FILED
NOT FOR PUBLICATION
DEC 1 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HUGO ISRAEL CAHUEC, No. 14-15593
Petitioner-Appellant, D.C. No.
3:09-cv-00113-RCJ-RAM
v.
GREGORY SMITH; ATTORNEY MEMORANDUM*
GENERAL FOR THE STATE OF
NEVADA,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Submitted December 1, 2017**
San Francisco, California
Before: SCHROEDER, D.W. NELSON, and CHRISTEN, Circuit Judges.
Hugo Cahuec, a Nevada state prisoner, appealed the district court’s dismissal
of his habeas petition on grounds of failure to exhaust and untimeliness. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
granted Petitioner’s motion to stay appellate proceedings because his threshold
actual innocence claim was then pending before the Nevada state courts. The
Nevada Supreme Court has now held that the evidence he presented was not
reliable and affirmed the trial court’s denial of relief.
We have requested, received, and reviewed supplemental briefing from the
parties as to the current status of the appeal. The actual innocence claim is now
exhausted and the district court has not yet considered it in light of the record
developed in state court while this appeal has been pending. We have therefore
ordered this appeal submitted on the briefs. We vacate the district court’s order
denying Petitioner’s motion for reconsideration, and remand for the district court
to consider the petitioner’s claims in the first instance.
We also GRANT the pending motion to file the final volume VI of the joint
supplemental excerpts of record under seal.
This panel shall retain jurisdiction of any further appeal.
VACATED and REMANDED.
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