Holt v. Brown, et al

Filing 270

ORDER Upon 267 Stipulation Regarding Testimony of George Peterson signed by District Judge Dale A. Drozd on 6/16/2017. (Sant Agata, S)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 JOHN LEE HOLT, 10 11 Petitioner, v. 12 14 DEATH PENALTY CASE ORDER UPON STIPULATION REGARDING TESTIMONY OF GEORGE PETERSON RON DAVIS, Warden Of San Quentin State Prison, 13 Case No. 1:97-cv-06210-DAD-SAB (Doc. No. 267) Respondent.1 15 Before the court is the stipulation of petitioner’s counsel, attorney Robert M. Myers and 16 17 Assistant Federal Defender Jennifer Mann, and respondent’s counsel, Deputy Attorneys General 18 Sean M. McCoy and Peter W. Thompson, filed June 14, 2017, to an order directing the 19 admission of the June 19, 1995 declaration of associate defense counsel George Peterson, (see 20 State Habeas Corpus Petition, Ex. 30 thereto) in lieu of live or deposition testimony at the 21 evidentiary hearing scheduled for October 24, 2017. The parties represent that they do not intend to call Mr. Peterson to testify at the hearing 22 23 because he is eighty-six years old and in poor health due to heart problems and would testify 24 consistently with his declaration. The parties further represent that Mr. Peterson’s declaration 25 will be his only testimony offered in this action. 26 ///// 27 1 Pursuant to Fed. R. Civ. P. 25(d), Ron Davis, Warden of San Quentin State Prison, is 28 substituted as respondent in place of his predecessor wardens. 1 1 Based on the parties’ stipulated representations, the court finds good cause to grant the 2 request. See 28 U.S.C. § 2246 (“On application for a writ of habeas corpus, evidence may be 3 taken orally or by deposition, or, in the discretion of the judge, by affidavit….”); Phillips v. 4 Smith, 300 F. Supp. 130, 134 (S.D. Ga. 1969) (use of affidavits in habeas corpus applications is 5 within the sound discretion of the district judge). 6 Accordingly, the declaration of George Peterson, signed June 19, 1995, shall be admitted 7 in lieu of live or deposition testimony at the evidentiary hearing in this action. 8 9 10 IT IS SO ORDERED. Dated: June 16, 2017 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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