concur in the discharge of the order to show cause.
I express no opinion on the substantive merits of the discussion regarding “good cause” and “substantial delay.” In my view, attempting to clarify issues of procedure relating to the timely filing of habeas corpus petitions in capital cases is ill-advised and counterproductive. I therefore decline to endorse any part of the enterprise. As the federal habeas reform model illustrates, creating a Byzantine system of procedural hurdles, each riddled with exceptions and fact-intensive qualifications, only undermines their intended purpose. While I "do not countenance abuse of the writ, efforts to control it must be measured by their impact on the goals they purport to serve: integrity of judgments, finality, and comity. Thus far, none háve been advanced by the “guidance” provided in In re Harris (1993) 5 Cal.4th 813, 829 [21 Cal.Rptr.2d 373, 855 P.2d 391] (Harris) and In re Clark (1993) 5 Cal.4th 750, 768 [21 Cal.Rptr.2d 509, 855 P.2d 729] {Clark). As long as our intentions remain ambivalent and our goals at odds, we can expect no better results regardless of how many more “procedural” orders to show cause we issue and discharge.
The recurrent theme of Clark is “the importance of finality of judgments [citation], and the interest of the state in the prompt implementation of its
*843laws. [Citation.]” (Clark, supra, 5 Cal.4th at p. 764; see id. at pp. 766, 769, 770, 774-775, 776, 783, 786.) Procedural bars foster these goals in part by curtailing abusive and dilatory writ practice. By invoking them, we may also, indirectly at least, “seek to prevent federal courts from reviewing federal constitutional claims, especially in capital cases,” thus further enhancing the prospects for finality. (Id. at p. 802 (cone, and dis. opn. of Mosk, J.).) Nevertheless, in light of post-Clark experience, it should be obvious that the means conflict irreconcilably with the ends. As far as I can determine, to date, not one procedural bar cited by this court in a capital case has precluded federal court review on the merits or forestalled a successive petition. Concomitantly, our citations to Clark and Harris have caused years of fruitless litigation up and down the federal court system, delaying finality and impairing any sense of comity. (See fn. 7, post.) Perhaps, the time has come to acknowledge the fault is not in our stars but in our ambivalence toward institutional priorities: As set forth in Clark, the principles on which we reject habeas corpus petitions as untimely and successive simply do not translate into a state ground adequate to foreclose federal review on the merits. Moreover, because the death penalty is qualitatively different, procedural impediments are unlikely to deter counsel who belatedly discover a potentially meritorious claim.
I
Deference to state court procedural bars is based on the “well-established principle of federalism that a state decision resting on an adequate foundation of state substantive law is immune from review in the federal courts. [Citations.]” (Wainwright v. Sykes (1977) 433 U.S. 72, 81 [97 S.Ct. 2497, 2503, 53 L.Ed.2d 594].) However, “a state procedural ground is not ‘adequate’ unless the procedural rule is ‘strictly or regularly followed.’ [Citation.] State courts may not avoid deciding federal issues by invoking procedural rules that they do not apply evenhandedly to all similar claims.” (Hathorn v. Lovorn (1982) 457 U.S. 255, 262-263 [102 S.Ct. 2421, 2426, 72 L.Ed.2d 824]; Johnson v. Mississippi (1988) 486 U.S. 578, 587 [108 S.Ct. 1981, 1987, 100 L.Ed.2d 575].) “[Ó]nly a ‘firmly established and regularly followed state practice’ may be interposed by a State to prevent subsequent review by this Court of a federal constitutional claim. [Citations.]” (Ford v. Georgia (1991) 498 U.S. 411, 423-424 [111 S.Ct. 850, 857, 112 L.Ed.2d 935].) Moreover, a state may not invoke “a rule unannounced at the time of’ a purported default. (Id. at p. 424 [111 S.Ct. at p. 858].)
“As a corollary to the requirement of strict or regular compliance, a procedural rule will not bar federal review if it is one that the state can decide whether to assert as a matter of discretion. [Citation.]” (Deere v. *844Calderon (C.D.Cal. 1995) 890 F.Supp. 893, 896.) That is, application of the procedural rule must be based “at minimum, [on] standards having compulsory force [that] have been articulated and applied with regularity.” (Karis v. Vasquez (E.D.Cal. 1993) 828 F.Supp. 1449, 1467 (Karis).) Although “procedural rules need not be utterly mechanical,” any judicial discretion must constitute “the exercise of judgment according to standards that, at least over time, can become known and understood within reasonable operating limits.” (Morales v. Calderon (9th Cir. 1996) 85 F.3d 1387, 1392 (Morales).)
However state courts define their rules, federal courts will decide if those rules constitute adequate state grounds. “ ‘[T]he question of when and how defaults in compliance with state procedural rules can preclude our consideration of a federal question is itself a federal question.’ [Citation.]” (Johnson v. Mississippi, supra, 486 U.S. at p. 587 [108 S.Ct. at p. 1987]; see, e.g., Ford v. Georgia, supra, 498 U.S. at pp. 423-424 [111 S.Ct. at p. 857]; see also Harmon v. Ryan (9th Cir. 1992) 959 F.2d 1457, 1461 [“The doctrine of procedural default is based on comity, not jurisdiction, and the federal courts retain the power to consider the merits of procedurally defaulted claims. [Citation.]”].) Thus, federal courts will always have the last word. As one district court has observed, “Ninth Circuit law on the independence of alternative procedural holdings, like [those relying on Harris, supra, 5 Cal.4th 813], is still evolving.” (Odie v. Calderon (N.D.Cal. 1995) 884 F.Supp. 1404, 1412; see also Morales, supra, 85 F.3d at p. 1389, fn. 6.) Moreover, since procedural default is an affirmative defense on which the state predicates a motion to dismiss, “ordinarily under such circumstances the burden rests with the proponent of the defense and of the motion.” (Karis, supra, 828 F.Supp. at p. 1463, fn. 21.)
We must also recognize the institutional mind-set of the federal courts that traces its roots to the post-Civil War Judiciary Act of 1867 (Feb. 5, 1867, ch. 28, § 1, 14 Stat. 385-386) by which Congress first extended federal habeas corpus to state prisoners. (See generally, Fay v. Noia (1963) 372 U.S. 391, 415-426 [83 S.Ct. 822, 836-842, 9 L.Ed.2d 837].) Despite initial “jurisdictional” limitations on the scope of the writ, this historical context substantially informs a perception of the federal courts as ultimate guardians of constitutional rights—an attitude that probably reached its high-water mark in Fay v. Noia, when the Supreme Court declined to foreclose merit review of a constitutional claim the petitioner had defaulted in state court. (Id. at pp. 426-435 [83 S.Ct. at pp. 842-847].) Although the rules are stricter now (see Keeney v. Tamayo-Reyes (1992) 504 U.S. 1, 4 [112 S.Ct. 1715, 1717, 118 L.Ed.2d 318]; Wainwright v. Sykes, supra, 433 U.S. at pp. 87-88 [97 S.Ct. at p. 2507]), review is not precluded if a state prisoner establishes cause for the default and resulting prejudice or, despite lack of cause, claims factual *845innocence. (McCleskey v. Zant (1991) 499 U.S. 467, 493-496 [111 S.Ct. 1454, 1469-1471, 113 L.Ed.2d 517].)
With respect to our timeliness bars, federal courts have consistently refused to recognize them in cases in which the default predated Clark because they were applied as a matter of discretion without regularity and uniformity. (See, e.g., Morales, supra, 85 F.3d at pp. 1389-1391; Siripongs v. Calderon (9th Cir. 1994) 35 F.3d 1308, 1317-1318; cf. Fields v. Calderon (9th Cir. 1997) 125 F.3d 757, 761-765 [for the same reason finding Dixon bar (In re Dixon (1953) 41 Cal.2d 756 [264 P.2d 513]) inadequate for cases appealed prior to Harris].) The fate of post-Clark cases remains uncertain, although the Ninth Circuit Court of Appeals’s discussion in Morales does not augur well: “Neither the Standards [Governing Filing of Habeas Corpus Petitions] themselves nor California cases construing those Standards, create an unambiguous rule on timeliness beyond the [presumption of timeliness for petitions filed within 90 days of the reply brief (std. 1-1.2)]. Further, because the California Supreme Court does not provide reasons for its denials of petitions of habeas corpus on timeliness grounds, it is equally difficult to discern what criteria the state court applies .when ruling on the timeliness of a petition filed beyond the . . . 90 day period.” (Morales, supra, 85 F.3d at p. 1390.) Although the standards provide that a habeas corpus petition should be filed “without substantial delay,” “[njeither the Standards nor [case authority] established what amount of delay the court would consider ‘substantial,’ nor did either set out criteria for determining ‘good cause’ to excuse such delay. They also did not prescribe whether and when untimeliness might be waived altogether, even though good cause had not been shown.” (Morales, supra, 85 F.3d at p. 1391; see Karis, supra, 828 F.Supp. at p. 1463, fn. omitted [noting this court has yet to “articulate[] parameters within which [to exercise] discretion to find an explanation or justification [for filing delay] sufficient”].) In other words, as currently articulated, our timeliness bars are too vague to constitute adequate state grounds.1
Although today’s decisions are intended to respond to the deficiencies outlined in Morales, they can only have the opposite effect by creating more sources of litigation, hence more delay. If we are to take the Ninth Circuit at its word, many more forays will be necessary, although probably not sufficient, in the quest for adequate state grounds. Rather than clarity, each will *846breed further uncertainty and obfuscation, protracting habeas corpus proceedings at every turn. That being the case, whither finality?
