Souliotes v. Tilton

Filing 183

ORDER ADOPTING Findings and Recommendations With Edits Listed Below; ORDER GRANTING Amended Petition's Claims Two, Three and Seven 174 , signed by District Judge Anthony W. Ishii on 4/12/13. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GEORGE SOULIOTES,
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Petitioner,
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v.
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RANDY GROUNDS, Warden,
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Respondent.
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1:06-cv-00667 AWI MJS HC
ORDER ADOPTING FINDINGS AND
RECOMMENDATION WITH EDITS
LISTED BELOW
ORDER GRANTING AMENDED
PETITION’S CLAIMS TWO, THREE AND
SEVEN
[Doc. 174]

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Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. On March 7, 2013, the Magistrate Judge issued a Findings and

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Recommendation that the Court find Petitioner entitled to relief with respect to claims two,

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three and seven in the First Amended Petition for Writ of Habeas Corpus. This Findings and

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Recommendation was served on all parties with notice that any objections were to be filed

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within fourteen days of the Findings and Recommendation’s date of service. Both parties filed

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objections to the Findings and Recommendation on March 21, 2013. (See ECF Nos. 180-81.)

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Petitioner filed a reply to Respondent's objections on March 31, 2013. (See ECF No. 182.)

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted

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a de novo review of the case. “De novo review means that the reviewing court does not defer to

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the lower court's ruling but freely considers the matter anew, as if no decision had been rendered

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below.” Dawson v. Marshall, 561 F.3d 930, 933 (9th Cir. 2009) (internal quotations and citation

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omitted). However, the court need not consider new evidence in reviewing a magistrate judge's
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recommendation. United States v. Howell, 231 F.3d 615, 622 (9th Cir. 2000).
Having carefully reviewed the entire file, including the Magistrate Judge’s Findings and

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Recommendation and the parties’ objections and responses, the Court concludes that the

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Magistrate Judge’s Findings and Recommendation is supported by the record and proper

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analysis.

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Petitioner alleges in his objections that the Magistrate Judge incorrectly reserved

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judgment as to his first claim, which asserts Petitioner’s convictions were based on

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fundamentally unreliable expert testimony and evidence presented in violation of his

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constitutional due process rights. It is unnecessary to determine whether Petitioner is entitled to

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relief with regard to this claim. By granting Petitioner relief with regard to claims two, three

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and seven, the Court is providing Petitioner with the relief requested. See Blazak v. Ricketts,

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971 F.2d 1408, 1413 (9th Cir. 1992).

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Respondent's objections present no grounds for questioning the Magistrate Judge's

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analysis. Respondent repeats, often verbatim, many of the arguments and assertions presented

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in his answer and other pleadings. (See Pet'r's Reply, ECF No. 182.) Finally, the Court

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concludes that Respondent's repeated allegations that the Magistrate Judge failed to provide

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appropriate deference to the state court's decision and trial counsel’s strategy are without merit.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

The Findings and Recommendation issued March 7, 2013, is ADOPTED as

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amended below:

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a.

Page 18, lines 16-24, of the Findings and Recommendation are adopted to

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read as follows:

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. . . . On April 24, 2012, after the hearing and appropriate

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briefing from the parties, the Magistrate Judge issued

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findings and a recommendation that the Court find that

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Petitioner presented a sufficient showing of actual

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innocence to serve as an equitable exception to the
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AEDPA’s statute of limitations. On July 6, 2012, the

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Court adopted the Magistrate Judge’s Findings and

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Recommendation and found Petitioner had met Schlup’s

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actual innocence standard as to excuse Petitioner’s

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violation of the AEDPA’s one year statute of limitations.

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b.

Petitioner’s Claim One, as discussed in the Findings and

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Recommendations from Pages 19-25, which contends that Petitioner’s

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due process rights were violated by the introduction of scientific evidence

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at trial about potential MPD’s present at the fire and on Petitioner’s shoes

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and clothing, is referred to as Claim Six, as listed in the Amended

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Petition.

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c.

Page 26, lines 3 through 6, is amended to read: “The Court declines at

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this time to determine if Petitioner is entitled to relief on this claim.

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Because any finding on this claim is unnecessary to grant Petitioner the

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relief he requests, the Court will not grant or deny this claim at this time.”

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d.

The reference to “At closing defense counsel repeatedly attacked” on

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page 54, line 3, of the Findings and Recommendations, is amended to

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read “At closing, the prosecution repeatedly attacked. . .”

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e.

The last paragraph on page 64, beginning at line 17 is omitted.

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f.

Page 72, line 12, of the Findings and Recommendation is amended to

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read: “The court must next consider . . . . ” as opposed to “Here, we

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consider . . . .”

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g.

Page 84, the first and second lines of footnote 51, Findings and

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Recommendation is amended to remove “the Court’s Experience

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suggests” and read: “In addition to the benefits identified in the cases

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discussed above, advantages might also include consideration of the

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added weight juror may give . . . .”

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h.

Page 91, line 6, of the Findings and Recommendation, is amended to read
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“Petitioner is entitled to relief on claims two, three and seven” rather

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than “Petitioner is entitled to relief on claims one, two and seven”.

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2.

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Claims two, three and seven of the First Amended Petition for Writ of Habeas
Corpus are HEREBY GRANTED.

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Petitioner shall be released unless the State of California both (1) notifies this

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Court within thirty days of the filing of this order that it intends to retry Petitioner

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and that it has taken concrete and substantial steps to do so; and (2) actually

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commences Petitioner’s retrial within 90 days.

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IT IS SO ORDERED.

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Dated:
0m8i78

April 12, 2013
SENIOR DISTRICT JUDGE

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