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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1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 JOSEPH FLOWERS, 5 6 7 Petitioner, ORDER TO SHOW CAUSE AND DENYING MOTION TO SEAL v. Doc. No. 28 F. FOULK, Warden, 8 9 No. C 14-0589 CW (PR) Respondent. ________________________________/ 10 INTRODUCTION United States District Court 11 On February 7, 2014, Petitioner, a state prisoner proceeding 12 pro se, filed this petition for a writ of habeas corpus pursuant 13 to 28 U.S.C. § 2254 challenging a conviction and sentence from 14 Marin County Superior Court and raising claims of ineffective 15 assistance of trial and appellate counsel, insufficient evidence, 16 inadmissible evidence, prosecutorial misconduct, actual innocence 17 and cumulative prejudice. On March 18, 2014, the Court granted 18 Petitioner’s motion to stay his petition while he exhausted state 19 court remedies. On the same date, the case was administratively 20 closed. On June 3, 2014, the Court granted Petitioner's motion to 21 reopen his case and lift the stay, denied his motions to seal and 22 dismissed his amended petition with leave to amend. On June 23, 23 2014, Petitioner filed an amended petition, Doc. no. 25, and, on 24 June 27, 2014, he filed another amended petition, Doc. no. 27, and 25 a motion to "have exhibits retracked and filed under seal," Doc. 26 no. 28, which the Court construes to be a motion to seal. 27 28 On July 1 16, 2014, Petitioner filed a request for the Court to send him two 2 copies of his two amended petitions, Doc. no. 30. 3 4 5 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 7 his attorney in the Marin County Jail that was overheard by an 8 informant. 9 the government's informees [sic] learn of the appellant's defense 10 they'll be of in [sic] position of formulating answers to offset 11 United States District Court 6 the defense, upon 'if' [sic] any hearing of evidentiary values is 12 heard." 13 His reason for sealing these documents is that, "if In its previous Order, the Court granted Petitioner leave to 14 re-file a motion to seal, but instructed him to follow Civil Local 15 Rule 79-5, which he has failed to do. 16 documents he wishes to seal with his motion in redacted form for 17 the public docket and non-redacted form for sealing, Petitioner 18 has attached just two of the documents, P and Z(7), in non- 19 redacted form, to his amended petition. 20 have already been filed by the Clerk of the Court on the public 21 docket. 22 Petitioner's original petition. 23 under seal, but document Q was not. 24 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 25 confidential and orders that it be stricken from the public record 26 and returned to Petitioner. 27 is necessary for Petitioner's argument, but if he believes that it It does not appear that this document 28 2 1 is, he may re-file it with a renewed motion to seal at the time he 2 files his traverse. 3 Documents Q and Z(7) do not contain confidential material; 4 therefore, the motion to seal them is denied. 5 document G under seal is denied as moot because it is already 6 under seal. 7 II. Amended Petition 8 9 In the interests of justice and judicial economy, the Court accepts Petitioner's two amended petitions as one amended 10 petition. 11 United States District Court The motion to file in the amended petition are without merit. 12 the Court hereby issues the following orders: 13 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 14 and the amended petition, doc. nos. 25 and 27, and all attachments 15 thereto upon Respondent and Respondent's attorney, the Attorney 16 General of the State of California. 17 copy of this Order on Petitioner at his current address. 18 2. The Clerk shall also serve a No later than sixty days from the date of this Order, 19 Respondent shall file with this Court and serve upon Petitioner an 20 Answer conforming in all respects to Rule 5 of the Rules Governing 21 Section 2254 Cases, showing cause why a writ of habeas corpus 22 should not be issued. 23 portions of the state record that have been transcribed previously 24 and are relevant to a determination of the issues presented by the 25 petition. 26 Respondent shall file with the Answer all If Petitioner wishes to respond to the Answer, he shall do so 27 by filing a Traverse with the Court and serving it on Respondent 28 no later than thirty days from his receipt of the Answer. 3 If he 1 does not do so, the petition will be deemed submitted and ready 2 for decision on the date the Traverse is due. 3 3. No later than sixty days from the date of this Order, 4 Respondent may file with this Court and serve upon Petitioner a 5 motion to dismiss on procedural grounds in lieu of an Answer, as 6 set forth in the Advisory Committee Notes to Rule 4 of the Rules 7 Governing Section 2254 Cases. 8 If Respondent files such a motion, Petitioner shall file with the Court and serve on Respondent an opposition or statement of 10 non-opposition to the motion within twenty-eight days of receipt 11 United States District Court 9 of the motion, and Respondent shall file with the Court and serve 12 on Petitioner a reply within fourteen days of receipt of an 13 opposition. 14 4. It is Petitioner’s responsibility to prosecute this 15 case. 16 change of address and comply with the Court’s orders in a timely 17 fashion. 18 communications with the Court by mailing a true copy of the 19 document to Respondent’s counsel. 20 He must keep the Court and Respondent informed of any 5. He also must serve on Respondent’s counsel all Extensions of time are not favored, though reasonable 21 extensions will be granted. 22 must be filed no later than ten days prior to the deadline sought 23 to be extended. 24 6. Any motion for an extension of time Petitioner's motion to seal documents Q and Z(7) is 25 DENIED because they do not contain confidential information. 26 motion to seal document G is DENIED as moot because it has already 27 been filed under seal. 28 because the Court orders that it be stricken from the record. The The motion to seal document P is DENIED 4 If 1 Petitioner believes document P is necessary for his argument, he 2 is granted leave to re-file a motion to seal that is in conformity 3 with Civil Local Rule 79-5 with his traverse. 4 Court shall send Petitioner a copy of Civil Local Rule 79-5. 5 7. The Clerk of the Petitioner's request for two copies of his amended 6 petitions is granted. 7 copies. 8 documents shall be sent to him without payment of the Court's 9 copying costs. However, Petitioner is put on notice that no further 10 8. 11 United States District Court The Clerk of the Court shall send him these IT IS SO ORDERED. This Order terminates docket number 28. 12 13 14 Dated: 8/22/2014 CLAUDIA WILKEN United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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