               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


ERNEST DEWAYNE JONES,                 No. 14-56373
          Petitioner-Appellee,
                                        D.C. No.
              v.                   2:09-CV-02158-CJC

RON DAVIS, Warden,
        Respondent-Appellant.           OPINION


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

                Argued and Submitted
        August 31, 2015—Pasadena, California

              Filed November 12, 2015

    Before: Susan P. Graber, Johnnie B. Rawlinson,
          and Paul J. Watford, Circuit Judges.

              Opinion by Judge Graber;
            Concurrence by Judge Watford
2                         JONES V. DAVIS

                           SUMMARY*


               Habeas Corpus / Death Penalty

    The panel reversed the district court’s judgment granting
relief on a capital petitioner’s claim that California’s post-
conviction system of judicial review violates the Eighth
Amendment’s prohibition against cruel and unusual
punishment by creating excessive delay between sentencing
and execution, such that only an arbitrary few prisoners are
executed.

    The panel held that this court has discretion to deny a
claim as barred by Teague v. Lane, under which federal
courts may not consider novel constitutional theories on
habeas review, without considering the parties’ arguments
concerning exhaustion.

    The panel held that the petitioner’s claim seeks to apply
a novel constitutional rule, and is therefore barred by Teague.

    Concurring in the judgment, Judge Watford wrote that the
rule announced by the district court is substantive rather than
procedural and is therefore not precluded by Teague. He
would reverse the judgment on the ground that the
petitioner’s claim remains unexhausted.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                      JONES V. DAVIS                        3

                        COUNSEL

Michael J. Mongan (argued), Deputy Solicitor General;
James William Bilderback II and Keith H. Borjon,
Supervising Deputy Attorneys General; Kamala D. Harris,
Attorney General of California; Edward C. DuMont, Solicitor
General; Gerald A. Engler, Chief Assistant Attorney General;
Lance E. Winters, Senior Assistant Attorney General; and A.
Scott Hayward and Herbert S. Tetef, Deputy Attorneys
General, Los Angeles, California, for Respondent-Appellant.

Michael Laurence (argued), Cliona Plunkett, Nisha Shah, and
Tara Mikkilineni, Habeas Corpus Resource Center, San
Francisco, California, for Petitioner-Appellee.

Kent S. Scheidegger, Sacramento, California, as and for
Amicus Curiae Criminal Justice Legal Foundation.

John T. Philipsborn, Law Offices of John T. Philipsborn, San
Francisco, California; Christopher W. Adams, Charleston,
South Carolina, for Amici Curiae California Attorneys for
Criminal Justice, et al., and National Association of Criminal
Defense Lawyers.

William Pollak, Andrew Yaphe, and Serge Voronov, Davis
Polk & Wardwell LLP, Menlo Park, California; Sharon Katz,
Davis Polk & Wardwell, New York, New York, for Amici
Curiae Murder Victims’ Families for Reconciliation, et al.

Molly Alana Karlin, Quinn Emanuel Urquhart & Sullivan,
LLP, Los Angeles, California; Daniel H. Bromberg, Quinn
Emanuel Urquhart & Sullivan, LLP, Redwood Shores,
California, for Amicus Curiae Death Penalty Focus.
4                     JONES V. DAVIS

Mark Wine and Christina M. Von der Ahe, Orrick,
Herrington & Sutcliffe, Irvine, California; Robert Rosenfeld,
Orrick, Herrington & Sutcliffe, San Francisco, California; and
Trish Higgins and Suman Tatapudy, Orrick, Herrington &
Sutcliffe, Sacramento, California, for Amici Curiae Loni
Hancock, et al.

Ethan A. Balogh, Jay A. Nelson, and Evan C. Greenberg,
Coleman, Balogh & Scott LLP, San Francisco, California, for
Amici Curiae Empirical Scholars Concerning Deterrence and
the Death Penalty.

Paula M. Mitchell, Reed Smith LLP, Los Angeles, California,
for Amicus Curiae Loyola Law School’s Alarcón Advocacy
Center and Project for the Innocent.

Christopher B. Craig and Steven J. Olson, O’Melveny &
Myers LLP, Los Angeles, California, for Amicus Curiae
Correctional Lieutenant Marshall Thompson.

Dr. Robert V. Justice and Emery D. Soos, Jr., Beverly Hills,
California, as and for Amici Curiae.

David Loftis, New York, New York, as and for Amicus
Curiae The Innocence Project, Inc.
                       JONES V. DAVIS                         5

                          OPINION

GRABER, Circuit Judge:

    The State of California authorizes the execution of a
capital prisoner only after affording a full opportunity to seek
review in state and federal courts. Judicial review ensures
that executions meet constitutional requirements, but it also
takes time—too much time, in Petitioner Ernest DeWayne
Jones’ view. He argues that California’s post-conviction
system of judicial review creates such a long period of delay
between sentencing and execution that only an “arbitrary”
few prisoners actually are executed, in violation of the Eighth
Amendment’s prohibition against cruel and unusual
punishment. Under Teague v. Lane, 489 U.S. 288 (1989),
federal courts may not consider novel constitutional theories
on habeas review. That principle “serves to ensure that
gradual developments in the law over which reasonable
jurists may disagree are not later used to upset the finality of
state convictions valid when entered.” Sawyer v. Smith,
497 U.S. 227, 234 (1990). Because we conclude that
Petitioner’s claim asks us to apply a novel constitutional rule,
we must deny the claim as barred by Teague. Accordingly,
we reverse the district court’s judgment granting relief.

       FACTUAL AND PROCEDURAL HISTORY

   In 1995, a jury sentenced Petitioner to death for the rape
and murder of his girlfriend’s mother. The California
Supreme Court affirmed the judgment in 2003, People v.
Jones, 64 P.3d 762 (Cal. 2003), and the United States
Supreme Court denied certiorari that same year, Jones v.
California, 540 U.S. 952 (2003). The California Supreme
Court denied Petitioner’s state habeas petition in 2009.
6                       JONES V. DAVIS

    On direct appeal to the California Supreme Court,
Petitioner presented what is commonly known as a “Lackey
claim,” so named after a memorandum by Justice Stevens
respecting the denial of certiorari in Lackey v. Texas,
514 U.S. 1045 (1997) (mem.). Petitioner argued that the
delay between imposition of sentence in 1995 and eventual
execution inevitably would be so long that carrying out the
sentence would violate the Eighth Amendment’s prohibition
against cruel and unusual punishment. Relying on its
precedent, the California Supreme Court rejected Petitioner’s
Lackey claim. Jones, 64 P.3d at 787; see People v. Anderson,
22 P.3d 347, 389 (Cal. 2001) (“[W]e have consistently
concluded, both before and since Lackey, that delay inherent
in the automatic appeal process is not a basis for concluding
that either the death penalty itself, or the process leading to its
execution, is cruel and unusual punishment.”).

