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Rieman v. Gilbert

United States District Court, W.D. Washington, Tacoma

April 30, 2018




         There is now sufficient reason to believe that Petitioner Erin Dean Rieman witnessed a brutal murder of his friend and partner, John Adkins, at the hands of Walter Bremmer - a man hired part time to work on their boat. There is clear and convincing evidence that when Bremmer threatened Rieman with killing him, his girlfriend, and his family that Rieman believed him. It is therefore understandable that Rieman would plead guilty to voluntary manslaughter for a crime he didn't commit, rather than reveal what he knew and put himself and his family at risk. Under these circumstances, it cannot be said that Reiman's Alford plea was entered voluntarily. It is also clear that the trial court would not have accepted petitioner's guilty plea had he been fully advised of the facts. Therefore, now that all of the facts have been revealed, this Court recommends that petitioner's conviction be vacated and that his habeas petition be granted.


         Three men on a boat. Adkins, Bremmer, and Rieman. They had brought the boat up from Oregon to Ilwaco to repair the boat in order to get it ready for the commercial fishing season. On the second night in the harbor, Adkins turned up missing. Several months later, Bremmer, in exchange for full immunity from prosecution, said that Rieman beat and strangled Adkins to death. Rieman provided no explanation, other than to say that he was innocent.

         With essentially these facts, Rieman's attorney told him that he was likely to be convicted of murder in the second degree if he went to trial, facing at least 25 years and a possible life sentence. Dkt. 84 at 35. Therefore, he counseled Rieman to accept an Alford plea to a lesser charge of voluntary manslaughter, and agree to a recommended sentence of eleven years. Id.

         The judge who accepted the plea carefully reviewed the evidence presented and questioned Rieman thoroughly as to whether his plea was being done knowingly, intelligently, and voluntarily. Dkt. 13, Ex. 3 at 45-47. Rieman assured the judge that it was. Id. The trial judge accepted the plea, Rieman was convicted of voluntary manslaughter, and sentenced to prison for eleven years. Dkt. 13, Ex. 1.

         That's where he stayed for the next three years - until he learned that his accuser, Bremmer, had been arrested in Hawaii for strangling and shooting another man to death, in much the same way as Adkins' murder was to have been committed. For the first time, Rieman wrote to the prosecuting attorney in Pacific County, explaining that it was Bremmer who murdered Adkins:

Walter pulled a gun on me and forced me to watch as he strangled John to death[.] Not only did Walter threaten my life if I did not support his story, and help him dispose of John[']s body but he threatened the life of my girlfriend at the time, Rachel Sachs. He also threatened the lives of my daughter Kahau and her two children Lion and Island. There were all born in Hawaii and currently reside there.
I took Walter[']s threats very seriously as I'd witnessed a murder. He also told me he'd killed before. . . . I have kept silent all this time to protect my family from a very real and dangerous threat. I did so knowing full well the consequences of my silence. Wouldn't any man protect his daughter, Mr. Burke?

Ex. P1.

         Rieman filed a motion to withdraw his guilty plea in Washington state court, which the court converted to a personal restraint petition. Dkt. 13, Exs. 10, 12. The Court of Appeals, relying on Washington law, concluded that Rieman's petition could not be granted because he waited too long to file it.

Under RCW 10.73.090(1), a collateral attack on a judgment and sentence generally is timely if filed within one year after the judgment becomes final.
Rieman's assertion that newly discovered evidence demonstrates that his plea was involuntary triggers the exception in RCW 10.73.100(1). This exception entitles a petitioner to relief if he establishes that the evidence “. . . (3) could not have been discovered before trial by the exercise of due diligence; . . .” In re Pers. Restraint of Brown, 143 Wn.2d 431, 453 (2001) (quoting State v. Williams, 96 Wn.2d 215, 222-23 (1981)).
Rieman asserts that he could not reveal the coercion and threats that led him to plead guilty until he learned of Bremmer's conviction. But this argument does not satisfy the test for newly discovered evidence because it rests on information that Rieman allegedly knew at the time of his plea; i.e., that he was being threatened by Bremmer. . . . Thus, the fact that Bremmer's conviction prompted Rieman to reveal preexisting coercion does not support Rieman's claim that newly discovered evidence shows his plea was involuntary.

Dkt. 13, Ex. 2 (parallel citations omitted).

         The court dismissed the petition. Id. The Washington Supreme Court declined to review his personal restraint petition. Id., Ex. 13.

         Thus, he filed a petition for writ of habeas corpus in this Court. Dkts. 1, 5.


         Unlike the Washington statute, when evaluating whether or not a petition is time barred, this Court can consider any newly presented evidence, whether it was reasonably available at the time of the plea or became available after the plea. Griffin v. Johnson, 350 F.3d 956, 963 (9th Cir. 2003). This opens up an entirely new body of evidence that had not been considered by the state court.

         A federal court may grant a habeas petition either because a state court arrives at a conclusion that is contrary to a decision by the Supreme Court on a question of law, or the state court unreasonably applies an established legal principle to the facts of the prisoner's case. See Williams v. Taylor, 529 U.S. 362 (2000). Because the state courts did not have the evidence this Court has now, it is on this second basis that the Court is considering the granting of the writ. Also, although our review of state court decisions under 28 U.S.C. § 2254(d)(1) is generally “limited to the record that was before the state court that adjudicated the claim on the merits, ” Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011), this limitation does not apply to claims that the state court did not have an opportunity to review on their merits. Dickens v. Ryan, 740 F.3d 1302, 1320 (9th Cir. 2014). The Court may analyze evidence outside of the state court record if the state court disposed of the claim based on a procedural bar, rather than on the merits. See Weber v. Sinclair, 2014 WL 1671508 at *5 (W.D. Wash. 2014). Because the state court in this case disposed of Rieman's claim based on a state procedural bar, by which this court is not restrained, this Court has considered evidence outside the state court record to determine if petitioner's claim has merit. See Dkt. 50.

