Electronically Filed 01/09/2013 10:59:27 AM arm-M CLERK OF THE COURT ORDR RENE L. VALLADARES Federal Public Defender Nevada State Bar No. 11479 RYAN NORWOOD Assistant Federal Public Defender Nevada State Bar No. 11342C 41 1 East Bonneville Avenue, Suite 250 Las Vegas, Nevada 89101 (702) 388-6577 (702) 388-6261 (FAX) Attorneys for Defendant EIGHTH JUDICIAL DISTRICT COURT CLARK COUNTY, NEVADA THE STATE OF NEVADA, Case No. 0108694 Department VI Plaintiff, VS. FREDERICK L. STEESE, Defendant. ORDER REGARDING ACTUAL INNOCENCE DATE OF 18, 2002 TIME OF HEARING: 1 :30 PM THIS CAUSE having come on for hearing before the Honorable Judge Elissa Cadish, District Judge, on the 18?? day of October, 2012, the Petitioner present and represented by Ryan Norwood, the Respondent being represented by Steven Wolfson, District Attorney, by and through Deputy District Attorney Pamela Weckerly, and the Court having considered the matter, including three days of evidentiary hearings, exhibits, transcripts, arguments of counsel, and documents on file herein, the Court makes the following finding and order: PROCEDURAL HISTORY 1. The defendant, Frederick Lee Steese, is serving a sentence of life without parole for a ?rst- degree murder conviction, as well as consecutive and concurrent sentences for a deadly weapon enhancement, and related offenses of robbery, burglary, and grand larceny. 2. The convictions follow a jury trial that began in January of 1995, and for which a jury returned a guilty verdict on all counts on March 1, 1995. The State had sought the death penalty against Mr. Steese. Following the jury?s verdict, however, the parties stipulated to the sentence of life without parole. The judgment of conviction was entered on April 21, 1995. 3. Mr. Steese filed a timely appeal. The Nevada Supreme Court affirmed the conviction in an opinion, Steese v. State, 114 Nev. 479, 960 P.2d 321 (1998). Remittitur issued on June 9, 1998. 4. Mr. Steese filed an initial, pro se, post-conviction petition in 1999. An order denying this petition was issued on December 16, 1999. On January 21, 2003, the Nevada Supreme Court af?rmed in part and denied in part the court?s decision, remanding the case for hearing on a sentencing issue. The petition was denied after this hearing. 5. Mr. Steese ?led a second, pro se, petition on February 13, 2004. An order denying this petition was issued on June 14, 2004. The Nevada Supreme Court affirmed the denial of this petition on December 21, 2004. 6. Before the Court is Mr. Steese third petition for habeas corpus relief, which he ?led through counsel, Ryan Norwood, on April 7, 2009. After considering briefing and hearing argument from counsel on .1 une 1, 2009, this Court entered an order on August 4, 2009 denying the petition, noting that it was untimely and successive. 7. Mr. Steese ?led a timely appeal- On November 5, 2010, the Nevada Supreme Court entered an Order of Reversal and Remand. The Nevada Supreme Court ruled in relevant part: Appellant does not argue that he has good cause, but rather that his procedural defects should be excused because he is actually innocent. When a petitioner raises constitutional claims that are otherwise procedurally barred, he may overcome those bars and have his claims decided on the merits if he presents new, reliable evidence of his innocence that erodes confidence in the outcome of the trial. Schlup v. Delo, 513 US. 298, 316 (1995); Pelligrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001). In rejecting petitioner?s actual innocence claim, the district court improperly conflated the constitutional-claim and new-evidence requirements, denying appellant?s petition as procedurally barred because the new evidence did not itself 2 implicate a constitutional violation. Here, appellant?s petition raises several claims of constitutional error, and he presents new evidence that, if reliable, may erode con?dence in the trial?s outcome. Appellant is therefore entitled an evidentiary hearing on his actual innocence claims. See Hargrove v. State, 100 Nev. 498, 502~ 03, 686 P.2d 222, 225 (1984) (holding that appellants are entitled to evidentiary hearing where they make speci?c factual allegations that, if true, would entitle them to relief). At the evidentiary hearing, the district court must determine whether appellant?s new evidence is reliable and, if so, whether appellant has demonstrated that, in light of all the evidence, ?it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt.? Schlup, 513 US at 327; accord Pellegrini, 117 Nev. At 887, 34 P.3d at 537. The district court must consider the credibility of affiant Robert Steese and weigh. the evidence presented at trial in light of the new evidence in order to determine if appellant met his burden of proof. Finally, if the district court determines that appellant?s evidence demonstrates actual. innocence, appellant has overcome the procedural bar, and the district court must address on the merits the constitutional claims raised in appellant? petition? petition, again starting with whether appellant is entitled to an evidentiary hearing on those claims. 8. Pursuant to this order, this Court has conducted a number of proceedings. The Court held evidentiary hearings on June 2, 2011, November 3, 201 1, and January 20, 2012. The Court has considered approximately 59 exhibits introduced or proffered by Mr. Steese. Arguments regarding many of these exhibits were heard, after briefing, on September 14, 2011. The Court ordered discovery of certain materials on May 4, 2011, including the district attorney?s file on Mr. Steese. The Court ordered genetic marker testing of certain materials in the evidence vault, pursuant to N.R.S. 176.0918, on May 4, 2011. 9. Following the last evidentiary hearing on January 20, 2012, the Court spent months reviewing the entire record in this case, including the transcript of Mr. Steese?s trial, the pretrial litigation and exhibits, and the post~trial litigation and exhibits. The Court then heard argument from the parties on October 18, 2012. 10. The Court finds, as explained at the conclusion of the October 18*? hearing, and as explained in this order, that Mr. Steese has met his burden of establishing ?actual innocence? under the standard set forth in the Nevada Supreme Court? order and the cases cited therein, including Sc__h_lu_p W, 513 US. 298, 316 (1995). $93kFINDINGS OF FACT 11. The evidence in this case is voluminous, and the facts found are not intended to be a complete summary of all relevant evidence presented throughout the many proceedings. The Court, however, has considered all evidence introduced at trial, in prior proceedings, and during the post- remand proceedings in reaching its decision. 12. Mr. Steese was convicted of the murder of Gerald Soules. Mr. Soules was killed sometime between the evening of June 3 1992 (when he was last seen. alive) and June 4, 1992 (when his body was discovered in his North Las Vegas trailer). The cause of death was multiple stab wounds. 13. Property, including a VCR, TV, and camera, was missing from Mr. Soules? trailer. Mr. Soules?s truck was also missing. The truck was found abandoned and locked on June 5, 1992, by Lake Mead. 14. During their investigation, the police had learned that a man named Fred had stayed with Soules, and had worked as his assistant sometime before he was killed. On June 6, 1992, a letter addressed to ?Fred Burke? arrived at Mr. Soules?s trailer, sent by a Rick Rock. 15. ?Fred Burke? was the defendant, Fred Steese. Mr. Steese was homeless drifter who was using this name throughout May and June of 1992. Rock was a resident of Pocono Pines, who had picked up the defendant while hitchhiking several. months earlier, and had kept in touch with him. Rock?s mailing address was PO. Box 343, in Pocono Pines. He had provided the defendant with his phone number when they parted, and invited him to call collect when he wished. 16. Through Rock, the North Las Vegas police made contact with the defendant in Indiana on June 12, 1992, and spoke with him about the murder. The defendant identi?ed himself as Fred Burke. He claimed that his 45028?1063 and his (correct) birth date was 10/8/1963. At the time, the defendant was six feet tall, had brown hair and blue eyes, and his weight was usually listed as 170 lbs. 17. The defendant subsequently stole a truck and drove back to Las Vegas. The Nevada Highway Patrol pulled him over near Alamo, Nevada on the morning of June 18, 1992. During this stop, the police ?rst learned that the defendant?s real name was Frederick Lee Steese. Mr. Steese 4 Uwas taken in custody, and then in the afternoon, brought to the North Las Vegas Police Station. 18. That evening, after ?rst providing numerous different accounts, Mr. Steese confessed to the murder of Gerald Soules. The confession stated that Mr. Steese parted ways with Mr. Soules on the morning of June 3, 1992, but then planned to rob Mr. Soules by entering his trailer at night, at about midnight. The confession stated that Mr. Soules awakened while Steese was in the trailer, and that Mr. Steese panicked, attacked him, and then stabbed him numerous times. The confessions stated that Steese took items, including the VCR, TV, and camera, and also stole the victim?s truck. 19. The confession further stated that Steese drove in the truck towards Lake Mead, and stopped at a bait shop, where he sold the VCR and camera to some persons in the parking lot. He then entered the shop and bought some beer. He then continued driving towards the lake, throwing the murder weapon. into some bushes near an intersection. He pulled the truck up to the lake, where it became stuck. He later hitchhiked back to Las Vegas, and ?hopped? on trains to Salt Lake City, Utah, and Cheyenne, Wyoming. 