    Petitioner filed a federal habeas petition in 2010. In claim
27, Petitioner asserted the same Lackey claim that the state
court had rejected, arguing that the “excessive delay” after his
sentencing violates the Eighth Amendment. In 2014, the
district court issued an order expressing the view that
California’s post-conviction system itself may be
unconstitutional. Four days later, the district court directed
Petitioner to file an amended petition raising the systemic
challenge and required the parties to address “petitioner’s
new claim” in supplemental briefs. Consistent with the
court’s order, Petitioner filed an amended federal habeas
petition. In amended claim 27, Petitioner alleged that
California’s post-conviction system itself violates the Eighth
Amendment by creating excessive delay between sentencing
and execution in capital cases generally.
                       JONES V. DAVIS                        7

    After receiving briefs and holding a hearing, the district
court granted relief to Petitioner on the amended claim,
holding that California’s post-conviction system for capital
prisoners violates the Eighth Amendment’s prohibition
against cruel and unusual punishment. Jones v. Chappell,
31 F. Supp. 3d 1050 (C.D. Cal. 2014) (order). Although more
than 900 people have been sentenced to death in California
since 1978, only 13 have been executed. Id. at 1053. As of
2014, some Death-Row inmates had died of natural causes,
the sentences of some had been vacated, and 748 remained on
Death Row. Id. For those who are eventually executed, “the
process will likely take 25 years or more.” Id. at 1054.
“[D]elay is evident at each stage of the post-conviction
review process,” id. at 1056, including on direct appeal, state
collateral review, and federal collateral review, id. at
1056–60. In the district court’s view, “much of the delay in
California’s post[-]conviction review process is created by
the State itself.” Id. at 1066.

    Relying primarily on the Supreme Court’s decision in
Furman v. Georgia, 408 U.S. 238 (1972) (per curiam), the
district court held that the “systemic delay and dysfunction”
in California’s post-conviction review process was
unconstitutionally “arbitrary,” because a capital prisoner’s
selection for execution “will depend upon a factor largely
outside an inmate’s control, and wholly divorced from the
penological purposes the State sought to achieve by
sentencing him to death in the first instance: how quickly the
inmate proceeds through the State’s dysfunctional
post-conviction review process.” Jones, 31 F. Supp. 3d at
1061–63. The court concluded that, “where the State permits
the post-conviction review process to become so inordinately
and unnecessarily delayed that only an arbitrarily selected
few of those sentenced to death are executed, the State’s
8                      JONES V. DAVIS

process violates the Eighth Amendment. Fundamental
principles of due process and just punishment demand that
any punishment, let alone the ultimate one of execution, be
timely and rationally carried out.” Id. at 1067.

    The district court also held that the deferential standards
of review mandated by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), found in 28 U.S.C.
§ 2254(d), did not apply because the state courts had never
ruled on the systemic claim. Jones, 31 F. Supp. 3d at
1067–68, 1068 n.23. The court acknowledged that petitioners
ordinarily must exhaust their claims under 28 U.S.C.
§ 2254(b)(1)(A), but held that Petitioner was excused from
the exhaustion requirement because “circumstances exist that
render [the State’s corrective] process ineffective to protect
the rights of the applicant,” id. § 2254(b)(1)(B)(ii). Jones,
31 F. Supp. 3d at 1067–68. In particular, “[r]equiring
[Petitioner] to return to the California Supreme Court to
exhaust his claim would only compound the delay that has
already plagued his post-conviction review process.” Id. at
1068.

    The court next held that Teague v. Lane, 489 U.S. 288
(1989), which generally prohibits federal courts from
announcing a new rule of constitutional law in a habeas case,
did not bar Petitioner’s claim. Jones, 31 F. Supp. 3d at 1068.
“The rule [Petitioner] seeks to have applied here—that a state
may not arbitrarily inflict the death penalty—is not new.” Id.
That rule is “inherent in the most basic notions of due process
and fair punishment embedded in the core of the Eighth
Amendment.” Id.

    The district court vacated Petitioner’s capital sentence.
Id. at 1069. The court later entered partial final judgment
                       JONES V. DAVIS                        9

under Federal Rule of Civil Procedure 54(b), determining that
there was no just reason for delay in the entry of judgment on
Petitioner’s amended claim 27. Respondent Warden Ron
Davis (“the State”) timely appeals.

                STANDARD OF REVIEW

    “We review the district court’s decision to grant or deny
a petition for habeas corpus de novo.” Leavitt v. Arave,
383 F.3d 809, 815 (9th Cir. 2004) (per curiam). Adopting the
rule followed by our sister circuits, we review de novo the
legal question whether Petitioner’s claim is barred by Teague.
Burdine v. Johnson, 262 F.3d 336, 341 (5th Cir. 2001) (en
banc); O’Dell v. Netherland, 95 F.3d 1214, 1257 (4th Cir.
1996) (en banc); Spaziano v. Singletary, 36 F.3d 1028, 1041
(11th Cir. 1994).

                       DISCUSSION

    The State argues that the district court erred in granting
relief on Petitioner’s amended Lackey claim because
(1) Petitioner failed to exhaust state-court remedies as
required by 28 U.S.C. § 2254(b)(1)(A); (2) the claim is barred
by Teague because it seeks to apply a “new rule” of
constitutional law; and (3) the claim fails because there is no
Eighth Amendment violation, whether we review the issue de
novo or under the heightened standards of § 2254(d).
Because we conclude that amended claim 27 is barred by
Teague, we need not and do not reach any other question.

   A. We address Teague first.

   As between exhaustion and Teague, we ordinarily
consider exhaustion first, but we have discretion in some
10                     JONES V. DAVIS

circumstances to deny a claim on the ground that it is barred
by Teague, without considering exhaustion. Two statutory
provisions inform our analysis.

    First, 28 U.S.C. § 2254(b)(1) provides that “[a]n
application for a writ of habeas corpus . . . shall not be
granted unless” the petitioner has exhausted state-court
remedies or has demonstrated an exception to the exhaustion
requirement. (Emphasis added.) Nothing in the statute
requires that we demand or analyze exhaustion if we deny the
writ.

