               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


FREDDY CURIEL,                           No. 11-56949
         Petitioner-Appellant,
                                            D.C.
              v.                     No. 8:10-cv-00301-
                                         DDP-FMO
AMY MILLER, Warden,
         Respondent-Appellee.
                                          OPINION


     Appeal from the United States District Court
        for the Central District of California
     Dean D. Pregerson, District Judge, Presiding

    Argued and Submitted En Banc March 23, 2016
              San Francisco, California

                   Filed July 25, 2016

 Before: Sidney R. Thomas, Chief Judge, and Stephen
Reinhardt, Barry G. Silverman, Susan P. Graber, Ronald
  M. Gould, Richard A. Paez, Jay S. Bybee, Mary H.
  Murguia, Andrew D. Hurwitz, John B. Owens, and
        Michelle T. Friedland, Circuit Judges.

             Opinion by Judge Murguia;
           Concurrence by Judge Reinhardt;
            Concurrence by Judge Bybee
2                       CURIEL V. MILLER

                           SUMMARY*


                          Habeas Corpus

   The en banc court reversed the district court’s judgment
dismissing as untimely California state prisoner Freddy
Curiel’s federal habeas corpus petition.

     The en banc court held that the California Supreme
Court’s denial of Curiel’s third state habeas petition with
reference to In re Swain and People v. Duvall , California
Supreme Court cases concerning the state habeas pleading
particularity requirement, and with no reference to a
California case dealing with untimeliness, demonstrate that
the California Supreme Court found Curiel’s third petition to
be timely but deficiently pleaded, and in doing so, overruled
the prior untimeliness rulings of the Superior Court and the
Court of Appeal. The en banc court concluded that because
the California Supreme Court’s timeliness holding prevails,
Curiel’s state habeas petitions must be deemed “properly
filed” for their entire pendency in state court for purposes of
tolling AEDPA’s statute of limitations, and that with such
statutory tolling, Curiel filed his federal petition within the
limitations period.

    Concurring, Judge Reinhardt urged the California
Supreme Court to specify whether it is deciding on the merits
any or all of the questions of federal constitutional law that
are raised in the case before it, and identify the constitutional
basis of all such claims that it is denying, if any. He wrote

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

separately to urge the California Supreme Court to take a
slightly different approach to questions of federal
constitutional law in view of recent decisions of the United
States Supreme Court that have placed on state courts an
almost impossible burden of being the final decision-maker
in an overwhelming number of cases involving fundamental
constitutional rights of criminal defendants.

    Concurring, Judge Bybee wrote separately to express
frustration that communication between the California
Supreme Court and this court over the proper interpretation
of California state habeas decisions has devolved into a
series of hints that the California Supreme Court obliquely
telegraphs and that this court struggles to decipher.


                        COUNSEL

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

Kevin Vienna (argued), Supervising Deputy Attorney
General; Angela M. Borzachillo, Deputy Attorney General;
Julie L. Garland, Senior Assistant Attorney General; Kamala
D. Harris, Attorney General; Office of the Attorney General,
San Diego, California; for Respondent-Appellee.
4                          CURIEL V. MILLER

                                OPINION

MURGUIA, Circuit Judge:

    This case concerns the timeliness of Freddy Curiel’s
federal habeas petition under the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). We hold that the
district court erred in dismissing Curiel’s habeas petition as
untimely.

                           BACKGROUND

    In March 2006, a California jury convicted Curiel of
special circumstances first-degree murder and street
terrorism. Curiel was sentenced to life in prison without the
possibility of parole, plus twenty-five years.

    Curiel appealed his conviction to the California Court of
Appeal, which affirmed, and to the California Supreme Court,
which denied his petition for review on June 11, 2008.
Curiel’s conviction became final on September 9, 2008, after
the time for Curiel to file a petition for a writ of certiorari in
the United States Supreme Court lapsed. 28 U.S.C.
§ 2244(d)(1)(A).

    On May 12, 2009,1 Curiel initiated a collateral attack on
his conviction by filing a petition for a writ of habeas corpus

    1
   All of the filing dates reflect the constructive filing date of the petition
in accordance with the “mailbox rule,” which provides that a habeas
petition is deemed filed when the prisoner delivers it to prison authorities
for forwarding to the clerk of the court, not when the petition is filed by
the court. Ramirez v. Yates, 571 F.3d 993, 996 n.1 (9th Cir. 2009). The
parties agree that the mailbox rule applies and do not contest the relevant
dates.
                     CURIEL V. MILLER                        5

in Orange County Superior Court. The court denied his
petition on June 10, 2009, on the “separate and independent
grounds” that it was untimely and that Curiel failed to set
forth a prima facie case for relief. On July 7, 2009, Curiel
filed a second habeas corpus petition in the California Court
of Appeal, which the Court of Appeal denied on August 6,
2009, without comment or citation to authority. On
September 7, 2009, Curiel filed a third habeas petition in the
California Supreme Court, raising the same claims as his first
two state petitions. On February 18, 2010, the California
Supreme Court dismissed Curiel’s petition in a decision that
reads in full: “The petition for writ of habeas corpus is
denied. (See In re Swain (1949) 34 Cal.2d 300, 304; People
v. Duvall (1995) 9 Cal.4th 464, 474.).”

    On March 8, 2010, Curiel filed a federal petition for
habeas corpus pursuant to 28 U.S.C. § 2254 in federal district
court. The government moved to dismiss Curiel’s habeas
petition as untimely because it was filed more than one year
after his conviction became final. In opposition, Curiel
argued that AEDPA’s statute of limitations should be
statutorily tolled for the period during which his state habeas
petitions were pending, and also that he was entitled to
equitable tolling due to trial counsel’s alleged delay in
returning his client file.

    Accepting the findings and recommendation of the
magistrate judge, the district court determined that Curiel was
not entitled to statutory tolling for the three months that his
habeas petitions were pending in the California Superior
Court or the Court of Appeal because untimely petitions do
not toll AEDPA’s limitations period. The district court
observed that the Superior Court had explicitly imposed an
untimeliness bar in denying Curiel’s first habeas petition, and
6                    CURIEL V. MILLER

held that the Court of Appeal implicitly adopted the Superior
Court’s reasoning when it denied Curiel’s second petition
without explanation. The district court did, however, toll
Curiel’s federal filing deadline for the pendency of his
petition in the California Supreme Court, concluding that the
Supreme Court’s citations to Swain and Duvall indicated that
the court had denied Curiel’s third petition based solely on
the deficiency of his pleadings. Nevertheless, tolling the
clock for the period that Curiel’s petition was before the
California Supreme Court, alone, was insufficient to render
Curiel’s federal petition timely. Therefore, after rejecting
Curiel’s equitable tolling argument, the district court
dismissed Curiel’s habeas petition with prejudice.

