1

2

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 ANTHONY BUTLER, Case No. 3:20-cv-00560-MMD-CSD

7 Petitioner, ORDER v. 8 W. GITTERE, et al., 9 Respondents. 10 11 I. SUMMARY 12 In this habeas action, Petitioner Anthony Butler, through his appointed counsel, 13 filed a motion for leave to file a second amended petition. (ECF No. 28 ((“Motion to 14 Amend”).) The Court will (1) grant Butler’s Motion to Amend (ECF No. 28); (2) deny as 15 moot, and without prejudice, Respondents’ pending motion to dismiss the first amended 16 petition (ECF No. 29 (“Motion to Dismiss”)); and (3) deny as moot Respondents’ pending 17 unopposed motion for an enlargement of time to file a reply in support of their motion to 18 dismiss (ECF No. 48). The Court will order Butler’s second amended petition (ECF No. 19 47-1) to be filed and require Respondents to file a response to the second amended 20 petition within 90 days after the entry of this Order. The Court will moreover grant the 21 parties’ motions for leave to file certain exhibits under seal. (ECF Nos. 36, 44.) 22 II. RELEVANT BACKGROUND 23 This case was reopened on January 18, 2024, following a stay to return to the 24 state courts. (ECF No. 22.) In April of 2024, Butler filed a first amended petition alleging 25 one claim: that trial counsel was ineffective in 2012 in failing to hire an expert to assess 26 Butler’s capacity to rehabilitate given Butler’s youth (18 years old) and mental illness 27 during the offenses; the State’s arguments at sentencing that Butler was beyond 28 rehabilitation; the trial court’s finding that Butler was irredeemable; and the imposition of 1 a 50-year to life sentence following a guilty plea to one count of sexual assault with a 2 minor under the age of 14 and three counts of lewdness with children under the age of 3 14. (ECF No. 23.) 4 In August of 2024, Butler moved for leave to file a second amended petition based 5 on further investigation of the case and his anticipation that additional facts would support 6 his claim in a then forthcoming report of Dr. Joseph E. McEllistrem, who was scheduled 7 to evaluate Butler on August 2, 2024. (ECF No. 28 at 2-3.) Respondents opposed. (ECF 8 No. 32.) Butler filed a reply attaching a second amended petition (ECF Nos. 47, 47-1.) 9 Relatedly, Respondents filed their Motion to Dismiss (ECF No. 29) on the same day that 10 Butler filed his Motion for to Amend. Butler filed a response to that motion. (ECF No. 46.) 11 Respondents also seek an unopposed extension of 90-days to file a reply in support of 12 their Motion to Dismiss. (ECF No. 48.) 13 III. DISCUSSION 14 A. Motion to Amend 15 A petition for writ of habeas corpus “[m]ay be amended or supplemented as 16 provided in the rules of procedure applicable to civil actions.”

; see also 17 Rule 12 of the Rules Governing Section 2254 Cases in the United States District Courts 18 (recognizing general applicability of rules of civil procedure in habeas cases). Leave to 19 amend “shall be freely given when justice so requires.” Fed. R. Civ. P. 15(a)(2). Factors 20 to be considered in determining whether to grant leave to amend include “bad faith, undue 21 delay, prejudice to the opposing party, futility of the amendment, and whether the party 22 has previously amended his pleadings.” Bonin v. Calderon,

(9th Cir. 23 1995) (applying Fed. R. Civ. P. 15(a) in a habeas case). 24 The Court finds leave to amend is in the interest of justice and is warranted under 25 Rule 15(a)(2). Respondents contend that Butler has not adequately explained his delay 26 or what, if anything, prevented him from earlier seeking Dr. McEllistrem’s report. (ECF 27 No. 32 at 2-9.) Respondents have not established that they are prejudiced by the delay 28 or by the amendment. Butler’s unexplained delay, without resulting prejudice to the 1 Respondents, is not dispositive. Butler did not comply with LR 15-1(a) because he failed 2 to attach the second amended petition to his motion for leave; however, it appears that 3 the Motion to Amend was made in anticipation of Dr. McEllistrem’s report, and that Butler 4 filed the second amended petition incorporating McEllistrem’s findings within a 5 reasonable time after McEllistrem’s evaluation of Butler. (ECF No. 47-1.) 6 Respondents’ primary contention that amendment is futile fails to establish that 7 amendment is not in the interest of justice. Respondents contend amendment is futile 8 because: (1) this Court may not consider new evidence; (2) the petition is second or 9 successive; (3) the claim is untimely and does not relate back to a timely petition; and (4) 10 the claim is unexhausted and procedurally defaulted. (ECF No. 32 at 2-9.) Butler, on the 11 other hand, contends that amendment is not futile because: (1) the Court is not barred 12 from considering new evidence under

(e)(2) due to Butler’s diligence in 13 state court; (2) the petition is not second or successive because this Court did not 14 entertain his first petition; (3) he can overcome the untimeliness of his petition by 15 entitlement to equitable tolling; and (4) the claim is technically exhausted by procedural 16 default, but he can overcome the default under Martinez v. Ryan,

(2012). (ECF 17 No. 47 at 2-4.) A determination whether Butler’s petition and claim can survive on a 18 procedural basis is more appropriately addressed either in a fully briefed motion to 19 dismiss and/or evaluation on the merits. Accordingly, the Court grants the Motion to 20 Amend. 21 B. Motions for Leave to File Exhibits Under Seal 22 To overcome the strong presumption in favor of public access, the party seeking 23 sealing must make a particularized showing as to why the exhibit should be sealed and 24 provide compelling reasons, supported by specific factual findings, for his request. See 25 Kamakana v. City & Cty. of Honolulu,

