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.
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,
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 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,
Curiel timely appealed, and we issued a certificate of appealability as to the timeliness of Curiel's federal petition for habeas corpus.
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).
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 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.
"[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, 125 S.Ct. 1807, 161 L.Ed.2d 669 (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, 126 S.Ct. 846, 163 L.Ed.2d 684 (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, 122 S.Ct. 2134, 153 L.Ed.2d 260 (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).
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, 131 S.Ct. 1120, 179 L.Ed.2d 62 (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 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:
In re Robbins, 18 Cal.4th 770, 77 Cal.Rptr.2d 153, 959 P.2d 311, 340 n. 34 (1998).
"California courts signal that a habeas petition is denied as untimely by citing the
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."
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, 111 S.Ct. 2590).
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, 111 S.Ct. 2590. 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 determination on the same issue by a lower-level court.
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, 111 S.Ct. 2590 (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, 131 S.Ct. 770, 178 L.Ed.2d 624 (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, 131 S.Ct. 1120 ("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, 126 S.Ct. 846 (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 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
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, 131 S.Ct. 1120. 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, 122 S.Ct. 2134. Under the 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, 126 S.Ct. 846. 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, 131 S.Ct. 1120. 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, 122 S.Ct. 2134 (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.
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.
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.
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.
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, 131 S.Ct. 770, 178 L.Ed.2d 624 (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
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, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). 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. at 403-06, 412, 120 S.Ct. 1495. 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, 123 S.Ct. 1166, 155 L.Ed.2d 144 (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, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006); see also White v. Woodall, ___ U.S. ___, 134 S.Ct. 1697, 1706-07, 188 L.Ed.2d 698 (2014); Knowles v. Mirzayance, 556 U.S. 111, 121, 129 S.Ct. 1411, 173 L.Ed.2d 251 (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 counterproductive, result.
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, 131 S.Ct. 770; Johnson v. Williams, ___ U.S. ___, 133 S.Ct. 1088, 185 L.Ed.2d 105 (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 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, 131 S.Ct. 1388, 179 L.Ed.2d 557 (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.
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 defendants' claims of federal constitutional violations or even from explaining their reasons for denying them. See Williams, 133 S.Ct. at 1095-96; Richter, 562 U.S. at 99, 131 S.Ct. 770. 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 U.S. at 102-03, 131 S.Ct. 770. 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
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 about which there is no possibility that a reasonable judge could disagree.
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
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 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.").
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 sure
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, 126 S.Ct. 846, 163 L.Ed.2d 684 (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 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.
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, 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, 34 Cal.2d 300, 209 P.2d 793, 796 (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.
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:
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.
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, 131 S.Ct. 1120. I am not suggesting that the Court assume any kind of "burdensome opinion-writing requirement." Johnson v. Lee, ___ U.S. ___, 136 S.Ct. 1802, 1807, 195 L.Ed.2d 92 (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., 309 U.S. 4, 8-9, 60 S.Ct. 215 (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 courts
401 U.S. at 44, 91 S.Ct. 746. 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.
