The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
FINDING AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is represented by Jimmy S. McBirney, Shannon C. Leong, Alexis Yee-Garcia and Thomas S. McConville of Orrick, Herrington & Suitcliffe LLP, and Linda Starr, Maitreya A. Badami, and Megan G. Crane of the Northern California Innocence Project. Respondent, Randy Grounds, as warden of Salinas Valley State Prison, is hereby substituted as the properly named respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. Respondent is represented by Kathleen A. McKenna of the Office of the Attorney General of California.
The issues raised in the petition arise from the following history: On January 15, 1997, a fire occurred at rental property owned by Petitioner. Three tenants died in the fire.
On January 25, 1999, Petitioner was prosecuted for arson and three counts of first degree murder with special circumstances. The prosecution sought the death penalty. At trial, the prosecution presented fifty witnesses. Fire investigators testified with absolute conviction that the fire was intentionally set. A state criminalist testified that flammable compounds, i.e., accelerants, that could be used to start the fire were found at the scene and on Petitioner's shoes. An eyewitness testified that she saw someone ultimately identified as Petitioner at the scene just before the fire. A chain of circumstantial evidence was introduced in support of these facts. In defense, Petitioner presented several expert witnesses, including: an expert in mechanical engineering, forensics and fire investigation to refute the state fire investigators conclusions that the fire had been intentionally set and that Petitioner had been at the scene of the fire; a psychologist to describe shortcomings in eyewitness identifications and the effects of post-event information on identification accuracy; and a forensic psychiatrist to discuss the adult victim's mental health history. Petitioner also presented several lay witnesses to show he had no financial motive to commit arson, bore no ill-will toward the victims, and to otherwise undermine the prosecution's claims. After three days of deliberation, the jury was unable to reach a verdict. A mistrial was declared.
On March 13, 2000, Petitioner's second trial commenced. The prosecution presented the same fifty witnesses who provided substantially the same testimony as at the first trial. The prosecution advanced the same theories as to how the fire was intentionally set.*fn1 Petitioner's counsel, the same counsel who represented Petitioner at the first trial, promised to present several witnesses, most specifically the expert witness on cause and origin of the fire, and promised to prove Petitioner's innocence. Defense witnesses anticipated being called. However, after the prosecution closed its case-in-chief, Petitioner's counsel rested without presenting any additional witnesses. After several hours of deliberation, the jury found Petitioner guilty on all counts. During the penalty phase, the jury determined Petitioner should be sentenced to life without the possibility of parole.
Petitioner, through different counsel, pursued and was denied post-conviction relief in state court. On May 30, 2006, Petitioner filed the instant federal petition for habeas corpus relief. However, his counsel mistakenly calculated the statutory deadline for filing a federal petition for habeas corpus. The petition was filed five days late. Respondent moved to dismiss the petition as untimely. The District Court dismissed the petition on March 20, 2008. On August 17, 2011, the Ninth Circuit Court of Appeals reversed the dismissal of the petition and remanded the matter to this Court for determination, in "an expedited manner," of the applicability of an equitable exception to the statute of limitations. After conducting an evidentiary hearing, the Court found that Petitioner made a sufficient showing of actual innocence to serve as an equitable exception to the statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The finding of actual innocence was predicated in large part on Respondent's stipulation to the scientific inaccuracy of much of the prosecution's expert witness testimony at trial.
Accordingly, Petitioner is entitled to have his claims heard on the merits.
II. CLAIMS PRESENTED IN PETITION
Petitioner presents seven claims for relief in his first amended petition for writ of habeas corpus (ECF No. 151):
1. Petitioner is actually innocent and entitled to relief under Herrera v. Collins, 506 U.S. 390, 417 (1993);
2. Petitioner's trial counsel was ineffective in failing to present a fire expert in Petitioner's defense;
3. Petitioner's trial counsel was ineffective in failing to present additional witnesses in Petitioner's defense;
4. Petitioner's trial counsel was ineffective in failing to cross-examine the prosecution's fire experts using National Fire Protection Association ("NFPA") 921;*fn2
5. The jurors committed misconduct in considering extrinsic information during deliberation;
6. Petitioner's due process rights were violated by the use of fundamentally unreliable expert testimony and evidence; and
III. FACTUAL AND PROCEDURAL SUMMARY
As described by the California Court of Appeal, Fifth Appellate District, Petitioner was convicted of arson and three counts of murder:*fn3
As of January 1997, Daniel Jones, his wife (Michelle), and their children (six-year-old Daniel, Jr., and three-year-old Amanda) were renting a Modesto home from [Petitioner]. [Petitioner] was in the process of evicting them. In the early morning hours of January 15, the house burned down. Michelle and the children perished. Due to the intensity of the flames and evidence that an accelerant--possibly a medium petroleum distillate such as charcoal lighter fluid or paint thinner--was poured inside the house, fire investigators determined this was an arson fire. Shortly before the blaze, [Petitioner]'s motor home was seen in the vicinity, and [Petitioner] was observed carrying something into the yard of the house. [Petitioner]'s shoes tested positive for medium petroleum distillate.
[Petitioner]'s first trial ended in a mistrial when the jury was unable to reach a verdict. A second jury convicted [Petitioner] of three counts of murder (Pen. Code, § 187; counts I-III) and one count of arson of an inhabited structure (§ 451, subd. (b); count IV). As to counts I through III, the jury found true arson-murder and burglary-murder special circumstances (§ 190.2, subd. (a)(17)) and, as to count III, a multiple-murder special circumstance (§ 190.2, subd. (a)(3)), but rejected the prosecution's request for the death penalty. [Petitioner] was sentenced to three consecutive terms of life in prison without the possibility of parole and ordered to pay fines and restitution.
People v. Souliotes, 2002 Cal. App. Unpub. LEXIS 7379, 1-3 (Cal. App. 5th Dist., Aug. 5, 2002).
A. Evidence and Argument Presented at First Trial
At Petitioner's first trial ("trial one"), the prosecution presented fifty witnesses to prove that Petitioner intentionally set fire to his rental home. The case against Petitioner was based primarily on four categories of evidence: (1) expert scientific opinions that the fire was intentionally set by Petitioner, (2) scientific evidence that Petitioner's shoes and objects from the scene tested positive for medium petroleum distillates ("MPDs"), (3) eyewitness Monica Sandoval's testimony that she saw Petitioner and his motor home at the scene of the fire just before it started, and (4) evidence that Petitioner was in financial duress and bore ill-will toward the Jones family and so had motive to destroy the home.
At trial one, fire investigators from the Modesto County Fire Department testified with certainty that the fire was caused by arson. They relied on several factors to support their conclusion: the fire was described as being unusually hot; there were "pour patterns" on the floor where flammable liquids had been poured and ignited; there was "deep charring" on the walls; there was insufficient combustible material ("fuel load") in the house to sustain such an intense fire unless an ignitable liquid, i.e., an accelerant, had been added; a hand-held hydrocarbon detector indicated the presence of ignitable liquids at the scene; and an eyewitness testified that a suspicious person had surreptitiously visited the house just before the fire started. Based on this evidence, the primary fire investigator testified at trial in his "opinion that this was a crude arson job and it's as obvious as an elephant the patterns on the floor, the patterns in the overhead of this structure correlate with each other. Liquids were poured throughout this house and ignited."*fn4 (RT 2053.)*fn5
At trial one, a state criminialist testified that MPDs were found on samples from the fire scene and on Petitioner's shoes. MPDs are ignitable liquids including, but not limited to, common household items such as charcoal lighter fluid, camp fuels, lamp oil, and paint thinner.*fn6 (RT 3141.) This evidence created what the district attorney claimed was a very strong physical link between Petitioner and the fire scene. In his closing argument, he argued that finding MPDs at the fire scene was very unusual and that the presence of MPDs on Petitioner's shoes was significant evidence upon which to find Petitioner guilty of arson:
[T]here is no doubt, there is no reasonable doubt that this was an arson; and since it was an arson, someone had to enter. That someone came in and that someone burned Michelle Jones, Daniel Jones and Amanda Jones; and that someone we know is the defendant, the person with the reason, the opportunity, the person that had the disagreement with Michelle and wanted out of that house, the person that was identified for you in court who had the chemical traces of that fire accelerant left on his shoes. (RT 4291-92.)
c. Sandoval's Eyewitness Testimony At trial one, a neighbor, Monica Sandoval, described seeing a recreational vehicle or motor home*fn7 drive back and forth past the Ronald Avenue house ten to twenty times as she stood on her nearby apartment balcony during the early morning of the fire. On one occasion, the driver parked across from Petitioner's rental house, got out of the motor home and walked to the house carrying a white sack. The driver soon returned to the motor home without the sack. Large flames erupted from the residence soon after. Later, Sandoval identified Petitioner and his motor home as the person and vehicle she had seen that morning. (RT 1509, 5960-62.)
d. Circumstantial Evidence
At trial one, the prosecution presented evidence to support a claim that Petitioner was motivated to commit the crime based on animus toward the Jones family. Daniel Jones and his family - his wife Michelle, and their children, six year old Daniel Junior and three year old Amanda - rented the house at 1319 Ronald Avenue in Modesto, California from Petitioner. On November 5, 1996, Jones notified Petitioner that he planned to move his family out of the house on December first. Jones testified that Petitioner did not show any sign of dissatisfaction with this news, and in fact seemed to understand Jones's economic reason for moving. (RT 1384.) Petitioner and Jones disagreed however on whether Jones had pre-paid his last month's rent. Petitioner presented Jones with a three-day "pay rent or quit" notice on the same day that Jones told Petitioner he was moving. (RT 1384-85.) As it turned out, while Jones intended to move out by December first, he was unable to do so until mid-January 1997. He had planned to move his family into a mobile home he had purchased. (RT 1373.) However, around the first of the year, heavy flooding occurred at the mobile home park and left Jones's home completely under water. (RT 1385-86.) Accordingly, the Joneses remained at the Ronald Avenue property past January 1, 1997.