II
In theory, consistent application of procedural bars imposes discipline on defense counsel and discourages abusive tactics. (See Clark, supra, 5 Cal.4th at pp. 769-774.) However, our efforts to curb lawyer excesses may come at too high a cost—at the expense of reasonably expeditious resolution of these cases. Lest this sound alarmist, the United States Supreme Court’s own futile attempts to tame habeas corpus litigation provides a painful object lesson.
Professor Barry Friedman, a longtime follower of the high court’s habeas corpus jurisprudence, has persuasively documented the failure of the court’s reform efforts, beginning with Stone v. Powell (1976) 428 U.S. 465 [96 S.Ct. 3037, 49 L.Ed.2d 1067], in achieving its stated goals—fairness, finality, federalism, and judicial economy. (Friedman, Failed Enterprise: The Supreme Court’s Habeas Reform (1995) 83 Cal.L.Rev. 485 (Friedman); see also Lay, The Writ of Habeas Corpus: A Complex Procedure for a Simple Process (1993) 77 Minn. L.Rev. 1015, 1018-1019 (Lay).) The sense of déjá vu in reading Friedmán should be enough to prompt reconsideration of our efforts to achieve similar ends.
Brecht v. Abrahamson (1993) 507 U.S. 619 [113 S.Ct. 1710, 123 L.Ed.2d 353]is particularly illustrative. In that case the court rejected the Chapman harmless error standard (Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705, 24 A.L.R.3d 1065]) on collateral review in favor of a less rigorous test derived from Kotteakos v. United States (1946) 328 U.S. 750 [66 S.Ct. 1239, 90 L.Ed. 1557]. By giving greater deference to state court judgments, that change seems on the surface to serve the court’s stated ends. In reality, it undermines all of them. Kotteakos requires a court finding a constitutional violation to review the entire state trial record to assess whether the error “ ‘had substantial and injurious effect or influence in determining the jury’s verdict.’ [Citation.]’’ (Brecht v. Abrahamson, supra, 507 U.S. at p. 631 [113 S.Ct. at p. 1718].) In her dissent, Justice O’Connor noted several deficiencies with the new rule. “[E]ven on its own terms the Court’s decision buys the federal courts a lot of trouble. From here on out, prisoners undoubtedly will litigate—and judges will be forced to decide— whether each error somehow might be wedged into the narrow potential exception the Court mentions in a footnote today.[2] Moreover, since the Court only mentions the possibility of an exception, all concerned must also *847address whether the exception exists at all.” (507 U.S. at p. 655 [113 S.Ct. at p. 1731] (dis. opn. of O’Connor, J.).) She further concluded, “Kotteakos’ threshold is no more precise than Chapman’s; each requires an exercise of judicial judgment that cannot be captured by the naked words of verbal formulae. Kotteakos, it is true, is somewhat more lenient; it will permit more errors to pass uncorrected. But that simply reduces the number of cases in which relief will be granted. It does not decrease the burden of identifying those cases that warrant relief.” (Id. at p. 656 [113 S.Ct. at p. 1731].)
In this same vein, Friedman notes, “Brecht is an open invitation to the state to raise the question of harmfulness in all habeas proceedings in which a constitutional error is found. . . . [B]y giving the state greater incentive to defend constitutionally questionable convictions, finality is not clearly advanced, and judicial resources are taxed.” (Friedman, supra, 83 Cal.L.Rev. at p. 500, fns. omitted.)
Compounding the difficulties, the court subsequently explained that despite the more lenient standard of review, the beneficiary of the error still bears the burden of demonstrating harmlessness, as required under Chapman v. California, supra, 386 U.S. at page 24 [87 S.Ct. at page 828]. (O’Neal v. McAninch (1995) 513 U.S. 432, 437-444 [115 S.Ct. 992, 995-998, 130 L.Ed.2d 947].) Accordingly, habeas relief should be granted when “record review leaves the conscientious judge in grave doubt about the likely effect of an error on the jury’s verdict.” (Id. at p. 435 [115 S.Ct. at p. 994].) As Justice Scalia has suggested, this determination “does not possess” “a black- and-white character . . . , any more than other [harmless error] determinations possess it.” (California v. Roy, supra, 519 U.S. at p. 8 [117 S.Ct. at p. 340] (cone. opn. of Scalia, J.).) Indeed, some suggest the shades of gray are potentially infinite. (See Friedman, supra, 83 Cal.L.Rev. at p. 500; see also Brecht v. Abrahamson, supra, 507 U.S. at pp. 640-644 [113 S.Ct. at pp. 1723-1725] (cone. opn. of Stevens, J.).)
