                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


DONNA KAY LEE,                          No. 12-56258
       Petitioner-Appellant,
                                        D.C. No.
             v.                  2:01-cv-10751-PA-PLA

DEBRA JACQUEZ,
       Respondent-Appellee.              OPINION


     Appeal from the United States District Court
        for the Central District of California
      Percy Anderson, District Judge, Presiding

              Argued and Submitted
      November 17, 2014—Pasadena, California

                   Filed June 9, 2015

     Before: Mary M. Schroeder, Harry Pregerson,
      and Jacqueline H. Nguyen, Circuit Judges.

              Opinion by Judge Nguyen
2                         LEE V. JACQUEZ

                           SUMMARY*


                          Habeas Corpus

    The panel reversed the district court’s denial of California
state prisoner Donna Kay Lee’s habeas corpus petition
challenging her first-degree murder convictions and
remanding for the district court to consider Lee’s claims on
the merits.

    The district court found that Ex parte Dixon, 264 P.2d 513
(Cal. 1953), which prohibits California state courts from
considering habeas claims that should have been raised on
direct appeal but were omitted, is an adequate and
independent state law procedural rule that bars federal review
of Lee’s claims.

     Assuming without deciding that Dixon is an independent
state law rule, the panel held that the state has failed to meet
its burden of demonstrating the Dixon bar’s adequacy at the
time of Lee’s procedural default. The panel wrote that where
the state endorsed a statistical analysis to demonstrate a rule’s
adequacy, and the panel is left only with evidence that the
Dixon bar was applied to between seven and twenty-one
percent of all habeas cases filed in the months surrounding
Lee’s default, the state failed to meet its burden of proving
that the Dixon bar was adequate.




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

                        COUNSEL

Marta VanLandingham (argued), Deputy Federal Public
Defender; and Sean Kennedy, Federal Public Defender, Los
Angeles, California, for Petitioner-Appellant.

Robert M. Snider (argued), Deputy Attorney General; Dane
R. Gillette, Chief Assistant Attorney General; Lance E.
Winters, Senior Assistant Attorney General; Kenneth C.
Byrne, Supervising Deputy Attorney General; and Kamala D.
Harris, Attorney General of California, Los Angeles,
California, for Respondent-Appellee.


                         OPINION

NGUYEN, Circuit Judge:

    Donna Kay Lee is serving two life sentences without the
possibility of parole in a California state prison for first
degree murder. After the California Court of Appeal affirmed
her conviction on direct appeal, Lee filed various habeas
petitions in state courts. All of her claims were denied, some
on the merits and others as procedurally barred. This appeal
concerns eleven claims that the California Supreme Court
found to be procedurally barred under the Dixon rule, which
prohibits California state courts from considering habeas
claims that should have been raised on direct appeal but were
omitted. Ex parte Dixon, 264 P.2d 513 (Cal. 1953). On
federal habeas review, the district court found that Dixon is
an adequate and independent state law procedural rule that
bars federal review of Lee’s claims. However, even
assuming, without deciding, that Dixon is an independent
state law rule, the state has failed to meet its burden of
4                          LEE V. JACQUEZ

demonstrating the Dixon bar’s adequacy at the time of Lee’s
procedural default. Thus, we reverse and remand for the
district court to consider her claims on the merits.

                          BACKGROUND

     On March 23, 1998, Lee was convicted of two counts of
first degree murder in Los Angeles County Superior Court.
She was sentenced to two life sentences without the
possibility of parole, plus an additional two years for the use
of a knife. Lee appealed her conviction on June 10, 1999,
raising four claims.1 Her appeal was denied on the merits on
August 28, 2000. The California Supreme Court affirmed on
December 13, 2000.

