(HC) Thompson v. Bird ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAFT L. THOMPSON, No. 2:22-cv-1196 TLN DB P 12 Petitioner, 13 v. ORDER 14 L. BIRD, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. Pursuant to a court order, respondent provided the court with a 19 copy of the transcript of the Marsden hearing held in state court. (ECF Nos. 18, 19.) 20 Respondent’s counsel states that because the transcript was sealed by the state court, and appears 21 to remain under a sealing order, he feels compelled to seek to file it in this court under seal. 22 Respondent’s counsel states, however, that he believes it should be a matter of public record. 23 As this court noted previously, significant information from the Marsden hearing has been 24 made public through both parties’ appellate briefs and through the Court of Appeal’s decision. 25 (See AOB, ECF No. 13-5 at 27-28; RB, ECF No. 13-6 at 26-32; ARB No. 13-7 at 13-15; Ap. Ct. 26 Opinion, ECF No. 13-8 at 3.) In fact, respondent quoted extensively from the transcript in their 27 //// 28 //// 1 brief on appeal. (ECF No. 13-6 at 26-32.1) Petitioner also cited to the transcript in his petition 2 filed here by attaching his briefs on appeal. (See ECF No. 1 at 20-21.) Whether or not the 3 transcript of the Marsden hearing is technically sealed, it has not been treated by the parties or the 4 state appellate court as such. It therefore seems appropriate to file the transcript on the public 5 docket. 6 Public access to the Marsden transcript is bolstered by case law establishing that a 7 petitioner who raises ineffective assistance of counsel claims waives the attorney/client privilege 8 for information necessary to litigate those claims. Bittaker v. Woodford, 331 F.3d 715, 722 (9th 9 Cir. 2003). As described above, both parties and the Court of Appeal have considered the 10 Marsden proceedings relevant to petitioner’s ineffective assistance of counsel claims. This court 11 does as well. 12 For these reasons, this court is leaning toward ordering the transcript of the Marsden 13 hearing filed on the public docket. However, petitioner will be given the opportunity to weigh in 14 on the issue. 15 Accordingly, IT IS HEREBY ORDERED that within twenty days of the filed date of this 16 order petitioner shall file a response to this order. In that response, petitioner shall state whether 17 or not he feels the Marsden hearing transcript may be filed on the public docket. If petitioner 18 seeks to have the transcript filed under seal, he must explain the bases for that argument. 19 DATED: April 17, 2023 20 21 /s/ DEBORAH BARNES 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 DLB:9/DB prisoner inbox/habeas/S/thom1196.marsden trscrpt seal 26 1 The Court of Appeal’s docket shows that that court granted respondent’s request for a copy of 27 the transcript. See https://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=3&doc_id=2274475&doc_no=C088523&reques 28 t_token=NiIwLSEmLkw7WyBBSCNdTE9JUDg6UTxbKyBeUzhTQCAgCg%3D%3D