Friedman also cites Teague v. Lane (1989) 489 U.S. 288 [109 S.Ct. 1060, 103 L.Ed.2d 334] and Stone v. Powell, supra, 428 U.S. 465, as prime *848examples of federal habeas reform gone awry. Under Teague, a state prisoner seeking federal habeas relief may not receive retroactive benefit of a “new rule” of law. As even members of the high court acknowledge, the doctrine “has proven hard to apply” even though the court has “explained its crucial terms a number of ways.” (Graham v. Collins (1993) 506 U.S. 461, 505 [113 S.Ct. 892, 918, 122 L.Ed.2d 260] (dis. opn. of Souter, J.).) With considerably less understatement, Friedman concludes “that Teague has spawned far more confusion than it has eliminated, and that it has set courts and lawyers off spending hours and pages of arguments and briefs on an incoherent, unproductive, and ultimately unworkable task.” (Friedman, supra, 83 Cal.L.Rev. at p. 519; see Lay, supra, 77 Minn. L.Rev. at p. 1042.) The only certain result is additional delay. (See, e.g., Friedman, supra, at pp. 538-539, fn. 356 [chronicling several years of further state court proceedings following Graham v. Collins, supra, 506 U.S. 461].)
In Stone v. Powell, supra, 428 U.S. 465, the Supreme Court held that Fourth Amendment claims would not be cognizable on habeas corpus if there had been “an opportunity for full and fair litigation” in state court. (Id. at p. 482 [96 S.Ct. at p. 3046].) Despite its consistent refusal to extend the reasoning to any other type of constitutional violation (see Withrow v. Williams (1993) 507 U.S. 680 [113 S.Ct. 1745, 123 L.Ed.2d 407]; Rose v. Mitchell (1979) 443 U.S. 545 [99 S.Ct. 2993, 61 L.Ed.2d 739]; Jackson v. Virginia (1979) 443 U.S. 307 [99 S.Ct. 2781, 61 L.Ed.2d 560]), the court has never expressly disavowed the possibility, thereby encouraging litigation as respondents seek additional procedural bars. (See Friedman, supra, 83 Cal.L.Rev. at p. 515.)
Friedman concludes “that even by the standards the Court is setting for itself, reform seems to be a failure. There is no evidence that state courts think more highly of the federal courts for all the reform decisions. A few more writs may have been denied, which may or may not be what the Court wished. From a doctrinal standpoint, however, the course of habeas law is as damaging to state interests and to finality as the rhetoric—or some of it—is respectful.” (Friedman, supra, 83 Cal.L.Rev. at p. 546; see, e.g., O’Neal v. McAninch, supra, 513 U.S. at p. 443 [115 S.Ct. at p. 998].)
He then posits, “One might reasonably wonder if this was the better course. Play a mind game for a moment. Assume that the Supreme Court slowed the flow of new rights-expanding decisions (as was inevitable) but habeas courts were left free to resolve claims on the merits, without the procedural tangle reform has mandated. Compare that to the state of affairs now. There is an awfully good argument that matters would be much better. Cases would be resolved on the merits. They would be filed, dealt with, and resolved. It is unlikely many more writs would be granted. . . . [H] Whether *849or not this alternative state of affairs would be preferable, it is time for the Supreme Court to ask itself whether the reform venture has been a success. The Court is so wrapped up in the effort that it may be difficult to obtain the, clarity of judgment necessary. But habeas has become a perennial battleground, with the war showing no sign of ending. Perhaps it is time to admit defeat.” (Friedman, supra, 83 Cal.L.Rev. at p. 546.) That, or .continue its Sisyphean labors. (Lay, supra, 77 Minn.L.Rev. at p. 1015.)
HI
Although the specific issues and judicial perspective may differ, the import of the federal experience should be clear: Procedural bars do not promote finality, but rather compromise it in direct proportion to the litigation they generate. If a petitioner is not invoking an exception, the vagueness of the rule encourages definitional quibbles. Every effort to clarify simply creates additional rounds in the process for both state and federal courts. (See Friedman, supra, 83 Cal.L.Rev. at p. 539; see also cases cited at fn. 7, post.)
