FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT

STEPHEN MORELAND REDD,                             No. 21-55464
individually and on behalf of all others
similarly situated,                                  D.C. No.
                                                  2:16-cv-01540-
                 Plaintiff-Appellant,                DMG-PJ
    v.

PATRICIA GUERRERO, Chief                             OPINION
Justice of California; KIMBERLY
MENNINGER, Judge of the Superior
Court of California, County of Orange,
et al. *

                 Defendants-Appellees.

         Appeal from the United States District Court
            for the Central District of California
           Dolly M. Gee, District Judge, Presiding

             Argued and Submitted May 11, 2022
                      Portland, Oregon

                     Filed October 20, 2023

*
  Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Patricia
Guerrero is substituted for her predecessor, Tani Gorre Cantil-Sakauye,
as Chief Justice of the California Supreme Court.
2                        REDD V. GUERRERO


     Before: Marsha S. Berzon, Richard C. Tallman, and
             Morgan Christen, Circuit Judges.

                    Opinion by Judge Berzon


                          SUMMARY **


      Procedural Due Process/Prisoner Civil Rights

    The panel reversed the district court’s dismissal of a
complaint for failure to state a claim, and remanded, in a 

 action brought by Stephen Redd, a California
state prisoner sentenced to death, alleging that state officials
are violating his procedural due process rights by failing to
appoint postconviction relief counsel as required by
California law.
   In 1997, the same year that a California court sentenced
Redd to death, the California legislature codified a
longstanding judicial rule guaranteeing the appointment of
postconviction relief counsel to indigent prisoners who had
been convicted and sentenced to death. Redd requested the
appointment of postconviction habeas counsel 26 years
ago. No lawyer has been appointed.
    The panel held that Redd has standing because he has
adequately shown that the declaratory relief he seeks would
redress his injuries.



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


    The panel agreed with the district court that abstention
under O’Shea v. Littleton, 

 (1974), as to Redd’s
individual request for declaratory relief was not
appropriate. Providing declaratory relief in this case would
not require the federal court to monitor the substance of
ongoing state criminal proceedings and would allow Reed’s
habeas proceeding to finally move forward.
    Addressing the merits, the panel held that California is
under no federal constitutional obligation to appoint
postconviction counsel for all indigent capital prisoners. But
because California has guaranteed the appointment of such
counsel by statute, Redd stated a viable due process claim by
alleging that he has been deprived of a valuable property
interest for over a quarter century. Because his property
interest claim was legally plausible, the panel reversed the
district court’s dismissal of Redd’s complaint.
    However, the panel held that Redd’s complaint as
presently drafted did not plausibly allege that the state has
failed to adequately protect his liberty interest in petitioning
for habeas corpus. Under Supreme Court precedent, the
absence of appointed counsel, without more, does not
preclude Redd from vindicating his liberty interest in
petitioning for habeas corpus. Redd had not alleged that he
was unable to withdraw his request for appointment of
counsel and instead litigate his habeas petition pro se.
4                     REDD V. GUERRERO


                        COUNSEL

Karim J. Kentfield (argued), Paul D. Meyer, and Lillian J.
Mao, Orrick Herrington & Sutcliffe LLP, San Francisco,
California; Mark S. Davies, Orrick Herrington & Sutcliffe
LLP, Washington, D.C.; Ronald A. McIntire and Taylor R.
Russell, Perkins Coie LLP, Los Angeles, California; for
Plaintiff-Appellant.
Raymond A. Cardozo (argued) and Brian A. Sutherland,
Reed Smith LLP, San Francisco, California; Kasey J. Curtis,
Reed Smith LLP, Los Angeles, California; for Defendants-
Appellees.

OPINION

BERZON, Circuit Judge:

    In 1997, a California court sentenced appellant Stephen
Moreland Redd to death. That same year, the California
legislature codified a longstanding judicial rule guaranteeing
the appointment of postconviction relief counsel to indigent
prisoners who had been convicted and sentenced to death.
See Cal. Gov’t. Code § 68662(a), added by Cal. Stats. 1997,
ch. 869, sec. 3 (Senate Bill No. 513); see also 

(b). Redd requested the appointment of
postconviction habeas counsel 26 years ago. To this day, no
lawyer has been appointed.
    Redd filed this action under 

, claiming
that by failing to appoint counsel as promised and so
preventing him from developing and prosecuting his state
habeas corpus petition for over two decades, state officials
                       REDD V. GUERRERO                       5


are violating his procedural due process rights. He alleges
that in the interim, “numerous witnesses” have died and
other critical evidence has been lost or destroyed. The delay
has “adversely affected his ability” to present claims that
both “his conviction and [his] death sentence are unlawful.”
By undermining his ability to move forward with his state
habeas case, the delay has prevented him from challenging
his conviction in a federal habeas petition. He seeks a
declaration that state officials’ “failure to timely appoint
counsel is in violation” of his due process rights. The district
court dismissed his complaint for failure to state a claim.
    Our central question is whether, based on the
circumstances alleged in Redd’s complaint, it is legally
plausible that he will be able to establish that his 26-year
wait for appointed counsel to litigate his habeas petition
violates the Due Process Clause. California is under no
federal constitutional obligation to appoint postconviction
counsel for all indigent capital prisoners. See Coleman v.
Thompson, 

 (1991); Murray v. Giarratano,

 (1989); Pennsylvania v. Finley, 

 (1987). But because California has guaranteed the
appointment of such counsel by statute, we conclude Redd
has stated a viable due process claim by alleging that he has
been deprived of a valuable property interest for over a
quarter century. As for Redd’s claim that the state has failed
to adequately protect his liberty interest in petitioning for
habeas corpus, we conclude that his complaint as presently
drafted does not plausibly state such a claim. Because his
property interest claim is legally plausible, we reverse the
district court’s dismissal of Redd’s complaint.
6                      REDD V. GUERRERO


    I. Background
     A. California’s Habeas System
    To obtain relief from a criminal conviction in California,
“resort to habeas corpus is . . . required” whenever
“reference to matters outside the record is necessary to
establish that a defendant has been denied a fundamental
constitutional right.” In re Bower, 

(1985). Consequently, challenges to convictions based on
evidence outside the trial record—including claims based on
ineffective assistance of counsel, newly discovered
evidence, or reliance on false evidence at trial (see 

)—ordinarily can be brought only in
postconviction habeas. See People v. Mendoza Tello, 

 (1997); Bower, 

. And
because a prisoner generally must exhaust his claims in state
court before presenting them in a federal habeas petition,
exhaustion of the state’s habeas process is usually a
prerequisite to filing a federal habeas petition based on the
same alleged constitutional violations. See O’Sullivan v.
Boerckel, 

 (1999); 

(b)(1)(A), (c).
    Concomitantly, California law guarantees the right of “a
person unlawfully imprisoned or restrained of their liberty”
to challenge the lawfulness of their conviction by seeking
habeas corpus relief in state court. 

;
see also Cal. Const., art. I, § 11; 

. “If
no legal cause is shown for [the] imprisonment or restraint,”
the court “must discharge” the habeas petitioner from the
challenged custody or restraint. 

. To
permit federal habeas relief, a state habeas petition must
ordinarily be filed within one year after a criminal judgment
becomes final. See In re Morgan, 

, 939
                             REDD V. GUERRERO                           7


(2010). The reason is that a federal habeas petition is subject
to a one-year limitations period, but that period is tolled as
long as a state habeas petition is pending. See 

(d)(1)(A), (d)(2).
    As part of the right to seek habeas relief, California law
guarantees the appointment of state habeas counsel for
indigent death row prisoners. California Government Code
section 68662 provides that the “superior court that imposed
the sentence shall offer to appoint counsel to represent a state
prisoner subject to a capital sentence for purposes of state
postconviction proceedings” and “shall enter an order”
appointing such counsel “upon a finding that the person is
indigent and has accepted the offer to appoint counsel or is
unable to competently decide whether to accept or reject that
offer.” Cal. Gov’t Code § 68662(a) (emphasis added); see
also 

(b) (“After the entry of a
judgment of death in the trial court, that court shall offer
counsel to the prisoner as provided in Section 68662 of the
Government Code.”). 1


1
    Section 68662, in full, reads:
           The superior court that imposed the sentence shall
           offer to appoint counsel to represent a state prisoner
           subject to a capital sentence for purposes of state
           postconviction proceedings, and shall enter an order
           containing one of the following:
                (a) The appointment of one or more counsel to
           represent the prisoner in proceedings pursuant to
           Section 1509 of the Penal Code upon a finding that the
           person is indigent and has accepted the offer to appoint
           counsel or is unable to competently decide whether to
           accept or reject that offer.
                (b) A finding, after a hearing if necessary, that the
8                       REDD V. GUERRERO


    As amended in 2016, the California Penal Code imposes
a duty on superior courts to conduct capital habeas review
proceedings “as expeditiously as possible, consistent with a
fair adjudication,” and requires the superior courts to
“resolve the initial petition within one year of filing unless
the court finds that a delay is necessary to resolve a
substantial claim of actual innocence, but in no instance shall
the court take longer than two years to resolve the petition.”