         A. Decision to Hold Evidentiary Hearing

         Previously, based on all the evidence produced, this Court concluded on a more probable than not basis, that no reasonable juror would have found Rieman guilty of voluntary manslaughter and that his petition fell within a narrow class of cases implicating a fundamental miscarriage of justice. See Schlup v. Delo, 513 U.S. 298, 314-15 (1995). Therefore, his untimely filing was excused and this Court granted an evidentiary hearing on the substantive issue of whether or not the plea was voluntary. Dkt. 50.

         With regards to the time-bar issue, the Court incorporates that order by reference and will not repeat that analysis here. Rather, this Report and Recommendation will focus exclusively on the substantive claim that Rieman's plea was involuntary.

         B. Standard for Involuntary Pleas

         In order for the plea to be involuntary, the Court must be convinced based on clear and convincing evidence that, but for the alleged threats against Rieman and his family, he would not have entered the plea. See Smith v. Mahoney, 611 F.3d 978, 988 (9th Cir. 2010). A person can voluntarily enter an Alford plea even if he continues to assert his own innocence. See, e.g., In re Mumford, 2011 WL 219674 at *2 (W.D. Wash. 2011) (finding that one of the hallmarks of Alford pleas is maintaining innocence while accepting the consequences of conviction). Therefore, even if Rieman was innocent, the plea is not necessarily involuntary. Nevertheless, in this case, the question of who committed this crime is so intractably intertwined with the voluntariness of the plea, that such evidence must be considered. The facts presented indicate that either Rieman or Bremmer committed this homicide. If Rieman actually committed the offense, then accepting a reduced sentence of eleven years would certainly have been a knowing, intelligent, and voluntary act, since the alternative may have been a much longer sentence. And, if Rieman actually committed the offense, then this latest post hoc explanation could simply be dismissed as a misguided attempt to avoid the consequences of his decision. On the other hand, if Bremmer actually committed this offense, then the voluntariness of Rieman's plea should be reconsidered. If Rieman had witnessed Bremmer committing this brutal murder and was repeatedly threatened by Bremmer as he claims, then it is also very likely that Rieman was truly afraid for himself and his family, which makes it more probable that he would have accepted an eleven year sentence rather than reveal what he knew.

         Therefore, deciding who committed this crime - Rieman or Bremmer - is critical to the question of whether the plea was voluntary.

         C. Rieman's Prior Statements and New Physical Evidence

         Accepting Rieman's new testimony is not without it pitfalls. If the Court accepts Rieman's new testimony as true, is difficult to overlook that, from the moment this murder occurred and for almost three years after he was convicted, Rieman had embarked on an elaborate journey of deception. The day after the murder, he and Bremmer wandered the town supposedly looking for Adkins, who they claimed had disappeared. Ex. D9 at 290-91; Ex. D11 at 614-15, 619. Rieman continued to construct stories for the officers and detectives assigned to the case, giving detailed statements explaining that Adkins never showed up at the boat and that he had no idea what happened to him. Ex. D9 at 295; Ex. D11 at 629-30. When the officers found blood on the boat, and a broken window in the wheel house, Rieman elaborated on his story by explaining that an incident had occurred a few days before the night in question when the boat had pitched unexpectedly and he had broken the window with his hand, bleeding on the decks. Ex. D12 at 642, 645-46. He further testified he saw nobody else injured and did not know where any additional blood could have come from. Id. at 647. According to Rieman's new testimony, all of these statements were false. Dkt. 84 at 56. And, of course, if we are to believe Reiman now, we must also conclude that he withheld this information from his family and attorneys, despite facing a possible life sentence. Finally, we must also conclude that he lied under oath when asked by the judge during the plea colloquy whether he had been threatened in any way and whether his plea was being done voluntarily. Dkt. 13 at 45-47.

         The Court also acknowledges that there is no new physical evidence exonerating Rieman of the crime. Adkins' body was never found. Unlike some cases where DNA evidence has exonerated the accused, no such evidence has been presented here. Although the knife that Bremmer used in the 2013 murder was examined for traces of Adkins's or Rieman's blood, none was found, even though this evidence would have supported Rieman's new testimony. Dkt. 39, Ex. 18. Bremmer remains in prison for the Hawaii murder and, so far we know, has not provided further testimony regarding Adkins's disappearance. He has not recanted his statements regarding Rieman's guilt.

         One thing is obvious. One of them is lying. Figuring out who is lying (and when) and who is telling the truth (and when) requires a careful examination of the evidence.

         Early on in this case, this Court appointed the Federal Public Defender's office to represent Rieman. With the assistance of the Federal Public Defender's office, and the able advocacy of the State Attorney General's office, the Court has attempted to piece together evidence both before, during, and after the events in question to put contours on the untold story of this case.

         Both parties have been very well represented. And, the Federal Public Defender's office, and particularly First Assistant United States Attorney Miriam Schwarz, Assistant United States Attorney Alan Zarky, and Investigator Mike Stortini are to be specially commended for their remarkable job of gathering and presenting additional evidence and unraveling each version of events presented to the trial court and this Court. Their work now provides additional illumination on what actually happened the night Adkins was killed.

         D. Prior Incidents of Strangulation by Bremmer

         Both Bremmer and Rieman state that the other killed Adkins by way of strangulation. Ex. P3 at 1189; Dkt. 84 at 8-10. This is a particularly heinous act. Not everyone is capable of performing such an act and statistics demonstrate that male death by strangulation is extremely rare. Dkt. 39-14 at 3. Therefore, it is noteworthy that Rieman has no history of committing ...

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