MEMORANDUM ***

The certificate of appealabihty (COA) is broadened to include the following issue: Whether, in light of Kelly v. Small, 315 F.3d 1063, 1066-67 (9th Cir. 2003), and Baldwin v. Reese, — U.S. -, ---, 124 S.Ct. 1347, 1351-52, 158 L.Ed.2d 64 (2004), appellant exhausted his state remedies as to his claim that his conviction on a vicarious liability theory violated his right to due process.

Because the parties agree that the claim was exhausted under Kelly, see Appellant’s Opening Brief at 29-32; Appellee’s Brief at 36-37, and petitioner labeled his claims as federal sufficiently for purposes of Baldwin, the case is remanded to the district court for litigation on the merits of that claim.

After such litigation, the other issues already included in this COA will continue to be appealable without the need for a new COA.

REMANDED.