(f); see also Cal. Prop. 66, the Death
Penalty Reform and Savings Act of 2016 (Gen. Elec. (Nov.
8, 2016) § 6).
    Consistent with the statutory requirements that counsel
be appointed “upon [the requisite] finding[s]” and that
habeas petitions be determined expeditiously, the California
Supreme Court has directed “expeditious appointment” of
habeas counsel in capital cases “to investigate potential
claims for relief and to prepare a habeas corpus petition at
roughly the same time that appellate counsel is preparing an
opening brief on appeal.” Morgan, 

. To
achieve this goal, said the court, habeas counsel “[i]deally”
should be appointed “shortly after an indigent defendant’s
judgment of death.” 

 Similarly, the California Supreme
Court’s policies concerning capital cases provide that
counsel should be appointed “simultaneously with the
appointment of appellate counsel or at the earliest
practicable time thereafter.” Cal. Sup. Ct., Policies
Regarding Cases Arising from Judgments of Death, Policy
3,     std.     2-1     (amended       Feb.    4,      1998),

       prisoner rejected the offer to appoint counsel and made
       that decision with full understanding of the legal
       consequences of the decision.
            (c) The denial to appoint counsel upon a finding
       that the person is not indigent.
                      REDD V. GUERRERO                       9


https://www.courts.ca.gov/documents/Policies_Regarding_
Cases_Arising_from_Judgments_of_Death.pdf; see also 

Policy 3, std. 1–1.1 (amended Nov. 30, 2005).
    Once capital habeas counsel is appointed, a petition must
generally be filed within one year of the appointment. 

(c). But because many capital prisoners,
like Redd, in actuality wait years for the appointment of
habeas counsel, the California Supreme Court has a
“practice of deferring consideration of cursory habeas
petitions filed by unrepresented defendants,” recognizing
that so long as the petitions remain pending, the one-year
limitations period for federal habeas petitions is tolled.
Morgan, 50 Cal. 4th at 937–39 & n.5, 941. Once appointed,
counsel may investigate the prisoner’s claims and then
amend the “shell petition.” 

.
    In contrast to California law mandating the appointment
of postconviction counsel for indigent capital prisoners,
there is no federal constitutional right to habeas counsel.
Finley declined to recognize a constitutional right to counsel
for prisoners mounting collateral attacks on their
convictions. 48 U.S. at 555. Murray extended Finley to
capital prisoners, concluding that due process does not itself
require the assistance of counsel in postconviction
proceedings for individuals sentenced to death. 

. And Coleman, another capital case, cited Finley for the
proposition that “[t]here is no constitutional right to an
attorney in state post-conviction proceedings,” but left open
the question of whether there might be such a right in “cases
where state collateral review is the first place a prisoner can
present a challenge to his conviction.” 

.
10                        REDD V. GUERRERO


     B. Redd’s Claims
    Redd alleges that, despite the California Supreme
Court’s directive that counsel in capital cases be appointed
“expeditious[ly],” Morgan, 

, he has been
waiting for an appointed counsel for more than a quarter
century. He was convicted of first-degree murder, attempted
murder, second-degree robbery, and second-degree
commercial burglary, and sentenced to death, in 1997. After
his conviction, the California Supreme Court found that he
was indigent and appointed him counsel for his direct
appeal; it did not appoint habeas counsel at that time.
    Redd lost his direct appeal in 2010. Since that time,
Redd has written letters to the California Supreme Court
requesting appointment of habeas counsel. Also in 2010, the
California Appellate Project, a non-profit organization that
assists indigent prisoners facing execution, see Morgan, 

, filed a placeholder “shell” habeas
petition on Redd’s behalf. 2
   According to the First Amended Complaint (or
“complaint”), 3 Redd is one of more than 363 people on death
row in California awaiting the appointment of habeas
counsel. At the time Redd filed the complaint, 130 of those

2
 Redd’s original pro se complaint in this case alleged that the California
Supreme Court “refuses to file pro se briefs” and that he attempted
unsuccessfully to file a pro se motion to recall the remittitur in
connection with his direct appeal. The currently operative First
Amended Complaint does not repeat these allegations.
3
  Because this appeal comes to us from the district court’s grant of a
motion to dismiss for failure to state a claim, we construe the complaint
in the light most favorable to Redd and assume the facts alleged in his
complaint are true. See Gilstrap v. United Air Lines, Inc., 

,
998 n.1 (9th Cir. 2013).
                      REDD V. GUERRERO                      11


individuals had been waiting between 15 and 25 years from
the time they were sentenced for the appointment of counsel.
     Redd alleges that “[u]pon the entry of judgment” in
1997, he was entitled under state law to state-appointed
counsel for his habeas proceedings. More than two decades
after his death sentence, and despite having been found
indigent by the California Supreme Court and having asked
for appointment of counsel, Redd continues to await the
appointment of counsel to represent him in his habeas
proceedings. This delay “has significantly and adversely
affected his ability to develop, present, and prove claims that
his conviction and death sentence are unlawful.” In the
interim, numerous witnesses have died and others “with
critical information have become infirm or impaired or have
had substantial memory loss,” and important “documents
and other exculpatory evidence have been lost or destroyed.”
Because he must first exhaust his claims in state court before
filing a federal habeas petition, see O’Sullivan, 

, the delay has also harmed Redd’s ability to pursue
federal habeas relief.
     Redd’s complaint names as defendants the justices of the
California Supreme Court and the judges of the California
Superior Courts (together, “State Officers”), based on their
duties as court administrators. Redd alleges that the State
Officers are responsible for appointing habeas counsel but
“have refused to appoint in a timely manner” the counsel to
which he is entitled under state law. He also alleges that the
State Officers have not promulgated adequate rules
providing for compensation of capital habeas counsel or for
reimbursing them for necessary litigation expenses, and they
have “fail[ed] to provide sufficient compensation and
litigation expenses to attract private counsel to accept such
appointments.” According to Redd, the failure to appoint
12                        REDD V. GUERRERO


qualified capital habeas counsel is due to “underfunding of
the capital defense program” and a “serious shortage of
qualified . . . counsel willing to accept [] appointment[s] as
habeas corpus counsel in a death penalty case.” Redd seeks
a declaration that California’s failure to timely appoint state
habeas counsel is depriving him of liberty and property
interests without due process of law.
    Redd brought the suit on his own behalf and also as a
putative class action on behalf of all other indigent capital
prisoners in California who have been deprived of the timely
appointment of state habeas counsel. As the district court
dismissed his complaint, his case never proceeded to the
class certification stage. We therefore consider in this
opinion only Redd’s own due process claim, not that of any
other death row prisoner whose state habeas petition has
been delayed pending appointment of habeas counsel. 4
     C. Procedural History
    In 2013, Redd filed a pro se federal petition for a writ of
habeas corpus challenging his conviction. The district court
dismissed that petition for failure to exhaust state law
remedies. This Court declined to issue a certificate of
appealability, and Redd filed a petition for a writ of certiorari
in the U.S. Supreme Court. The Supreme Court denied
Redd’s petition. Redd v. Chappell, 

 (2014).
In a statement respecting the denial of certiorari, Justice
Sotomayor, joined by Justice Breyer, suggested that Redd
“might seek to bring a 

 suit contending the
State’s failure to provide him with the counsel to which he

4
  The complaint also alleges that California’s delay in appointing state
habeas counsel violates Redd’s right to access the courts under the First,
Fifth, and Fourteenth Amendments. Redd has not challenged on appeal
the district court’s dismissal of that claim.
                      REDD V. GUERRERO                      13


is entitled violates the Due Process Clause.” 

 (Sotomayor,
J., respecting the denial of certiorari).
    Following Justice Sotomayor’s suggestion, Redd filed a
pro se section 1983 complaint in district court. The court
dismissed that complaint sua sponte for failure to state a
claim. Redd appealed. This Court appointed pro bono
counsel and granted Redd’s unopposed motion to vacate the
district court’s dismissal and remand to the district court
with instructions to give him leave to amend his complaint.
Through counsel, Redd then filed the amended complaint in
2019.
   D. District Court Decision
    The State Officers moved to dismiss Redd’s complaint
for lack of standing, on abstention grounds, and for failure
to state a claim. The district court granted the motion on the
ground that the complaint failed to state a claim. Redd v.
California Supreme Ct., No. CV161540DMGPJWX, 

, at *8–10 (C.D. Cal. Mar. 31, 2021).
    The court first rejected the State Officers’ argument that
Redd lacks standing because his injury is not fairly traceable
to their conduct or redressable by a judgment against them.

 at *4–6. The court concluded that although the California
legislature, rather than the State Officers, is responsible for
funding state habeas counsel, the State Officers “have the
ability to provide guidance for the hourly rate to be paid to
habeas counsel, provide a different maximum for litigation
expenses, allocate additional funds for habeas counsel from
their own budget, provide additional resources to the
14                        REDD V. GUERRERO


[Habeas Corpus Resource Center] 5, or otherwise attract
qualified counsel.” 

. Redd therefore showed that
success against the State Officers “would increase the
likelihood that his injury would be directly redressed, at least
in part.” 

.
    The district court next rejected the State Officers’
argument that the court must abstain under the equitable
doctrine set forth in O’Shea v. Littleton, 

(1974). Redd, 

, at *6–7. Under O’Shea,
federal courts abstain from ruling on the merits of a claim
where the court would have to “monitor the substance of
individual cases on an ongoing basis to administer its
judgment.” Courthouse News Serv. v. Planet, 

 (9th Cir. 2014). The district court concluded that,
although Redd brings a systemic challenge to California’s
system of appointing state habeas counsel, he seeks “a
bright-line     declaration     that the    system[]    [is]
unconstitutional.” Redd, 

, at *7.
Awarding him declaratory relief, said the court, would “not
require intensive continued intervention by federal courts
into state judicial affairs.” 

