Lenart v. Ornoski

Filing 90

ORDER signed by Magistrate Judge Carolyn K. Delaney on 4/6/2012 ORDERING 88 Motion to perpetuate testimony is GRANTED; the 56 stay of these proceedings is LIFTED for the limited purpose of this motion to perpetuate testimony and the discovery permitted, as outlined in this Order.(Waggoner, D)

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IN THE 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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Petitioner,

No. CIV S-05-1912 MCE CKD

vs.

DEATH PENALTY CASE

WARDEN, San Quentin
State Prison,

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Respondent.

ORDER

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On April 4, 2012, the undersigned heard argument on petitioner’s motion to

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perpetuate testimony. (Dkt. No. 88.) Lissa Gardner appeared for petitioner. Wesley Van Winkle

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appeared by telephone for petitioner. Jesse Witt appeared for respondent. After considering

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petitioner’s motion and the arguments of counsel, the court finds and orders as follows.

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Petitioner demonstrates that the witness’s expected testimony is material to his

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claims of ineffective assistance of counsel and his claim that the public defender’s hiring scheme

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was constitutionally inadequate, claims 1 and 22 of the amended petition (Dkt. No. 45 at 19-242,

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319-323). Petitioner also demonstrates that this testimony may become unavailable if it is not

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obtained soon. See Penn Mutual Life Ins. Co. v. United States, 68 F.3d 1371, 1375 (D.C. Cir.

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1995) (permitting deposition of elderly witnesses to preserve testimony). Recent Supreme Court
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authority does not bar this court from permitting fact-finding. Cf. Cullen v. Pinholster, 118 S. Ct.

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1411 n. 20 (“[W]e need not decide . . . whether a district court may ever choose to hold an

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evidentiary hearing before it determines that §2254(d) has been satisfied.”)

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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 this motion and the discovery permitted below.
2. Petitioner’s motion to perpetuate testimony is granted. (Dkt. No. 88.)
Dated: April 6, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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lenart mtn to perpetuate.or

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