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Rieman v. Gilbert

United States District Court, W.D. Washington

January 25, 2018




         The District Court has referred this petition for a writ of habeas corpus to United States Magistrate Judge J. Richard Creatura. The Court's authority for the referral is 28 U.S.C. § 636(b)(1)(A) and (B), and local Magistrate Judge Rules MJR3 and MJR4. Petitioner filed the petition pursuant to 28 U.S.C. § 2254.

         Petitioner Erin Dean Rieman and John Adkins were partners on a fishing boat. They hired Walter Bremmer as temporary crew. One night, after the three men went ashore, Adkins disappeared. Although his blood was found on the boat, Adkins's body was never found. After being granted full immunity, Bremmer gave a statement stating that petitioner beat and strangled Adkins and then he and petitioner disposed of Adkins's body at sea. Petitioner entered a not guilty plea to the charge of murder, but never offered his side of the story. Instead, he remained silent.

         Petitioner ultimately agreed to an Alford plea to manslaughter and was sentenced to 12 years in prison. Over two years later, Bremmer was arrested and later convicted for murdering a man in Hawaii by strangulation. After petitioner learned that Bremmer was incarcerated, he came forward for the first time with his own version of how Adkins was killed. He states that Bremmer was the true murderer and that Bremmer beat and strangled Adkins. He states that Bremmer threatened to kill petitioner and his family if petitioner ever implicated him. Since Bremmer was in Hawaii, where petitioner's daughter and grandchildren lived, he believed that Bremmer would carry through with his threat. Therefore, he went to prison rather than implicate Bremmer in Adkin's death.

         His petition is otherwise procedurally barred as untimely because it was filed beyond the statute of limitations. Therefore, he can only proceed if he can demonstrate that his petition is one of the narrow class implicating a “miscarriage of justice” and that he was “actually innocent” of the crime. Here, based on a preponderance of all of the evidence now presented, this Court finds that no reasonable juror would have found petitioner guilty of manslaughter beyond a reasonable doubt. Therefore, petitioner's habeas petition is not procedurally barred and his petition may be examined on the merits. The Court, therefore, directs the parties to appear for an evidentiary hearing to determine if his plea was impacted by Bremmer's threats.


         The Washington State Court of Appeals stated the facts of petitioner's case as follows:

         On October 20, 2009, the State charged Rieman, as a principal or an accomplice, with one count of second degree murder with aggravating factors, a deadly weapon sentence enhancement, and first degree theft. Rieman was accused of murdering John Adkins. After extended negotiations, Rieman agreed to enter an Alford plea to an amended charge of first degree manslaughter with an aggravating factor that he used his position of trust, confidence, or fiduciary responsibility to facilitate the offense.

         During the plea hearing, the State explained that the “tremendous amount of circumstantial evidence” in the case was tied together by a statement from codefendant Walter Bremmer, who was on a fishing vessel with Adkins and Rieman when Adkins died.[1] Defense counsel acknowledged that Bremmer's statement about Adkins' death was central to Rieman's decision to plead guilty. Counsel added that an extensive investigation had revealed blood and DNA (deoxyribonucleic acid) evidence attributable to Rieman and Adkins but not to Bremmer, and that other evidence from the murder scene corroborated Bremmer's statement.

         After an extended colloquy in which Rieman assured the trial court that no one had threatened him and that he was acting of his own free will, Rieman pleaded guilty to the amended charge and agreed to an exceptional sentence of 132 months. On May 21, 2010, the trial court sentenced him accordingly. Rieman did not appeal.

         On September 30, 2013, Rieman moved to withdraw his guilty plea and to vacate his sentence under CrR 7.8. Rieman argued that his plea was involuntary because it was coerced by threats from Bremmer, his former codefendant. Rieman asserted for the first time that Bremmer strangled Adkins and then threatened Rieman and his family if Rieman did not “support his story.” Rieman argued that he could not reveal these facts or threats until Bremmer's arrest for an unrelated murder charge in Hawaii.

         The State moved to strike Rieman's motion on the ground that it was untimely. Following a hearing, the trial court agreed and ruled as follows:

         IT IS HEREBY ORDERED that the motion of the defendant to withdraw his guilty plea is denied. More than one year has elapsed since the defendant was sentenced. The defendant has not made a threshold showing that he meets the requirements for withdrawal of plea as listed in CrR 7.8(b) and RCW 10.73.100.

         Rieman moved for reconsideration and argued that the one-year time limit did not apply because Bremmer's arrest in October 2012 constituted newly discovered evidence. The trial court denied reconsideration.

         Rieman then filed this appeal, arguing that the trial court erred in denying his motion to withdraw without holding an evidentiary hearing, that the motion was timely because of newly discovered evidence, and that he received ineffective assistance of counsel from the attorney who filed the motion. Rieman asserts that we should reverse and remand for a hearing on the merits or treat this matter as a personal restraint petition.

         Dkt. 13, Ex. 2 at 1-3; 187 Wn.App. 1036, 2015 WL 3422150 at *1-2 (Div. 2, 2015).

         The Court of Appeals converted petitioner's CrR 7.8 motion into a personal restraint petition. Dkt. 13, Ex. 2 at 4. However, the court determined that petitioner's petition was filed outside the one-year statute of limitations and Bremmer's arrest did not constitute newly discovered evidence under RCW 10.73.100(1), so petitioner could not avoid the time bar. Id. at 4-5. The court therefore dismissed petitioner's personal restraint petition as untimely. Id. at 5.[2]

         Petitioner filed a motion for reconsideration with the Court of Appeals (Id., Ex.10), which that court denied (Id., Ex.12). Petitioner then filed a petition for review with the Washington Supreme Court (Id., Ex. 13), which was also denied (Id., Ex. 14). The mandate for this case was issued, setting the final judgment date as December 2, 2015. Id., Ex. 15.

         Petitioner, pro se, filed a petition for a writ of habeas corpus with this Court in April of 2016. Dkt. 1. After the Court ordered service on defendant (Dkt. 7) and defendant submitted the state court record (Dkt. 13), the Court appointed counsel for petitioner from the Federal Public Defenders' Office (Dkt. 15). In September of 2016, the Court granted a stipulated motion, staying proceedings until petitioner's counsel could properly investigate his claims. Dkts. 20, 21. The stay expired in September of 2017 (see Dkt. 37) and the Court provided leave for both parties to submit supplemental briefing (Dkt. 38). The Federal Public Defenders office has completed its investigation and both parties have now filed their supplements (Dkts. 39, 45, 47). Pursuant to this Court's order, the parties also appeared for oral argument on January 23, 2018. Dkt. 48; Dkt. Event at 1/11/2018.


         I. Actual Innocence Excusing Untimeliness and Procedural Default

         It is not disputed that petitioner filed his petition well after the statute of limitations, and that it is unexhausted, making it procedurally defaulted. However, petitioner alleges that he can present evidence of his actual innocence, thereby allowing the Court to excuse his procedural default.

         A. Standard for Procedural Actual Innocence

         A showing that a petitioner is actually innocent of the crime for which he was convicted can allow a petitioner to avoid both AEDPA's statute of limitations, see McQuiggin v. Perkins, 569 U.S. 383 (2013), and procedural default of his petition, see Smith v. Baldwin, 510 F.3d 1127 (9th Cir. 2007). Under Schlup v. Delo, a petitioner must produce proof of his actual innocence to bring him “within the narrow class of cases . . . implicating a fundamental miscarriage of justice.” 513 U.S. 298, 314-15 (1995) (quotations omitted). A petitioner ...

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