 6



5
 The Habeas Corpus Resource Center is a state entity established by the
California legislature to represent indigent capital prisoners in
postconviction matters. See Morgan, 

; Cal. Gov’t Code
§ 68661.
6
  The district court also rejected the State Officers’ assertion that the
Eleventh Amendment bars Redd’s claims, as Redd’s lawsuit is an Ex
parte Young action “seeking only prospective declaratory or injunctive
relief against state officers in their official capacities.” Redd, 

, at *7 (quoting L.A. Cnty. Bar Ass’n v. Eu, 

(9th Cir. 1992)). The State Officers do not raise their Eleventh
Amendment argument on appeal.
                       REDD V. GUERRERO                      15


     On the merits, the district court concluded that Redd
lacks a constitutionally protected liberty interest in
California’s appointment of habeas counsel and so failed to
state a cognizable procedural due process claim. Id. at *9.
The court recognized that a state statute may create a
protected liberty interest if the statute contains “(1)
‘substantive predicates’ governing official decisionmaking,
and (2) ‘explicitly mandatory language’ specifying the
outcome that must be reached if the substantive predicates
have been met.” Id. at *8 (quoting Bonin v. Calderon, 

 (9th Cir. 1995)). And the court concluded that
California Government Code section 68662 met those
prerequisites, as it mandates the appointment of counsel as
long as a capital prisoner is indigent and accepts an offer for
counsel. 

 But, the court explained, Redd had no liberty
interest in the appointment of counsel because the right to
state-appointed habeas counsel is only a “state procedural
right which is itself designed to facilitate the protection of
more fundamental substantive rights.”             Id. at *9.
“California’s appointment of counsel,” the district court
reasoned, “is designed to protect Plaintiff’s right to present
a habeas petition, not to create a ‘substantive end’ in itself.”
Id. (quoting James v. Rowlands, 

 (9th Cir.
2010)).
   Redd timely appealed.
 II. Discussion
   A. Redressability
   In the district court, the State Officers contended that
Redd lacks standing because his injury is not redressable by
a decision in its favor. They do not renew their standing
argument on appeal. We agree with the district court that
Redd has standing.
16                      REDD V. GUERRERO


     To establish constitutional standing, Redd must show he
“has suffered an ‘injury in fact,’ that the injury is ‘fairly
traceable’ to the conduct at issue in the plaintiff’s claim, and
that ‘it is likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.’” Ctr. for
Biological Diversity v. Exp.-Imp. Bank of the U.S., 

 (9th Cir. 2018) (quoting Friends of the Earth,
Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 

, 180–
81 (2000)). “[T]he ability ‘to effectuate a partial remedy’
satisfies the redressability requirement.” Uzuegbunam v.
Preczewski, 

 (2021) (quoting Church of
Scientology of Cal. v. United States, 

 (1992)).
“The party invoking federal jurisdiction bears the burden of
establishing these elements . . . with the manner and degree
of evidence required at the successive stages of the
litigation.” Lujan v. Defs. of Wildlife, 

(1992).
    The district court correctly concluded, for purposes of
this early stage of the litigation, that it is likely that a decision
in Redd’s favor would redress his injury. Redd alleges that
the state has unlawfully delayed appointing him habeas
counsel, and that he has been injured by that delay. He
requests a declaratory judgment that the state’s failure to
timely appoint him counsel violates his procedural due
process rights.
    Should he ultimately prevail in obtaining that
declaration, it would likely redress his injury. Declaratory
relief has “the force and effect of a final judgment.” Steffel
v. Thompson, 

 (1974) (citation omitted).
Once a court issues a declaratory judgment, that order
effectuates a change in the legal status between the parties
such that “ ‘the practical consequence of that change would
amount to a significant increase in the likelihood’ ” that the
                       REDD V. GUERRERO                      17


plaintiff “ ‘would obtain relief that directly redresses the
injury suffered.’ ” Reed v. Goertz, 

 (2023)
(quoting Utah v. Evans, 

 (2002)).
     In Reed, for example, a Texas prisoner filed a section
1983 action claiming that the state’s postconviction DNA-
testing procedures violated procedural due process. Id. at
233. A state court had denied his motion for DNA testing of
evidence based on a strict state law chain-of-custody
requirement. Id. The “only relief” sought was “a declaration
that the [state court’s] interpretation and application of state
law was unconstitutional.” Id. at 238, 245 (Thomas, J.,
dissenting); see id. at 234 (majority opinion). The Supreme
Court held that a declaratory judgment against the state
prosecutor would redress the state’s denial of DNA testing.
Id. at 234 (majority opinion). The declaration sought “would
eliminate the state prosecutor’s justification for denying
DNA testing” and make it “‘substantially likely’ that the
state prosecutor would abide by such a court order.” Id.
(quoting Utah, 

).
    Similarly, in Franklin v. Massachusetts, 

(1992) (plurality), Massachusetts and two of its residents
challenged the legality of a census-counting method that
impacted the apportionment of state seats in the U.S. House
of Representatives; the plaintiffs hoped that recalculation
would lead to the assignment of an additional representative
to Massachusetts. See 

; see also Utah, 536 U.S. at
459–60, 463–64. Franklin concluded that the plaintiffs’
injury “is likely to be redressed by declaratory relief against
the Secretary alone.” 

. Although “the
President and other executive and congressional officials”
with authority over reapportionment “would not be directly
bound by such a determination,” the Supreme Court
“assume[d] it is substantially likely” that those officials
18                    REDD V. GUERRERO


“would abide by an authoritative interpretation of the census
statute and constitutional provision by the District Court.”

 Utah reaffirmed Franklin’s redressability holding on
similar facts, concluding that “a declaration” would “lead[]”
the Secretary to issue a new report, making it “substantially
likely” that other officials would abide by the court’s
decision. Utah, 536 U.S. at 463–64 (quoting in part
Franklin, 

).
    Here, there’s no question that the State Officers have the
authority and the duty to appoint habeas counsel to an
individual indigent capital prisoner like Redd, once
requested. See Cal. Gov’t Code § 68662(a); 

(b). In addition, Redd alleges that the State Officers
could have taken action that would have reduced the delay
in appointment of counsel but failed in their responsibility to
do so. Under California law, superior court judges are
responsible for “develop[ing] and implement[ing] a plan to
identify and recruit qualified counsel who may apply to be
appointed” to represent indigent capital prisoners. Cal. R.
Ct. 4.562(f). They have authority to appoint as habeas
counsel qualified private attorneys, attorneys from a public
defender’s office, or attorneys from the Habeas Corpus
Resource Center. Cal. Gov’t Code § 68661(a); see also Cal.
R. Ct. 4.561(e)(2). Further, the superior courts are
authorized to provide for the appointment of qualified
attorneys who are not members of the statewide panel of
attorneys qualified to represent persons in death penalty-
related habeas proceedings. See Cal. R. Ct. 4.562(g). In
addition, the California Supreme Court is charged, along
with the California Judicial Council, with adopting “binding
and mandatory competency standards for the appointment of
counsel in death penalty” habeas proceedings and must
“reevaluate the standards as needed to ensure” competent
                       REDD V. GUERRERO                       19


counsel and “to avoid unduly restricting the available pool
of attorneys so as to provide timely appointment.” Cal.
Gov’t Code § 68665(a), (b). Also, the Chief Justice of the
California Supreme Court “may allocate funding
appropriated” for the Supreme Court’s annual budget to the
Habeas Corpus Resource Center. Cal. R. Ct. 10.101(c)(2).
And the California Supreme Court has the authority to set
policy for compensation and payment of litigation expenses
for appointed habeas counsel. Cal. Gov’t Code § 68666. So,
as the district court found, the State Officers “have the ability
to provide guidance for the hourly rate to be paid to habeas
counsel, provide a different maximum for litigation
expenses, allocate additional funds for habeas counsel from
their own budget, provide additional resources to the
[Habeas Corpus Resource Center], or otherwise attract
qualified counsel.” Redd, 

, at *5.
    Finally, Redd’s showing of redressability is not
undermined by his allegations that a shortage of qualified
attorneys willing to accept appointment as capital habeas
counsel and the underfunding of the capital indigent
representation program have contributed to the delays. As
noted, the State Officers are obligated to ensure that the
qualification standards they set do not “unduly” restrict the
pool of attorneys. Cal. Gov’t Code § 68665(b). Nor does
the fact that the State Officers may not have unlimited
financial resources to draw from when taking action
consistent with any declaratory judgment preclude a finding
of redressability. Moreover, “[a] case [against government
officials] seeking prospective relief . . . can’t be dismissed
simply because there is a shortage of resources.” Peralta v.
Dillard, 

 (9th Cir. 2014); see Watson v.
City of Memphis, 

 (1963) (“[I]t is obvious
that vindication of . . . constitutional rights cannot be made
20                       REDD V. GUERRERO


dependent upon any theory that it is less expensive to deny
than to afford them.”).
    At this stage of the litigation, we conclude Redd has
adequately shown that the declaratory relief he seeks would
redress his injuries. If the case progresses to the summary
judgment stage, he will have to “offer evidence and specific
facts demonstrating each element” of standing, including
redressability. Ctr. for Biological Diversity, 

.
     B. Abstention
    The State Officers argue that we should affirm the
dismissal of Redd’s suit on the ground that the district court
should have abstained under O’Shea. Because Redd’s action
never proceeded to the class certification stage, we deal only
with his individual claims; whether abstention would be
appropriate at the class certification stage is not before us
and would likely be a considerably more viable contention.
As to Redd’s individual claims, although the State Officers’
federalism and comity concerns are surely significant,
ultimately we agree with the district court that O’Shea
abstention is not appropriate here. 7
                                  1.
    O’Shea abstention is one exception to the “virtually
unflagging obligation” of federal courts “to exercise the
jurisdiction given them.” Colo. River Water Conservation
Dist. v. United States, 

 (1976). O’Shea

7
  As the parties correctly note, the standard of review for the district
court’s O’Shea abstention is “unsettled.” Courthouse News, 

. We need not resolve whether the applicable standard is de novo or
abuse of discretion review; under either standard, we conclude, the
district court properly declined to abstain under O’Shea.
                       REDD V. GUERRERO                        21


held that “the need for a proper balance in the concurrent
operation of federal and state courts counsels restraint
against the issuance of injunctions against state officers
engaged in the administration of the State’s criminal laws in
the absence of a showing of irreparable injury which is ‘both
great and immediate.’” 

