Hugo Israel Cahuec v. Gregory Smith; Attorney General for the State of Nevada

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HUGO ISRAEL CAHUEC,
Petitioner-Appellant,
v.
GREGORY SMITH; ATTORNEY
GENERAL FOR THE STATE OF
NEVADA,
Respondents-Appellees.
No. 20-17470
D.C. No.
3:09-cv-00113-RCJ-RAM
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Submitted January 31, 2022**
San Francisco, California
Before: SCHROEDER, D.W. NELSON, and CHRISTEN, Circuit Judges.
Nevada State Prisoner Hugo Cahuec appeals the district court’s denial of his
28 U.S.C. § 2254 petition challenging his 2004 conviction for sexual assault and
FILED
FEB 8 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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kidnapping, following a guilty plea. After this court’s previous remand, the district
court ruled that Cahuec had not demonstrated actual innocence that would excuse
the untimeliness of the petition under 28 U.S.C. § 2244(d)(1). We affirm.
The evidence upon which the Petitioner relies does not establish actual
innocence. See Schlup v. Delo, 513 U.S. 298, 327 (1995). The incident leading to
the conviction occurred in 2003 when four-year-old S.G. complained of pain when
urinating after Petitioner had touched her. Her statement 14 years later that the
Petitioner had accidentally hit her with a board was not evidence of actual
innocence, as it amounted to no more than a statement inconsistent with the earlier
statement, and one which a jury could disbelieve. See Jones v. Taylor, 763 F.3d
1242, 1250 (9th Cir. 2014).
Statements by S.G.’s mother, the pastor of the church and his wife, none of
whom were present when the incident occurred, are not evidence of actual
innocence. See Schlup, 513 U.S. at 324. Moreover, their statements do not
provide new evidence because Petitioner made similar statements to police
investigating the incident in 2003. Also inconclusive are hospital records stating
that the physical examination could not determine whether there had been
penetration. The standard for establishing actual innocence was not met. Lee v.
Lampert, 653 F.3d 929, 945 (9th Cir. 2011).
AFFIRMED.
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