United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION
RICHARD CREATURA UNITED STATES MAGISTRATE JUDGE
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.
AND PROCEDURAL SUMMARY
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.
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.
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.
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
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?
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
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
Dkt. 13, Ex. 2 (parallel citations omitted).
court dismissed the petition. Id. The Washington
Supreme Court declined to review his personal restraint
petition. Id., Ex. 13.
he filed a petition for writ of habeas corpus in this Court.
Dkts. 1, 5.
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
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.
Decision to Hold Evidentiary Hearing
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.
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
Standard for Involuntary Pleas
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.
deciding who committed this crime - Rieman or Bremmer - is
critical to the question of whether the plea was voluntary.
Rieman's Prior Statements and New Physical
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.
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.
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.
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.
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
Prior Incidents of Strangulation by Bremmer
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