    Curiel timely appealed, and we issued a certificate of
appealability as to the timeliness of Curiel’s federal petition
for habeas corpus.

                STANDARD OF REVIEW

    We review de novo a district court’s denial of a habeas
corpus petition. Hurles v. Ryan, 752 F.3d 768, 777 (9th Cir.
2014). Where, as here, the facts underlying a habeas
petitioner’s claim for tolling of AEDPA’s limitations period
are undisputed, we also review de novo whether the statute of
limitations should be tolled.        Espinoza-Matthews v.
California, 432 F.3d 1021, 1025 (9th Cir. 2005).

                       DISCUSSION

    AEDPA requires a state prisoner to file a federal habeas
petition pursuant to 28 U.S.C. § 2254 within one year of the
date on which his conviction becomes final on direct review,
unless the petitioner qualifies for statutory or equitable
                     CURIEL V. MILLER                       7

tolling. Id. § 2244(d)(1)(A). In Curiel’s case, AEDPA’s one-
year statute of limitations lapsed on September 9, 2009. See
id. Curiel filed his federal petition on March 8, 2010. Thus,
for his petition to be timely, Curiel must demonstrate that he
is entitled to at least six months of tolling.

                              I.

    “[A] properly filed application for State post-conviction
or other collateral review” tolls AEDPA’s statute of
limitations for the pendency of the state court proceedings.
Id. § 2244(d)(2). A habeas petition that is untimely under
state law is not “properly filed.” Pace v. DiGuglielmo,
544 U.S. 408, 413 (2005). Therefore, none of the time before
or during the state court’s consideration of an untimely
petition is tolled for purposes of AEDPA’s limitations period.
Evans v. Chavis, 546 U.S. 189, 197 (2006).

    In California, courts “appl[y] a general ‘reasonableness’
standard” when determining whether a habeas petition was
timely filed. Carey v. Saffold, 536 U.S. 214, 222 (2002). A
petition is timely under California law when the highest state
court to render a decision on the petition finds it to be so.
Campbell v. Henry, 614 F.3d 1056, 1061 (9th Cir. 2010).

                             II.

    The California Supreme Court rules on a “staggering”
number of habeas petitions each year, generally by issuing
“unelaborated ‘summary denials.’” Walker v. Martin,
562 U.S. 307, 312–13 (2011). When the California Supreme
Court denies a habeas corpus petition without opinion, it
“frequently cites either a California Supreme Court case or
some other authority which indicates to the petitioner the
8                     CURIEL V. MILLER

grounds for the denial.” Harris v. Superior Court, 500 F.2d
1124, 1127–28 (9th Cir. 1974) (en banc). The California
Supreme Court has provided us with the following guidance
on how to interpret its summary denial practice:

       [W]hen respondent asserts that a particular
       claim or subclaim . . . is untimely, and when,
       nevertheless, our order disposing of a habeas
       corpus petition does not impose the proposed
       bar . . . as to that claim or subclaim, this
       signifies that we have considered respondent’s
       assertion and have determined that the claim
       or subclaim is not barred on the cited ground
       ....

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

    “California courts signal that a habeas petition is denied
as untimely by citing the controlling decisions . . . Clark and
Robbins,” which describe California’s timeliness rule.
Walker, 562 U.S. at 310, 312 (citing Robbins, 959 P.2d at
317; In re Clark, 855 P.2d 729 (Cal. 1993)). By contrast, the
cases cited by the California Supreme Court here—In re
Swain and People v. Duvall—both concern the pleading
requirements that apply to a state habeas petitioner’s claims.
In Swain, the California Supreme Court explained that a
petitioner must “allege with particularity the facts upon which
he would have a final judgment overturned.” 209 P.2d at
795–96. The California Supreme Court denied Swain’s
habeas petition “without prejudice to the filing of a new
petition which shall meet the requirements” that it had just set
forth. Id. at 796. Likewise, in Duvall, the California
Supreme Court reiterated that a habeas petitioner must “state
fully and with particularity the facts on which relief is
                          CURIEL V. MILLER                                9

sought” and “include copies of reasonably available
documentary evidence supporting the claim.” 886 P.2d at
1258.

     We understand the California Supreme Court’s denial of
a habeas petition with citations to Swain and Duvall in
conjunction as, “in effect, the grant of a demurrer, i.e., a
holding that [the petitioner] ha[s] not pled facts with
sufficient particularity.”2 Gaston v. Palmer, 417 F.3d 1030,
1039 (9th Cir. 2005), reh’g granted, opinion modified on
other grounds, 447 F.3d 1165 (9th Cir. 2006); accord Cross
v. Sisto, 676 F.3d 1172, 1177–78 (9th Cir. 2012); see also
Seeboth v. Allenby, 789 F.3d 1099, 1104 n.3 (9th Cir. 2015)
(“We have held that citation to Duvall and Swain together
constitutes ‘dismissal without prejudice, with leave to amend
to plead required facts with particularity.’” (quoting Cross,
676 F.3d at 1177)). The United States Supreme Court has
attributed the same significance to a citation to Swain. See
Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991) (summarizing
Swain as holding “that facts relied upon in a habeas petition
must be alleged with particularity”). Accordingly, and
consonant with the California Supreme Court’s own
explanation of its summary order practice, we hold that the
California Supreme Court’s denial of Curiel’s third habeas
petition with reference to Swain and Duvall—and not a
California case dealing with untimeliness—means that the
California Supreme Court rejected Curiel’s petition as
insufficiently pleaded. See Cross, 676 F.3d at 1178; Gaston,
417 F.3d at 1039. And a state petition that was timely filed


    2
      In its motion to dismiss Curiel’s federal habeas petition, the
government agreed that “in combination with the citation to Duvall, the
Ninth Circuit has interpreted citations to Swain to indicate that a petition
was denied for failing to state claims with the requisite particularity.”
10                   CURIEL V. MILLER

but inadequately pleaded under California law is considered
“properly filed” and entitles a federal petitioner to statutory
tolling under § 2244(d)(2). Gaston, 417 F.3d at 1039. Thus,
the dispositive question is whether to treat the California
Supreme Court’s citations to Swain and Duvall as an
affirmative finding that Curiel’s claims were timely,
depriving the contrary rulings by the Superior Court and
Court of Appeal of all force and effect.

