               FOR PUBLICATION

 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT


MARIA DEL ROSIO ALFARO,                    No. 15-55337
           Petitioner-Appellee,
                                              D.C. No.
              v.                         2:07-cv-07072-CJC

DEBORAH K. JOHNSON,
        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 June 14, 2017
                Seattle, Washington

                   Filed July 14, 2017

  Before: JAY S. BYBEE, MILAN D. SMITH, JR.,
     and MORGAN CHRISTEN, Circuit Judges.

        Opinion by Judge Milan D. Smith, Jr.
2                      ALFARO V. JOHNSON

                          SUMMARY *


                         Habeas Corpus

   The panel reversed the district court’s grant of Maria
Alfaro’s habeas corpus relief on her claim, based on Jones v.
Chappell, 31 F. Supp. 3d (C.D. Cal. 2014), rev’d sub nom.,
Jones v. Davis, 806 F.3d 538, 541 (9th Cir. 2015), that
California’s post-conviction system for administering the
death penalty violates the Eighth Amendment’s prohibition
against cruel and unusual punishment.

    The panel held that Alfaro’s claim is barred by her failure
to exhaust available state court remedies, and is untimely
under Fed. R. Crim. P. 15(c).

    The panel held that Alfaro is not excused from her failure
to exhaust the claim. The panel wrote that even assuming
futility persists as a potential exception to AEDPA’s
exhaustion requirement, it does not excuse Alfaro’s failure
to exhaust her state court remedies in this instance in which
the California Supreme Court has not definitively rejected
the claim she now raises in her habeas petition. The panel
rejected Alfaro’s argument that her failure to exhaust should
be excused because requiring her to return to state court
would compound the delay she has already suffered. The
panel explained that Alfaro will not be prejudiced by
application of the exhaustion requirement because so long as
her petition is pending in state court, the constitutional



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

violation of which she complains (unconstitutional
imposition of the death penalty) will not take place.

    The panel held that neither relation back under Rule 15
nor the emergence of new facts renders Alfaro’s claim,
which was filed as part of her Third Amended Petition more
than a year after her conviction became final, timely.
Because Alfaro has not previously alleged facts regarding
systemic delay in California’s post-conviction death penalty
process, the panel held that her claim does not relate back to
earlier, timely-filed claims. The panel concluded that the
effort required to aggregate the publicly available
information upon which her instant claim relies rendered that
information discoverable through the exercise of due
diligence.


                        COUNSEL

Robin Helene Urbanski (argued), Deputy Attorney General;
James William Bilderback II, Supervising Deputy Attorney
General; Michael J. Mongan, Deputy Solicitor General; Julie
L. Garland, Senior Assistant Attorney General; Gerald A.
Engler, Chief Assistant Attorney General; Edward C.
DuMont, Solicitor General; United States Attorney’s Office,
San Diego, California; for Respondent-Appellant.

Michael David Weinstein (argued) and Celeste Bacchi,
Deputy Federal Public Defenders; Hilary Potashner, Federal
Public Defender, Office of the Federal Public Defender, Los
Angeles, California; for Petitioner-Appellee.
4                   ALFARO V. JOHNSON

                         OPINION

M. SMITH, Circuit Judge:

    Deborah Johnson, Warden of the Central California
Women’s Facility, appeals the district court’s grant of
Petitioner-Appellee Maria Alfaro’s petition for habeas
corpus relief. We hold that Alfaro’s claim is barred by her
failure to exhaust available state court remedies, and is
untimely under Federal Rule of Civil Procedure 15(c). We
therefore reverse the district court’s grant of Alfaro’s
petition.

    FACTUAL AND PROCEDURAL BACKGROUND

     In 1992, a jury convicted Alfaro of first degree murder,
burglary, and robbery, and also found true the special
circumstance that she committed the murder in the course of
a first degree burglary and robbery. People v. Alfaro, 41 Cal.
4th 1277, 1283, 1288 (2007). After an initial penalty-phase
jury failed to reach a verdict, a second penalty-phase jury
sentenced Alfaro to death. Id. at 1292, 1294.

    On November 4, 1999, Alfaro filed a direct appeal of her
conviction and sentence, asserting 15 separate grounds for
relief. The California Supreme Court affirmed Alfaro’s
conviction and sentence on August 6, 2007. See id. at 1282.

