                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

JAMES EDWARD KING,                       No. 05-15757
            Petitioner-Appellant,           D.C. No.
              v.                        CV-00-01988-SI
A. LAMARQUE, Warden,                      ORDER AND
            Respondent-Appellee.
                                          OPINION

       Appeal from the United States District Court
          for the Northern District of California
      Susan Yvonne Illston, District Judge, Presiding

                 Argued and Submitted
        March 14, 2006—San Francisco, California

               Opinion filed July 26, 2006
         Opinion Withdrawn September 20, 2006
                Filed September 20, 2006

    Before: Alfred T. Goodwin, Stephen Reinhardt, and
          Michael Daly Hawkins, Circuit Judges.

               Opinion by Judge Hawkins




                          11599
11602                  KING v. LAMARQUE


                          COUNSEL

Matthew Dale Alger, Clovis, California, for the petitioner-
appellant.

Lisa Ashley Ott, Deputy Attorney General, San Francisco,
California, for the respondent-appellee.


                           ORDER

   James Edward King’s petition for rehearing and A. LaMar-
que’s petition for rehearing are granted in part, without further
oral argument. The Opinion and separate concurring Opinion,
filed on July 26, 2006 and reported at 455 F.3d 1040 (9th Cir.
2006), are withdrawn and superceded by the Opinion filed
concurrently with this Order. The previous Opinion may not
be cited as precedent by or to this court or any district court
of the Ninth Circuit.

   The parties’ petitions for rehearing en banc are denied as
moot. Subsequent petitions for panel rehearing and/or peti-
tions for rehearing en banc may be filed with respect to the
new Opinion in accordance with the requirements of Fed. R.
App. P. 40 and 35.
                         KING v. LAMARQUE                       11603
                             OPINION

HAWKINS, Circuit Judge:

   James Edward King (“King”) appeals the denial of his
habeas corpus petition, raising four issues, only one of which
was listed within the Certificate of Appealability (“COA”) at
the time of argument. Three of the issues pertain to the Cali-
fornia Supreme Court’s dismissal of an ineffective assistance
claim because it determined that King’s habeas petition was
filed after substantial delay. King asserts that the rule is inade-
quate and that his case fits the exceptions that allow federal
courts to review claims that are otherwise procedurally
barred. His fourth claim asserts the district court erred in find-
ing that he was not prejudiced by his trial counsel’s failure to
review a videotape of the victim and failure to object to a ref-
erence to his parole officer within that tape.1

         FACTS AND PROCEDURAL HISTORY

  A jury convicted King of violating California Penal Code
§§ 288 and 269 by committing a lewd act and three aggra-
vated assaults—rape, oral copulation, and digital penetration
—on a child. King pursued direct appeal and state habeas cor-
pus petitions, both of which were unsuccessful.

   King’s first federal habeas petition contained exhausted and
unexhausted claims. After King’s attorney failed to respond to
the government’s motion to dismiss, the district court dis-
missed the petition. King submitted a pro se motion under
Rule 60(b) of Civil Procedure, and the district court set aside
  1
   Applying the relevant standards we grant King’s motion to expand the
COA with regard to his claim addressing the adequacy of California’s
“substantial delay” rule, but deny his motion with regard to his other
uncertified issues. Slack v. McDaniel, 529 U.S. 473, 484 (2000); Schlup
v. Delo, 513 U.S. 298, 327 (1995); Lambright v. Stewart, 220 F.3d 1022,
1026 (9th Cir. 2000).
11604                 KING v. LAMARQUE
the judgment of dismissal, finding that King’s counsel had
been grossly negligent. The district court stayed its proceed-
ings while King pursued his unexhausted claims in state court.
The California Supreme Court summarily denied King’s sub-
sequent habeas petition, citing two cases barring review of
habeas petitions filed after substantial delay: In re Clark, 855
P.2d 729 (Cal. 1993) [hereinafter Clark], and In re Robbins,
959 P.2d 311 (Cal. 1998). King then filed, and the district
court denied, an amended habeas petition.

                STANDARD OF REVIEW

  We review a district court’s decision to grant or deny a
habeas corpus petition de novo. Clark v. Murphy, 331 F.3d
1062, 1067 (9th Cir. 2003).