                             III.

    AEDPA directs federal courts to train their attention on
the particular reasons why each state court that considered a
prisoner’s claims denied relief. When more than one state
court has adjudicated a claim, the federal court analyzes the
last “reasoned” state court decision. Barker v. Fleming,
423 F.3d 1085, 1091 (9th Cir. 2005) (citing Ylst, 501 U.S. at
803–04). In doing so, “the federal court should review the
last decision in isolation and not in combination with
decisions by other state courts.” Id. at 1093.

    When at least one state court has rendered a reasoned
decision, but the last state court to reject a prisoner’s claim
issues an order “whose text or accompanying opinion does
not disclose the reason for the judgment,” we “look through”
the mute decision and presume the higher court agreed with
and adopted the reasons given by the lower court. Ylst,
501 U.S. at 802–06. However, if more than one state court
has rendered a reasoned decision on a habeas petition, the
ordinary rules of appellate review apply, such that a
determination by a higher-level court overrules a
                          CURIEL V. MILLER                               11

determination on the same issue by a lower-level court.3
Chavis, 546 U.S. at 192–93; Saffold, 536 U.S. at 221–22;
Campbell, 614 F.3d at 1061. There is no question that the
timeliness of a habeas petition is a matter subject to appellate
review. Campbell, 614 F.3d at 1061. Thus, “if the highest
court to render a decision determines that the claim is timely,
then that claim was timely when it was before the lower
court.” Id.

    We have no cause to treat a state court’s summary order
with citations as anything but a “reasoned” decision, provided
that the state court’s references reveal the basis for its
decision. Cf. Ylst, 501 U.S. at 802–03 (defining an
“unexplained” order as one from which the state court’s
rationale is “undiscoverable”). The Supreme Court has never
required state courts to be verbose for AEDPA purposes. See
Harrington v. Richter, 562 U.S. 86, 98 (2011) (“There is no
text in the statute requiring a statement of reasons.”). The
United States Supreme Court has surmised that a summary
denial with citations to the relevant California precedent on
untimely habeas petitions is sufficient to impose an
untimeliness bar. See Martin, 562 U.S. at 319 (“In reasoned
opinions, too, California courts regularly invoke Clark[] [and]
Robbins . . . to determine whether a habeas petition is time
barred.”); Chavis, 546 U.S. at 207 (Stevens, J., concurring)
(“The decision that a petition has been untimely filed need
not be explicitly stated; citation to a case in which a petition

  3
    California’s collateral review system differs from that of other States
in that it contemplates that a prisoner will file a new “original” habeas
petition in each court in which he seeks relief. Saffold, 536 U.S. at 222.
Nevertheless, it is well settled that California’s original writ system is
sufficiently analogous to appellate review systems in other states, such
that a higher state court may overturn a lower court’s ruling on a particular
issue. Id. at 222–23.
12                    CURIEL V. MILLER

was dismissed as untimely filed certainly would suffice.”).
In the same vein, in Thorson v. Palmer we held that the
California Supreme Court had provided a “clear ruling” that
it found a habeas petition untimely when the court’s order
stated in its entirety, “Petition for writ of habeas corpus is
DENIED,” accompanied by a citation to Robbins. 479 F.3d
643, 644–45 (9th Cir. 2007).

    The California Supreme Court’s citations to Swain and
Duvall offer equally adequate insight into the court’s
reasoning to treat its opinion as the last reasoned decision on
the timeliness of Curiel’s state habeas petitions. To the extent
that a denial accompanied by citations to Swain and Duvall is
the equivalent of a demurrer for pleading inadequacies, the
California Supreme Court’s decision indicates that the court
must have found Curiel’s petition timely, because a demurrer
is irreconcilable with the lower courts’ untimeliness
determinations. A dismissal without prejudice for failure to
plead with specificity invites a refiling of the habeas petition,
while a dismissal for lack of timeliness precludes it.

    Further, Curiel presented the same claims to the
California Supreme Court that he had in his first two habeas
petitions, along with the Superior Court’s decision denying
relief on untimeliness grounds. Thus, the California Supreme
Court was aware that the lower courts had already denied
Curiel’s first two petitions for untimeliness. If it agreed with
those courts’ conclusions, the California Supreme Court
could have simply issued a postcard denial without
explanation or citation, or denied Curiel’s petition by citing
Robbins and Clark. See Martin, 562 U.S. at 318–19. It did
neither. As the United States Supreme Court has explained,
so long as the state court’s timeliness ruling is clear, that is
“the end of the matter.” Saffold, 536 U.S. at 226. Under the
                     CURIEL V. MILLER                       13

circumstances, the California Supreme Court’s citations to
Swain and Duvall (and no other cases) are a clear signal that
it found Curiel’s habeas petitions timely.

    The Supreme Court has admonished us in the past not to
assume that a California court found a state habeas petition to
be timely from the court’s silence on the question. Chavis,
546 U.S. at 193–94, 198. State courts have always been free
to eschew procedural determinations and “summarily dismiss
a petition on the merits, if that is the easier path.” Martin,
562 U.S. at 319. Nevertheless, in cases in which the
California Supreme Court has explained its decision—as it
did here—the principles of comity and federalism underlying
AEDPA’s tolling rule compel us to fairly abide by the state
court’s timeliness determination. See Saffold, 536 U.S. at
222–23 (describing the purpose underlying AEDPA’s statute
of limitations). The California Supreme Court’s citations to
Swain and Duvall demonstrate that the court found Curiel’s
third petition timely but deficiently pleaded; in doing so, the
California Supreme Court overruled the prior untimeliness
rulings of the Superior Court and Court of Appeal. To hold
otherwise would neglect the effort of the California Supreme
Court to differentiate its reasoning from that of the lower
courts.

                             IV.

