Phillips, et al v. Calderon, et al

Filing 359

ORDER That Petitioner's Counsel SHOW CAUSE Why Documents Should Not Be Released From Seal 357 & 358 , signed by Magistrate Judge Stanley A. Boone on 4/30/15: Show Cause Response due by 5/18/2015. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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RICHARD LOUIS ARNOLD PHILLIPS,

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Case No. 1:92-cv-05167 AWI-SAB

Petitioner,

DEATH PENALTY CASE

v.
KEVIN CHAPPEL, as Warden of San Quentin
State Prison,

ORDER THAT PETITIONER’S COUNSEL
SHOW CAUSE WHY DOCUMENTS
SHOULD NOT BE RELEASED FROM SEAL
(ECF Nos. 357 & 358)

Respondent.

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This case was closed on June 12, 2013 following entry judgment granting in part

18 Petitioner’s writ of habeas corpus.
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On April 22, 2015, Petitioner, acting pro se, filed a motion for reconsideration of U.S.

20 Senior District Judge Anthony Ishii’s April 9, 2015 order regarding Petitioner’s July 11, 2014
21 request relating to copies of court documents filed under seal in this proceeding.
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On April 28, 2015, Judge Ishii issued an order construing Petitioner’s motion for

23 reconsideration as an original request for copies of sealed court documents, and assigning the
24 matter to the undersigned. (ECF No. 358.)
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Petitioner seeks copies of the following five documents filed under seal in this

26 proceeding so he can use them in separate proceedings:
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i.

A request for funding, consisting of four pages (ECF No. 294),

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ii.

(ECF No. 295),

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iii.

iv.

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An amendment to the budget with supporting declaration of Petitioner’s
counsel, consisting of five pages (ECF No. 297), and

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A declaration of Petitioner’s counsel in support of funding, consisting of
three pages (ECF No. 296),

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An order regarding the budget for phase III, consisting of three pages

v.

An order denying amendment to the phase V budget, consisting of three
pages (ECF No. 302).
I.

LEGAL STANDARD

Criminal Justice Act (18 U.S.C. § 3006A, hereinafter “CJA”) funding documents

11 generally are filed ex parte and under seal. 18 U.S.C. § 3006A(e); 21 U.S.C. § 848(q), as
12 amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No.
13 104-132, 110 Stat. 1214, and re-codified as 18 U.S.C. § 3599; Guidelines for Administering the
14 CJA and Related Statutes, Vol. 7 of the Guide to Judiciary Policy, (“Guidelines”), §
15 230.26.20(c); see also U.S. v. Gonzales, 150 F.3d 1246, 1251 (10th Cir. 1998). This rule applies
16 in capital cases, 18 U.S.C. §§ 3005, 3599(f), with the additional requirement that the amount of
17 CJA funding paid is to be publicly disclosed upon disposition of the petition. 18 U.S.C. §
18 3599(g)(3); Guidelines, § 640.20(b-d); Fed. R. Civ. P. 26(b)(1)(3). Moreover, ex parte
19 applications for services other than counsel must be placed under seal until the final disposition
20 of the case in the trial court, subject to further order of the court. Guidelines, § 310.30.
21 “Maintaining the secrecy of the application prevents the possibility that an open hearing may
22 cause defendants to reveal their defense.” Id.
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The Guidelines go on to provide that CJA information placed under seal shall remain

24 sealed “until after all judicial proceeding, including appeals, in the case are completed and for
25 such time thereafter as the court deems appropriate. Interested parties should be notified of any
26 modification of such order.” Guidelines, § 510.40.
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II.

DISCUSSION

The undersigned has reviewed Petitioner’s request and the documents sought thereunder.
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1 It appears that all the documents were filed in 2003 and relate to Petitioner’s application to this
2 Court for CJA funding to investigate claims in this proceeding. As noted, judgment granting in
3 part the underlying petition was entered on June 12, 2013 and the case closed. (ECF Nos. 353 &
4 354.) The record does not include any notice of appeal.
Whether to unseal the documents in issue is now a matter for the Court’s discretion. The

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6 documents sought by the pro se Petitioner include declarations of counsel. Therefore, the Court
7 will provide such counsel with an opportunity to show cause why these documents should not be
8 released from seal.
III.

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ORDER

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For the reasons stated, it is HEREBY ORDERED that:

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1.

By not later than May 18, 2015, Petitioner’s counsel in this action shall show

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cause, if any there be, why the above noted documents should not be released

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from seal for Petitioner’s use in separate proceedings,
2.

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Counsel may file any confidential response to this order ex parte and under seal,
and

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3.

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Failure of Petitioner’s counsel in this action to timely respond to this order shall

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constitute a waiver of any objection to releasing the above noted documents from

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seal for Petitioner’s use in separate proceedings.

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IT IS SO ORDERED.

21 Dated:

April 30, 2015
UNITED STATES MAGISTRATE JUDGE

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