    Alfaro filed her first state petition for habeas corpus
relief on July 31, 2001, approximately two months after the
close of briefing in her direct appeal. The California
Supreme Court denied Alfaro’s petition in a summary order
on November 28, 2007. Alfaro then filed a second state
habeas petition on March 2, 2009, asserting 32 additional
claims. The California Supreme Court again denied Alfaro’s
petition in a summary order, issued on June 12, 2013.
                     ALFARO V. JOHNSON                        5

    Alfaro filed her initial federal habeas petition in the U.S.
District Court for the Central District of California on
August 1, 2008. She subsequently filed her First Amended
Petition on March 2, 2009, and her Second Amended
Petition on August 12, 2013.

    On July 16, 2014, the district court issued an opinion in
an unrelated case, granting relief for a habeas petitioner on
the ground that “systemic delay” in the administration of
California’s death penalty renders any ensuing executions
arbitrary, and thus in violation of the Eighth Amendment.
Jones v. Chappell, 31 F. Supp. 3d 1050, 1053 (C.D. Cal.
2014), rev’d sub nom., Jones v. Davis, 806 F.3d 538, 541
(9th Cir. 2015). Alfaro sought leave to amend her habeas
petition to add a claim (Claim 29) based on the court’s
findings and holding in Jones. The State opposed Alfaro’s
motion to amend on the grounds that (1) Alfaro failed to
exhaust Claim 29 in state court, (2) Claim 29 asserted a “new
rule,” the application of which is barred on collateral review
by the Supreme Court’s decision in Teague v. Lane, 489 U.S.
288 (1989), and (3) her amendment was untimely under
Federal Rule of Civil Procedure 15(c)(1)(B).

    On September 12, 2014, the district court granted Alfaro
leave to amend her petition. The district court acknowledged
that Alfaro had failed to exhaust Claim 29 in state court, but
cited its order in Jones stating that “[r]equiring [the
petitioner] to return to the California State Court to exhaust
[her] claim would only compound the delay that has already
plagued [her] post-conviction review process,” and held that
Alfaro therefore need not exhaust her claim. In regard to
Teague, the district court again cited to its order in Jones to
hold that Alfaro’s claim did not present a “new rule,” and
therefore was not barred by Teague. Finally, the district
court found that Claim 29 related back to Alfaro’s timely-
6                      ALFARO V. JOHNSON

filed claims because she “set forth the common core of
operative facts in her original federal Petition.”

    Alfaro filed her Third Amended Petition (TAP) on
August 8, 2014. On February 5, 2015, the district court
granted Alfaro relief on Claim 29: It held that California’s
post-conviction system for administering the death penalty
violates the Eighth Amendment’s prohibition against cruel
and unusual punishment, and it therefore vacated Alfaro’s
capital sentence. Pursuant to Federal Rule of Civil
Procedure 54(b), the district court determined that there was
no just reason for delay in the entry of final judgment, and
entered final judgment as to Claim 29 on February 10, 2015.
The State timely filed its appeal of the district court’s
judgment.

    JURISDICTION AND STANDARD OF REVIEW

    We have jurisdiction over this appeal pursuant to
28 U.S.C. §§ 1291 and 2253(a). We review de novo the
district court’s exhaustion determination.      Wooten v.
Kirkland, 540 F.3d 1019, 1023 (9th Cir. 2008). We similarly
review de novo the district court’s relation-back
determination. Williams v. Boeing Co., 517 F.3d 1120, 1132
(9th Cir. 2008). 1




    1
       Alfaro’s answering brief suggests that the relevant standard of
review for relation-back determinations is abuse of discretion. Alfaro
conflates the review standard applied to a district court’s ruling on a
motion to amend with the standard for reviewing whether a claim
actually relates back once leave to amend has been granted. In the latter
scenario, with which we deal here, we exercise de novo review.
Williams, 517 F.3d at 1132 n.8.
                     ALFARO V. JOHNSON                        7

