(HC) Harrell v. Hill ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSHUA NEIL HARRELL, No. 2:20-cv-0060 JAM GGH P 12 Petitioner, 13 v. ORDER 14 RICK HILL, Warden, 15 Respondent. 16 17 Petitioner has filed a motion to unseal Exhibits 2, 7A-7B, and 10 and Motion for Judicial 18 Notice. ECF No. 29. Petitioner requests the following exhibits be unsealed in support of his 19 habeas petition: Court Ordered Psychological Evaluations, ECF No. 23 (ECF No. 2); Transcript 20 for Sealed Marsden Hearing, ECF No. 23-1 (Exhibit 7A); Transcript for Sealed Marsden Hearing, 21 ECF No. 23-2 (Exhibit 7B); Respondent’s California Court of Appeal First Appellate District 22 brief, ECF No. 23-3 (Exhibit 10). Petitioner further requests that the court take judicial notice of 23 the exhibits. In opposition, respondent argues petitioner fails to demonstrate good cause pursuant 24 to Local Rule 141(f) in support of his motion to unseal and that unsealing the exhibits would go 25 against the principals of comity and raise privacy concerns based on the confidential information 26 contained in the documents. ECF No. 31. Respondent further argues the court should deny 27 petitioner’s request for judicial notice due to the facts contained in the exhibits are subject to 28 //// 1 reasonable dispute. In his reply, petitioner further contests that he “has the right to waive his 2 personal identifying information” if he so chooses. ECF No. 32 at 2. 3 Motion to Unseal 4 The sealed exhibits contain petitioner’s personal and confidential information and were 5 previously sealed by the state court in petitioner’s state court proceedings. Pursuant to privacy 6 concerns, respondent requested these exhibits be filed under seal. The undersigned found good 7 cause and granted the motion to seal the exhibits. ECF No. 22. However, the undersigned noted 8 that, “[e]ither party may move to unseal the documents in the future.” Id. (citing White v. Ryan, 9 No. CV 08-8139-PCT-GMS, 2010 WL 1931250, *1 (D. Ariz. May 11, 2010)). 10 Petitioner now seeks to unseal these exhibits, even though they contain his personal and 11 confidential information. Although respondent opposes the motion, the undersigned finds that 12 petitioner has shown a finding of good cause to support the court exercising its discretion to 13 unseal the requested documents. See E.D. Cal. L. R. 141(f) (“Upon the motion of any person, […] 14 the Court may, upon a finding of good cause or consistent with applicable law, order documents 15 unsealed.”) As petitioner argues, he “has the right to waive his personal identifying information” 16 if he so chooses. See ECF No. 32 at 2. Accordingly, petitioner’s motion to unseal is granted.1 17 Request for Judicial Notice 18 To the extent that petitioner is requesting the court take judicial notice of any factual 19 findings in the psychological evaluations, transcripts of the Marsden hearings, or respondent’s 20 brief in the California Court of Appeal First Appellate District related to his waiver of right to 21 counsel claims, the court will deny petitioner’s request. The court may take notice of facts that are 22 capable of accurate and ready determination by resort to sources whose accuracy cannot 23 reasonably be questioned. Fed. R. Evid. 201(b); United States v. Bernal–Obeso, 989 F.2d 331, 24 333 (9th Cir.1993). Here, whether petitioner knowingly and intelligently waived his right to 25 counsel is the central issue in dispute between the parties. See Reina-Rodriguez v. United States, 26 655 F.3d 1182, 1193 (9th Cir. 2011) (“Here, the language of the colloquy is subject to varying 27 1 The result would be different if confidential information of persons other than petitioner was 28 involved. However, respondent does not argue or demonstrate that this is the case here. 1 interpretations, and there is a reasonable dispute as to what the plea colloquy establishes.”) 2 Moreover, the requested exhibits are part of the record before the court in support to respondent’s 3 answer and may be considered for an appropriate purpose. There is no need to judicially notice 4 the facts in the requested exhibits at this time. Accordingly, petitioner’s request for judicial notice 5 is denied. 6 Conclusion 7 Based on the foregoing, IT IS HEREBY ORDERED that: 8 1. Petitioner’s motion to unseal and request for judicial notice (ECF No. 29) is 9 GRANTED IN PART and DENIED IN PART as follows: 10 a. Petitioner’s motion to unseal is GRANTED; 11 b. Petitioner’s request for judicial notice is DENIED; and 12 2. The Clerk of the Court is directed to unseal Exhibits 2, 7A-7B, and 10 located at ECF 13 No. 23. 14 Dated: August 21, 2020 /s/ Gregory G. Hollows 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28