Recent experience confirms we have embarked on a war of attrition over our own procedural bars, timeliness in particular. We began with the impossibly amorphous standards governing the filing of habeas petitions in capital cases: “If a petition is filed after substantial delay, the petitioner must demonstrate good cause for the delay. A petitioner may establish good cause by showing particular circumstances sufficient to justify substantial delay.” (Supreme Ct. Policies Regarding Cases Arising From Judgments of Death, policy 3, std. 1-2.) In Clark, this court “did attempt to explain at great length its requirements under the Standards . . . .” (Morales, supra, 85 F.3d at p. 1391.)3 The explanation, however, was equally nebulous as well as riddled with exceptions requiring fact-specific analysis. (See Clark, supra, 5 Cal.4th at pp. 795-798.)
Thus, for example, “[a] petitioner will be expected to demonstrate due diligence in pursuing potential claims.” {Clark, supra, 5 Cal.4th at p. 775, italics added.) “[T]he court will continue to consider the merits of the claim if asserted as promptly as reasonably possible.” {Ibid., italics added.) “In limited circumstances,” the court may consider incompetence of prior habeas counsel in assessing timeliness. {Id. at p. 779, italics added.) “[Djelay in seeking habeas corpus relief may be justified when the petition is ultimately
*850filed if the petitioner can demonstrate that (1) he had good reason to believe other meritorious claims existed, and (2) the existence of facts supporting those claims could not with due diligence have been confirmed at an earlier time.” (Id. at p. 781, italics added, fn. omitted.) Delay also requires a showing that “ ‘ “the facts upon which [the petitioner] relies were not known to him and could not in the exercise of due diligence have been discovered by him at any time substantially earlier than the time of his motion for the writ.” ’ [Citation.]” (Id. at p. 779, italics added.)
Such imprecise, circular, and tautological language does not define a “clear” rule this court can “consistently appl[y]” to create a “well-established” standard. (Morales, supra, 85 F.3d at p. 1393.) Nor does it even provide guidance. In In re Robbins (1998) 18 Cal.4th 770 [77 Cal.Rptr.2d 153, 959 P.2d 290], both parties have cited much of the same language in Clark they reasonably argue supports their respective positions in these circumstances. Today’s decisions bring us no greater clarity. Henceforth, denial of a timely request for investigative funds “are . . . relevant” to the timeliness inquiry. (Maj. opn., ante, at pp. 828-829.) Notwithstanding the “circumstances” describing when a denial of funding will be considered, this holding does not “set out criteria for determining ‘good cause’ ” or “provide reasons” for future findings. (Morales, supra, 85 F.3d at pp. 1390-1391.) By any measure, “relevant” is a qualitative and contextual indicator, not a definitive standard providing an objective basis for imposing or declining to impose a timeliness bar. On the contrary, it injects another discretionary element into an already fact-intensive, case-specific analysis and confirms this court has previously engaged in ad hoc decisionmaking—the antithesis of a “ ‘firmly established and regularly followed state practice.’ ”4 (Ford v. Georgia, supra, 498 U.S. at pp. 423-424 [111 S.Ct. at p. 857].)
In any event, this process is doomed. The primary problem is that “good cause” and “without substantial delay” defy standardization. Unlike the standards of other procedural bars, they resolutely resist the binary mode of an “unambiguous rule.”5 (Morales, supra, 85 F.3d at p. 1390.) Even assuming they could “be captured by the naked words of verbal formulae” (Brecht v. Abrahamson, supra, 507 U.S. at p. 656 [113 S.Ct. at p. 1731] (dis. opn. of *851O’Connor, J.)), the potential for variation will become a self-defeating Catch-22, with each inherently contextual and fact-dependent explanation requiring further explication. The Ninth Circuit has already implied such piecemeal definition by induction will not suffice.6 (Morales, supra, 85 F.3d at p. 1391.) Moreover, by its nature, “guidance” is not the equivalent of “standards that, at least over time, can become known and understood within reasonable operating limits.” (Id. at p. 1392; see Karis, supra, 828 F.Supp. at pp. 1462-1463.) Nor is mere invocation of the bar likely to suffice in the absence of a definitive standard.