                         ANALYSIS

   Alfaro Is Not Excused from Her Failure to Exhaust
   Claim 29

    The Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214,
requires a plaintiff to “exhaust[] the remedies available in the
courts of the State” before she may obtain federal habeas
relief.   28 U.S.C. § 2254(b)(1)(A).          The exhaustion
requirement is rooted in the principle of comity, and
“reduces friction between the state and federal court systems
by avoiding the unseem[liness] 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.” O’Sullivan v. Boerckel,
526 U.S. 838, 845 (1999) (alteration in original) (internal
quotation marks omitted). Nevertheless, a habeas petitioner
may be excused from exhausting a given claim where
(1) “there is an absence of available State corrective
process,” or (2) “circumstances exist that render such
process ineffective to protect the rights of the applicant.”
28 U.S.C. § 2254(b)(1)(B)(i)‒(ii).         Neither of these
exceptions to AEDPA’s exhaustion requirement applies in
Alfaro’s case.

    Under the exception contained in § 2254(b)(1)(B)(ii),
which applies when “circumstances exist that render such
process ineffective to protect the rights of the applicant,” a
petitioner may seek redress in federal court “if the [state]
corrective process is so clearly deficient as to render futile
any effort to obtain relief.” Duckworth v. Serrano, 454 U.S.
1, 3 (1981) (emphasis added). In Sweet v. Cupp, 640 F.2d
233 (9th Cir. 1981), we expressly adopted a formulation of
the “futility doctrine” that excuses a petitioner’s failure to
exhaust state remedies “if the highest state court has recently
8                     ALFARO V. JOHNSON

addressed the issue raised in the petition and resolved it
adversely to the petitioner, in the absence of intervening
United States Supreme Court decisions on point or any other
indication that the state court intends to depart from its prior
decisions.” Id. at 236. We reasoned that under such
circumstances, requiring exhaustion would not further the
purpose of comity, but rather “would only create an
unnecessary impediment to the prompt determination of
individuals’ rights.” Id.

    The Supreme Court’s decision in Engle v. Isaac,
456 U.S. 107 (1982) arguably called Sweet’s reasoning into
doubt. Engle considered whether a state’s procedural bar on
appellate consideration of a claim permitted a petitioner to
raise that claim on federal habeas review, despite the
petitioner’s failure to raise it below. Id. at 125. The Engle
Court observed that “[t]he state appellate courts have not had
a chance to mend their own fences and avoid federal
intrusion,” and “reaffirm[ed], therefore, that any prisoner
bringing a constitutional claim to the federal courthouse after
a state procedural default must demonstrate cause and actual
prejudice before obtaining relief.” Id. at 129. A petitioner
“may not bypass the state courts simply because [s]he thinks
they will be unsympathetic to the claim.” Id. at 130.

    The State argues that Engle effectively overruled Sweet’s
endorsement of the futility doctrine such that the California
Supreme Court’s potentially adverse view of Alfaro’s claim
does not excuse her from exhausting available state court
remedies. See Noltie v. Peterson, 9 F.3d 802, 805 (9th Cir.
1993) (describing how Engle called into question the “short-
lived ‘futility doctrine’ to avoid procedural default”). 2 We

    2
     We note, however, that we have yet to expressly overrule Sweet.
On the contrary, we have cited to it favorably post-Engle. See, e.g.,
                        ALFARO V. JOHNSON                                 9

need not, however, rule on the continued viability of the rule
from Sweet: Even assuming that a state supreme court’s prior
rejection of a petitioner’s claim excuses that petitioner’s
failure to exhaust, the circumstances of Alfaro’s case do not
support application of this exception. Alfaro argues that the
California Supreme Court rejected a claim identical to hers
in People v. Seumanu, 61 Cal. 4th 1293 (2015). There the
California Supreme Court considered a defendant’s direct
appeal asserting the claim, based upon the district court’s
opinion in Jones, that “systemic delay in resolving
postconviction challenges to death penalty judgments has
led to a constitutionally intolerable level of arbitrariness in
the implementation of the penalty.” Id. at 1368. The
California Supreme Court held that, “assuming such a claim
exists,” the petitioner had failed to provide sufficient
evidence to prevail. Id. The court acknowledged that a
“Jones claim” differs from a typical delay-based “Lackey”
claim. Id. at 1372; see also Lackey v. Texas, 514 U.S. 1045
(1995) (Stevens, J., mem. op. respecting denial of cert.).
While the California courts have consistently rejected
Lackey claims, which assert that “delay in deciding
postconviction challenges in capital cases constitutes cruel
and unusual punishment” because it unmoors the