The Joneses were scheduled to be locked out of the rental property on January 16, 1997. (RT 2396.) However, on January 13, 1997, the sheriff's office advised Petitioner's eviction agency that the writ of execution erroneously referenced Ronald "Street" rather than Ronald "Avenue." (RT 2396.) When told it likely would take a week to correct the error, Petitioner was upset, although not extraordinarily so. (RT 2404.) The eviction agency also was frustrated with the Sheriff's refusal to overlook the technical error. (RT 2407-08.)
Hope Warner, the manager of the mobile home park where the Joneses had been scheduled to move, testified that a day or two before the fire she had seen an angry exchange between the driver of a motor home and Ms. Jones, in the presence of one of her children, at the mobile home park. (RT 2687-88, 2694, 2738-42.) She identified the driver of the vehicle as Petitioner. (Id.)
The prosecution also presented evidence that Petitioner was in financial distress and wanted to rid himself of the rental property. Bertha Love, an employee at Petitioner's bank, testified that Petitioner called and came into the bank about a week before the fire to inquire about the bank taking back one of his three properties. (RT 2438-23.) Love claimed that Petitioner was "very irate" and that he "asked [her] to take back the keys" to his rental house. (Id.) Upon cross-examination, Love admitted her typewritten memorandum of the event said nothing about Petitioner being upset or irate. (RT 2447-48.) It simply reflected essential details of his request to voluntarily surrender a loan. (Id.) Love also refuted a police detective's statement that she had said that Petitioner had "thrown" his keys at her. (RT 2451.)
Banker Louis Bacigalupi, Love's supervisor, also met with Petitioner. He described Petitioner as "a little irritable, little upset about something," but otherwise engaged in a conversation about loan options. (RT 2971.) Bacigalupi was unable to answer Petitioner's questions and referred Petitioner to the loan service department. (RT 2972.)
Real estate broker Larry Titus contacted Petitioner after he learned from public records of the unlawful detainer action. (RT 2479-81.) In December 1996, Petitioner agreed to list the rental house for sale with Titus. (RT 2480-82.) Petitioner told Titus he was tired of not getting paid and with dealing with the rental. (RT 2482.) Titus discussed Petitioner's flexibility on sales price. (RT 2482-83.) Petitioner responded that he wanted to sell the house and that he was amenable to adjusting the price downward if it was too high. (Id.)
At the time of the fire, Petitioner had identified a potentially interested buyer of the Ronald Avenue house. (RT 2381-82.) Petitioner had listed the property for sale for $89,950. (RT 2483.) That same month, Earl Linam, who had previously rented from Petitioner, approached him to negotiate a purchase. (RT 2382-83.) Linam had come up with a $4,000 down payment. (RT 2386.) Linam testified that Petitioner was willing to work with him and carry a mortgage on the property. (RT 2387, 2390.)
Michael Marks, an auditor with the United States Department of Treasury's Bureau of Alcohol, Tobacco and Firearms, examined Petitioner's financial records to evaluate his financial status at the time of the fire. (RT 2276-80.) According to him, as of January 15, 1997, Petitioner had assets worth about $394,000 and liabilities of about $209,000. (RT 2301-02.) Marks put Petitioner's monthly income at $2,609 and his monthly expenses at roughly $2,100; he noted Petitioner had $16,579 in liquid savings in the bank.*fn8 (RT 2303.) Marks also testified that Petitioner had a history of paying all his bills on time and leaving no balances on his credit cards. (RT 2325.) Petitioner's monthly mortgages on his properties totaled $1,504, not including taxes and insurance. (RT 7018-7020.) Marks did not believe that the Ronald Avenue house was over-insured. (RT 2356.)
Finally, the prosecution presented circumstantial evidence that Petitioner moved his unusual and distinctive motor home on the night of the fire. Daniel and Georgina Treece, Petitioner's neighbors, worked the night shift. (RT 1821-23; 1839.) When they went to work at 11:30 p.m. that night, they noticed Petitioner's motor home was parked on the street rather than in its ususal space in the driveway (Id.) The motor home was back in its usual spot when the Treeces returned around 8:30 a.m. the next morning. (Id.) Petitioner's neighbor, Helen Grant testified that Petitioner moved his motor home to the front curb sometime between 8:15 and 9:00 p.m. on the night of the fire. (RT 2366-67.) She also noticed the motor home was back in the driveway the next morning. (Id.)
Steve Hamilton and Lisa Costley were perhaps the first to arrive at the scene and see the fire. Hamilton instructed Costley to call 911, and he attempted to look into the house. (RT 1581-84.) As Hamilton ran towards the fire, an automobile was parked in front of 1319 Ronald Avenue with its lights out and the driver seemingly watching the fire. (RT 1604.) As Hamilton approached, the driver left. (Id.) Hamilton described the driver as a 25-to-35-year-old Caucasian male with "longish light hair." (RT 1604, 6242-43.)
