                                                                           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                           NOT FOR PUBLICATION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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