   Because the California Supreme Court’s timeliness
holding prevails, Curiel’s state habeas petitions must be
deemed properly filed for their entire pendency in state court
14                        CURIEL V. MILLER

for purposes of tolling AEDPA’s statute of limitations.4 See
Campbell, 614 F.3d at 1060–61; see also Trigueros v. Adams,
658 F.3d 983, 991 (9th Cir. 2011) (holding that a habeas
petitioner was entitled to statutory tolling for the period from
the date he filed his state habeas petition in Los Angeles
County Superior Court until the date his state habeas petition
was denied by the California Supreme Court, because the
California Supreme Court did not find the petitioner’s state
petition time barred). It is therefore easy to conclude that
Curiel’s federal habeas petition was timely. AEDPA’s statute
of limitations began to run on September 9, 2008. Curiel
filed his first state habeas petition on May 12, 2009, and the
California Supreme Court denied his last petition on February
18, 2010. Curiel is thus entitled to 283 days of statutory
tolling for this period, which extends the deadline for Curiel
to file his federal habeas petition until June 2010. Curiel filed
his federal petition in district court on March 8, 2010, well
within the extended limitations period.5


  4
     The district court was correct in its interpretation of the California
Supreme Court’s citation to Swain and Duvall. The district court erred
only by tolling the statute of limitations solely for the time during which
Curiel’s last petition was before the California Supreme Court, rather than
for the entire duration of Curiel’s state collateral review proceedings. See
Campbell, 614 F.3d at 1061.
  5
   During the pendency of these en banc proceedings, the United States
Supreme Court decided Kernan v. Hinojosa, 136 S. Ct. 1603 (2016),
holding that the California Supreme Court had not silently disregarded a
procedural bar imposed by the Superior Court when the California
Supreme Court summarily denied Hinojosa habeas relief, such that its
decision was “on the merits” for AEDPA purposes. Id. at 1604–06. In
Hinojosa, the United States Supreme Court concluded that Ylst’s “look-
through” presumption did not apply to the California Supreme Court’s
summary denial because the reasons supplied in the last reasoned state
court decision—the Superior Court’s order denying Hinojosa’s habeas
                        CURIEL V. MILLER                             15

                         CONCLUSION

    For the foregoing reasons, we hold that the district court
erred in dismissing Curiel’s federal habeas petition as
untimely. Because Curiel timely filed his federal habeas
petition once we account for statutory tolling, we do not reach
the question of equitable tolling.

    REVERSED and REMANDED.



REINHARDT, Circuit Judge, concurring:

     I concur fully in Judge Murguia’s opinion for the court.
I also agree generally with Judge Bybee that our decision-
making would be aided significantly if the California
Supreme Court were to explain more clearly the basis for its
summary denials. Even more important, I would urge the
California Supreme Court to specify in its opinions whether
it is deciding on the merits any or all of the questions of
federal constitutional law that are raised in the case before it,
and identify the constitutional basis of all such claims that it
is denying, if any.




petition for improper venue—could not logically have been adopted by the
California Supreme Court when it denied Hinojosa’s habeas petition
without comment or citation. See id. at 1606 (“Improper venue could not
possibly have been a ground for the high court’s summary denial of
Hinojosa’s claim. There is only one Supreme Court of California—and
thus only one venue . . . .”). Although Hinojosa also concerned the
interpretation of a summary decision by the California Supreme Court,
neither its reasoning nor its result alters the outcome of this case.
16                    CURIEL V. MILLER

    I write separately, however, to urge the California
Supreme Court to take a slightly different approach to
questions of federal constitutional law in view of recent
decisions of the United States Supreme Court that have
placed an almost impossible burden on state courts: to be the
final decision-maker in an overwhelming number of cases
involving fundamental constitutional rights of criminal
defendants. Although recognizing that the California
Supreme Court “disposes of close to 10,000 cases a year,
including more than 3,400 original habeas corpus petitions,”
Harrington v. Richter, 562 U.S. 86, 99 (2011), the United
States Supreme Court has virtually eliminated the ability of
federal courts to enforce the Constitution when reviewing
state court convictions, holding instead that under AEDPA
federal courts must defer to state court decisions regarding
questions of federal constitutional law, even though the state
courts often have neither the time nor the resources to fully
and carefully consider those questions or even to explain their
rulings.

    Hamstrung as the federal courts now are as a result of
these post-AEDPA decisions, state supreme courts have
become, at least for the time being, the last safeguard of the
United States Constitution in the vast majority of criminal
cases, and the last guardian against constitutional violations
resulting from deliberate actions of state and local law
enforcement and other officials. The failure or inability of
state supreme courts to carefully scrutinize lower state court
decisions involving claims of federal constitutional error will,
in the absence of some modification to the present process,
leave without a remedy numerous individuals who have been
deprived of their fundamental rights. It is an unfortunate and
overwhelming burden that the Supreme Court has, perhaps
unwittingly, placed upon state courts, but I would hope that
                      CURIEL V. MILLER                       17

those courts, especially California’s, will find a way to help
ensure that our Constitution will nevertheless be enforced and
that justice will be achieved in all cases.

                             ***

    It is no secret that the United States Supreme Court has
severely limited the ability of federal courts to grant habeas
relief ever since the passage in 1996 of the Antiterrorism and
Effective Death Penalty Act (“AEDPA”). It has done so by
interpreting that statute in exceedingly narrow, and in my
view, exceedingly unfortunate, ways. AEDPA, which was
adopted at the urging of President Bill Clinton in the
immediate wake of the Oklahoma City bombing—
purportedly as a means of combatting domestic terrorism, but
coincidentally during a presidential election year—prohibits
federal courts from granting habeas relief on issues that state
courts have addressed, unless the state court decision “was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States.” 28 U.S.C. § 2254(d).
Although AEDPA itself limits federal review of state
convictions, the Supreme Court’s increasingly restrictive
interpretation of that provision has gone well beyond the face
of the statute to virtually eliminate meaningful federal review.

