FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEMERE GUILLORY, No. 19-55290
Petitioner-Appellant,
D.C. No.
v. 3:17-cv-02084-
CAB-BGS
TRENT ALLEN, Acting Warden,
Respondent-Appellee. OPINION
Appeal from the United States District Court
for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding
Argued and Submitted September 13, 2021
Pasadena, California
Filed July 1, 2022
Before: Ronald M. Gould, Marsha S. Berzon, and
Daniel P. Collins, Circuit Judges.
Opinion by Judge Collins
2 GUILLORY V. ALLEN
SUMMARY *
Habeas Corpus
The panel vacated the district court’s judgment denying
a habeas corpus petition brought pursuant to 28 U.S.C.
§ 2254 by Jemere Guillory, who was convicted in California
state court of multiple offenses arising from an investigation
into a shooting in San Diego; and remanded for further
proceedings.
In Guillory’s direct appeal from his conviction, the state
appellate court rejected his argument that his Sixth
Amendment right to a public trial had been violated by the
alleged exclusion of his family members from the courtroom
during jury selection. In subsequent state habeas
proceedings, Guillory sought to re-raise this claim, but with
new evidence consisting of declarations from two family
members who had been excluded from the courtroom, as
well as his own declaration. The state court of appeal denied
his petition on the state law grounds that it was untimely and
that his public trial claim had previously been raised and
rejected on the merits.
The district court denied the federal habeas petition on
the ground that Guillory’s procedural default in his state
habeas petition barred any federal review of his Sixth
Amendment public trial claim.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
GUILLORY V. ALLEN 3
The panel concluded that the district court erred by
overlooking the critical distinction between the two versions
of Guillory’s public trial claim.
The panel held that the procedural default doctrine does
not apply to the version that was presented on direct appeal,
because the court of appeal rejected that federal claim on the
merits and the state courts’ rejection of it thus does not rest
on an independent and adequate state law ground. The panel
explained that the Supreme Court’s decision in Ylst v.
Nunnemaker, 501 U.S. 797 (1991), confirms that the
California court of appeal’s subsequent invocation of state
procedural grounds in denying Guillory’s state habeas
petition does not affect this analysis.
The panel held that the augmented version of the public
trial claim that Guillory presented in his state habeas petition
is procedurally defaulted. The panel wrote that, as the state
court’s order explicitly held, the augmented claim was
untimely because the declarations in question could have and
should have been obtained sooner—a ruling that establishes,
without ambiguity or internal contradiction, that Guillory’s
reliance on those additional materials was rejected by the
state court on procedural grounds that are adequate and
independent. Concluding that Guillory failed to establish
sufficient cause to overcome the default under this court’s
caselaw, the panel wrote that the challenges Guillory
identifies in proceeding pro se in filing his state habeas
petition are the sort of difficulties routinely experienced by
pro se petitioners.
The panel remanded for the district court to consider
whether the court of appeal’s rejection on direct appeal of
the properly exhausted claim provides any basis for federal
4 GUILLORY V. ALLEN
habeas relief under § 2254, as amended by the Antiterrorism
and Effective Death Penalty Act.
COUNSEL
Tony Faryar Farmani (argued), Farmani APLC, Rancho
Santa Fe, California, for Petitioner-Appellant.
Christopher P. Beesley (argued), Deputy Attorney General;
Daniel Rogers, Supervising Assistant Attorney General;
Julie L. Garland, Senior Assistant Attorney General; Rob
Bonta, Attorney General; Office of the Attorney General,
San Diego, California; for Respondent-Appellee.
OPINION
COLLINS, Circuit Judge:
After a jury trial in California state court, Petitioner
Jemere Guillory was convicted of multiple offenses arising
from an investigation into a shooting in San Diego. In
Guillory’s direct appeal from his conviction, the state
appellate court rejected his argument that his Sixth
Amendment right to a public trial had been violated by the
alleged exclusion of his family members from the courtroom
during jury selection. In subsequent state habeas
proceedings, Guillory sought to re-raise this claim, but this
time with new evidence consisting of declarations from two
family members who had been excluded from the
courtroom, as well as his own declaration. The state court
of appeal denied his petition on the state law grounds that it
was untimely and that his public trial claim had previously
been raised and rejected on the merits. Guillory then sought
GUILLORY V. ALLEN 5
federal habeas relief under 28 U.S.C. § 2254, but the district
court denied the petition. According to the district court,
Guillory’s procedural default in his state habeas petition
barred any federal review of his Sixth Amendment public
trial claim. We agree that the augmented version of
Guillory’s public trial claim presented in his state habeas
petition is procedurally defaulted, but the same cannot be
said of the properly exhausted public trial claim that Guillory
presented on his direct appeal in state court. We therefore
vacate the district court’s order and remand for further
proceedings.