                        DISCUSSION

                               I

   [1] Federal courts will not generally review a question of
federal law decided by a state court if its decision rests on a
state law ground that is independent of the federal question
and adequate to support the judgment. See Coleman v.
Thompson, 501 U.S. 722, 750 (1991). King claims that Cali-
fornia’s rule barring review of habeas claims filed after “sub-
stantial delay” is inadequate and, therefore, does not bar
federal review of his claim. To be adequate, the state’s legal
grounds for its decision must be firmly established and con-
sistently applied. Bennett v. Mueller, 322 F.3d 573, 583 (9th
Cir. 2003).

   To be firmly established or consistently applied, a rule must
be clear and certain. See Melendez v. Pliler, 288 F.3d 1120,
1124 (9th Cir. 2002) (citing Morales v. Calderon, 85 F.3d
1387, 1390-92 (9th Cir. 1996)); see also Wells v. Maass, 28
F.3d 1005, 1010 (1994) (“a state rule must be clear, consis-
tently applied, and well-established”). Novel procedural rules
                       KING v. LAMARQUE                    11605
do not bar federal review because petitioners are not put on
sufficient notice that they must comply. See Ford v. Georgia,
498 U.S. 411, 423-25 (1991); NAACP v. Alabama, 357 U.S.
449, 354-358 (1958). Just so, state procedural rules with
overly vague standards do not provide petitioners with suffi-
cient notice of how they may avoid violating the rule. Further-
more, poorly defined procedural rules do not provide courts
the guidance required for consistent application.

   [2] California’s timeliness rule bars habeas petitions that
are filed after “substantial delay.” A habeas petitioner in Cali-
fornia must justify any “significant” or “substantial” delay in
seeking habeas corpus relief. Clark, 855 P.2d at 738, 750-51.
There are no standards for determining what period of time or
factors constitute “substantial delay” in noncapital cases.
There are also no standards for determining what factors jus-
tify any particular length of delay. The rule’s ambiguity is not
clarified by the California Supreme Court’s application of the
timeliness bar, in part because the court usually rejects cases
without explanation, only citing Clark and Robbins, as it did
here. See Morales, 85 F.3d at 1392.

   [3] California’s timeliness rule applies to both capital and
noncapital cases. In capital cases, California’s Supreme Court
Policies Regarding Cases Arising from Judgments of Death
(“Policies”) create a presumption of timeliness if a petition “is
filed within 90 days of the final due date for the filing of an
appellant’s reply brief.” Clark, 855 P.2d at 751. The Policies
also create more explicit standards for deciding whether there
has been substantial delay when the petitioner has filed after
the ninety-day presumption period. Id. at 751-53. Clark clari-
fied the application of these Policies within capital cases and
provided four specific exceptions for granting review even
when a petition’s “substantial delay” is unjustified. Id. at 758-
59. But Clark did nothing to clarify the application of the
basic “substantial delay” standard with regard to noncapital
cases. Furthermore, the Clark exceptions, specifying when
11606                  KING v. LAMARQUE
review can be granted despite “substantial delay,” do nothing
to clarify the “substantial delay” standard itself.

   [4] In Morales, we indicated that California’s timeliness
rule was too uncertain, pre-Clark, to be a procedural bar for
capital cases. 85 F.3d at 1391; see also Calderon v. United
States Dist. Court (Bean), 96 F.3d 1126, 1131 (9th Cir. 1996).
The holding in Morales intertwined “inconsistent application”
analysis with “well established” analysis: “We find so much
variation in [the] application of California’s timeliness
requirements before Clark that we conclude that no discern-
ible clear rule then existed for petitions filed more than 90
days after the due date of the reply brief on direct appeal.” Id.
Just as inconsistent application leads to ambiguous standards,
overly ambiguous standards almost inevitably lead to incon-
sistent application. See Bennett, 322 F.3d at 573, 583 (citing
Morales, 85 F.3d at 1392).

   [5] Bennett specifies the burden-shifting process involved
in determining whether a procedural rule is adequate. 322
F.3d at 586. Once the government has pleaded “the existence
of an independent and adequate state procedural ground as an
affirmative defense, the burden to place that defense in issue
shifts to the petitioner.” Id. The petitioner “may satisfy this
burden by asserting specific factual allegations that demon-
strate the inadequacy of the state procedure, including citation
to authority demonstrating inconsistent application of the
rule.” Id. The burden then shifts back to the government, and
it bears “the ultimate burden of proving the adequacy” of the
relied-upon ground. Id. at 585-86.