    Second, § 2254(b)(2) provides affirmatively that “[a]n
application for a writ of habeas corpus may be denied on the
merits, notwithstanding the failure of the applicant to exhaust
the remedies available in the courts of the State.” We hold
that Congress intended a “deni[al] on the merits” of “[a]n
application for a writ of habeas corpus” to encompass the
Teague inquiry.

    We acknowledge that, in the abstract, the phrase “on the
merits” has many potential meanings, including a narrow
meaning that requires adjudication of the substantive validity
of the underlying claim itself. See, e.g., Semtek Int’l Inc. v.
Lockheed Martin Corp., 531 U.S. 497, 501–02 (2001) (“The
original connotation of an ‘on the merits’ adjudication [for
purposes of Federal Rule of Civil Procedure 41(b)] is one that
actually passes directly on the substance of a particular claim
before the court.” (internal quotation marks and brackets
omitted)). Indeed, Congress chose words in 28 U.S.C.
§ 2254(d) to demonstrate precisely that meaning: “any claim
that was adjudicated on the merits.” See Davis v. Ayala,
135 S. Ct. 2187, 2198 (2015) (“Section 2254(d) thus demands
an inquiry into whether a prisoner’s ‘claim’ has been
                       JONES V. DAVIS                        11

‘adjudicated on the merits’ in state court . . . .”); Harrington
v. Richter, 562 U.S. 86, 103 (2011) (contrasting state-court
decisions on the claim’s substantive validity with state-court
decisions on other grounds).

    In our view, Congress did not intend that narrow meaning
in § 2254(b)(2). Unlike § 2254(d), which refers to
adjudication on the merits of a claim—“any claim that was
adjudicated on the merits”—§ 2254(b)(2) refers to the denial
on the merits of the habeas application. That textual
difference strongly suggests that Congress intended a broader
meaning in § 2254(b)(2). We also find persuasive, by
analogy, the Supreme Court’s holding that a civil judgment
“on the merits” in federal courts connotes only that the
plaintiff is barred “from returning later, to the same court,
with the same underlying claim.” Semtek, 531 U.S. at 505.
Accordingly, the phrase “judgment on the merits”
encompasses rulings in which the court never reached the
substantive validity of the claim. Id. at 504–06. Similarly,
§ 2254(b)(2) encompasses, at a minimum, the substance-like
inquiry demanded by Teague.

    Unlike a purely procedural bar, such as a failure to meet
the statute of limitations or a lack of personal jurisdiction,
Teague requires an analysis of the underlying legal theory of
the claim—albeit to determine its novelty rather than its
ultimate persuasiveness. Moreover, in 1996, when Congress
enacted AEDPA, Congress understood that a habeas
application ordinarily encompassed the Teague inquiry
because Teague was settled law. See, e.g., Caspari v. Bohlen,
510 U.S. 383, 389 (1994) (noting that Teague “prevents a
federal court from granting habeas corpus relief to a state
prisoner based on a rule announced after his conviction and
sentence became final” (emphasis omitted)). Indeed, the
12                        JONES V. DAVIS

Supreme Court had emphasized that, so long as the state has
not waived the defense, “the court must apply Teague.” Id.;
see also Horn v. Banks, 536 U.S. 266, 272 (2002) (per
curiam) (summarizing, more recently, that “a federal court
considering a habeas petition must conduct a threshold
Teague analysis when the issue is properly raised by the
state”). For those reasons, we conclude that—just as we have
discretion to deny a claim on its underlying substantive
validity without reaching the exhaustion issue, Runningeagle
v. Ryan, 686 F.3d 758, 777 n.10 (9th Cir. 2012)—we also
have discretion to deny a claim as Teague-barred without
reaching the exhaustion issue.

    This case warrants the exercise of our discretion to
address Teague without considering the parties’ arguments
concerning exhaustion.1 In the circumstances that we face
here, analyzing the exhaustion issue would serve no useful
purpose. If we agreed with Petitioner’s position that he has
demonstrated an exception to exhaustion, we would next
consider the Teague issue. Alternatively, if we agreed with
the government’s position at oral argument that our recent
opinion in Andrews v. Davis, 798 F.3d 759 (9th Cir. 2015),
requires us to hold that Petitioner already has exhausted the
claim, we also would next consider the Teague issue. Both
paths lead to the same destination, so it is immaterial which
fork in the road we choose. See Stokley v. Ryan, 659 F.3d
802, 807–11 (9th Cir. 2011) (declining to decide, among

 1
   As between Teague and the underlying Eighth Amendment claim, the
Supreme Court has held that we “must apply Teague before” addressing
the underlying substantive question. Caspari, 510 U.S. at 389. Not
surprisingly, then, the applicable standard of review for considering the
underlying claim also does not matter: We must address the Teague bar
whether or not the heightened standards of § 2254(d) apply. Horn,
536 U.S. at 271–72. As noted, we review the Teague issue de novo.
                       JONES V. DAVIS                         13

other things, whether the petitioner exhausted state-court
remedies because the petitioner was not entitled to relief in
any event).

    Moreover, the very nature of Petitioner’s claim is that
constitutional harm flows from the delay inherent in judicial
proceedings. If we know that we must deny relief under
Teague, we see nothing useful to be gained by imposing more
delay unnecessarily.

    The recent decision of the California Supreme Court in
People v. Seumanu, 355 P.3d 384 (Cal. 2015), also affects our
decision. After the district court in the present case issued its
opinion, the capital defendant in Seumanu filed a
supplemental brief to the California Supreme Court “raising
the same Eighth Amendment/delay issue [as Petitioner has
raised here] and relying heavily on the federal [district]
court’s reasoning.” Id. at 437–38. The California Supreme
Court unanimously held:

        [A]ssuming for argument the facts before the
        court in Jones were before this court, and
        further assuming that evidence of systemic
        delay could implicate a capital defendant’s
        rights under the Eighth Amendment . . . , we
        conclude defendant has not on this record
        demonstrated that delays in implementing the
        death penalty under California law have
        rendered that penalty impermissibly arbitrary.

Id. at 442–43 (citation truncated). In other words, even
though Petitioner may not have formally exhausted his claim
by raising it personally to the state courts, we have an unusual
insight into the state court’s view of Petitioner’s claim. For
14                     JONES V. DAVIS

this reason, too, we decline to subject this federal case to
further delay.

    We acknowledge that “[c]onstitutional issues are
generally to be avoided, and . . . the Teague inquiry requires
a detailed analysis of federal constitutional law.” Lambrix v.
Singletary, 520 U.S. 518, 524 (1997). But judicial economy
may outweigh constitutional-avoidance concerns. As the
Supreme Court expressly held in Lambrix, “[j]udicial
economy might counsel giving the Teague question priority,
for example, if it were easily resolvable against the habeas
petitioner, whereas [a non-constitutional issue] involved
complicated issues of state law.” Id. at 525. Indeed, the
Court there skipped a non-constitutional issue of state law to
address Teague. Id. As in Lambrix, judicial economy favors
deciding the Teague issue here. See also Lyons v. Stovall,
188 F.3d 327, 344 (6th Cir. 1999) (concluding that, “in the
interest of judicial economy, we will excuse the lack of
exhaustion because Petitioner’s evidentiary claim is barred
under the doctrine of Teague v. Lane, and thus dispositive of
this case”); Fisher v. Texas, 169 F.3d 295, 303 (5th Cir. 1999)
(holding that, because “Fisher’s claim is barred by Teague,
judicial efficiency makes it appropriate to dispose of Fisher’s
claim without requiring additional litigation”).

    Similar reasoning applies to the consideration of comity.
“[T]he main purpose of exhaustion is to protect principles of
comity between state and federal courts.” Greene v. Lambert,
288 F.3d 1081, 1088 (9th Cir. 2002). “Comity . . . dictates
that when a prisoner alleges that his continued confinement
for a state court conviction violates federal law, the state
courts should have the first opportunity to review this claim
and provide any necessary relief.” O’Sullivan v. Boerckel,
526 U.S. 838, 844 (1999). “This rule of comity reduces
                            JONES V. DAVIS                               15

friction between the state and federal court systems by
avoiding the ‘unseemliness’ of a federal district court’s
overturning a state court conviction without the state courts
having had an opportunity to correct the constitutional
violation in the first instance.” Id. at 845 (brackets omitted).
Those concerns are reduced greatly when we deny the
application for habeas relief—there is no risk of
“unseemliness” because we do not disturb the state court’s
judgment.

     Nevertheless, we have recognized that comity still plays
a role in our discretionary determination to deny an
unexhausted claim, at least when we deny that claim as
unpersuasive: “[T]he principle of comity counsels in favor of
a standard that limits a federal court’s ability to deny relief
under § 2254(b)(2) to circumstances in which it is perfectly
clear that the petitioner has no hope of prevailing. A contrary
rule would deprive state courts of the opportunity to address
a colorable federal claim in the first instance and grant relief
if they believe it is warranted.” Cassett v. Stewart, 406 F.3d
614, 624 (9th Cir. 2005). For the reasons discussed below,
we conclude that it is “perfectly clear” that Petitioner cannot
prevail.2 Id.




 2
   We emphasize that our ruling today in no way prejudices Petitioner’s
ability to try to obtain relief from his capital sentence through means other
than his amended claim 27 on federal habeas review. He remains free to
seek relief through other means, including in the state courts. See
Danforth v. Minnesota, 552 U.S. 264, 266 (2008) (holding that Teague
does not “constrain[] the authority of state courts to give broader effect to
new rules of criminal procedure than is required by that opinion”).
16                         JONES V. DAVIS

     B. Teague bars Petitioner’s claim.

    Subject to two exceptions, Teague prohibits the
application of a “new rule” on collateral review.3 Schriro v.
Summerlin, 542 U.S. 348, 351–52 (2004). “A new rule is
defined as a rule that was not dictated by precedent existing
at the time the defendant’s conviction became final.”
Whorton v. Bockting, 549 U.S. 406, 416 (2007) (internal
quotation marks and ellipsis omitted). “And a holding is not
so dictated . . . unless it would have been apparent to all
reasonable jurists.” Chaidez v. United States, 133 S. Ct.
1103, 1107 (2013) (internal quotation marks omitted). We
must ask “whether a state court considering the defendant’s
claim at the time his conviction became final would have felt
compelled by existing precedent to conclude that the rule he
seeks was required by the Constitution.” Caspari, 510 U.S.
at 390 (brackets omitted). Petitioner’s conviction became
final in 2003.

     1. Petitioner seeks to apply a “new rule.”

    Petitioner contends that the Supreme Court’s decision in
Furman v. Georgia, 408 U.S. 238 (1972), dictates the
relevant rule to apply here. He formulates the relevant rule as
the district court did: “[A] state may not arbitrarily inflict the
death penalty.” Jones, 31 F. Supp. 3d at 1068.



 3
   Contrary to Petitioner’s argument, the State has not waived the defense
that Teague bars relief on Petitioner’s claim. The State fully briefed the
Teague argument to us on appeal. The State also raised the Teague bar to
the district court at the hearing on July 16, 2014. And the district court
addressed the issue in its written order. Jones, 31 F. Supp. 3d at 1068.
Accordingly, we must decide the issue. Horn, 536 U.S. at 272.
                       JONES V. DAVIS                         17

    In Furman, 408 U.S. at 239–40, the Supreme Court
considered capital sentences imposed under Georgia’s and
Texas’ criminal statutes. In a short per curiam opinion joined
by five justices, the Court held that “the imposition and
carrying out of the death penalty in these cases constitute
cruel and unusual punishment in violation of the Eighth and
Fourteenth Amendments.” Id. Each of the five concurring
justices filed a separate opinion in support of the judgments,
but each opinion received only one vote—the author’s. Id. at
240–57 (Douglas, J., concurring); id. at 257–306 (Brennan, J.,
concurring); id. at 306–10 (Stewart, J., concurring); id. at
310–14 (White, J., concurring); id. at 314–74 (Marshall, J.,
concurring). Justices Brennan and Marshall thought that the
death penalty is unconstitutional in all its applications. Id. at
305 (Brennan, J., concurring); id. at 359 (Marshall, J.,
concurring). The other three justices focused primarily on the
fact that the state statutes provided no guidance to the fact-
finder as to when the death penalty is appropriate, thus raising
the possibility of discriminatory and arbitrary imposition.
See, e.g., id. at 253 (Douglas, J., concurring) (“[W]e deal with
a system of law and of justice that leaves to the uncontrolled
discretion of judges or juries the determination whether
defendants committing these crimes should die or be
imprisoned. Under these laws no standards govern the
selection of the penalty. People live or die, dependent on the
whim of one man or of 12.”); id. at 310 (Stewart, J.,
concurring) (“I simply conclude that the Eighth and
Fourteenth Amendments cannot tolerate the infliction of a
sentence of death under legal systems that permit this unique
penalty to be so wantonly and so freakishly imposed.”); id. at
311 (White, J., concurring) (stating that he would hold
unconstitutional “capital punishment statutes under which
(1) the legislature authorizes the imposition of the death
penalty for murder or rape; (2) the legislature does not itself
18                       JONES V. DAVIS

mandate the penalty in any particular class or kind of case
(that is, legislative will is not frustrated if the penalty is never
imposed), but delegates to judges or juries the decisions as to
those cases, if any, in which the penalty will be utilized; and
(3) judges and juries have ordered the death penalty with such
infrequency that the odds are now very much against
imposition and execution of the penalty with respect to any
convicted murderer or rapist”).