I
A
In May 2012, Guillory allegedly shot a man near a
market in San Diego after the man inappropriately touched
Guillory’s girlfriend. Guillory was subsequently arrested,
and police searched the home at which he was staying
pursuant to a warrant. They found, among other things,
several firearms and ammunition, nearly four pounds of
cocaine base, and approximately $28,500 in cash. Guillory
was charged with a variety of offenses related to the shooting
and to his drug and weapons possession.
Guillory’s trial commenced in California superior court
on January 27, 2014. Before jury selection began, defense
counsel raised his concern about whether Guillory’s family
members would be permitted in the courtroom:
[Defense Counsel]: Your Honor, just so you
know, too, your bailiff has been so—so kind
to allow family members of my client to
come in previously. I’m going to hope that
there will be no future issue at all.
6 GUILLORY V. ALLEN
The Court: Well, I, ah—first of all, during
the jury selection, we’re just not going to
have room for them because the court is
going to be full of prospective jurors. But
once—certainly once we get the jury
selected, they’ll be free to be here. As long
as—I think the bailiff did have a little—had
to talk a little bit with one of the family
members the other day. But I think hopefully
that was effective and that won’t be—won’t
be a problem.
But, no, same rule. As long as they follow
the rules and don’t cause any problem,
they’re welcome to be here. I say, not during
the jury selection because we just don’t have
room for them.
After this exchange, jury selection began and continued for
the remainder of the day without apparent incident.
Jury selection resumed the following day. Although the
voir dire was not transcribed, the clerk’s minutes of the trial
reflect that, shortly after 11:00 AM, “the bailiff inform[ed]
the Court and counsel of the disruption in the audience.” The
record, however, does not disclose the nature of the incident.
The trial transcript shows that, about 30 minutes after the
bailiff’s comment, the court made the following remarks to
the prospective jurors then in the courtroom:
There are some folks here who have an
interest in the case. And they have a right to
be here in or about the courtroom. But I think
you recognize who they are. And don’t have
any contact with them. Don’t let them have
GUILLORY V. ALLEN 7
any contact with you. I’m not suggesting
they [don’t] have a right to be here and they
haven’t done anything improper. But just to
maintain some distance from them so you
don’t inadvertently overhear what they might
be discussing which may have something to
do with the case or Mr. Guillory but won’t be
any part of the evidence upon which you have
to base your finding.
Jury selection continued without further disruption, and a
jury was empaneled several hours later.
At the conclusion of the trial, the jury found Guillory
guilty of simple mayhem, assault with a firearm, and
multiple offenses related to firearms and drug trafficking.
The jury also found that various sentencing enhancements
applied. In June 2014, Guillory was sentenced to prison for
25 years to life, plus a term of 29 years and eight months.
On direct appeal to the California court of appeal,
Guillory argued that his Sixth Amendment right to a public
trial had been violated by the trial court’s exclusion of his
family members from the courtroom during jury selection.
In October 2015, the court rejected this claim (among others)
and affirmed Guillory’s conviction. The court cited People
v. Bui, 107 Cal. Rptr. 3d 585, 590–91 (Ct. App. 2010), for
the proposition that a “de minimis” exclusion of persons
during voir dire “did not violate a defendant’s public trial
right.” Examining the limited record on this point in
Guillory’s case, the court concluded that there was a “lack
of any evidence in the record to support [his] contention that
his family members were actually excluded from the
courtroom during voir dire or that their exclusion was not de
minimis.” Accordingly, the court stated that, “on this
8 GUILLORY V. ALLEN
record,” it rejected Guillory’s “contention he was deprived
of the right to a public trial by the alleged exclusion of his
family members from the courtroom.” Given that holding,
the court stated that it did not need to resolve the State’s
“alternate contention” that Guillory assertedly “acquiesced”
in the trial court’s suggestion that his family members should
be excluded in order to make room for prospective jurors.
Guillory petitioned for review in the California Supreme
Court, but that petition was denied in February 2016.
