Shields

MEMORANDUM **

Raymond Shields, a California state prisoner, appeals from the dismissal of his habeas corpus petition under 28 U.S.C. § 2254 . He contends that the district court erred in finding his two claims procedurally barred where the California Supreme Court dismissed his habeas petition with citation to California’s untimeliness rule. Respondent correctly concedes that in light of Bennett v. Mueller, 322 F.3d 573 (9th Cir.) (en bane), cert. denied, — U.S. -, 124 S.Ct. 105 , 157 L.Ed.2d 251 (2003), decided after the district court filed its order of dismissal, this case must be remanded for determination of whether California’s untimeliness rule is an “adequate” state ground for denying relief. See id. at 583-86 (remanding for state to show that untimeliness rule is well-established and consistently applied, and thus adequate).

Shields relies upon Koerner v. Grigas, 328 F.3d 1039 (9th Cir.2003), for the proposition that his claims are not procedurally barred. This contention lacks merit because unlike in Koemer, the two reasons given by the California Supreme Court were not inconsistent; claims may be untimely and also pleaded with insufficient particularity. Cf. id. at…