Riel v. Woodford

Filing 504

ORDER signed by Magistrate Judge Dale A. Drozd on 10/19/11 ordering petitioner's noticed deposition of Ms. Riel may go forward. Respondent's objections thereto are rejected. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHARLES D. RIEL,

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Petitioner,

No. CIV S-01-0507 LKK DAD

vs.

DEATH PENALTY CASE

WARDEN, San Quentin
State Prison,

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Respondent.

ORDER

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/
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Respondent objects to petitioner’s notice of taking the deposition of Vonnie Riel.

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For the reasons set forth below, this court finds that Ms. Riel’s deposition should go forward to

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preserve her testimony.

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In 2009, the court granted in part petitioner’s motion for an evidentiary hearing.

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(Doc. Nos. 204, 212.) Petitioner has identified Ms. Riel, his mother, as one of his witnesses in

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support of his claims of ineffective assistance of counsel. (Doc. No. 282.) During a May 19,

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2010 status conference, respondent agreed to petitioner’s request that Mr. and Ms. Riel’s

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testimony be taken by deposition “because it will be difficult, or impossible, for petitioner to

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bring them to court.” (Doc. No. 359 at 4.) The court ordered Ms. Riel’s direct testimony be

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obtained by declaration and that her cross-examination and re-direct examination be conducted
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by deposition. (Id.) On July 6, 2010, petitioner filed a statement regarding scheduling the out-

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of-court testimony of lay witnesses. (Doc. No. 407.) Among other things, petitioner requested

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that Ms. Riel be one of the first witnesses examined. (Id.) Petitioner’s counsel represented that

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petitioner’s mother was 71 years old and “has multiple serious health problems.” (Id.) On

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August 18, 2010, petitioner noticed Ms. Riel’s testimony deposition for September 14. (Doc.

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No. 430.) Apparently, that deposition did not take place.

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On April 4, 2011, the United States Supreme Court issued an opinion in Cullen v.

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Pinholster, ___U.S.___, 131 S. Ct. 1388 (2011). After Pinholster, when a state court decides a

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habeas claim on the merits, the federal court’s inquiry under 28 U.S.C. § 2254(d)(1) is limited to

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the record that was before the state court. 131 S. Ct. at 1398. Shortly thereafter, this court

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ordered the parties to brief the impact of the recent decision Pinholster on these proceedings.

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(Dkt. No. 485.) They have done so. (Doc. Nos. 489, 490.) Oral argument on the issue is

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scheduled for November 16, 2011. (Doc. No. 501.)

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On September 30, 2011, petitioner filed a “Notice of Taking Deposition to

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Preserve Testimony of Vonnie Riel.” (Doc. No. 498.) The deposition is noticed for November

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15, 2011. (Id.) Respondent objects to the deposition. (Doc. No. 500.) Respondent argues that

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the deposition may be a waste of time and resources because, after the decision in Pinholster, the

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court may be unable to consider Ms. Riel’s testimony. Petitioner makes a number of arguments

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in response. (Doc. No. 503.) Primarily, and most importantly, petitioner argues that Ms. Riel’s

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deposition is necessary to preserve her testimony.

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Petitioner has shown that Ms. Riel is elderly and in poor health. (Oct. 18, 2011

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Decl. of Paul Mann, Ex. to Doc. No. 503.) Counsel for petitioner has stressed those issues and

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concerns in the past, and respondent has not objected thereto. There is no question that Ms. Riel

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is a key witness regarding petitioner’s background, an important aspect of petitioner’s claim that

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his “counsel was ineffective for failing to pursue evidence related to petitioner’s family and

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socio-medical history and his organic, developmental, psychological, and alcohol-related
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impairments.” (Doc. No. 204 at 13.)

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The Supreme Court in Pinholster did not bar this court from taking evidence in a

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federal habeas corpus proceeding. See 118 S. Ct. at 1411 n. 20 (“[W]e need not decide . . .

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whether a district court may ever choose to hold an evidentiary hearing before it determines that

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§ 2254(d) has been satisfied.”) Petitioner is not asking the court to consider Ms. Riel’s

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testimony when it considers whether or not petitioner has satisfied 28 U.S.C. § 2254(d). At this

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point, petitioner is only asking that he be allowed to preserve Ms. Riel’s testimony. The court

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finds petitioner has shown good cause for doing so. See Penn Mutual Life Ins. Co. v. United

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States, 68 F.3d 1371, 1375 (D.C. Cir. 1995) (permitting deposition of elderly witnesses to

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preserve testimony).

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Accordingly, petitioner’s noticed deposition of Ms. Riel may go forward.

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Respondent’s objections thereto are rejected.

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IT IS SO ORDERED.

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DATED: October 19, 2011.

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riel vr depo.or

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