    Proceeding pro se, Lee filed a habeas petition in federal
court, raising fourteen claims. After the government moved
to dismiss the petition as largely unexhausted, Lee moved to
withdraw her petition without prejudice to allow her to
exhaust her claims in state court. The district court held her
motion in abeyance, and ordered Lee to either submit a First
Amended Petition, limited to her exhausted claims, or move
for voluntary dismissal to pursue her claims in state court. In
response, Lee submitted a First Amended Petition, and also
moved to stay the proceedings while she exhausted her other
claims in state court. The district court granted a stay, and
Lee returned to state court to seek habeas relief, raising
eleven claims.




    1
    Though her original appeal lists five claims, see People v. Lee, No.
B126544, slip op. at 14 (Cal. Ct. App. Aug. 28, 2000), her first and second
claims were later consolidated on habeas review.
                           LEE V. JACQUEZ                                5

    After Lee’s habeas petitions in both the California
Superior Court and the Court of Appeal were denied,2 she
filed a habeas petition with the California Supreme Court,
raising eleven claims from her original federal petition and a
new claim regarding an alleged improper exclusion of female
jurors. The Court denied her petition with citations to In re
Waltreus, 397 P.2d 1001 (Cal. 1965), In re Seaton, 95 P.3d
896 (Cal. 2004), and Dixon.

    Lee then returned to federal court to proceed with her
federal habeas petition. In a Second Amended Petition, she
included the four claims she had initially raised on direct
appeal to the California courts, seven newly-exhausted
claims, and four supplemental claims (which corresponded to
the first four claims raised in her state habeas petition). The
district court dismissed her petition, rejecting four claims on
the merits and finding the rest to be procedurally defaulted
under Dixon. On appeal, we affirmed the dismissal of two of
Lee’s claims on the merits3 and reversed as to the procedural
default issue, finding that the district court had “erroneously
concluded that the Ninth Circuit had found the Dixon rule to
be an independent and adequate state law ground.” Lee v.

  2
     Because all California courts have original jurisdiction in habeas
corpus proceedings, Cal. Const. Art. VI, § 10, “no appeal lies from the
denial of a petition for writ of habeas corpus.” In re Clark, 855 P.2d 729,
767 n.7 (Cal. 1993). Thus, a petitioner may seek relief by filing new
petitions in each court, though subsequent claims are limited to those
raised in the first petition. See In re Martinez, 209 P.3d 908, 915 (Cal.
2009).
   3
     We affirmed the denial of Lee’s claims regarding severance and
battered women’s syndrome, both of which were raised on direct appeal.
Lee v. Jacquez, 406 F. App’x 148, 149 (9th Cir. 2010). Lee did not appeal
the district court’s denial on the merits of her two remaining claims, and
thus we did not consider them. See id.
6                      LEE V. JACQUEZ

Jacquez, 406 F. App’x 148, 150 (9th Cir. 2010). We
remanded to give the state an opportunity to present evidence
of the Dixon rule’s independence and adequacy. Id. On
remand, the district court again concluded that the Dixon bar
was an independent and adequate state law rule at the time of
Lee’s procedural default. This timely appeal followed.

                        DISCUSSION

    Lee argues that the state failed to meet its burden of
proving that Dixon is an independent and adequate state law
ground barring federal review of her habeas claims. We have
jurisdiction to review her claim under 28 U.S.C. §§ 1291 and
2253, and we review the district court’s denial of her habeas
petition de novo. Ybarra v. McDaniel, 656 F.3d 984, 989 (9th
Cir. 2011).

    We now hold that the state failed to meet its burden of
proving the Dixon bar’s adequacy at the time of Lee’s
procedural default. Because a state procedural rule must be
both independent and adequate to prevent federal habeas
review, we need not decide whether Dixon is an independent
state law ground.

                The Adequacy Requirement

    “A federal habeas court will not review a claim rejected
by a state court ‘if the decision of [the state] court rests on a
state law ground that is independent of the federal question
and adequate to support the judgment.’” Beard v. Kindler,
558 U.S. 53, 55 (2009) (alteration in original) (quoting
Coleman v. Thompson, 501 U.S. 722, 729 (1991)). This rule
arises from the need to “show proper respect for state courts
and avoid rendering advisory opinions.” Id. at 63 (Kennedy,
                            LEE V. JACQUEZ                                 7

J., concurring). Conversely, an inadequate state law ground
will not bar federal review of a claim’s merits. “We have not
allowed state courts to bar review of federal claims by
invoking new procedural rules without adequate notice to
litigants who . . . have in good faith complied with existing
state procedural law.” Id. at 63–64.