     Four years later, in Gregg v. Georgia, 428 U.S. 153
(1976), the Supreme Court held that an amended version of
Georgia’s criminal statutes survived constitutional scrutiny.
The Court described its decision in Furman as concerning
primarily the earlier statutes’ lack of guidance given to the
fact-finder in determining whether to impose the death
penalty. See id. at 188–89 (plurality opinion) (“Furman held
that [the death penalty] could not be imposed under
sentencing procedures that created a substantial risk that it
would be inflicted in an arbitrary and capricious manner. . . .
Furman mandates that where discretion is afforded a
sentencing body on a matter so grave as the determination of
whether a human life should be taken or spared, that
discretion must be suitably directed and limited so as to
minimize the risk of wholly arbitrary and capricious action.”);
id. at 220–21 (White, J., concurring) (“In Furman, this Court
held that as a result of giving the sentencer unguided
discretion to impose or not to impose the death penalty for
murder, the penalty was being imposed discriminatorily,
wantonly and freakishly, and so infrequently that any given
death sentence was cruel and unusual.” (footnotes omitted)).
The Court in Gregg held that the amended Georgia
statutes—which provided new substantive standards to guide
the fact-finder’s selection of punishment and new procedures,
such as bifurcated guilt and penalty trials—met the concerns
                       JONES V. DAVIS                        19

expressed in Furman. Id. at 206–07 (plurality opinion); id. at
208, 220–26 (White, J., concurring).

     We have held that Teague bars a delay-based Lackey
claim founded on the Supreme Court’s decisions in Furman
and Gregg. In Smith v. Mahoney, 611 F.3d 978, 998 (9th Cir.
2010), the petitioner cited Furman and Gregg in support of
his argument that “his four sentences in combination with his
twenty-five years on death row satisfied any need for
retribution and deterrence and that any penalty beyond such
punishment violates the Eighth Amendment.” We noted that
we previously had determined, “in the context of AEDPA,
that ‘[t]he Supreme Court has never held that execution after
a long tenure on death row is cruel and unusual punishment.’”
Id. (alteration in original) (quoting Allen v. Ornoski, 435 F.3d
946, 958 (9th Cir. 2006)). We concluded that “a state court
considering [the petitioner’s] Eighth Amendment claim at the
time his conviction became final would not have felt
compelled by existing precedent to conclude that the rule
sought was required by the Constitution.” Id. at 998–99.

    Smith arguably controls here. Although the conviction in
Smith became final in 1986 and Petitioner’s conviction
became final in 2003, both convictions became final well
after the Supreme Court’s decisions in Furman and Gregg.
Both Petitioner here and the petitioner in Smith asserted that
Furman created a constitutional rule holding that extended
delay in carrying out an execution violates the Eighth
Amendment because it serves no retributive or deterrent
purpose. We are bound by Smith to conclude that Teague
bars Petitioner’s claim to the extent that his claim is the same
as the petitioner’s claim in Smith.
20                     JONES V. DAVIS

    On the other hand, both the district court and the parties
have portrayed Petitioner’s claim as different than an
ordinary Lackey claim like the one discussed in Smith. An
ordinary Lackey claim focuses on the delay experienced by
the petitioner personally, without regard to the fate of others;
and it asserts the legal theory that his continued imprisonment
on Death Row does not meet the purposes of “retribution and
deterrence.” Smith, 611 F.3d at 998. Petitioner’s amended
claim 27, by contrast, focuses on the delay inherent in the
system itself and on the fate of capital prisoners generally,
without particular regard to Petitioner’s personal situation;
and it asserts the legal theory that the delay in carrying out
executions among all capital prisoners represents a form of
arbitrary infliction of the death penalty. In short, the parties
argue that, although both types of claims—the ordinary
individualized claim and Petitioner’s systemic claim—stem
from Furman and Gregg, the claims present materially
different legal theories.

     Our recent decision in Andrews casts some doubt on that
conclusion. See 798 F.3d at 789–90 (“[T]he state argues that
a Lackey claim is an individual challenge, . . . while [the
district court’s opinion in] Jones was based on the theory that
the California system itself creates the constitutional infirmity
. . . . We disagree.”). But, for purposes of the Teague
analysis, we need not decide whether the claims differ. As
we explain below, even if Petitioner’s claim rests on a legal
theory different than the theory advanced in Smith, Teague
bars it. In particular, we assume that, although Smith rejected
as Teague-barred the theory that delay undermines the
purposes of “retribution and deterrence,” Smith did not
                           JONES V. DAVIS                             21

address the theory that systemic delays have led to results that
are unconstitutionally “arbitrary.”4

    We next consult the Supreme Court’s guidance on
formulating the relevant “rule” for Teague purposes. In
Sawyer, 497 U.S. at 229, the Court considered whether it
previously had announced a new rule for purposes of the
Teague analysis when it decided Caldwell v. Mississippi,
472 U.S. 320 (1985). The petitioner cited the Court’s pre-
Caldwell cases “in support of the argument that Caldwell was
‘rooted’ in the Eighth Amendment command of reliable
sentencing.” Sawyer, 497 U.S. at 235–36. The Court agreed
that those earlier cases stood “for the general proposition that
capital sentencing must have guarantees of reliability.” Id. at
235.

    But the Court rejected the petitioner’s attempt to define
the rule in such a broad fashion: “In petitioner’s view,
Caldwell was dictated by the principle of reliability in capital
sentencing. But the test would be meaningless if applied at
this level of generality.” Id. at 236. Instead, the Court
considered the context of Caldwell and asked whether the
rule—conceived at a more specific level—was “dictated by
existing law at the time petitioner’s [conviction] became
final.” Id. at 237.