Another neighbor, Raul Ortega, was awakened by the fire and attempted to see if anyone was in the house. (RT 1656-58.) As he approached the house he distinctly smelled strong odors of gasoline. (Id.)
During trial, a Winnebago employee was called to testify regarding how very few motor homes like Petitioner's were produced. (See RT 2148-49, 6837.) He said Winnebago produced a total of 15,000 motor homes of that model, and 1,068 of those were shipped to California. (Id.)
Neighbor Rebecca Lovecchio testified that she kept a brown striped Dodge motor home on her property. (RT 2534-35.) Milton McEwen testified that he owned a motor home like Petitioner's, but had not driven it in the part of town near the Ronald Avenue property and did not start the fire. (RT 2903-04.)
Trial counsel presented four expert witnesses in Petitioner's defense at trial one. He called an expert in the field of engineering to rebut the testimony of the prosecution's fire experts, a financial expert to explain that Petitioner was not in financial distress, a psychologist to explain factors negatively affecting the reliability of Sandoval's identifications, and a forensic psychologist to describe Michelle Jones unstable mental health history. The experts' testimony is summarized below.
Trial counsel called Dr. Donald J. Myronuk to refute the opinions of the prosecution's fire experts. (RT 3469.) Myronuk testified at the first trial that the fire was likely caused by a natural gas leak from the kitchen stove. (RT 3480.) He attributed the leak to a brass flex hose which connected the stove to the gas line and which was known to be susceptible to corrosion by common kitchen chemicals.(RT 3570.) He opined that gas from a leak could have found a point of ignition from a nearby pilot light. (RT 3587.)
Based on his examination of the door between the kitchen and living room area and the garage, Myronuk testified that the fire traveled from the kitchen to the garage. (RT 3492-95, 3498-99.) He testified that benches, cabinets and a plywood partition wall in the garage provided significant fuel for the fire. (RT 3501-02.)
Myronuk explained that the patterns on the floor in the kitchen, living room, and garage were caused by falling tar, not a liquid accelerant. (RT 3484-85; 3513.) He also challenged the MPD evidence. He theorized that the MPDs on Petitioner's shoes were likely from shoe polish, laminate materials, or adhesives, while the MPDs in the living room were likely from melted polyurethane on the entertainment center or from audio and video components. (RT 3531.) Finally, Myronuk described an experiment he conducted to show that if the motor home had been driven on the night of the fire, its engine would have been noticeably warm to the touch when the police inspected it in the morning. (RT 3562-66.) Instead, the police found it cold to the touch. (RT 3565-66.)
b. Eyewitness Reliability Expert
Dr. Elizabeth Loftus testified regarding the fallibility and suggestibility of eyewitness testimony. (See RT 3591-3573.) Loftus focused on factors that affected the retention of memory and explained that post-event information can supplement, distort, or contaminate a person's recollection. She ultimately concluded that "all the ingredients were present" for a hypothetical witness like Sandoval to be influenced by the post-event information presented to her. (RT 3611-12.) The fact that Sandoval saw Petitioner in a police line-up and at the preliminary examination prior to her identification of him could have influenced the reliability of her identification. (RT 3617-18.)
Petitioner's counsel presented a financial expert, Shazad Contractor, Certified Public Accountant, who testified that Petitioner was not in financial distress at the time of the fire. (RT 3349-51, 3354.) Contractor based his opinion upon a review of Petitioner's financial history for the five years proceeding and including December 1996. (RT 3363.) Petitioner was current, paid his bills automatically from his bank account each month, and had significant cash reserves in the bank. (RT 3358, 3361-62.)
Dr. Fred Rosenthal testified regarding victim Michelle Jones's psychiatric history. (RT 3384-87.) Based on his review of Ms. Jones's medical, psychiatric, and autopsy records, Rosenthal described Ms. Jones as a troubled individual with a long history of emotional problems starting in childhood. (RT 3390-94.) He opined that she had the type of difficult childhood that could lead to adult depression: she had been diagnosed with cancer at an early age, had a below average IQ, was placed into foster care, had run away from home, lived on the streets for some time, had a history of drug use, and had previously attempted suicide. (RT 3394-95.) Rosenthal concluded that Ms. Jones's psychiatric history reflected poor judgment and simplistic thinking. (RT 3397, 3401-02.)
At trial one, Petitioner presented several lay witnesses in addition to the above-mentioned expert witnesses. Witnesses were called to show that Petitioner was not in financial distress and did not appear hostile to the Joneses during the eviction process. Other witnesses were called to show that there were flaws in the criminal investigation and that the police failed to follow up on critical leads regarding other possible suspects. Trial counsel presented several witnesses to challenge Hope Warner's credibility and to suggest that there had been no trailer park altercation between Petitioner and Michelle Jones. Finally, the defense presented witnesses to support the theory that the fire may have been started by an unstable Ms. Jones attempting to use the stove to heat her house or perhaps even to commit suicide.
