Rodgers

MEMORANDUM **

California state prisoner Brian T. Rodgers appeals the district court’s dismissal based on procedural default of his 28 U.S.C. § 2254 petition challenging his conviction for willful infliction of corporal injury. We have jurisdiction pursuant to 28 U.S.C. § 2253 , and we vacate and remand.

Rodgers contends that the state never met its burden to prove the adequacy of the state procedural rule invoked by the California Supreme Court to bar his claim. See Bennett v. Mueller, 322 F.3d 573, 583 (9th Cir.2003) (“To be deemed adequate, the state law ground for decision must be well-established and consistently applied.”), cer t. denied, 540 U.S. 938 , 124 S.Ct. 105 , 157 L.Ed.2d 251 (2003). We agree.

The state’s brief mention of adequacy in its answer to the § 2254 petition with a citation to Siripongs v. Calderon, 35 F.3d 1308 (9th Cir.1994), and Deere v. Calderon, 890 F.Supp. 893 (C.D.Cal.1995), is not sufficient to meet its burden. In Bennett , this court disavowed reliance on Deere , in part because that was a capital case. See Bennett, 322 F.3d at 583 . Likewise, Siripongs was a capital case, so it cannot provide any more basis for pleading adequacy under Bennett .…