   The government explicitly pleaded “the existence of an
independent and adequate state procedural ground,” the Cali-
fornia rule against petitions filed after substantial delay, as an
affirmative defense in district court. The burden, therefore,
shifted to King. Bennett, 322 F.3d at 586.

  In response, King asserts that the California Supreme
Court’s dismissal of his case demonstrates that it inconsis-
                           KING v. LAMARQUE                          11607
tently applies the timeliness rule because he properly justified
his delay. As the district court noted, this is not proof of
inconsistent application, but simply rehashes the merits of his
arguments before the California Supreme Court.

    King fails to explicitly raise the issue of whether the timeli-
ness rule is too uncertain to be well established. The question
then arises: Is simply contesting the adequacy of a state rule
sufficient to meet the petitioner’s burden under Bennett if we
have previously found the rule to be too ambiguous to bar
federal review during the applicable time period? We hold it
is.

   [6] Bennett requires the petitioner to “place [the procedural
default] defense in issue” to shift the burden back to the gov-
ernment. 322 F.3d at 586. In most circumstances, the best
method for petitioners to place the defense in issue is to assert
“specific factual allegations that demonstrate the inadequacy
of the state procedure” by citing relevant cases. Id. But where
we have already made a determination regarding the adequacy
of the state procedural rule, the petitioner’s method of placing
the defense in issue must be modified.2

   [7] In Ortiz v. Stewart, 149 F.3d 923 (9th Cir. 1998), we
held that a petitioner had not met his burden because we had
already held the state procedural rule to be consistently
applied and the petitioner failed to cite cases demonstrating
subsequent inconsistent application. Id. at 932. This holding
helps prevent inconsistent determinations regarding a state
procedural rule’s adequacy during a given time period. This
same reasoning provides a firm foundation for applying the
  2
   Bennett did not foreclose alternative methods of “plac[ing] [the]
defense in issue,” stating only that the petitioner “may satisfy this burden
by asserting specific factual allegations . . . .” Id. (emphasis added). Ben-
nett, of course, did not resolve all of the potential issues involved with
applying the “new standard” because it specified the burden-shifting pro-
cess but did not apply it. Id.
11608                      KING v. LAMARQUE
Ortiz requirement bilaterally. Once we have found a state pro-
cedural rule to be inadequate, petitioners may fulfill their bur-
den under Bennett by simply challenging the adequacy of the
procedure; the burden then shifts back to the government to
demonstrate that the law has subsequently become adequate.
Here, because we held in Morales that the California timeli-
ness rule was insufficiently clear, the government must show
on remand that the rule has since been clarified for noncapital
cases and that the clarified rule has since been consistently
applied.

   This holding is necessary to maintain the primary principle
we announced in Bennett: the government bears the ultimate
burden of establishing the adequacy of a rule. This burden
should exist whether or not the petitioner identifies the correct
basis upon which to challenge the adequacy of the rule. If we
held otherwise, the government could avoid its burden under
Bennett, and illogical results would occur. Here, for example,
we would bar King’s claim based on a procedural rule already
found to be inadequate. In essence, we would be holding that
the same rule is adequate in some cases and inadequate in oth-
ers. This defies common sense. A procedural rule is either
adequate or inadequate during a given time period; its ade-
quacy does not depend upon the facts of a petitioner’s case.

  [8] By challenging the adequacy of a state procedural rule
we have found to be insufficiently clear in Morales, King has
met his Bennett burden. On remand, the government must
demonstrate that California’s “substantial delay” rule has
become sufficiently clear and consistently applied to justify
barring federal review of King’s claim.3
  3
    Morales specifically reserved the issue of whether Clark successfully
cleared up the uncertainties regarding capital cases. Id.; see also Bennett,
322 F.3d at 583 (stating only that Clark had “attempted to set out a defi-
nite rule” and that it “set out to create a rule that would be consistently
applied”).
                      KING v. LAMARQUE                    11609
                               II

   [9] King asserts that even if California’s timeliness rule is
an independent and adequate ground, his claim is still review-
able because he meets the “cause and prejudice” exception for
procedural defaults. Having decided to remand this case to
reconsider whether King has procedurally defaulted his claim,
we need not reach this issue.

                       CONCLUSION

   [10] We vacate the district court’s judgment with regard to
the adequacy of the California timeliness rule and remand for
further proceedings consistent with this opinion.

  VACATED IN PART and REMANDED.