, 1178 (9th Cir. 2006); Pintos v. Pac. 26 Creditors Ass’n,

(9th Cir. 2010). In general, compelling reasons for 27

28 1LR 15-1(a) requires that, “the moving party must attach the proposed amended 1 sealing exist when court records might become a vehicle for improper purposes, such as 2 “to gratify private spite, promote public scandal, circulate libelous statements, or release 3 trade secrets.” Demaree v. Pederson,

(9th Cir. 2018) (quoting 4 Kamakana, 447 F.3d at 1179). 5 1. Respondents’ Motion 6 Respondents filed a motion for leave to file under seal the following psychiatric and 7 Presentence Investigation Report (“PSI”) exhibits: 8 1. Exhibit 46: Butler’s Lake’s Crossing Correspondence and Psychiatric Evaluation (ECF No. 37-1); 9 2. Exhibit 66: PSI (ECF No. 37-2); 10 3. Exhibit 67: PSI-Victim Impact Statements (ECF No. 37-3); and 11 4. Exhibit 71: Supplemental PSI (ECF No. 37-4). 12 (ECF No. 36.) No response was filed and the deadline for doing so has expired. 13 Under Nevada law, the PSI is “confidential and must not be made a part of any 14 public record.” NRS § 176.156(5). Additionally, the need to protect medical privacy 15 generally qualifies as a “compelling reason” for sealing records submitted with a 16 dispositive motion. See, e.g., Abbey v. Hawaii Employers Mut. Ins. Co. (HEMIC),

Supp. 2d 1005, 1013 (D. Haw. 2010). Having reviewed and considered the matter under 18 Kamakana and its progeny, the Court finds that a compelling need to protect Petitioner’s 19 privacy outweighs the public interest in open access to the court records. The Court will 20 grant Respondents’ motion. (ECF No. 36.) 21 2. Petitioner’s Motion 22 Butler filed a motion for leave to file the following exhibits under seal arguing they 23 consist of medical records: 24 1. Exhibit 111: Psychological Consultation by Joseph E. McEllistrem, PhD dated October 4, 2024 (ECF No. 45-1); 25 2. Exhibit 112: Multidisciplinary Assessment Report and IEP dated 26 June 7, 2004 (ECF No. 45-2); 3. Exhibit 113: NDOC I-File Records (ECF No. 45-3); 27 4. Exhibit 114: NDOC Medical Records (ECF No. 45-4); and 28 5. Exhibit 115: Juvenile Records (ECF No. 45-5). 1 (ECF No. 44 at 2.) No response was filed and the deadline for doing so has expired. 2 a. Exhibits 111 and 114 3 Exhibits 111 and 114 contain Butler’s sensitive medical information and records, 4 i.e., psychiatric and psychological evaluations, medical assessments, medical kites, and 5 other communications concerning health concerns, health evaluations and lab results, 6 and progress notes. (ECF Nos. 45-1, 45-4.) The Court finds that a compelling need to 7 protect Butler’s medical privacy outweighs the public interest in open access to the court 8 records contained in Exhibits 111 and 114. 9 b. Exhibits 112, 113, and 115 10 Exhibit 112 consists of Butler’s juvenile psychoeducational assessment. (ECF No. 11 45-2.) Exhibit 113 consists of NDOC records including booking information, 12 communications with NDOC personnel, disciplinary history, and other personal, private 13 facts about Petitioner. (ECF No. 45-3.) Exhibit 115 consists of documents related to 14 Butler’s juvenile criminal record. (ECF No. 45-5.) 15 Petitioner argued Exhibits 112, 113, and 115 consist of medical records. (ECF No. 16 36 at 2.) The Court finds that Exhibits 112, 113, and 115 do not solely contain medical 17 information. The non-medical portions of the exhibits do, however, contain personal 18 identifiers,2 and sensitive personal information that is not typically made available to the 19 public and which could be used as a vehicle for improper purposes. See Kamakana, 447 20 F.3d at 1179. The Court finds a compelling need to protect Butler’s safety, privacy, and/or 21 personal identifying information outweighs the public interest in open access to these 22 court records and considers Exhibits 112, 113, and 115 properly filed under seal. See 23 Kamakana, 447 F.3d at 1179. 24 IV. CONCLUSION 25 It is therefore ordered that Petitioner Anthony Butler’s motion for leave to file a 26 second amended petition (ECF No. 28) is granted. 27

28 2Personal data identifiers include social security numbers, date of birth, financial 1 It is further ordered that the Respondents’ motions to dismiss the first amended 2 || petition (ECF No. 29) and unopposed request for an enlargement of time to file a reply in 3 || support of their motion to dismiss the first amended petition (ECF No. 48) are denied 4 || without prejudice as moot. 5 The Clerk of Court is directed to file the second amended petition (ECF No. 47-1). 6 It is further ordered that Respondents are required to file a response to the second 7 || amended petition within 90 days after the entry of this Order. 8 It is further ordered that Respondents’ Motion for Leave to File Exhibits Under Seal 9 || (ECF No. 36) is granted and Exhibits 46, 66, 67, and 71 (ECF Nos. 37-1, 37-2, 37-3, and 10 || 37-4) are considered properly filed under seal. 11 It is further ordered that Petitioner's Motion for Leave to File Exhibits Under Seal 12 || (ECF No. 44) is granted and Exhibits 111, 112, 113, 114, and 115 (ECF Nos. 45-1, 45-2, 13 || 45-3, 45-4, and 45-5) are considered properly filed under seal. 14 It is further ordered that in all other respects the order in this case entered on 15 || January 18, 2024 (ECF No. 22) remains in effect. 16 DATED THIS 2" Day of December 2024.

18 MIRANDAM.DU 19 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28