(HC) Harrell v. Hill

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA JOSHUA NEIL HARRELL, No. 2:20-cv-0060 JAM GGH P 12 Petitioner, 13 v. ORDER RICK HILL, Warden, 15 Respondent.

17 Petitioner has filed a motion to unseal Exhibits 2, 7A-7B, and 10 and Motion for Judicial Notice. ECF No. 29. Petitioner requests the following exhibits be unsealed in support of his habeas petition: Court Ordered Psychological Evaluations, ECF No. 23 (ECF No. 2); Transcript for Sealed Marsden Hearing, ECF No. 23-1 (Exhibit 7A); Transcript for Sealed Marsden Hearing, ECF No. 23-2 (Exhibit 7B); Respondent’s California Court of Appeal First Appellate District brief, ECF No. 23-3 (Exhibit 10). Petitioner further requests that the court take judicial notice of the exhibits. In opposition, respondent argues petitioner fails to demonstrate good cause pursuant to Local Rule 141(f) in support of his motion to unseal and that unsealing the exhibits would go against the principals of comity and raise privacy concerns based on the confidential information contained in the documents. ECF No. 31. Respondent further argues the court should deny petitioner’s request for judicial notice due to the facts contained in the exhibits are subject to //// reasonable dispute. In his reply, petitioner further contests that he “has the right to waive his 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 previously sealed by the state court in petitioner’s state court proceedings. Pursuant to privacy concerns, respondent requested these exhibits be filed under seal. The undersigned found good cause and granted the motion to seal the exhibits. ECF No. 22. However, the undersigned noted that, “[e]ither party may move to unseal the documents in the future.” Id. (citing White v. Ryan, 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 confidential information. Although respondent opposes the motion, the undersigned finds that petitioner has shown a finding of good cause to support the court exercising its discretion to unseal the requested documents. See E.D. Cal. L. R. 141(f) (“Upon the motion of any person, […] the Court may, upon a finding of good cause or consistent with applicable law, order documents unsealed.”) As petitioner argues, he “has the right to waive his personal identifying information” if he so chooses. See ECF No. 32 at 2. Accordingly, petitioner’s motion to unseal is granted.1 Request for Judicial Notice 18 To the extent that petitioner is requesting the court take judicial notice of any factual findings in the psychological evaluations, transcripts of the Marsden hearings, or respondent’s brief in the California Court of Appeal First Appellate District related to his waiver of right to counsel claims, the court will deny petitioner’s request. The court may take notice of facts that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b); United States v. Bernal–Obeso, 989 F.2d 331, 333 (9th Cir. 1993). Here, whether petitioner knowingly and intelligently waived his right to counsel is the central issue in dispute between the parties. See Reina-Rodriguez v. United States, 655 F.3d 1182, 1193 (9th Cir. 2011) (“Here, the language of the colloquy is subject to varying The result would be different if confidential information of persons other than petitioner was 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 answer and may be considered for an appropriate purpose. There is no need to judicially notice the facts in the requested exhibits at this time. Accordingly, petitioner’s request for judicial notice 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 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 No. 23.

14 Dated: August 21, 2020 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE