Freddy Curiel v. Amy Miller

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FREDDY CURIEL, No. 11-56949

Petitioner-Appellant,

D.C.

v. No. 8:10-cv-00301-

DDP-FMO

AMY MILLER, Warden,

Respondent-Appellee.

OPINION

Appeal from the United States District Court

for the Central District of California

Dean D. Pregerson, District Judge, Presiding

Argued and Submitted En Banc March 23, 2016

San Francisco, California

Filed July 25, 2016

Before: Sidney R. Thomas, Chief Judge, and Stephen

Reinhardt, Barry G. Silverman, Susan P. Graber, Ronald

M. Gould, Richard A. Paez, Jay S. Bybee, Mary H.

Murguia, Andrew D. Hurwitz, John B. Owens, and

Michelle T. Friedland, Circuit Judges.

Opinion by Judge Murguia;

Concurrence by Judge Reinhardt;

Concurrence by Judge Bybee

2 CURIEL V. MILLER

SUMMARY*

Habeas Corpus

The en banc court reversed the district court’s judgment

dismissing as untimely California state prisoner Freddy

Curiel’s federal habeas corpus petition.

The en banc court held that the California Supreme

Court’s denial of Curiel’s third state habeas petition with

reference to In re Swain and People v. Duvall , California

Supreme Court cases concerning the state habeas pleading

particularity requirement, and with no reference to a

California case dealing with untimeliness, demonstrate that

the California Supreme Court found Curiel’s third petition to

be timely but deficiently pleaded, and in doing so, overruled

the prior untimeliness rulings of the Superior Court and the

Court of Appeal. The en banc court concluded that because

the California Supreme Court’s timeliness holding prevails,

Curiel’s state habeas petitions must be deemed “properly

filed” for their entire pendency in state court for purposes of

tolling AEDPA’s statute of limitations, and that with such

statutory tolling, Curiel filed his federal petition within the

limitations period.

Concurring, Judge Reinhardt urged the California

Supreme Court to specify whether it is deciding on the merits

any or all of the questions of federal constitutional law that

are raised in the case before it, and identify the constitutional

basis of all such claims that it is denying, if any. He wrote

*

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

been prepared by court staff for the convenience of the reader.

CURIEL V. MILLER 3

separately to urge the California Supreme Court to take a

slightly different approach to questions of federal

constitutional law in view of recent decisions of the United

States Supreme Court that have placed on state courts an

almost impossible burden of being the final decision-maker

in an overwhelming number of cases involving fundamental

constitutional rights of criminal defendants.

Concurring, Judge Bybee wrote separately to express

frustration that communication between the California

Supreme Court and this court over the proper interpretation

of California state habeas decisions has devolved into a

series of hints that the California Supreme Court obliquely

telegraphs and that this court struggles to decipher.

COUNSEL

Jan B. Norman (argued), Altadena, California, for Petitioner-

Appellant.

Kevin Vienna (argued), Supervising Deputy Attorney

General; Angela M. Borzachillo, Deputy Attorney General;

Julie L. Garland, Senior Assistant Attorney General; Kamala

D. Harris, Attorney General; Office of the Attorney General,

San Diego, California; for Respondent-Appellee.

4 CURIEL V. MILLER

OPINION

MURGUIA, Circuit Judge:

This case concerns the timeliness of Freddy Curiel’s

federal habeas petition under the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”). We hold that the

district court erred in dismissing Curiel’s habeas petition as

untimely.

BACKGROUND

In March 2006, a California jury convicted Curiel of

special circumstances first-degree murder and street

terrorism. Curiel was sentenced to life in prison without the

possibility of parole, plus twenty-five years.

Curiel appealed his conviction to the California Court of

Appeal, which affirmed, and to the California Supreme Court,

which denied his petition for review on June 11, 2008.

Curiel’s conviction became final on September 9, 2008, after

the time for Curiel to file a petition for a writ of certiorari in

the United States Supreme Court lapsed. 28 U.S.C.

§ 2244(d)(1)(A).

On May 12, 2009,1 Curiel initiated a collateral attack on

his conviction by filing a petition for a writ of habeas corpus

1

All of the filing dates reflect the constructive filing date of the petition

in accordance with the “mailbox rule,” which provides that a habeas

petition is deemed filed when the prisoner delivers it to prison authorities

for forwarding to the clerk of the court, not when the petition is filed by

the court. Ramirez v. Yates, 571 F.3d 993, 996 n.1 (9th Cir. 2009). The

parties agree that the mailbox rule applies and do not contest the relevant

dates.

CURIEL V. MILLER 5

in Orange County Superior Court. The court denied his

petition on June 10, 2009, on the “separate and independent

grounds” that it was untimely and that Curiel failed to set

forth a prima facie case for relief. On July 7, 2009, Curiel

filed a second habeas corpus petition in the California Court

of Appeal, which the Court of Appeal denied on August 6,

2009, without comment or citation to authority. On

September 7, 2009, Curiel filed a third habeas petition in the

California Supreme Court, raising the same claims as his first

two state petitions. On February 18, 2010, the California

Supreme Court dismissed Curiel’s petition in a decision that

reads in full: “The petition for writ of habeas corpus is

denied. (See In re Swain (1949) 34 Cal.2d 300, 304; People

v. Duvall (1995) 9 Cal.4th 464, 474.).”

On March 8, 2010, Curiel filed a federal petition for

habeas corpus pursuant to 28 U.S.C. § 2254 in federal district

court. The government moved to dismiss Curiel’s habeas

petition as untimely because it was filed more than one year

after his conviction became final. In opposition, Curiel

argued that AEDPA’s statute of limitations should be

statutorily tolled for the period during which his state habeas

petitions were pending, and also that he was entitled to

equitable tolling due to trial counsel’s alleged delay in

returning his client file.

Accepting the findings and recommendation of the

magistrate judge, the district court determined that Curiel was

not entitled to statutory tolling for the three months that his

habeas petitions were pending in the California Superior

Court or the Court of Appeal because untimely petitions do

not toll AEDPA’s limitations period. The district court

observed that the Superior Court had explicitly imposed an

untimeliness bar in denying Curiel’s first habeas petition, and

6 CURIEL V. MILLER

held that the Court of Appeal implicitly adopted the Superior

Court’s reasoning when it denied Curiel’s second petition

without explanation. The district court did, however, toll

Curiel’s federal filing deadline for the pendency of his

petition in the California Supreme Court, concluding that the

Supreme Court’s citations to Swain and Duvall indicated that

the court had denied Curiel’s third petition based solely on

the deficiency of his pleadings. Nevertheless, tolling the

clock for the period that Curiel’s petition was before the

California Supreme Court, alone, was insufficient to render

Curiel’s federal petition timely. Therefore, after rejecting

Curiel’s equitable tolling argument, the district court

dismissed Curiel’s habeas petition with prejudice.

Curiel timely appealed, and we issued a certificate of

appealability as to the timeliness of Curiel’s federal petition

for habeas corpus.

STANDARD OF REVIEW

We review de novo a district court’s denial of a habeas

corpus petition. Hurles v. Ryan, 752 F.3d 768, 777 (9th Cir.

2014). Where, as here, the facts underlying a habeas

petitioner’s claim for tolling of AEDPA’s limitations period

are undisputed, we also review de novo whether the statute of

limitations should be tolled. Espinoza-Matthews v.

California, 432 F.3d 1021, 1025 (9th Cir. 2005).

DISCUSSION

AEDPA requires a state prisoner to file a federal habeas

petition pursuant to 28 U.S.C. § 2254 within one year of the

date on which his conviction becomes final on direct review,

unless the petitioner qualifies for statutory or equitable

CURIEL V. MILLER 7

tolling. Id. § 2244(d)(1)(A). In Curiel’s case, AEDPA’s one-

year statute of limitations lapsed on September 9, 2009. See

id. Curiel filed his federal petition on March 8, 2010. Thus,

for his petition to be timely, Curiel must demonstrate that he

is entitled to at least six months of tolling.

I.

“[A] properly filed application for State post-conviction

or other collateral review” tolls AEDPA’s statute of

limitations for the pendency of the state court proceedings.

Id. § 2244(d)(2). A habeas petition that is untimely under

state law is not “properly filed.” Pace v. DiGuglielmo,

544 U.S. 408, 413 (2005). Therefore, none of the time before

or during the state court’s consideration of an untimely

petition is tolled for purposes of AEDPA’s limitations period.

Evans v. Chavis, 546 U.S. 189, 197 (2006).

In California, courts “appl[y] a general ‘reasonableness’

standard” when determining whether a habeas petition was

timely filed. Carey v. Saffold, 536 U.S. 214, 222 (2002). A

petition is timely under California law when the highest state

court to render a decision on the petition finds it to be so.

Campbell v. Henry, 614 F.3d 1056, 1061 (9th Cir. 2010).

II.

The California Supreme Court rules on a “staggering”

number of habeas petitions each year, generally by issuing

“unelaborated ‘summary denials.’” Walker v. Martin,

562 U.S. 307, 312–13 (2011). When the California Supreme

Court denies a habeas corpus petition without opinion, it

“frequently cites either a California Supreme Court case or

some other authority which indicates to the petitioner the

8 CURIEL V. MILLER

grounds for the denial.” Harris v. Superior Court, 500 F.2d

1124, 1127–28 (9th Cir. 1974) (en banc). The California

Supreme Court has provided us with the following guidance

on how to interpret its summary denial practice:

[W]hen respondent asserts that a particular

claim or subclaim . . . is untimely, and when,

nevertheless, our order disposing of a habeas

corpus petition does not impose the proposed

bar . . . as to that claim or subclaim, this

signifies that we have considered respondent’s

assertion and have determined that the claim

or subclaim is not barred on the cited ground

....

In re Robbins, 959 P.2d 311, 340 n.34 (Cal. 1998).

“California courts signal that a habeas petition is denied

as untimely by citing the controlling decisions . . . Clark and

Robbins,” which describe California’s timeliness rule.

Walker, 562 U.S. at 310, 312 (citing Robbins, 959 P.2d at

317; In re Clark, 855 P.2d 729 (Cal. 1993)). By contrast, the

cases cited by the California Supreme Court here—In re

Swain and People v. Duvall—both concern the pleading

requirements that apply to a state habeas petitioner’s claims.

In Swain, the California Supreme Court explained that a

petitioner must “allege with particularity the facts upon which

he would have a final judgment overturned.” 209 P.2d at

795–96. The California Supreme Court denied Swain’s

habeas petition “without prejudice to the filing of a new

petition which shall meet the requirements” that it had just set

forth. Id. at 796. Likewise, in Duvall, the California

Supreme Court reiterated that a habeas petitioner must “state

fully and with particularity the facts on which relief is

CURIEL V. MILLER 9

sought” and “include copies of reasonably available

documentary evidence supporting the claim.” 886 P.2d at

1258.

We understand the California Supreme Court’s denial of

a habeas petition with citations to Swain and Duvall in

conjunction as, “in effect, the grant of a demurrer, i.e., a

holding that [the petitioner] ha[s] not pled facts with

sufficient particularity.”2 Gaston v. Palmer, 417 F.3d 1030,

1039 (9th Cir. 2005), reh’g granted, opinion modified on

other grounds, 447 F.3d 1165 (9th Cir. 2006); accord Cross

v. Sisto, 676 F.3d 1172, 1177–78 (9th Cir. 2012); see also

Seeboth v. Allenby, 789 F.3d 1099, 1104 n.3 (9th Cir. 2015)

(“We have held that citation to Duvall and Swain together

constitutes ‘dismissal without prejudice, with leave to amend

to plead required facts with particularity.’” (quoting Cross,

676 F.3d at 1177)). The United States Supreme Court has

attributed the same significance to a citation to Swain. See

Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991) (summarizing

Swain as holding “that facts relied upon in a habeas petition

must be alleged with particularity”). Accordingly, and

consonant with the California Supreme Court’s own

explanation of its summary order practice, we hold that the

California Supreme Court’s denial of Curiel’s third habeas

petition with reference to Swain and Duvall—and not a

California case dealing with untimeliness—means that the

California Supreme Court rejected Curiel’s petition as

insufficiently pleaded. See Cross, 676 F.3d at 1178; Gaston,

417 F.3d at 1039. And a state petition that was timely filed

2

In its motion to dismiss Curiel’s federal habeas petition, the

government agreed that “in combination with the citation to Duvall, the

Ninth Circuit has interpreted citations to Swain to indicate that a petition

was denied for failing to state claims with the requisite particularity.”

10 CURIEL V. MILLER

but inadequately pleaded under California law is considered

“properly filed” and entitles a federal petitioner to statutory

tolling under § 2244(d)(2). Gaston, 417 F.3d at 1039. Thus,

the dispositive question is whether to treat the California

Supreme Court’s citations to Swain and Duvall as an

affirmative finding that Curiel’s claims were timely,

depriving the contrary rulings by the Superior Court and

Court of Appeal of all force and effect.

III.

AEDPA directs federal courts to train their attention on

the particular reasons why each state court that considered a

prisoner’s claims denied relief. When more than one state

court has adjudicated a claim, the federal court analyzes the

last “reasoned” state court decision. Barker v. Fleming,

423 F.3d 1085, 1091 (9th Cir. 2005) (citing Ylst, 501 U.S. at

803–04). In doing so, “the federal court should review the

last decision in isolation and not in combination with

decisions by other state courts.” Id. at 1093.

When at least one state court has rendered a reasoned

decision, but the last state court to reject a prisoner’s claim

issues an order “whose text or accompanying opinion does

not disclose the reason for the judgment,” we “look through”

the mute decision and presume the higher court agreed with

and adopted the reasons given by the lower court. Ylst,

501 U.S. at 802–06. However, if more than one state court

has rendered a reasoned decision on a habeas petition, the

ordinary rules of appellate review apply, such that a

determination by a higher-level court overrules a

CURIEL V. MILLER 11

determination on the same issue by a lower-level court.3

Chavis, 546 U.S. at 192–93; Saffold, 536 U.S. at 221–22;

Campbell, 614 F.3d at 1061. There is no question that the

timeliness of a habeas petition is a matter subject to appellate

review. Campbell, 614 F.3d at 1061. Thus, “if the highest

court to render a decision determines that the claim is timely,

then that claim was timely when it was before the lower

court.” Id.

We have no cause to treat a state court’s summary order

with citations as anything but a “reasoned” decision, provided

that the state court’s references reveal the basis for its

decision. Cf. Ylst, 501 U.S. at 802–03 (defining an

“unexplained” order as one from which the state court’s

rationale is “undiscoverable”). The Supreme Court has never

required state courts to be verbose for AEDPA purposes. See

Harrington v. Richter, 562 U.S. 86, 98 (2011) (“There is no

text in the statute requiring a statement of reasons.”). The

United States Supreme Court has surmised that a summary

denial with citations to the relevant California precedent on

untimely habeas petitions is sufficient to impose an

untimeliness bar. See Martin, 562 U.S. at 319 (“In reasoned

opinions, too, California courts regularly invoke Clark[] [and]

Robbins . . . to determine whether a habeas petition is time

barred.”); Chavis, 546 U.S. at 207 (Stevens, J., concurring)

(“The decision that a petition has been untimely filed need

not be explicitly stated; citation to a case in which a petition

3

California’s collateral review system differs from that of other States

in that it contemplates that a prisoner will file a new “original” habeas

petition in each court in which he seeks relief. Saffold, 536 U.S. at 222.

Nevertheless, it is well settled that California’s original writ system is

sufficiently analogous to appellate review systems in other states, such

that a higher state court may overturn a lower court’s ruling on a particular

issue. Id. at 222–23.

12 CURIEL V. MILLER

was dismissed as untimely filed certainly would suffice.”).

In the same vein, in Thorson v. Palmer we held that the

California Supreme Court had provided a “clear ruling” that

it found a habeas petition untimely when the court’s order

stated in its entirety, “Petition for writ of habeas corpus is

DENIED,” accompanied by a citation to Robbins. 479 F.3d

643, 644–45 (9th Cir. 2007).

The California Supreme Court’s citations to Swain and

Duvall offer equally adequate insight into the court’s

reasoning to treat its opinion as the last reasoned decision on

the timeliness of Curiel’s state habeas petitions. To the extent

that a denial accompanied by citations to Swain and Duvall is

the equivalent of a demurrer for pleading inadequacies, the

California Supreme Court’s decision indicates that the court

must have found Curiel’s petition timely, because a demurrer

is irreconcilable with the lower courts’ untimeliness

determinations. A dismissal without prejudice for failure to

plead with specificity invites a refiling of the habeas petition,

while a dismissal for lack of timeliness precludes it.

Further, Curiel presented the same claims to the

California Supreme Court that he had in his first two habeas

petitions, along with the Superior Court’s decision denying

relief on untimeliness grounds. Thus, the California Supreme

Court was aware that the lower courts had already denied

Curiel’s first two petitions for untimeliness. If it agreed with

those courts’ conclusions, the California Supreme Court

could have simply issued a postcard denial without

explanation or citation, or denied Curiel’s petition by citing

Robbins and Clark. See Martin, 562 U.S. at 318–19. It did

neither. As the United States Supreme Court has explained,

so long as the state court’s timeliness ruling is clear, that is

“the end of the matter.” Saffold, 536 U.S. at 226. Under the

CURIEL V. MILLER 13

circumstances, the California Supreme Court’s citations to

Swain and Duvall (and no other cases) are a clear signal that

it found Curiel’s habeas petitions timely.

The Supreme Court has admonished us in the past not to

assume that a California court found a state habeas petition to

be timely from the court’s silence on the question. Chavis,

546 U.S. at 193–94, 198. State courts have always been free

to eschew procedural determinations and “summarily dismiss

a petition on the merits, if that is the easier path.” Martin,

562 U.S. at 319. Nevertheless, in cases in which the

California Supreme Court has explained its decision—as it

did here—the principles of comity and federalism underlying

AEDPA’s tolling rule compel us to fairly abide by the state

court’s timeliness determination. See Saffold, 536 U.S. at

222–23 (describing the purpose underlying AEDPA’s statute

of limitations). The California Supreme Court’s citations to

Swain and Duvall demonstrate that the court found Curiel’s

third petition timely but deficiently pleaded; in doing so, the

California Supreme Court overruled the prior untimeliness

rulings of the Superior Court and Court of Appeal. To hold

otherwise would neglect the effort of the California Supreme

Court to differentiate its reasoning from that of the lower

courts.

IV.

Because the California Supreme Court’s timeliness

holding prevails, Curiel’s state habeas petitions must be

deemed properly filed for their entire pendency in state court

14 CURIEL V. MILLER

for purposes of tolling AEDPA’s statute of limitations.4 See

Campbell, 614 F.3d at 1060–61; see also Trigueros v. Adams,

658 F.3d 983, 991 (9th Cir. 2011) (holding that a habeas

petitioner was entitled to statutory tolling for the period from

the date he filed his state habeas petition in Los Angeles

County Superior Court until the date his state habeas petition

was denied by the California Supreme Court, because the

California Supreme Court did not find the petitioner’s state

petition time barred). It is therefore easy to conclude that

Curiel’s federal habeas petition was timely. AEDPA’s statute

of limitations began to run on September 9, 2008. Curiel

filed his first state habeas petition on May 12, 2009, and the

California Supreme Court denied his last petition on February

18, 2010. Curiel is thus entitled to 283 days of statutory

tolling for this period, which extends the deadline for Curiel

to file his federal habeas petition until June 2010. Curiel filed

his federal petition in district court on March 8, 2010, well

within the extended limitations period.5

4

The district court was correct in its interpretation of the California

Supreme Court’s citation to Swain and Duvall. The district court erred

only by tolling the statute of limitations solely for the time during which

Curiel’s last petition was before the California Supreme Court, rather than

for the entire duration of Curiel’s state collateral review proceedings. See

Campbell, 614 F.3d at 1061.

5

During the pendency of these en banc proceedings, the United States

Supreme Court decided Kernan v. Hinojosa, 136 S. Ct. 1603 (2016),

holding that the California Supreme Court had not silently disregarded a

procedural bar imposed by the Superior Court when the California

Supreme Court summarily denied Hinojosa habeas relief, such that its

decision was “on the merits” for AEDPA purposes. Id. at 1604–06. In

Hinojosa, the United States Supreme Court concluded that Ylst’s “look-

through” presumption did not apply to the California Supreme Court’s

summary denial because the reasons supplied in the last reasoned state

court decision—the Superior Court’s order denying Hinojosa’s habeas

CURIEL V. MILLER 15

CONCLUSION

For the foregoing reasons, we hold that the district court

erred in dismissing Curiel’s federal habeas petition as

untimely. Because Curiel timely filed his federal habeas

petition once we account for statutory tolling, we do not reach

the question of equitable tolling.

REVERSED and REMANDED.

REINHARDT, Circuit Judge, concurring:

I concur fully in Judge Murguia’s opinion for the court.

I also agree generally with Judge Bybee that our decision-

making would be aided significantly if the California

Supreme Court were to explain more clearly the basis for its

summary denials. Even more important, I would urge the

California Supreme Court to specify in its opinions whether

it is deciding on the merits any or all of the questions of

federal constitutional law that are raised in the case before it,

and identify the constitutional basis of all such claims that it

is denying, if any.

petition for improper venue—could not logically have been adopted by the

California Supreme Court when it denied Hinojosa’s habeas petition

without comment or citation. See id. at 1606 (“Improper venue could not

possibly have been a ground for the high court’s summary denial of

Hinojosa’s claim. There is only one Supreme Court of California—and

thus only one venue . . . .”). Although Hinojosa also concerned the

interpretation of a summary decision by the California Supreme Court,

neither its reasoning nor its result alters the outcome of this case.

16 CURIEL V. MILLER

I write separately, however, to urge the California

Supreme Court to take a slightly different approach to

questions of federal constitutional law in view of recent

decisions of the United States Supreme Court that have

placed an almost impossible burden on state courts: to be the

final decision-maker in an overwhelming number of cases

involving fundamental constitutional rights of criminal

defendants. Although recognizing that the California

Supreme Court “disposes of close to 10,000 cases a year,

including more than 3,400 original habeas corpus petitions,”

Harrington v. Richter, 562 U.S. 86, 99 (2011), the United

States Supreme Court has virtually eliminated the ability of

federal courts to enforce the Constitution when reviewing

state court convictions, holding instead that under AEDPA

federal courts must defer to state court decisions regarding

questions of federal constitutional law, even though the state

courts often have neither the time nor the resources to fully

and carefully consider those questions or even to explain their

rulings.

Hamstrung as the federal courts now are as a result of

these post-AEDPA decisions, state supreme courts have

become, at least for the time being, the last safeguard of the

United States Constitution in the vast majority of criminal

cases, and the last guardian against constitutional violations

resulting from deliberate actions of state and local law

enforcement and other officials. The failure or inability of

state supreme courts to carefully scrutinize lower state court

decisions involving claims of federal constitutional error will,

in the absence of some modification to the present process,

leave without a remedy numerous individuals who have been

deprived of their fundamental rights. It is an unfortunate and

overwhelming burden that the Supreme Court has, perhaps

unwittingly, placed upon state courts, but I would hope that

CURIEL V. MILLER 17

those courts, especially California’s, will find a way to help

ensure that our Constitution will nevertheless be enforced and

that justice will be achieved in all cases.

***

It is no secret that the United States Supreme Court has

severely limited the ability of federal courts to grant habeas

relief ever since the passage in 1996 of the Antiterrorism and

Effective Death Penalty Act (“AEDPA”). It has done so by

interpreting that statute in exceedingly narrow, and in my

view, exceedingly unfortunate, ways. AEDPA, which was

adopted at the urging of President Bill Clinton in the

immediate wake of the Oklahoma City bombing—

purportedly as a means of combatting domestic terrorism, but

coincidentally during a presidential election year—prohibits

federal courts from granting habeas relief on issues that state

courts have addressed, unless the state court decision “was

contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the

Supreme Court of the United States.” 28 U.S.C. § 2254(d).

Although AEDPA itself limits federal review of state

convictions, the Supreme Court’s increasingly restrictive

interpretation of that provision has gone well beyond the face

of the statute to virtually eliminate meaningful federal review.

The Supreme Court’s restrictions on the ability of federal

courts to protect the constitutional rights of criminal

defendants in state proceedings began in 2000 with its

decision in Williams v. Taylor. 529 U.S. 362. There, the

Court explained that federal courts cannot grant habeas relief

even if a constitutional violation is clear under established

circuit court law unless the constitutional question at issue

has been decided by a holding of the Supreme Court. See id.

18 CURIEL V. MILLER

at 403–06, 412. Not only must the Supreme Court have

previously decided the constitutional question at issue, but the

“precise contours” of the rule must have been established by

the Supreme Court. See Lockyer v. Andrade, 538 U.S. 63,

75–76 (2003). Further, slight factual differences between

cases have been enough for the Court to determine that no

“clearly established” law existed on a particular question. See

Carey v. Musladin, 549 U.S. 70, 75–77 (2006); see also

White v. Woodall, 134 S. Ct. 1697, 1706–07 (2014); Knowles

v. Mirzayance, 556 U.S. 111, 121 (2009). The Supreme

Court, of course, hears only about 80 cases per year, most of

which are not criminal cases, and it therefore addresses

applications of constitutional law in that area far less

frequently than circuit courts. Moreover, it generally does

not consider cases when the circuit courts are in agreement

and no conflict exists. Thus, in those instances in which

developments in the law are generally agreed upon, there is

likely to be no clearly established Supreme Court law at all,

simply because the law is so clear as not to require

intervention by the Court. For these reasons and others,

although a constitutional violation may be clear, federal

courts will often be unable to grant habeas relief as there is no

“clearly established” Supreme Court law governing the

question—certainly a counter-intuitive, if not a counter-

productive, result.

In addition to the restrictive “clearly established”

Supreme Court law doctrine, Williams began a march by the

Supreme Court toward a narrow and regressive definition of

the phrase “unreasonable application.” In that case, the Court

held that federal courts may not grant relief even though the

state courts erroneously applied clearly established Supreme

Court law. Rather, it said, any erroneous application of the

Constitution must also be objectively unreasonable. See

CURIEL V. MILLER 19

Williams, 529 U.S. at 410–13. To many judges’ great

surprise, the Court then determined that this standard was not

met even if federal courts had a definite and firm conviction

that the state court had erroneously applied clearly

established Supreme Court law. See Andrade, 538 U.S. at 75.

Subsequently, the Court held that a decision could be

objectively unreasonable only “in cases where there is no

possibility fairminded jurists could disagree that the state

court’s decisions conflicts with [the Supreme Court’s]

precedents.” Richter, 562 U.S. at 102–03 (emphasis added).1

Next, the Supreme Court held that if the state court’s

rejection of the petitioner’s claim is “unaccompanied by an

explanation,” federal courts must attempt to conjure up a

plausible, though not necessarily correct, hypothetical basis

for the state court’s decision, and, if they can, that will

suffice. See id. at 98–99; Johnson v. Williams, 133 S. Ct.

1088 (2013). Thus, even if every imagined basis that the

federal court can think of is clearly incorrect, the court may

still not grant relief so long as any of the reasons, while

wrong, could be deemed “reasonable.” In short, even though

an individual has erroneously been deprived of his

constitutional rights, he must remain in prison, perhaps for

life, or even possibly suffer capital punishment, if there is no

1

This last holding is indeed puzzling. The Supreme Court provided no

guidance with respect to how one might determine whether a jurist is, in

fact, “fairminded.” Indeed, as Justice O’Connor noted in Williams,

defining “unreasonable application” by reference to reasonable jurists is

not only “of little assistance to the courts that must apply” AEDPA, but is

also “misleading.” See Williams, 529 U.S. at 409–10. That is because in

every habeas case at least several of the nation’s presumably fairminded

jurists have made the decision not to grant relief, and therefore, every

issue has already been subject to at least some disagreement among

fairminded jurists.

20 CURIEL V. MILLER

pre-existing Supreme Court case that has recognized the

specific error involved or if the state court’s ruling, although

erroneous, could have been arrived at by a “fairminded

jurist,” however that term may be defined. See supra n. 1.

This is only a small sample of the Supreme Court’s

restrictive habeas jurisprudence, and its drive toward

eliminating federal review does not appear to have yet

reached its limit. In Cullen v. Pinholster, the Supreme Court

held that federal courts must not only defer to all

“reasonable” though erroneous state court decisions, but that

in determining whether a decision was reasonable, federal

courts must ignore all evidence that had not been presented

initially to the state court. 563 U.S. 170, 181–85 (2011).

This decision was not only based on an unprecedented

interpretation of AEDPA, but it constrains federal courts’

ability to correct egregious constitutional violations when

state courts, as in Pinholster, refuse to hold evidentiary

hearings on federal constitutional issues or when petitioners

previously had incompetent representation which failed to

properly develop the record before the state courts.2

Just last year, the Supreme Court reversed this court for

granting habeas relief in a case in which there had been an

egregious constitutional violation relating to the exclusion by

the prosecution of all minority members from a jury that

sentenced a young Hispanic man to death. Davis v. Ayala,

2

One narrow exception to this constraint exists. Federal courts may

consider new evidence in order to determine whether a petitioner can

establish cause and prejudice to excuse the procedural default of an

ineffective assistance of trial counsel claim under Martinez v. Ryan,

132 S. Ct. 1309 (2012). See Dickens v. Ryan, 740 F.3d 1302, 1319–21

(9th Cir. 2014).

CURIEL V. MILLER 21

135 S. Ct. 2187 (2015). The defendant in that case

challenged this systematic exclusion of minority jurors, but

neither he nor his counsel was allowed to be present when the

prosecution provided purportedly race-neutral reasons for its

actions to the judge. Despite the blatant deprivation of due

process, a bare majority of the United States Supreme Court

held that under AEDPA no relief could be granted by a

federal court because “a fairminded jurist could agree” with

the state court’s determination that the error was harmless.

See Ayala, 135 S. Ct. at 2198–99, 2203. Again, of course,

that appears to mean that even if the state court ruling was in

actuality contrary to the dictates of the Constitution, as surely

it was,3 federal courts are powerless to enforce defendants’

fundamental rights if some, even a small minority of,

“fairminded jurists” might disagree.

