Tarafa v. Artus

Filing 24

OPINION AND ORDER re: 20 MOTION for Protective Order, filed by Dale Artus: For the reasons set forth within, there is good cause for the issuance of a protective order and respondent's motion for a protective order (Docket Item 20) is, therefore, granted. (Signed by Magistrate Judge Henry B. Pitman on 8/12/2011) Copies Mailed By Chambers. (ab)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-x
EDDIE TARAFA,
Petitioner,
-against-

10 Civ. 3870 (JGK) (HBP)
OPINION
AND ORDER

DALE ARTUS,
Respondent.

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-------x

PITMAN, United States Magistrate Judge:

By notice of motion dated December 3, 2010 (Docket Item
20), respondent moves for a protective order exempting from
disclosure the files of the Bronx County District Attorney's
Office pertaining to Bronx County Indictment Number 3439/2004.
Petitioner has not submitted any response to the motion.

For the

reasons set forth below, the motion is granted.
Petitioner in this habeas corpus proceeding challenges
a judgment of conviction entered on Bronx County Indictment
3821/2001.
unsealing

On or about July 21, 2010, petition moved for the
Indictment 3821/2001, the unsealing of the minutes

of state court proceedings conducted on December 12, 2003 and
December 10, 2004 and copies of those minutes.

Respondent

consented to petitioner's motion and sought the unsealing
additional documents, namely the transcripts of court proceedings

relating to Bronx County Indictment 3439/2004 and the file of the
Bronx County District Attorney concerning that indictment."
Respondent sought the unsealing of these additional documents in
order to facilitate his response to the petition.

Respondent's

unsealing motion with respect to Indictment 3439/2004 was unop
posed.
The Honorable John G. Koeltl, United States District
Judge, granted both petitioner's and respondent's requests for
unsealing in an Order dated August 24, 2010.

With respect to

Indictment 3439/2004, the Order provided:
The respondent has sought, and this Court granted,
the application to unseal the remaining files for
indictment No. 3439/2004 in the possession of the Bronx
County District Attorney for the purposes of this case.
Because the respondent seeks to use those documents for
purposes of this case, those documents should also be
provided to the petitioner unless the respondent shows
good cause why they should not also be produced.
(Order dated August 24, 2010 at 2).
According to the uncontradicted affidavit submitted by
respondent's counsel in support of the pending motion

l

the only

documents concerning Indictment 3439/2004 that respondent used in
connection with his opposition to the petition were the tran­
scripts of two state court proceedings conducted on December 10

1

lAlthough petitioner was charged in Indictment 3439/2004, he
never convicted of any of the charges set forth in the
indictment.
Indictment 3439/2004 was ultimately dismissed.
2

2004 and February 16, 2006.

Counsel states that copies of these

transcripts were produced to petitioner twice.
Petitioner now seeks a protective order exempting from
sclosure all portions of the Bronx Dist

ct Attorney's file

concerning Indictment 3439/2004 that were neither requested by
itioner nor

by respondent, namely all documents other

than the transcripts of two court proceedings conducted on
December 10, 2004 and February 16, 2006. 2
Respondent's motion is granted.

The only materials

concerning Indictment 3439/2004 that respondent used in opposi­
tion to the petit
2006 transcripts,

tioner.

were the December 10, 2004 and February 16,
and those items have been produced to peti­

Petitioner has never requested any

the remaining

material concerning Indictment 3439/2004, the materi

appears to

be irrelevant to the petition and petitioner does not even oppose
the application for a protective order exempting t
from disclosure.
interest

material

Given that petitioner has never indicated any

those portions of the Bronx County District Attor

ney's file concerning Indictment 3439/2004 that respondent did

2It is not entirely clear whether the August 24, 2010 Order
was intended to reach those portions of the Bronx County District
Attorneys File concerning Indictment 3439/2004 that respondent
did not use.
The present motion appears to be based on the
assumption that it does reach those unused portions of the file.
3

use, there is good cause for the issuance of a protective order
and respondent's motion for a protective order (Docket Item 20)
is, therefore, granted.
Dated: New York, New York
August 12, 2011
SO ORDERED

HENRY ITMAN
United States Magistrate Judge
Copies mailed to:
Mr. Eddie Tarafa
DIN 08-A-0632
Clinton Correctional Facility
P.O. Box 2000
Dannemora, New York 12929
St
ey R. Kaplan, Esq.
Assistant District Attorney
Bronx County
198 East 161st Street
Bronx, New York 10451

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