 (quoting Younger v.
Harris, 

 (1971)).
    O’Shea involved a class action lawsuit brought by civil
rights activists alleging that the state prosecutor, local police,
and state judges had engaged in a pattern of discriminatory
criminal prosecutions in retaliation for the plaintiffs’
activism. 414 U.S. at 490–92. The activists sought an
injunction to prevent the judicial defendants from engaging
in certain unlawful practices, including setting bond without
regard for individualized facts, imposing harsher sentences
based on race, and requiring class members to pay for costs
associated with their jury trials. 

    In concluding in O’Shea that abstention was appropriate,
the Supreme Court noted that the plaintiffs there did “not
seek to strike down a single statute” but rather sought “an
injunction aimed at controlling or preventing the occurrence
of specific events that might take place in the course of future
state criminal trials.” Id. at 500. The relief sought, said the
Court, “contemplate[d] interruption of state proceedings to
adjudicate assertions of noncompliance by petitioners” and
would constitute “nothing less than an ongoing federal audit
of state criminal proceedings.” Id. at 500–01. The Court’s
concern in O’Shea, then, was that the requested injunction
“would disrupt the normal course of proceedings in the state
courts via resort to the federal suit for determination of the
claim ab initio.” Id. at 501.
22                      REDD V. GUERRERO


    O’Shea abstention has proved exceedingly rare. 8 We
have abstained under O’Shea only “where the relief sought
would require the federal court to monitor the substance of
individual cases on an ongoing basis to administer its
judgment.” Courthouse News, 

. Whether
O’Shea abstention applies depends on the degree to which
awarding relief in federal court would interfere intrusively
in the state’s administration of its judicial system going
forward. 

 at 789–90. Accordingly, O’Shea is not
implicated when a plaintiff’s only requested remedy is a
“bright-line finding” that the defendant’s action is unlawful,
as such a finding does not require “the ongoing monitoring
of the substance of state proceedings.” 

; see also
Arevalo v. Hennessy, 

, 766 n.2 (9th Cir. 2018).
     For example, Los Angeles County Bar Association v. Eu,

 (9th Cir. 1992), held that a lawsuit alleging that
“delays in Los Angeles Superior Court deprive[d] litigants
of their rights to due process and equal protection” did not
call for abstention under O’Shea. 

 at 702–04. There, the
Los Angeles County Bar Association sought a declaration
that a California statute prescribing the number of state
superior court judges was unconstitutional because it created
a shortage of judges, causing “inordinate delays in civil
litigation.” 

 at 699–700. Eu held that the “case [wa]s a
proper one for the exercise of our declaratory jurisdiction.”

 at 703–04. We reasoned that the case did not require
“[f]urther factual development” concerning the details of
particular state court cases, and a bright-line declaration of

8
  We are aware of just two published cases in which we have concluded
that abstention was proper under O’Shea: E.T. v. Cantil-Sakauye, 

 (9th Cir. 2012) (per curiam), and Miles v. Wesley, 

 (9th Cir. 2015). We discuss these cases in greater detail below.
See infra, Section II.B.3.
                      REDD V. GUERRERO                     23


the statute’s unconstitutionality “would resolve a substantial
and important question currently dividing the parties.” 

 at
703–04. As we later explained, “O’Shea did not apply” in
Eu “because once the question of the number of judges was
settled, ‘supervision of the state court system by federal
judges’ would not be required.” Miles, 

(quoting Eu, 979 F.2d at 703).
    Similarly, Courthouse News held that O’Shea did not
require abstention from a news organization’s lawsuit
seeking declaratory and injunctive relief ordering the clerk
of the Ventura County Superior Court to provide the
organization with same-day access to newly filed civil
complaints. 

. The requested relief was
“more akin to the bright-line finding” approved in Eu
because, to “determine whether the Ventura County Superior
Court is making complaints available the day they are filed,
a federal court would not need to engage in” any “intensive,
context-specific legal inquiry.” 

. Courthouse News
explained that the “federal courts would not need to
‘examin[e] the administration of a substantial number of
individual cases’ to assess whether the Ventura County
Superior Court is adopting” adequate methods for
compliance. 

 (alteration in original) (quoting E.T., 

). The fact that “some additional litigation may
later arise” to enforce a federal court injunction did “not
itself justify abstaining.” Id. at 792.
                              2.
    We are mindful that this case does implicate the delicate
balance “between federal equitable power and State
administration of its own law.” O’Shea, 

(quoting Stefanelli v. Minard, 

 (1951).
Redd sues state judicial officers, albeit in their
24                     REDD V. GUERRERO


administrative roles, and alleges profound problems with
California’s promise of postconviction habeas counsel for
indigent capital prisoners.
    But Redd requests less intrusive relief than that requested
in Eu or Courthouse News, in which we concluded it was
appropriate to exercise jurisdiction. At this stage of his case,
we are dealing with only his individual request for
declaratory relief rather than any systemic remedy: Redd
seeks a declaration that the State Officers have violated his
individual procedural due process rights by failing to appoint
him habeas counsel for 26 years.
    As only declaratory relief is sought, the district court, if
it grants such relief, will have no occasion by virtue of that
relief alone to further involve itself in the state officials’
appointment of habeas counsel for Redd. So the central
concern of O’Shea abstention—whether “the relief sought
would require the federal court to monitor the substance of
individual cases on an ongoing basis,” Courthouse News,
750 F.3d at 790—is not implicated.
    True, declaration in hand, Redd could seek an injunction
in federal or state court mandating that he be appointed
counsel. In the context of a different abstention doctrine, see
Younger, 

, the Supreme Court has stated that
“declaratory relief alone has virtually the same practical
impact as a formal injunction would,” Samuels v. Mackell,

 (1971). Noting that “a declaratory judgment
issued while state proceedings are pending might serve as
the basis for a subsequent injunction against those
proceedings to ‘protect or effectuate’ the declaratory
judgment,” 

 Samuels held that for purposes of assessing
the intrusiveness of injunctive and declaratory relief aimed
at enjoining pending criminal proceedings, “the same
                         REDD V. GUERRERO                          25


equitable principles relevant to the propriety of an injunction
must be taken into consideration by federal district courts in
determining whether to issue a declaratory judgment,” 

. Samuels also recognized, however, that “[t]here may be
unusual circumstances in which an injunction might be
withheld because, despite a plaintiff’s strong claim for relief
under the established standards, the injunctive remedy
seemed particularly intrusive or offensive; in such a
situation, a declaratory judgment might be appropriate.” 

.
    Three years later, Steffel considered whether abstention
was appropriate where no criminal prosecution was pending
and the plaintiff sought only declaratory relief. 415 U.S. at
462–63. In holding that abstention was not required, the
Court explained that “even though a declaratory judgment
has the force and effect of a final judgment, . . . it is a much
milder form of relief than an injunction. Though it may be
persuasive, it is not ultimately coercive; noncompliance with
it may be inappropriate, but is not contempt.” 

 at 471–72
(citations and internal quotation marks omitted); see also id.
at 466 (explaining that “declaratory relief . . . [is] an
alternative to the strong medicine of the injunction”). Steffel
held that “[w]hen no state prosecution is pending,” it is error
to “treat[] [] requests for injunctive and declaratory relief as
a single issue.” Id. at 462–63.
    Here, no state criminal prosecution is pending, and Redd
makes no request for injunctive relief; nor does he seek to
block any state proceedings. 9 To the contrary, he seeks relief

9
   The State Officers, understandably, do not contend that Younger
abstention is applicable here. “The Supreme Court [has] firmly cabined
the scope of the [Younger] doctrine.” Applied Underwriters, Inc. v.
26                         REDD V. GUERRERO


that would allow his state habeas petition to finally go
forward. And a declaration that he has a right to be
appointed counsel promptly would not result in ongoing
interference with “the daily conduct of state criminal
proceedings,” O’Shea, 

, or with his state
habeas proceedings. Should Redd later seek an injunction,
the district court then could, and should, consider carefully
whether comity concerns counsel against such an injunction,
especially if no attempt were first made to obtain relief in
state court based on the federal declaratory relief. Because
no request for injunctive relief is before us, however, we