    Here, the California Supreme Court declined to review
the merits of Lee’s claims by invoking Dixon’s procedural
bar, which prevents state courts from considering habeas
claims that should have been raised on direct appeal but were
not. Dixon, 264 P.2d at 514. The parties do not contest that
the Dixon rule, if independent and adequate, would bar all of
Lee’s remaining habeas claims except two (Ground 6 and
Supplemental Ground 4), because Lee failed to first raise
these claims on direct appeal of her conviction.4

    Adequacy is evaluated at the time of the petitioner’s
purported default, which for Dixon is the date when the
petitioner could have raised the claims on direct appeal.
Fields v. Calderon, 125 F.3d 757, 760–61 (9th Cir. 1997). In
order to be adequate, a procedural bar must be “clear,
consistently applied, and well-established at the time of the
petitioner’s purported default.’” Collier v. Bayer, 408 F.3d


 4
   A federal court may review the merits of a claim that was procedurally
defaulted on an independent and adequate state procedural ground if the
petitioner “can demonstrate cause for the procedural default and actual
prejudice, or demonstrate that the failure to consider the claims will result
in a fundamental miscarriage of justice.” Noltie v. Peterson, 9 F.3d 802,
804–05 (9th Cir. 1993). Here, Lee has not asserted good cause for her
default, nor has she claimed that a fundamental miscarriage of justice
would occur absent consideration of her claim. See Lee v. Mitchell, No.
01-10751-PA, slip op. at 20 (C.D. Cal. June 19, 2007). Thus, we do not
reach these issues.
8                      LEE V. JACQUEZ

1279, 1284 (9th Cir. 2005) (quoting Calderon v. United
States District Court (Bean), 96 F.3d 1126, 1129 (9th Cir.
1996)). The Supreme Court has described this requirement
as asking whether a state procedural rule was “firmly
established and regularly followed” at the time of the
petitioner’s default. Walker v. Martin, 131 S. Ct. 1120,
1127–28 (2011) (quoting Kindler, 558 U.S. at 60–61). The
adequacy requirement exists to prevent state courts from
discriminating against “disfavored claims,” and to “ensure
that habeas petitioners have fair notice of what they must do
to avoid default.” Kindler v. Horn, 642 F.3d 398, 401 (3d
Cir. 2011).

    We have established a burden-shifting regime to guide
our evaluation of a state procedural bar’s adequacy. See
Bennett v. Mueller, 322 F.3d 573 (9th Cir. 2003). First, the
state must plead the existence of an independent and adequate
state procedural bar as an affirmative defense. Id. at 586.
Next, the burden shifts to the petitioner, who must “assert[]
specific factual allegations that demonstrate the inadequacy
of the state procedure, including citation to authority
demonstrating inconsistent application of the rule.” Id. The
petitioner’s burden at this stage is “modest,” Dennis v.
Brown, 361 F. Supp. 2d 1124, 1130 (N.D. Cal. 2005), and the
use of unpublished decisions to show the state’s “actual
practice” is encouraged, Powell v. Lambert, 357 F.3d 871,
879 (9th Cir. 2004). If the petitioner successfully puts
adequacy at issue, then the burden shifts back to the state,
which must carry “the ultimate burden of proving the
adequacy of [a] . . . state [procedural] bar” as an affirmative
defense. Bennett, 322 F.3d at 585–86.

