Tanner

MEMORANDUM **

Nevada state prisoner Kelly Tanner appeals the dismissal of his 28 U.S.C. § 2254 petition challenging his guilty-plea conviction for first degree murder and battery with intent to commit sexual assault and his sentence of consecutive life terms. We have jurisdiction pursuant to 28 U.S.C. § 2253 , and we reverse and remand.

Tanner contends that, although the procedural rule invoked has been held adequate generally, the construction of the rule applicable to this particular set of facts was not announced by the Nevada comets until after the default and therefore renders it inadequate to bar federal habeas review. We agree. We have held that the Nevada procedural rule at issue, section 34.726(1) of the Nevada Revised Statutes, is sufficiently adequate to bar federal habeas review. Moran v. McDaniel, 80 F.3d 1261, 1269 (9th Cir.1996). Application of this generally sound rule to the particular circumstances of this case, however, renders the rule inadequate to foreclose federal habeas review. See Lee v. *203 Kemna, 534 U.S. 362, 376 , 122 S.Ct. 877 , 151 L.Ed.2d 820 (2002).

The procedural rule invoked provides that “a petition that challenges the validity of a judgment…