Venegas-Lares v. USA

Filing 13

ORDER denying 10 Motion to Seal. Signed by Magistrate Judge Eileen S Willett on 10/30/15. (CR-12-408-PHX-FJM) (MAP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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United States of America,
Plaintiff/Respondent,

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No. CV-15-00330-PHX-FJM (ESW)
CR-12-0408-PHX-FJM
ORDER

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v.

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Jesus Venegas-Lares,

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Defendant/Movant.

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On February 23, 2015, Movant Jesus Venegas-Lares (“Movant”) filed a “Motion

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Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal

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Custody” (Doc. 1) (the “Motion to Vacate”).

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ineffective assistance of counsel claims. Pending before the Court is the Government’s

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Motion to Seal (Doc. 10). The Government requests the Court to seal the Government’s

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“Response in Opposition to Motion to Vacate, Set Aside, or Correct Sentence Pursuant to

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28 U.S.C. § 2255” and the exhibits attached to the Response (lodged at Doc. 11).

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Movant has not responded and the time to do so has passed. The Motion to Seal is

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deemed submitted for consideration.

The Motion to Vacate raises five

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The public has a general right to inspect and copy judicial records and documents.

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Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978). Although this right is not

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absolute, there is a strong presumption in favor of access to judicial records.

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overcome this presumption, a party seeking to seal a judicial record must meet (i) the

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“compelling reasons” standard if the record is a dispositive pleading or (ii) the “good

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cause” standard if the record is a non-dispositive pleading. Kamakana v. City & County

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of Honolulu, 447 F.3d 1172, 1180 (9th Cir. 2006).

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Here, because the Response (lodged at Doc. 11) is a dispositive pleading, 1 the

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Government must offer compelling reasons for sealing the Response and accompanying

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exhibits. “In general, ‘compelling reasons’ sufficient to outweigh the public’s interest in

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disclosure and justify sealing court records exist when such ‘court files might have

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become a vehicle for improper purposes,’ such as the use of records to gratify private

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spite, promote public scandal, circulate libelous statements, or release trade secrets.”

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Kamakana, 447 F.3d at 1179 (citing Nixon, 435 U.S. at 598). The Government requests

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that the Court grant the Motion to Seal because the Response and accompanying exhibits

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“reference confidential communications between Movant and his defense attorneys

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during their respective representation of Movant during his criminal case.” (Doc. 10).

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This statement fails to show a compelling reason for sealing the Response and

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accompanying exhibits.

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assertions inadequate to establish compelling reason to maintain “confidential”

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documents under seal). Because the Government has failed to meet its burden, “the

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default posture of public access prevails.” Id. Moreover, the Motion to Seal fails to

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comply with Rule 5.6(b) of the Local Rules of Civil Procedure, which requires that

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“[a]ny motion or stipulation to file a document under seal must set forth a clear statement

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of the facts and legal authority justifying the filing of the document under seal . . . .”

Kamakana, 447 F.3d at 1182 (finding party’s conclusory

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It is well-settled that “where a habeas petitioner raises a claim of ineffective

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assistance of counsel, he waives the attorney-client privilege as to all communications

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with his allegedly ineffective lawyer.” Bittaker v. Woodford, 331 F.3d 715, 716 (9th Cir.

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A “dispositive” pleading is one that adjudicates issues on the
merits. See Kamakana, 447 F.3d at 1179 (dispositive motions resolve disputes on the
merits); Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135-36 (9th Cir.
2003) (summary judgment is dispositive because it “adjudicates substantive rights and
serves as a substitute for trial”).

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2003). Yet the Ninth Circuit Court of Appeals has instructed that “the court must impose

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a waiver no broader than needed to ensure the fairness of the proceedings before it.” Id.

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at 720. Similar to the situation in Bittaker, either party may file a motion for a protective

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order to address a concern that the attorney-client communications may be used outside

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of this Section 2255 proceeding.

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Accordingly,

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IT IS ORDERED denying the Government’s Motion to Seal (Doc. 10).

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Dated this 30th day of October, 2015.

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