Anthony Hill v. Domingo Uribe ( 2014 )

FILED
NOT FOR PUBLICATION APR 15 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY HILL, No. 11-55559
Petitioner - Appellant, D.C. No. 3:09-cv-01327-LAB-
CAB
v.
DOMINGO URIBE, Jr., Warden; JERRY MEMORANDUM*
BROWN,
Respondents - Appellees.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted April 7, 2014**
Pasadena, California
Before: THOMAS, M. SMITH, JR., and CHRISTEN, Circuit Judges.
Petitioner Anthony Hill appeals from the district court’s denial of his federal
habeas petition. We remand the case for further proceedings. Because the parties
are familiar with the history of this case, we need not recount it here.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1. We grant Hill’s motion to expand the certificate of appealability as to
the issue of whether he is entitled to equitable tolling due to attorney abandonment.
Because that question may involve development of the record and because the
district court has not had the opportunity to consider it fully, we remand to the
district court for its determination of the question in the first instance.
2. Following the entry of judgment in the district court, we decided Lee
v. Lampert, 653 F.3d 929 (9th Cir. 2011) (en banc), which affects the principle on
which the district court based its decision. The Warden has requested that we
remand to the district court the certified issue of whether Hill’s actual innocence
claim saves his untimely federal habeas petition in light of the standards enunciated
in Lee. In Lee, we held that “where an otherwise time-barred habeas petitioner
demonstrates that it is more likely than not that no reasonable juror would have
found him guilty beyond a reasonable doubt, the petitioner may pass through the
Schlup [v. Delo, 513 U.S. 298 (1995)] gateway and have his constitutional claims
heard on the merits.” Lee, 653 F.3d at 937. Therefore, pursuant to the Warden’s
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request, we also remand the question of whether Hill’s claim of actual innocence
excuses the untimely petition under Lee.1
Each party shall bear its own costs.
VACATED AND REMANDED.
1
We note that in its December 16, 2011 order denying Hill’s motion for
leave to proceed in forma pauperis on appeal, the district court acknowledged our
decision in Lee and stated that Hill’s actual innocence argument would still fail
under that case. We leave the question of whether to order additional briefing or
development of the record on this question to the district court.
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