Souliotes v. Hedgpeth, 1:06-cv-00667 AWI MJS HC

• Decision Date: 26 April 2012
• Docket Number: 1:06-cv-00667 AWI MJS HC
• Parties: GEORGE SOULIOTES, Petitioner, v. ANTHONY HEDGPETH, Warden, Respondent.
• Court: U.S. District Court — Eastern District of California

GEORGE SOULIOTES, Petitioner,

v.ANTHONY HEDGPETH, Warden, Respondent.

1:06-cv-00667 AWI MJS HC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: April 26, 2012

FINDINGS AND RECOMMENDATION REGARDING STATUTE OF LIMITATIONS ISSUES

I. INTRODUCTION

Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is represented by Jimmy S. McBirney, Megan G. Crane, and Shannon C. Leong of Orrick, Herrington & Suitcliffe LLP, and Linda Starr of the Northern California Innocence Project. Respondent, Anthony Hedgpeth, as warden of Salinas Valley State Prison, is hereby substituted as the proper 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.

This matter arises from the following facts:

On January 15, 1997, a fire occurred at rental property owned by Petitioner. Three tenants died in the fire. Petitioner was prosecuted for starting the fire. At Petitioner's trial, fireinvestigators testified with conviction that the fire was intentionally set. A state criminalist testified that flammable compounds used as accelerants and found at the scene were also found on Petitioner's shoes. An eyewitness testified that she saw Petitioner at the scene just before the fire. A chain of circumstantial evidence was woven around these facts. A jury found Petitioner guilty of arson-murder. He was sentenced to life in prison without the possibility of parole.

Petitioner, through counsel, pursued post-conviction relief in both state and federal courts. However, his counsel mistakenly calculated the one year statutory deadline for filing a federal petition for habeas corpus. The petition was filed five days late. Petitioner is not entitled to equitable tolling. Instead he presents new evidence of actual innocence in an attempt to qualify for an equitable exception to the statute of limitations.

The new evidence upon which Petitioner relies establishes unequivocally that the chemical compound found on Petitioner's shoes was not the same as that found at the fire scene. Respondent now agrees there is no chemical evidence linking Petitioner to the fire scene. Respondent also now acknowledges that previously-introduced scientific evidence of arson was in fact unreliable; both parties agree it cannot be determined if the fire was intentionally or accidentally initiated.

Petitioner claims that the new scientific evidence and the unreliability of the eyewitness constitute a sufficient showing of actual innocence to equitably excuse the untimeliness of his federal habeas petition. His collateral appeals have culminated in the present evidentiary hearing in which this Court has been directed to examine all relevant evidence and make a determination as to whether any reasonable juror would find Petitioner guilty beyond a reasonable doubt.

II. FACTUAL SUMMARY

A. Petitioner's Conviction

As described by the California Court of Appeal, Fifth Appellate District, Petitioner wasconvicted of arson and three counts of murder:¹

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.

[Petitione]'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).

B. Evidence and Theories Presented at Trial

1. Overview

At trial, the prosecution's arson case against Petitioner rested primarily on three sources: (1) fire cause and origin analysis that proved the fire was arson, (2) scientific evidence that Petitioner's shoes were present at the fire scene because they tested positive for medium petroleum distillates ("MPDs") found at the scene, and (3) eyewitness Monica Sandoval's testimony that she saw Petitioner in his motor home at the scene of the fire just before it started. The prosecution also presented evidence Petitioner had motive to destroy the home.

2. Arson

At trial, fire investigators from the Modesto County Fire Department testified withcertainty 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 obviously 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 the 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 that he had "no doubt . . . that this was an arson fire" involving an ignitable liquid, and "[t]he ignition device was a human hand." (RT 6722, 6957.)²

3. MPD Evidence At trial, a state criminialist testified that MPDs were found on samples from the fire scene and also on Petitioner's shoes. Many MPDs are ignitable liquids; common household items such as charcoal lighter fluid, some camp fuels, and some solvents are MPDs. (RT 8885.)

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 the "most conclusive scientific evidence." (RT 9033, 9049.) He finished by explaining how this evidence was enough to find Petitioner guilty of arson:

I've proven that it was an arson. Two men that have done this for their entire careers, two retired captains from the fire department say it's an arson; and from that, the physical evidence, their expert opinion, all the other testimony of the firefighters proves that up, that this 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 lifeand that demon took Michelle, Daniel and Amanda. He is responsible, he is guilty, and justice accordingly demands that he be found that way. Thank you.

(RT 9050.)

C. Petitioner's Newly Discovered Evidence

1. New MPD Testing Results

In September 2005, Petitioner's sister contacted John Lentini, a criminalist, chemist, and arson investigator, to see if there was any new technique or information regarding the testing of MPD samples from Petitioner's case. Lentini had originally tested the samples for Petitioner at trial and, like the state criminalist, concluded that both Petitioner's shoes and samples from the fire exhibited the presence of an ignitable liquid belonging to the class of compounds known as medium petroleum distillates and, further, that the MPDs in these samples could not be distinguished. (See Pet., Ex. B, ECF No. 1.) Thus, at the time of Petitioner's second trial, the MPDs found on Petitioner's shoes could not be excluded as having come from the same source of MPDs found in the samples from the fire scene. (Id.)

However, upon further research in 2005, Lentini devised a method, previously unknown to him and not described in scientific literature, to distinguish chemical differences between the MPDs found on the samples from the fire scene and Petitioner's shoes. Using that method, he found that there was no chemical match between the residue on Petitioner's shoes and the MPDs at the fire scene. Lentini alerted Petitioner and his counsel to his findings. Petitioner thereupon filed state and federal petitions seeking relief based on the new findings.

Prior to the evidentiary hearing on actual innocence, Respondent stipulated: "The MPD on Petitioner's shoes is chemically distinguishable from the MPD found on the carpet samples taken from the fire scene, and the MPDs did not originate from a common source," and "Detectable MPDs are commonly found on many household products and consumer goods, including the solvents in glues and adhesives used in floor coverings and footwear, residues of dry cleaning solvents, insecticides and cleaning agents." (See Joint Pretrial Statement, Undisputed Facts 13-14, ECF No. 108.)

Thus, this Court is presented with new evidence which annuls a key evidentiary linkleading to Petitioner's conviction. Contrary to what the jury had been told, Petitioner's shoes do not link Petitioner to the scene of the...