1n Cheyenne, he met a man named ?Jerome.? who invited him to stay with his grandparents in New Plymouth, Idaho. He stayed there about a week, but then left because of some problems he was having with ?Jerome.? 20. The next day, June 19, the police took the defendant to the area described in his confession, and searched for the murder weapon. The weapon was never found. The police never found the stolen VCR, camera, or TV. At trial, the owner of a bait shop matching the description provided Mr. Steese testi?ed that his shop?s hours were 6 am. to 9 pm, and that it was open until 10 pm. on Fridays and Saturdays. 21. The confession was the State?s primary evidence against Steese at his trial. The State also called a fellow inmate of Steese?s named Glen Long, who testi?ed that Steese had confessed his guilt to him on June 19, 1992, after he returned from Lake Mead with the North Las Vegas Police. 22. The State also called Michael Moore, a neighbor of the victim. Mr. Moore testi?ed at trial that he had seen Mr. Steese at the victim?s trailer on the evening of June 3, 1992. Another witness, Alexi Kolupaev, a former assistant of the victim, testi?ed at trial that he 23. last saw the defendant on June 2, 1992, attempting to hitchhike under an overpass. DJ .32Mr. Steeseis original written statement to the North Las Vegas Police, he stated that he thought he was in New Plymouth, Idaho at the time of the murder, on June 3 and 4 of 1992. Mr. Steese?s defense noticed and presented an alibi defense at his trial consistent with this original statement. 25. Geronimo ?Ron? Bouttier testi?ed that he met the defendant in Cheyenne, Wyoming on May 31, 1992, and that they went to a soup kitchen together. Mr. Bouttier testi?ed that he invited the defendant to stay with his grandparents in New Plymouth. Idaho. He testi?ed that he and the defendant traveled to Pocatello, Idaho by train, on June 1, where Bouttier called his family. They then traveled to Nampa, Idaho by train on June 2, where Bouttier called his family again from a payphone for a ride. 26. Geronimo Bouttier testi?ed that the defendant stayed with his family at their home for less than a week, beginning on June 2. Five members of Geronimo?s extended family identi?ed the defendant as being in Idaho that week, and testi?ed that they saw him there on June 3 and/or 4. These witnesses included his grandmother, Iva Nadine Pollick, his grandfather Charles Pollick, his brother Curtis Bouttier, his brother?s ex~wife Serena Bouttier, and Shirley Toombs. An employee of a job placement agency, Leilanni Watson, also identi?ed the defendant as a person who applied for employment at her of?ce in Nampa, Idaho on June 3, and who later cancelled his application on June 5. Bouttier testi?ed that the defendant left his grandparents? house after an argument about phone calls. 27. The defense also authenticated and introduced documents in support of this testimony, including the Pollicks? phone records a sign-in sheet at the soup kitchen in Cheyenne, and two job applications and a welfare application made in Nampa, Idaho. 28. At trial, the State contested the credibility of the defense witnesses and the authenticity of many of the documents. Primarily, however, the State rebutted the defendant?s alibi by contending that the person in Idaho was actually Mr. Steese?s brother, Robert Steese (?Robert?). 29. Robert Steese did not testify at the trial, and no witness claimed to have seen him in Idaho. The district attorney?s investigator testi?ed that he had attempted to locate Robert Steese, but was unable to ?nd him. The prosecution authenticated and introduced a mug shot ofRobert Steese, taken 6 Austin, Texas, in 1991. At trial, the prosecution argued. that the defense alibi witnesses had actually seen Robert Steese, and had wrongly identi?ed him as the defendant. The prosecution additionally contended that this theory explained how the person in Idaho knew the defendant?s name and other personal information, explained. why he was using this information and explained why the handwriting of the person in Idaho appeared to be similar to the defendant?s. The prosecution also contended that Robert and the defendant met in Idaho after the murder, and that the defendant learned the details of the alibi from him. 30. In support of the2009 petition for habeas corpus relief, the defendant had attached a 2008 declaration from Robert Steese. In this declaration, Robert Steese stated. that he was never in Idaho, that he had never used the name Fred Steese or Fred Burke, and. that he had no involvement with or knowledge of his brother?s activities in. May and June of 1992. 