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Amiel Cueto v. United States of America

February 23, 2012

AMIEL CUETO, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Frazier, Magistrate Judge:

ORDER

Before the Court is non-party movant George Pawlacyzk's (Doc. 40) motion to quash subpoena for deposition and for a protective order.*fn1 The petitioner, Amiel Cueto, has filed a response in opposition (Doc. 688) to the motion, and the movant has filed a reply (Doc. 693). For the following reasons, the movant's (Doc. 40) motion to quash subpoena for deposition and for a protective order is denied.

The nature of relief available in a writ of error coram nobis case is similar to the available relief of a writ of habeas corpus. See Howard v. U.S., 962 F.2d 651, 653 (7th Cir. 1992) (citing United States v. Bonansinga, 855 F.2d 476, 478 (7th Cir. 1988) ("A writ of error coram nobis affords the same general relief as a writ of habeas corpus.")). As such, it is within the Court's discretion to apply the rules applicable to a writ of habeas corpus petition to a writ of error coram nobis petition. See, e.g., U.S. v. Balistrieri, 606 F.2d 216, 221 (7th Cir. 1979), cert. denied, 446 U.S. 917 (1980). This Court found good cause pursuant to Rule 6 (Discovery) of the RULES GOVERNING SECTION 2255 PROCEEDINGS to conduct limited discovery in this case and granted the petitioner's motion for leave to conduct discovery on February 10, 2012. See Doc. 685; see also Cueto v. U.S., Case No. 11-cv-693-DRH-PMF (S.D.Ill., February 10, 2012) (docket number 37). As part of the limited discovery permitted, the petitioner was granted leave to conduct a deposition of reporter George Pawlacyzk. See id. Pawlacyzk moved on February 16, 2012 to quash a subpoena of Pawlacyzk commanding him to attend a deposition on February 24, 2012. Doc. 40.

The Federal Rules of Civil Procedure apply to special writ proceedings to the extent that the practice in those proceedings is not specified in a federal statute or the Rules Governing Section 2255 Cases. See FED. R. CIV. P. 81(a)(4). A subpoena commanding an appearance at a deposition may be quashed for several reasons under the Federal Rules of Civil Procedure. Rule 45(c)(3) provides, in pertinent part:

(3) Quashing or Modifying a Subpoena.

(A) When Required. On timely motion, the issuing court must quash or modify a subpoena that:

(i) fails to allow a reasonable time to comply;

(ii) requires a person who is neither a party nor a party's officer to travel more than 100 miles from where that person resides, is employed, or regularly transacts business in person--except that, subject to Rule 45(c)(3)(B)(iii), the person may be commanded to attend a trial by traveling from any such place within the state where the trial is held;

(iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or

(iv) subjects a person to undue burden.

(B) When Permitted. To protect a person subject to or affected by a subpoena, the issuing court may, on motion, quash or modify the subpoena if it requires:

(i) disclosing a trade secret or other confidential research, development, or commercial information;

(ii) disclosing an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party; or

(iii) a person who is neither a party nor a party's officer to incur substantial expense to travel more ...


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