Lara, 

 (9th Cir. 2022). The Younger doctrine applies
where the federal plaintiff seeks to “stay or enjoin” a pending state
criminal prosecution or certain government-instigated state civil
enforcement proceedings and other threshold requirements are satisfied.
See, e.g., Younger, 

 (holding that it was improper for the
district court in that case to enjoin a state prosecution against Younger,
in light of “the national policy forbidding federal courts to stay or enjoin
pending state court proceedings except under special circumstances”);
Gilbertson v. Albright, 

 (9th Cir. 2004) (en banc)
(explaining that Younger applies in noncriminal cases “[i]f a state-
initiated proceeding is ongoing”); AmerisourceBergen Corp. v. Roden,

 (9th Cir. 2007) (same); see also Credit One Bank,
N.A. v. Hestrin, 

, 1225 (9th Cir. 2023) (explaining that
Younger abstention applies only, inter alia, where “the requested relief
seeks to enjoin or has the practical effect of enjoining the ongoing state
judicial proceeding”) (citation and internal quotation marks omitted). (In
a third category of cases, Younger applies where the federal litigant seeks
to negate certain state court orders issued in a civil proceeding. Applied
Underwriters, 

, 590 n.4.) Even where a state criminal
prosecution is pending, “Younger abstention is not appropriate” where
the federal constitutional question raised in the federal action “is separate
from the state prosecution, and would not interfere with those
proceedings.” Arevalo, 

. Here, the only pending state
proceeding is a habeas petition, initiated by Redd, and his goal is to allow
that proceeding to progress, rather than to block it. Younger therefore
has no application to this case.
                       REDD V. GUERRERO                        27


need not decide that question here. See Steffel, 

 (explaining that the propriety of injunctive relief was “a
question we need not reach today since petitioner has
abandoned his request for that remedy”).
    Aside from the nature of the relief sought, the district
court’s exercise of jurisdiction over Redd’s claims is no
more disruptive than the adjudication of other cases
involving claims that state postconviction or other
procedures violate due process. For example, in Coe v.
Thurman, 

 (9th Cir. 1990), a habeas case, we
held that a four-year delay in a California prisoner’s criminal
appeal violated due process and remanded with instructions
to the district court to order the petitioner’s release unless his
appeal was heard within 90 days. 

 at 531–32. Dist.
Attorney’ s Off. for Third Jud. Dist. v. Osborne, 

(2009), similarly, resolved the merits of a section 1983
challenge to Alaska postconviction procedures for obtaining
DNA evidence. 

, 67–71. The Supreme Court
ultimately concluded that the plaintiff had not established a
due process violation. 

 at 69–71. In so doing, the Court
took into account federalism concerns in its merits analysis,
explaining that “[f]ederal courts may upset a State’s
postconviction relief procedures only if they are
fundamentally inadequate to vindicate the substantive rights
provided.” 

. See also, e.g., Skinner v. Switzer, 

, 525 (2011) (holding that a state prisoner’s
“postconviction claim for DNA testing is properly pursued
in a § 1983 action”); Morrison v. Peterson, 

,
1064–65 (9th Cir. 2015) (holding, in a section 1983
challenge to California’s postconviction DNA procedures,
that the prisoner had a state law “liberty interest in
demonstrating his innocence with new evidence . . . . because
California law provides a right to be released from custody
28                     REDD V. GUERRERO


pursuant to a writ of habeas corpus when there is no legal
cause for imprisonment”) (internal quotation marks and
citation omitted). More recently, in the civil context, we
considered whether a California insurance indemnity statute
violated a state court litigant’s due process right to retain
counsel, rejecting the challenge on the merits. See Adir Int’l,
LLC v. Starr Indem. & Liab. Co., 

 (9th
Cir. 2021).
    Likewise, the federal courts have long adjudicated
claims that state procedures for protecting state-created
property interests are inadequate under the federal
Constitution. See, e.g., Goss v. Lopez, 

, 577–
84 (1975) (holding that Ohio’s public school disciplinary
procedures were insufficient to protect students’ property
interest in public education); Goldberg v. Kelly, 

, 260–61 (1970) (holding that New York hearing
procedures for termination of public benefits violated
procedural due process).
                               3.
    We disagree with the State Officers’ contention that E.T.
and Miles and control the result here. In E.T., a plaintiff class
of foster children alleged that overwhelming caseloads in
Sacramento County dependency courts prevented court-
appointed attorneys from providing effective assistance of
counsel. 

. We explained that, “[b]ecause
the question is one of adequacy of representation,” as
opposed to a bright-line determination like that in Eu,
“potential remediation might involve examination of the
administration of a substantial number of individual cases”
to determine whether the quality of representation in each
case met constitutional standards. 

 (emphasis
added). Providing relief to Redd, by contrast, would require
                      REDD V. GUERRERO                      29


no federal supervision over the quality of representation,
only its provision.
    Miles is likewise inapposite. There, the plaintiffs
challenged, on constitutional and statutory grounds, a plan
by the Los Angeles County Superior Court to reduce the
number of courthouses hearing unlawful detainer cases from
26 neighborhood courthouses to five centrally located “hub”
courts. 

. The plaintiffs sought “an
injunction preventing [the Los Angeles superior courts] from
eliminating even a single courthouse that, prior to the
[state’s] fiscal crisis, heard unlawful detainer actions. They
also request[ed] an order requiring [the superior courts] to
hold public meetings before planning any future unlawful
detainer courtroom closures, and for the district court to
retain jurisdiction for an unspecified period of time to ensure
compliance.” 

. As Miles explained, the relief
requested required “ongoing” interference with the
administration of the state’s judicial system. 

 In light of
the “breadth of Plaintiffs’ requested relief,” Miles concluded
that abstention under O’Shea was appropriate. 

 In so
doing, Miles distinguished Eu on the ground that Eu did not
call for “the use of injunctive power to restructure the state
courts.” 

. The same is true here.
                              4.
    Finally, even if abstention were otherwise appropriate,
we would affirm the district court’s abstention ruling
because O’Shea abstention applies only “in the absence of a
showing of irreparable injury which is ‘both great and
immediate.’” O’Shea, 

 (emphasis added)
(quoting Younger, 

). Here, Redd’s 26-year
delay in the appointment of habeas counsel has indisputably
caused him “great and immediate” irreparable harm. 

30                     REDD V. GUERRERO


According to his complaint, he has waited under a death
sentence without the assistance of counsel in investigating,
developing, and litigating his habeas challenges to his
conviction and his sentence, despite California’s promise of
appointed counsel. During this quarter century, witnesses
have died and valuable memories and evidence have been
lost.
                            ****
    We emphasize that we are permitting Redd’s individual
claim for federal relief to go forward “not without some
trepidation,” Eu, 979 F.2d at 704. But Redd has been
waiting 26 years to litigate his state habeas petition. The
question whether the delay in appointment of habeas counsel
violates his federal due process rights is collateral to, and not
the subject of, his habeas proceeding. Rather than “disrupt
the normal course of proceedings in the state courts,”
O’Shea, 

, appointment of counsel would
allow Redd’s habeas proceeding finally to move forward.
Further, providing declaratory relief as to whether California
has violated Redd’s due process rights by failing to appoint
postconviction counsel for 26 years would not require the
court “to monitor the substance of individual cases on an
ongoing basis.” Courthouse News, 

. And
whether any declaration Redd may obtain draws the line at
the 26-plus year delay he has experienced or at some other
point, the declaration would “serve a useful purpose in
clarifying and settling the legal relations between the
parties.” Eu, 979 F.2d at 703. Should Redd later seek more
intrusive relief in federal court, an O’Shea analysis would
have to be conducted anew and could well come out
differently. For these reasons, the exceedingly compelling
circumstances presented in this case outweigh at this
                          REDD V. GUERRERO                           31


juncture the considerable comity concerns asserted by the
State Officers.
    We therefore decline the State Officers’ invitation to
abstain under O’Shea and proceed to the merits of Redd’s
claims. 10
     C. Procedural Due Process
    To assess Redd’s Fourteenth Amendment procedural
due process claims, we first examine his asserted property or
liberty interests and then consider whether the state’s
procedures were constitutionally sufficient to protect those
interests. See K.W. ex rel. D.W. v. Armstrong, 

,
972–73 (9th Cir. 2015); Zerezghi v. U.S. Citizenship &
Immigr. Servs., 

, 808 (9th Cir. 2020). On
appeal, Redd raises three closely related procedural due
process theories. He asserts that he has both a property
interest and a liberty interest in state-appointed habeas
counsel, both stemming from California’s statutory
guarantee. In addition, Redd contends that he has a liberty
interest in petitioning for habeas corpus, and that, based on
the operation of California’s habeas system, the appointment
of counsel is necessary to protect that liberty interest. We
conclude that Redd has plausibly alleged a violation of his
state-created property interest in the appointment of habeas
counsel, and so do not reach his alternative argument that he
has a liberty interest based on the same statutory guarantee.
As for his liberty interest in petitioning for habeas corpus,
we conclude that his complaint as currently drafted does not
state a claim.


