Souliotes v. Evans

• Decision Date: 20 September 2010
• Docket Number: No. 08-15943.,08-15943.
• Citation: Souliotes v. Evans, 622 F.3d 1173 (9th Cir. 2010)
• Parties: George SOULIOTES, Petitioner-Appellant, v. Mike EVANS, Warden; Anthony Hedgpeth, Warden, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

622 F.3d 1173

George SOULIOTES, Petitioner-Appellant,

v.Mike EVANS, Warden; Anthony Hedgpeth, Warden, Respondents-Appellees.

No. 08-15943.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Feb. 12, 2010.

Filed Sept. 20, 2010.

Randall S. Luskey, Orrick, Herrington & Sutcliffe LLP, San Francisco, CA, for the petitioner-appellant.

Kathleen A. McKenna, Deputy Attorney General, Office of the Attorney General of California, Fresno, CA, for the respondents-appellees.

Sheryl Gordon McCloud, Law Offices of Sheryl Gordon McCloud, Seattle, WA; Bob Barr, Atlanta, GA; Matthew D. Brown, Cooley Godward Kronish LLP, San Francisco, CA, for the amici.

Appeal from the United States District Court for the Eastern District of California, Oliver W. Wanger, District Judge, Presiding.D.C.No. 1:06-cv-00667-OWW-WMW.

Before: CYNTHIA HOLCOMB HALL and M. MARGARET McKEOWN, Circuit Judges, and THOMAS S. ZILLY, ^*Senior District Judge.

Opinion by Judge McKeown; Partial Concurrence and Partial Dissent by Judge ZILLY.

McKEOWN, Circuit Judge:

PetitionerGeorge Souliotes, a California prisoner, is currently serving a life sentence for three murders by arson that he claims he did not commit.Souliotes seeks to prove his innocence based on the results of new fire testing methods that he claims could have only been reasonably discovered in 2005.We are called upon to decide whether his petition for writ of habeas corpus was timely filed under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132,110 Stat. 1214, and, if so, which of his claims for relief are cognizable.

The district court dismissed Souliotes's habeas petition as untimely because it was filed five days after AEDPA's one-year limitations period set forth at 28 U.S.C. § 2244(d)(1)(A).However, in doing so, the district court rejected Souliotes's invocation of the limitations period at § 2244(d)(1)(D) based on the date on which the factual predicate of his innocence claim could have been reasonably discovered.Contrary to the district court's approach, § 2244(d)(1)(D) does not require that petitioners exercise the maximum diligence possible in uncovering the factual bases of their claims, but only “due” or “reasonable” diligence.Thus, we reverse the district court's dismissal of the habeas petition and remand for expedited proceedings to determine when an inmate in Souliotes's position could have discovered the new evidence with reasonable diligence.

Because we also hold that § 2244(d)(1)(D) applies only to Souliotes's innocence claim, and not his claims for relief that are not based on new evidence, we must also address his claims for equitable tolling and application of the “actual innocence gateway” to the AEDPAstatute of limitations.SeeSchlup v. Delo,513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808(1995).We affirm the denial of equitable tolling because the failure of Souliotes's attorney to note the correct date on which Souliotes's state court decision became final is not an “extraordinary circumstance,” but rather an instance of ordinary negligence.Holland v. Florida,--- U.S. ----, 130 S.Ct. 2549, 2564, 177 L.Ed.2d 130(2010).Our recent precedent that AEDPA does not include an innocence gateway in its statute of limitations forecloses Souliotes's gateway claim.SeeLee v. Lampert,610 F.3d 1125, 1128-31(9th Cir.2010).As a result, Souliotes's additional claims for relief are time-barred.

Background

Souliotes challenges his May 2000 conviction for arson and three counts of murder with special circumstances based on newly discovered evidence derived from scientific methods that were not available at the time of trial.Souliotes alleges that new expert testimony refutes the key evidence the prosecution used to link him to the residential fire that killed three people.In addition to claiming actual innocence, Souliotes presents claims of ineffective assistance of counsel, violation of the Vienna Convention, and juror misconduct.