Gardner v. Pitchess, 731 F.2d 637, 640 (9th Cir. 1984). Furthermore,
the Supreme Court has at least suggested that futility might still present
a viable excuse to a petitioner’s failure to exhaust post-Engle. See Lynce
v. Mathis, 519 U.S. 433, 436 n.4 (1997) (noting the petitioner’s failure
to exhaust, but stating that the Court was “satisfied . . . that exhaustion
would have been futile” because the Florida Supreme Court had recently
rejected the same claim being raised by the petitioner and “Respondents
[had] not suggested any reason why the Florida courts would have
decided petitioner’s case differently”). Finally, Engle dealt with a
petitioner’s attempt to evade a state procedural bar, rather than failure to
exhaust. While these obstacles to federal habeas relief are related, they
are nevertheless distinct concepts. Thus, while the reasoning of Engle is
relevant to considering excuses to exhaustion, it is not precisely on point.
10                  ALFARO V. JOHNSON

punishment from its legitimate penological purposes,
California courts have not previously considered whether the
arbitrariness purportedly created by systemic delay might
independently support an Eighth Amendment claim.
Seumanu, 61 Cal. 4th at 1369–71. The California Supreme
Court held, however, that even if a Jones claim could
hypothetically succeed, the “defendant ha[d] not, on [that]
record, demonstrated that systemic delays have produced
arbitrariness that is violative of the Eighth Amendment.” Id.
at 1374. It therefore rejected the defendant’s claim, and
stated that “[a]ny such 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.

     Thus, the Seumanu court did not foreclose the possibility
of a Jones-type claim succeeding on the merits. On the
contrary, the court appears to invite future habeas petitioners
to raise such a claim via a state habeas petition. See id.
Alfaro cites to the California Supreme Court’s brief
statement in People v. Clark, 63 Cal. 4th 522 (2016),
reiterating its rejection of Lackey claims and noting that it
has “also recently rejected a variant of this constitutional
argument as raised in Jones v. Chappell,” id. at 645 (citing
Seumanu, 61 Cal. 4th 1293), as indicating the California
Supreme Court’s foreclosure of Jones claims. However, the
Clark court offered no analysis of Seumanu or Jones beyond
its accurate—albeit somewhat incomplete—observation that
Seumanu rejected a Jones claim. The Clark court did not
amend or expand upon the express statement in Seumanu
that, while the claim in that case could not succeed, a similar
type of claim could potentially be considered on state habeas
review.
                     ALFARO V. JOHNSON                       11

     The California Supreme Court admittedly “sent
conflicting signals” regarding future delay-based claims,
Jones, 806 F.3d at 555 (Watford, J., concurring), insofar as
it stated that even assuming the facts presented to the district
court in Jones were true, it would not grant relief. Seumanu,
61 Cal. 4th at 1375. Nevertheless, in light of the Seumanu
court’s consistent emphasis on the insufficiency of the
record and its apparent willingness to consider a Jones-type
claim on habeas review, the California Supreme Court has
not definitively rejected the claim Alfaro now raises in her
petition for habeas relief. Therefore, even assuming that
futility persists as a potential exception to AEDPA’s
exhaustion requirement, it does not excuse Alfaro’s failure
to exhaust her state court remedies in this instance.

    Alfaro alternatively argues that her failure to exhaust the
available state remedies should be excused because
“requiring Alfaro to return to state court would compound
the delay she has already suffered.” We have held that
“since excessive delay in obtaining an appeal may constitute
a due process violation, a prisoner need not fully exhaust
[her] state remedies if the root of [her] complaint is [her]
inability to do so.” Coe v. Thurman, 922 F.2d 528, 530–31
(9th Cir. 1990); see also Phillips v. Vasquez, 56 F.3d 1030,
1035 (9th Cir. 1995); Okot v. Callahan, 788 F.2d 631, 633
(9th Cir. 1986) (per curiam). This principle does not,
however, justify Alfaro’s failure to exhaust.