With respect to finality, empirical evidence documents the negative consequences of the struggle over procedural bars. Delays abound both here and in the federal courts, intensified by protracted but ultimately futile wrangling as to their legal impact.7 With today’s decisions, the court takes a further step into the quagmire and squanders judicial resources without advancing the state of the law or the quality of justice. We are no closer to the ever-receding dream of adequate state grounds and farther from the goals of finality and comity. With each new attempt to clarify our rules, the court builds into the decisional equation another layer of discretion virtually foreclosing any hope of achieving “standards having compulsory force . . . articulated and applied with regularity.” (Karis, supra, 828 F.Supp. at p. 1467.) In my view, it is time to recognize our procedural bars do not preclude federal court merit review and probably never will. Given the many costs, we should abandon the effort for the present in favor of the one certainty for ensuring expeditious review of capital habeas petitions: full merit review without regard to procedural bars. (Cf. Clark, supra, 5 Cal.4th at pp. 802-803 (cone, and dis. opn. of Mosk, J.).)
*852Limiting our consideration solely to the merits would hasten resolution of these cases in at least two respects. Initially, it would reduce time consumption in this court. As our denial orders reflect, in the vast majority of capital habeas corpus cases we address all claims8 on the merits even when procedural bars may apply. (See Harris v. Reed (1989) 489 U.S. 255, 264, fn. 10 [109 S.Ct. 1038, 1044, 103 L.Ed.2d 308].) Since the additional time necessary to discuss possible defaults and to formulate corresponding orders advances institutional goals marginally, if at all, it can usefully be eliminated from the process. Moreover, if our denial orders contained no reference to procedural bars, respondent would have no basis for seeking dismissal of claims in federal court on those grounds. Short-circuiting that gambit would also expedite finality. (See fn. 7, ante.)
Understandably, there is concern that the omission of procedural bars from our habeas corpus denial orders will invite multiple and “last minute” petitions. To some extent, that is inevitable in capital cases. Adopting a more expeditious procedure does not deny us the flexibility to address such problems as they arise. Even if merit review is the general rule, Clark provides clear notice that the court can and will invoke procedural bars without consideration of the merits when abuse of the writ is manifest.
We should at least adopt this approach until we can determine the impact of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub.L. No. 104-132 (Apr. 24, 1996) 110 Stat. 1214), which could substantially curtail and expedite federal habeas corpus review while at the same time enhancing finality and comity. Among other provisions, the act allows federal courts to disregard the failure to exhaust state remedies and deny claims on the merits (28 U.S.C. § 2254(b)(2)), limits the basis for granting relief on any claim adjudicated on the merits in state court (id., subd. (d)(1)), and precludes claims of ineffective assistance of habeas corpus counsel (id., subd. (i)). The act also imposes a one-year statute of limitations for filing a federal habeas corpus petition (28 U.S.C. § 2244(d)(1)) and places significant restrictions on the filing of successive petitions (id., subd. (b)(1)). Our state Legislature and this court have also taken steps to qualify California for the special •habeas corpus procedures in capital cases (28 U.S.C. § 2261 et seq.), which impose additional procedural limitations. (See Gov. Code, § 68650 et seq., added by Stats. 1997, ch. 869, § 3; Cal. Rules of Court, rule 76.6 [eff. Feb. 27, 1998, amended Apr. 21, 1998].)
Our own Legislature has considered amending state habeas corpus procedures as well. (See Sen. Bill No. 151 (1997-1998 Reg. Sess.).) While the *853federal experience shows legislative intervention is no panacea, some changes could have a positive effect on finality and comity. At the same time, however, the Legislature should be cautious to avoid the pitfalls this court struggles with, such as vague measures of timeliness and “good cause.” Whatever changes are implemented must articulate definitive standards such as a statute of limitations, limits on review of contentions that were or could have been raised on appeal, and restrictions on successive petitions. Any exceptions should be narrow and well defined. Only in such circumstances will procedural rules have the necessary foundation for adequate and independent state grounds and clear guidance for habeas corpus counsel.
Petitioner’s application for a rehearing was denied September 23, 1998. Kennard, L, was of the opinion that the application should be granted.
*854Appendix
S042737
IN THE SUPREME COURT OF CALIFORNIA
IN. RE GERALD A. GALLEGO ON HABEAS CORPUS
Petition for writ of habeas corpus denied.
Claims I, II, HI, and IV are denied on the merits. To the extent Claim II asserts that the trial court erred in failing to order a competency hearing, it was raised and rejected on appeal, and hence also is barred under In re Waltreus (1965) 62 Cal.2d 218, 225 [42 Cal.Rptr. 9, 397 P.2d 1001] (Waltreus). In addition, each claim is barred as untimely under In re Robbins [(1998) 18 Cal.4th 770] (Robbins), and In re Clark (1993) 5 Cal.4th 750 [21 Cal.Rptr.2d 509, 855 P.2d 729] (Clark).
