Howell v. Fisher et al

Filing 40

ORDER denying 37 Motion for Leave to File Under Seal; denying 38 Motion for Leave to File Under Seal. Signed by District Judge Debra M. Brown on 4/20/16. (jtm)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
MARLON HOWELL
V.

PETITIONER
NO. 3:15-CV-105-DMB

MARSHALL FISHER and
JIM HOOD

RESPONDENTS

ORDER DENYING MOTION FOR LEAVE TO FILE UNDER SEAL
Before the Court is Petitioner’s “Motion for Leave to File Under Seal Ex Parte Motion
and Memorandum for Approval of Proposed Budget for Attorney Fees and Expenses, and Ex
Parte Proposed Budget for Attorney Fees and Expenses.”1 Doc. #38.
Where a court requires appointed counsel to submit a proposed litigation budget in a
capital habeas case, the budget “should be submitted ex parte and filed and maintained under
seal.”2 Guide to Judiciary Policy, Vol. 7A, Ch. 6, §§ 640.10 & 640.20(b). However, Petitioner
filed the instant motion in a case that has been stayed pending the resolution of Petitioner’s
successive state court proceedings. See Doc. #36. In entering a stay, this Court noted that
“simultaneous litigation … in both state and federal court would be a waste of time and
resources, as neither the Court nor the parties can predict whether the state court action will be

1

Petitioner initially filed a “Motion and Memorandum for Leave to File Under Seal Ex Parte Motion and
Memorandum for Approval of Proposed Budget for Attorney Fees and Expenses, and Ex Parte Proposed Budget for
Attorney Fees and Expenses.” See Doc. #37. Through a docket entry, the Clerk of Court notified Petitioner that the
filing of a combined motion and memorandum did not comply with the Court’s procedural rules and instructed
Petitioner to re-file the memorandum separately. Petitioner instead filed the instant motion, apparently deeming his
first filing as his memorandum. In light of the ruling on the instant motion, and Petitioner’s failure to comply with
the Court’s procedural requirements, the first motion, still pending, will be denied.

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Petitioner’s motion therefore is proper insofar as he asks to file a proposed budget ex parte and under seal. But,
Petitioner’s request to file the motion itself ex parte is not appropriate. The Court notes that it cannot grant ex parte
requests for expert or investigative services “unless a proper showing is made concerning the need for
confidentiality.” 18 U.S.C. § 3599(f). It would be improper, therefore, to allow Petitioner to potentially circumvent
this requirement by permitting him to submit a request for investigative and/or expert services in an ex parte motion
for approval of a proposed budget.

dismissed or heard on its merits.” Id. at 1-2. Neither party has informed the Court that
Petitioner’s state court proceedings have concluded. And, a search of the online docket of the
Mississippi Supreme Court indicates that Petitioner’s application for leave to file a successive
post-conviction petition has not yet been adjudicated. See Howell v. Mississippi, No. 2015-DR01138-SCT, https://courts.ms.gov/appellate_courts/generaldocket.html (docket sheet generated
April 20, 2016). Therefore, the Court finds that it would be a waste of time and resources for
Petitioner to submit a proposed budget, or a motion for approval thereof, before the resolution of
his proceedings in state court.
Accordingly, Petitioner’s motion [38] is DENIED without prejudice to Petitioner’s
ability to renew it at the conclusion of his state court proceedings. Petitioner’s initial motion
[37] on this subject is DENIED.3
SO ORDERED, this 20th day of April, 2016.

/s/ Debra M. Brown
UNITED STATES DISTRICT JUDGE

3

See footnote 1 supra.

2