  4
    The district court’s opinion could be read to rest on two independent
constitutional theories: “arbitrariness” and lack of “retribution and
deterrence.” Perhaps in recognition of our decision in Smith, the district
court’s Teague analysis covered the arbitrariness theory only; it did not
discuss the theory of a lack of retribution and deterrence. Jones, 31 F.
Supp. 3d at 1068. Before us, Petitioner has argued only that the
“arbitrariness” theory survives the Teague bar; he does not argue that an
independent theory of a lack of retribution and deterrence survives the
Teague bar.
22                     JONES V. DAVIS

    Similarly, in Beard v. Banks, 542 U.S. 406, 408 (2004),
the Court considered whether it had announced a new rule for
Teague purposes when it decided Mills v. Maryland, 486 U.S.
367 (1988). The court of appeals in Beard had considered
decisions such as Lockett v. Ohio, 438 U.S. 586 (1978), and
“distilled the rule that the ‘Eighth Amendment prohibits any
barrier to the sentencer’s consideration of mitigating
evidence.’” Beard, 542 U.S. at 409. So formulated, the court
of appeals had concluded that Lockett compelled the result in
Mills and, accordingly, that Mills did not announce a new rule
within the meaning of Teague. Beard, 542 U.S. at 410.

    The Supreme Court rejected that formulation: “The
generalized Lockett rule (that the sentencer must be allowed
to consider any mitigating evidence) could be thought to
support the Court’s conclusion in Mills and [a second case].
But what is essential here is that it does not mandate the Mills
rule.” Beard, 542 U.S. at 414; see also id. at 416 (rejecting
as insufficient, for purposes of the Teague analysis, that “the
Lockett principle—conceived of at a high level of
generality—could be thought to support the Mills rule”).
Instead, the Court asked whether, considering the more
specific rules announced in Lockett and Mills, “reasonable
jurists could have concluded that the Lockett line of cases did
not compel Mills.” Beard, 542 U.S. at 416; see also Gray v.
Netherland, 518 U.S. 152, 169 (1996) (rejecting as too broad
the formulation of a rule that “a capital defendant must be
afforded a meaningful opportunity to explain or deny the
evidence introduced against him at sentencing”: “the new-
rule doctrine ‘would be meaningless if applied at this level of
generality’” (quoting Sawyer, 497 U.S. at 236)); Gilmore v.
Taylor, 508 U.S. 333, 344 (1993) (rejecting as too broad the
formulation of a rule that “the right to present a defense
includes the right to have the jury consider it, and that
                        JONES V. DAVIS                         23

confusing instructions on state law which prevent a jury from
considering an affirmative defense therefore violate due
process”: “the level of generality at which [the habeas
petitioner] invokes this line of cases is far too great to provide
any meaningful guidance for purposes of our Teague
inquiry”).

    With that guidance in mind, we must reject Petitioner’s
proposed formulation of the rule: “[A] state may not
arbitrarily inflict the death penalty.” We agree with
Petitioner that Furman and Gregg “articulate a general Eighth
Amendment standard that the death penalty is
unconstitutional if imposed arbitrarily.” Andrews, 798 F.3d
at 790. But the Supreme Court precedent discussed above
does not allow us to define the “rule” for Teague purposes at
such a high level of generality. Just as the Supreme Court
rejected the proposed rule in Sawyer—“reliability in
sentencing”—even though its prior cases supported that
general proposition, we must reject as too broad a rule that
prohibits “arbitrariness” in imposing the death penalty.
Although Furman condemned one specific form of
arbitrariness related to the death penalty, it does not
necessarily follow that Furman dictates the result in all other
challenges to the death penalty under the banner of
“arbitrariness.” Instead, we must examine whether, in 2003,
reasonable jurists would have been compelled to conclude
that the Eighth Amendment prohibited not only the form of
arbitrariness prohibited by Furman, but also the form of
arbitrariness alleged by Petitioner.

   In Maynard v. Cartwright, 486 U.S. 356, 362 (1988), the
Court wrote: “Since Furman, our cases have insisted that the
channeling and limiting of the sentencer’s discretion in
imposing the death penalty is a fundamental constitutional
24                     JONES V. DAVIS

requirement for sufficiently minimizing the risk of wholly
arbitrary and capricious action.” The rule that Petitioner
seeks to establish differs from Furman in two important
respects. First, unlike the prisoners in Furman, Petitioner
does not allege arbitrariness at sentencing. Instead, he alleges
that the State “arbitrarily” determines when to carry out a
lawfully and constitutionally imposed capital sentence.
Second, Petitioner does not contend that the State has granted
unfettered discretion to a fact-finder to decide on an
execution date. Nor does he contend that the State
intentionally chooses an execution date through a truly
random selection process, such as a lottery. Instead, he
contends that the delays in processing capital prisoners’
statutorily guaranteed appeals are long, such that few
prisoners are ever actually executed, a result that Petitioner
describes as “arbitrary” because it is hard to predict which
prisoners in fact will be executed. In sum, Petitioner asks us
to apply a rule that a state’s post-sentencing procedures are
unconstitutionally “arbitrary” if they produce long delays
resulting in few actual executions and uncertainty as to which
prisoners will be executed.

     Furman did not dictate such a rule. In 2003, reasonable
jurists could have differed as to whether Furman applied to
challenges to the delays caused by a state’s post-sentencing
procedures. As an initial matter, we know of no other case in
the four decades since Furman was decided that has
invalidated a state’s post-sentencing procedures as
impermissibly arbitrary under the Eighth Amendment,
strongly suggesting that the rule is novel. See Sawyer,
497 U.S. at 236 (“It is beyond question that no case prior to
Caldwell invalidated a prosecutorial argument as
impermissible under the Eighth Amendment.”). We have
little doubt, of course, that Furman and Gregg would inform
                        JONES V. DAVIS                         25

the analysis of Petitioner’s claim, but Teague requires much
more: “Even were we to agree with [the petitioner’s]
assertion that [Furman and Gregg] inform, or even control or
govern, the analysis of his claim, it does not follow that they
compel the rule that [he] seeks.” Saffle v. Parks, 494 U.S.
484, 491 (1990).

