                                                                              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                            NOT FOR PUBLICATION                               APR 15 2014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




                                           -2-
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.

                                        -3-