    The Supreme Court’s restrictions on the ability of federal
courts to protect the constitutional rights of criminal
defendants in state proceedings began in 2000 with its
decision in Williams v. Taylor. 529 U.S. 362. There, the
Court explained that federal courts cannot grant habeas relief
even if a constitutional violation is clear under established
circuit court law unless the constitutional question at issue
has been decided by a holding of the Supreme Court. See id.
18                    CURIEL V. MILLER

at 403–06, 412. Not only must the Supreme Court have
previously decided the constitutional question at issue, but the
“precise contours” of the rule must have been established by
the Supreme Court. See Lockyer v. Andrade, 538 U.S. 63,
75–76 (2003). Further, slight factual differences between
cases have been enough for the Court to determine that no
“clearly established” law existed on a particular question. See
Carey v. Musladin, 549 U.S. 70, 75–77 (2006); see also
White v. Woodall, 134 S. Ct. 1697, 1706–07 (2014); Knowles
v. Mirzayance, 556 U.S. 111, 121 (2009). The Supreme
Court, of course, hears only about 80 cases per year, most of
which are not criminal cases, and it therefore addresses
applications of constitutional law in that area far less
frequently than circuit courts. Moreover, it generally does
not consider cases when the circuit courts are in agreement
and no conflict exists. Thus, in those instances in which
developments in the law are generally agreed upon, there is
likely to be no clearly established Supreme Court law at all,
simply because the law is so clear as not to require
intervention by the Court. For these reasons and others,
although a constitutional violation may be clear, federal
courts will often be unable to grant habeas relief as there is no
“clearly established” Supreme Court law governing the
question—certainly a counter-intuitive, if not a counter-
productive, result.

    In addition to the restrictive “clearly established”
Supreme Court law doctrine, Williams began a march by the
Supreme Court toward a narrow and regressive definition of
the phrase “unreasonable application.” In that case, the Court
held that federal courts may not grant relief even though the
state courts erroneously applied clearly established Supreme
Court law. Rather, it said, any erroneous application of the
Constitution must also be objectively unreasonable. See
                          CURIEL V. MILLER                             19

Williams, 529 U.S. at 410–13. To many judges’ great
surprise, the Court then determined that this standard was not
met even if federal courts had a definite and firm conviction
that the state court had erroneously applied clearly
established Supreme Court law. See Andrade, 538 U.S. at 75.
Subsequently, the Court held that a decision could be
objectively unreasonable only “in cases where there is no
possibility fairminded jurists could disagree that the state
court’s decisions conflicts with [the Supreme Court’s]
precedents.” Richter, 562 U.S. at 102–03 (emphasis added).1

     Next, the Supreme Court held that if the state court’s
rejection of the petitioner’s claim is “unaccompanied by an
explanation,” federal courts must attempt to conjure up a
plausible, though not necessarily correct, hypothetical basis
for the state court’s decision, and, if they can, that will
suffice. See id. at 98–99; Johnson v. Williams, 133 S. Ct.
1088 (2013). Thus, even if every imagined basis that the
federal court can think of is clearly incorrect, the court may
still not grant relief so long as any of the reasons, while
wrong, could be deemed “reasonable.” In short, even though
an individual has erroneously been deprived of his
constitutional rights, he must remain in prison, perhaps for
life, or even possibly suffer capital punishment, if there is no


 1
   This last holding is indeed puzzling. The Supreme Court provided no
guidance with respect to how one might determine whether a jurist is, in
fact, “fairminded.” Indeed, as Justice O’Connor noted in Williams,
defining “unreasonable application” by reference to reasonable jurists is
not only “of little assistance to the courts that must apply” AEDPA, but is
also “misleading.” See Williams, 529 U.S. at 409–10. That is because in
every habeas case at least several of the nation’s presumably fairminded
jurists have made the decision not to grant relief, and therefore, every
issue has already been subject to at least some disagreement among
fairminded jurists.
20                      CURIEL V. MILLER

pre-existing Supreme Court case that has recognized the
specific error involved or if the state court’s ruling, although
erroneous, could have been arrived at by a “fairminded
jurist,” however that term may be defined. See supra n. 1.

     This is only a small sample of the Supreme Court’s
restrictive habeas jurisprudence, and its drive toward
eliminating federal review does not appear to have yet
reached its limit. In Cullen v. Pinholster, the Supreme Court
held that federal courts must not only defer to all
“reasonable” though erroneous state court decisions, but that
in determining whether a decision was reasonable, federal
courts must ignore all evidence that had not been presented
initially to the state court. 563 U.S. 170, 181–85 (2011).
This decision was not only based on an unprecedented
interpretation of AEDPA, but it constrains federal courts’
ability to correct egregious constitutional violations when
state courts, as in Pinholster, refuse to hold evidentiary
hearings on federal constitutional issues or when petitioners
previously had incompetent representation which failed to
properly develop the record before the state courts.2

    Just last year, the Supreme Court reversed this court for
granting habeas relief in a case in which there had been an
egregious constitutional violation relating to the exclusion by
the prosecution of all minority members from a jury that
sentenced a young Hispanic man to death. Davis v. Ayala,


  2
    One narrow exception to this constraint exists. Federal courts may
consider new evidence in order to determine whether a petitioner can
establish cause and prejudice to excuse the procedural default of an
ineffective assistance of trial counsel claim under Martinez v. Ryan,
132 S. Ct. 1309 (2012). See Dickens v. Ryan, 740 F.3d 1302, 1319–21
(9th Cir. 2014).
                          CURIEL V. MILLER                              21

135 S. Ct. 2187 (2015). The defendant in that case
challenged this systematic exclusion of minority jurors, but
neither he nor his counsel was allowed to be present when the
prosecution provided purportedly race-neutral reasons for its
actions to the judge. Despite the blatant deprivation of due
process, a bare majority of the United States Supreme Court
held that under AEDPA no relief could be granted by a
federal court because “a fairminded jurist could agree” with
the state court’s determination that the error was harmless.
See Ayala, 135 S. Ct. at 2198–99, 2203. Again, of course,
that appears to mean that even if the state court ruling was in
actuality contrary to the dictates of the Constitution, as surely
it was,3 federal courts are powerless to enforce defendants’
fundamental rights if some, even a small minority of,
“fairminded jurists” might disagree.