    Unlike the petitioners in Coe, Phillips, and Okot, the root
of Alfaro’s complaint is not her inability to obtain timely
resolution of a challenge to her conviction. Rather, her claim
asserts that system-wide delays render the few executions
that ultimately do occur arbitrary and without penological
justification. Put differently, the ultimate harm she asserts is
not that a meritorious claim will continue to go unaddressed
12                      ALFARO V. JOHNSON

because of delay, it is that inordinate delay will render her
future execution, if it ever occurs, arbitrary, and therefore
unconstitutional. 3 Thus, while asking the petitioner in Coe
to return to state court would only have compounded the
injury complained of, here Alfaro will not be prejudiced by
application of the exhaustion requirement: So long as her
petition is pending in state court, the constitutional violation
of which she complains (arbitrary, and therefore
unconstitutional, imposition of the death penalty) will not
take place. See Jones, 806 F.3d at 555 (Watford, J.,
concurring) (“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 fact that Alfaro’s claim implicates
delay in California’s post-conviction process therefore does
not excuse her failure to exhaust her present claim.

     Alfaro’s Claim is Barred as Untimely under Federal
     Rule of Civil Procedure 15(c)

    AEDPA imposes a one-year statute of limitations on
claims raised by petitions for habeas relief, which runs from
“the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Alfaro’s
     3
      At oral argument, Alfaro’s counsel noted that Alfaro does have
additional claims pertaining to the merits of her conviction that are going
unaddressed as a result of delay. However, no such claims are before us
on this appeal, nor does any prejudice she might suffer from the delay
required to exhaust those claims excuse her failure to exhaust her present
Eighth Amendment claim.
                     ALFARO V. JOHNSON                        13

conviction became final on March 3, 2008. See Alfaro v.
California, 552 U.S. 1245 (2008) (denial of pet. for cert.).
Alfaro filed Claim 29 on August 8, 2014, as part of her TAP.
Alfaro nevertheless argues that her claim should not be
barred as untimely because it relates back to an earlier,
timely-filed claim, or alternatively because the facts
underlying Claim 29 were not reasonably discoverable until
within a year prior to her TAP. The district court found that
Alfaro’s claim related back to her initial, timely-filed
petition, and therefore did not address her contention
regarding the discoverability of Claim 29’s predicate facts.
We find that neither relation back nor the emergence of new
facts renders Alfaro’s Claim 29 timely.

    A habeas petition “may be amended or supplemented as
provided in the rules of procedure applicable to civil
actions.” 28 U.S.C. § 2242. Under Federal Rule of Civil
Procedure 15(c), a petitioner may add an otherwise untimely
claim to her habeas petition if it relates back to a timely-filed
claim. Rule 15(c) provides, in relevant part, that an
amendment relates back to a timely-filed claim when the
newly-asserted claim “arose out of the conduct, transaction,
or occurrence set out” in the previous filing. Fed. R. Civ. P.
15(c)(1)(B). As the Supreme Court explained in Mayle v.
Felix, 545 U.S. 644 (2005), Rule 15(c) permits relation back
only when new claims “arise from the same core facts as the
timely filed claims, and not when the new claims depend
upon events separate in both time and type from the
originally raised episodes.” Id. at 657 (internal quotation
marks omitted). Accordingly, we must consider whether
Alfaro’s Eighth Amendment systemic delay claim shares “a
common core of operative facts” with one of her timely-filed
claims. Id. at 664.
14                  ALFARO V. JOHNSON

    Claim 29 asserts that “inordinate and unpredictable delay
in California’s death penalty system leads to the arbitrary
imposition of the death penalty.” The alleged “arbitrariness”
stems from the fact that, “for most [California capital
inmates], systemic delay has made their execution so
unlikely that the death sentence . . . has been quietly
transformed into one no rational jury or legislature could
ever impose: life in prison, with the remote possibility of
death.” As this text demonstrates, the core of Alfaro’s claim
is the “unlikeliness” and uncertainty created by “systemic
delay.” But the relative likelihood of an inmate’s execution
only becomes apparent when viewing the system as a whole.
The probability of a given outcome in any particular instance
cannot be determined by considering that particular instance
in a vacuum. Rather, context is required. Alfaro’s Claim 29
provides the necessary context by citing to the district
court’s order in Jones, which in turn relied on data regarding
the overall percentage of death row inmates who have been
executed since 1978, as well as additional statistics
indicating pervasive delay in California’s administration of
the death penalty. These core operative facts underlying
Claim 29 provide the context necessary for alleging the
statistical unlikeliness of any one prisoner facing execution,
by illustrating the system-wide delay that Alfaro alleges
plagues the California death penalty scheme.

