                                                                            FILED
                            NOT FOR PUBLICATION                              MAR 29 2012

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



HUGO C. ISRAEL,                                   No. 10-17458

              Petitioner - Appellant,             D.C. No. 3:09-cv-00113-RCJ-
                                                  RAM
  v.

GREGORY SMITH and NEVADA                          MEMORANDUM *
ATTORNEY GENERAL,

              Respondents - Appellees.



                   Appeal from the United States District Court
                             for the District of Nevada
                 Robert Clive Jones, Chief District Judge, Presiding

                       Argued and Submitted March 12, 2012
                             San Francisco, California

Before: NOONAN, McKEOWN, and M. SMITH, Circuit Judges.

       Hugo Israel Cahuec (“Israel”) appeals the district court’s dismissal of his

habeas corpus petition as untimely.

       Israel asserts that his actual innocence excuses his untimely petition. The

district court dismissed this argument as foreclosed by Lee v. Lampert (Lee I), 610


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
F.3d 1125 (9th Cir. 2010). The panel opinion in Lee I is no longer circuit

precedent, see 9th Cir. R. 35-3, and was superseded by the en banc opinion issued

in Lee v. Lampert (Lee II), 653 F.3d 929, 932 (9th Cir. 2011) (en banc), which

recognized an equitable exception to the AEDPA's limitations period based on a

credible showing of actual innocence. “An actual innocence exception to the

limitations provisions does not foster abuse or delay, but instead recognizes that in

extraordinary cases, the societal interests of finality, comity, and conserving

judicial resources must yield to the imperative of correcting a fundamentally unjust

incarceration.” Lee II at 935 (quoting Murray v. Carrier, 477 U.S. 478, 495

(1986)) (internal quotation marks omitted). Israel is entitled to an opportunity to

make a credible showing of actual innocence.

      Israel’s other argument for tolling – his alleged inability to obtain language

assistance – fails. He was able to get such assistance in filing a state petition. No

reason appears why he could not have done as much to file a federal petition.

      Israel’s motion to file a supplemental reply brief is GRANTED.

      We REVERSE the district court’s dismissal for untimeliness and

REMAND for a determination of actual innocence under Lee II, 653 F.3d 929.




                                           2