    Applying Bennett’s burden-shifting framework to this
case, we conclude that the state has satisfied its initial burden
                      LEE V. JACQUEZ                        9

by adequately pleading the independence and adequacy of
Dixon as an affirmative defense. At the second step, our
previous remand in this case suggests that Lee has met her
burden of putting the adequacy of the Dixon rule at issue. See
Lee, 406 F. App’x at 150 (noting that Lee “presented
evidence challenging the independence and adequacy of” the
Dixon rule and remanding to the district court for an
evaluation of the state’s “evidence to the contrary”). Thus,
we are left at the final stage of Bennett’s framework, where
the state must prove the Dixon bar’s adequacy.

A. Walker v. Martin and Discretionary State Procedural
                        Bars

    The state argues that the Supreme Court’s decision in
Walker v. Martin, 131 S. Ct. 1120 (2011), means that the
Dixon bar may be adequate even if the rule was applied
inconsistently during the time period surrounding Lee’s
default. This argument misreads Martin’s holding and scope.

    In Walker v. Martin, the Supreme Court found
California’s timeliness procedural bar to be an independent
and adequate state procedural ground that bars later federal
habeas review of a claim on the merits. Id. at 1131.
“California does not employ fixed statutory deadlines to
determine the timeliness of a state prisoner’s petition for
habeas corpus. Instead, California directs petitioners to file
known claims ‘as promptly as the circumstances allow.’” Id.
at 1124 (quoting In re Clark, 855 P.2d 729, 738 n. 5 (Cal.
1993)). This rule has also been described as setting a general
“reasonableness” standard, where a habeas petition is deemed
timely if it was filed within a reasonable period of time. See
Carey v. Saffold, 536 U.S. 214, 221 (2002). California courts
will generally deny untimely petitions by citing to the
10                     LEE V. JACQUEZ

California Supreme Court decisions of In re Clark, 855 P.2d
729 (Cal. 1993) and In re Robbins, 959 P.2d 311 (Cal. 1998).
Martin, 131 S. Ct. at 1124.

    “[O]utcomes under [this] rule vary from case to case,” id.
at 1129, as courts must evaluate the reasonableness of a filing
based on the particular circumstances of each petition.
Nevertheless, relying on its previous opinion in Beard v.
Kindler, which first held that “a discretionary state procedural
rule can serve as an adequate ground to bar federal habeas
review,” 558 U.S. at 60, the Martin Court found California’s
discretionary timeliness rule to be both firmly established and
regularly followed. 131 S. Ct. at 1128–29. The rule had
developed through case law, putting habeas petitioners on
notice that they must “alleg[e] with specificity” why their
petition was not substantially delayed or explain their
eligibility for an exception to the time bar. Id. at 1128
(alteration in original) (quoting In re Gallego, 959 P.2d 290,
299 (Cal. 1998)). Thus, even though the rule’s language is
“indeterminate” and does not set strict filing deadlines, its
“[a]pplication . . . in particular circumstances . . . supplie[s]
the requisite clarity” for the purposes of establishing
adequacy. Id. The Martin Court noted that the California
courts “regularly follow[]” and “regularly invoke” the
timeliness rule, and did so around the time the petitioner had
filed for habeas relief. Id. at 1229.

     Relying on Martin, the state argues that, like California’s
timeliness rule, Dixon is a discretionary procedural bar, and
any inconsistency in Dixon’s application reflects only the
state’s exercise of discretion rather than the rule’s
inadequacy.       We find this argument unpersuasive.
California’s timeliness rule is inherently discretionary in its
initial application, while the Dixon rule is mandatory in the
                       LEE V. JACQUEZ                        11

first instance. Evaluating whether a habeas petition has been
“filed as promptly as the circumstances allow” requires a
case-specific evaluation in every instance, leading inevitably
to varied outcomes. Id. at 1125 (quoting Clark, 855 P.2d at
738 n.5). The Dixon bar, in contrast, is meant to apply to all
habeas claims that could have been raised on direct appeal but
were not. Robbins, 959 P.3d at 340 n.34 (noting that
California courts apply the Dixon bar “whenever . . .
applicable”). Deciding whether a claim is barred by Dixon
involves not a malleable, circumstance-specific question of
“reasonableness,” but a straightforward review of the record:
A claim is either record-based, or it is not, and the petitioner
either raised or omitted a claim on direct appeal. Thus,
California state courts should be able to apply the Dixon bar
mechanically and consistently, and a failure to cite Dixon
where Dixon applies does not reflect the exercise of
discretion so much as it reflects the irregular application of
the rule.