10
  As Redd acknowledges in his briefing, the district court may reassess
whether abstention is appropriate should he seek class certification; we
do not pass on that question.
32                    REDD V. GUERRERO


    We review de novo the district court’s dismissal of
Redd’s complaint for failure to state a procedural due
process claim under Federal Rule of Civil Procedure
12(b)(6). See Boquist v. Courtney, 

, 773 (9th
Cir. 2022). Given that “this case was resolved on a motion
to dismiss for failure to state a claim, the question below was
‘not whether [Redd] will ultimately prevail’ on his
procedural due process claim . . . but whether his complaint
was sufficient to cross the federal court’s threshold.”
Skinner, 562 U.S. at 529–30 (quoting Scheuer v.
Rhodes, 

 (1974) and citing Swierkiewicz v.
Sorema N. A., 

 (2002)). The complaint
need only “contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’”
Boquist, 32 F.4th at 773 (quoting Ashcroft v. Iqbal, 

 (2009)). “[O]nce a claim has been stated
adequately, it may be supported by showing any set of facts
consistent with the allegations in the complaint.” Bell Atl.
Corp. v. Twombly, 

 (2007).
     1. Property Interest in State-Appointed Habeas
        Counsel
    Redd contends that he has a protected, state-created
property interest in state-appointed habeas counsel, and,
because of the exceedingly long delay in appointing counsel,
he has been denied that right without due process. The State
Officers do not dispute that a state’s guarantee of appointed
counsel could constitute a protected property interest,
contending only that Redd has received all the process due
with respect to that interest. We disagree and conclude that
Redd has plausibly alleged a due process claim based on
deprivation of his property interest in state-appointed habeas
counsel.
                       REDD V. GUERRERO                      33


                              (a)
    As an initial matter, Redd did not advance this theory in
district court in opposition to the State Officers’ motion to
dismiss, as the State Officers note. But rather than argue that
we should decline to consider it as a result, the State Officers
in their briefing addressed the issue on the merits. “ ‘[T]his
court will not address waiver if not raised by the opposing
party.’ ” United States v. Doe, 

 (9th Cir.
1995) (quoting United States v. Schlesinger, 

 (9th Cir. 1995)). For this reason, as well as because this
pure legal question has been sufficiently briefed by the
parties, and in light of the extraordinary delay Redd has
already experienced and the injustice that would otherwise
result, we exercise our discretion to resolve the issue. See
Singleton v. Wulff, 

 (1976); Carrillo v.
Cnty. of L.A., 

 (9th Cir. 2015).
                              (b)
    Due process protects property interests “well beyond
actual ownership of real estate, chattels, or money.” Bd. of
Regents of State Colls. v. Roth, 

, 571–72 (1972).
Courts have recognized a range of state-created property
interests protected by due process, including property
interests in utility service, Memphis Light, Gas & Water Div.
v. Craft, 

, 11–12 (1978), public education,
Goss, 

, welfare benefits, Goldberg, 397 U.S.
at 261–63, driver’s licenses, Bell v. Burson, 

 (1971), nursing care, O’Bannon v. Town Ct. Nursing
Ctr., 

 (1980), a cause of action, Logan v.
Zimmerman Brush Co., 

, 429–30 (1982), and a
type of immigration petition, Zerezghi, 955 F.3d at 809. See
also Greene v. Babbitt, 

 (9th Cir. 1995)
(collecting examples). Recognizing such property rights
34                    REDD V. GUERRERO


“protect[s] those claims upon which people rely in their daily
lives, reliance that must not be arbitrarily undermined.”
Roth, 

.
    “The hallmark of property . . . is an individual
entitlement grounded in state law.” Logan, 

;
see also Town of Castle Rock. v. Gonzales, 

,
756–57 (2005). “To have a property interest in a benefit, a
person must ‘have a legitimate claim of entitlement to it,’ not
just ‘an abstract need or desire for it.’” K.W, 

(quoting Roth, 

). We look to “the language
of the statute and the extent to which the entitlement is
couched in mandatory terms” to determine whether state law
gives rise to a protected property interest. Greene, 

; see also Ching v. Mayorkas, 

(9th Cir. 2013).
    By its mandatory language, California law leaves no
discretion to deny habeas counsel to indigent capital
prisoners who opt for appointed counsel. As noted,
California Government Code section 68662(a) provides that
the court “shall enter an order” appointing habeas counsel
for indigent capital prisoners who have accepted the offer to
appoint counsel. See also 

(b).
Accordingly, indigent capital prisoners are “statutorily
entitled to appointed habeas corpus counsel.” Morgan, 

; see also People v. Superior Ct. (Morales), 

 (2017) (indigent prisoners subject to
capital sentences are “entitled to the appointment of habeas
corpus counsel”); In re Sanders, 

 (1999)
(“state law requires appointment of counsel to represent
capital defendants in postconviction proceedings” (emphasis
added)).
                      REDD V. GUERRERO                      35


     Further, the individual statutory right to counsel for
capital habeas petitions directly benefits capital prisoners,
“protect[ing] the[ir] interests . . . by assuring that they are
provided a reasonably adequate opportunity to present []
their habeas corpus claims.” Barnett, 31 Cal. 4th at 475; see
also Morgan, 

; Sanders, 

.
Redd’s entitlement to the appointment of counsel also
resembles more traditional conceptions of property in that
representation by counsel has an “ascertainable monetary
value.” Town of Castle Rock, 545 U.S. at 766–67 (quoting
Thomas W. Merrill, The Landscape of Constitutional
Property, 

, 964 (2000)). Like the state-
created entitlements to public education, nursing care, or
utility service, access to counsel is a valuable service for
which counsel is recompensed. And indeed, in the context
of considering a Takings Clause claim by an attorney
required to donate his services to a court, we have previously
recognized that “there is no question that [an attorney’s]
services constitute private property.” Scheehle v. Justs. of
Supreme Ct. of Ariz., 

, 893 n.6 (9th Cir. 2007).
In sum, California law gives rise to a protected property
interest in appointed counsel.
                              (c)
    The State Officers’ sole contention in response to Redd’s
property interest argument is that because California does
not guarantee the appointment of counsel within a specific
time frame, “under California law, Redd has received
everything to which he is entitled.” We disagree.
    First, contrary to the State Officers’ contention,
California law does direct the appointment of counsel within
a reasonable time, although it does not provide a specific
deadline. California Penal Code section 1509(f) provides
36                        REDD V. GUERRERO


that the superior court must conduct capital habeas review
proceedings “as expeditiously as possible, consistent with a
fair adjudication.” The superior court must likewise act
promptly to appoint habeas counsel. California Penal Code
section 1509(b) requires the superior court to offer to appoint
counsel “[a]fter the entry of a judgment of death in the trial
court.” California Government Code section 68662(a)
further provides that the court “shall enter an order”
appointing habeas counsel for state prisoners subject to death
sentences “upon a finding that the person is indigent and has
accepted the offer to appoint counsel” (emphasis added).
California Government Code section 68662’s timing
requirement is the same, verbatim, as 

(c)(1), which this Court has interpreted to require
“that counsel is to be appointed expeditiously.” Spears v.
Stewart, 

 (9th Cir. 2002); see also
Ashmus v. Calderon, 

 (9th Cir. 1997),
rev’d on other grounds, 

 (1998), vacated, 

 (9th Cir. 1998). 11 This conclusion accords with

11
   Title 

(c)(1) provides that for a state to qualify for
expedited federal habeas review, the state must, inter alia, appoint
counsel to capital prisoners in state postconviction proceedings “upon a
finding that the prisoner is indigent and accepted the offer.” In Ashmus,
this Court held that California’s existing mechanism for the appointment
of counsel to capital prisoners did not comply with 

(c)(1) because “counsel . . . is not appointed until years after a
prisoner accepts the offer of counsel.” Ashmus, 

.
Ashmus held that California’s practice of “tak[ing] years to appoint
counsel” was incompatible with 

(c)(1)’s requirement
that the state provide for appointment of counsel “upon a finding that the
prisoner is indigent and accepted the offer.” Ashmus, 

.
  Approximately two months after Ashmus, the state legislature enacted
California Government Code section 68662, adopting the temporal
                           REDD V. GUERRERO                             37


the ordinary temporal meaning of the word “upon,” which is
“on the occasion of,” “at the time of,” “immediately
following on,” or “very soon after.” See Upon, Webster’s
Third New Int’l Dictionary 2518 (1993) (definitions 10a,
10b); see also Upon, Oxford English Dictionary 301 (2d ed.
1989) (definitions 6, “[d]enoting the day of an occurrence,
regarded as a unit of time”; 6b, “[i]n, at, or during (any
period of time)”; 7a, “[o]n the occasion of”; 7b,
“[i]mmediately after; following on”); Olagues v. Perceptive
Advisors LLC, 

, 129 & n. 4 (2d Cir. 2018)
(explaining that when used temporally, “upon” means “on
the occasion of” or “at the time of”).
    Other California statutes and policies reflect the
requirement that capital habeas counsel be appointed in a
timely manner. California Government Code section
68665(b), which directs the California Supreme Court to
adopt competency standards for capital habeas attorneys,
reflects the high court’s obligation to ensure that the
standards it adopts are consistent with its obligation “to
provide timely appointment.” Further, Policy 3 of the
California Supreme Court’s Policies Regarding Cases
Arising from Judgments of Death (amended Jan. 2008)12
provides that the “court’s appointment of habeas corpus
counsel for a person under a sentence of death shall be made

language of 

(c)(1). See Cal. Stats. 1997, ch. 869, sec.
3 (Senate Bill No. 513). In so doing, the legislature aimed to “[p]rovide[]
for legal representation of indigent death row prisoners to reduce the
backlog of capital cases and to begin to comply with federal
requirements for expedited federal habeas corpus procedures.”
California Bill Analysis, Senate Bill No. 513 (Sept. 11, 1997), Cal. Stats.
1997, ch. 869, sec. 3.
12
  Available at
Policies_Regarding_Cases_Arising_from_Judgments_of_Death.pdf.
38                       REDD V. GUERRERO


simultaneously with appointment of appellate counsel or at
the earliest practicable time thereafter.”             Similarly,
California Government Code section 68661(a), which
authorizes the appointment of attorneys employed by the
Habeas Corpus Resource Center to represent capital
prisoners in their habeas proceedings, specifies that “[a]ny
such appointment may be concurrent with the appointment
of . . . counsel for purposes of direct appeal.” Under
California’s system, “the appointment of habeas corpus
counsel should occur shortly after an indigent defendant’s
judgment of death” so that a habeas petition can be prepared
“at roughly the same time that appellate counsel is preparing
an opening brief on appeal.” Morgan, 

