(HC) Velasquez v. Sherman ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICARDO VELASQUEZ, Case No.: 1:15-cv-01288-AWI-JLT (HC) 12 Petitioner, ORDER GRANTING RESPONDENT’S MOTION FOR PROTECTIVE ORDER 13 v. (Doc. 64) 14 STU SHERMAN, 15 Respondent. 16 17 According to Bittaker v. Woodford (9th Cir. 2003) 331 F.3d 715, 720-726 and Rule 6 of 18 the Rules Governing Section 2254 Cases, Respondent is entitled to a copy of trial court’s file to 19 the extent necessary to fairly defend against Petitioner’s claim. Consistent with Bittaker, the 20 Court issues the following protective order, and good cause appearing, the Court ORDERS: 21 For purposes of this habeas action, trial counsel’s files, including the files of any 22 investigators or experts retained by trial counsel, shall be deemed to be confidential. These 23 documents and materials (hereinafter “confidential materials”) may be used only by 24 representatives from the Office of the California Attorney General who are assigned to this matter 25 as counsel in the role of a direct supervisor (hereafter, collectively respondent), and any expert 26 retained by respondent in this habeas proceeding. If respondent provides the confidential 27 materials to an expert as authorized above, respondent shall inform the expert of this protective 28 order and the expert’s obligation under it. 1 Disclosure of the contents of the documents and the documents themselves may not be 2 made to any other persons or agencies, including any other law enforcement or prosecutorial 3 personnel or agencies, without an order from this Court. The terms of this order do not prohibit 4 respondent from disclosing or discussing the confidential materials with petitioner’s trial counsel 5 or disclosing and discussing with witnesses their own statements or observations that were 6 recorded or summarized in any reports contained in trial counsel’s files. 7 In the event of a retrial of all or any portion of petitioner’s criminal case, any 8 representative of respondent who participated in these habeas proceedings or who was given 9 access to the confidential materials, shall be prohibited from participating in the retrial of all or 10 any portion of petitioner’s criminal case. This order does constitute a waiver of the confidentiality 11 of the information beyond this action and does not authorize the information to be used in a future 12 retrial if one is ordered. 13 This order shall continue in effect after the conclusion of the habeas corpus proceedings 14 and specifically shall apply in the event of a retrial of all or any portion of petitioner’s criminal 15 case, except that either party maintains the right to request modification or vacation of this order 16 upon entry of final judgment in this matter. 17 18 IT IS SO ORDERED. 19 Dated: November 22, 2021 _ /s/ Jennifer L. Thurston CHIEF UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28