    The state attempts to get around Dixon’s mandatory
applicability by focusing on the rule’s four Harris exceptions.
See In re Harris, 855 P.2d 391, 395 n.3, 398–407 (Cal. 1993)
(detailing the four exceptions to the Dixon rule); see also
Robbins, 959 P.2d at 340 n. 34 (clarifying that the court
considers the Harris exceptions when imposing the Dixon
bar). These exceptions allow courts to excuse a Dixon
procedural default if a “fundamental constitutional error”
occurred, if the original court lacked or acted in excess of its
jurisdiction, or if there has been “a change in the law
affecting the petitioner.” Harris, 855 P.2d at 398–407. Since
courts may decline to apply the Dixon bar when an exception
excuses a petitioner’s failure to raise a claim on appeal, the
state argues that Dixon and the timeliness rule are similarly
discretionary.
12                     LEE V. JACQUEZ

    While the state’s argument has some superficial appeal,
we do not believe that Dixon’s exceptions transform a
mandatory rule into a discretionary one. First, like the Dixon
rule, the timeliness bar also has four exceptions. Clark,
855 P.2d at 797–98. Yet Martin mentioned these exceptions
only in passing. See 131 S. Ct. at 1128. Instead, the Court
focused its analysis on the discretion inherent in the
timeliness bar’s initial application, rather than on the
application of the bar’s exceptions. See id. at 1125 (noting
that its holding means to ensure that California could
maintain the “flexibility of current practice”), 1130 (noting
that discretion allows courts to “avoid . . . harsh results,” and
emphasizing the importance of encouraging states to choose
more malleable rules).

    Thus, even if courts must exercise discretion when
applying Dixon’s exceptions, this analysis occurs only after
Dixon has first been applied. See, e.g., In re Preston, 98 Cal.
Rptr. 3d 340, 344 (Cal. Ct. App. 2009) (noting the
applicability of the Dixon bar, and then applying one of
Dixon’s four exceptions to consider the claim on the merits);
In re Crockett, 71 Cal. Rptr. 3d 632, 637 (Cal. Ct. App. 2008)
(same). And the state court will likely invoke an exception to
the Dixon bar whenever it applies, instead of simply not
applying Dixon without explanation. Cf. Robbins, 959 P.3d
at 340 n.34 (“When, in our orders, we impose the [Dixon]
bar[] . . . this signifies that we have concluded that none of
the four [Harris] exceptions . . . apply.”).

    Second, the Martin opinion carefully focused its holding
on discretionary rules, expressly noting that it “leaves
unaltered [the Supreme] Court’s repeated recognition that
federal courts must carefully examine state procedural
requirements to ensure that they do not operate to
                           LEE V. JACQUEZ                             13

discriminate against claims of federal rights.” 131 S. Ct. at
1130. In short, Martin does not support the state’s argument
that the inconsistent application of a state procedural rule
merely reflects the state’s exercise of discretion.5 To the
contrary, while Martin noted that “[a] discretionary rule
ought not be disregarded automatically upon a showing of
seeming inconsistencies,” id. (emphasis added), the Court
also stated that “a state [procedural] rule must be ‘firmly
established and regularly followed’” to be deemed adequate,
id. at 1127–28 (quoting Kindler, 558 U.S. at 60).

   We conclude that in order to bar federal review of Lee’s
habeas claims, the state must prove the Dixon rule’s regular
and consistent application around the time of Lee’s default.
We now turn to the state’s attempt to do so.