; see
also Cal. Sup. Ct., Policies Regarding Cases Arising from
Judgments of Death, Policy 3, std. 1–1.1 (a habeas corpus
petition “will be presumed to be filed without substantial
delay if it is filed within 180 days after the final due date for
the filing of appellant’s reply brief on the direct appeal”).
So, although California law does not impose a fixed deadline
for appointment of counsel, the state’s promise is that habeas
counsel will be appointed expeditiously, and so at a time
when counsel will be useful. 13


13
   In Briggs v. Brown, 

 (2017), the California Supreme
Court considered whether the state legislature’s enactment of two timing
requirements—that “the superior court . . . resolve an initial [habeas]
petition within one year unless a substantial claim of actual innocence
requires a delay” and that every initial habeas corpus proceeding be
completed within two years—violated the state constitution’s separation
of powers doctrine. 

 at 845–46, 849 (discussing deadlines in 

(f)). Briggs held that these habeas processing
deadlines were “merely directory” and therefore did not violate the
separation of powers. 

. Nonetheless, Briggs noted that
                          REDD V. GUERRERO                           39


    Second, and in any event, the State Officers’ contention
that the process for appointing counsel, including its precise
timing, limits the property interest defined by the state
misunderstands the nature of due process protections. State
law creates the property interest, but it is federal
constitutional law that determines the procedures required to
protect that interest. See Logan, 

. A state
“may elect not to confer a property interest,” but “it may not
constitutionally authorize the deprivation of such an interest,
once conferred, without appropriate procedural safeguards.”
K.W., 

 (quoting Cleveland Bd. of Educ. v.
Loudermill, 

 (1985)). “[B]ecause
‘minimum [procedural] requirements [are] a matter of
federal law, they are not diminished by the fact that the State
may have specified its own procedures that it may deem
adequate.’” Logan, 

 (quoting Vitek v. Jones,

 (1980)).
    Here, California law unmistakably confers on Redd—
whom the California Supreme Court found indigent—an
entitlement to have counsel appointed for pursuing his state
habeas petition. See Cal. Gov’t Code § 68662; 

(b). Our question is whether Redd has plausibly
alleged that the state’s deprivation of that interest for two and
a half decades violates due process. Whether the 26-year-
long denial of counsel to Redd complies with state
procedural requirements is beside the point, because the
procedures required by the federal Due Process Clause are a
matter of federal law.



“[l]egislated time limits can establish as a matter of policy that the
proceedings they govern should be given ‘as early a hearing and decision
as orderly procedure . . . will permit.’” 

 (citation omitted).
40                    REDD V. GUERRERO


    In Logan, for example, the plaintiff had a property
interest in using the state’s adjudicatory procedures to
redress employment discrimination. 455 U.S. at 429–30.
Under the applicable state statute, once the plaintiff filed a
discrimination charge, a state commission had 120 days in
which to convene a fact-finding conference. 

 at 424–25.
However, due to inadvertent delay, the commission failed to
schedule the conference within the required timeframe,
resulting in the dismissal of the plaintiff’s claim for lack of
jurisdiction. 

 at 426–27. The Supreme Court held that the
120-day requirement was “a procedural limitation on the
claimant’s ability to assert his rights, not a substantive
element” of his property interest, and held that enforcing the
120-day limit deprived Logan of a federally protected
property interest in the state-created right to have his charge
heard. 

 at 431–33.
    Similarly here, Redd alleges that due to the state’s delay,
his right to appointed counsel has been inadequately
protected. Any timing rule for appointing counsel that
would ratify the state’s 26-year delay is not part of Redd’s
right to appointed counsel, but part of the state’s procedures
for securing that right—procedures that Redd alleges are
inadequate. Cf. Coe, 922 F.2d at 531–32 (holding that the
state’s excessive delay in adjudicating a convicted prisoner’s
appeal violated due process). Put another way, recognizing
that Redd’s federally protected property interest in appointed
counsel is subject to due process protections does not depend
on whether California has mandated a specific deadline for
the appointment of such counsel.
                             (d)
    Our final question is whether Redd has plausibly alleged
that the State Officers have violated the Due Process Clause
                          REDD V. GUERRERO                            41


by depriving him of his property interest without adequate
process. The process required by the Constitution will
depend on “the importance of the private interest and the
length or finality of the deprivation, . . . the likelihood of
government error, . . . . and the magnitude of the government
interests involved.” See Logan, 

 (citing, inter
alia, Mathews v. Eldridge, 

, 334–35 (1976), and
Memphis Light, 

). “[T]he State may not finally
destroy a property interest without first giving the putative
owner an opportunity to present his claim of entitlement.”

     The State Officers do not dispute that, if Redd has a
protected property interest in the appointment of counsel,
then it is legally plausible that the state’s procedures—which
have allegedly deprived him of the assistance of counsel
mandated under state law and prevented him from litigating
his habeas claims for 26 years—are inadequate to protect
that interest. 14 Their silence on this question is unsurprising.
It is more than plausible that the value of Redd’s entitlement
to appointed habeas counsel has significantly diminished
over the many years he has been waiting, and that the 26-
year delay has deprived him of his property interest in
appointed counsel.



14
   Redd asserts that the applicable standard for evaluating the adequacy
of the state’s procedures to protect his interest in appointed counsel is
the three-part balancing test established in Mathews, a contention the
State Officers also do not dispute. In the alternative, Redd asserts that
he would also prevail under the standard set forth in Barker v. Wingo,

 (1972), for assessing delays in criminal proceedings.
See also Betterman v. Montana, 

, 448 & n.12, 439–440
(2016); Coe, 922 F.2d at 530–32. Given the egregious circumstances
alleged by Redd, his claim would be plausible under either standard.
42                     REDD V. GUERRERO


     Redd’s interest in the appointment of habeas counsel is
obviously substantial. In the context of federal habeas
petitions, the Supreme Court has observed that “quality legal
representation is necessary in capital habeas corpus
proceedings in light of ‘the seriousness of the possible
penalty and . . . the unique and complex nature of the
litigation.’” McFarland v. Scott, 

 (1994)
(quoting former 

(q)(7)). “An attorney’s
assistance prior to the filing of a capital defendant’s habeas
corpus petition is crucial, because ‘[t]he complexity of our
jurisprudence in this area . . . makes it unlikely that capital
defendants will be able to file successful petitions for
collateral relief without the assistance of persons learned in
the law.’” 

 at 855–56 (quoting Murray, 

(Kennedy, J., joined by O’Connor, J., concurring in
judgment)).
    The state’s interest in appointment of habeas counsel for
indigent capital prisoners is likewise substantial, as reflected
in the state’s decision to mandate such appointed counsel by
statute. Appointing such counsel “promotes the state’s
interest in the fair and efficient administration of justice.”
Barnett, 31 Cal. 4th at 475; accord Morgan, 

; see also In re Sanders, 

 (1999)
(explaining that appointment of habeas counsel to represent
indigent capital defendants “promote[s] the cause of
justice”) (citation and internal quotation marks omitted).
    Redd has also plausibly alleged that the deprivation
resulting from a 26-year delay is significant and potentially
irreversible. Redd alleges “the delay in the appointment of
habeas corpus counsel . . . has significantly and adversely
affected his ability to develop, present, and prove claims that
his conviction and death sentence are unlawful,” not only
during his twenty-six-year wait but ever. “[N]umerous
                      REDD V. GUERRERO                      43


witnesses—including immediate family members and at
least one member of his trial defense team—have died, and
many other persons with critical information have become
infirm or impaired or have had substantial memory loss.”
Further, “critical documents and other exculpatory evidence
also have been lost or destroyed.” Redd’s allegations are
consistent with this Court’s observation that when there is a
lengthy state postconviction “delay, there is a substantial
likelihood that witnesses will die or disappear, memories
will fade, and evidence will become unavailable.” Phillips
v. Vasquez, 