B
Guillory filed a petition for a writ of habeas corpus in the
state superior court exactly one year later. In it, Guillory
again argued that his Sixth Amendment right to a public trial
was violated, and he augmented his claim with three
declarations—one from himself and two from family
members. The declarations stated that Guillory’s friends and
family members were not allowed into the courtroom during
jury selection even though seats were available. Guillory
stated that, after the court of appeal held that there was
insufficient evidence in the record to show that a non-de-
minimis exclusion had occurred, he attempted to obtain
declarations by contacting 12 of the “20 supporters” who had
been excluded. He stated that, given the time constraints for
pursuing collateral relief, he was filing his state habeas
petition after having received only “two of the 12 promised
declarations.” On June 2, 2017, the superior court denied the
petition, but on grounds different from those invoked by the
court of appeal on direct appeal. Relying instead on the
alternative ground that the court of appeal had expressly
declined to consider, the superior court held that “the record
demonstrates [Guillory] acquiesced in the process used by
the court during jury selection” and thereby “waived any
alleged violation of the right to a public trial.” As a result,
GUILLORY V. ALLEN 9
the superior court expressly “decline[d] to conduct further
proceedings in this matter to determine whether [Guillory’s]
family members were actually excluded from the courtroom
during voir dire or whether their exclusion was de minimis.”
Guillory then promptly filed a further habeas petition in
the California court of appeal, again raising his public trial
claim and relying on the same three declarations. 1 The court
of appeal denied that petition in a four-page order on June
29, 2017. That order did not rely on the superior court’s
view that Guillory had acquiesced in the exclusion of his
friends and family, but instead denied the petition on two
state law procedural grounds. First, citing In re Reno,
283 P.3d 1181, 1207–08 (Cal. 2012), superseded by statute
on other grounds as stated in In re Friend, 489 P.3d 309,
314–24 (Cal. 2021), the court held that Guillory had been
insufficiently diligent in pursuing this claim. Specifically,
the court held that Guillory had “not explain[ed] why it took
him so long to obtain declarations from the family members
and friends who were allegedly excluded from the courtroom
during jury selection.” Second, citing In re Waltreus,
397 P.2d 1001, 1005 (Cal. 1965), the court held that
1
As the U.S. Supreme Court has explained:
California’s collateral review regime differs from that
of other States in a . . . notable respect: All California
courts have original jurisdiction in habeas corpus
proceedings, thus no appeal lies from the denial of a
petition for writ of habeas corpus. A prisoner whose
petition has been denied by the superior court can
obtain review of his claims only by the filing of a new
petition in the Court of Appeal. The new petition,
however, must be confined to claims raised in the
initial petition.
Walker v. Martin, 562 U.S. 307, 312 (2011) (simplified).
10 GUILLORY V. ALLEN
Guillory’s petition was “further barred because it asserts a
claim that was raised and rejected on appeal.” The court
acknowledged that California law recognized certain
exceptions to these procedural rules, but it concluded that
Guillory had failed to make the necessary showing. 2
Guillory then filed a further habeas petition in the
California Supreme Court in July 2017, but that court
summarily denied it two months later.
C
In October 2017, Guillory filed a federal habeas petition
in the district court pursuant to 28 U.S.C. § 2254. The
district judge denied the petition, adopting the magistrate
judge’s conclusion that Guillory’s Sixth Amendment public
trial claim was “procedurally barred because the state court
decision on this claim relied on an independent and adequate
state procedural ground and [Guillory] failed to show cause
for the default.” 3 Specifically, the magistrate judge had
concluded that the California court of appeal’s determination
that Guillory had not been diligent in presenting his claim
rested on “California’s timeliness rule,” which was “an
independent and adequate state bar that precludes federal
2
In the course of that discussion, the court addressed whether
Guillory had established that the proceedings were “fundamentally
unfair.” In concluding that he had not, the court suggested that
Guillory’s claim lacked substantive merit: “On this record,” the court
explained, “the temporary exclusion of [Guillory’s] family members and
friends from the trial was de minimis and did not violate his Sixth
Amendment right to a public trial and thereby make the trial
fundamentally unfair.”
3
The district court also rejected two additional claims that Guillory
had raised in his federal petition, but neither of those other claims are at
issue in this appeal.