    Importantly, there is a “simple and logical difference”
between Furman’s rule prohibiting unfettered discretion by
a jury deciding whether to impose the death penalty and a rule
prohibiting systemic lengthy delays resulting from a state’s
post-sentencing procedures in the carrying out of that
sentence when permissibly imposed. Id. at 490; see id.
(“There is a simple and logical difference between rules that
govern what factors the jury must be permitted to consider in
making its sentencing decision and rules that govern how the
State may guide the jury in considering and weighing those
factors in reaching a decision.”). We and other courts
previously have rejected a foundation of Petitioner’s
proposed rule—that delay in resolving post-conviction
proceedings has constitutional significance: “It would indeed
be a mockery of justice if the delay incurred during the
prosecution of claims that fail on the merits could itself
accrue into a substantive claim to the very relief that had been
sought and properly denied in the first place.” McKenzie v.
Day, 57 F.3d 1461, 1466 (9th Cir. 1995); see, e.g., Chambers
v. Bowersox, 157 F.3d 560, 570 (8th Cir. 1998) (“We believe
that delay in capital cases is too long. But delay, in large part,
is a function of the desire of our courts, state and federal, to
get it right, to explore exhaustively, or at least sufficiently,
any argument that might save someone’s life. . . . [W]e do
not see how the present situation even begins to approach a
constitutional violation.” (footnote omitted)); Seumanu,
355 P.3d at 442 (“[S]uch delays are the product of a
26                          JONES V. DAVIS

constitutional safeguard, not a constitutional defect, because
they assure careful review of the defendant’s conviction and
sentence.” (internal quotation marks and brackets omitted)).5
Although the rule sought by Petitioner concerns not simply
the delay that he has experienced personally but the allegedly
“arbitrary” systemic results caused by delay, we cannot
conclude, in light of the existing precedent rejecting the
constitutional significance of delay, that Petitioner’s proposed
rule would have been “apparent to all reasonable jurists” in
2003. Lambrix, 520 U.S. at 528. Similarly, one might
reasonably conclude that systemic delays of the sort alleged
by Petitioner are not “arbitrary” in the ordinary sense of the
word. See Seumanu, 355 P.3d at 442 (“[A]llowing each case
the necessary time, based on its individual facts and
circumstances, to permit this court’s careful examination of
the claims raised is the opposite of a system of random and
arbitrary review.”). In sum, we conclude that Petitioner seeks
to apply a “new rule,” which Teague prohibits.

         2. Neither of Teague’s exceptions applies.

   Petitioner contends, in the alternative, that Teague’s first
exception—for substantive rules—applies.6 See Summerlin,
542 U.S. at 351 (“New substantive rules generally apply


  5
    “Constitutional law is not the exclusive province of the federal courts,
and in the Teague analysis the reasonable views of state courts are entitled
to consideration along with those of federal courts.” Caspari, 510 U.S. at
395.
     6
      The second exception applies to a “watershed rule of criminal
procedure implicating the fundamental fairness and accuracy of the
criminal proceedings.” Whorton, 549 U.S. at 417 (internal quotation
marks and brackets omitted). Petitioner does not argue that his proposed
rule falls within that “extremely narrow” exception. Id.
                        JONES V. DAVIS                         27

retroactively.”). In particular, he argues that his proposed
new rule is substantive because it would “prohibit imposition
of a certain type of punishment for a class of defendants
because of their status.” Sawyer, 497 U.S. at 241 (emphasis
added). For example, the Supreme Court has held that the
Eighth Amendment prohibits the execution of a capital
prisoner who is insane, Ford v. Wainwright, 477 U.S. 399,
410 (1986), or intellectually disabled, Atkins v. Virginia,
536 U.S. 304, 321 (2002). Courts have held that those rules
fall within the exception for substantive rules. E.g., Penry v.
Lynaugh, 492 U.S. 302, 329–30 (1989), abrogated in other
part by Atkins, 536 U.S. at 321; Davis v. Norris, 423 F.3d
868, 879 (8th Cir. 2005).

     Petitioner does not assert that he fits into one of the
traditionally recognized classes of persons whose “status” is
an intrinsic quality, such as insanity or intellectual disability.
Instead, Petitioner argues that he—and all California capital
prisoners—belong to a class of persons with the “status as
individuals whose sentence ‘has been quietly transformed’
from one of death to one of grave uncertainty and torture and
one that ‘no rational jury or legislature could ever impose:
life in prison, with the remote possibility of death.’” Pet’r’s
Br. at 54 (emphasis omitted) (quoting Jones, 31 F. Supp. 3d
at 1053). Petitioner’s expansive description of this exception
finds no support in the cases. Nor is it supported by logic.
Under Petitioner’s view, almost any procedural rule could be
characterized as substantive merely by defining the petitioner
as belonging to a class of persons with the “status” of those
whose convictions or sentences were obtained through an
unconstitutional procedural rule. We reject Petitioner’s
unconventional interpretation of the exception for substantive
rules.
28                    JONES V. DAVIS

                      CONCLUSION

    Many agree with Petitioner that California’s capital
punishment system is dysfunctional and that the delay
between sentencing and execution in California is
extraordinary. But “the purpose of federal habeas corpus is
to ensure that state convictions comply with the federal law
in existence at the time the conviction became final, and not
to provide a mechanism for the continuing reexamination of
final judgments based upon later emerging legal doctrine.”
Sawyer, 497 U.S. at 234. Because Petitioner asks us to apply
a novel constitutional rule, we may not assess the substantive
validity of his claim.

     REVERSED.



WATFORD, Circuit Judge, concurring in the judgment:

    I agree that the judgment should be reversed, but not for
the reasons given by the court.

    My colleagues conclude that relief is precluded by Teague
v. Lane, 489 U.S. 288 (1989), which bars federal courts from
applying “new rules of constitutional criminal procedure” to
cases on collateral review. Beard v. Banks, 542 U.S. 406, 416
(2004) (emphasis added). The Teague bar does not apply to
new rules of substantive law. Schriro v. Summerlin, 542 U.S.
348, 352 n.4 (2004).

