Silva

*804 ORDER

It is ORDERED that this case be resubmitted as of November 18, 2000.

MEMORANDUM *

Defendant-Appellant Jose Mendoza Silva contends that, under Schlup v. Delo, 513 U.S. 298 , 115 S.Ct. 851 , 130 L.Ed.2d 808 (1995), he is not procedurally barred from seeking relief from his counsel’s ineffective assistance in failing to appeal his conviction for the murder of Annette George. This appeal requires us to make no new law, but simply to determine whether the facts of the case warrant our granting Silva the relief he seeks. We hold that they do. The facts and prior proceedings are known to the parties and are not restated herein except as necessary. See Ninth Circuit General Order 4.3.a.

I. PROCEDURAL BAR

Silva maintains that his ineffective-assistance-of-counsel claim is not procedurally barred because his claim of actual innocence is sufficient to bring him within the “narrow class of cases ... implicating a fundamental miscarriage of justice.” Schlup, 513 U.S. at 315 , 115 S.Ct. 851 (citation omitted). This “procedural claim of innocence,” Paradis v. Arave, 130 F.3d 385, 396 (9th Cir.1997), “permit[s] a habeas petitioner to have considered on the merits claims of…