3. Deliberation and Hung Jury
The jury deliberated for three days. During the first day of deliberation, it requested that several portions of testimony be read back. The jurors requested read-back of the testimony of Sandoval and the prosecution's fire experts. (RT 4298.) Specifically, they wanted to rehear portions of Sandoval's testimony regarding her observation and identification of the motor home and driver. (RT 4301.) They requested rereading of the county fire investigator's testimony about inspections of the stove and related connections. (Id.)
On the second day, the jury requested rereading of portions of the testimony of defense expert Myronuk regarding fire patterns on and around the door to the garage, the county fire investigator's testimony regarding the same, additional Sandoval testimony, and a police officer's testimony describing Sandoval's report of the motor home. (RT 4304-05.)
On the third day, the jury asked to rehear a state lab expert's MPD testimony and testimony regarding the results of the use of a hydrocarbon detector when searching Petitioner's house, belongings, and shoes. (RT 4307.) They also requested testimony about assault charges against Sandoval having been dropped and testimony of neighbors regarding movement of the motor home on the night of the fire. (RT 4308.)
The jury could not arrive at a unanimous decision. According to trial counsel, it was hung, eleven to one in favor of guilt. (Answer, Ex. D, Rien Decl. at 2.)
Petitioner's counsel, Timothy Rien applied for, and was granted, the right to defend Petitioner as a court appointed attorney at Petitioner's second trial. (RT 4319.)*fn9 Thus, Petitioner was represented by the same counsel at both trials.
B. Evidence and Argument Presented at Second Trial
At Petitioner's second trial ("trial two"), the prosecution presented the same witnesses and evidence in its case-in-chief as it had at the first trial.
In his opening statement, defense counsel refuted the contentions of the prosecution and argued that the evidence would show that the fire was not arson, but accidental, and that Petitioner was "factually innocent." (RT 5691-92, 5721.) In support, he promised to present a fire expert, a forensic pathologist, and at least four lay witnesses.
However, once the prosecution rested, defense counsel did as well, calling no witnesses. (RT 8935-36.)*fn10
The jurors deliberated for a matter of hours and found Petitioner guilty on all counts. He was sentenced to life without the possibility of parole.
C. Evidence Discovered After Trial
In September 2005, Petitioner's sister contacted John Lentini, a criminalist, chemist, and arson investigator, to see if there were any new developments in the testing of MPD samples from Petitioner's case. Lentini had originally tested the samples for Petitioner but, like the state criminalist, he concluded that both Petitioner's shoes and samples from the fire tested positive for MPDs and that the MPDs in the samples could not be distinguished. (See Pet., Exs. B-C, ECF No. 1.) Based on the inability to distinguish the samples, the prosecution had argued at trial that the MPDs found on Petitioner's shoes could not be excluded as having come from the same source of MPDs found in the samples from the fire scene. (Id.)
However, after further research in 2005, Lentini was able to devise a method, previously unknown to him and not described in scientific literature, for distinguishing chemical differences between the MPDs in the samples from the fire scene and Petitioner's shoes. (Id.) Using that method, he found that there was no chemical match between the residue on Petitioner's shoes and the MPDs at the fire scene. (Id.) Petitioner sought relief based on this new evidence.
Respondent, acknowledging the reliability of the new testing technique, stipulated: "[T]he MPD on Petitioner's shoes is chemically distinguishable from the MPD found on the carpet samples taken from the fire scene, and the MPDs did not originate from a common source," and "Detectable MPDs are commonly found on many household products and consumer goods, including the solvents in glues and adhesives used in floor coverings and footwear, residues of dry cleaning solvents, insecticides and cleaning agents." (See Joint Pretrial Statement, Undisputed Facts 13-14, ECF No. 108.)
Moreover, recognizing advances in fire science, Respondent stipulated that the opinions provided by the prosecution's arson experts at trial were no longer scientifically reliable and that modern techniques left the origin of the fire indeterminable, i.e., that it was just as likely the fire was accidental as that it was intentionally set: "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." (See Undisputed Fact 7.)
Continuing along these lines, the parties also stipulated that many of the factors relied upon by the experts to prove arson -- burn patterns, extreme heat of the fire, lack of other fuel -- were not in fact indicators of arson. (See Undisputed Fact 3.) Specifically, they agreed that the floor damage and burn patterns in the fire appeared to have resulted not from an accelerant, but from flashover burning*fn11 and the collapse of the roof; that fires involving liquid accelerants do not burn any hotter than other fires; that there was a sufficient fuel load in the house without the presence of a flammable liquid; and that hydrocarbon testers commonly give false positives, are only to be used for presumptive testing, and, standing alone, are never reliable evidence of the presence of a liquid accelerant. (See Undisputed Facts 4-10.)
1. State Court Proceedings
After he was convicted on October 20, 2000, Petitioner filed direct appeals with the California Court of Appeal, Fifth Appellate District, and the California Supreme Court; both were denied. (See Abstract of Judgment, Lodged Docs. 1, 62, 66.)