Souliotes was tried twice.At the first trial, Souliotes's counsel presented evidence, including testimony from fourteen witnesses, to support the theory that the fire was an accident and undermine the credibility of the prosecution's witnesses and the prosecution's “financial motive” theory.The first jury hung.At the second trial, Souliotes was represented by the same attorney, who this time put on only one witness, an individual who had served as a prosecution witness at the first trial.Souliotes was convicted on all charges and sentenced to life without the possibility of parole.

During Souliotes's second trial, the prosecution relied heavily on scientific evidence indicating that a liquid was used to ignite the fire.After the fire, this liquid left residues of medium petroleum distillates (“MPDs”) at the scene.A prosecution witness testified that Souliotes's shoes also contained MPDs.¹

The prosecution characterized the MPDs on Souliotes's shoes as “the most conclusive scientific evidence.”“What set the fire?”the prosecution asked at closing argument.“Medium petroleum distillates.”The prosecution concluded:

[T]his was an arson.From that flows the rest.From that the finger of guilt points to the defendant.Doesn't point to the one-armed man.It points to George Souliotes because he's the one.The shoes tell the tale.He summoned that demon that morning.He poured that liquid on the ground and he brought that demon to life and that demon took Michelle, Daniel, and Amanda.He is responsible, he is guilty, and justice accordingly demands that he be found that way.

In 1997, before Souliotes's trials, John Lentini, a certified criminalist, chemist, and arson investigator, was asked to analyze twenty-one samples of physical evidence.Lentini was asked to determine if any of the samples contained residues of ignitable liquids.Lentini tested the samples and analyzed the results, applying the national standards in effect at the time for gas chromatography-mass spectrometry (“GC-MS”).The test data provided a “chemical fingerprint” of measured chemical compounds, but the method only identified a chemical as being within a class of chemicals, and it did not distinguish between different chemical compounds in the same class.

In his original 1997 testing, Lentini found that four items all exhibited the presence of MPDs.Items 3 and 5 were carpet and carpet foam collected from the fire scene, and items 16 and 17 were a pair of Souliotes's shoes.At the time, Lentini concluded that “the MPD found on the shoes could not be excluded as having come from the same source of MPD found on items 3 and 5, collected from the scene of the fire.”Lentini was not called as a witness in either of Souliotes's trials.

In 2005, Souliotes's sister contacted Lentini.Since 1997, Lentini had spent a considerable amount of time researching methods by which distinctions could be made within chemical compound classes, such as MPDs.Lentini reexamined the MPD evidence and found that “[b]y removing what I now know to be superfluous data recorded by the GC-MS data, ... it was possible to make distinctions among the separate compounds within the chemical class of MPD.”Specifically, he“found that there were, in fact, chemical differences between the MPDs found on items 3 and 5 (from the fire scene) and items 16 and 17 (the defendant's shoes).”On September 21, 2005, he wrote a letter to Souliotes's sister and informed her of these new findings.

In December 2005, Lentini prepared a report detailing his test methods and results and concluding that:

[T]he residue on the shoes and the residue in the scene could not have had a common origin.There is thus no chemical ‘match’ between the ignitable liquid found at the scene of the fire and the residue in defendant's shoes.

Shortly after, Lentini signed a declaration, which Souliotes attached to his federal habeas petition filed on May 30, 2006.²

However, Souliotes's petition was late.Based on a docket entry at the California Court of Appeal, Souliotes's counsel believed that only 324 days of the AEDPA one-year limitations period after the entry of a final judgment had elapsed and that he thus had forty-one days to file his habeas petition.See28 U.S.C. § 2244(d)(1)(A).But Souliotes actually only had thirty-six days left and filed his petition five days after it was due.

The state moved to dismiss Souliotes's petition as time-barred, and Souliotes raised three arguments in opposition to dismissal.First, Souliotes argued that his petition was entitled to additional tolling under § 2244(d)(1)(D) based on the newly discovered evidence of his innocence.Second, Souliotes sought equitable tolling based on exceptional circumstances that caused him to be late.Third, Souliotes sought to invoke the innocence gateway under Schlup, arguing that his actual innocence overcame the AEDPA limitations period.The district court dismissed Souliotes's petition as time-barred, and this appeal followed.

Analysis

I.Section 2244(d)(1)(D)

We consider first whether Souliotes's actual innocence claim was timely presented to the district court.Section 2244(d)(1) provides:

A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.The limitation period shall run from the latest of-

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on...