NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARCOS CERAS, 

Petitioner-Appellant, 

 v. 

SCOTT FRAUENHEIM, Warden, 

Respondent-Appellee.

No. 15-55382 

D.C. No. 

2:14-cv-09177-RGK-AN 

MEMORANDUM*

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.

FILED

APR 24 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

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,2and 

 

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. 
3 

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.”).
4 

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.
Ceras v. Frauenheim, No. 15-55382

Callahan, J., dissenting in part:

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. 

FILED

APR 24 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS