Souliotes v. Grounds

• Decision Date: 06 March 2013
• Docket Number: 1:06-cv-00667 AWI MJS HC
• Citation: Souliotes v. Grounds, 1:06-cv-00667 AWI MJS HC (E.D. Cal. Mar 06, 2013)
• Parties: GEORGE SOULIOTES, Petitioner, v. RANDY GROUNDS, Warden, Respondent.
• Court: U.S. District Court — Eastern District of California

GEORGE SOULIOTES, Petitioner,

v.RANDY GROUNDS, Warden, Respondent.

1:06-cv-00667 AWI MJS HC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: March 6, 2013

FINDING AND RECOMMENDATION

REGARDING PETITION FOR WRIT OF

HABEAS CORPUS

I.INTRODUCTION

Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.He is represented by Jimmy S. McBirney, Shannon C. Leong, Alexis Yee-Garcia and Thomas S. McConville of Orrick, Herrington & Suitcliffe LLP, and Linda Starr, Maitreya A. Badami, and Megan G. Crane of the Northern California Innocence Project.Respondent, Randy Grounds, as warden of Salinas Valley State Prison, is hereby substituted as the properly named respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.Respondent is represented by Kathleen A. McKenna of the Office of the Attorney General of California.

The issues raised in the petition arise from the following history:

On January 15, 1997, a fire occurred at rental property owned by Petitioner.Three tenants died in the fire.

On January 25, 1999, Petitioner was prosecuted for arson and three counts of first degree murder with special circumstances.The prosecution sought the death penalty.At trial, the prosecution presented fifty witnesses.Fire investigators testified with absolute conviction that the fire was intentionally set.A state criminalist testified that flammable compounds, i.e., accelerants, that could be used to start the fire were found at the scene and on Petitioner's shoes.An eyewitness testified that she saw someone ultimately identified as Petitioner at the scene just before the fire.A chain of circumstantial evidence was introduced in support of these facts.In defense, Petitioner presented several expert witnesses, including: an expert in mechanical engineering, forensics and fire investigation to refute the state fire investigators conclusions that the fire had been intentionally set and that Petitioner had been at the scene of the fire; a psychologist to describe shortcomings in eyewitness identifications and the effects of post-event information on identification accuracy; and a forensic psychiatrist to discuss the adult victim's mental health history.Petitioner also presented several lay witnesses to show he had no financial motive to commit arson, bore no ill-will toward the victims, and to otherwise undermine the prosecution's claims.After three days of deliberation, the jury was unable to reach a verdict.A mistrial was declared.

On March 13, 2000, Petitioner's second trial commenced.The prosecution presented the same fifty witnesses who provided substantially the same testimony as at the first trial.The prosecution advanced the same theories as to how the fire was intentionally set.¹Petitioner's counsel, the same counsel who represented Petitioner at the first trial, promised to present several witnesses, most specifically the expert witness on cause and origin of the fire, and promised to prove Petitioner's innocence.Defense witnesses anticipated being called.However, after the prosecution closed its case-in-chief, Petitioner's counsel rested without presenting any additional witnesses.After several hoursof deliberation, the jury found Petitioner guilty on all counts.During the penalty phase, the jury determined Petitioner should be sentenced to life without the possibility of parole.

Petitioner, through different counsel, pursued and was denied post-conviction relief in state court.On May 30, 2006, Petitioner filed the instant federal petition for habeas corpus relief.However, his counsel mistakenly calculated the statutory deadline for filing a federal petition for habeas corpus.The petition was filed five days late.Respondent moved to dismiss the petition as untimely.The District Court dismissed the petition on March 20, 2008.On August 17, 2011, the Ninth Circuit Court of Appeals reversed the dismissal of the petition and remanded the matter to this Court for determination, in "an expedited manner," of the applicability of an equitable exception to the statute of limitations.After conducting an evidentiary hearing, the Court found that Petitioner made a sufficient showing of actual innocence to serve as an equitable exception to the statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").The finding of actual innocence was predicated in large part on Respondent's stipulation to the scientific inaccuracy of much of the prosecution's expert witness testimony at trial.

Accordingly, Petitioner is entitled to have his claims heard on the merits.

