NOT FOR PUBLICATION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, ** Dis trict 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, CLER K U.S. COURT OF APPEAL S2

1. Ceras’s federal habeas petitio n 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 th e 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 Superi or 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, 19 7 (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 in effective 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 barr ed 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) demonstra tes 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 denia l

. 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 c laims 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 show ing that “ it is more likely than not that no reasonable juror would have found [him] g uilty beyond a reasonable doubt. ” Schlup v. Delo , 513 U.S. 298, 327 (1995); see also Lee v. Lampert , 653 F.3d 929, 93 7 (9th Cir. 2011) (en banc). When conducting a Schlup inquiry, “[t] he habeas court must make its determin ation concerning the petitioner’s inno cence in light of all the evidence .”
5 13 U.S. at 328 (internal quotation marks omitted). “ Schlup makes plain that t he habeas court must consider all the evidence, old and new , incriminating and exculpatory [.]

. . . [T] he inquiry requires the federal cour t 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 r ecord

. ” See i d. T he 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

- ineffecti ve assistance of counsel claims. See Ylst v. Nennemaker , 501 U.S. 797, 803 (1991) (“W here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upho lding 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 throug h 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 present ed 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 A ppeal ’ s recitation of the evidence where neit her party disputes its
accuracy. 

# FILED

APR 24 2018 MOLLY C. DWYER, CLER K

U.S. COURT OF APPEAL S