Starting on December 10, 2003, Petitioner filed three petitions for writ of habeas corpus in state court. In the petition filed with the Stanislaus County Superior Court, he asserted claims of ineffective assistance of counsel. (Lodged Doc. 67.) On January 6, 2004, the Stanislaus County Superior Court denied the petition. (Lodged Doc. 68.)
Petitioner then filed a habeas petition with the Court of Appeal on March 1, 2004, again raising claims of ineffective assistance of counsel. (Lodged Doc. 69.) The court ordered the parties to informally respond to the petition and requested trial counsel file declarations in response to the arguments presented in the petition. (Lodged Doc. 72.) Both trial counsel filed declarations on June 1, 2004. (Id.) The petition was denied summarily on August 26, 2004. (Lodged Doc. 73.) Petitioner filed a petition with California Supreme Court on October 12, 2004, which summarily denied it on April 19, 2006. (Lodged Docs. 74, 77.)
2. Federal Habeas Proceedings
The present petition was filed on May 20, 2006. (Pet., ECF No. 1.) On May 29, 2007, the Court ordered Respondent to file a response to the Petition. (Order, ECF No. 8.) On July 27, 2007, Respondent filed a motion to dismiss the petition as untimely and for failure to exhaust state remedies. (Mot. To Dismiss, ECF No. 17.)
On March 20, 2008, the District Court found the petition to be untimely under the one year statute of limitations of AEDPA (28 U.S.C. § 2244(d)), did not decide the exhaustion issue, and dismissed the petition. (Order, ECF No. 36.) Specifically, the Court found that, even with the benefit of statutory tolling under 28 U.S.C. § 2244(d)(2) during the time Petitioner filed his petitions for habeas corpus in state court, the present petition was five days late. (Order at 6.) The Court further found that Petitioner was not entitled to statutory tolling under 28 U.S.C. § 2244(d)(1)(D) based on the newly discovered evidence distinguishing MPDs on Petitioner's shoes from those found at the fire scene; the Court concluded Petitioner had not been sufficiently diligent in discovering that evidence. (Id. at
9.) Further, the Court denied Petitioner's actual innocence gateway claim (established under Schlup v. Delo, 513 U.S. 298 (1995)) because the Ninth Circuit had not yet determined if the gateway applied to a statue of limitations bar. (Order at 13.)
3. Ninth Circuit Decision and Relevant Findings Petitioner appealed the order to the Ninth Circuit Court of Appeals. On September 20, 2010, it affirmed in part, reversed in part, and remanded the matter for further adjudication. See Souliotes v. Evans, 622 F.3d 1173 (9th Cir. 2010). The Ninth Circuit agreed that Petitioner had filed his federal habeas petition five days late and was not entitled to equitable tolling. The Ninth Circuit, relying on its then-recent opinion in Lee v. Lampert, 610 F.3d 1125, 1128-31 (9th Cir. 2010), also held that the Schlup 'actual innocence gateway' did not apply to challenges of the AEDPA statute of limitations and affirmed the lower court decision on such grounds. However, the Ninth Circuit held that the District Court applied an inappropriately stringent standard regarding Petitioner's diligence in presenting newly discovered evidence under 28 U.S.C. § 2244(d)(1)(D).
While the Ninth Circuit remanded the case to resolve the issue of diligence in presenting newly discovered evidence, it held that the statutory tolling only applied to Petitioner's substantive actual innocence claim. Souliotes, 622 F.3d at 1180. Additionally, the Ninth Circuit ordered this Court to hold an "expedited hearing so that Souliotes, who is now almost seventy years old, and who has been incarcerated since 1997, may have an opportunity for meaningful review of his innocence claim." Id. at 1178 n.3.
On May 25, 2011, the Ninth Circuit issued a second order regarding Petitioner's claims. At that time, the Ninth Circuit had voted to rehear Lee v. Lampert en banc, a case with the potential to affect Petitioner's ability to present foreclosed claims in his petition. Regardless, the Ninth Circuit again ordered this Court to conduct an expedited evidentiary hearing regarding the newly discovered evidence. Souliotes v. Evans, 434 Fed. Appx. 660 (9th Cir. 2011). Given the explicit instruction of the Ninth Circuit, the Court scheduled an August 23, 2011 evidentiary hearing to determine if Petitioner was diligent in presenting the newly discovered evidence. (Min. Order, ECF No. 63.)
On August 2, 2011, the Ninth Circuit revisited Lee v. Lampert, and in an en banc decision overturned the decision of the three judge panel. See Lee v. Lampert, 653 F.3d 929 (9th Cir. 2011) (en banc). The Ninth Circuit 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.*fn12 Two weeks later, on August 17, 2011, the Ninth Circuit vacated its decision in Souliotes and issued the following order:
In light of the intervening en banc decision in Lee v. Lampert, 653 F.3d 929, (9th Cir. 2011) (en banc), we vacate our opinion in Souliotes v. Evans, 622F.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, 654 F.3d 902 (9th Cir. 2011).