GUILLORY V. ALLEN 11
habeas relief.” The district court did not rely on the court of
appeal’s invocation of the Waltreus rule, because the State
had not asserted that ground as a procedural bar in its
response to Guillory’s federal habeas petition. The district
court denied a certificate of appealability and entered
judgment dismissing the petition.
Guillory timely appealed to this court. 4 We granted a
certificate of appealability to address “whether the district
court properly determined that [Guillory’s] Sixth
Amendment claim was procedurally defaulted.” We have
jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and
“[w]e review the dismissal of a habeas petition and questions
regarding procedural default de novo.” Sexton v. Cozner,
679 F.3d 1150, 1153 (9th Cir. 2012).
II
As our review of the procedural history of this case
makes clear, Guillory raised his Sixth Amendment public
trial claim in two distinct postures in California state court.
On direct appeal, Guillory presented a version of his claim
that was supported only by the then-existing record of his
jury trial. The California court of appeal rejected this claim
on the merits, and the California Supreme Court denied
review. Thereafter, in his California state habeas petitions,
Guillory presented an augmented version of that claim,
4
The notice of appeal incorrectly identifies the order and judgment
that are being appealed by referencing, and partly attaching to the notice
of appeal, earlier versions of the district court’s order and judgment that
were subsequently vacated and superseded. Because Guillory’s intent to
appeal the court’s final dismissal is clear from the notice of appeal and
the State has not been prejudiced, we construe Guillory’s pro se notice
of appeal as extending to the correct judgment and order. See Le v.
Astrue, 558 F.3d 1019, 1022–24 (9th Cir. 2009).
12 GUILLORY V. ALLEN
supported by new evidence in the form of declarations from
himself and two family members. The California court of
appeal rejected this renewed claim on procedural grounds
(and arguably on the merits, see supra note 2), and the
California Supreme Court summarily denied Guillory’s
petition. We conclude that the district court erred by
overlooking this critical distinction between the two versions
of Guillory’s public trial claim. As we shall explain, only
Guillory’s renewed, augmented version of this claim is
procedurally defaulted, see Dickens v. Ryan, 740 F.3d 1302,
1318–19 (9th Cir. 2014) (en banc), and the district court
therefore erred in failing to address, under the applicable
§ 2254 standards, the merits of the earlier version of
Guillory’s claim that he had presented on direct appeal.
A
Federal habeas review is ordinarily unavailable “if the
decision of the state court rests on a state law ground that is
independent of the federal question and adequate to support
the judgment.” Walker v. Martin, 562 U.S. 307, 315 (2011)
(simplified). Application of a state procedural rule is
considered to be an “independent” ground for rejecting a
federal claim “if it is not interwoven with federal law or
dependent upon a federal constitutional ruling.” Poland v.
Stewart, 169 F.3d 573, 577 (9th Cir. 1999). And such a state
law ground is deemed “adequate” if it is “firmly established
and regularly followed.” Walker, 562 U.S. at 316 (citation
omitted). But where a state court decision rejecting a federal
claim appears to rest “primarily on federal law,” we presume
that “procedural default does not bar consideration of [that]
federal claim” on federal habeas review “unless the last state
court rendering a judgment in the case clearly and expressly
states that its judgment rests on a state procedural bar.”
GUILLORY V. ALLEN 13
Coleman v. Thompson, 501 U.S. 722, 735–36 (1991)
(citations and internal quotation marks omitted). 5
Applying these standards, we conclude that the version
of Guillory’s Sixth Amendment public trial claim that was
presented on direct appeal is not procedurally defaulted. The
California court of appeal rejected that federal claim on the
merits, without invoking any alternative state law ground of
decision. Specifically, the court held that the public trial
claim failed because the record did not show that Guillory’s
family members and friends were actually excluded from the
courtroom or that their exclusion, to the extent it occurred,
was not de minimis. Because the California Supreme Court
denied Guillory’s petition for review without comment, we
assume that its decision “rest[s] upon the same ground.” See
Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). That is,
because the court of appeal’s decision resolved the merits of
a federal claim, we must “presume that no procedural default
has been invoked by a subsequent unexplained order that
leaves the judgment or its consequences in place.” Id. The
State has pointed to nothing that would rebut that
presumption here. Accordingly, the state courts’ rejection of
Guillory’s public trial claim on the merits on direct appeal
does not rest on an independent and adequate state law
ground, and the procedural default doctrine does not apply
to that claim. See Walker, 562 U.S. at 315.