    Ayala is illustrative of the frustrations many federal jurists
have with the current habeas system. As the Supreme Court
has repeatedly recognized, state appellate courts face heavy
caseloads that often prevent them from fully analyzing


  3
     As Justice Sotomayor eloquently explained in her dissent, “secret
decisions based on only one side of the story will prove inaccurate more
often than those made after hearing from both sides.” Ayala, 135 S. Ct.
at 2212 (Sotomayor, J. dissenting) (internal quotations omitted). “Absent
an adversarial presentation, a diligent judge may overlook relevant facts
or legal arguments in even a straightforward case,” let alone a capital case
like Ayala’s “where jury selection spanned more than three months,
involved more than 200 prospective jurors, and generated a record that is
massive by any standard.” Id. at 2212–13. By prohibiting Ayala’s
lawyers from arguing at the hearing, the trial court prevented them from
challenging the credibility of the prosecution’s purportedly race-neutral
reasons for striking minority jurors, which raised grave doubt “as to
whether the outcome of these proceedings—or the appellate courts’
review of them—would have been the same had counsel been present.”
Id. at 2213.
22                   CURIEL V. MILLER

defendants’ claims of federal constitutional violations or even
from explaining their reasons for denying them. See
Williams, 133 S. Ct. 1095–96; Richter, 562 U.S. at 99.
Strangely, the Court has even gone so far as to justify
deference to inadequate state courts’ decisions on the ground
that those courts do not have the time to write considered
opinions. See, e.g., Williams, 133 S. Ct. at 1095–96.
Recently, the Court has told us that federal courts may
ordinarily grant habeas relief only when confronted with
flagrant and “extreme malfunctions” of the state court system.
See Richter, 562 US. at 102–03. As a result, there is now a
large body of constitutional violations that federal courts
must overlook and are without authority to remedy, even in
cases in which the state courts are unequipped to properly do
their job.

                            ***

    Clearly, the state courts are not to blame for this unhappy
state of constitutional affairs. One can only sympathize, for
example, with the plight of the California Supreme Court
with its massive potential caseload and severely strained
resources. Nevertheless, perhaps what was not so long ago
the most innovative court in the nation will once again be
able to provide national leadership when it considers the
problem of the untold numbers of habeas petitions raising
substantial claims of federal constitutional violations and the
current unavailability of the federal courts to help review
these claims. Without a new approach, even clearly
erroneous constitutional decisions of state courts will remain
uncorrected and leave defendants without the check on
constitutional error that until recently the federal courts
provided.
                      CURIEL V. MILLER                       23

    The Supreme Court’s extreme deference to state court
decisions in AEDPA cases is due primarily to its concern
about comity and federalism. The states may, however, be
able to accommodate that concern by making some
adjustments to their decision-making process. Perhaps the
Court’s recent decisions limiting federal habeas review will
inspire the California Supreme Court to develop creative
methods of alleviating additional miscarriages of justice.
After all, the states are the laboratories of experimentation,
even in today’s judicial systems. One approach to attempting
to ensure the needed added protection of constitutional rights
might be for the California Supreme Court to experiment with
certifying individual dispositions which it believes should not
be afforded the extraordinary deference provided by AEDPA
because it or the state court of appeal was compelled to reject
the constitutional challenge without conducting a full analysis
or preparing a thorough written opinion. Similarly, the state
courts of appeal could certify some of their decisions for non-
AEDPA review for whatever reasons they deem appropriate.
Additionally, the California Supreme Court could certify
particular categories of cases which it believes would benefit
substantially from such federal review, for example, death
penalty cases, cases involving sentences of life without
parole, certain types of cases involving youthful offenders, or
even cases in which the last reasoned decision was made by
a superior court. Certainly such a system would be preferable
to limiting federal courts to correcting “extreme
malfunctions” in the state court system and ignoring all
violations of the rights of individuals that are non-systemic or
24                        CURIEL V. MILLER

about which there is no possibility that a reasonable judge
could disagree.4

    I cannot predict whether the United States Supreme Court
would accept a system of certification by state courts and
thereby permit full and fair federal review of cases that in the
judgment of the state courts warrant such treatment. I would
hope, however, that such certifications would be recognized
if only out of respect for the concerns of the affected states.
Doing so would certainly be consistent with the Court’s
interest in comity and federalism and would encourage the
state and federal systems to work together once again to
enforce the Constitution in a just and orderly manner, an
objective surely to be desired by all.

    In sum, as of now, the role of the federal courts in habeas
cases has been eviscerated and federal judges have been
compelled to say (perhaps in contravention of their oath of
office):    “I know this result is unfair, unjust, and
unconstitutional, but I have been told that I must nevertheless
defer to the view of the state courts—courts that may have
had neither the time nor resources to fully review the
constitutional errors involved.” One can hope, however, that
the overwhelmed state courts, recognizing these facts, will
find ways to make certain that individuals who may not have
received fair trials or just sentences in the state court system
are treated as the Constitution envisions—that they are
afforded a full and fair review of their constitutional claims
by courts fully staffed and with the resources necessary to
protect their constitutional rights.


 4
   As any student of the law is aware, dissent is a fundamental part of the
legal system, and “fairminded debate” is present in nearly every, if not
every, case.
                        CURIEL V. MILLER                             25

BYBEE, Circuit Judge, concurring:

    I was a member of the three-judge panel that was first
assigned this case. There, I joined the panel’s decision that
reached a different result from the one we reach as an en banc
court today. See Curiel v. Miller, 780 F.3d 1201, vacated
798 F.3d 1209 (9th Cir. 2015). Upon further reflection, I now
find our decision here to be more consistent with Supreme
Court precedent, with how our court has previously analyzed
summary denials of habeas petitions by California state
courts, and with the interpretive signals that the California
Supreme Court has flashed in the past. Accordingly, I concur
in Judge Murguia’s opinion for the court in full.

                                   I

    I write separately to express my frustration that
communication between the California Supreme Court and
our court over the proper interpretation of California state
habeas decisions has devolved into a series of hints that the
California Supreme Court obliquely telegraphs and that we
struggle to decipher. Unfortunately, I am not voicing an
original or unique complaint—our court has been making its
concerns with California’s habeas practice known for the
better part of half a century. See Castro v. Klinger, 373 F.2d
847, 850 (9th Cir. 1967) (“From our standpoint, the failure of
the California court to reveal the basis of its denial, whether
substantive or procedural, is unfortunate.”).1


  1
   I recognize that I am writing against a long history of conversations
between our court and the California Supreme Court over precisely these
kinds of concerns. Perhaps changes in the composition of that court will
give it the opportunity to rethink how it disposes of its summary habeas
docket.
26                       CURIEL V. MILLER

    However hamstrung by our own ignorance we may be,
today we take our best shot at divining the meaning of the
California Supreme Court’s actions when it denies a state
habeas petition with a few bare case citations. References to
Swain and Duvall—we’re pretty sure2—mean that the
California Supreme Court denied Curiel’s habeas petition for
failure to plead his claims with sufficient particularity. See
Maj. Op. at 9–10. And, drafting off the United States
Supreme Court’s decision in Walker v. Martin, 562 U.S. 307,
310 (2011), we also seem pretty sure that when the California
Supreme Court uses citations to Clark and Robbins it means
that the court is denying a state habeas petition as untimely.3
See Maj. Op. at 8.