31. Robert Steese testi?ed at the November 3, 2011 evidentiary hearing. Robert testi?ed that he was the defendant?s younger brother, and. identi?ed himself as the person in the mug shot used at the defendant?s trial. Robert Steese testi?ed that he had no involvement with or knowledge of his brother?s activities in May and. June of 1992. He testi?ed that the defendant was separated from his . family when he was a small child, and that he had not seen the defendant in approximately 30 years. He testi?ed that he had never been to Utah, Wyoming, or Idaho, and that he had. never met the alibi witnesses who testi?ed at the defendant?s trial. He testi?ed that he had never used his brother?s name or alias. Robert Steese testi?ed that he was living Austin, Texas throughout 1992. The Court ?nds this testimony to be credible and reliable. 32. The Court also considered a set of Texas Child Protection Services (CPS) records pertaining to the defendant. The Court ?nds these records authentic and reliable. The records corroborate Robert Steese? testimony, in that they show that the defendant was removed from his family by the state when he was a child, and that Robert had only sporadic contact with him throughout the 1970?s. 33. The Court also heard testimony from ?ve witnesses who knew Robert when he was living in Austin, Texas, during a period from approximately 1991 to 1994. These witnesses identi?ed Robert from the trial mug shot, and identified him in other photographs taken in Austin during that period- (Defense Hearing Exs. 1?10). The witnesses testi?ed that Robert was living in Texas during 7 42that period, was not known to travel elsewhere, and was not known to have any contact with his brother or use his name. Chris Allman, a ceramics artist, testi?ed that Robert was employed continuously at her shop from 1991 until August of 1992. She did not recall Robert leaving the state during this time, and testi?ed that she would have remembered if he had done so. Shawnee Attebeny was the person who replaced Robert as Ms. Allman? 3 employee. She testi?ed that she ?rst met Robert at Allman?s shop in the ?rst week of June 1992. Her mother, Barbara Atteberry, corroborated this testimony. James Laljer testi?ed that Robert regularly spent his weekends with him and his wife. He recalled that Robert was at a birthday celebration for his wife held on June 5, 1992. Joe Zitt testi?ed that he regularly saw Robert, and that he sometimes assisted with his performance art. The Court ?nds the testimony of these witnesses to be credible and reliable. 34. The Court also considered a report from the FBI, which was produced at the request of the district attorney?s of?ce and later provided to the defense. (admitted as defense document 201). The Court ?nds this report authentic and reliable. The report documents warrant checks done on Mr. Robert Steese by the police in the year 1992. The report shows, inter alia, that the Austin police requested a warrant check on Robert on May 25 and June 1, 1992, and that the Texas Highway Patrol requested a warrant check on June 4, 1992. The Court ?nds this report consistent with the testimony of Robert Steese, who stated that he was regularly stopped by the local police. 3 5. The Court considered other evidence relevant to the issue of actual innocence. Much of this evidence was introduced (pursuant to the Court?s rulings and limitations) in a binder of exhibits (defense document 202) that. is tabbed as Exs. 11?52four reports from the Union Paci?c Railroad Company. The reports were discovered in the district attorney?s ?le for Mr. Steese, which was provided as a result of the Court?s discovery order. The reports were authenticated through the telephonic testimony of retired Union Paci?c security of?cer Clifton Cane, who authored three of the report, and knew the (deceased) author of the fourth. The Court ?nds the reports authentic and reliable, and Mr. Cainis testimony to be reliable and credible. 37. The reports document persons who were removed from Union Paci?c trains or property in May 1992. As part of the removal, Union Paci?c Security Of?cers would obtain information from 8 43-9the trespassers. One report documents an encounter in Salt Lake City, Utah, on May 29, 1992. This person identi?ed himself as ?Frederick Lee Burke.? He provided 10/8/63 as his date of birth, provided a social security number of 25 8-40-2692, and was described as being 6 feet tall, 170 lbs., and having brown hair and blue eyes. Two other reports document an encounter in Cheyenne, Wyoming on May 31. Union Paci?c Security twice encountered a person who identi?ed himself as ?Frederick Lee Burke Jr.? In both reports, this person provided 10/8/63 as his date of birth, provided a social security number of 450?28-1 063, was described as being 6 feet tall, 170 lbs., and having brown hair and blue eyes, and provided a mailing address of .O. Box. 343, in Pocono Pines, PA. One report indicated that this person had arrived from 3 8. The May 3 1 Cheyenne reports document other persons who were with ?Frederick Lee Burke, Jr.? The earlier report states that he was with a person described as Garbulewski.? This is consistent with the trial testimony of Geronimo Bouttier, who stated that the defendant was originally with a ?Polish kid? when he ?rst encountered him. The later report states that ?Burke? was with another person described as Bouttier.? The last of the 4 Union Paci?c reportd documents a May 31 encounter in Cheyenne with a person who identi?ed himself as ?Curtis Neil Bouttier.? and who was accompanied by Burke.? At trial, Geronimo Bouttier had testi?ed that he sometimes used the name of his brother, Curtis. 