The Supreme Court’s decision in Ylst confirms that the
California court of appeal’s subsequent invocation of state
procedural grounds in denying Guillory’s state habeas
petition does not affect this analysis. In Ylst, Nunnemaker
5
Procedural default may also arise from a failure to exhaust a federal
claim in state court in accordance with the State’s procedural rules. See
Coleman, 501 U.S. at 731–32.
14 GUILLORY V. ALLEN
had raised a Miranda claim both on direct appeal and in a
state habeas petition. 501 U.S. at 799–800. In determining
whether that claim was procedurally defaulted, the Supreme
Court held that it was irrelevant whether the subsequent state
habeas petition had been denied on procedural grounds. Id.
at 805. As the Court explained, Nunnemaker “had exhausted
his Miranda claim by presenting it on direct appeal, and was
not required to go to state habeas at all; state rules against
that superfluous recourse have no bearing upon his ability to
raise the Miranda claim in federal court.” Id. (citation
omitted).
That same conclusion is further confirmed by
considering the two specific state law procedural grounds
that the California court of appeal invoked in denying
Guillory’s state habeas petition. The first ground—that
Guillory had not exercised diligence in obtaining the new
declarations that he sought to present in support of the
augmented Sixth Amendment claim in his state habeas
petition—obviously does not apply to the original version of
Guillory’s public trial claim that he had presented on direct
appeal. See Castille v. Peoples, 489 U.S. 346, 350 (1989)
(“[O]nce the state courts have ruled upon a claim, it is not
necessary for a petitioner ‘to ask the state for collateral relief,
based upon the same evidence and issues already decided by
direct review.’” (citation omitted)). And the second
ground—that California courts will not reconsider, on
collateral review, a claim that was previously rejected on the
merits by the state appellate courts on direct review—is
likewise plainly “irrelevant” to the application of the
procedural default doctrine in federal court. Ylst, 501 U.S.
at 805. “When a state court refuses to readjudicate a claim
on the ground that it has been previously determined, the
court’s decision does not indicate that the claim has been
procedurally defaulted. To the contrary, it provides strong
GUILLORY V. ALLEN 15
evidence that the claim has already been given full
consideration by the state courts and thus is ripe for federal
adjudication.” Cone v. Bell, 556 U.S. 449, 467 (2009).
Accordingly, Guillory’s original Sixth Amendment
public trial claim was fully exhausted on direct appeal
because it was decided solely on the merits by the California
court of appeal and was thereafter raised in a petition for
review to the California Supreme Court. See McQuown v.
McCartney, 795 F.2d 807, 809 (9th Cir. 1986) (“A petitioner
may satisfy the exhaustion requirement . . . by providing the
highest state court with an opportunity to rule on the merits
of his federal claims.”). Therefore, that original claim is not
procedurally defaulted, regardless of whether the
subsequent, augmented version of that claim is defaulted.
See Ylst, 501 U.S. at 805.
B
We next consider whether the procedural default
doctrine bars consideration, on federal habeas, of the
enhanced version of the public trial claim that Guillory
sought to present in his state habeas petition. It does.
1
Although Guillory could have sought federal habeas
relief on his public trial claim immediately after the
California Supreme Court denied his petition for review on
direct appeal, he chose first to try to augment that claim by
filing state court habeas applications that were accompanied
by new evidence. Both the state superior court and the state
court of appeal provided reasoned decisions for denying
those applications, but they each relied on different grounds:
the superior court held that Guillory had “acquiesced” in the
exclusion (which would appear to be a rejection of the claim
16 GUILLORY V. ALLEN
on its merits), while the appellate court explicitly invoked
state procedural grounds. See supra at 8–10. The California
Supreme Court, by contrast, denied relief without comment.
In determining which ruling counts for federal habeas
purposes, Ylst instructs us to examine whether the “last state
court to be presented with a particular federal claim
reache[d] the merits” or instead applied a state procedural
bar. 501 U.S. at 801 (emphasis added). Here, the last state
court to provide a reasoned decision was the state court of
appeal. Because the California Supreme Court denied relief
in an “unexplained order,” the court of appeal’s application
of state procedural grounds to Guillory’s augmented claim
remains the relevant ruling for federal habeas purposes. Id.
at 803 (“[W]here, as here, the last reasoned opinion on the
claim explicitly imposes a procedural default, we will
presume that a later decision rejecting the claim did not
silently disregard that bar and consider the merits.”). 6
Because Guillory’s augmented claim was rejected on
state procedural grounds, we must determine whether those
grounds are adequate and independent. The State concedes
that, to the extent that Guillory’s claim rested on new
evidence, “the Court of Appeal appears to have erred when
it suggested that the claim was barred under Waltreus.” 7 See
Waltreus, 397 P.2d at 1005 (holding that a state habeas
petition generally may not serve as a “second appeal”).
