Hill v. Mitchell

Filing 236

OPINION AND ORDER granting in part and denying in part 235 Motion for Leave to File Under Seal and Unopposed Motion for Continuance - Petitioner's motion for leave to file grand jury testimony under seal is DENIED & Petitioner's motion t o continue the response re 232 Order is GRANTED. Petitioner shall have until and including 9/18/2012 to respond to the order. Petitioner shall have thirty (30) days from the date Respondent files the supplemental return of writ to file a reply; Respondent shall have twenty-one (21) days to file a responsive pleading & Petitioner shall have fourteen (14) days to file a reply in support. Signed by Magistrate Judge Terence P Kemp on 9/17/2012. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
GENESIS HILL,
Petitioner,
v.
BETTY MITCHELL, Warden,

Case No. 1:98-cv-452
JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Terence Kemp

Respondent.
OPINION AND ORDER
Petitioner, a prisoner sentenced to death by the State of Ohio, has pending before this
Court a habeas corpus action pursuant to 28 U.S.C. § 2254. This matter is before the Court upon
Petitioner’s motion for leave to file grand jury testimony under seal and unopposed motion to
continue Petitioner’s response to this Court’s August 21, 2012 Order. (ECF No. 235.)
On August 21, 2012, this Court sua sponte issued an order giving Petitioner twenty-one
(21) days to file any motion to expand the record with materials obtained as a result of recent
court-ordered discovery. (ECF No. 232.) Petitioner states in the instant motion that he “has
identified a document that is clearly relevant to the Court’s consideration of the merits of
Petitioner’s claim for relief under Brady v. Maryland, 373 U.S. 83 (1963).” (ECF No. 235, at 1.)
The problem, Petitioner explains, is that that document consists of grand jury testimony by the
mother of the victim and the State’s chief witness–Teresa Dudley. “Because this is grand jury
testimony from a state proceeding and there is a state rule that protects the secrecy of grand jury
information,” Petitioner continues, “counsel seeks guidance on whether this document should be
filed under seal so as not to violate any state rule.” (Id. at 2.) According to Petitioner, the
testimony that Petitioner seeks to file does not include deliberations or the vote of any grand
juror. Petitioner also represents that it does not appear that any grand jury testimony in this case
has previously been exposed.
For the following reasons, Petitioner’s motion for leave to file any grand jury testimony
under seal is not well taken. Initially, the Court notes that placing court pleadings under seal is

generally disfavored, in view of the long tradition of valuing public access to court proceedings.
See, e.g., Proctor & Gamble Co. v. Banker’s Trust Company, 78 F.3d 219, 227 (6th Cir. 1996).
With that presumption of openness militating against Petitioner’s motion, the Court further finds
that there are no notable circumstances in the instant case that would justify placing any
testimony submitted as part of a motion to expand the record under seal. That the grand jury
testimony was provided to Petitioner during habeas corpus discovery already suffices to pierce
any veil of secrecy the transcript previous enjoyed. Further, according to Petitioner’s
representation, the transcript excerpt that he seeks to add to the instant record does not involve
the deliberative process, does not reveal a grand juror’s vote, and does not expose the identity of
any witnesses who testified before the grand jury (no doubt with the understanding that the fact
of their testifying would not be revealed) but did not testify at trial.
The only reason advanced by Petitioner for seeking to file the grand jury testimony under
seal is that his counsel fears that in not filing it under seal, counsel might be violating Ohio R.
Crim. P. 6(E). That rule forbids disclosure of deliberations of the grand jury and the vote of any
grand juror and generally requires all other matters before the grand jury to be kept secret absent
certain circumstances. To the extent Petitioner’s counsel is seeking an order from this Court
protecting them against any liability for violating Ohio R. Crim. P. 6(E) that might ensue from
their including the grand jury testimony in a motion to expand this record, they are asking for
something that it is beyond the scope of this Court’s authority to grant. And any possible
liability that Petitioner’s counsel might incur for what would amount to a possible violation of
Ohio R. Crim. P. 6(E) does not strike this Court as a sufficient reason to overcome the
presumption of openness that placing documents under seal would flout.
In view of the fact that Petitioner’s response to this Court’s August 21, 2012 order is due
on September 11, 2012, Petitioner seeks an extension of time to file that pleading until such time
as the Court rules on his motion for leave to file under seal. Petitioner states that Respondent
does not object but does not waive her opportunity to file a responsive pleading to any motion to
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expand the record that Petitioner files.
For the foregoing reasons, Petitioner’s motion to leave to file grand jury testimony under
seal is DENIED. For good cause shown, because Respondent does not object, and because no
undue delay will ensue, Petitioner’s motion to continue the response invited by this Court’s
August 21, 2012 order is GRANTED. Petitioner’s response would have been due on September
11, 2012. Petitioner shall have an additional week, until and including September 18, 2012, to
respond to the Court’s August 21, 2012 order. Petitioner shall have thirty (30) days from the
date Respondent files the supplemental return of writ to file a reply. Respondent shall have
twenty-one (21) days to file a responsive pleading. Petitioner shall have fourteen (14) days to
file a reply in support.
IT IS SO ORDERED.

/s/ Terence P. Kemp
United States Magistrate Judge

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