39. Tabs 293 consist of an internet database record, a map, phone books, and a newspaper obituary. The Court ?nds these documents to be authentic and reliable. These documents are new evidence pertaining to the phone records of Rick Rock, which were obtained by the prosecution during the trial, and later disclosed and transcribed by the prosecution in a post-trial motion. 40. The prosecution?s transcription shows collect calls made to Rock?s home throughout 1992. These calls include a May 31 call from Cheyenne, a morning June 3 call from Nampa, from the number 4669969, and four calls made from Nampa on the morning of June 5, from the numbers 466-9969 and 466-4969. The new evidence shows that the phone number 4669969 was the number of a payphone in 4-1. downtown Nampa, ID (Exs. 29, 30). This is same number from which Geronimo?s Bouttier?s parents received a call from on June 2, 1992. The evidence is consistent with the testimony of 9 Geronimo that he called his grandparents on that date from a payphone near the train tracks, and consistent with testimony and records that show that ?Fred Burke? was in downtown Nampa on June 3, 1992. 42. The Court heard the telephonic testimony of Ben Payne, who testi?ed that 4664969 was the phone number at his home in Nampa, Idaho in June of 1992. This testimony is consistent with contemporary phone books and other documents (3 1-33). Mr. Payne testi?ed that he does not know Rick Rock, and that he had no reason to call him. Payne also testified that he was the former boyfriend of Serena Bouttier, who had lived at this house, and who moved out when they broke up in 1992. The Court ?nds this testimony credible and reliable. 43. This evidence is consistent with the testimony of Serena Bouttier. At trial, she testified that she met the defendant on June 3, and that he helped her move into a new apartment on June 4. On June 5, she testi?ed that the defendant sought to obtain money from Rick Rock. She said that they called Rock from the house of a ?friend? in Nampa on the morning of June 5, and then went to a Western Union Of?ce to pick up the wired money. Serena testi?ed that the money was sent in her care because the defendant lacked identi?cation. Western Union records introduced at trial con?rmed that Rick Rock wired $50 to Serena Bouttier on the morning of June 5, 1992. 44. In sum, the new evidence demonstrates that the calls to Rick Rock, as documented in the phone records, were made from the same locations that the alibi evidence showed that the defendant was present, and at the same times that this evidence showed that he was there. Aside from the aforementioned Western Union record, there is no evidence of any association between Rick Rock and the alibi witnesses. 45. The CPS records (discussed in P32, supra) document that the defendant, while in state custody as a teenager, was placed on multiple occasions with a foster parent named Albert Busse, in Kyle, Texas (near Austin). One of the job applications ?lled out in Idaho lists as a reference an ?Albert Busses? of Austin, Texas. 46. The Court has also considered new evidence that affects the credibility and reliability of evidence relied upon by the State at trial. 10 47. Glen Long, the inmate who testi?ed that Steese confessed to him in jail, had been incarcerated awaiting disposition of his own charges. He received a four year sentence, which he had completed by the time he testi?ed at the defendant?s trial. At trial, Long repeatedly testi?ed that he had already pled guilty to an attempted robbery charge when he ?rst heard and reported Mr. Steese?s confession. He also claimed that he had never been previously arrested, and denied that any speci?c promise had been made to him regarding his sentencing. The prosecution argued that Long was credible, because he had already entered his plea deal before reporting the confession, and argued that. the 4?year sentence was not the result of any special deal for Long?s testimony, because it was a reasonable sentence for a ?rst-time offender. 48. Tabs 3446 of document 202 consist of records from this Court, and from the state of Utah, pertaining to Long?s pending robbery charge, and his record of conviction and incarceration in Utah. The Court ?nds these documents to be authentic and reliable. The records show that Long had, inter alia, a prior Utah conviction for assaulting a police of?cer, and that he was released from custody for this offense in February of 1992. In April 1992, Long was charged with two armed robberies with ?rearm in Las Vegas. The records prove that Long?s guilty plea happened on June 26, one week after he testi?ed that the defendant confessed to him, and four days after he testi?ed that he told the police about the confession. Under this plea, his two robbery charges were reduced to one charge of attempted robbery. 