Havard v. Epps et al
ORDER denying 74 Motion to Clarify; denying 77 Motion to Seal Case. Signed by District Judge Keith Starrett on 8/30/2013 (scp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO. 5:08CV275KS
CHRISTOPHER EPPS, Commissioner,
Mississippi Department of Corrections
and JIM HOOD, Attorney General, State
This matter came before the Court on Respondents’ Motion for Clarification [Doc. #74] and
their Motion to Seal [Doc. #77]. The Court earlier allowed Petitioner to amend his Petition for Writ
of Habeas Corpus to reflect state court proceedings that have occurred since the original Petition was
filed. The basis for Respondents’ Motion for Clarification is their contention that the Memorandum
that Petitioner submitted in support of his Amended Petition may contain new claims that may go
outside the scope of the amendment allowed by the Court. According to Respondents, “the State
cannot determine whether (and where) Petitioner made substantive changes to arguments which
Petitioner did not move to amend. Therefore, the State cannot identify which issues need responsive
pleadings.” Respondents did file an Answer to the Amended Petition without objection; it appears
that the issue lies with the Memorandum.
The Court has reviewed the Memorandum in detail and compared it to the brief filed in
support of the original Petition, and it appears that much of the second brief is merely a recitation
of the first. Most of the changes seem to be the result of the proceedings that occurred on
Petitioner’s return to state court. Based on those proceedings, Petitioner added material to both the
facts and the summary of the proceedings in state court. Petitioner also changed his argument on
the standard of review based upon the additional material that was considered in state court, and he
added a paragraph to Section V, regarding his entitlement to relief, to reflect the later state court
activity. None of these additions to the preliminary sections of the Memorandum substantially
changes the legal bases for Havard’s arguments on habeas review.
Claim I, alleging ineffectiveness of trial counsel in challenging the underlying offense of
sexual battery, has been substantially modified to reflect the additional medical evidence that was
presented on Havard’s return to state court. Those additions are within the scope of the permitted
amendment to the Petition. Claim II, which addresses the prosecutor’s closing argument in the guilt
phase, is written in virtually the same language as in the original brief. Petitioner has added a
citation to a recent Fifth Circuit case, which the Court would have permitted him to do in any event,
by way of a supplementation. The other minor changes in verbiage are inconsequential.
In Claim III, Havard contends that improper victim impact testimony was introduced at trial.
Other than the inclusion of a Biblical reference, the Court can find no argument that was added to
this section. Claim IV is that Havard’s counsel failed to properly prepare and present a mitigation
case. Havard has added discussions of the Supreme Court cases of Sears v. Upton and Porter v.
McCollum, as well as the Mississippi Supreme Court’s opinion in Davis v. State, all of which were
decided after the initial briefing. Again, the Court would have permitted Havard to supplement his
brief to add these discussions. In Claim XI, on juror bias, Petitioner added references to cases from
other circuits, none of which would be binding on this Court. Only a minor change was made to the
discussion of facts in Claim XIV. Claims XVI through XIX are the new claims that are recognized
In sum, while the Court finds that, with respect to the common claims of the two
Memoranda, there has been some alteration, none of that alteration is material enough to justify
ordering Havard to submit a new brief. In the interest of justice, however, if Respondents
inadvertently fail to respond to a new issue contained in the common arguments, the Court will not
entertain a claim of waiver by Havard without giving Respondents an opportunity to submit
argument. Likewise, if the Court, sua sponte, finds an argument unanswered, Respondents will be
given an opportunity to respond. With this caveat, the Motion for Clarification will be denied.
The Motion to Seal asks that this Court prohibit any non-party from accessing documents
filed in this case. As the Fifth Circuit has held, “[A] court must use caution in exercising its
discretion to place records under seal.” United States v. Holy Land Found. for Relief and Dev., 624
F.3d 685, 689 (5th Cir. 2010). Consideration of a motion to seal must take into account the strong
presumption that court records are public and weigh that principle against any countervailing
interests that would be served by closure. Id. at 690-91.
Here, Respondents’ concern was apparently triggered by a Facebook post of one of
Petitioner’s counsel about the Motion for Clarification discussed above. In particular, counsel
wrote, “After responding to an asinine motion filed by the State, which not only wants to kill my
client but doesn’t want to be bothered by actually responding to his claims of innocence, I am
heartened by the following words penned by Kris Kristofferson.” However ill-advised this post may
have been, in terms of the standards of professionalism by which lawyers are encouraged to govern
themselves, this statement does not give rise, in the Court’s opinion, to a need to seal this record,
for three reasons. First, there is no indication that the record of these proceedings in state court is
unavailable to the public; second, the state court record was conventionally filed in this Court and
is not available for electronic access; and, finally, information about this case is so widely available
through Internet sources that closure of this record will not prevent dissemination of the details of
the charges or the identification of the infant victim in this case. For these reasons, the Motion to
Seal will also be denied.
IT IS, THEREFORE, ORDERED that Respondents’ Motion for Clarification [Doc. #74]
and their Motion to Seal [Doc. #77]are hereby denied.
IT IS SO ORDERED, this the 30th day of August, 2013.
s/ Keith Starrett
UNITED STATES DISTRICT JUDGE
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