                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                           FILED
                           FOR THE NINTH CIRCUIT                              MAY 25 2011

                                                                          MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS

GEORGE SOULIOTES,                               No. 08-15943

             Petitioner - Appellant,            D.C. No. 1:06-cv-00667-OWW-
                                                WMW
  v.

MIKE EVANS, Warden; ANTHONY                     ORDER
HEDGPETH, Warden,

             Respondents - Appellees.


                   Appeal from the United States District Court
                       for the Eastern District of California
                   Oliver W. Wanger, District Judge, Presiding

                     Argued and Submitted February 12, 2010
                            San Francisco, California

Before: McKEOWN and BERZON,* Circuit Judges, and ZILLY,** Senior District
Judge.

       Petitioner George Souliotes, who is now over seventy years old, is currently

serving a life sentence in California’s custody for three murders by arson that he


        *
         Due to the death of Judge Cynthia Holcomb Hall, Judge Marsha S.
Berzon, United States Circuit Judge for the Ninth Circuit, was drawn to replace
her.
      **
         The Honorable Thomas S. Zilly, Senior United States District Judge for
the Western District of Washington, sitting by designation.
claims he did not commit. At trial, “the prosecution relied heavily on scientific

evidence indicating that a liquid was used to ignite the fire. After the fire, this

liquid left residues of medium petroleum distillates (‘MPDs’) at the scene. A

prosecution witness testified that Souliotes’s shoes also contained MPDs.”

Souliotes v. Evans, 622 F.3d 1173, 1176 (9th Cir. 2010). Approximately eight

years after Souliotes’s conviction, a chemist and arson investigator, John Lentini,

using scientific techniques unavailable at the time of Souliotes’s trial, was able to

distinguish between the MPDs found on Souliotes’s shoes and the MPDs from the

crime scene. Souliotes presented this MPD evidence in a petition for writ of

habeas corpus. The habeas petition was eventually dismissed by the district court

as untimely filed.

      In September 2010, we held that the district court applied an incorrect

diligence standard under 28 U.S.C. § 2244(d)(1)(D), one of the provisions of the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) that triggers

the one-year limitations period for filing a habeas petition. Souliotes, 622 F.3d at

1178-79. The Court further concluded that an evidentiary hearing is necessary to

determine when the scientific techniques at issue were developed and would have

been available to an inmate like Souliotes. Id. Finally, the Court rejected

Souliotes’s claims under the doctrine of equitable tolling and under the “actual


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innocence” or “miscarriage of justice” gateway. Id. at 1181; see also Schlup v.

Delo, 513 U.S. 298 (1995). With respect to the latter issue, the Court relied on Lee

v. Lampert, 610 F.3d 1125 (9th Cir. 2010).

      A majority of nonrecused active judges of this Court recently voted to rehear

the Lee case en banc. Although the outcome in Lee upon rehearing en banc may

affect the scope of Souliotes’s habeas claims on remand, the result in Lee will not

alter the need for an evidentiary hearing concerning when Souliotes could have

discovered the new evidence at issue. 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. Thus, while

awaiting an en banc opinion in Lee, we remand this case to the district court for the

limited purpose of conducting an expedited evidentiary hearing to determine when

an inmate in Souliotes’s position could have discovered, through the exercise of

due diligence, the new MPD evidence. See Nash v. Ryan, 581 F.3d 1048, 1058

(9th Cir. 2009) (ordering a limited remand to allow the district court to make a

factual determination); Friery v. L.A. Unified Sch. Dist., 448 F.3d 1146, 1150 (9th

Cir. 2006) (same). The parties shall advise the Court when the evidentiary hearing




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has concluded and the district court has entered findings of fact and conclusions of

law.

       We therefore grant a limited remand for the district court to conduct further

proceedings consistent with this order.

       REMANDED.




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