49. Tabs 1621 are correspondence written by Long, his attorney, the district attorney?s of?ce, and the Nevada Department of Corrections (N DOC). These documents were in the district attorney? ?le for Fred. Steese?s case, which was provided as a result of the Court?s discovery order. The district attorney, in response to the Court?s order, represents that it no longer possesses the ?le for Long?s prosecution. The Court ?nds these documents to be authentic and reliable The correspondence includes: An October 5, 1992 letter written by Long?s lawyer to the District Attorney Dave Schwartz several days after Long?s sentencing. The letter states that ?Long is going to be going before his ?rst board within thirty days of entrance into Indian Springs and pursuant to your representations, he requests that you send the appropriate letter to the parole ll board.? A letter to District Attorney Schwartz written by Long from the prison in which he states that will testify under 1 condition, that you have an interstate compact ready for me to transfer to Utah state prison,? and that he would not testify if he had to remain in Nevada. A subsequent letter from District Attorney Schwartz to NDOC in which he noted Long?s request, and stated that ?1 know it?s not easy to accomodate these individuals, but Long?s testimony is very important in the prosecution of Frederick Steese. I would greatly appreciate your assistance in this matter. A subsequent letter from NDOC to district attorney Schwartz in which the department states it would attempt to accommodate the request. Utah records show that Long was incarcerated in the Utah Department of Corrections from December 1993 to February 1994. 7). 50. This evidence, not presented to jury, demonstrates that representations made by Long that bolstered his credibility at trial were not true, and that Long sought and received consideration from the State in exchange for his testimony against the defendant. 51. With respect to the police confession, the Court heard expert testimony from Dr. Deborah Davis, a professor of at the University of Nevada in Reno. Dr. Davis is an expert in as it relates to confessions of guilt. The Court ?nds Dr. Davis?s testimony credible and reliable. 52. The Court has also considered a set of pre~sentencing reports (tabs 2228) pertaining the defendants? prior juvenile and felony offenses in the 1970?s and 1980's. The Court finds this evidence to be credible and reliable. 53. Dr. Davis testified that false confessions are more prevalent than they are commonly believed to be, as proven through a number of different studies, particularly studies of convictions in which the defendant was later demonstrated to be innocent. A 201 1 study of 40 confessions, later proven false through DNA evidence showed that 38 of these confessions involved claims that the defendant had provided information to the police about the crime that only the perpetrator could have known. 12 Jamar54. Dr. Davis testi?ed about the of false confessions, including the methodology commonly used by police that may result in false confessions, the reasons why persons may falsely confess, risk factors that correlate with false confessions, and methods of evaluating the reliability of confessions. 55. In light of this testimony, and in light of both the new evidence and the evidence presented at trial, the Court ?nds a number of factors that call into question the reliability of the confession made by the defendant on June 18. These factors include: the defendant?s low IQ and level of functioning, as per expert testimony at the trial, and as corroborated by the pre?sentencing reports produced by state agencies for his prior offenses; the fact that the confession followed approximately four hours of unrecorded questioning by two police of?cers; the fact that the defendant provided numerous different versions of what happened, including at least one fully inculpatory account that contradicted his later confession; the defendant?s lack of motivation to avoid incarceration, as evidenced by his homelessness, his prior history, and his decision to voluntary travel to Nevada to speak with the police despite knowing that he was wanted for a parole violation in Florida; the defendant?s history of making false statements and even false confessions to criminal acts (see tab 25); and the lack of corroboration for any of the ?new? inculpatory details provided in the confession, particularly regarding the murder weapon and the stolen property. 