NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 24 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARCOS CERAS, No. 15-55382

Petitioner-Appellant, D.C. No. 2:14-cv-09177-RGK-AN v.

SCOTT FRAUENHEIM, Warden, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding

Argued and Submitted February 9, 2018 Pasadena, California

Before: CALLAHAN and NGUYEN, Circuit Judges, and BATAILLON,** District Judge.

Marcos Ceras challenges the district court’s denial of his petition for writ of

habeas corpus. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and

we reverse in part, affirm in part, and remand.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Joseph F. Bataillon, United States District Judge for the District of Nebraska, sitting by designation. 1. Ceras’s federal habeas petition was timely. As the government

concedes, our recent decision in Curiel v. Miller, 830 F.3d 864 (9th Cir. 2016) (en

banc) dictates that the California Court of Appeal overruled the California Superior

Court’s untimeliness finding when it directed Ceras to refile his petition.1 Because

the California Court of Appeal found the petition to be timely, Ceras is entitled to

toll the statute of limitations for the entire time his state habeas petitions were

pending, including the interval between when the Superior Court denied his

petition and when he filed in the Court of Appeal. See 28 U.S.C. § 2244(d)(2);

Evans v. Chavis, 546 U.S. 189, 197 (2006) (“[A] timely appeal tolls AEDPA’s 1-

year limitations period for the time between the lower court’s adverse decision and

the filing of a notice of appeal in the higher court[.]” (emphasis omitted)). Taking

such tolling into account, Ceras’s federal petition was filed within one year of his

judgment becoming final. See 28 U.S.C. § 2244(d)(1).

2. Given the California Court of Appeal’s finding that Ceras may refile

his ineffective assistance of counsel claim, the government concedes that such

claim is not procedurally barred. We agree. However, the remainder of Ceras’s

claims are procedurally barred because they were denied as untimely,2 and

1 The parties’ requests that we take judicial notice of Ceras’s petitions to the Superior Court and Court of Appeal are granted. 2 The California Superior Court’s citation to In re Clark, 855 P.2d 729 (Cal. 1993) demonstrates that it found all the claims untimely under state law. See Walker v. Martin, 562 U.S. 307, 313 (2011); Lakey v. Hickman, 633 F.3d 782, 786 (9th Cir.

2 untimeliness is an adequate and independent state law ground for denial. Walker v.

Martin, 562 U.S. 307, 217–21 (2011); see also Insyxiengmay v. Morgan, 403 F.3d

657, 667 (9th Cir. 2005) (noting that whether claims are procedurally barred is

determined on “a claim-by-claim basis.”).

3. Ceras’s procedurally-barred claims may be revived if he can present

new evidence showing that “it is more likely than not that no reasonable juror

would have found [him] guilty beyond a reasonable doubt.” Schlup v. Delo, 513

U.S. 298, 327 (1995); see also Lee v. Lampert, 653 F.3d 929, 937 (9th Cir. 2011)

(en banc). When conducting a Schlup inquiry, “[t]he habeas court must make its

determination concerning the petitioner’s innocence in light of all the evidence.”

513 U.S. at 328 (internal quotation marks omitted). “Schlup makes plain that the

habeas court must consider all the evidence, old and new, incriminating and

exculpatory[.] . . . [T]he inquiry requires the federal court to assess how reasonable

jurors would react to the overall, newly supplemented record.” House v. Bell, 547

U.S. 518, 538 (2006) (internal quotation marks omitted). On remand, the district

court should revisit its Schlup ruling “[b]ased on [the] total record.” See id. The

district court may then determine whether an evidentiary hearing is necessary to

2011). Nothing in the California Court of Appeal’s order overturns that finding for the non-ineffective assistance of counsel claims. See Ylst v. Nennemaker, 501 U.S. 797, 803 (1991) (“Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.”).

3 assess the affiant’s credibility or whether the reliability of the affidavit can be

determined on its face. See McQuiggin v. Perkins, 569 U.S. 383, 386, 399 (2013);

Schlup, 513 U.S. at 331–32.

***

Ceras’s ineffective assistance of counsel claim is timely and not

procedurally barred, and should be considered on the merits on remand. It remains

for the district court to decide whether Ceras can pass through the Schlup gateway

to overcome the procedural bar for his remaining claims, once it has the benefit of

the full record. Costs are awarded to Ceras.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

4

FILED

Ceras v. Frauenheim, No. 15-55382

APR 24 2018

Callahan, J., dissenting in part: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I join the majority’s disposition in full regarding the timeliness of Marcos

Ceras’ habeas petition and whether Ceras’ ineffective assistance of counsel claim is

procedurally barred. I would, however, affirm the district court’s rejection of

Ceras’ Schlup claim.

The Schlup “actual innocence” gateway is deliberately narrow out of respect

for principles of comity, finality, and deference to state court judgments. House v.

Bell, 547 U.S. 518, 536–37 (2006). It therefore applies only in “truly

extraordinary” circumstances. Id. at 537 (internal quotation marks omitted). The

petitioner must demonstrate his “actual innocence” by introducing “new reliable

evidence . . . that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324

(1995) (emphasis added).

The majority remands to the district court because the district court did not

review the trial court record. But the district court did weigh the Morales affidavit

together with the evidence presented at trial as recounted by the California Court of

Appeal. I would therefore hold that the district court did not err in relying on the

Court of Appeal’s recitation of the evidence where neither party disputes its

accuracy.