II.CLAIMS PRESENTED IN PETITION

Petitioner presents seven claims for relief in his first amended petition for writ of habeas corpus(ECF No. 151):

1.Petitioner is actually innocent and entitled to relief under Herrera v. Collins, 506 U.S. 390, 417(1993);

2.Petitioner's trial counsel was ineffective in failing to present a fire expert in Petitioner's defense;

3.Petitioner's trial counsel was ineffective in failing to present additional witnesses in Petitioner's defense;

4.Petitioner's trial counsel was ineffective in failing to cross-examine the prosecution's fire experts using National Fire Protection Association

("NFPA") 921;²

5.The jurors committed misconduct in considering extrinsic information during deliberation;

6.Petitioner's due process rights were violated by the use of fundamentally unreliable expert testimony and evidence; and

7.Cumulative error.

III.FACTUAL AND PROCEDURAL SUMMARY

As described by the California Court of Appeal, Fifth Appellate District, Petitioner was convicted of arson and three counts of murder:³

As of January 1997, Daniel Jones, his wife (Michelle), and their children (six-year-old Daniel, Jr., and three-year-old Amanda) were renting a Modesto home from [Petitioner].[Petitioner] was in the process of evicting them.In the early morning hours of January 15, the house burned down.Michelle and the children perished.Due to the intensity of the flames and evidence that an accelerant-possibly a medium petroleum distillate such as charcoal lighter fluid or paint thinner--was poured inside the house, fire investigators determined this was an arson fire.Shortly before the blaze, [Petitioner]'s motor home was seen in the vicinity, and [Petitioner] was observed carrying something into the yard of the house.[Petitione]'s shoes tested positive for medium petroleum distillate.

[Petitioner]'s first trial ended in a mistrial when the jury was unable to reach a verdict.A second jury convicted [Petitioner] of three counts of murder (Pen. Code, § 187; counts I-III) and one count of arson of an inhabited structure (§ 451, subd. (b); count IV).As to counts I through III, the jury found true arson-murder and burglary-murder special circumstances (§ 190.2, subd. (a)(17)) and, as to count III, a multiple-murder special circumstance (§ 190.2, subd. (a)(3)), but rejected the prosecution's request for the death penalty.[Petitioner] was sentenced to three consecutive terms of life in prison without the possibility of parole and ordered to pay fines and restitution.

People v. Souliotes, 2002 Cal. App. Unpub. LEXIS 7379, 1-3(Cal. App. 5th Dist., Aug. 5,2002).

A.Evidence and Argument Presented at First Trial

1.The Prosecution Case

At Petitioner's first trial ("trial one"), the prosecution presented fifty witnesses to prove that Petitioner intentionally set fire to his rental home.The case against Petitioner was based primarily on four categories of evidence: (1) expert scientific opinions that the fire was intentionally set by Petitioner, (2) scientific evidence that Petitioner's shoes and objects from the scene tested positive for medium petroleum distillates ("MPDs"), (3) eyewitness Monica Sandoval's testimony that she saw Petitioner and his motor home at the scene of the fire just before it started, and (4) evidence that Petitioner was in financial duress and bore ill-will toward the Jones family and so had motive to destroy the home.

a. Arson

At trial one, fire investigators from the Modesto County Fire Department testified with certainty that the fire was caused by arson.They relied on several factors to support their conclusion: the fire was described as being unusually hot; there were "pour patterns" on the floor where flammable liquids had been poured and ignited; there was "deep charring" on the walls; there was insufficient combustible material ("fuel load") in the house to sustain such an intense fire unless an ignitable liquid, i.e., an accelerant, had been added; a hand-held hydrocarbon detector indicated the presence of ignitable liquids at the scene; and an eyewitness testified that a suspicious person had surreptitiously visited the house just before the fire started.Based on this evidence, the primary fire investigator testified at trial in his "opinion that this was a crude arson job and it's as obvious as an elephant the patterns on the floor, the patterns in the overhead of this structure correlate with each other.Liquids were poured throughout this house and ignited."⁴(RT 2053.)⁵

b. MPD Evidence

At trial one, a state criminialist testified that MPDs were found on samples from the fire scene and on Petitioner's shoes.MPDs are ignitable liquids including, but not limited to, common household items such as charcoal lighter fluid, camp fuels, lamp oil, and paint thinner.⁶(RT 3141.)This evidence created what the district attorney claimed was a very strong physical link between Petitioner and the fire scene.In his closing argument, he argued that finding MPDs at the fire scene was very unusual and that the presence of MPDs on Petitioner's shoes was significant evidence upon which to find Petitioner guilty of arson:

[T]here is no doubt, there is no reasonable doubt that this was an arson; and since it was an arson, someone had to enter.That someone came in and that someone burned Michelle Jones,

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