In light of the August 17, 2011 order, the Court vacated the limited evidentiary hearing set for August 23, 2011 and instead scheduled an evidentiary hearing to hear Petitioner's actual innocence gateway claim under Schulp. A three day evidentiary hearing commenced on January 24, 2012. On April 24, 2012, after the hearing and appropriate briefing from the parties, the Magistrate Judge issued findings and a recommendation that the Court find that Petitioner presented a sufficient showing of actual innocence to serve as an equitable exception to the AEDPA statute of limitations. On July 6, 2012 the Court adopted the findings and recommendation of the Magistrate Judge and found Petitioner actually innocent under Schlup. Specifically, the District Court found that considering all of the evidence, including the new state of the scientific evidence, Petitioner was actually innocent and that "no reasonable juror would [have found Petitioner] guilty beyond a reasonable doubt." House v. Bell, 547 U.S. 518, 538 (2006).
As Petitioner was equitably excepted from the statute of limitations, the Court ordered the parties to respond to the merits of Petitioner's first amended petition for writ of habeas corpus. (ECF No. 151.) On October 5, 2012, Respondent filed an answer to the petition. (ECF No. 166.) On November 6, 2012, Petitioner filed a traverse. (ECF No. 169.) On February 1, 2013, the Court provided the parties an opportunity to request an evidentiary hearing to present additional testimony regarding the merits of Petitioner's ineffective assistance of counsel claims. (ECF No. 171.) The parties declined the request. (ECF Nos. 172-73.) Accordingly, the petition stands ready for adjudication.
The Court addresses Petitioner's claims in the order presented in his traverse.*fn13
A. Claim One: Due Process Violation Based on Unreliable Testimony
At trial the prosecution presented scientific evidence regarding the fire including expert opinion that there was conclusive evidence of arson caused by a flammable liquid, that MPDs were present at the fire scene and on Petitioner's shoes, and that positive results from a hydrocarbon detector indicated that a liquid accelerant was present at the fire scene and on Petitioner's shoes and clothing. (Am. Pet. ¶¶ 128-30, ECF No. 151.) The parties have since stipulated that the above statements are not scientifically accurate. (See Joint Pretrial Statement, Undisputed Facts 2-14, ECF No. 108; Findings and Recommendation Regarding Statute of Limitations Issues ("Limitations F&R"), ECF No. 141.)
Petitioner asserts that his conviction was predicated on what science now shows was fundamentally unreliable evidence and amounted to the presentation of false evidence by the prosecution. He argues that the admission of the false testimony "so infected Petitioner's trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986).
At both trials, the prosecution presented several experts who testified that the fire was intentionally set.
a. Fire Cause and Origin Testimony
Fire investigators from the Modesto County Fire Department testified with certainty that the fire was caused by arson. They relied on several factors to support their conclusion: The fire was described as being unusually hot; there were "pour patterns" on the floor where flammable liquids obviously had been poured and ignited; there was "deep charring" on the walls; there was insufficient combustible material ("fuel load") in the house to sustain such an intense fire unless an ignitable liquid, i.e., an accelerant, had been added; a hand-held hydrocarbon detector indicated the presence of ignitable liquids at the scene; and the eyewitness testified that a suspicious person had surreptitiously visited the house just before the fire started. Based on this evidence, the primary fire investigator testified at trial that he had "no doubt . . . that this was an arson fire" involving an ignitable liquid, and "[t]he ignition device was a human hand." (RT 6722, 6957.)
Sarah Yoshida, a Department of Justice criminalist, testified as to her examination of fire debris samples collected from the scene and Petitioner's shoes. (RT 8884-85.) She found that two samples from the fire scene tested positive for MPDs as did Petitioner's shoes. (RT 8860, 8864-65, 8874-78, 8883-84.)
Yoshida acknowledged scientific literature reflecting that some shoes contained materials producing patterns identified as petroleum distillates. (RT 8886-87.) She also explained that the presence of an MPD did not necessarily indicate its use to start the fire. (RT 8888.) While admitting that she could not identify the particular substance detected in each sample and that the MPDs could be from any number of substances, Yoshida described a clear correlation between the shoe and fire scene samples: all contained MPDs. (RT 8923-24.) She also pointed out that in her eight years of conducting arson analyses she had only rarely found MPDs. (RT 8895.)
The government emphasized what it clearly believed was the highly probative value of the MPD evidence. In discussing other evidence, the government returned to the shoes as proof that its theory was correct. Thus, commenting on inconsistencies in eye witness testimony, the prosecutor argued:
The most conclusive scientific evidence, on his shoes from wearing that morning, medium petroleum distillates. What set the fire? Medium petroleum distillates. Maybe Monica, you know, you're thinking Monica's not completely certain, but the person she said it was is the person who has that stuff on his shoes . . . (RT 9049, 9250.) In closing, based on the above MPD evidence, the prosecution reminded the jury that MPDs had been found both on Petitioner's shoes and at the fire scene and argued:
[T]he finger of guilt points to the defendant. Doesn't point to the one armed man. It points to George Souliotes because he's the one. The shoes tell the tale. (RT 9050.)
