Lark v. Sec’y Pa. Dep’t of Corr., 645 F.3d 596, 613 (3d

Cir. 2011) (distinguishing a “facially mandatory state procedural rule

which was not clearly followed” from the discretionary rules evaluated in

Walker and Kindler).
14 LEE V. JACQUEZ

inconsistency in the application of a state procedural bar.” 

Monarrez v. Alameda, No. 03-00104, 2005 WL 2333462

(C.D. Cal. Sept. 22, 2005), at *6. Some cases have suggested

that a rule must be applied in the “vast majority” of cases in

order to be considered adequate. Scott v. Schriro, 567 F.3d

573, 580 (9th Cir. 2009) (quoting Dugger v. Adams, 489 U.S.

401, 411 n.6 (1989)); see also Moran v. McDaniel, 80 F.3d

1261, 1270 (9th Cir. 1996). A closer look at these cases,

however, suggests that the court was describing 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 be found adequate. See Dugger,

489 U.S. at 410 n. 6 (noting that “[i]n the vast majority of

cases . . . the Florida Supreme Court has faithfully applied”

the rule at issue, without seeming to set out an absolute

standard); Scott, 567 F.3d at 580 (internal quotation marks

and citation omitted) (stating that a procedural bar “is

considered consistently applied and well-established if the

state courts follow it in the vast majority of cases”). Thus,

while a state’s reliance on a procedural ground in the vast

majority of cases would likely prove the rule’s adequacy, the

state need not necessarily reach such a high statistical bar in

order to prove its affirmative defense.

Bennett does provide some specific guidance regarding

the state’s ultimate burden, noting that “[t]he scope of the

state’s burden of proof . . . will be measured by the specific

claims of inadequacy put forth by the petitioner.’” 322 F.3d

at 584–85 (quoting Hooks v. Ward, 184 F.3d 1206, 1217

(10th Cir. 1999)). Bennett also advises the state to provide

“records and authorities [that] prove whether its courts have

regularly and consistently applied the procedural bar,”

322 F.3d at 585, which suggests that the state should do more

than just discredit the petitioner’s evidence from Bennett’s
LEE V. JACQUEZ 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 that the Dixon bar was applied

inconsistently until at least September 30, 1993, when the

California Supreme Court decided Harris to “provide needed

guidance” for application of the rule going forward. 855 P.2d

at 395 n.3, 398; see also Fields, 125 F.3d at 763 (noting that

Dixon “had been obscured” by inconsistent application over

the years); La Crosse v. Kernan, 244 F.3d 702, 705 (9th Cir.

2001) (reading Fields to hold Dixon as per se inadequate until

at least 1993). Almost five years later, the California

Supreme Court noted in Robbins that it needed to again

“provide guidance” on the Dixon rule, suggesting that the

rule’s application did not become consistent in the time

period immediately following Harris. 959 P.2d at 340 n.34;

see also Park v. California, 202 F.3d 1146, 1152 n.4 (9th Cir.

2000) (reading Robbins as an attempt “to establish the

adequacy . . . of . . . future Dixon” decisions).

After Robbins was decided, however, Dixon’s adequacy

remains unclear. Though Harris and Robbins meant to create

consistent application of the rule going forward, “it does not

follow that the rule in historical fact has been so applied.” 

Bennett, 322 F.3d at 583. In fact, while no Ninth Circuit case

has found Dixon to be inadequate in the post-Harris era, Cree

v. Sisto, No. 2:08-CV-00487, 2011 WL66253, (E.D. Cal. Jan.

7, 2011), at *2, in no case has the state met its burden of

proving Dixon’s adequacy at Bennett’s third step. See, e.g.,

Dennis v. Brown, 361 F. Supp. 2d 1124, 1133 (N.D. Cal.

2005) (concluding that the state failed to meet its burden

because it cited no cases or opinions showing actual practice);
16 LEE V. JACQUEZ

Ayala v. Ayers, No. 01-CV-0741, 2008 WL 1787317 (S.D.

Cal. Apr. 16, 2008) (same); Vaughn v. Adams, No. CVF015241, 2006 WL 1439400 (E.D. Cal. May 22, 2006),

adopted in full by Vaughn v. Adams, No. 1:01-CV-05241,

2006 WL 1774915 (E.D. Cal. June 24, 2006) (finding that the

state failed to meet its burden because it did not overcome the

specific evidence submitted by the petitioner showing

Dixon’s inadequacy). In every case where the state has been

permitted to use the Dixon bar as an affirmative defense, the

petitioner failed to place the adequacy of the bar at issue as

required by Bennett’s second step. See, e.g., Cree v. Sisto,

No. 2:08-00487, 2011 WL 66253 (E.D. Cal. Jan. 7, 2011);

Johnson v. Giurbino, No. 1:03-CV-06013, 2007 WL2481789

(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 WL 1406086 (E.D. Cal. June 14, 2005), aff’d by Flores

v. Roe, 228 F. App’x 690 (9th Cir. 2007); Protsman v. Pliler,

318 F. Supp. 2d 1004, 1014 (S. D. Cal. 2004).

While these lower court evaluations of Dixon’s adequacy

are not binding, these decisions inform our analysis because

“[a] procedural rule is either adequate or inadequate during a

given time period.” King v. LaMarque, 464 F.3d 963, 968

(9th Cir. 2006). Thus, the fact that the state has never shown

Dixon’s adequate application at Bennett’s third step is not

insignificant as we evaluate its efforts to meet its burden in

this case.

