Maier v. Mahoney

Filing 21

ORDER denying as moot 14 Motion to File Under Seal Signed by Jeremiah C. Lynch on 11/1/2011. Mailed to Maier. (TAG, )

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i=ILcD Nov 0 I 2, P~rRlc '011 8y Ie; e. DUf:f:y DtPiJf); , Ci..eRlt IN 1RE UNITED STATES DISTRICT COUR'teRI( MlssO(JLA FOR THE DISTRICT OF MONTANA MISSOULA DIVISION LLOYD SCOTT MAIER, Petitioner, vs. WARDEN MIKE MAHONEY; ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondent. Cause No. CV 11-84-M-DWM-JCL ) ) ) ) ) ) ORDER DENYING AS MOOT MOTION FOR LEAVE TO FILE UNDER SEAL ) ) ) ) ) This action comes before the Court on Petitioner Lloyd Scott Maier's petition for writ of habeas corpus under 28 U.S.C. ยง 2254. He challenges the Board of Pardons and Parole's decision denying him clemency. Specifically, he asserts that he was denied due process of law because his criminal history was presented to the Board with deliberate inaccuracies. Resp. to Order (doc. 6) at 2, 4, 5. He also complains that he has never been pennitted to see a psychological report about him, 1 even though the report "has been used ... to deny him any opportunity for parole and early release from prison," id. at 2, and he seems to assert that the report may have been influenced by personal animosity, id. at 4. On October 26, 2011, Respondent filed an Answer to the Petition, attaching Exhibits A-N. Answer (doc. 13). Exhibit D is the psychological report a motion to dismiss on October 26, 2011. Answer Ex. D (doc. 13-4). On the same day, Respondent filed a motion to dismiss, alleging failure to exhaust and procedural default. Respondent also moved for leave to file Exhibit D under seal because "the Board [asserts] a right of institutional and individual privacy" in Exhibit D. Br. in Supp. of Mot. for Leave to File Under Seal (doc. 15) at 1. In other words, Respondent wants the Court to consider but withhold from Maier the report whose release to Maier, Respondent concedes, is "[a]t the heart of all of Maier's claims." Br. in Supp. of Mot. to Dismiss (doc. 17) at 2. The Local Rules authorize documents to be filed under seal and even ex parte, provided such filing is supported by legal authority, D. Mont. L.R. 1.8(a)( 1)( CXi) and (iv), or carried out in the prescribed manner, L.R. 1.8(b)(3), (4)(A)(ii). Respondent cites no authority, federal, state, or otherwise, for its "right of institutional and individual privacy." Nor did Respondent file Exhibit D in the prescribed manner. 2 As a result, Respondent filed Exhibit D in the public record. It is available via internet to the world at large - but not to Maier, who, because he is a prisoner, does not have access to the internet Respondent's failure to take steps to preserve the confidentiality 0 fExhibit D moots whatever unidentified legal justification may exist for the "right of institutional and individual privacy" asserted by the Board. The Court is not aware of any authority for making a document available to everyone except the opposing party. Based on the foregoing, the Court enters the following: ORDER Respondent's motion for leave to file under seal (doc. 14) is DENIED AS MOOT. Respondent shall immediately serve Exhibit D on Petitioner Maier. Maier must immediately inform the Court and o;p.posing counsel ofany chanae in his mailing address. Failure to do so may result in dismissal of this case without notice to him. DATED this 1st day of November, 20]]. iab C. Lynch ted States Magistrate Judge 3

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