Claim V is denied on the merits. To the extent Claim V reasserts a claim that was raised and rejected on appeal, it is barred under Waltreus, supra. To the extent Claim V presents a claim based on the appellate record but not raised or addressed on appeal, it should have been raised on appeal and is barred under In re Dixon (1953) 41 Cal.2d 756, 759 [264 P.2d 513] (Dixon). In addition, Claim V is barred as untimely under Robbins, supra, and Clark, supra.
Claim VI is denied on the merits. In addition, it is barred as untimely under Robbins, supra, and Clark, supra.
Claims VII, VIII, and IX are denied on the merits. To the extent these claims reassert claims raised and rejected on appeal, they are barred under Waltreus, supra. To the extent these claims are based on the appellate record but were not raised or addressed on appeal, they are barred under Dixon, supra. In addition, each claim is barred as untimely under Robbins, supra, and Clark, supra.
Claims X and XI are denied on the merits. In addition, each claim is barred as untimely under Robbins, supra, and Clark, supra.
Claims XII and XIII are denied on the merits. In addition, each claim is barred as untimely under Robbins, supra, and Clark, supra.
*855Claims XIV and XV are denied on the merits. Each is also barred under Waltreus, supra. In addition, each claim is barred as untimely under Robbins, supra, and Clark, supra.
Claim XVI is denied on the merits. Subparts A and D thereof are barred under Waltreus, supra. Subparts B and C thereof are barred as waived under People v. Green (1980) 27 Cal.3d 1, 27-34 [164 Cal.Rptr. 1, 609 P.2d 468], and under Dixon, supra. In addition, the claim is barred as untimely under Robbins, supra, and Clark, supra.
Claims XVII and XVIII are denied on the merits. Claim XVIII also is barred under Waltreus, supra. In addition, each claim is barred as untimely under Robbins, supra, and Clark, supra.
Claim XIX is denied on the merits. Subparts A(l)-(3) and B (1) are barred under Dixon, supra, and the remaining subparts of Claim XIX are barred under Waltreus, supra. In addition, the claim is barred as untimely under Robbins, supra, and Clark, supra.
Claim XX is denied on the merits. To the extent it reasserts a claim that was raised and rejected on appeal, it is barred under Waltreus, supra. To the extent it presents a claim based upon the appellate record but not raised or addressed on appeal, it is barred under Dixon, supra. In addition, the claim is barred as untimely under Robbins, supra, and Clark, supra.
Claim XXI is denied on the merits. It also is barred under Waltreus, supra. In addition, it is barred as untimely under Robbins, supra, and Clark, supra.
Claim XXII is denied on the merits. To the extent it reasserts a claim that was raised and rejected on appeal, it is barred under Waltreus, supra. To the extent it presents a claim based upon the record but not raised or addressed on appeal, it is barred under Dixon, supra. In addition, the claim is barred as untimely under Robbins, supra, and Clark, supra.
Claims XXIII and XXIV are denied on the merits. Each also is barred under Waltreus, supra. In addition, each claim is barred as untimely under Robbins, supra, and Clark, supra.
Claim XXV is denied on the merits. It also is barred under Dixon, supra. In addition, it is barred as untimely under Robbins, supra, and Clark, supra.
Claim XXVI is denied on the merits. It also is barred under Waltreus, supra. In addition, it is barred as untimely under Robbins, supra, and Clark, supra.
*856Claim XXVII is denied on the merits. It also is barred under Dixon, supra. In addition, it is barred as untimely under Robbins, supra, and Clark, supra.
Claims XXVIII, XXIX, XXX, and XXXI are denied on the merits. Each also is barred under Waltreus, supra. In addition, each claim is barred as untimely under Robbins, supra, and Clark, supra.
Claim XXXII is denied on the merits. In addition, it is barred as untimely under Robbins, supra, and Clark, supra.
Claim XXXIII is denied on the merits. It also is barred under Dixon, supra. In addition, it is barred as untimely under Robbins, supra, and Clark, supra.
Claim XXXIV is denied on the merits. In addition, it is barred as untimely under Robbins, supra, and Clark, supra.
Claim XXXV is denied on the merits. It also is barred under Waltreus, supra. In addition, it is barred as untimely under Robbins, supra, and Clark, supra.
Insofar as any claim asserts ineffective assistance of immediately preceding appellate and habeas corpus counsel, it is denied solely on the merits. (Robbins, supra, at p. 815, fn. 35.)
Mosk, J., and Brown, J., would deny the petition solely on the merits.
