                                                                            FILED
                                                                            OCT 16 2013
                             NOT FOR PUBLICATION                        MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS

                     UNITED STATES COURT OF APPEALS

                             FOR THE NINTH CIRCUIT


TOMMY RAY WILLIAMS,                               No. 11-15397

               Petitioner - Appellant,            D.C. No. 1:03-CV-05819-JMD

  v.
                                                  MEMORANDUM*
J. TIM OCHOA, Warden,

               Respondent - Appellee.



       Appeal from the U.S. District Court for the Eastern District of California
                 John M. Dixon, Junior, Magistrate Judge, Presiding

                             Submitted October 8, 2013**
                              San Francisco, California

Before: D.W. NELSON, M. SMITH, and IKUTA Circuit Judges.

        Tommy Ray Williams (“Williams”) appeals the dismissal of his petition for

writ of habeas corpus as untimely. We have jurisdiction pursuant to 28 U.S.C.

§§ 1291 and 2253. We affirm in part, reverse in part, and remand.

         *
             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).
      The district court did not clearly err in finding that Williams was aware of

the factual predicate for his claim before he pled guilty. Thus, the one-year statute

of limitations contained in the Antiterrorism and Effective Death Penalty Act

(AEDPA) began to run at the conclusion of direct review, and not when Williams

received his file from trial counsel. 28 U.S.C. § 2244(d)(1). Therefore, the district

court properly concluded that Williams’ petition was filed outside the one-year

statute of limitations and that Williams is not entitled to tolling under

§ 2244(d)(1)(D) because he knew the factual predicate of his claim when he pled

guilty. Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001). Nor is he

entitled to equitable tolling because, given his awareness of the factual predicate of

his claim, Williams’ inability to access the autopsy report did not cause the

untimeliness of his petition. See Ford v. Pliler, 590 F.3d 782, 790 (9th Cir. 2009).

      The district court concluded that an actual innocence exception to the statute

of limitations did not exist, relying on Lee v. Lampart, 610 F.3d 1125, 1128–31

(9th Cir. 2010). Post-judgment, the Supreme Court decided McQuiggin v. Perkins,

___ U.S. ___, 133 S. Ct. 1925 (2013), which held that such an exception does in

fact exist. We therefore reverse the district court and remand for a determination

of whether Williams’ actual innocence claim meets the standard set forth in




                                           2
McQuiggin so that he is entitled to an exception to the expiration of the AEDPA

statute of limitations.

      AFFIRMED in part; REVERSED in part; REMANDED.




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