Lenart v. Ornoski
Filing
120
ORDER signed by Magistrate Judge Carolyn K. Delaney on 6/7/2013 ORDERING that the stay of these proceedings issued in November 2008 is LIFTED for the limited purpose of the perpetuation of testimony permitted in accordance with this order; petitioner 's 105 motion to stipulate to declarations and/or to perpetuate testimony is GRANTED with respect to witnesses Dr. Globus, Dr. Wilson, Jack Suter, Flora Mortell, Claudean Crews Watkins, and E.C. Eddings; the testimony of these witnesses may be taken by stipulated declaration, if the respondent so agrees, or by deposition. (Yin, K)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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THOMAS HOWARD LENART,
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No. 2:05-cv-1912 MCE CKD
Petitioner,
DEATH PENALTY CASE
v.
WARDEN, San Quentin State Prison,
ORDER
Respondent.
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On June 5, 2013, the undersigned heard continued argument on petitioner’s motion to
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stipulate to declarations and/or perpetuate testimony of seven witnesses. (ECF No. 105.) Lissa
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Gardner appeared for petitioner. Wesley Van Winkle participated by telephone for petitioner.
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Ward Campbell appeared for respondent. After considering the parties’ briefs and the arguments
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of counsel, the court finds and orders as follows.
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A court may permit the preservation of testimony by deposition upon a showing that the
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testimony is material to a party’s claims and there is a risk that the testimony may be permanently
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lost if the party is required to wait through the normal course of litigation. See Fed. R. Civ. P.
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27(a); Penn Mutual Life Ins. Co. v. United States, 68 F.3d 1371, 1375 (D.C. Cir. 1995)
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(permitting deposition of elderly witnesses to preserve testimony). Petitioner demonstrates that
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the seven witnesses’ expected testimony is material to his claims of ineffective assistance of
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counsel and his claim that his death sentence violates the Eighth Amendment because he is
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mentally disordered. (Am. Pet., ECF No. 45, Claims 1, 22, and 38.) With respect to all witnesses
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except Dr. Tivoli, petitioner also demonstrates that their testimony may become unavailable if it
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is not obtained soon. See Penn Mutual, 68 F.3d at 1375.
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Respondent has not established that permitting the perpetuation of testimony at this stage
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of the proceedings is inappropriate. Cf. Cullen v. Pinholster, 118 S. Ct. 1411 n. 20 (“[W]e need
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not decide . . . whether a district court may ever choose to hold an evidentiary hearing before it
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determines that § 2254(d) has been satisfied.”) Respondent’s attempt to characterize petitioner’s
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motion as seeking discovery or expansion of the record is not well taken. Respondent has not
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shown that petitioner is seeking to admit testimony beyond that provided in the witnesses’
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declarations submitted to the state court and herein. In fact, petitioner seeks admission of the
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witnesses’ declarations as their direct testimony in lieu of depositions.1 Further, because the
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expected testimony is before the state court, exhaustion is not an issue at this point. See Picard v.
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Connor, 404 U.S. 270, 275 (1971) (to be exhausted, federal claim must be “fairly presented” to
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the state court); Batchelor v. Cupp, 693 F.2d 859, 862 (9th Cir. 1982) (claim exhausted where
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state court has had an opportunity to consider its merits).
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Accordingly, and good cause appearing, IT IS HEREBY ORDERED as follows:
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1. The stay of these proceedings issued in November 2008 (Dkt. No. 56) is lifted
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for the limited purpose of the perpetuation of testimony permitted below.
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2. Petitioner’s motion to stipulate to declarations and/or to perpetuate testimony (ECF No.
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105) is granted with respect to the following witnesses: Dr. Globus, Dr. Wilson, Jack Suter, Flora
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Mortell, Claudean Crews Watkins, and E.C. Eddings. The testimony of these witnesses may be
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taken by stipulated declaration, if the respondent so agrees, or by deposition.
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Dated: June 7, 2013
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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Respondent also objected to taking the deposition of Dr. Globus because he claimed he had not
received a copy of a report to which Dr. Globus refers in his declaration. At the June 5 hearing,
petitioner’s counsel informed the court that she had provided respondent’s counsel with a copy of
that report.
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