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George Souliotes v. Anthony Hedgpeth

January 10, 2012


The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge


Pre-Hearing Motions:

Filing Deadline: January 18, 2012

Response Deadline: January 20, 2012

Joint Stipulations To Be Filed By: January 20, 2012

Evidentiary Hearing: Date: January 24, 2012 Time: 9:30 a.m. (3-5 days est.) Courtroom: 6 (MJS)

On January 5, 2012, this Court and the parties convened a conference in this matter in preparation for the evidentiary hearing to be held pursuant to order of the Ninth Circuit Court of Appeals. Petitioner, George Souliotes, appeared by counsel Jimmy McBirney and Megan Crane, of Orrick, Herrington, & Sutcliffe, LLP. Respondent Anthony Hedgpeth, Warden, Salinas Valley State Prison, appeared by counsel Kathleen McKenna of the Office of the Attorney General of California. Pursuant to Fed. R. Civ. P. 16(d)-(e), the Court issues this final pre-hearing order.


On August 17, 2011, the Ninth Circuit remanded this case to this Court for further proceedings.The order, in its entirety, states:

In light of the intervening en banc decision in Lee v. Lampert, No. 09-35276, 2011 U.S. App. LEXIS 15830, 2011 WL 3275947 (9th Cir. Aug. 2, 2011) (en banc), we vacate our opinion in Souliotes v. Evans, 622 F.3d 1173 (9th Cir. 2010), reverse the district court's dismissal of Souliotes's habeas petition as untimely, and remand for proceedings consistent with Lee.

We also vacate our order of limited remand issued on May 25, 2011, with the understanding that the district court will conduct whatever proceedings are necessary, in an expedited manner, to determine whether any of Souliotes's habeas claims may be addressed on the merits.

Souliotes v. Evans, 2011 U.S. App. LEXIS 17034, 1-2 (9th Cir. Aug. 17, 2011).

Consistent with the Ninth Circuit's instructions, this Court will conduct an evidentiary hearing beginning January 24, 2012, for the purpose of making findings and recommendations on the issue of whether the statute of limitations was tolled or otherwise excepted with regard to the claims in Petitioner's federal petition. Specifically, the Court shall address and determine the following issues in light of the evidence presented at the hearing: (1) whether with regard to Petitioner's stand-alone claim of actual innocence, Petitioner satisfies the diligence requirement of § 2244(d)(1)(D) relating to his discovery of new medium petroleum distillate ("MPD") evidence; and, (2) whether there is a showing of actual innocence sufficient to entitle Petitioner to an equitable exception (under Schlup v. Delo, 513 U.S. 298, 331-332 (1994)) to AEDPA's limitations period relating to Petitioner's substantive claims for relief.


Jurisdiction is appropriate pursuant to 28 U.S.C. § 2254(a). Petitioner challenges a conviction occurring in Stanislaus County, and therefore venue is proper under 28 U.S.C. § 2241(d).


Rule 8 of the Rules Governing Section 2254 Cases requires evidentiary hearings in federal habeas petitions to be heard before the Court.


The parties estimate the evidentiary hearing will last four days.


The hearing will commence on January 24, 2012 at 9:30 a.m. in Courtroom 6 (MJS).


The parties' counsel and all persons seated at counsel table with them during the evidentiary hearing shall comply with the following guidelines during all court appearances. These requirements are minimal, not all-inclusive, and are intended to supplement, not supplant or limit, the ethical obligations of counsel under the Code of Professional Conduct.

A. Counsel shall stand at the lectern while examining any witness, except counsel may approach the Courtroom Deputy Clerk's (CRD) desk or the witness for the purposes of handing or tendering exhibits if permission is first granted by the Court.

B. Counsel shall stand at or in the vicinity of the lectern while making opening statements or closing arguments except as necessary to refer to exhibits.

C. Counsel shall address all remarks to the Court, not opposing counsel. D. Counsel shall refrain from disparaging personal remarks or acrimony toward opposing counsel, witnesses and parties.