                      B. The State’s Burden

    The parties dispute what precisely the state must show in
order to meet its burden at the final stage of Bennett’s test.
As noted, adequacy requires that a rule be “clear, consistently
applied, and well-established,” Collier, 408 F.3d at 1284
(quoting Bean, 96 F.3d at 1129), and “firmly established and
regularly followed,” Martin, 131 S. Ct. at 1127–28 (quoting
Kindler, 558 U.S. at 60–61). Yet we lack “binding case law
defining what is a statistically insignificant irregularity and

   5
     Our conclusion is buttressed by the fact that other circuits have
continued to ask whether state procedural rules are regularly followed and
consistently applied after the Martin decision. See, e.g., Lee v. Corsini,
777 F.3d 46, 54 (1st Cir. 2015) (citing the “regularly followed” standard
for adequacy); Lark v. Sec’y Pa. Dep’t of Corr., 645 F.3d 596, 613 (3d
Cir. 2011) (distinguishing a “facially mandatory state procedural rule
which was not clearly followed” from the discretionary rules evaluated in
Walker and Kindler).
14                     LEE V. JACQUEZ

inconsistency in the application of a state procedural bar.”
Monarrez v. Alameda, No. 03-00104, 2005 WL 2333462
(C.D. Cal. Sept. 22, 2005), at *6. Some cases have suggested
that a rule must be applied in the “vast majority” of cases in
order to be considered adequate. Scott v. Schriro, 567 F.3d
573, 580 (9th Cir. 2009) (quoting Dugger v. Adams, 489 U.S.
401, 411 n.6 (1989)); see also Moran v. McDaniel, 80 F.3d
1261, 1270 (9th Cir. 1996). A closer look at these cases,
however, suggests that the court was describing a sufficient
but unnecessary condition—while a rule applied in the “vast
majority” of cases is most likely adequate, such a showing is
not required for a rule to be found adequate. See Dugger,
489 U.S. at 410 n. 6 (noting that “[i]n the vast majority of
cases . . . the Florida Supreme Court has faithfully applied”
the rule at issue, without seeming to set out an absolute
standard); Scott, 567 F.3d at 580 (internal quotation marks
and citation omitted) (stating that a procedural bar “is
considered consistently applied and well-established if the
state courts follow it in the vast majority of cases”). Thus,
while a state’s reliance on a procedural ground in the vast
majority of cases would likely prove the rule’s adequacy, the
state need not necessarily reach such a high statistical bar in
order to prove its affirmative defense.

    Bennett does provide some specific guidance regarding
the state’s ultimate burden, noting that “[t]he scope of the
state’s burden of proof . . . will be measured by the specific
claims of inadequacy put forth by the petitioner.’” 322 F.3d
at 584–85 (quoting Hooks v. Ward, 184 F.3d 1206, 1217
(10th Cir. 1999)). Bennett also advises the state to provide
“records and authorities [that] prove whether its courts have
regularly and consistently applied the procedural bar,”
322 F.3d at 585, which suggests that the state should do more
than just discredit the petitioner’s evidence from Bennett’s
                       LEE V. JACQUEZ                       15

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

    Additionally, we know that the Dixon bar was applied
inconsistently until at least September 30, 1993, when the
California Supreme Court decided Harris to “provide needed
guidance” for application of the rule going forward. 855 P.2d
at 395 n.3, 398; see also Fields, 125 F.3d at 763 (noting that
Dixon “had been obscured” by inconsistent application over
the years); La Crosse v. Kernan, 244 F.3d 702, 705 (9th Cir.
2001) (reading Fields to hold Dixon as per se inadequate until
at least 1993). Almost five years later, the California
Supreme Court noted in Robbins that it needed to again
“provide guidance” on the Dixon rule, suggesting that the
rule’s application did not become consistent in the time
period immediately following Harris. 959 P.2d at 340 n.34;
see also Park v. California, 202 F.3d 1146, 1152 n.4 (9th Cir.
2000) (reading Robbins as an attempt “to establish the
adequacy . . . of . . . future Dixon” decisions).

