Flowers v. Foulk

Filing 32

ORDER TO SHOW CAUSE AND DENYING 28 MOTION TO SEAL. Habeas Answer or Dispositive Motion due by 10/21/2014. Signed by Judge Claudia Wilken on 8/22/2014. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 8/22/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JOSEPH FLOWERS,

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Petitioner,

ORDER TO SHOW CAUSE AND
DENYING MOTION TO SEAL

v.
Doc. No. 28
F. FOULK, Warden,

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No. C 14-0589 CW (PR)

Respondent.
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INTRODUCTION
United States District Court

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On February 7, 2014, Petitioner, a state prisoner proceeding
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pro se, filed this petition for a writ of habeas corpus pursuant
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to 28 U.S.C. § 2254 challenging a conviction and sentence from
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Marin County Superior Court and raising claims of ineffective
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assistance of trial and appellate counsel, insufficient evidence,
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inadmissible evidence, prosecutorial misconduct, actual innocence
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and cumulative prejudice.

On March 18, 2014, the Court granted

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Petitioner’s motion to stay his petition while he exhausted state
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court remedies.

On the same date, the case was administratively

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closed.

On June 3, 2014, the Court granted Petitioner's motion to

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reopen his case and lift the stay, denied his motions to seal and
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dismissed his amended petition with leave to amend.

On June 23,

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2014, Petitioner filed an amended petition, Doc. no. 25, and, on
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June 27, 2014, he filed another amended petition, Doc. no. 27, and
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a motion to "have exhibits retracked and filed under seal," Doc.
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no. 28, which the Court construes to be a motion to seal.
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On July

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16, 2014, Petitioner filed a request for the Court to send him two

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copies of his two amended petitions, Doc. no. 30.

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DISCUSSION
I. Motion to Seal
In his motion to seal, Petitioner seeks to seal Exhibits G,
Q, P and Z(7) because they are based on a conversation he had with

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his attorney in the Marin County Jail that was overheard by an

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informant.

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the government's informees [sic] learn of the appellant's defense

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they'll be of in [sic] position of formulating answers to offset

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United States District Court

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the defense, upon 'if' [sic] any hearing of evidentiary values is

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heard."

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His reason for sealing these documents is that, "if

In its previous Order, the Court granted Petitioner leave to

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re-file a motion to seal, but instructed him to follow Civil Local

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Rule 79-5, which he has failed to do.

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documents he wishes to seal with his motion in redacted form for

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the public docket and non-redacted form for sealing, Petitioner

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has attached just two of the documents, P and Z(7), in non-

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redacted form, to his amended petition.

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have already been filed by the Clerk of the Court on the public

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docket.

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Petitioner's original petition.

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under seal, but document Q was not.

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Instead of attaching the

Thus, these documents

The other two documents, G and Q, are attached to
Document G was previously filed

The Court finds that the information in document P is

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confidential and orders that it be stricken from the public record

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and returned to Petitioner.

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is necessary for Petitioner's argument, but if he believes that it

It does not appear that this document

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is, he may re-file it with a renewed motion to seal at the time he

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files his traverse.

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Documents Q and Z(7) do not contain confidential material;

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therefore, the motion to seal them is denied.

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document G under seal is denied as moot because it is already

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under seal.

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II. Amended Petition

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In the interests of justice and judicial economy, the Court
accepts Petitioner's two amended petitions as one amended

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petition.

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United States District Court

The motion to file

in the amended petition are without merit.

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the Court hereby issues the following orders:

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1.

It does not appear that the claims Petitioner presents
Good cause appearing,

The Clerk of the Court shall serve a copy of this Order

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and the amended petition, doc. nos. 25 and 27, and all attachments

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thereto upon Respondent and Respondent's attorney, the Attorney

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General of the State of California.

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copy of this Order on Petitioner at his current address.

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2.

The Clerk shall also serve a

No later than sixty days from the date of this Order,

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Respondent shall file with this Court and serve upon Petitioner an

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Answer conforming in all respects to Rule 5 of the Rules Governing

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Section 2254 Cases, showing cause why a writ of habeas corpus

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should not be issued.

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portions of the state record that have been transcribed previously

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and are relevant to a determination of the issues presented by the

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petition.

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Respondent shall file with the Answer all

If Petitioner wishes to respond to the Answer, he shall do so

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by filing a Traverse with the Court and serving it on Respondent

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no later than thirty days from his receipt of the Answer.
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If he

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does not do so, the petition will be deemed submitted and ready

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for decision on the date the Traverse is due.

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3.

No later than sixty days from the date of this Order,

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Respondent may file with this Court and serve upon Petitioner a

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motion to dismiss on procedural grounds in lieu of an Answer, as

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set forth in the Advisory Committee Notes to Rule 4 of the Rules

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Governing Section 2254 Cases.

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If Respondent files such a motion, Petitioner shall file with
the Court and serve on Respondent an opposition or statement of

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non-opposition to the motion within twenty-eight days of receipt

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United States District Court

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of the motion, and Respondent shall file with the Court and serve

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on Petitioner a reply within fourteen days of receipt of an

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opposition.

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4.

It is Petitioner’s responsibility to prosecute this

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case.

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change of address and comply with the Court’s orders in a timely

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fashion.

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communications with the Court by mailing a true copy of the

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document to Respondent’s counsel.

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He must keep the Court and Respondent informed of any

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He also must serve on Respondent’s counsel all

Extensions of time are not favored, though reasonable

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extensions will be granted.

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must be filed no later than ten days prior to the deadline sought

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to be extended.

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6.

Any motion for an extension of time

Petitioner's motion to seal documents Q and Z(7) is

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DENIED because they do not contain confidential information.

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motion to seal document G is DENIED as moot because it has already

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been filed under seal.

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because the Court orders that it be stricken from the record.

The

The motion to seal document P is DENIED

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If

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Petitioner believes document P is necessary for his argument, he

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is granted leave to re-file a motion to seal that is in conformity

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with Civil Local Rule 79-5 with his traverse.

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Court shall send Petitioner a copy of Civil Local Rule 79-5.

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The Clerk of the

Petitioner's request for two copies of his amended

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petitions is granted.

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copies.

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documents shall be sent to him without payment of the Court's

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copying costs.

However, Petitioner is put on notice that no further

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8.

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United States District Court

The Clerk of the Court shall send him these

IT IS SO ORDERED.

This Order terminates docket number 28.

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Dated: 8/22/2014

CLAUDIA WILKEN
United States District Judge

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