E. Neither counsel nor witnesses shall address or refer to any party, counsel, court staff or witness by first name.

F. Only one attorney for each party shall examine each witness on direct or cross-examination. Only the attorney who examines a witness shall state objections to opposing counsel's questions to that witness.

G. Only one attorney for each party shall present oral argument on motions, an opening statement, or closing argument except that different motions, the opening statement, or closing argument may be divided among counsel if different subjects are addressed and Court permission is first obtained.

H. Counsel should request permission before approaching the bench or a witness.

I. Any hard copy of a document or exhibit counsel wish to have the Court examine should be handed to the Courtroom Deputy Clerk.

J. Any paper exhibit not previously marked for identification should first be handed to the CRD to be marked before it is tendered to a witness for examination or placed on a viewing screen.

K. Any exhibit offered in evidence should, at the time of such offer, be handed to opposing counsel, unless pre-marked and a copy is in the possession of opposing counsel.

L. Exhibits should be moved into evidence after the foundation is laid at the time the exhibit is first used with a witness. Counsel may not wait until the close of the evidence to move for admission of all exhibits.

M. Speaking objections are not permitted. In making objections, counsel should state only the legal grounds for the objection and withhold further comment or argument unless elaboration is requested by the Court.

N. In examining a witness, counsel shall not repeat, comment on, express or exhibit approval or disapproval of the answer given by the witness.

O. In opening statements and closing arguments, counsel shall not express counsel's own personal knowledge or personal opinion concerning any matter in dispute.

P. Counsel shall admonish all persons at counsel table and parties and persons under the direction and/or control of counsel, such as witnesses and other parties, including spectators, present in the courtroom, that gestures, facial expressions, laughing, snickering, audible comments, or other manifestations of approval, disapproval or disrespect during the proceedings are prohibited

Q. Absent permission form the Court, every witness other than Petitioner shall be excluded from the courtroom until such time as his or her testimony is introduced and concluded.


The parties have stipulated and agreed that the following facts are supported by the evidence referred to below and may be deemed established for purposes of this case:

1. In the early morning hours of January 15, 1997, a fire destroyed the house located at 1319 Ronald Avenue, Modesto, Caliofornia. The house was owned by George Souliotes. Three of the tenants then living in the house -- Michelle Jones, Amanda Jones, and Daniel Jones Jr. -- perished in the fire. The fourth tenant, Daniel Jones Sr., was not at home.

2. The fire was investigated by Captain Reuscher and Captain Evers of the Modesto Fire Department. Both investigators determined the fire to be the result of arson.

3. Captain Reuscher and Captain Evers both relied on several factors that they believed provided evidence of arson using a flammable liquid. The following factors relied on by Captains Reuscher and Evers are now known not to be indicators of arson using a flammable liquid. These factors are:

a. Deep burning and floor damage to the floor inside the residence and burn patterns on the floor inside the residence and on the concrete floor of the garage.

b. The temperature of the fire, evidenced by deep charring and witness accounts of an "extremely hot" fire.

c. Lack of sufficient fuel for the fire to have occurred without the use of flammable liquid.

4. The floor damage and burn patterns located inside the house and garage that the original investigators attributed to arson using a flammable liquid appear to be the result of flashover burning and fall-down from the roof collapsing and are not indicators of arson using a flammable liquid.

5. Fires involving liquid accelerants do not burn at higher temperatures than fires not involving the use of a flammable liquid.

6. There was sufficient fuel in the house for the fire to have occurred without the use of a flammable liquid.

7. The parties' experts all agree that they cannot determine the cause and origin of the fire based on the available evidence and record as it exists today, including whether the fire was accidental or the result of arson.

8. Captain Reuscher used a "hydrocarbon detector" at the fire scene to search for the possible presence of ignitable liquids. Captain Bruce Elliott of the Modesto Police Department also used the detector to search Petitioner and his clothing for the possible presence of ignitable liquids. The detector gave ...

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