 (9th Cir. 1995); accord Coe,

. No matter how skilled, any attorney
appointed to represent Redd in his habeas petition at this late
date will begin with an immense disadvantage, vastly
reducing or entirely negating the value of Redd’s
entitlement.
    Further, a “system or procedure that deprives persons of
their claims in a random manner . . . necessarily presents an
unjustifiably high risk that meritorious claims will be
terminated.” Logan, 455 U.S. at 434–35. Here, California
law guaranteed the appointment of habeas counsel to Redd
once he accepted the state’s offer, see Cal. Gov’t Code
§ 68662(a), and it is certainly plausible that the extreme
delay Redd has suffered has by now erroneously deprived
him of his property interest in the appointment of such
counsel.
     At the same time, the state’s challenge in providing
capital habeas counsel to those indigent prisoners who need
it is great. But Redd alleges that the State Officers could
have taken a number of actions that would have reduced the
delay in appointment of counsel. See supra Section II.A. No
doubt the State Officers will wish to put on evidence that
requiring them to take any further action is unduly
44                         REDD V. GUERRERO


burdensome. But at the pleading stage Redd’s allegations
are at least plausible.
   We therefore reverse the district court’s dismissal of
Redd’s complaint for failure to state a procedural due
process claim.
     2.   Redd’s State-Created Liberty                     Interest      in
          Petitioning for Habeas Corpus
                                    (a)
    Redd also contends that his complaint plausibly alleged
a procedural due process claim based on his liberty interest
in petitioning for habeas corpus. It is common ground
between the parties that Redd’s state-created right to petition
for habeas gives rise to a liberty interest protected by due
process. The State Officers’ acknowledgment is well-
taken. 15
    State laws governing postconviction relief can, under
certain circumstances, give rise to a liberty interest protected
by federal due process. In Osborne, for example, Alaska had
established a process for vacating a conviction based on
newly discovered evidence. 557 U.S. at 64–65. The Court

15
   Redd raises this formulation of his liberty interest theory for the first
time on his appeal. Although he did not assert this precise liberty interest
in his opposition to the motion to dismiss in district court, the State
Officers do not object to his asserting this legal issue on appeal; instead,
they respond on the merits. Once again, because “[i]t is well-established
that the government can waive waiver implicitly by failing to assert it,”
we exercise our discretion to consider the issue. See United States v.
Pridgette, 

, 1258–1259 (9th Cir. 2016) (quoting Tokatly v.
Ashcroft, 

 (9th Cir. 2004 (citation omitted)); see also
Carrillo, 

 (addressing an issue not raised in district court
“because the issue is purely one of law, and because our addressing it at
this juncture will not prejudice the” other party).
                       REDD V. GUERRERO                       45


held that individuals seeking to challenge their Alaska
convictions on that basis have a postconviction
constitutionally protected liberty interest in demonstrating
their innocence as state law permits. Id. at 68. Similarly,
Morrison determined that the prisoner in that case had a state
law “‘liberty interest in demonstrating his innocence with
new evidence’ . . . . because California law provides a right
to be released from custody pursuant to a writ of habeas
corpus when there is no legal cause for imprisonment.” 809
F.3d at 1064–65 (quoting Osborne, 

).
     Likewise, California law guarantees Redd a right to
challenge his conviction collaterally via a habeas corpus
petition, so he has a constitutionally protected liberty interest
in that right. See 

, 1485, 1509;
Morrison, 

. California law specifies
grounds for granting the writ; these grounds include a
showing that the conviction is based on false evidence, 

(b)(1)–(2); the existence of new evidence
that more likely than not could have changed the outcome at
trial, 

 at § 1473(b)(3); evidence that a criminal conviction
or sentence was sought or obtained based on racial, ethnic,
or national origin bias, id. at § 1473(f); and other grounds
demonstrating that the petitioner is “unlawfully imprisoned
or restrained of their liberty,” id. at § 1473(a). And
California law requires that if a petitioner establishes that the
challenged confinement is unlawful, the court “must
discharge [the petitioner] from the custody or restraint under
which [the person] is held.” 

(emphasis added). Where, as here, state law contains
“explicitly mandatory language specifying the outcome that
must be reached if [state-law] substantive predicates have
been met,” the state law gives rise to a protected liberty
interest. Marsh v. Cnty. of San Diego, 

, 1155
46                     REDD V. GUERRERO


(9th Cir. 2012) (quoting James v. Rowlands, 

 (9th Cir. 2010). “[B]ecause California law provides a
right to be released from custody pursuant to a writ of habeas
corpus when there is no legal cause for imprisonment,”
Morrison, 

, Redd has a protected liberty
interest in challenging his conviction in state habeas.
                               (b)
    Redd contends that his complaint sufficiently states a
claim that the state’s procedures are inadequate to protect his
liberty interest in petitioning for habeas. Based on his
complaint as currently pleaded, we disagree.
    Redd’s liberty interest claim is premised on the theory
that the delay in appointing him counsel undermined his
ability to petition for habeas. Put another way, to succeed,
he must show that under California’s habeas system, he
cannot vindicate his right to petition for habeas unless the
state appoints him counsel.
    As discussed earlier, Supreme Court precedent has not
recognized a constitutional right to counsel in state habeas
proceedings. See supra Section I.A. The State Officers
contend that because Redd has no recognized federal
constitutional right to appointed habeas counsel, his option
to represent himself is sufficient to protect his liberty interest
in habeas.
    Redd’s response, contained in his briefs, is that under
California’s habeas procedures, once he accepted the state’s
offer to appoint counsel, he had no option to withdraw his
request for counsel and represent himself. As a result, he has
been precluded from moving forward with his habeas
petition during his decades-long wait for the appointment of
counsel, while his ability meaningfully to develop and
                         REDD V. GUERRERO                            47


present his habeas claims diminishes with each passing year.
In other words, the theory Redd presents in his briefs is that
the state induced him into accepting its seemingly
advantageous offer to appoint counsel and then forced him
to wait more than a quarter century for counsel to be
appointed, with no off-ramp. The consequence, under this
theory, is that having at the outset requested appointment of
counsel, Redd has been deprived of his federally protected
liberty interest in pursuing state postconviction relief at all,
with no end in sight.
     But Redd’s operative complaint includes no such
allegations. 16 His First Amended Complaint does not allege
that he is unable to withdraw his election of appointed
counsel, nor does it allege that he has, at any time since his
initial request for appointed counsel, attempted to change
course (either by filing a motion or otherwise) and seek to
represent himself in his postconviction proceedings.
Although Redd’s appeal briefs represent that after he
accepted the state’s offer to appoint habeas counsel, his “pro
se filings have been repeatedly rejected by the California
Supreme Court on [this] ground,” these allegations appear
nowhere in his First Amended Complaint. It is also unclear
whether any such pro se filings were submitted in
connection with his direct appeal, in which he is represented
by counsel, or his habeas petition, in which he is not.


16
   Should Redd seek to amend his complaint to make such allegations,
nothing in this opinion precludes the district court from permitting
amendment and considering whether Redd can state a liberty interest
claim based on a habeas system in which California induces indigent
capital prisoners into accepting its offer of appointed counsel and then
requires them to wait decades without any subsequent self-representation
right in habeas.
48                         REDD V. GUERRERO


    Thus, as presently drafted, Redd’s First Amended
Complaint does not allege that since he first requested
appointed counsel, he has been unable to withdraw his
request for appointment of counsel and instead litigate his
habeas petition pro se. 17 Under Supreme Court precedent,
the absence of appointed counsel, without more, does not
preclude Redd from vindicating his liberty interest in
petitioning for habeas. See Coleman, 

;
Murray, 

; see also supra Section I.A. For this

17
   In asserting that he is now unable to represent himself in his habeas
petition, Redd relies on In re Barnett, 

 (2003), which
concerned “whether inmates have a right to self-representation when
seeking habeas corpus relief in our courts.” 

. Barnett
concluded that California “[i]nmates . . . have no state constitutional right
to self-representation in habeas corpus proceedings,” nor do they have
such a right under the federal Constitution. 

 Barnett then explained
that California Government Code Section 68662 “alludes to the matter
of self-representation” by recognizing a capital prisoner’s ability to
“reject[]” the offer to appoint habeas counsel when made, but it
emphasized that that right is limited. 

 at 476 (quoting, in part, Cal.
Gov’t Code § 68662). Although Section 68662 “contemplate[s] that a
capital inmate [seeking to pursue state postconviction relief] may decline
[the] offer of counsel at the outset, so long as he or she fully understands
the legal consequences of such a decision, [it] specif[ies] no right to
withdraw an election of professional legal representation once made.”
Id. (emphasis added). Redd relies on Barnett to assert that he may not
proceed pro se in state habeas proceedings, because any right to
represent himself must be asserted “at the outset,” id., and he chose
instead to opt for representation by counsel. The State Officers dispute
Redd’s characterization of Barnett, maintaining that Redd is currently
free to represent himself in his habeas petition even though he earlier
requested counsel and that there is language in Barnett consistent with
that conclusion. In light of Redd’s failure to allege in his First Amended
Complaint that he is unable to withdraw his request for counsel, we do
not consider whether Barnett would support such an allegation or what
facts Redd would have to allege to make such an allegation plausible.
See Ashcroft v. Iqbal, 

, 678–79 (2009).
                      REDD V. GUERRERO                      49


reason, Redd’s complaint as currently formulated does not
plausibly allege that California’s procedures are inadequate
to protect his liberty interest in petitioning for habeas.
 III. Conclusion
    Redd has waited over a quarter of a century for
California to appoint counsel to aid him in pursuing his
capital habeas petition, despite state law assurances that
counsel would be available to him promptly. As a result, the
likelihood that a viable petition can be filed in the future is
diminishing to the vanishing point, given the likely
unavailability of witnesses and documents concerning the
long-ago crime and trial.
    For the reasons surveyed in this opinion, we conclude
that the district court should not have dismissed Redd’s
procedural due process claim for failure to state a claim at
the pleading stage. We reverse the dismissal and remand for
further proceedings consistent with this opinion.
   REVERSED AND REMANDED.