56. The Court notes that Alexi Kolupaev, the witness who testi?ed that the defendant was in Las Vegas on June 2, had originally told the police, in a transcribed interview on June 5, 1992 that he last saw the defendant on May 28, 1992. Kolupaev had stated that he saw the defendant was apparently trying to hitchhike out of town that day. A process server, George Hall testi?ed at trial that Kolupaev had repeated this original statement during interviews with the defense as recently as February 4, 1995., six days before Kolupaev testi?ed at trial. Mr. Kolupaev?s original statement is consistent with the Union Paci?c Reports that show that ?Frederick Lee Burke? was in Salt Lake City on May 29 and Cheyenne on May 31. 57. The Court notes that Michael Moore, the witness who testi?ed that the defendant was at the victim?s trailer on the evening on June 3, had not identi?ed the defendant during his transcribed police interview on June 4, 1992. During that interview, he described two persons he saw at the 13 43victim?s trailer on the night of June 3, neither of whom matched the defendant?s description. Mr. Moore testi?ed that he ?rst identi?ed the defendant as a person he saw that night during a meeting with the prosecution in November 1994, over 2 years after the incident. 5 8. Defense witness Vern Stansberry, who authenticated one of the job applications submitted by ?Frederick Burke? in Idaho, testi?ed that the application was originally made on June 3, 1992, and that it expired on August 31, 1992. Stansberry believed that the applicant had renewed the application on September 1, 1992. The document upon which Stansberry based his testimony, a ?transaction list? introduced at trial as defense EX. R, does not state that the applicant took. any action to renew his application on September 1. The initial entries for June 3, 1992 on this document read ?Referred to job over 150 days.? The ?nal date on the transaction list, October 31, 1992, is exactly 150 days after June 3, 1992. 59. The Court heard testimony from Kellie Gauthier of the Las Vegas Metropolitan Police Laboratory, which conducted testing on bloodstains from the victim?s trailer, ?ngernail scrapings recovered from the victim, as well as cigarette butts found in the locked truck abandoned by Lake Mead -- all of which had been kept in the Court?s evidence vault since the 1995 trial. Ms. Gauthier testi?ed that the lab tested two cigarette butts that appeared to be different brands. One butt contained a DNA pro?le identical to that of the defendant. Another butt contained a complete DNA pro?le that was not consistent with either the defendant or the victim (who in any event was not a I smoker). The lab was unable to match this DNA to any person in the state or national databases, although Ms. Gauthier testi?ed that the incompleteness of these databases made it impossible to draw any conclusions about the identity of the person with this other DNA pro?le. The Court ?nds the testimony regarding the DNA on the cigarette butts to be credible and reliable. 60. The Court assumes that the defendant was the donor of the DNA on one of the cigarette butts. Given the undisputed fact that the defendant lived and worked with the victim until about a week before his death, however, the Court does not ?nd the presence of his DNA on a cigarette butt in the ashtray of the victim?s truck inconsistent with the defendant?s alibi. The presence of another person?s DNA on a cigarette butt in the same ashtray demonstrates that a person (or persons) other than the person who killed the victim and stole his truck left cigarette butts in the victim?s ashtray 14 before his death. 61. Judge Douglas Herndon, one of the two prosecutors who handled the trial, testi?ed for the State on January 20, 2012. Judge Herndon?s testimony concerned his recollections of the evidence and arguments at trial. The Court does not ?nd that this testimony constituted new evidence for purposes of the inquiry, and as noted above, has relied upon its own thorough review of the record in this case. LEGAL CONCLUSIONS 62. The Nevada Supreme Court remanded this case with instructions to hold an evidentiary hearing and ?determine whether appellant?s new evidence is reliable and, if so, whether appellant has demonstrated that, in light of all the evidence, ?it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt,? citing Schlup, 513 US. at 327; and Pellegrini, 1 17 Nev. At 887, 34 P.3d at 537. Sghlup requires this Court to ?assess the probative force of the newly evidence in connection with. the evidence of guilt adduced at trial.? Id. at 332. It is possible that the ?newly presented evidence may indeed call into question the credibility of witnesses presented at trial. In such a case, the habeas court may have to make some credibility assessments.? 1d. at 330. 63. The law of the case doctrine generally states that ?the law or ruling of a ?rst appeal must be followed in all subsequent proceedings.? Hsu v. County of Clark, 123 Nev. 625, 173 P.3d 724 at 728 (2007). Equitable considerations, however, sometimes require a departure from this doctrine. Id. at 726. Departures from the law of the case are appropriate when (1) subsequent proceedings produce substantially new or different evidence, (2) there has been an intervening change in controlling law, or (3) the prior decisioin was clearly erroneous and would result in manifest injustice if enforced.? Lisp at 729. 