     2
   We’ve been puzzling over these same two citations for more than a
decade. See Seeboth v. Allenby, 789 F.3d 1099, 1104 n.3 (9th Cir. 2015);
Cross v. Sisto, 676 F.3d 1172, 1176–78 (9th Cir. 2012); Gaston v. Palmer,
417 F.3d 1030, 1038–39 (9th Cir. 2005), reh’g granted, opinion modified
on other grounds, 447 F.3d 1165 (9th Cir. 2006).
 3
   Unfortunately, even this conclusion might be shaky. In an amicus brief
submitted to the Supreme Court in Walker v. Martin, the Habeas Corpus
Resource Center performed a case study of the 157 habeas petitions
denied by the California Supreme Court on September 11, 2002. See Br.
for Habeas Corpus Resource Center as Amicus Curiae in Support of
Respondent at 18, Walker v. Martin, 562 U.S. 307 (2011) (No. 09-996).
Of the sixty-two petitions apparently denied due to a procedural bar,
thirty-two of them were denied with citations to Clark, Robbins, or Clark
and Robbins. Id. at 20–21. Although the amicus “assume[d]” that
citations to Robbins alone applied the same timeliness bar that dual
citations to Clark and Robbins applied, it could not explain why the
California Supreme Court would sometimes choose to use one citation and
sometimes choose to use both citations. Id. To make matters more
complicated, amicus pointed out that a single “Clark citation likely
signified an invocation of the bar against successive petitions,” but
because Clark sometimes stands for a timeliness bar, it was impossible to
know—without “guidance” from the California Supreme Court—which
bar the court was actually applying. Id. at 21.
                     CURIEL V. MILLER                      27

    So far, so good. But what if the California Supreme
Court denies a petition with a reference to In re Gallego,
959 P.2d 290 (Cal. 1998)—doesn’t that mean a petition is
denied as untimely too? See Walker, 562 U.S. at 312. And
what if the California Supreme Court pairs a citation to Swain
with one to In re Dixon, 264 P.2d 513 (Cal. 1953); do they
morph into a pair of “procedural bars”? See Washington v.
Cambra, 208 F.3d 832, 833–34 (9th Cir. 2000). And if a
single citation to Duvall means that the habeas claim was
adequately developed but lacks merit, see Seeboth, 789 F.3d
at 1103, how can it be that slapping on a Swain citation
without any further explanation means that the claim was not
properly presented and can be re-filed, see id. at 1104 n.3?

    In the face of this complicated tangle of bare citations
without any accompanying explanation, what is a
conscientious federal court—especially one disposed both by
nature and statutory command to defer to state courts on
matters of state law—to do? Unfortunately, unless we
discover a Rosetta Stone in the San Francisco Bay that helps
us crack the California Supreme Court’s habeas code, I worry
that cases like this one will reoccur with some frequency and
that federal courts will be forced to trot out their best Alan
Turing impressions on a regular basis.

    The best we can do—and what the court does today—is
give our best guess as to what the California Supreme Court
means and proceed on that assumption, understanding that
“California, of course, remains free to tell us if, in this
respect, we were wrong.” Evans v. Chavis, 546 U.S. 189, 200
(2006). But it doesn’t have to be that way—and the
California Supreme Court can make sure of it. The addition
of a handful of words to its summary denials could go a long
way to clearing up our court’s confusion. For example, why
28                        CURIEL V. MILLER

not slip in “as untimely filed” between “Petition denied” and
citations to Clark and Robbins? Such a move would make it
quite difficult for a federal court to overlook California’s
determination that the habeas petition was denied on
timeliness grounds. Or how about adding “for failure to state
a claim with particularity” between “Petition denied” and
citations to Swain and Duvall? It would be tough to confuse
that order with one denying the petition as untimely or
successive. Small changes like these would save the federal
courts the time and resources we expend playing detective,
and would make it far more likely that, when a federal court
reviews the reasoning of the state court, it properly ascertains
the basis of the earlier decision.4

                                     II

    My complaints about the burden that the California
Supreme Court’s unnecessarily opaque habeas system have
focused, selfishly, on the substantial costs it imposes on the
resources of this court. I have now sat on this case twice,


     4
        Alternatively, the California Supreme Court might consider
promulgating some sort of decisional key that lays out the meaning of
various combinations of citations, and I note that the court has set out
something similar in at least one past decision (though at a higher level of
abstraction and nearly twenty years ago). See In re Robbins, 959 P.2d
311, 340 n.34 (Cal. 1998). Advocating for a different tack, one
commentator has suggested that California courts could use a
“standardized form whenever they summarily deny habeas petitions” on
which judges would “check the boxes next to the applicable reasons” for
the denial like “‘untimely’ or ‘procedurally defaulted.’” Theresa Hsu
Schriever, Comment, In Our Own Backyard: Why California Should Care
About Habeas Corpus, 45 McGeorge L. Rev. 763, 796 (2014). Such a
system, the commentator posits, would “requir[e] scant additional time or
effort on the part of the judges, yet [would] still provid[e] some insight
into why the petition was denied.” Id.
                         CURIEL V. MILLER                            29

joined two published decisions, and changed my mind once.
I have been perturbed and confounded by this case; but this
is, after all, my job. I know that many of my colleagues are
similarly frustrated in their efforts to decipher California’s
code. On reflection, however, I have a much deeper concern
that the costs visited on this court pale in comparison to the
costs that the California Supreme Court’s imprecision
imposes on its own citizens and state government, because
they have no more clue what the California Supreme Court
means than we do.

