Jose Tamayo-reyes, Petitioner-appellant, v. J.c. Keeney, Respondent-appellee, 969 F.2d 839 (9th Cir. 1992)

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US Court of Appeals for the Ninth Circuit - 969 F.2d 839 (9th Cir. 1992) July 21, 1992

On Remand from the United States Supreme Court.

Before: BROWNING, CANBY and TROTT, Circuit Judges.

The mandate of the United States Supreme Court, certified on June 5, 1992, in Keeney, Superintendent, Oregon State Penitentiary v. Tamayo-Reyes, --- U.S. ----, 112 S. Ct. 1715, 118 L. Ed. 2d 318, reversed the judgment of this court reported at 926 F.2d 1492 (9th Cir. 1991). Accordingly, we remand this case to the district court for further proceedings consistent with the opinion of the Supreme Court. The district court shall determine whether Tamayo-Reyes can show (1) cause for his failure to develop the facts in state-court proceedings and (2) actual prejudice. If he can make such a showing, he is entitled to an evidentiary hearing in connection with the claim he presents in his petition for a writ of habeas corpus. If he cannot make such a showing, the district court shall determine if his failure to develop his claim in state-court proceedings shall be excused and a hearing mandated because the failure to hold a federal evidentiary hearing would result in a fundamental miscarriage of justice.

This panel retains jurisdiction of this matter with respect to any appeal or writ resulting from the district court's proceedings on remand.