Accordingly, the only remaining state procedural bar at issue
is the court of appeal’s invocation of “California’s timeliness
6
Guillory does not argue that the Ylst presumption was overcome
here, so we do not consider that question. Ylst, 501 U.S. at 804–05; see
also Wilson v. Sellers, 138 S. Ct. 1188, 1195–96 (2018).
7
We express no view as to whether the State’s concession of error
on this point of state law is correct.
GUILLORY V. ALLEN 17
rule,” which requires that habeas claims be presented
“without ‘substantial delay.’” Walker, 562 U.S. at 312, 321
(citation omitted). The Supreme Court upheld the general
adequacy of that rule in Walker, see id. at 321, and Guillory
expressly concedes in his opening brief that the rule is both
“independent” and “adequate” for federal habeas purposes.
Guillory nonetheless contends that the court of appeal’s
application of California’s timeliness rule in this case is not
an adequate ground for denying federal habeas relief. His
sole contention on this score is that the court of appeal’s
invocation of that rule here is “mutually inconsistent” with
its simultaneous invocation of the Waltreus rule against
relitigating previously decided claims. Guillory relies on a
line of cases in which we have held that a state court’s
invocation of two mutually contradictory state procedural
bars may indicate that the state court has not “clearly and
expressly” imposed an adequate procedural default that is
sufficient to bar federal review. Lambright v. Stewart,
241 F.3d 1201, 1205–06 (9th Cir. 2001); see also Koerner v.
Grigas, 328 F.3d 1039, 1049–50 (9th Cir. 2003); Ceja v.
Stewart, 97 F.3d 1246, 1252–53 (9th Cir. 1996). For
example, in Lambright, the last reasoned state court opinion
suggested that petitioner’s ineffective assistance of counsel
claim was barred both (1) because it had previously been
raised and rejected on the merits (and was therefore
precluded); and (2) because, alternatively, it could have been
previously raised (and was therefore “waived by failure to
raise it”). 241 F.3d at 1205. We concluded that, by
“invoking two contradictory arguments”—one of which
would not bar federal habeas review (i.e., preclusion)—“the
state court failed to make a clear finding of procedural
default and federal review is not barred.” Id. at 1206; see
also Koerner, 328 F.3d at 1049–50 (holding that state court
did not “clearly and expressly” impose a procedural default
18 GUILLORY V. ALLEN
when it did not make sufficiently clear which claims were
covered by preclusion and which were barred by procedural
default for failure to raise them previously); Ceja, 97 F.3d at
1252–53 (similar).
We reject Guillory’s reliance on these cases, which have
no application here. There is no logical inconsistency
between the court of appeal’s statement that Guillory both
took too long to file a state habeas petition re-raising his
public trial claim and was raising an issue that had
previously been resolved on the merits on direct appeal. As
the California Supreme Court has explained in describing its
use of a similar disposition in ruling on habeas petitions:
When in our orders we impose, as to a given
claim or subclaim, both the bar of Waltreus,
and the bar of untimeliness, this signifies that
we have determined that the claim or
subclaim was raised and rejected on appeal,
but that its re-presentation in the petition for
a writ of habeas corpus also is untimely. Our
imposition of the bar of Waltreus, in this
context, signals that the claim has been
exhausted in timely fashion on appeal.
In re Robbins, 959 P.2d 311, 340 n.34 (Cal. 1998) (emphasis
added), superseded by statute on other grounds as stated in
In re Friend, 489 P.3d 309, 314–24 (Cal. 2021). In such
circumstances, no relevant procedural bar has been applied
to the federal claim that was presented and resolved on the
merits on direct appeal: that claim was “exhausted in timely
fashion on appeal,” id., and any obstacles to its re-
presentation on collateral review (whether due to
untimeliness or to the Waltreus relitigation bar) are
“irrelevant” because Guillory “was not required to go to state
GUILLORY V. ALLEN 19
habeas at all” before presenting that claim to a federal habeas
court. Ylst, 501 U.S. at 805. By contrast, the procedural bar
of untimeliness does apply to Guillory’s effort to re-present
his public trial claim on an augmented record. As the state
court’s order here explicitly held, that augmented claim was
untimely, because the declarations in question could have
and should have been obtained sooner. That ruling
establishes, without ambiguity or internal contradiction, that
Guillory’s reliance on those additional materials has been
rejected by the state court on procedural grounds that are
adequate and independent.
