Sanders, et al v. Ylst, et al

Filing 390

ORDER That Petitioner SHOW CAUSE Why the Evidentiary Hearing Transcript Should Not be Unsealed, signed by Chief Judge Lawrence J. O'Neill on 10/27/16. Show Cause Response Due Within Twenty Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RONALD L. SANDERS,

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Petitioner,

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v.
RON DAVIS, Warden of San Quentin
State Prison,
Respondent.1

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Case No. 1:92-cv-05471-LJO-SAB
DEATH PENALTY CASE
ORDER THAT PETITIONER SHOW CAUSE
WHY THE EVIDENTIARY HEARING
TRANSCRIPT SHOULD NOT BE
UNSEALED
Twenty (20) Day Deadline to Respond

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This matter is before the court following the parties’ supplemental briefing of claim 38,

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the sole remaining claim in this proceeding. Claim 38 alleges ineffective assistance of trial

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counsel by acquiescence in petitioner’s request to forgo a penalty phase defense.
This court ordered a bifurcated evidentiary hearing on claim 38 following remand from

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the Ninth Circuit. The first stage evidentiary hearing was held October 28 through 30, and

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November 3, 2008. The court has not issued a ruling following the first stage evidentiary hearing

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and is considering vacating the second stage evidentiary hearing.

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///

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Pursuant to Fed. R. Civ. P. 25(d), Ron Davis, Warden of San Quentin State Prison, is substituted as respondent in
place of his predecessor wardens.

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I. RELEVANT BACKGROUND
A.

Protective Order
The parties stipulated to an October 5, 2007 protective order (“Protective Order”) (see

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Doc. No. 227) which limits the use of privileged information including attorney-client

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information obtained through discovery (hereinafter “Protected Information”) to respondent and

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this proceeding. The Protective Order leaves unresolved whether testimony taken in future court

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hearings may be protected as confidential information.

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B.

Sealed Evidentiary Hearing Transcript

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At the first stage evidentiary hearing counsel for petitioner proposed that the court,

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pursuant to the Protective Order seal testimony of defense counsel Hoover, petitioner and experts

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relying on information from them. Counsel stated his concern was that a member of law

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enforcement or a government agency present in the courtroom might use the Protected

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Information in an investigation or at retrial.

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At the conclusion of the first stage evidentiary hearing, the court ordered the entirety of

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the transcript to be sealed, but allowed that counsel could request a determination regarding what

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portions of the transcript should remain under seal.

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The parties, pursuant to the Protective Order then filed under seal post-hearing briefs

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including proposed findings of facts and conclusions of law and the noted supplement briefs.

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II. DISCUSSION
A.

Legal Authorities

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1.

Implied Waiver of Attorney-Client Privilege

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A habeas petitioner bringing an ineffective assistance of counsel claim impliedly waives

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his attorney-client privilege by litigating the habeas petition. See Bittaker v. Woodford 331 F.3d

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715, 721-24 (9th Cir. 2003) (where a habeas petitioner raises a claim of ineffective assistance of

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counsel, he waives the attorney-client privilege only as to litigation of the habeas petition); see

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also Riel v. Ayers, 2010 WL 3835798, at *2 (E.D. Cal. September 30, 2010), citing Bittaker, 331

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F.3d at 727-28 (a waiver that limits the use of privileged communications to adjudicating the

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effective assistance of counsel claims fully serves the federal interest).
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2.

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Under the common law, “there is a presumption of public access to civil proceedings.”

Public Access to Evidentiary Hearing Transcript

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See Riel, 2010 WL 3835796, at *4. The common law right of access “is not of constitutional

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dimension, is not absolute, and is not entitled to the same level of protection afforded

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constitutional rights.” Valley Broadcasting Co. v. U.S. Dist. Court for Dist. Of Nevada, 798 F.2d

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1289, 1293 (9th Cir. 1986).

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In applying the common law right of access, courts:

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[M]ust weigh the interests advanced by the parties in the light of the public interest
and the duty of the courts. [Citation] [Among the interests that would overcome
the presumption of access are] the likelihood of improper use, including …
infringement of fair trial rights of the defendants or third persons; and residual
privacy rights.… [Citation] Where there is a clash between the common law right
of access and a defendant's constitutional right to a fair trial, a court may deny
access, but only on the basis of articulated facts known to the court, not on the
basis of unsupported hypothesis or conjecture....

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Id., at 1294, citing United States v. Edwards (In re Video-Indiana, Inc.), 672 F.2d 1289, 1294 (7th

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Cir. 1982).

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B.

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Unsealing the Evidentiary Hearing Transcript
The court is considering unsealing the evidentiary hearing transcript for the following

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reasons. As noted, there is a presumption of public access to the evidentiary hearing proceedings,

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which were conducted in open court, and, relatedly, to any written decision the court may issue

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related to the evidentiary hearing. The Protective Order continues in full force through any retrial

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of all or any portion of petitioner’s criminal case. The Protective Order limits petitioner’s implied

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waiver consistent with Bittaker. The Protective Order does not require sealing of the transcript.

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See Local Rule 141; see also Riel, 2010 WL 3835796, at *3 (a protective order covering an

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evidentiary hearing will only protect information that is actually privileged).

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Petitioner bears the burden of establishing the privilege he asserts, see Riel, 2010 WL

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3835796, at *3, citing U.S. v. Martin, 278 F.3d 988, 999-1000 (9th Cir. 2002), the basis for

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continued sealing of the transcript and any prejudice should the transcript be unsealed. See Local

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Rules 141, 141.1.
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The court sua sponte may unseal documents upon a showing of good cause or consistent
with applicable law. See Local Rule 141(f).

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III. ORDER

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Accordingly,

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1.

Petitioner, through counsel shall SHOW CAUSE by filing under seal a statement

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explaining why the transcript of the first stage evidentiary hearing conducted

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October 28 through 30, and November 3, 2008 should not be unsealed, identifying

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each portion of the transcript that he believes is protected by attorney-client

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privilege not impliedly waived under Bittaker, and explaining why the right of

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public access to the evidentiary hearing transcript is outweighed by his

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constitutional right to a fair trial if he is retried.

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2.

Petitioner’s counsel shall file under seal his written response to this order to show

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cause by no later than twenty (20) days following the filed date of this order, or

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waive any entitlement to show cause.

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3.

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Within twenty (20) days of the filing of petitioner’s statement, respondent shall file
a responsive statement, also under seal.

4.

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Within ten (10) days of the filing of respondent's response, petitioner may file a
reply, also under seal.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

October 27, 2016

UNITED STATES CHIEF DISTRICT JUDGE
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