
    Jose Alberto MEJIA, Petitioner—Appellant, v. Cal TERHUNE, Warden, Respondent—Appellee.
    No. 01-55645.
    D.C. No. CV-99-11511-GHK(JWJ).
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted Dec. 5, 2002.
    Decided Dec. 20, 2002.
    Before BEEZER, KOZINSKI and WARDLAW, Circuit Judges.
   MEMORANDUM

1. The district court erred by failing to “actually exercise[ ] its discretion” when it refused to consider petitioner’s claim, raised in his objections to the magistrate’s Report and Recommendation, that the prison library didn’t have a copy of AEDPA. Brown v. Roe, 279 F.3d 742, 745 (9th Cir.2002) (internal quotation marks omitted). As in Brown, we remand to the district court to develop the record and determine whether petitioner’s allegation, which could provide grounds for statutory or equitable tolling, see Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir.2000) (en banc), justifies tolling in this case.

2. We reject petitioner’s “actual innocence” argument, based on allegedly inconsistent verdicts, because he has failed to establish that he was, in fact, actually innocent. See Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); Majoy v. Roe, 296 F.3d 770, 775-76 (9th Cir.2002).

REVERSED and REMANDED. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
     