FILED
NOT FOR PUBLICATION MAR 29 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
HUGO C. ISRAEL, No. 10-17458
Petitioner - Appellant, D.C. No. 3:09-cv-00113-RCJ-
RAM
v.
GREGORY SMITH and NEVADA MEMORANDUM *
ATTORNEY GENERAL,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, Chief District Judge, Presiding
Argued and Submitted March 12, 2012
San Francisco, California
Before: NOONAN, McKEOWN, and M. SMITH, Circuit Judges.
Hugo Israel Cahuec (“Israel”) appeals the district court’s dismissal of his
habeas corpus petition as untimely.
Israel asserts that his actual innocence excuses his untimely petition. The
district court dismissed this argument as foreclosed by Lee v. Lampert (Lee I), 610
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
F.3d 1125 (9th Cir. 2010). The panel opinion in Lee I is no longer circuit
precedent, see 9th Cir. R. 35-3, and was superseded by the en banc opinion issued
in Lee v. Lampert (Lee II), 653 F.3d 929, 932 (9th Cir. 2011) (en banc), which
recognized an equitable exception to the AEDPA's limitations period based on a
credible showing of actual innocence. “An actual innocence exception to the
limitations provisions does not foster abuse or delay, but instead recognizes that in
extraordinary cases, the societal interests of finality, comity, and conserving
judicial resources must yield to the imperative of correcting a fundamentally unjust
incarceration.” Lee II at 935 (quoting Murray v. Carrier, 477 U.S. 478, 495
(1986)) (internal quotation marks omitted). Israel is entitled to an opportunity to
make a credible showing of actual innocence.
Israel’s other argument for tolling – his alleged inability to obtain language
assistance – fails. He was able to get such assistance in filing a state petition. No
reason appears why he could not have done as much to file a federal petition.
Israel’s motion to file a supplemental reply brief is GRANTED.
We REVERSE the district court’s dismissal for untimeliness and
REMAND for a determination of actual innocence under Lee II, 653 F.3d 929.
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