ORDER ADOPTING FINDINGS AND RECOMMENDATION, DENYING RESPONDENT'S MOTION TO DISMISS
BASED ON THE AEDPA'S STATUTE
OF LIMITATIONS, AND FINDING PETITIONER HAS SHOWN SUFFICIENT
EVIDENCE OF INNOCENSE TO SERVE
AS AN EXCEPTION TO THE AEDPA'S
STATUTE OF LIMITATIONS [Doc. 141]
ORDER REFERRING ACTION TO MAGISTRATE JUDGE MICHAEL J. SENG FOR A STATUS CONFERENCE
Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On April 26, 2012, Magistrate Judge Michael J. Seng issued a Findings and Recommendation that recommended the court find Petitioner has made a sufficient showing of actual innocence to serve as an equitable exception to the one year statute of limitations set forth by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") See 28 U.S.C. § 2244(d). This Findings and Recommendation was served on all parties with notice that any objections were to be filed within fourteen days. Upon obtaining extensions of time, Respondent filed timely objections to the Findings and Recommendation on May 21, 2012 and Petitioner filed a reply to the objections on June 6, 2012.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a de novo review of the case. "De novo review means that the reviewing court does not defer to the lower court's ruling but freely considers the matter anew, as if no decision had been rendered below." Dawson v. Marshall, 561 F.3d 930, 933 (9 th Cir. 2009) (internal quotations and citation omitted).
Having carefully reviewed Magistrate Judge Seng's Findings and Recommendation, Respondent's objections, and Petitioner's reply, the court concludes that the Findings and Recommendation is supported by the record and proper analysis. The procedural history, facts, and legal issues are well known to the parties and correctly set forth in the Findings and Recommendation. They need not be repeated here. The court only briefly comments on the parties' commentary regarding the Findings and Recommendation.
A. Expedient Resolution of the Present Matter
Preliminarily, the court notes that the present matter has been pending before this court for over six years. On September 20, 2010, the Ninth Circuit remanded the matter back to this court to hold an expedited evidentiary hearing to determine if the petition was timely under 28 U.S.C. § 2244(d)(1)(D), and if so, adjudicate the merits of his petition on an expedited basis. See Souliotes v. Evans, 622 F.3d 1173, 1182 (9 th Cir. 2010). Again, on May 25, 2011, the Ninth Circuit remanded the matter, despite the fact that an en banc panel of the Ninth Circuit would be issuing intervening authority shortly thereafter, and again, the Ninth Circuit ordered this court to perform an expedited evidentiary hearing. See Souliotes v. Evans, 434 Fed. App. 660, 661 (9 th Cir. 2011) ("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.") Finally, on August 11, 2011, after remanding the matter in light of the intervening decision in Lee v. Lampert, 653 F.3d 929, 931 (9 th Cir. 2011) (en banc), the Ninth Circuit again ordered the court to adjudicate this matter in an expedited manner. Souliotes v. Evans, 654 F.3d 902 (9 th Cir. 2011).
Magistrate Judge Seng has reminded the parties of the Ninth Circuit's admonitions to adjudicate this matter with due haste numerous times. *fn1 The undersigned shares the concerns of the Ninth Circuit and the Magistrate Judge. The present finding that Petitioner has made a sufficient showing of actual innocence only heightens such concerns. The court further notes that all parties have been on notice of Petitioner's underlying claims since they were set forth in his petition filed six years ago.
B. Legal Standard for the Actual Innocence Exception
Respondent asserts that the Magistrate Judge misapplied the actual innocence standard by reviewing trial evidence that should not have been considered, erring in making credibility determinations of witnesses, and wrongly finding Petitioner made a sufficient showing of "innocence" even though Petitioner did not present conclusive evidence of exoneration. Respondent's contentions are misplaced.
1. Scope of Evidence to be Considered
The Magistrate Judge correctly set forth, and thereafter applied, the evidence to be considered when determining if Petitioner has made a sufficient showing of actual innocence to excuse the AEDPA's statute of limitations. Specifically, the Magistrate Judge followed the directives of the Supreme Court in House v. Bell, 547 U.S. 518 (2006), which held that "Schlup makes plain that the habeas court must consider 'all the evidence', old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under 'rules of admissibility that would govern at trial.'" Bell, 547 U.S. 537-38 (quoting Schlup v. Delo, 513 U.S. 298, 327-38 (1995)).
Respondent objects to the Magistrate Judge's review of "old evidence" - i.e. evidence that has not changed since the time of trial. Specifically, Respondent contends that evidence impeaching Monica Sandoval's testimony, including her ability to have observed the RV driver's facial features from her apartment balcony, Petitioner's lack of a convincing financial motive, evidence of other RV's were in the area, and evidence challenging the techniques used by the criminal investigators, was not new evidence and should not have been considered in the actual innocence analysis. *fn2 See Objections at 17, 23, 35, 40, 42-44. However, this court is required to view all the evidence, both old and new, and make "a probabilistic determination about what reasonable, properly instructed jurors would do." House, 547 U.S. at 538. Petitioner brought forth new evidence regarding the ability to differentiate the ...