    Alfaro points to facts alleged in her earlier-filed
complaints regarding the procedural history of her own case,
and the delay she has personally experienced, to argue that
Claim 29 relates back to those earlier filings. Such facts
might perhaps support a delay-based Lackey claim. They do
not, however, suffice to support the Jones claim she now
raises. The key distinguishing factor between Lackey and
Jones claims is that the latter concern systemic delay that
creates arbitrariness in executions. As explained above, no
                       ALFARO V. JOHNSON                            15

one petitioner’s case can support such a claim on its own.
System-wide data is needed. Because Alfaro has not
previously alleged facts regarding systemic delay in
California’s post-conviction death penalty process, her claim
does not relate back to her timely-filed petition.

     Alternatively, Alfaro argues that Claim 29 relates back
to Claim 27 of her Second Amended Petition. 4 Once again,
however, Claim 27 and Claim 29 do not allege share a
common factual basis. Whereas Claim 29 concerns systemic
delay in the administration of California’s death penalty,
Claim 27 addresses systemic failures in the State’s
conviction and sentencing process. Alfaro points to Nguyen
v. Curry, 736 F.3d 1287 (9th Cir. 2013) to argue that the
difference in timing of claims (here, pre-sentencing versus
post-sentencing) does not preclude relation back. Her
argument misses the point: The barrier to relation back in her
case is not the differing times at which her claims arose, or
the different legal grounds upon which they rest. Rather, it
is the difference between their respective factual predicates.
The facts relevant to Claim 27 concern California’s death
penalty statute and sentencing procedures. Nowhere does
Claim 27 point to systemic data regarding the fate of
California inmates after they are sentenced to death.

    Alfaro contends that, if Claim 29 does not relate back, it
was nevertheless timely filed because the specific factual
predicate upon which it rests “first became discoverable
through the ‘exercise of due diligence’ on June 1, 2014,”
when exhibits were filed in support of the petitioner’s similar


    4
       Although Claim 27 is contained within a petition filed well past
the one-year limitation period, the parties agree that Claim 27 properly
relates back to Alfaro’s timely-filed petition.
16                  ALFARO V. JOHNSON

claim in Jones. Alfaro points to data collected and filed by
the Habeas Corpus Resource Center (HCRC), including

       the number of inmates without habeas corpus
       counsel as of June 2014, the annual number
       of habeas counsel appointments from 2008 to
       the present, the rate at which the California
       Supreme Court issues orders to show cause in
       habeas cases, the average length of time it
       takes for respondents to file responses to
       orders to show cause, and the number of fully
       briefed habeas cases awaiting decision,

as evidence that could not have been discovered through the
exercise of due diligence prior to its having been filed in
Jones. While we acknowledge that Jones aggregated in an
accessible manner the statistical information necessary to
bring Alfaro’s Claim 29, we do not find that the underlying
information’s previously diffuse format rendered it beyond
the reach of diligent discovery.

    As the Jones court’s opinion states, the appendix filed in
Jones v. Chappell containing the status of individuals
sentenced to death in California since 1978—including the
number of inmates who have been executed, had their cases
stayed, or died in custody from causes other than execution,
and the number who currently have habeas petitions pending
before either the federal or California courts—“was
compiled using publicly available information from the
court dockets of the four federal judicial districts in
California, the public docket of the California Supreme
Court, and the [California Department of Corrections and
Rehabilitation’s] Condemned Inmate List (July 2014) and
List of Inmates Who Have Died Since 1978 (2014).” 31 F.
Supp. 3d at 1069 n.4. In other words, HCRC compiled the
                         ALFARO V. JOHNSON                               17

relevant facts into comprehensive charts to support Jones’
claim of systemic delay, but they did so using publicly
available facts. The only sense in which the data relied upon
by Jones—and consequently by Alfaro—could not have
been discovered earlier through the “exercise of due
diligence” is that statistics from 2014 would of course not
have been available prior to that year. But the cited statistics
appear to be updated regularly, and Alfaro does not argue
that the nature of the data changed between the running of
the one-year period following final judgment in her case and
the filing of her TAP (on the contrary, her claim alleges
system-wide delay that goes back decades).