    Take, for example, Curiel. Acting pro se, Curiel did not
pick up on the court’s suggestion that his state habeas claims
were pleaded with insufficient particularity, because rather
than beefing up his petition and re-filing it in state
court—which Swain counsels he might have been able to do,
see In re Swain, 209 P.2d 793, 796 (Cal. 1949)—he headed
straight to federal court. Because it has taken this case six
years to wind through the federal courts, it is now probably
too late for Curiel to re-raise his state claims even if he
wanted to do so.5 Curiel may have had state habeas remedies,
but due to the inscrutability of the California Supreme
Court’s order denying his habeas petition, he may not have


  5
    But then again, maybe Curiel’s state habeas petition would be timely
because who knows what California’s “within a ‘reasonable time’”
standard for timely filing means? Evans, 546 U.S. at 192 (quoting In re
Harris, 855 P.2d 391, 398 n.7 (Cal. 1993)). We sure don’t. See Robinson
v. Lewis, 795 F.3d 926 (9th Cir. 2015) (certifying a question to the
California Supreme Court in seek of guidance as to the scope of
California’s timeliness bar); Chaffer v. Prosper, 542 F.3d 662 (9th Cir.
2008) (same). In any case, the state at oral argument represented that it
would challenge the timeliness of any new state habeas petitions Curiel
sought to file. See Oral Argument at 35:25, Curiel v. Miller, No. 11-
56949 (Mar. 23, 2016).
30                    CURIEL V. MILLER

known that those remedies existed or that he was being
invited to take advantage of them. By his inaction following
his confusion, Curiel has likely forfeited his habeas rights
under the California Constitution. See Calif. Const. art. VI,
§ 10; see also In re Harris, 855 P.2d at 398 n.7 (explaining
that under the “general rule regarding timeliness,” a habeas
petition “must be filed within a reasonable time after the
petitioner or counsel knew, or with due diligence should have
known, the facts underlying the claim as well as the legal
basis of the claim”).

    For its part, the California Attorney General’s Office
appears similarly befuddled. The state argued that the
“California Supreme Court’s citation to Swain was an explicit
finding that the petition was . . . untimely,” and that the Court
had “unequivocally found Curiel’s petition delayed.”
Appellee’s Br. 22, 26 (emphasis added). For the reasons
explained in our opinion today, it seems that the “explicit”
was, in fact, unclear and the “unequivocal,” well, equivocal.
During oral argument, the following exchange occurred
between the panel and the advocate for the state:

        Judge Hurwitz: But your answer to my
        question is yes, that the California Supreme
        Court has two different ways of telling us that
        a petition is untimely. One is by citing
        Robbins, correct?

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

        Judge Hurwitz: Three different ways to tell
        us that it’s untimely?
                      CURIEL V. MILLER                       31

       State’s Attorney: Yes.

       Judge Friedland: Why would they choose
       one versus another?

       State’s Attorney: That might be a good
       reason for certification [to the California
       Supreme Court] because I’m not exactly sure.

Oral Argument at 21:46. And then counsel went further,
pointing out that “there is a fundamental difficulty with
habeas in California and that is it doesn’t result in reasoned
decisions so it doesn’t accrete like the common law does to
solve problems.” Id. at 34:32. In the span of just a few
minutes, counsel for the State of California, representing the
very office charged with ensuring that the legal dictates of the
California Supreme Court are fairly enforced, highlighted
both the procedural and substantive shortcomings of that
court’s current approach.

                              III

    We are well aware of the “staggering number of habeas
petitions” the California Supreme Court must address each
year. Martin, 562 U.S. at 312–13. I am not suggesting that
the Court assume any kind of “burdensome opinion-writing
requirement.” Johnson v. Lee, 136 S. Ct. 1802, 1807 (2016)
(per curiam). I am suggesting, respectfully, a bit more
elucidation from the California Supreme Court would better
preserve the comity enjoyed between our two courts and
would help prevent the sort of “needless friction between
state and federal courts” that Congress and the Supreme
Court have sought to avoid “dating almost from the beginning
of our history.” Okla. Packing Co. v. Okla. Gas & Elec. Co.,
32                        CURIEL V. MILLER

309 U.S. 4, 8–9 (1940). I take very little pleasure in mucking
around in questions of state law, and I take even less pleasure
in answering questions of state law incorrectly. Should the
California Supreme Court give us some guidance, it can
better ensure that when our court is confronted with a matter
of California procedural law—as we are hundreds of times a
year when California’s prisoners file federal habeas petitions
in the federal courts6—we give proper effect to the state
court’s decisions. Such an effort by the California courts to
stake out its territory would dovetail nicely with the federal
courts’ long tradition of doing our best to stay out of the state
courts’ business whenever possible, see, e.g., Younger v.
Harris, 401 U.S. 37, 40–41 (1971) (federal courts should
abstain from enjoining pending state criminal prosecutions);
R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 501
(1941) (federal courts should abstain from ruling on
constitutional questions until questions of state law are
resolved in state courts),7 and our statutory obligation in
habeas to stay out of the state courts’ business except under
the most demanding of standards, see, e.g., 28 U.S.C.
§ 2254(d) (mandating that a federal court may grant a writ of
habeas corpus only when the “judgment of a State court . . .
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law”



 6
   From 2011 to 2015, nearly one thousand habeas appeals from the four
federal districts in California were fully briefed before this court (986 to
be exact). That number does not include the multitude of petitions filed
in our court that we dismiss without full briefing due to jurisdictional
defects or because they are successive.
     7
    See Orange Cty. Dep’t of Educ. v. Calif. Dep’t of Educ., 668 F.3d
1052, 1066–67 (9th Cir. 2011) (Bybee, J., concurring in part and
dissenting in part) (citing these and other examples).
                    CURIEL V. MILLER                     33

or “resulted in a decision that was based on an unreasonable
determination of facts”).

   In Younger, the Court famously wrote that “Our
Federalism” represents

       a system in which there is sensitivity to the
       legitimate interests of both State and National
       Governments, and in which the National
       Government, anxious though it may be to
       vindicate and protect federal rights and
       federal interests, always endeavors to do so in
       ways that will not unduly interfere with the
       legitimate activities of the States.

401 U.S. at 44. Until we can tell what the California
Supreme Court has decided, we won’t know how to afford
California the deference to which it is entitled.
