More on Northern California Innocence Project’s Souliotes Case…

By Linda Starr, Legal Director, Northern California Innocence Project:

This blog has reported here and here on Chief Federal District Court Judge Anthony Ishii’s decision adopting Magistrate Judge Michael Seng’s 99 page Findings and Recommendation that Mr. Souliotes had made a sufficient showing of actual innocence to serve as an exception to the federal one year statute of limitations, and is entitled to have the merits of his underlying claims heard, regardless of whether the federal petition had been filed 5 days late.  Judge Ishii sent the matter back to Magistrate Judge Seng for further adjudication. We at the Northern California Innocence Project at Santa Clara University (NCIP), along with the law firm of Orrick, Herrington and Sutcliffe, have represented Mr. Souliotes for more than 10 years, and are now preparing to litigate the underlying claims of our federal petition for writ of habeas corpus.  The tortured history of this case is worth detailing for others who fight these cases as well as to generate waves of good blog karma to support Mr. Souliotes in his fight for freedom.

In 2000, a Modesto, California jury convicted Mr.Souliotes of a 1997 arson and triple homicide after the state argued that Mr. Souliotes had set the fire that killed a woman and her two children who were living in his rental property.  The district attorney argued that arson investigators had determined that the fire was an arson and that a substance on Mr. Souliotes’ shoes (“MPDs”) matched a substance at the scene that could have been used as an accelerant and that “the shoes tell the tale”.  This was Mr. Souliotes’ second trial after the first jury was unable to reach a verdict.  In both trials the prosecution sought the death penalty, but after the conviction, the jury declined to impose death and imposed 3 sentences of life without possibility of parole.

NCIP and Orrick have litigated this case throughout the state and federal courts for years, arguing that new scientific evidence provided by Mr. Lentini showed that the MPDs from the scene were in fact different from those from Mr. Souliotes’ shoes, and that Mr. Souliotes received ineffective assistance of counsel when counsel failed to call any witnesses at the second trial, after multiple witnesses testified at the first, including an expert who testified that the fire could not be determined to be an arson, financial experts who testified that Mr. Souliotes had no financial motive to set the fire and would not profit from any insurance proceeds, a prospective buyer who testified that he had offered to buy the home for fair market value, and evidence that Mr. Souliotes had voluntarily permitted the tenants to stay in the home, despite having an enforceable eviction order, when their trailer park flooded.

After losing in state court without a hearing, we filed our petition in federal district court.  The district court dismissed our petition as untimely by 5 days when the petition was filed according to a confusing docket entry.  The docketing procedure has since been changed to avoid confusion to others, but was not considered sufficient to excuse the filing.  We obtained a certificate of appealability to the 9^th Circuit and began litigating the issues of whether statutory tolling would apply to permit the MPD evidence issue to be litigated, whether the Schlup actual innocence gateway applies to excuse statute of limitations violations and that we met the gateway standard. While our case was pending, another panel of the 9^th held that Schlup did not apply to statute of limitations violations (Lee v. Lampert, 610 F.3d 1125, 1128-31 (9th Cir. 2010) and our panel was forced to follow that decision and deny consideration of our underlying constitutional claims, including IAC. We won the statutory tolling issue in the 9th and the court sent us back to the district court to see if we could establish statutory tolling, but that would permit consideration only of a freestanding actual innocence claim.  We then worked with the Network and with NACDL to file amicus briefs in Lee to support a petition for rehearing en banc.  The 9^th reversed Lee en banc (Lee v. Lampert, 653 F.3d 929 (9th Cir. 2011) (en banc) and held “that a credible claim of actual innocence constitutes an equitable exception to AEDPA’s limitations period, and a petitioner who makes such a showing may pass through the Schlup gateway and have his otherwise time-barred claims heard on the merits.” Id. at 931-32.  Following this reversed decision in Lee, the 9^th then expanded our hearing in the district court to include a Schlup hearing.

In the hearing this past February, the state was forced to concede that the fire could not be determined to be an arson and that the MPD evidence from the shoes and at the scene are in fact different substances.  Nonetheless, the state argued that an eyewitness’s testimony that she had seen Mr. Souliotes that night supported the conviction.  Both the magistrate and district court judge agreed that the eyewitness’s testimony completely lacked credibility and that without the concededly bad fire science and MPD evidence, it was more likely than not that no reasonable juror would have found Mr. Souliotes guilty.  Thus, under the standard articulated in Schlup v. Delo, 513 U.S. 298, 327 (1995) and House v. Bell, 547 U.S. 518, 537  (2006), Mr. Souliotes was entitled to pass through the Schlup gateway and argue his underlying claims.

NCIP and Orrick have been fighting to get Mr. Souliotes his day in court for more than a decade.  The state has raised one ridiculous argument after another, has continually misstated the law and has flatly refused to consider any possibility that they got this wrong.

We are thrilled for Mr. Souliotes and his family and eager to show the court that Mr. Souliotes’s trial counsel was ineffective and that he is not only innocent enough to permit consideration of his claims, but undisputedly innocent and should have his conviction reversed.

Our client is now 71 years old, and the court has continued to remind all parties that the matter should be handled in an expedited fashion. We are hoping that we will soon be able to report to you on a successful result for Mr. Souliotes.