In Deere v. Calderon, supra, 890 F.Supp. at page 900, the court determined “that each of the denials on grounds of untimeliness in [surveyed cases postdating Clark] was discernible, regular, and consistent.” Deere is still pending in the district court, and the Ninth Circuit has yet to pass on its determination. Another district court, however, has criticized the methodology used in Deere and reached the opposite conclusion. (Coleman v. Calderon (N.D.Cal.) 1996 WL 83882, pp. *3-*4.)
The referenced footnote states, “Our holding -does not foreclose the possibility that in an unusual case, a deliberate and especially egregious error of the trial type, or one that is *847combined with a pattern of prosecutorial misconduct, might so infect the integrity of the proceedings as to warrant the grant of habeas relief, even if it did not substantially influence the jury’s verdict. [Citation.]” (Brecht v. Abrahamson, supra, 507 U.S. at p. 638, fn. 9 [113 S.Ct. at p. 1722]; see also McCleskey v. Zant, supra, 499 U.S. at p. 494 [111 S.Ct. at p. 1470] [recognizing exception to “cause and prejudice” standard for factual innocence]; cf. Clark, supra, 5 Cal.4th at pp. 796-797 [exceptions to timeliness bars].)
. The court also built into the equation another point of contention: whether the constitutional violation involved “trial error” subject to the Kotteakos standard or “ ‘structural defects in the constitution of the trial mechanism, which defy analysis by [any] “harmless-error” standards.’ [Citation.]” (Brecht v. Abrahamson, supra, 507 U.S. at p. 629 [113 S.Ct. at p. 1717]; cf. California v. Roy (1996) 519 U.S. 2 [117 S.Ct. 337, 136 L.Ed.2d 266].)
The. Ninth Circuit “express[ed] no opinion on whether the attempt succeeded, so that timeliness under the Standards invoked post-Clark would constitute an adequate and independent state ground of decision . . . .” (Morales, supra, 85 F.3d at p. 1391; see Calderon v. U.S. Dist. Ct. for E.D. of California (9th Cir. 1996) 96 F.3d 1126, 1130.)
Given the recent changes in habeas corpus investigation expense reimbursement provisions, today’s gloss on “good cause” may be of limited utility in achieving regularity and uniformity; the new provisions may well necessitate a different rule.
Compare Evidence Code section 353 (failure to object waives claim of erroneous admission of evidence); People v. Ramos (1997) 15 Cal.4th 1133, 1163 [64 Cal.Rptr.2d 892, 938 P.2d 950] (trial court without jurisdiction to entertain renewed suppression motion except as statutorily provided); People v. Gallego (1990) 52 Cal.3d 115, 166 [276 Cal.Rptr. 679, 802 P.2d 169] (failure to make Wheeler (People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748]) motion waives issue on appeal); People v. Coleman (1988) 46 Cal.3d *851749, 770 [251 Cal.Rptr. 83, 759 P.2d 1260] (failure to exercise all peremptory challenges waives claim trial court erroneously refused to excuse juror for cause).
In comparison to questions of timeliness, the bar of In re Dixon, supra, 41 Cal.2d at page 761, is a well-defined standard. The problem thus far has been in establishing the consistency of its application. (See Fields v. Calderon, supra, 125 F.3d at pp. 763-764.)
On the other hand, it is clear the Ninth Circuit is fully capable of honoring a procedural default when it determines the bar is strictly and regularly followed. (See Ortiz v. Stewart (9th Cir. 1998) 149 F.3d 923, 930-932.)
See, e.g., Calderon v. U.S. Dist. Ct. for E.D. of Cal. (9th Cir. 1996) 103 F.3d 72 (reference to timeliness bar caused 16-month delay including denial of certiorari petition); Calderon v. U.S. Dist. Ct. for the E.D. of California, supra, 96 F.3d 1126 (25-month delay); Morales, supra, 85 F.3d 1387 (more than 3-year delay); Siripongs v. Calderon, supra, 35 F.3d 1308 (43-month delay); Deere v. Calderon, supra, 890 F.Supp. 893 (14-month delay); Karis, supra, 828 F.Supp. 1449 (18-month delay); see also, e.g., Coleman v. Calderon, supra, 1996 WL 83882 (14-month delay, for which the court apologized to the parties in a footnote); compare Fields v. Calderon, supra, 125 F.3d 757 (38-month delay litigating Harris bars). Part of the delay results from the rule in McCleskey v. Zant, supra, 499 U.S. at pages 493-496 [111 S.Ct. at pages 1469-1471], which allows the petitioner to assert “cause and prejudice” to avoid dismissal on adequate and independent state procedural grounds.
The majority notes four cases in the last two terms in which the court denied a total of twenty-three claims solely on the basis of procedural default. During that same period, we have addressed many hundreds of claims, including multiple subparts, on both the merits and procedural grounds.