Riel v. Woodford

Filing 252

ORDER signed by Magistrate Judge Kimberly J. Mueller on 07/21/09 ORDERING that respondents motion to depose petitioner is GRANTED; petitioner's 227 05/22/09 motion to preclude respondent's deposition of petitioner is DENIED. Within 30 day s, petitioner shall file any brief regarding the issue of petitioner's assertion of the Fifth Amendment or other objections anticipated during his deposition and any proposals for the conduct of the deposition. Respondent shall file any respons e w/i 20 days of the filing date of petitioner's statement. Petitioner may file a reply w/i 10 days thereafter. By 07/24/09, petitioner shall provide to respondent's counsel copies of alldocuments relied upon by Drs. Pettit and Froming. A fter reviewing those documents and by 07/31/09, respondent shall inform the court whether he continues to seek petitioner's entire CDCR file. After receipt of respondent's statement, the court will resolve any motion to obtain petitioner� 39;s CDCR files that remains pending, and petitioner's motion to enjoin respondent from doing so. At that time the court will also finalize a pre-evidentiary hearing schedule. Within 30 days, petitioner's counsel shall provide to respondent's counsel copies of all documents relied upon by expert Charles Morton. (Benson, A.)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs. ROBERT L. AYERS, Jr., Warden of San Quentin State Prison, Respondent. / On July 8, 2009, the undersigned heard argument on respondent's motions to depose petitioner and to discover petitioner's CDCR records and on petitioner's motions to preclude respondent's deposition of petitioner and to enjoin respondent's counsel from accessing or disclosing petitioner's CDCR records. In addition, the parties discussed with the court disagreements reflected in their June 19, 2009 joint statement regarding pre-evidentiary hearing scheduling. To attempt to resolve uncertainty about the identity of the documents reviewed by petitioner's experts Drs. Pettit and Froming, the court ordered petitioner to provide respondent's counsel with copies of all those documents. July 9, 2009 Order. In addition, the court ordered petitioner to propose a staggered schedule for identifying lay witnesses. Id. On July 17, the parties submitted a second joint statement and petitioner presented a proposal for identifying lay 1 ORDER CHARLES D. RIEL, Petitioner, No. CIV S-01-0507 LKK KJM DEATH PENALTY CASE IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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witnesses. Upon review of the motions and the documents in support and opposition, upon review of the joint statements, upon hearing the arguments of counsel and good cause appearing therefor, the court finds and orders as follows. The court finds good cause for respondent to depose petitioner. Petitioner's claims that trial counsel was ineffective for failing to investigate and present evidence of petitioner's family and medical history put at issue his conversations with trial counsel, with trial counsel's investigators, and with Dr. Edwards, who provided trial counsel with a mental health evaluation after interviewing and testing petitioner. Further, the simple fact that petitioner's background is at issue in the evidentiary hearing means he necessarily has both relevant information and information that may lead to the discovery of relevant information. Petitioner argues that respondent has not shown good cause because petitioner does not intend to show he objected to trial counsel's decision to have him testify and because the interviews of Drs. Pettit and Froming with petitioner were solely for the purposes of clinical observation, not fact gathering. These arguments may go to the scope of the deposition but do not defeat the showing of good cause. The parties discussed briefly the issue of petitioner's Fifth Amendment right to refuse to answer questions during his deposition. If petitioner wishes to raise that issue, or any other issue about the conduct of the deposition, he shall do so in writing prior to the deposition. A briefing schedule is set out below. With respect to respondent's request to discover petitioner's CDCR files, respondent argues that he needs the files because petitioner's mental health experts have relied upon them and also because "petitioner has put at issue his medical and psychological health and his ability to learn and work to justify his claims for habeas relief." Reply to Pet'r's Opp'n to Resp't's Notice of Intent to Access Pet'r's CDCR File at 4. Petitioner states that despite indications in one expert report to the contrary, the experts did not in fact review copies of any 2

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CDCR records. Petitioner offered to provide respondent's counsel with copies of all documents petitioner's counsel provided to the mental health experts. Petitioner's counsel informed the court in the July 17, 2009 joint statement that copies of the documents were being provided to respondent's counsel "as soon as practicable."1 It should be noted that while the court's July 9 order stated: "petitioner's counsel agreed to provide respondent's counsel with all documents relied upon by petitioner's experts," the "experts" referred to were those discussed during the hearing, Drs. Pettit and Froming. Respondent now asks that he also be granted discovery of copies of all documents relied upon by petitioner's third expert, Charles Morton. Because the court has already approved respondent's deposition of Mr. Morton, there is good cause for the discovery of those documents as well. Accordingly, good cause showing, IT IS HEREBY ORDERED: 1. Respondent's motion to depose petitioner is granted. Petitioner's May 22, 2009 motion to preclude respondent's deposition of petitioner is denied. 2. Within thirty days of the filed date of this order, petitioner shall file any brief regarding the issue of petitioner's assertion of the Fifth Amendment or other objections anticipated during his deposition and any proposals for the conduct of the deposition. Respondent shall file any response within twenty days of the filing date of petitioner's statement. Petitioner may file a reply within ten days thereafter. 3. By July 24, 2009, petitioner shall provide to respondent's counsel copies of all documents relied upon by Drs. Pettit and Froming. After reviewing those documents and by July 31, 2009, respondent shall inform the court whether he continues to seek petitioner's entire CDCR file. After receipt of respondent's statement, the court will resolve any motion to obtain

Just when the documents will be provided is confusing. Petitioner's counsel stated that he mailed the documents to the Federal Defender's Office on July 9, but that the documents were not delivered there until eight days later, July 17, and that it will take five days to scan and deliver copies to respondent. Assuming those dates are correct, then petitioner should have the documents to respondent no later than July 24. 3

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petitioner's CDCR files that remains pending, and petitioner's motion to enjoin respondent from doing so. At that time the court will also finalize a pre-evidentiary hearing schedule. 4. Within thirty days of the filed date of this order, petitioner's counsel shall provide to respondent's counsel copies of all documents relied upon by expert Charles Morton. DATED: July 21, 2009.

riel pre evi disc.or

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