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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

MICHAEL A. COX,

Petitioner,

v.

WARDEN, San Quentin State Prison,

Respondent.

No. 2:04-CV-0065 MCE CKD

DEATH PENALTY CASE

ORDER

On May 27, 2015, the undersigned heard argument on petitioner’s motions to perpetuate 

the testimony of five social history witnesses, two jurors, and trial expert Dr. Albert Globus. 

(ECF Nos. 143, 146.) Lissa Gardner and Lindsay Bennett appeared for petitioner. Todd Marshall 

appeared for respondent. After considering the parties’ briefs and the arguments of counsel, the 

court finds and orders as follows.

A court may permit the preservation of testimony by deposition upon a showing that the 

testimony is material to a party’s claims and there is a risk that the testimony may be permanently 

lost if the party is required to wait through the normal course of litigation. See Fed. R. Civ. P. 

27(a); Penn Mutual Life Ins. Co. v. United States, 68 F.3d 1371, 1375 (D.C. Cir. 1995) 

(permitting deposition of elderly witnesses to preserve testimony). Petitioner demonstrates that 

the witnesses’ expected testimony is material to his claims of ineffective assistance of counsel 

and/or juror misconduct and is not cumulative of other possible testimony. Cf. In re Bay County 

Case 2:04-cv-00065-MCE-CKD Document 157 Filed 05/29/15 Page 1 of 2
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Middlegrounds Landfill Site, 171 F.3d 1044, 1046-47 (6th Cir. 1999) (“Evidence that throws a 

different, greater, or additional light on a key issue might well ‘prevent a failure or delay of 

justice.’”). With respect to all witnesses except Ms. Giardina, petitioner also demonstrates that 

their testimony may become unavailable if it is not obtained soon. See Penn Mutual, 68 F.3d at 

1375.

Respondent has not established that permitting the perpetuation of testimony at this stage 

of the proceedings is inappropriate. Cf. Cullen v. Pinholster, 118 S. Ct. 1388, 1411 n. 20 (“[W]e 

need not decide . . . whether a district court may ever choose to hold an evidentiary hearing before 

it determines that § 2254(d) has been satisfied.”) Nor has respondent established that resolution 

of the merits of petitioner’s claims or their procedural issues is a necessary precursor to 

permitting the perpetuation of testimony. Finally, it should be noted that by permitting the 

perpetuation of testimony at this point, this court is making no decision about the admissibility of 

each witnesses’ testimony in any evidentiary proceeding. 

Accordingly, and good cause appearing, IT IS HEREBY ORDERED as follows:

1. Petitioner’s March 13, 2015 Motion to Perpetuate the Testimony of Dr. Albert Globus 

(ECF No. 143) is granted.

2. Petitioner’s April 15, 2015 Motion to Introduce Declarations in Lieu of Testimony 

and/or to Perpetuate Testimony (ECF No. 146) is granted with respect to witnesses 

Marjorie Comer, Joanne Wells, Shirley Garrett, Timothy Jayne, Fairman Jayne, and

David Kurtzman. The motion is denied with respect to witness Marijo Giardina. 

Within thirty days of the filed date of this order, the parties shall meet and confer 

regarding the method for taking the testimony of these witnesses. 

Dated: May 28, 2015

cox mtn to perp.or

_____________________________________

CAROLYN K. DELANEY

UNITED STATES MAGISTRATE JUDGE

Case 2:04-cv-00065-MCE-CKD Document 157 Filed 05/29/15 Page 2 of 2