Souliotes v. Evans , 434 F. App'x 660 ( 2011 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 25 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
GEORGE SOULIOTES, No. 08-15943
Petitioner - Appellant, D.C. No. 1:06-cv-00667-OWW-
WMW
v.
MIKE EVANS, Warden; ANTHONY ORDER
HEDGPETH, Warden,
Respondents - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, District Judge, Presiding
Argued and Submitted February 12, 2010
San Francisco, California
Before: McKEOWN and BERZON,* Circuit Judges, and ZILLY,** Senior District
Judge.
Petitioner George Souliotes, who is now over seventy years old, is currently
serving a life sentence in California’s custody for three murders by arson that he
*
Due to the death of Judge Cynthia Holcomb Hall, Judge Marsha S.
Berzon, United States Circuit Judge for the Ninth Circuit, was drawn to replace
her.
**
The Honorable Thomas S. Zilly, Senior United States District Judge for
the Western District of Washington, sitting by designation.
claims he did not commit. At 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.”
Souliotes v. Evans, 622 F.3d 1173, 1176 (9th Cir. 2010). Approximately eight
years after Souliotes’s conviction, a chemist and arson investigator, John Lentini,
using scientific techniques unavailable at the time of Souliotes’s trial, was able to
distinguish between the MPDs found on Souliotes’s shoes and the MPDs from the
crime scene. Souliotes presented this MPD evidence in a petition for writ of
habeas corpus. The habeas petition was eventually dismissed by the district court
as untimely filed.
In September 2010, we held that the district court applied an incorrect
diligence standard under 28 U.S.C. § 2244(d)(1)(D), one of the provisions of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) that triggers
the one-year limitations period for filing a habeas petition. Souliotes, 622 F.3d at
1178-79. The Court further concluded that an evidentiary hearing is necessary to
determine when the scientific techniques at issue were developed and would have
been available to an inmate like Souliotes. Id. Finally, the Court rejected
Souliotes’s claims under the doctrine of equitable tolling and under the “actual
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innocence” or “miscarriage of justice” gateway. Id. at 1181; see also Schlup v.
Delo, 513 U.S. 298 (1995). With respect to the latter issue, the Court relied on Lee
v. Lampert, 610 F.3d 1125 (9th Cir. 2010).
A majority of nonrecused active judges of this Court recently voted to rehear
the Lee case en banc. Although the outcome in Lee upon rehearing en banc may
affect the scope of Souliotes’s habeas claims on remand, the result in Lee will not
alter the need for an evidentiary hearing concerning when Souliotes could have
discovered the new evidence at issue. The Court is mindful of the amount of time
that has elapsed since Souliotes filed his habeas petition. The Court is also aware
that Souliotes is no longer a young man and that, for him to have a meaningful
right to habeas review, the timing of proceedings is significant. Thus, while
awaiting an en banc opinion in Lee, we remand this case to the district court for the
limited purpose of conducting an expedited evidentiary hearing to determine when
an inmate in Souliotes’s position could have discovered, through the exercise of
due diligence, the new MPD evidence. See Nash v. Ryan, 581 F.3d 1048, 1058
(9th Cir. 2009) (ordering a limited remand to allow the district court to make a
factual determination); Friery v. L.A. Unified Sch. Dist., 448 F.3d 1146, 1150 (9th
Cir. 2006) (same). The parties shall advise the Court when the evidentiary hearing
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has concluded and the district court has entered findings of fact and conclusions of
law.
We therefore grant a limited remand for the district court to conduct further
proceedings consistent with this order.
REMANDED.
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