C. The State’s Evidence

With this backdrop in mind, we turn to the state’s

evidence. The state analyzed 4,700 California Supreme Court

habeas denials surrounding the time of Lee’s June 10, 1999

default, finding that the Dixon procedural bar was invoked in
LEE V. JACQUEZ 17

approximately twelve percent of all habeas denials. Though

the application rate varied between seven and twenty-one

percent across the months surveyed (August 1998 to June

2000), the state argues that this shows a “predictable”

application of Dixon such that the rule was an adequate state

law ground at the time of Lee’s default.

We find this evidence entirely insufficient to meet the

state’s burden of showing the Dixon rule’s adequacy. The

state’s evidence merely shows Dixon’s application as a

percentage of all habeas denials filed during this time period,

and does not purport to show to how many cases the Dixon

bar should have been applied. Logic dictates that in order to

know if invoking Dixon in twelve percent of all cases shows

consistent application, we need to know “the number of times

that claims to which the Dixon rule could apply were instead

rejected on the merits.” Lee v. Mitchell, No. CV-01-10751-

PA, 2012 WL 2194471, at *18 (C.D. Cal. May 1, 2012).

Thus, we are missing the denominator that would give any

meaning to the state’s number. Without a baseline number

against which to measure the twelve percent application rate,

this percentage in no way indicates the consistency of the

rule’s application.

The state attempts to cover the gap in its evidence in two

ways. First, the state argues that many of the habeas denials

from the surveyed time period were actually silently applying

procedural bars that were first invoked by a lower state court. 

This may be so. If the California Supreme Court denies a

habeas petition without explanation, the federal courts will

presume that a procedural default was imposed if “the last

reasoned opinion on the claim explicitly impose[d] a

procedural default.” Ylst v. Nunnemaker, 501 U.S. 797, 803

(1991). But this argument does not relieve the state of its
18 LEE V. JACQUEZ

burden of proving adequacy, and the state does not identify

cases in which a silent denial relied on a prior invocation of

Dixon. As the Supreme Court has noted, “[t]he essence of

unexplained orders is that they say nothing.” Id. at 804. 

Thus, unless the state points out an underlying Dixon default

behind an ambiguous denial, we cannot assume that a silent

adoption of Dixon occurred.

Second, the state challenges the evidence submitted by

Lee at Bennett’s second step, which shows that the California

Supreme Court failed to invoke Dixon in at least nine cases

to which it should have been applied among its December 21,

1999 habeas denials. Upon close review of these cases, and

mindful of the fact that we previously found that Lee met her

burden of putting the Dixon rule’s adequacy in question, see

Lee, 406 F. App’x at 150, we reject the state’s challenge. 

While five of the cited cases raised ineffective assistance of

counsel claims, which often involve extra-record issues that

would not be barred by Dixon, these cases also had other

record-based claims to which Dixon should have applied. 

Since California courts regularly employ multiple procedural

bars to deny petitions with multiple claims (as Lee’s own case

reflects), these five cases provide some evidence of

inconsistent application of Dixon. Further, the state argues

that several cases are distinguishable because they involved

petitioners who had pled guilty, which restricted their rights

on direct appeal. See Cal. Penal Code § 1237.5. But the state

fails to explain how these restricted rights affect habeas

petitions and Dixon’s applicability—and the state’s claim is

also belied by the existence of several habeas cases where

Dixon barred the claims of petitioners who had pled guilty. 

See, e.g., Reyes v. Cash, No. CV-13-1248, 2014 WL

3734550, at *1 (C.D. Cal. July 28, 2014) (noting that a

petitioner who had pled guilty had his state habeas petition
LEE V. JACQUEZ 19

denied on procedural grounds, including by Dixon);

Gustafson v. Long, No. CV-13-1737, 2014 WL 4187828, at

*12 (C.D. Cal. Apr. 16, 2014) (same).

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

was applied to between seven and twenty-one percent of all

habeas cases filed in the months surrounding Lee’s default. 

Because this statistic, without more, is incomplete, the state

failed to meet its burden of proving that the Dixon bar was

“clear, consistently applied, and well-established at the time

of [Lee’s] purported default.” Collier, 408 F.3d at 1284.6

CONCLUSION

We do not suggest that the state must always use a

statistical analysis to prove a rule’s adequacy, and nor 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

use just such a statistical framework, and argues that, if the

Dixon bar is mandatory, statistical analysis would be the best

way to demonstrate the rule’s regular and consistent

application. Endorsing this method, and then providing only

a partial statistical picture, the state must now live with the

inevitable result: Dixon’s application to twelve percent of all

habeas denials tells us almost nothing about the rule’s

consistent application and, therefore, its adequacy. While the

state requested at oral argument that we remand to allow it to

compile the missing records, which the state conceded were

6 Lee also argues that two of her claims, Ground 6 and Supplemental

Ground 4, were sufficiently raised in her direct appeal such that they are

not barred by Dixon. We need not address this argument because we find

the Dixon bar to be an inadequate state law ground. All of her remaining

claims should be considered on the merits on remand.
20 LEE V. JACQUEZ

likely available, we see no reason to give the state yet another

chance. The state had a full opportunity to prove Dixon’s

adequacy and failed to do so. Thus, we remand for the

district court to consider Lee’s claims on the merits.

REVERSED AND VACATED.