     After Robbins was decided, however, Dixon’s adequacy
remains unclear. Though Harris and Robbins meant to create
consistent application of the rule going forward, “it does not
follow that the rule in historical fact has been so applied.”
Bennett, 322 F.3d at 583. In fact, while no Ninth Circuit case
has found Dixon to be inadequate in the post-Harris era, Cree
v. Sisto, No. 2:08-CV-00487, 2011 WL 66253, (E.D. Cal. Jan.
7, 2011), at *2, in no case has the state met its burden of
proving Dixon’s adequacy at Bennett’s third step. See, e.g.,
Dennis v. Brown, 361 F. Supp. 2d 1124, 1133 (N.D. Cal.
2005) (concluding that the state failed to meet its burden
because it cited no cases or opinions showing actual practice);
16                     LEE V. JACQUEZ

Ayala v. Ayers, No. 01-CV-0741, 2008 WL 1787317 (S.D.
Cal. Apr. 16, 2008) (same); Vaughn v. Adams, No. CVF-
015241, 2006 WL 1439400 (E.D. Cal. May 22, 2006),
adopted in full by Vaughn v. Adams, No. 1:01-CV-05241,
2006 WL 1774915 (E.D. Cal. June 24, 2006) (finding that the
state failed to meet its burden because it did not overcome the
specific evidence submitted by the petitioner showing
Dixon’s inadequacy). In every case where the state has been
permitted to use the Dixon bar as an affirmative defense, the
petitioner failed to place the adequacy of the bar at issue as
required by Bennett’s second step. See, e.g., Cree v. Sisto,
No. 2:08-00487, 2011 WL 66253 (E.D. Cal. Jan. 7, 2011);
Johnson v. Giurbino, No. 1:03-CV-06013, 2007 WL 2481789
(E.D. Cal. Aug. 29, 2007); Sanchez v. Ryan, 392 F. Supp. 2d
1136, 1138–39 (C.D. Cal. 2005); Flores v. Roe, No. 05-5296,
2005 WL 1406086 (E.D. Cal. June 14, 2005), aff’d by Flores
v. Roe, 228 F. App’x 690 (9th Cir. 2007); Protsman v. Pliler,
318 F. Supp. 2d 1004, 1014 (S. D. Cal. 2004).

    While these lower court evaluations of Dixon’s adequacy
are not binding, these decisions inform our analysis because
“[a] procedural rule is either adequate or inadequate during a
given time period.” King v. LaMarque, 464 F.3d 963, 968
(9th Cir. 2006). Thus, the fact that the state has never shown
Dixon’s adequate application at Bennett’s third step is not
insignificant as we evaluate its efforts to meet its burden in
this case.

                 C. The State’s Evidence

    With this backdrop in mind, we turn to the state’s
evidence. The state analyzed 4,700 California Supreme Court
habeas denials surrounding the time of Lee’s June 10, 1999
default, finding that the Dixon procedural bar was invoked in
                       LEE V. JACQUEZ                       17

approximately twelve percent of all habeas denials. Though
the application rate varied between seven and twenty-one
percent across the months surveyed (August 1998 to June
2000), the state argues that this shows a “predictable”
application of Dixon such that the rule was an adequate state
law ground at the time of Lee’s default.

    We find this evidence entirely insufficient to meet the
state’s burden of showing the Dixon rule’s adequacy. The
state’s evidence merely shows Dixon’s application as a
percentage of all habeas denials filed during this time period,
and does not purport to show to how many cases the Dixon
bar should have been applied. Logic dictates that in order to
know if invoking Dixon in twelve percent of all cases shows
consistent application, we need to know “the number of times
that claims to which the Dixon rule could apply were instead
rejected on the merits.” Lee v. Mitchell, No. CV-01-10751-
PA, 2012 WL 2194471, at *18 (C.D. Cal. May 1, 2012).
Thus, we are missing the denominator that would give any
meaning to the state’s number. Without a baseline number
against which to measure the twelve percent application rate,
this percentage in no way indicates the consistency of the
rule’s application.