Ayala is illustrative of the frustrations many federal jurists

have with the current habeas system. As the Supreme Court

has repeatedly recognized, state appellate courts face heavy

caseloads that often prevent them from fully analyzing

3

As Justice Sotomayor eloquently explained in her dissent, “secret

decisions based on only one side of the story will prove inaccurate more

often than those made after hearing from both sides.” Ayala, 135 S. Ct.

at 2212 (Sotomayor, J. dissenting) (internal quotations omitted). “Absent

an adversarial presentation, a diligent judge may overlook relevant facts

or legal arguments in even a straightforward case,” let alone a capital case

like Ayala’s “where jury selection spanned more than three months,

involved more than 200 prospective jurors, and generated a record that is

massive by any standard.” Id. at 2212–13. By prohibiting Ayala’s

lawyers from arguing at the hearing, the trial court prevented them from

challenging the credibility of the prosecution’s purportedly race-neutral

reasons for striking minority jurors, which raised grave doubt “as to

whether the outcome of these proceedings—or the appellate courts’

review of them—would have been the same had counsel been present.”

Id. at 2213.

22 CURIEL V. MILLER

defendants’ claims of federal constitutional violations or even

from explaining their reasons for denying them. See

Williams, 133 S. Ct. 1095–96; Richter, 562 U.S. at 99.

Strangely, the Court has even gone so far as to justify

deference to inadequate state courts’ decisions on the ground

that those courts do not have the time to write considered

opinions. See, e.g., Williams, 133 S. Ct. at 1095–96.

Recently, the Court has told us that federal courts may

ordinarily grant habeas relief only when confronted with

flagrant and “extreme malfunctions” of the state court system.

See Richter, 562 US. at 102–03. As a result, there is now a

large body of constitutional violations that federal courts

must overlook and are without authority to remedy, even in

cases in which the state courts are unequipped to properly do

their job.

***

Clearly, the state courts are not to blame for this unhappy

state of constitutional affairs. One can only sympathize, for

example, with the plight of the California Supreme Court

with its massive potential caseload and severely strained

resources. Nevertheless, perhaps what was not so long ago

the most innovative court in the nation will once again be

able to provide national leadership when it considers the

problem of the untold numbers of habeas petitions raising

substantial claims of federal constitutional violations and the

current unavailability of the federal courts to help review

these claims. Without a new approach, even clearly

erroneous constitutional decisions of state courts will remain

uncorrected and leave defendants without the check on

constitutional error that until recently the federal courts

provided.

CURIEL V. MILLER 23

The Supreme Court’s extreme deference to state court

decisions in AEDPA cases is due primarily to its concern

about comity and federalism. The states may, however, be

able to accommodate that concern by making some

adjustments to their decision-making process. Perhaps the

Court’s recent decisions limiting federal habeas review will

inspire the California Supreme Court to develop creative

methods of alleviating additional miscarriages of justice.

After all, the states are the laboratories of experimentation,

even in today’s judicial systems. One approach to attempting

to ensure the needed added protection of constitutional rights

might be for the California Supreme Court to experiment with

certifying individual dispositions which it believes should not

be afforded the extraordinary deference provided by AEDPA

because it or the state court of appeal was compelled to reject

the constitutional challenge without conducting a full analysis

or preparing a thorough written opinion. Similarly, the state

courts of appeal could certify some of their decisions for non-

AEDPA review for whatever reasons they deem appropriate.

Additionally, the California Supreme Court could certify

particular categories of cases which it believes would benefit

substantially from such federal review, for example, death

penalty cases, cases involving sentences of life without

parole, certain types of cases involving youthful offenders, or

even cases in which the last reasoned decision was made by

a superior court. Certainly such a system would be preferable

to limiting federal courts to correcting “extreme

malfunctions” in the state court system and ignoring all

violations of the rights of individuals that are non-systemic or

24 CURIEL V. MILLER

about which there is no possibility that a reasonable judge

could disagree.4

I cannot predict whether the United States Supreme Court

would accept a system of certification by state courts and

thereby permit full and fair federal review of cases that in the

judgment of the state courts warrant such treatment. I would

hope, however, that such certifications would be recognized

if only out of respect for the concerns of the affected states.

Doing so would certainly be consistent with the Court’s

interest in comity and federalism and would encourage the

state and federal systems to work together once again to

enforce the Constitution in a just and orderly manner, an

objective surely to be desired by all.

In sum, as of now, the role of the federal courts in habeas

cases has been eviscerated and federal judges have been

compelled to say (perhaps in contravention of their oath of

office): “I know this result is unfair, unjust, and

unconstitutional, but I have been told that I must nevertheless

defer to the view of the state courts—courts that may have

had neither the time nor resources to fully review the

constitutional errors involved.” One can hope, however, that

the overwhelmed state courts, recognizing these facts, will

find ways to make certain that individuals who may not have

received fair trials or just sentences in the state court system

are treated as the Constitution envisions—that they are

afforded a full and fair review of their constitutional claims

by courts fully staffed and with the resources necessary to

protect their constitutional rights.

4

As any student of the law is aware, dissent is a fundamental part of the

legal system, and “fairminded debate” is present in nearly every, if not

every, case.

CURIEL V. MILLER 25

BYBEE, Circuit Judge, concurring:

I was a member of the three-judge panel that was first

assigned this case. There, I joined the panel’s decision that

reached a different result from the one we reach as an en banc

court today. See Curiel v. Miller, 780 F.3d 1201, vacated

798 F.3d 1209 (9th Cir. 2015). Upon further reflection, I now

find our decision here to be more consistent with Supreme

Court precedent, with how our court has previously analyzed

summary denials of habeas petitions by California state

courts, and with the interpretive signals that the California

Supreme Court has flashed in the past. Accordingly, I concur

in Judge Murguia’s opinion for the court in full.

I

I write separately to express my frustration that

communication between the California Supreme Court and

our court over the proper interpretation of California state

habeas decisions has devolved into a series of hints that the

California Supreme Court obliquely telegraphs and that we

struggle to decipher. Unfortunately, I am not voicing an

original or unique complaint—our court has been making its

concerns with California’s habeas practice known for the

better part of half a century. See Castro v. Klinger, 373 F.2d

847, 850 (9th Cir. 1967) (“From our standpoint, the failure of

the California court to reveal the basis of its denial, whether

substantive or procedural, is unfortunate.”).1

1

I recognize that I am writing against a long history of conversations

between our court and the California Supreme Court over precisely these

kinds of concerns. Perhaps changes in the composition of that court will

give it the opportunity to rethink how it disposes of its summary habeas

docket.

