Gabrion #09184-055 v. United States of America

Filing 12

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MARVIN GABRION,
Movant,
Case No. 1:15-CV-447
v.
HON. ROBERT HOLMES BELL
UNITED STATES OF AMERICA,
Respondent.
/
OPINION
Movant Marvin Gabrion challenges his conviction and death sentence in this action
pursuant to 28 U.S.C. § 2255. This action is currently before the Court on Gabrion’s motion
for leave to file his § 2255 motion under restricted access. (ECF No. 3.) Gabrion seeks to
restrict public access to his motion and to any response because the motion describes
sensitive facts and issues, including mental health matters and questions regarding the
performance of counsel. The government opposes the motion for restricted access. (ECF
Nos. 8.)
The common law establishes a strong presumption of public access to court
proceedings and documents. See, e.g., Press-Enterprise Co. v. Super. Ct. of Cal., 464 U.S.
501, 505-10 (1984) (recognizing a right of access to jury voir dire in criminal case); Nixon
v. Warner Commc’ns, 435 U.S. 589, 598 (1978) (recognizing a general right to inspect and
copy judicial records and documents). The “‘right of access is, in part, founded on the

societal interests in public awareness of, and its understanding and confidence in, the judicial
system.’” Application of Nat’l Broad. Co., Inc., 828 F.2d 340, 345 (6th Cir.1987) (quoting
United States v. Chagra, 701 F.2d 354, 363 (5th Cir. 1983) (recognizing a right of access to
proceedings on motions to disqualify a judge and to inquire into attorney conflicts of
interest)). Although the right of access originated in the area of criminal proceedings, there
is also a strong presumption in favor of openness in civil cases because the Supreme Court’s
justifications for access to criminal cases apply to civil cases as well.1 Brown & Williamson
Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1179 (6th Cir. 1983). Even in civil cases, the Sixth
Circuit has recognized a “‘long-established legal tradition’ which values public access to
court proceedings.” Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 227 (6th Cir.
1996) (quoting Brown & Williamson, 710 F.2d at 1177).
The presumptive common-law right of access to judicial records is not absolute. In
re Knoxville News-Sentinel Co., Inc., 723 F.2d 470, 474 (6th Cir. 1983). Because the court
has supervisory powers over its own documents, “[g]enerally, the decision as to the common
law right of access to court documents is left to the sound discretion of the trial court.” In
re Search of Fair Fin., 692 F.3d 424, 431 (6th Cir. 2012). In exercising that discretion, the
Court considers “all relevant factors to determine whether the need for sealing overcomes

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These justifications include providing an outlet for community concern, hostility and
emotions, providing a check on the integrity of the judicial system, and promoting true and
accurate fact finding. Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1178 (6th
Cir.1983)(citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 571 (1980)).
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the common law right of access.” In re Search of Fair Fin., 692 F.3d at 431. Factors
relevant to the court’s exercise of its discretion include the circumstances that led to the
production of the documents, the public’s interest in the documents, the degree of prejudice
to the persons to whom the documents are related, the possibility of improper motives on the
part of those who would seek to access the documents, and any special circumstances in the
case. See United States v. Beckham, 789 F.2d 401, 409 (6th Cir. 1986) (citing Nixon, 435
U.S. at 599-603). When weighing these factors, the court applies a presumption in favor of
access. Id. Because of this presumption, “[o]nly the most compelling reasons can justify
non-disclosure of judicial records.” In re Knoxville, 723 F.2d at 476 (citing Brown &
Williamson, 710 F.2d at 1179-80).
Gabrion has not identified any authority suggesting that the presumption of access
does not apply to section 2255 actions in general, or to section 2255 death penalty actions in
particular. In fact, the only law provided suggest that it does apply. See Wiant v. United
States, No. 2:04-CV-256, 2005 WL 1651716, at *3 n.1 (S.D. Ohio July 5, 2005) (concluding
that the common-law right of access exists with regard to § 2255 proceedings). The Rules
Governing Section 2255 Proceedings do not address the issue of public access. Instead, they
authorize courts to apply the Federal Rules of Civil and Criminal Procedure to the extent that
they are not inconsistent with any statutory provisions or the Rules Governing Section 2255

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Proceedings.2 Rules Governing Section 2255 Cases, Rule 12. The Federal Rules of Civil
and Criminal Procedure also circumscribe the court’s discretion to seal court papers. See
Fed. R. Civ. P. 26(c) and Fed. R. Crim. P. 16(d) (permitting protective orders for good
cause); see also Fed. R. Crim. P. 49.1 (permitting a court to require redaction or to limit or
prohibit a non-party’s access to documents “for good cause shown”).
This Court has incorporated the presumption of public access to court filings into its
local court rules:
To preserve the qualified, common-law presumption of public access to
judicial files in civil cases, the filing of documents under seal should be the
exception. Sealing is to be limited to information that is truly proprietary or
confidential. The Court strongly resists the sealing of entire civil pleadings,
motions or briefs, as it is rare that the entire document will merit confidential
treatment. In lieu of seeking leave to file an entire document under seal,
parties should incorporate the confidential material in a separate document and
seek leave to file only that document under seal.
LCivR 10.6(a). See also LCrR 49.8(a).
Gabrion has identified certain sensitive facts in his motion, including mental health
records of third-parties. The sensitive information, however, does not permeate his entire
motion, and does not constitute good cause or a compelling reason for restricting public
access to his entire motion, all accompanying exhibits, and to any response filed by the
government. Gabrion’s section 2255 action is a continuing part of his criminal action, a

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A section 2255 motion is not easily characterized as criminal or civil. A section 2255
motion is a continuing part of the criminal proceeding, yet it is analogous to a habeas corpus
action filed by a state prisoner, which is characterized as civil in nature. Rules Governing
Section 2255 Cases, Advisory Committee Notes to Rules 1 & 12.
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matter which garnered substantial public interest. Gabrion’s collateral attack on his
conviction and sentence raises numerous issues, including whether he received a fair trial,
whether he received effective assistance of counsel, whether the death penalty is fairly
administered, and whether his execution would violate the Eighth Amendment in light of his
mental illness and organic brain impairments. These are central to a determination of
whether Gabrion’s conviction and sentence can stand. Most of the facts surrounding these
issues have already been made public at trial or through the appeal. All of these issues are
matters of continuing public interest and concern.
Gabrion’s motion does, however, include information regarding the mental health,
substance abuse, and sexual dysfunction of third-parties. The information is central to
Gabrion’s arguments regarding the adequacy of the defense he was provided, and is therefore
of some public interest. However, the Court agrees that these third-parties have privacy
interests that would be prejudiced if their identities were disclosed to the public. The
solution, however, is not to seal the entire action or pleading, but to allow redaction of the
third-parties’ names and to reference them by initials or other identifiers that will protect
their identity.
The other “sensitive” information Gabrion has referenced is allegations regarding
counsel’s performance. Gabrion has acknowledged in his reply brief that his request to
protect those allegations is simply a courtesy at this stage of the proceedings. The Court is
not convinced that Gabrion has identified good cause or a compelling reason for restricting

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public access to his allegations regarding counsel’s performance.
Accordingly, Gabrion’s motion to restrict access will be granted in part and denied
in part. To the extent Gabrion seeks to restrict access to his motion, exhibits, and any
responses filed by the government in their entirety, the motion will be denied. To the extent
Gabrion seeks to restrict access to sensitive information regarding third-parties and to
allegations regarding counsel’s performance, the motion will be denied. To the extent
Gabrion seeks to redact the names of third-parties about whom he has presented sensitive
information and substitute initials or other identifiers that will protect their identity, the
motion will be granted. Gabrion will be required, within fourteen days of this order, to resubmit a redacted copy of his motion and exhibits for public filing.
An order consistent with this opinion will be entered.

Dated: May 15, 2015

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE

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