    The state attempts to cover the gap in its evidence in two
ways. First, the state argues that many of the habeas denials
from the surveyed time period were actually silently applying
procedural bars that were first invoked by a lower state court.
This may be so. If the California Supreme Court denies a
habeas petition without explanation, the federal courts will
presume that a procedural default was imposed if “the last
reasoned opinion on the claim explicitly impose[d] a
procedural default.” Ylst v. Nunnemaker, 501 U.S. 797, 803
(1991). But this argument does not relieve the state of its
18                    LEE V. JACQUEZ

burden of proving adequacy, and the state does not identify
cases in which a silent denial relied on a prior invocation of
Dixon. As the Supreme Court has noted, “[t]he essence of
unexplained orders is that they say nothing.” Id. at 804.
Thus, unless the state points out an underlying Dixon default
behind an ambiguous denial, we cannot assume that a silent
adoption of Dixon occurred.

    Second, the state challenges the evidence submitted by
Lee at Bennett’s second step, which shows that the California
Supreme Court failed to invoke Dixon in at least nine cases
to which it should have been applied among its December 21,
1999 habeas denials. Upon close review of these cases, and
mindful of the fact that we previously found that Lee met her
burden of putting the Dixon rule’s adequacy in question, see
Lee, 406 F. App’x at 150, we reject the state’s challenge.
While five of the cited cases raised ineffective assistance of
counsel claims, which often involve extra-record issues that
would not be barred by Dixon, these cases also had other
record-based claims to which Dixon should have applied.
Since California courts regularly employ multiple procedural
bars to deny petitions with multiple claims (as Lee’s own case
reflects), these five cases provide some evidence of
inconsistent application of Dixon. Further, the state argues
that several cases are distinguishable because they involved
petitioners who had pled guilty, which restricted their rights
on direct appeal. See Cal. Penal Code § 1237.5. But the state
fails to explain how these restricted rights affect habeas
petitions and Dixon’s applicability—and the state’s claim is
also belied by the existence of several habeas cases where
Dixon barred the claims of petitioners who had pled guilty.
See, e.g., Reyes v. Cash, No. CV-13-1248, 2014 WL
3734550, at *1 (C.D. Cal. July 28, 2014) (noting that a
petitioner who had pled guilty had his state habeas petition
                           LEE V. JACQUEZ                             19

denied on procedural grounds, including by Dixon);
Gustafson v. Long, No. CV-13-1737, 2014 WL 4187828, at
*12 (C.D. Cal. Apr. 16, 2014) (same).

    In sum, we are left only with evidence that the Dixon bar
was applied to between seven and twenty-one percent of all
habeas cases filed in the months surrounding Lee’s default.
Because this statistic, without more, is incomplete, the state
failed to meet its burden of proving that the Dixon bar was
“clear, consistently applied, and well-established at the time
of [Lee’s] purported default.” Collier, 408 F.3d at 1284.6

                          CONCLUSION

    We do not suggest that the state must always use a
statistical analysis to prove a rule’s adequacy, and nor do we
set any precise statistical bar that must be reached if the state
does use such an approach. Here, however, the state chose to
use just such a statistical framework, and argues that, if the
Dixon bar is mandatory, statistical analysis would be the best
way to demonstrate the rule’s regular and consistent
application. Endorsing this method, and then providing only
a partial statistical picture, the state must now live with the
inevitable result: Dixon’s application to twelve percent of all
habeas denials tells us almost nothing about the rule’s
consistent application and, therefore, its adequacy. While the
state requested at oral argument that we remand to allow it to
compile the missing records, which the state conceded were


  6
    Lee also argues that two of her claims, Ground 6 and Supplemental
Ground 4, were sufficiently raised in her direct appeal such that they are
not barred by Dixon. We need not address this argument because we find
the Dixon bar to be an inadequate state law ground. All of her remaining
claims should be considered on the merits on remand.
20                     LEE V. JACQUEZ

likely available, we see no reason to give the state yet another
chance. The state had a full opportunity to prove Dixon’s
adequacy and failed to do so. Thus, we remand for the
district court to consider Lee’s claims on the merits.

     REVERSED AND VACATED.