    We acknowledge and sympathize with the fact that
habeas petitioners have limited resources to dedicate to
discovery. However, we cannot say that the effort required
to aggregate the publicly available information upon which
Claim 29 relies rendered that information undiscoverable
through the exercise of due diligence. We therefore find
Claim 29 barred as untimely. 5


      5
        The State has argued, both in its briefing and at oral argument, that
this case should be disposed of through application of the Supreme
Court’s prohibition against a petitioner’s assertion of “new rules” for the
first time on collateral review. See Teague v. Lane, 489 U.S. 288 (1989).
We acknowledge that we have previously found that the claim now
asserted by Alfaro constitutes a “new rule” that does not fall under the
exception to the Teague bar for “substantive” new rules. See Jones v.
Davis, 806 F.3d 538, 551–53 (9th Cir. 2015). However, subsequent
Supreme Court precedent has cast some doubt on our conclusion in Jones
that the claim now before us constitutes a “procedural” rather than a
“substantive” rule.

     In Jones, we justified our classification of the claim as procedural
on the basis that Jones “[did] not assert that he fit[] into one of the
traditionally recognized classes of persons whose ‘status’ is an intrinsic
18                      ALFARO V. JOHNSON




quality, such as insanity or intellectual disability,” and that “[u]nder
[Jones’] 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.” Id. at 552–53.
Following our issuance of the Jones opinion, the Supreme Court decided
Welch v. United States, 136 S. Ct. 1257 (2016), holding that its prior
decision striking the residual clause of the Armed Career Criminals Act
as void for vagueness set forth a substantive rule that applies
retroactively on collateral appeal. Id. at 1265. This undercuts the
argument that a rule is procedural merely because the rule does not
address a group defined by some intrinsic quality.

     Furthermore, the Court’s discussions in both Welch and the recently-
decided case Montgomery v. Louisiana, 136 S. Ct. 718 (2016), call into
question the notion that if the claim asserted here presents a substantive
rule, the substantive/procedural distinction loses any meaning. Both
Welch and Montgomery develop Teague by clarifying the relevant
distinction between substantive and procedural rules: The failure to
apply a procedural rule does not necessarily invalidate every result,
whereas failure to apply a substantive rule leaves no possibility of a
legitimate outcome. See, e.g., Welch, 136 S. Ct. at 1265–67;
Montgomery, 136 S. Ct. at 729–32. This is why, upon collateral review,
the balance between comity and finality on the one hand, and
constitutional rights on the other, tips against retroactive application
when a rule is procedural, and in favor when it is substantive. See Welch,
136 S. Ct. at 1266; Montgomery, 136 S. Ct. at 732.

     Should Alfaro’s claim ultimately be found meritorious, it would
invalidate California’s present system for administering the death
penalty. This suggests that, under the Supreme Court’s evolving
interpretation of Teague, the rule she seeks to advance may present a
substantive rule. However, because Alfaro’s petition can be resolved on
alternative procedural grounds, we do not now decide the continued
vitality of our holding to the contrary in Jones.
                        ALFARO V. JOHNSON                               19

                           CONCLUSION

    Alfaro failed to exhaust the available state remedies for
Claim 29, and that claim was also untimely filed. Because
Alfaro’s claim is barred on these procedural grounds, we do
not address the merits of her Eighth Amendment argument. 6

    REVERSED.




    6
       Alfaro has filed a motion for judicial notice of a variety of
materials, consisting of (1) a California Supreme Court news release,
(2) a court statistics report produced by the Judicial Council of
California, (3) two news releases from the Judicial Council of California,
(4) state-court dockets from Alfaro’s state proceedings, (5) the status of
certain docketed California capital cases, (6) the CDCR Condemned
Inmates list, (7) articles from the National Institute of Justice and Death
Penalty Information Center, and (8) a Gallup poll on the death penalty.
As Alfaro indicates in her motion, these materials all pertain to the merits
of her Eighth Amendment claim. Because we do not reach Alfaro’s
claim on the merits, we deny her motion as moot.