64. In light of (and the Nevada Supreme Court?s) directive to consider the question of innocence ?in light of all the evidence,? as opposed to just the evidence ?adduced at trial,? the Court has deemed it necessary to consider not just evidence directly related to the Robert Steese declaration, but other evidence not presented to the jury that tends to establish the defendant?s guilt or innocence, or support or discredit the evidence relied upon by the State at trial. It would make 15 little sense for the Court to ignore credible, reliable and relevant new evidence in conducting an actual innocence inquiry. Much of the new evidence presented in this Court, as noted above, became available to the defense as a result of the Court?s May 2011 order authorizing discovery of the district attorney?s ?le. The Nevada Supreme Court?s remand order had speci?cally noted that the defendant was seeking discovery of additional information. Rather than prohibit the discovery of this new information, the Nevada Supreme Court noted that ?requests for discovery raised in the petition should be pursued through motions ?led with the district court.? 65. The Court ?nds that the defendant has presented new evidence, as cited and described above, that is both credible and reliable under the standard set in S_cl_1_l_1_1p and the Nevada Supreme Court?s 2010 order. Order, pg. 3, fn.2. 66. The Court further ?nds that in light of all the evidence, including the credible and reliable new evidence, and the evidence previously presented at trial, that it is more likely than not that no reasonable juror would have found the defendant guilty beyond a reasonable doubt. The testimony during the ?rst week of June 1992. The Court is convinced that Robert Steese had nothing to do with creating a false alibi for the defendant. The evidence at trial, considered alongside new evidence such as the Union Paci?c Police Reports, the Rick Rock phone records (as considered in light of new evidence establishing the location of phone calls), and other evidence noted above, establishes a well?documented alibi proven by multiple consistent and reliable sources. Absent the Robert Steese explanation, the State has not provided any plausible explanation, at trial or in these proceedings, for this evidence. 67. The Court ?nds that this new evidence calls into question the credibility and reliability of the evidence used by the prosecution to convict the defendant, including the confessions of guilt to the police and Glen Long, and the statements of Alexi Kolupaev and Michael Moore that contradicted the alibi. Even as presented at trial, there were legitimate issues about this evidence (for example, concerning the prior inconsistent statements by Kolupaev and Moore). In light of the new evidence cited in P. 66, it is more likely than not that no reasonable juror would have found the defendant l6 guilty beyond a reasonable doubt based on the state?s evidence as presented at trial. 68. Other new evidence further erodes con?dence in the state?s evidence at trial. New evidence, including records from Utah and from this Court?s own records, raise serious questions about the credibility of Long. New evidence, including Dr. Davis?s testimony and the defendant?s prior pre- sentencing reports, call into question the reliability of his confession. The timeline provided by the Union Paci?c Police Reports corroborates the reliability of Kolupaev?s original statement to the police. 69. For all these reasons, the Court finds that the defendant has met his burden of establishing ?actual innocence? for purposes of overcoming procedural default on his underlying claims. SO ORDERED DATED this day of RENE L. VALLADARES Federal Public Defender Nevada State Bar No. 11479 LAW OFFICES OF THE FEDERAL PUBLIC DEFENDER Rvan Norwood RYAN NORWOOD Assistant Federal Public Defender 17 CERTIFICATE OF SERVICE BY MAIL The undersigned hereby certi?es that he is an employee in the office of the Federal Public Defender for the District of Nevada and is a person of such age and discretion as to be competent to serve papers. In accordance with Rule 5(b) of the Nevada rules of Civil Procedure, on January 9, 2013, he served a true and accurate copy of the foregoing by United States mail, first-class postage prepaid, and addressed to the following parties: Paniela Weckerly Chief Deputy District Attorney 200 Lewis Avenue Las Vegas, Nevada 89155-2212 Frederick Lee Steese NDOC No. 45595 Southern Desert Correctional Center P. O. Box 208 Indian Springs, Nevada 89018 /s/Adan1 Dunn An employee of the Federal Public Defender?s Office 18 JD\Pleadings\October l8 order.wpd