Accordingly, the enhanced version of Guillory’s public
trial claim that he presented in his state habeas petition is
procedurally defaulted.
2
The only remaining question is whether Guillory has
established sufficient cause and prejudice to excuse that
procedural default. When “a state prisoner has defaulted his
federal claims in the state court pursuant to an independent
and adequate state procedural rule, federal habeas review of
the claims is barred unless the prisoner can demonstrate
cause for the default and actual prejudice as a result of the
alleged violation of federal law.” Coleman, 501 U.S. at 750.
“‘Cause’ is a legitimate excuse for the default, and
‘prejudice’ is actual harm resulting from the alleged
constitutional violation.” Thomas v. Lewis, 945 F.2d 1119,
1123 (9th Cir. 1991) (citation omitted). We conclude that
Guillory has failed to show sufficient cause to excuse the
procedural default, and so we do not address prejudice. See
Roberts v. Arave, 847 F.2d 528, 530 n.3 (9th Cir. 1988) (“In
general, if a party fails to show cause for his procedural
default a court need not consider whether he suffered actual
prejudice.”).
20 GUILLORY V. ALLEN
The Supreme Court has “not identified with precision
exactly what constitutes ‘cause’ to excuse a procedural
default.” Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
Nevertheless, it has held that “the existence of cause for a
procedural default must ordinarily turn on whether the
prisoner can show that some objective factor external to the
defense impeded counsel’s efforts to comply with the State’s
procedural rule.” Murray v. Carrier, 477 U.S. 478, 488
(1986). A factor is external to the petitioner when it “cannot
fairly be attributed to him.” Coleman, 501 U.S. at 753.
Guillory argues that he has established cause because he
proceeded pro se in filing his state habeas petition and so was
“limited in [his] ability to interview witnesses and seek out
evidence,” Rand v. Rowland, 154 F.3d 952, 958 (9th Cir.
1998) (en banc); that he was uncertain about the deadlines
applicable to his petition in light of the amorphous nature of
California’s timeliness rule and the inconsistency in caselaw
applying that rule; and that he “diligently pursued” relief by
immediately seeking to bolster the record after the court of
appeal denied his direct appeal for lack of evidentiary
support and by filing his petition within one month of
receiving his family members’ declarations. While we are
not unsympathetic to the difficulties that Guillory may have
experienced, these reasons are insufficient under our
caselaw. We have previously held that “[w]hen a pro se
petitioner is able to apply for post-conviction relief to a state
court, the petitioner must be held accountable for failure to
timely pursue his remedy . . . .” Hughes v. Idaho State Bd.
of Corr., 800 F.2d 905, 909 (9th Cir. 1986); see also Boyd v.
Thompson, 147 F.3d 1124, 1126–27 (9th Cir. 1998) (same).
The challenges that Guillory identifies are the sort of
difficulties routinely experienced by pro se petitioners.
Guillory has not established that there was any “objective
factor external to the defense” that impeded his ability to
GUILLORY V. ALLEN 21
obtain declarations sooner. See Murray, 477 U.S. at 488.
The court of appeal emphasized that Guillory had failed to
explain why “it took him so long to obtain” the declarations
he submitted, and the district court likewise noted that the
delay remained inadequately explained in Guillory’s papers
in support of his federal habeas petition.
III
The district court correctly concluded that the renewed
and augmented Sixth Amendment public trial claim that
Guillory sought to present in his state habeas petition is
procedurally defaulted and that Guillory failed to establish
sufficient cause to overcome the default. However, the Sixth
Amendment public trial claim that Guillory had raised
unsuccessfully on direct appeal was properly exhausted and
was not procedurally defaulted in any respect. Accordingly,
we vacate the district court’s judgment and remand for the
district court to consider whether the court of appeal’s
rejection of that claim on direct appeal provides any basis for
federal habeas relief under the standards of 28 U.S.C.
§ 2254, as amended by the Antiterrorism and Effective
Death Penalty Act.
VACATED AND REMANDED.