Marcos Ceras v. SCOTT FRAUENHEIM, Warden

NOT FOR PUBLICATION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

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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,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)
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.

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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.”).

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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.

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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

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