26 CURIEL V. MILLER

However hamstrung by our own ignorance we may be,

today we take our best shot at divining the meaning of the

California Supreme Court’s actions when it denies a state

habeas petition with a few bare case citations. References to

Swain and Duvall—we’re pretty sure2—mean that the

California Supreme Court denied Curiel’s habeas petition for

failure to plead his claims with sufficient particularity. See

Maj. Op. at 9–10. And, drafting off the United States

Supreme Court’s decision in Walker v. Martin, 562 U.S. 307,

310 (2011), we also seem pretty sure that when the California

Supreme Court uses citations to Clark and Robbins it means

that the court is denying a state habeas petition as untimely.3

See Maj. Op. at 8.

2

We’ve been puzzling over these same two citations for more than a

decade. See Seeboth v. Allenby, 789 F.3d 1099, 1104 n.3 (9th Cir. 2015);

Cross v. Sisto, 676 F.3d 1172, 1176–78 (9th Cir. 2012); Gaston v. Palmer,

417 F.3d 1030, 1038–39 (9th Cir. 2005), reh’g granted, opinion modified

on other grounds, 447 F.3d 1165 (9th Cir. 2006).

3

Unfortunately, even this conclusion might be shaky. In an amicus brief

submitted to the Supreme Court in Walker v. Martin, the Habeas Corpus

Resource Center performed a case study of the 157 habeas petitions

denied by the California Supreme Court on September 11, 2002. See Br.

for Habeas Corpus Resource Center as Amicus Curiae in Support of

Respondent at 18, Walker v. Martin, 562 U.S. 307 (2011) (No. 09-996).

Of the sixty-two petitions apparently denied due to a procedural bar,

thirty-two of them were denied with citations to Clark, Robbins, or Clark

and Robbins. Id. at 20–21. Although the amicus “assume[d]” that

citations to Robbins alone applied the same timeliness bar that dual

citations to Clark and Robbins applied, it could not explain why the

California Supreme Court would sometimes choose to use one citation and

sometimes choose to use both citations. Id. To make matters more

complicated, amicus pointed out that a single “Clark citation likely

signified an invocation of the bar against successive petitions,” but

because Clark sometimes stands for a timeliness bar, it was impossible to

know—without “guidance” from the California Supreme Court—which

bar the court was actually applying. Id. at 21.

CURIEL V. MILLER 27

So far, so good. But what if the California Supreme

Court denies a petition with a reference to In re Gallego,

959 P.2d 290 (Cal. 1998)—doesn’t that mean a petition is

denied as untimely too? See Walker, 562 U.S. at 312. And

what if the California Supreme Court pairs a citation to Swain

with one to In re Dixon, 264 P.2d 513 (Cal. 1953); do they

morph into a pair of “procedural bars”? See Washington v.

Cambra, 208 F.3d 832, 833–34 (9th Cir. 2000). And if a

single citation to Duvall means that the habeas claim was

adequately developed but lacks merit, see Seeboth, 789 F.3d

at 1103, how can it be that slapping on a Swain citation

without any further explanation means that the claim was not

properly presented and can be re-filed, see id. at 1104 n.3?

In the face of this complicated tangle of bare citations

without any accompanying explanation, what is a

conscientious federal court—especially one disposed both by

nature and statutory command to defer to state courts on

matters of state law—to do? Unfortunately, unless we

discover a Rosetta Stone in the San Francisco Bay that helps

us crack the California Supreme Court’s habeas code, I worry

that cases like this one will reoccur with some frequency and

that federal courts will be forced to trot out their best Alan

Turing impressions on a regular basis.

The best we can do—and what the court does today—is

give our best guess as to what the California Supreme Court

means and proceed on that assumption, understanding that

“California, of course, remains free to tell us if, in this

respect, we were wrong.” Evans v. Chavis, 546 U.S. 189, 200

(2006). But it doesn’t have to be that way—and the

California Supreme Court can make sure of it. The addition

of a handful of words to its summary denials could go a long

way to clearing up our court’s confusion. For example, why

28 CURIEL V. MILLER

not slip in “as untimely filed” between “Petition denied” and

citations to Clark and Robbins? Such a move would make it

quite difficult for a federal court to overlook California’s

determination that the habeas petition was denied on

timeliness grounds. Or how about adding “for failure to state

a claim with particularity” between “Petition denied” and

citations to Swain and Duvall? It would be tough to confuse

that order with one denying the petition as untimely or

successive. Small changes like these would save the federal

courts the time and resources we expend playing detective,

and would make it far more likely that, when a federal court

reviews the reasoning of the state court, it properly ascertains

the basis of the earlier decision.4

II

My complaints about the burden that the California

Supreme Court’s unnecessarily opaque habeas system have

focused, selfishly, on the substantial costs it imposes on the

resources of this court. I have now sat on this case twice,

4

Alternatively, the California Supreme Court might consider

promulgating some sort of decisional key that lays out the meaning of

various combinations of citations, and I note that the court has set out

something similar in at least one past decision (though at a higher level of

abstraction and nearly twenty years ago). See In re Robbins, 959 P.2d

311, 340 n.34 (Cal. 1998). Advocating for a different tack, one

commentator has suggested that California courts could use a

“standardized form whenever they summarily deny habeas petitions” on

which judges would “check the boxes next to the applicable reasons” for

the denial like “‘untimely’ or ‘procedurally defaulted.’” Theresa Hsu

Schriever, Comment, In Our Own Backyard: Why California Should Care

About Habeas Corpus, 45 McGeorge L. Rev. 763, 796 (2014). Such a

system, the commentator posits, would “requir[e] scant additional time or

effort on the part of the judges, yet [would] still provid[e] some insight

into why the petition was denied.” Id.

CURIEL V. MILLER 29

joined two published decisions, and changed my mind once.

I have been perturbed and confounded by this case; but this

is, after all, my job. I know that many of my colleagues are

similarly frustrated in their efforts to decipher California’s

code. On reflection, however, I have a much deeper concern

that the costs visited on this court pale in comparison to the

costs that the California Supreme Court’s imprecision

imposes on its own citizens and state government, because

they have no more clue what the California Supreme Court

means than we do.

Take, for example, Curiel. Acting pro se, Curiel did not

pick up on the court’s suggestion that his state habeas claims

were pleaded with insufficient particularity, because rather

than beefing up his petition and re-filing it in state

court—which Swain counsels he might have been able to do,

see In re Swain, 209 P.2d 793, 796 (Cal. 1949)—he headed

straight to federal court. Because it has taken this case six

years to wind through the federal courts, it is now probably

too late for Curiel to re-raise his state claims even if he

wanted to do so.5 Curiel may have had state habeas remedies,

but due to the inscrutability of the California Supreme

Court’s order denying his habeas petition, he may not have

5

But then again, maybe Curiel’s state habeas petition would be timely

because who knows what California’s “within a ‘reasonable time’”

standard for timely filing means? Evans, 546 U.S. at 192 (quoting In re

Harris, 855 P.2d 391, 398 n.7 (Cal. 1993)). We sure don’t. See Robinson

v. Lewis, 795 F.3d 926 (9th Cir. 2015) (certifying a question to the

California Supreme Court in seek of guidance as to the scope of

California’s timeliness bar); Chaffer v. Prosper, 542 F.3d 662 (9th Cir.

2008) (same). In any case, the state at oral argument represented that it

would challenge the timeliness of any new state habeas petitions Curiel

sought to file. See Oral Argument at 35:25, Curiel v. Miller, No. 11-

56949 (Mar. 23, 2016).

30 CURIEL V. MILLER

known that those remedies existed or that he was being

invited to take advantage of them. By his inaction following

his confusion, Curiel has likely forfeited his habeas rights

under the California Constitution. See Calif. Const. art. VI,

§ 10; see also In re Harris, 855 P.2d at 398 n.7 (explaining

that under the “general rule regarding timeliness,” a habeas

petition “must be filed within a reasonable time after the

petitioner or counsel knew, or with due diligence should have

known, the facts underlying the claim as well as the legal

basis of the claim”).

For its part, the California Attorney General’s Office

appears similarly befuddled. The state argued that the

“California Supreme Court’s citation to Swain was an explicit

finding that the petition was . . . untimely,” and that the Court

had “unequivocally found Curiel’s petition delayed.”

Appellee’s Br. 22, 26 (emphasis added). For the reasons

explained in our opinion today, it seems that the “explicit”

was, in fact, unclear and the “unequivocal,” well, equivocal.

During oral argument, the following exchange occurred

between the panel and the advocate for the state:

Judge Hurwitz: But your answer to my

question is yes, that the California Supreme

Court has two different ways of telling us that

a petition is untimely. One is by citing

Robbins, correct?

State’s Attorney: I’d say three, but yes,

Robbins.

Judge Hurwitz: Three different ways to tell

us that it’s untimely?

CURIEL V. MILLER 31

State’s Attorney: Yes.

Judge Friedland: Why would they choose

one versus another?

State’s Attorney: That might be a good

reason for certification [to the California

Supreme Court] because I’m not exactly sure.

Oral Argument at 21:46. And then counsel went further,

pointing out that “there is a fundamental difficulty with

habeas in California and that is it doesn’t result in reasoned

decisions so it doesn’t accrete like the common law does to

solve problems.” Id. at 34:32. In the span of just a few

minutes, counsel for the State of California, representing the

very office charged with ensuring that the legal dictates of the

California Supreme Court are fairly enforced, highlighted

both the procedural and substantive shortcomings of that

court’s current approach.

III

We are well aware of the “staggering number of habeas

petitions” the California Supreme Court must address each

year. Martin, 562 U.S. at 312–13. I am not suggesting that

the Court assume any kind of “burdensome opinion-writing

requirement.” Johnson v. Lee, 136 S. Ct. 1802, 1807 (2016)

(per curiam). I am suggesting, respectfully, a bit more

elucidation from the California Supreme Court would better

preserve the comity enjoyed between our two courts and

would help prevent the sort of “needless friction between

state and federal courts” that Congress and the Supreme

Court have sought to avoid “dating almost from the beginning

of our history.” Okla. Packing Co. v. Okla. Gas & Elec. Co.,

32 CURIEL V. MILLER

309 U.S. 4, 8–9 (1940). I take very little pleasure in mucking

around in questions of state law, and I take even less pleasure

in answering questions of state law incorrectly. Should the

California Supreme Court give us some guidance, it can

better ensure that when our court is confronted with a matter

of California procedural law—as we are hundreds of times a

year when California’s prisoners file federal habeas petitions

in the federal courts6—we give proper effect to the state

court’s decisions. Such an effort by the California courts to

stake out its territory would dovetail nicely with the federal

courts’ long tradition of doing our best to stay out of the state

courts’ business whenever possible, see, e.g., Younger v.

Harris, 401 U.S. 37, 40–41 (1971) (federal courts should

abstain from enjoining pending state criminal prosecutions);

R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 501

(1941) (federal courts should abstain from ruling on

constitutional questions until questions of state law are

resolved in state courts),7 and our statutory obligation in

habeas to stay out of the state courts’ business except under

the most demanding of standards, see, e.g., 28 U.S.C.

§ 2254(d) (mandating that a federal court may grant a writ of

habeas corpus only when the “judgment of a State court . . .

resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law”

6

From 2011 to 2015, nearly one thousand habeas appeals from the four

federal districts in California were fully briefed before this court (986 to

be exact). That number does not include the multitude of petitions filed

in our court that we dismiss without full briefing due to jurisdictional

defects or because they are successive.

7

See Orange Cty. Dep’t of Educ. v. Calif. Dep’t of Educ., 668 F.3d

1052, 1066–67 (9th Cir. 2011) (Bybee, J., concurring in part and

dissenting in part) (citing these and other examples).

CURIEL V. MILLER 33

or “resulted in a decision that was based on an unreasonable

determination of facts”).

In Younger, the Court famously wrote that “Our

Federalism” represents

a system in which there is sensitivity to the

legitimate interests of both State and National

Governments, and in which the National

Government, anxious though it may be to

vindicate and protect federal rights and

federal interests, always endeavors to do so in

ways that will not unduly interfere with the

legitimate activities of the States.

401 U.S. at 44. Until we can tell what the California

Supreme Court has decided, we won’t know how to afford

California the deference to which it is entitled.