During the course of the present proceedings, Respondent conceded: "The MPD on Petitioner's shoes is chemically distinguishable from the MPD found on the carpet samples taken from the fire scene and the MPDs did not originate from a common source." (Undisputed Fact 13.)
The investigators also described using a hand-held "hydrocarbon detector" to search the fire scene for traces of ignitable liquid and reported that the detector gave positive reactions which constituted further evidence that a liquid accelerant had been used. (See, e.g., RT 6574:19-6576:6, 6627:1-6, 6763:20-6766:28, 8485:25-8488:11.) During trial the fire investigator admitted that the positive reactions afforded a significant basis for obtaining a search warrant. (RT 6764.) On cross-examination, the fire investigator made it clear that he found positive reactions from the detector as compelling evidence of arson. (RT 2125-26.) The expert reached his opinion regarding arson before lab results of samples of positive results from the detector were tested. Regardless, the fact that the samples tested negative for accelerants did not affect his opinion:
Q. Well, the fact is, let's get back to your compelling evidence. So what you're saying is that even though the lab said that those particular things were negative for a flammable or combustible material, that that wouldn't change your opinion, because the detector picked it up. Is that right?
A. I didn't say that it wouldn't change my opinion. I'm saying that my report was based on the fact that the detector sounded, keyed for those things. So what the lab did later on, this report was written before we had any results from the lab. It was based on the fact that the detector keyed on those locations.
Q. Well, then when the lab report came back did you take this report back and say, well, it isn't as compelling as I thought it was?
A. I don't believe I mentioned anything in here about lab results.
Q. I know. Because you didn't wait for them. Right?
A. I think I explained to you earlier. My involvement in this investigation was a fire scene and the writing of the report a few days later and it was submitted to the detectives. There -- that's it. And information has come since then in the preliminary and the trial. I mean at the time I wrote the report based on the information and the facts that I had.
Q. Doesn't that effect your testimony now, here, three years later? A. Well, the fact is that the detector did key on those articles and those locations. So it wouldn't change that.
A. Because that's the fact.
Q. I know that is a fact. I accept that. I have no problem with that.
Q. The fact that a lab analyzed those things and didn't find what you were looking for, does that effect your opinion at all now?
A. I don't -- you know, I never read the lab report on those articles, to tell you the truth. I don't know how that came back. (RT 6748-52.)
Respondent has now conceded that the hydrocarbon detector is not a reliable indicator of the presence of an accelerant. "[H]ydrocarbon detectors commonly deliver false positives," and "a positive reaction from a hydrocarbon detector is never reliable evidence of the presence of a liquid accelerant without confirmatory lab results." (Undisputed Facts 9, 10.)
The Supreme Court has held that the Constitution "protects a defendant against a conviction based on evidence of questionable reliability, not by prohibiting introduction of the evidence, but by affording the defendant means to persuade the jury that the evidence should be discounted as unworthy of credit." Perry v. New Hampshire, 132 S. Ct. 716, 723 (2012). Constitutional safeguards such as the right to counsel and confrontation of witnesses serve to allow a defendant to challenge the reliability and credibility of evidence produced at trial. Id. "Only when evidence is so extremely unfair that its admission violates fundamental conceptions of justice," has the Supreme Court "imposed a constraint tied to the Due Process Clause." Id. (internal citations omitted).
The Supreme Court has held that the presentation of knowingly false evidence by the prosecution is a violation of Due Process. See Napue v. Illinois, 360 U.S. 264, 269 (1959) ("[I]t is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment.") "The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears." Id.; see also United States v. Agurs, 427 U.S. 97, 103 (1976) (stating that "the Court has consistently held that a conviction obtained by the knowing use of perjured testimony is fundamentally unfair.").
"A claim under Napue will succeed when (1) the testimony or evidence was actually false, (2) the prosecution knew or should have known that the testimony was actually false, and (3) the false testimony was material." Sivak v. Hardison, 658 F.3d 898, 908-909 (9th Cir. 2011) (internal citations omitted). Further, "[i]t is 'irrelevant' whether the defense knew about the false testimony and failed to object or cross-examine the witness, because defendants 'c[an] not waive the freestanding ethical and constitutional obligation of the prosecutor as a representative of the government to protect the integrity of the court and the criminal justice system.'" Id. (citing N. Mariana Islands v. Bowie, 243 F.3d 1109, 1122 (9th Cir. 2001).
A new trial is not automatically required when false evidence is discovered. Rather, a constitutional error resulting from the use of false evidence by the government requires a new trial, "if the false testimony could . . . in any reasonable likelihood have affected the judgment of the jury." Giglio v. United States, 405 U.S. 150, 154 (1972) (quoting Napue, 360 U.S. at 271); see also United States v. Inzunza, 638 F.3d 1006, 1020 (9th Cir. 2011) ("[A] defendant is entitled to a new trial if there is a reasonable probability that without the evidence the result of the proceeding would have been different.") (quoting United States v. Young, 17 F.3d 1201, 1204 (9th Cir. 1994). The Supreme Court has explained that the basis for relief is not based ...