    The rule announced by the district court, while
undoubtedly “new” for Teague purposes, is substantive rather
than procedural. The court held that the death penalty as
                       JONES V. DAVIS                        29

administered in California constitutes cruel and unusual
punishment and therefore violates the Eighth Amendment. In
particular, the court concluded that the long delays between
imposition of sentence and execution, resulting from systemic
dysfunction in the post-conviction review process, combined
with the low probability that an inmate sentenced to death
will actually be executed, preclude the death penalty from
serving any deterrent or retributive purpose. Jones v.
Chappell, 31 F. Supp. 3d 1050, 1053, 1062–65 (C.D. Cal.
2014); see Glossip v. Gross, 135 S. Ct. 2726, 2767–70 (2015)
(Breyer, J., dissenting). The Supreme Court has held that
capital punishment violates the Eighth Amendment if it does
not fulfill those two penological purposes. Kennedy v.
Louisiana, 554 U.S. 407, 441 (2008). Thus, the effect of the
district court’s ruling is to categorically forbid death as a
punishment for anyone convicted of a capital offense in
California. A rule “placing a certain class of individuals
beyond the State’s power to punish by death” is as
substantive as rules come. Penry v. Lynaugh, 492 U.S. 302,
330 (1989).

    I would reverse the district court’s judgment on a
different ground. A federal court may not grant habeas relief
unless the petitioner has first exhausted the remedies
available in state court. 28 U.S.C. § 2254(b)(1)(A). Jones
concedes he has not done that. He never presented the claim
at issue here to the California Supreme Court to give that
court an opportunity to rule on the claim in the first instance.
Jones did present a so-called Lackey claim to the California
Supreme Court, which asserted that the long post-conviction
delay in Jones’ own case has rendered his death sentence
cruel and unusual punishment. See Lackey v. Texas, 514 U.S.
1045 (1995) (Stevens, J., respecting denial of certiorari). But
the claim on which the district court granted relief rests on a
30                      JONES V. DAVIS

different set of factual allegations and a different legal theory.
Presenting the Lackey claim to the California Supreme Court
therefore did not satisfy the exhaustion requirement. See
Gray v. Netherland, 518 U.S. 152, 162–63 (1996).

    Jones contends that exhaustion should be excused here.
The federal habeas statute provides just two scenarios in
which a petitioner’s failure to satisfy the exhaustion
requirement may be excused: (1) when “there is an absence
of available State corrective process,” or (2) when
“circumstances exist that render such process ineffective to
protect the rights of the applicant.”             28 U.S.C.
§ 2254(b)(1)(B). Jones’ case does not fit within either of
these exceptions. He does not dispute that he can file another
habeas petition in the California Supreme Court to exhaust
the claim at issue here, so the first exception doesn’t apply.
And the second exception does not apply because Jones can’t
show that filing a new habeas petition with the California
Supreme Court would be ineffective to protect his rights. If
the court were to find Jones’ claim meritorious, it would be
compelled to invalidate his death sentence, which is precisely
the relief he seeks from the federal courts.

    The district court nonetheless held that the corrective
process available in the California Supreme Court is
ineffective to protect Jones’ rights. The court reasoned that
Jones’ claim is predicated on the already lengthy delays that
exist in California’s post-conviction review process, so
requiring him to suffer even further delay by returning to the
California Supreme Court would simply compound the injury
for which Jones seeks relief. 31 F. Supp. 3d at 1067–68. The
district court was mistaken. The claim at issue here does not
turn on the post-conviction delay Jones has experienced in his
own case. Jones’ claim would be just as meritorious (or not)
                       JONES V. DAVIS                        31

whether the delay he experienced was 30 days or 30 years.
As the district court noted, Jones’ claim is predicated on the
view that “system-wide dysfunction in the post-conviction
review process” leads to delays so lengthy that executions in
California violate the Eighth Amendment. Id. at 1066 n.19.
The only relief Jones seeks on this claim is invalidation of his
death sentence. There is no risk that he will be executed
before the California Supreme Court could rule on the merits
of his claim. Thus, requiring Jones to pursue the remedies
available to him in the California Supreme Court, even if that
results in some additional period of delay, does not render the
state corrective process “ineffective.”

    The cases on which Jones relies are distinguishable. In
those cases the petitioners had actually presented their claims
to the state courts in an attempt to satisfy the exhaustion
requirement, but the state courts had not yet ruled despite
lengthy and unreasonable delays that were prejudicing the
petitioners’ rights. For example, in Phillips v. Vasquez,
56 F.3d 1030 (9th Cir. 1995), the petitioner had received a
final ruling from the California Supreme Court upholding the
validity of his conviction. But the petitioner’s separate
appeal challenging the validity of his death sentence remained
pending, despite the fact that almost 15 years had passed
since his trial ended, with no prospect that the California
Supreme Court would issue a final ruling anytime soon. Id.
at 1032. Given those circumstances, we held that the
petitioner could pursue federal habeas relief on claims
relating to his conviction even though he had not yet
exhausted available state remedies with respect to his
sentence. The state court’s delay in issuing a final ruling was
extraordinary, and the petitioner would be prejudiced by
requiring him to endure further delays, for if the challenges
to his conviction proved meritorious he might be entitled to
32                     JONES V. DAVIS

immediate release. Id. at 1033, 1035–36. Postponing review
of his conviction-related challenges until his sentencing
appeal was resolved could have forced him to endure years of
additional unjust imprisonment.

    Jones, by contrast, has not yet filed a new habeas petition
with the California Supreme Court, so there is no delay in
ruling on the petition that could be deemed extraordinary.
And, for the reasons explained above, requiring Jones to
endure some period of additional delay by returning to the
California Supreme Court will not prejudice his rights, given
the nature of the relief he seeks.

    The majority opinion suggests that requiring exhaustion
would be a futile exercise because the California Supreme
Court recently rejected the same claim at issue here in a case
on direct appeal, People v. Seumanu, 61 Cal. 4th 1293,
1368–75 (2015). Maj. op. at 13–14, 15. I am not convinced.
The court in Seumanu did say that, assuming all of the facts
presented to the district court in Jones’ case were true, it
would not find the claim meritorious. 61 Cal. 4th at 1375.
But the court sent conflicting signals on that score. It
emphasized that its review of the claim was hamstrung by
“the inadequate state of the record,” as the case was before
the court on direct appeal “and review is limited to facts in
the appellate record.” Id. at 1372. And its rejection of the
claim was hardly definitive. The court rejected it only for
purposes of the direct appeal, and expressly stated that the
claim “is more appropriately presented in a petition for
habeas corpus, where a defendant can present necessary
evidence outside the appellate record.” Id. at 1375. Far from
signaling that Jones’ filing of a new habeas petition raising
the same claim would be futile, the court seemed to invite
such a filing.
                      JONES V. DAVIS                      33

    I would reverse the judgment on the ground that Jones’
claim remains unexhausted, which precluded the district court
from granting him relief on that claim.
