United States District Court, W.D. Washington, Tacoma
ORDER DENYING MOTION FOR AFFIDAVITS AND GRANTING
MOTION TO EXPAND RECORD
Richard Creatura United States Magistrate Judge
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 Erin Dean Rieman filed
the petition pursuant to 28 U.S.C. § 2254.
asks that the Court allow the parties to provide evidence by
affidavit rather than live testimony at an upcoming
evidentiary hearing, and to expand the record with six
additional documents. The purpose of the evidentiary hearing
is, in part, to determine the credibility of witnesses. This
can best be done through live testimony. Nevertheless, to the
extent that the parties agree that certain witnesses'
testimony can be presented through affidavit, the Court will
consider those affidavits. Also, because petitioner developed
the factual basis for his claims by requesting, and being
denied, an evidentiary hearing in state court, and because
§ 2254(e)(2) does not bar him from presenting this
additional evidence, petitioner's motion to expand the
record is granted.
originally filed this habeas petition in April of 2016. Dkt.
1. After counsel was appointed and the factual record
developed, the Court determined that it could not rule on
petitioner's habeas petition based only on the available
documentary evidence, and so ordered an evidentiary hearing.
Dkt. 50. Respondent filed an objection and appeal to the
Court's decision to hold the evidentiary hearing (Dkt.
51), and petitioner filed his motion for affidavits and
motion to expand the record thereafter (Dkts. 52, 53).
Following a telephone conference, the Court entered a minute
order striking the noting dates of the pending motions until
the Honorable Ronald B. Leighton ruled on respondent's
objections and appeal. Dkt. 63. Judge Leighton has now
entered an order denying respondent's objections and
appeal. Dkt. 64. The Court entered an order rescheduling the
evidentiary hearing to April 5, 2018 (Dkt. 66), and
petitioner's motion for affidavits and motion to expand
the record are both now ripe for consideration.
Motion to Allow Affidavits
Form of Evidence
requests that the Court allow the parties to submit
affidavits in lieu of live testimony for several witnesses.
Dkt. 52. The Court may receive evidence by oral testimony,
deposition, or, on its discretion, affidavit. 28 U.S.C.
§ 2246. However, when the Court is required to make
credibility determinations, it should not rely solely on
documentary testimony and evidence on the record unless the
Court is able to “conclusively” decide the
credibility question with that evidence. Earp v.
Ornoski, 431 F.3d 1158, 1169-70 (9th Cir. 2005) (quoting
Watts v. United States, 841 F.2d 275, 277 (9th Cir.
objects to the use of affidavits, arguing, among other
things, that doing so would deprive respondent of the ability
to effectively cross examine the witnesses in question. Here,
the Court ordered an evidentiary hearing in part to better
make credibility determinations. Therefore, allowing
testimony through affidavits would undercut the Court's
ability to make those credibility determinations.
Earp, 431 F.3d at 1169-70. Therefore, the Court
denies petitioner's motion to allow testimony by
affidavit as to the affidavits of Frank Sullivan and Eric L.
the Court notes that respondent does not object to witnesses
Cynthia Villella, Lee Ann Olson, Debbie Lopez-Stitt, and
Patty Carrar providing written, rather than oral, testimony
in order to prevent additional trauma. The Court will accept
these affidavits and any other affidavits both parties agree
are appropriate, giving these affidavits their due weight.
Admissibility of Evidence
also objects to the affidavits based on relevance. The Court
will rule on relevancy objections as part of the evidentiary
hearing, but it should be noted that the sole issue before
the court is whether or not petitioner's guilty plea was
entered into knowingly, intelligently and voluntarily. The
Court is finding it difficult to see the relevance of
testimony from witnesses who were allegedly assaulted before
petitioner's guilty plea, and who petitioner was unaware
of at the time of entering his guilty plea. Such testimony
would not have influenced his decision to plead guilty.
Similarly, the murder in Hawaii happened well after
petitioner entered his plea, meaning that it also could not
have had an influence on petitioner's guilty plea. Most
of the testimony that is the subject of this motion seems to
go one issue - to prove that non-party Bremmer has committed
violent acts in the past, thus showing he likely committed
the murder in this case. That issue is not presently before
the Court, but was the subject of this court's previous
ruling. See Dkt. 50. This Court previously determined that
petitioner had met the burden of proof on the issue of his
“actual innocence” and was, therefore, excused
from AEDPA's statute of limitations. Id. at
5-13. The Court noted at that time:
Taking all of the evidence into account, including evidence
available at the time of petitioner's conviction and now,
and with the benefit of the subsequent investigation and
events, the Court finds it more likely than not that if this
matter were to proceed to trial today, no ...