In Souliotes v Hedgpeth, No. 06-cv-0667-AWI-MJS, Yosemite Magistrate Judge Michael J. Seng issued these 99-page Findings & Recommendations (F&Rs) concluding that George Souliotes had presented sufficient evidence of actual innocence to equitably excuse his otherwise untimely petition for writ of habeas corpus. In his §2254 petition, Souliotes challenges his Stanislaus County conviction of arson and three counts of murder arising out of a 1997 fire in which three people died. Souliotes was sentenced to life imprisonment without the possibility of parole.
At his trial, Souliotes was convicted of setting a fire at rental property he owned with testimony from a state criminalist that flammable compounds used as accelerants and found at the scene were also found on his shoes. According to the judge's F&Rs at p.2, 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." The Attorney General "now agrees there is no chemical evidence linking Petitioner to the fire scene . . . and now acknowledges that the previously-introduced scientific evidence or arson was in fact unreliable." "[B]oth parties agree it cannot be determined if the fire was intentionally or accidentally initiated." As a result, Judge Seng recommends that the evidence of actual innocence be held to excuse the late-filing of Souliotes's habeas petition and that the court should proceed to consider the merits of his underlying claims, including his claim of actual innocence. For a lay summary, see Modesto Bee, 4/27/12 .
This case is a poster child for a lot of what is wrong with the anti-habeas law (AEDPA) and the decimation of habeas corpus protections in recent years. Habeas law has become so complex with its numerous roadblocks (exhaustion, procedural default, timeliness, etc.) that even experienced attorneys have difficulty figuring it all out and can easily make mistakes that bar review of potential constitutional violations and actual innocence claims. In this case, Souliotes federal habeas petition was initially filed on May 20, 2006. It was found to have been filed 5 days late and was dismissed in 2008. In Souliotes v. Evans, 622 F.3d 1173 (9th Cir. 2010), the Ninth Circuit Court of Appeals in a 2-1 decision affirmed in part, but reversed and remanded for an evidentiary hearing on whether the defendant used due diligence in discovering the new evidence of innocence. On August 17, 2011, the Court vacated its original opinion in light of its intervening en banc decision in Lee v. Lampert, 653 F.3d 929 (9th Cir. 2011) (en banc) and remanded for the district court to conduct whatever proceedings are necessary to determine whether any of Souliotes's habeas claims may be addressed on the merits. Souliotes v. Evans, 654 F.3d 902 (9th Cir. 2011). The Court also directed the district court to expedite the matter on remand, given that Souliotes was 70 years old.
What is wrong with this picture? Where everyone agrees that the physical evidence that resulted in Souliotes's conviction and life sentence is invalid and in no way links him to the crimes, why does our system require an evidentiary hearing and years of delay before we can get to the merits of his habeas petition? At this point, it is hard to fathom why the Attorney General and Stanislaus County D.A. have still not agreed to a new trial and Souliotes's release. Has actual innocence become so irrelevant to our system of justice? Here's hoping that the AG steps up and does the right thing now by not filing objections to the magistrate's F&Rs and agreeing to 70-year old Souliotes's immediate release pending any decision whether to retry him. [revised 4/29/12]